author: WALLACE, Judge.

text:
    Terrick M. CROSBY, a/k/a Terrick Maurice Crosby, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-463.
    District Court of Appeal of Florida, Second District.
    March 22, 2013.

      Terrick M. Crosby, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Terrick Crosby appeals his judgment and sentences for dealing in stolen property and for false verification of ownership to a pawn broker following a jury trial at which he represented himself. On appeal, Mr. Crosby argues that the trial court reversibly erred in denying his pretrial motion to dismiss his trial counsel without first holding a Nelson hearing, in failing to renew the offer of assistance of counsel before permitting Mr. Crosby to represent himself at trial, and in failing to properly instruct the jury under section 812.025, Florida Statutes (2009). We write to explain our decision on the first two issues and to certify conflict and questions of great public importance on the third issue.

FAILURE TO CONDUCT NELSON HEARING AND TO RENEW OFFER OF COUNSEL

On May 20, 2010, Mr. Crosby filed a motion to dismiss his trial counsel and requested a Nelson hearing. In his motion, Mr. Crosby raised numerous complaints about his counsel’s performance. These complaints were mostly refuted by the record or by the attachment to Mr. Crosby’s motion or were insufficient to establish reasonable cause to believe that counsel was rendering ineffective assistance. According to the trial court’s docket, on May 24, 2010, the trial court denied the motion to dismiss without a hearing.

Thereafter on December 7, 2010, the day of Mr. Crosby’s scheduled jury trial, Mr. Crosby filed a motion for a Faretta hearing, asserting his right of self-representation and stating that he preferred to represent himself rather than “be misguided and mislead [sic] by [the] court[-]ap~ pointed public defender.” The trial court stopped the trial proceedings and held a Faretta hearing.

At the hearing, the trial court asked Mr. Crosby why he wanted to represent himself, and Mr. Crosby raised several issues about counsel’s performance, which the trial court addressed. Although the trial court did not make any specific findings about counsel’s performance, it is clear from the trial court’s comments that it found that counsel’s performance was not deficient in any respect. The trial court then questioned Mr. Crosby about his ability to represent himself at trial, and it ultimately granted Mr. Crosby’s request to represent himself and to permit trial counsel to remain present to assist Mr. Crosby at trial. The trial court continued the trial.

The trial ultimately took place on December 9, 2010. Before voir dire, Mr. Crosby asked to address the court. The trial court noted that Mr. Crosby was representing himself and that standby counsel was present. The trial court noted that it had already evaluated Mr. Crosby’s right to represent himself and asked him if he still wished to represent himself; Mr. Crosby responded that he did. The trial court proceeded to voir dire, and Mr. Crosby represented himself throughout the trial with standby counsel present.

On appeal, Mr. Crosby argues that we must reverse his convictions and sentences and remand for a new trial because the trial court denied his motion to dismiss counsel without first holding a Nelson hearing.

The supreme court has adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for addressing a criminal defendant’s request to discharge court-appointed counsel. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988). Preliminarily, the court must determine whether the defendant’s request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request. Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010). If the request is unequivocal and the defendant asserts counsel’s ineffective assistance as the reason for the request, the court must conduct an inquiry “ ‘to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel.’ ” Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009) (quoting Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004)). If the court determines there is no such reasonable cause, then it need not pursue further inquiry. If the defendant pursues his request to discharge counsel, the court must inform him he is not entitled to court-appointed substitute counsel and that he must represent himself. Id. If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel. Maxwell, 892 So.2d at 1102.

Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010).

[A] defendant is not entitled to a Nelson hearing “where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002); see also Sexton v. State, 775 So.2d 923, 931 (Fla.2000) (holding that the defendant was not entitled to a Nelson hearing when he “was merely noting his disagreement with his attorney’s trial strategy ... and was not asserting a sufficient basis to support a contention that his attorney was incompetent”).

McLean v. State, 29 So.3d 1045, 1050-51 (Fla.2010) (alteration in original). “Similarly, a trial court does not err in failing to conduct a Nelson inquiry where the defendant merely expresses dissatisfaction with his attorney.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002); see also Penn v. State, 51 So.3d 622, 623 (Fla. 2d DCA 2011) (“[Gjeneral allegations of dissatisfaction by a defendant are not enough to trigger the need for a full Nelson hearing.”); Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009) (noting same). But “a trial court’s failure to conduct any preliminary Nelson inquiry in response to a defendant’s wishes to discharge court-appointed counsel is a structural defect constituting reversible error.” Milkey, 16 So.3d at 174; see also Torres, 42 So.3d at 912 (“[A] court’s failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply.”); Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010) (noting same). We review the adequacy of a trial court’s Nelson inquiry for an abuse of discretion, and, “[generally, the trial court’s ruling may also be reviewed to determine whether [any] error was harmless.” Torres, 42 So.3d at 912.

Here, Mr. Crosby’s allegations in his motion to dismiss about his counsel’s performance were either refuted by the record or by the attachment to Mr. Crosby’s motion or were insufficient to establish reasonable cause to believe that counsel was rendering ineffective assistance. But as this court observed in Jackson, the trial court must make a preliminary inquiry into a request to discharge counsel by “ascertaining] from the defendant whether the request is unequivocal and to explore the reasons behind the request.” 33 So.3d at 835. Depending on the defendant’s answer, further inquiry may be necessary.

In this case, after the trial court summarily denied Mr. Crosby’s motion to dismiss counsel, Mr. Crosby persisted in his request to discharge counsel and sought to represent himself by filing a motion for a Faretta hearing. At the subsequent Faretta hearing, the trial court asked Mr. Crosby why he wished to represent himself, and Mr. Crosby again asserted counsel’s deficient performance. The trial court rejected the allegations that counsel’s performance was deficient and proceeded to inquire about Mr. Crosby’s ability to represent himself. Thus the trial court cured its error in failing to make an initial Nelson inquiry before denying the motion to dismiss. The court ultimately performed a preliminary Nelson inquiry and addressed Mr. Crosby’s allegations of deficient performance before addressing his request to represent himself at trial at the Faretta hearing. Accordingly, Mr. Crosby has not established reversible error based upon his argument that the trial court failed to conduct a Nelson hearing.

Mr. Crosby further argues that after granting Mr. Crosby’s request for self-representation, the trial court reversibly erred in failing to renew the offer of counsel before trial. Florida Rule of Criminal Procedure 3.111(d)(5) provides that “[i]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” “The need to renew an offer of assistance of counsel is not dependent on the time between an initial offer and a subsequent critical stage, but rather is dependent on whether there are any intervening critical stages.” Monte v. State, 51 So.3d 1196, 1200 (Fla. 4th DCA 2011), review dismissed as improvidently granted, 103 So.3d 864 (Fla.2012). “[I]n situations where a defendant has properly waived the right to counsel, a trial court may proceed with the stage where counsel was waived without further offer of counsel.” Knight v. State, 770 So.2d 663, 669 (Fla.2000).

Here, Mr. Crosby’s waiver of his right to counsel at the December 7, 2010, hearing concerned the trial stage of the proceedings. Thus the trial court was not required to renew the offer of counsel to Mr. Crosby at the start of the trial. See McCarthy v. State, 731 So.2d 778, 780 (Fla. 4th DCA 1999); Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988). Accordingly, Mr. Crosby has not established reversible error based upon the trial court’s failure to renéw the offer of counsel before voir dire or the evidentiary portion of the trial.

FAILURE TO PROPERLY INSTRUCT THE JURY UNDER SECTION 812.025

In an amended information filed on November 22, 2010, the State charged Mr. Crosby with grand theft, dealing in stolen property, and providing false information to a pawn broker. Mr. Crosby allegedly committed all of the offenses on September 15, 2009, and all of the offenses involved the same property, a Dell D630 laptop computer.

During the jury charge conference, Mr. Crosby argued that under section 812.025 the trial court was required to instruct the jury that it could convict Mr. Crosby of either the offense of grand theft or the offense of dealing in stolen property, but not both. The trial court rejected Mr. Crosby’s argument and ruled that the jury would be instructed to determine Mr. Crosby’s guilt on all of the ehargés and that the trial court would make any legal determination about what offenses would be incorporated in a judgment. The trial court permitted the jury to consider all three offenses, and the jury returned guilty verdicts on all three offenses. Shortly after the jury returned the verdicts, the State moved to dismiss the grand theft charge and the trial court granted the State’s motion. The trial court thereafter adjudicated Mr. Crosby guilty of dealing in stolen property and false verification of ownership to a pawn shop in accord with the jury’s verdict.

Mr. Crosby filed a motion for new trial in which he argued that he was entitled to a new trial as a result of the trial court’s failure to comply with section 812.025. After a hearing, the trial court denied the motion.

Citing to the Fourth District’s decisions in Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007), and Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), Mr. Crosby argues on appeal that the trial court committed fundamental error when it failed to instruct the jury that it could convict him of grand theft or dealing in stolen property, but not both offenses. Further, he asserts that the trial court’s attempt to correct the error by permitting the State to dismiss the grand theft charge after the verdict was an insufficient cure and that he is entitled to a new trial. We disagree.

Section 812.025 provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

This court recently observed in Williams v. State, 66 So.3d 360, 362 (Fla. 2d DCA 2011), review granted, 70 So.3d 588 (Fla.2011), that when a trial court has not instructed the jury under section 812.025 and has permitted the jury to consider and convict a defendant of both grand theft and dealing in stolen property, “this court has consistently reversed only the lesser offense and, if necessary, remanded the case for resentencing without consideration of the lesser offense.” In Williams, we noted that the trial court had actually declined to instruct the jury that it could only return a verdict against Mr. Williams on one of the offenses. Id. at 361-62. And we concluded that the trial court did not reversibly err when it permitted the jury to consider and convict Mr. Williams of both offenses, after which the trial court dismissed the lesser of the two offenses. Id. at 362-65. We questioned whether an adequate jury instruction under section 812.025 could ever be fashioned, noting, in part, that the statute provides no guidance or criteria for a jury to use in selecting the appropriate offense if it finds that the evidence establishes that a defendant is guilty of both. Id. at 363-64. Thus we certified three questions of great public importance to the Florida Supreme Court as follows:

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

Id. at 365; see also Wilkins v. State, 78 So.3d 18, 19 (Fla. 2d DCA 2011) (certifying conflict with Kiss and certifying the questions certified in Williams); Poole v. State, 67 So.3d 431 (Fla. 2d DCA 2011) (same).

Based upon this court’s decision in Williams, we reject Mr. Crosby’s argument that the trial court erred in denying his motion for a new trial based on its failure to instruct the jury under section 812.025. In addition, we certify conflict with Kiss, and we certify to the Supreme Court of Florida the three questions certified in Williams.

CONCLUSION

Based on the foregoing discussion, we affirm Mr. Crosby’s convictions and sentences. With respect to Mr. Crosby’s argument concerning the requested jury instruction under section 812.025, we certify conflict with Kiss and repeat our certification of the three questions certified in Williams.

Affirmed.

KHOUZAM and BLACK, JJ, Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

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

      . Upon this court's request for supplementation of the record, the transcript of that hearing was made part of the record on appeal.

      . Mr. Crosby raised a number of additional arguments for the first time in his reply brief, which were not preserved for appellate review. Accordingly, we do not address these arguments because they are either procedurally barred or beyond the scope of our review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”); Hoskins v. State, 75 So.3d 250, 257 (Fla.2011) (holding that an argument raised in the reply brief that was not raised in the initial brief was procedurally barred).


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    George FEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5336.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

To prove a battery, the State must demonstrate an intentional touching. George Fey was convicted of one count of burglary with an assault or battery and lewd or lascivious conduct. At trial, the State asserted that in order to achieve sexual gratification, he positioned himself to be touched by the victims’ feet when the victim moved in their sleep. We find Fey’s actions were substantially certain to result in a touching and thus constitute an intentional touching. We also hold Fey’s challenge to the trial court’s granting of the State’s Williams rule motion without first holding a hearing was not properly preserved for review.

Fey was initially charged with one count of burglary of a dwelling, five counts of burglary of a dwelling with an assault or battery, and five counts of lewd or lascivious conduct. These charges involved four separate events that occurred between February 1 and April 7, 2008. One boy was the victim of each incident of lewd or lascivious conduct. The theory of prosecution was that Fey entered into the victims’ home at night after everyone was asleep, sat or laid next to one of the boys (referred to herein as DaH, JaH, and JeH) while they were sleeping, and masturbated while touching their feet or when the boys’ movement during their sleep resulted in their feet touching Fey.

Prior to trial, Fey moved to sever charges relating to different events and to sever the burglary charges from the lewd or lascivious conduct charges. At a hearing on the motion to sever, the trial court granted the motion in part by severing the case into three, isolating the counts relating to each of the three victims. The following exchange occurred in ruling on the motion:

THE COURT: So, my ruling would be as follows. I’m going to grant the motion for severance. I think it would — if convicted would be reversed on appeal if I didn’t grant the motion for severance based on my reading of Shermer, Rorack and Gent. Supplemented by my reading of Ellis versus State. And I’m going to sever out counts two, three and seven, four, five, eight and nine, six, ten and eleven. What I have done is isolated each individual victim from the other victim.
I also am severing count one from the rest of the information because legally that is again, not an episodic sense. However, I am granting the State’s motion to [admit] Williams rule this evidence into this trial.
[DEFENSE ATTORNEY 1]: We haven’t provided the court with any — as far as the—
[DEFENSE ATTORNEY 2]: Your Honor, we were here for the motion to sever. We had not provided any argument on the Williams rule matter.
THE COURT: Well, I’m telling you based on my knowledge of the facts of this case, unless you bring something new and shocking to my attention that in order for the State to establish the intent of the defendant, the lack of mistake of him being in that house, the opportunity for him to commit these crimes that I find that admission of these other events is necessary for the State to demonstrate those critical elements with respect to it’s prosecution. I would grant and am granting the State’s request. They made that request in open court that Williams rule. I didn’t have a copy of the motion. But I’m allowing that testimony to come in knowing that it cannot become a feature of the case. Knowing that I will give a limiting instruction pursuant to counsel’s request at anytime that evidence is offered during the course of the trial. That’s my ruling.

No formal objection to the court’s ruling on Williams rule evidence was made during the hearing. No written motion or notice of intent to introduce Williams rule evidence appears in the record on appeal. However, Fey concedes in his brief that the trial court granted an oral request to admit Williams rule evidence.

The State proceeded to trial on counts which related to acts committed only against DaH (two counts of burglary of a dwelling with an assault or battery and two counts of lewd or lascivious conduct); in addition, the State pursued a count of burglary of a dwelling which related to the final entry into the victims’ home when Fey was caught. Fey was found guilty of all five counts. On appeal, he attacks one count of burglary of a dwelling with an assault and battery and one count of lewd and lascivious conduct on the basis that an assault or battery was not proven. He attacks all of the convictions on the basis that improper Williams rule evidence was admitted.

Factual Background of the Offenses

DaH, JaH, and JeH were three boys living with their parents. The brothers met Fey through their parents and church and had known Fey for about four or five years. Fey would come over to their house a few times a week. Fey never spent the night and wasn’t allowed at the house when the parents weren’t home or had already gone to bed.

A week apart, DaH and JaH separately reported to their mother that they woke up in the middle of the night as Fey sat or stood near them. Each described a different scenario of Fey touching their feet. Their father decided to sit up one night in the dark to see if he could catch Fey sneaking into the house after everyone was asleep. The father caught Fey trying to sneak into the house, after which the police were called and Fey was arrested at the scene.

DaH testified that a couple of weeks prior to Fey’s arrest, he and JaH were sleeping on separate couches on the screened back porch. While sleeping, he either rolled over or scooted' down on the couch and awoke to find Fey sitting on the end of the couch near his feet. The State asked DaH, “Do you know if [Fey] touched your feet or if you touched him in movement as you were sleeping?” DaH responded that he did not remember. The State then asked, “What caused you to wake up on that incident?” DaH responded, “Either I touched him or he touched me when I woke up.” DaH testified he asked Fey why he was there, to which Fey responded by asking if his father was mad at him [Fey]. DaH said that he didn’t know and Fey should ask his father. Fey then got up and left, and DaH went back to sleep.

In his recorded statement shortly after arrest, Fey admitted he had a “foot fetish problem.” His plan that night was to go up to one of the boys, sit or lay by their feet and hope their foot touched his chest. He admitted he had done this on three prior occasions and that he occasionally masturbated when he did it. Fey explained, “I would touch the bottom of their foot or touch like their leg to get a reaction from them. And their foot would move and you know, touch my body around like you know around my chest area, sometimes they would touch my leg.” (emphasis added).

The Denial of a Judgment of Acquittal

After the State rested, Fey moved for a judgment of acquittal on the charges relating to the porch incident. Because we disagree with his contentions about proof of a battery, we do not address his contentions regarding proof of an assault.

Fey argued at trial there was no testimony that he touched DaH. DaH testified he stretched his feet out, hit Fey, and woke up. Fey then got up and left. The detective also testified that'Fey told her that nothing had happened that time. The trial court denied the motion.

Both battery and lewd or lascivious conduct can be proven by showing an intentional touching occurred. §§ 784.03(l)(a)l., 800.04(6)(a)l., Florida Statutes (2008). “The battery statute’s prohibition of an ‘intentional’ touch or strike covers situations where a defendant knows that a touch or strike is substantially certain to result from his acts.” C.B. v. State, 810 So.2d 1072, 1073 (Fla. 4th DCA 2002). “Intent to commit a battery must be determined by the circumstances surrounding the touching or striking of the victim.” S.D. v. State, 882 So.2d 447, 448 (Fla. 4th DCA 2004). For example, in Mohansingh v. State, 824 So.2d 1053 (Fla. 5th DCA 2002), the court upheld the denial of a judgment of acquittal for battery when the defendant gave an officer a “raspberry,” causing spit to fly onto the officer’s uniform. The court held there was sufficient evidence to prove the spitting was intentional when the defendant admitted to giving the raspberry and the victim testified the defendant was angry and screaming. Id. at 1054. Also, in S.D., the defendant was charged with hitting her mother in the mouth. The evidence showed that the defendant had just finished fighting her brother and had just slapped her' sister. The defendant was angry, flailed her arms about, and continued to do so when she saw her mother approach. We held there was a substantial certainty that the mother would be hit as a result of the defendant’s actions. 882 So.2d at 449:

On appeal, Fey further argues that he may have placed himself near DaH’s feet, but that act alone would not cause him to be substantially certain that he would touch DaH’s feet. We disagree. The record demonstrates Fey’s intent of sitting by DaH’s feet was to cause the touching of the victim’s feet with Fey’s body so he could derive sexual pleasure. As he admitted to the detective, “And their foot would move and you know, touch my body around like you know around my chest area, sometimes they would touch my leg.”

Conduct which in some circumstances might be purely innocent may constitute lewd and lascivious conduct if accompanied by the requisite improper intent. Egal v. State, 469 So.2d 196, 198 (Fla. 2d DCA 1985). Fey has not disputed the intent with which he positioned himself by DaH’s feet while he was sleeping. Sexual gratification was the ultimate goal, regardless of whether he was unable to accomplish his goal.

We are satisfied sufficient proof of a battery and lewd or lascivious conduct was presented to withstand a judgment of acquittal.

Evidence of Similar Crimes

Fey argues that his due process rights were violated when the trial court suddenly decided to grant the State’s request to admit Williams rule evidence during a hearing on his motion to sever. More specifically, he argues that when the trial court ruled that it would admit the evidence of acts against JaH, Fey pointed out that he hadn’t had an opportunity to argue the issue. The court responded that unless Fey presented “something new and shocking,” it was admitting the evidence. Fey contends the court never provided him a meaningful right to be heard before deciding the issue. He also argues the State failed to provide written notice that it would use Williams rule evidence at trial, as required by section 90.404(2)(d), Florida Statutes.

In McLean v. State, 934 So.2d 1248 (Fla.2006), the Florida Supreme Court set forth the due process requirements a trial court must follow when determining whether to admit evidence of prior acts of child molestation. First, the trial court must find the prior acts were proved by clear and convincing evidence. Then, the court must assess whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice by considering at least four specific factors. Next, the court must assess whether there is danger of confusing or misleading the jurors, the evidence is needlessly cumulative, or the evidence will become a feature of the trial. Finally, the court must give a curative instruction if requested. Id. at 1262.

Here, the trial court did not follow this process, but instead summarily decided that the evidence was needed for the State to prove its case against the Defendant. It merely told defense counsel that unless something “new and shocking” was brought to the court’s attention, the evidence would be admitted. The flaw with Fey’s argument on appeal is that the trial court announced its decision five weeks in advance of the trial. Although both of Fey’s attorneys pointed out at the severance hearing that they were not noticed for a hearing on Williams rule evidence, no objection was made to the court’s ruling. More importantly, at no time did Fey request a further hearing or make any objection pretrial or during trial based on failure to comply with McLean despite the trial court’s invitation to “bring something new.” Thus, Fey failed to preserve the argument for appeal. DeLuise v. State, 72 So.3d 248, 251 (Fla. 4th DCA 2011).

Regarding the lack of notice required by section 90.404(2)(d), Florida Statutes, “[a] lack of notice can be deemed harmless where there is no showing of actual prejudice or unfair surprise to the defendant.” Gardner v. State, 821 So.2d 1220, 1222 (Fla. 2d DCA 2002). Here, Fey cannot claim he was prejudiced or surprised by the introduction of evidence relating to acts taken against JaH when he knew of the existence of that evidence prior to the hearing on the motion to sever held five weeks before the trial.

Affirmed.

WARNER and STEVENSON, JJ., concur.


author: GERBER, J.

text:
    Alpha McDONALD, Appellant, v. Veron BROWNE-McDONALD n/k/a Veron Browne, Appellee.
    No. 4D12-2824.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Reid Moore, Jr., Palm Beach, for appellant.
    Jaclyn Sorka of Rudolph & Associates LLP, West Palm Beach, for appellee.
   GERBER, J.

The former husband appeals from the circuit court’s non-final order granting the former wife’s motion for enforcement of the parties’ settlement stipulation. The former husband argues that the court erred in finding him in default of the settlement stipulation under both a contractual and a contempt theory. We agree and reverse.

While married, the parties possessed a Florida home burdened by a mortgage naming both parties as borrowers. Ultimately, the parties ended their marriage by divorce in New York. The New York divorce order incorporated the parties’ settlement stipulation. The settlement stipulation provided that New York law would govern its terms. Regarding the Florida home, the settlement stipulation provided:

The parties jointly own ... [the Florida home]. The HUSBAND shall retain exclusive possession of the Florida Home and shall heretofore be responsible for paying all carrying charges on this property including the mortgage, taxes, and insurance.
No later than six (6) months after the date of the [notice of] entry of the judgment of divorce, the HUSBAND shall, by refinance or other means, transfer the mortgage liability solely to his name. The WIFE shall fully cooperate with any refinance or other efforts on the part of the HUSBAND to transfer mortgage liability to the HUSBAND’S name.
Upon the transfer of the mortgage liability for the Florida Home to the HUSBAND, the WIFE shall transfer her interest in the Florida Home to the HUSBAND.
Should the HUSBAND fail to make payments as required and further fail to transfer by refinance or other means, the mortgage liability from both parties to the HUSBAND, the HUSBAND shall indemnify the WIFE for any liabilities or losses resulting from his default. If the '■ HUSBAND defaults, then the WIFE shall provide written notice by certified mail to the HUSBAND to cure within Five (5) days of the notice. If HUSBAND fails to cure then WIFE has a right to bring an action for the sale of the Florida Home.

Eventually, the former wife registered the New York divorce order in Florida and filed her motion to enforce the settlement stipulation. She alleged that the former husband failed to remove her from liability for the Florida home’s mortgage within the settlement’s allotted time, and so he was in default. Accordingly, the former wife argued, “[t]he Former Husband should be compelled to complete refinancing of the Florida Home or otherwise liquidate the real property immediately.”

The former husband filed a memorandum of law in opposition. He argued that he was not in default of the settlement stipulation because the settlement provision regarding the Florida home used the conjunctive “and” when describing his obligations. Specifically, the former husband argued that for him to be in default, he had to: (1) fail to remove the former wife from liability under the mortgage; and (2) fail to make the necessary payments under the mortgage. According to the former husband, because he paid the mortgage, he could not be in default. The former husband also filed an affidavit detailing his numerous, yet unsuccessful, attempts at refinancing the Florida home.

The circuit court held a hearing on the former wife’s motion to enforce. At the end of the hearing, the court noted that “both sides agree the [Florida home] has not been refinanced, and it’s not been sold,” and “[s]o it’s really going to be what my interpretation of the [settlement] is without any additional facts.”

Later, the court entered a written order granting the former wife’s motion to enforce. The court found the settlement’s language regarding the Florida home was not ambiguous, and that the undisputed evidence showed that the former husband: (1) “has been paying all carrying charges on the property including the mortgage, taxes, and insurance”; and (2) has failed to “relievef] the Wife from financial liability of the Florida home within the six (6) months called for in the agreement.” The court then held:

[T]he contract is clear on its face that in the event that the Husband does not by, refinance or other means, transfer the mortgage liability to his sole name within six (6) months after the entry of the Judgment of Divorce that he is in default of the agreement, and that the Wife is entitled to seek enforcement of the settlement agreement not only on a contractual theory but also upon a contempt theory inasmuch as the Judgment of Divorce provided that the parties were directed to comply with every legally enforceable term or provision of such stipulation of settlement.

The court then ordered the former husband to “come into compliance with the” settlement stipulation “by removing the Wife from any financial liability for” the Florida home within ten days of the court’s order.

This appeal followed. The former husband argues the circuit court erred in finding that he defaulted on , the settlement stipulation under both a contractual and a contempt theory. We agree.

On the contractual theory, the circuit court erroneously , interpreted the plain and ordinary meaning of the settlement stipulation as granting the former wife a contractual right to force a sale of the Florida home if the former husband was not able to remove her from the home’s mortgage in the settlement’s allotted time. See Rauso v. Rauso, 73 A.D.3d 888, 902 N.Y.S.2d 573, 574 (N.Y.App.Div.2010) (“[A] marital settlement is a contract ... and a court should interpret the contract in accordance with its plain and ordinary meaning.”) (brackets, citations, and quotations omitted). The settlement stipulation provided:

Should the HUSBAND fail to make payments as required and further fail to transfer by refinance or other means, the mortgage liability from both parties to the HUSBAND, the HUSBAND shall indemnify the WIFE for any liabilities or losses resulting from his default. If the HUSBAND defaults, then the WIFE shall provide written notice by certified mail to the HUSBAND to cure within Five (5) days of the notice. If HUSBAND fails to cure then WIFE has a right to bring an action for the sale of the Florida Home.

The plain and ordinary meaning of this provision is that the former wife’s ability to force a sale of the Florida home has two conditions precedent: (1) the former hus-' band fails to make mortgage payments; and (2) the former husband fails to remove the former wife from the mortgage. This is because the phrase “and further fail[s]” shows that the two conditions are linked, and both must occur. Additionally, as the former husband notes, the provision’s use of the phrase “default” plainly refers to the former husband failing to make a necessary mortgage payment, and not to removing the former wife from the mortgage. This can be seen by considering the provision’s indemnification requirement for the former husband in the event of a default. Such would be superfluous if the former husband had removed the former wife from the mortgage, because she would have no obligations under the mortgage. This reasoning appears to be confirmed by the fact that the notice and cure provisions are plainly read to allow the former husband to cure a default by bringing any delinquent mortgage payments up to date.

The above reasoning is further confirmed by considering what would occur if either condition were independently sufficient to trigger the former wife’s contractual right to force a sale of the Florida home. Under such an interpretation, whenever the former husband fails to make a necessary payment under the mortgage and is unable to cure his default after sufficient notice, the former wife would have the ability to force the sale of the Florida home. This would hold even if the former husband had, pre-default, succeeded in removing the former wife from the mortgage and she had transferred her interests in the home to him. Such a result is clearly unreasonable, yet logically follows if each condition is independently sufficient to trigger the former wife’s contractual right to force a sale. Accordingly, such an interpretation should not be applied. See Reape v. N.Y. News, Inc., 122 A.D.2d 29, 504 N.Y.S.2d 469, 470 (N.Y.App.Div.1986) (“[Wjhere a particular interpretation would lead to an absurd result, the courts can reject such a construction in favor of one which would better accord with the reasonable expectations of the parties.”) (citations omitted).

On a contempt theory, the circuit court made no finding that the former husband willfully disregarded the New York divorce order. On the contrary, the record shows the former husband affirmatively attempted to comply with the New York divorce order by his numerous, yet unsuccessful, attempts at refinancing the Florida home. Thus, the circuit court’s order also must be reversed under a contempt theory. See Griffith v. Griffith, 941 So.2d 1285, 1286 (Fla. 4th DCA 2006) (“We reverse the order finding the former husband in contempt, because the undisputed evidence did not establish willful non-compliance with his support obligations under the Agreed Final Judgment.”); Rubin v. Rubin, 78 A.D.3d 812, 911 N.Y.S.2d 384, 386 (N.Y.App.Div.2010) (“To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court’s order, with knowledge of that order’s terms, thereby prejudicing the movant’s rights.”) (citations omitted).

Reversed and remanded for further proceedings.

STEVENSON and CIKLIN, JJ., concur.


author: POLEN, J.

text:
    Stuart KALMANOWITZ and Kings Highway GCS, LLC, Appellants, v. AMERADA HESS CORPORATION, and Tim Brink, individually, Appellees.
    No. 4D10-4970.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Chad Hastings of Lesser Lesser Landy & Smith, West Palm Beach, for appellants.
    Barry R. Davidson, Thomas R. Julin and Patricia Acosta of Hunton & Williams LLP, Miami, for appellee Amerada Hess Corporation.
   POLEN, J.

The issue addressed in this appeal involves the relation back doctrine and its application in a dispute arising from a commercial transaction. Appellant, purchaser/franchisee of a gas station/convenience store, sued franchisor Amerada Hess Corporation (“Hess”) on multiple grounds based on alleged misrepresentations made by its employee, which purchaser claimed induced him to enter into the written agreement. The trial court ultimately entered final summary judgment in favor of Hess. Purchaser appeals, arguing that the court erred in finding that purchaser’s claims for negligent hiring (count IX) and supervision and retention (count X) of the employee were barred by the statute of limitations. We reverse based solely on the negligent supervision and retention claim because that claim, contained in the purchaser’s amended complaint, relates back to the timely filed original pleading in this case.

Background

In May 2000, purchaser, a licensed realtor at the time, met Hess employee Tim Brink while looking for gas stations for his clients to acquire; Brink was responsible for handling gas station sales and negotiations for Hess throughout Florida. According to purchaser, after he expressed an interest in acquiring a gas station for himself, Brink convinced him that a Hess station would have the best potential for success if it were built at a specific location in Fort Pierce. To induce purchaser into building the station, Brink allegedly made numerous oral and written representations, promises, and assurances regarding the financial feasibility and profitability of the proposed gas station. Specifically, Brink promised purchaser that Hess’s policy was to undercut all competitors’ low-price gas stations. He further guaranteed detailed sales and profit projections for the station. Moreover, Brink represented that Hess approved all of his financial projections, and that his projections were never off by more than five or ten percent.

Based on Brink’s representations, purchaser entered into a Branded Retail Agreement (BRA) with Hess to become a Hess “Retailer,” purchased the property Brink recommended for the gas station site at a higher price than comparable properties, and built a larger station than he had planned at a total cost of $2.25 million. The recommended property site was land that Brink claimed McDowell Investments had owned. Melissa McDowell, Brink’s sister-in-law, owned McDowell Investments through which she purchased the gas station site soon before conveying it to purchaser.

At some point after opening the station, purchaser realized that Brink’s financial projections and promises were either grossly overstated or false. Despite numerous alleged complaints to Hess, Hess did nothing to remedy the situation. The gas station operated at a loss. Later, purchaser discovered that Brink defrauded other investors in a similar manner. Purchaser also learned that Brink had made profits of $1,450,000.00 from the sale of land to Hess franchisees in Florida; these profits resulted from his self-dealing.

Procedural History

In June 2004, purchaser originally filed an eight-count complaint against Hess and Brink, alleging breach of contract, breach of an implied covenant of good faith and fair dealing, fraud in the inducement, negligent misrepresentation, unjust enrichment, RICO violations, Florida Franchise Act violations, and communications fraud violations. In response, Hess moved for summary judgment on all eight counts, arguing that Brink’s pre-contract representations provided no basis for any claim where the contract explicitly negated any representations and otherwise extinguished any prior oral representations. Specifically, Hess pointed to language in the BRA that provided:

4. Retailer acknowledges that Hess has made no representations and provided no estimates as to the following:
a. Potential income to Retailer from the Sale of HESS Fuels or other Products.
b. Prospects for success of the Station’s business.
c. Possible training and management assistance by Hess to Retailer.
d. Volume of HESS Fuel or other products or convenience store items which Retailer will be able to sell at the Station.

Further, Hess pointed to the fact that the only warranty contained in the BRA was that Hess had good title to the fuel' and other products it would sell to purchaser. Any other warranty of any kind was expressly disclaimed in the BRA. Most importantly, Hess pointed to a merger clause in the BRA, which set forth:

This Agreement comprises the entire Agreement between Hess and Retailer, and there are no agreements, understandings, warranties or representations, oral or written, express or implied, that are not merged in or superseded by this Agreement. Any change in or modification of this Agreement will be binding only if the change or modification is in writing and signed by the parties.

On November 5, 2008, purchaser amended the complaint to add two additional counts against Hess. The first alleged negligent hiring of Brink (count IX) while the other alleged negligent supervision and retention of Brink (count X). In the amended complaint, purchaser claimed the following: that he reported Brink’s representations to a Hess supervisor, Mike McAffee; that Hess failed to do a background check when it hired Brink and that doing so would have revealed facts bearing on Brink’s qualifications to represent Hess; that Brink held a position with “limited oversight”; and that Hess had a duty to supervise Brink and failed to exercise that duty.

In December 2008, after hearing argument from both parties, a predecessor judge entered a written order granting partial summary judgment in favor of Hess on the first eight counts, finding that purchaser could not have relied on Brink’s representations based on the express language of the BRA. Three months later, purchaser moved to amend his complaint to state punitive damage claims against Brink and Hess, which the predecessor judge granted.

Subsequently, Hess moved for summary judgment against counts IX and X on a variety of grounds, including that the claims were barred by the statute of limitations when filed. In December 2009, following a previous hearing on the motion before the judge in this appeal, the trial court ultimately concluded that the, negligent hiring (count IX) and supervision and retention (count X) claims were time barred, and granted summary judgment in favor of Hess on those counts.

Purchaser then filed a motion for reconsideration of the summary judgment against counts I through VIII and a subsequent motion for reconsideration of the same against counts IX and X. The court denied both motions. Hess then moved for entry of a final summary judgment because the sole remaining claim sought punitive damages against the corporation on the basis of the other counts which already had been dismissed. In November 2010, the trial court granted that motion and entered final summary judgment in favor of Hess, from which purchaser now appeals.

Analysis

Purchaser argues that the trial court erred in entering summary judgment on both counts IX and X, which alleged the negligent hiring, supervision, and retention of Brink because the amended complaint did not violate the statute of limitations. We agree with purchaser that the trial court erred in entering summary judgment as to count X, the negligent supervision and retention claim, because ■ that claim, contained in the purchaser’s amended complaint, relates back to the timely filed original complaint and thus, it is not barred by the statute of limitations. However, we find no error in the trial court’s finding that the negligent hiring claim did not relate back and was time-barred.

We review summary judgments de novo. Lopez-Loarca v. Cosme, 76 So.3d 5, 9 (Fla. 4th DCA 2011).

The relation back doctrine set forth in Florida Rule of Civil Procedure 1.190(c) provides that an amended pleading relates back to the date of the original pleading when it arises “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....” Fla. R. Civ. P. 1.190(c). This rule allows for “ ‘[a]n amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, [to] relate back even though the statute of limitations has run in the interim.’ ” Lopez-Loarca, 76 So.3d at 9 (quoting Maraj v. N. Broward Hasp. Dist., 989 So.2d 682, 685 (Fla. 4th DCA 2008)). It is well settled that the rule should be construed liberally in favor of the relation back effect. Palm Beach Cnty. v. Savage Const. Corp., 627 So.2d 1332, 1333 (Fla. 4th DCA 1993). The test is whether “the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.” Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010).

Here, purchaser’s claim for negligent supervision and retention was sufficiently covered and referenced in the original pleading. Specifically, the original complaint alleged that neither Hess nor Mike McAfee (Brink’s supervisor) did anything to remedy the wrongdoing caused by the unauthorized misrepresentations of their own agent, Brink. Further, it alleged that Hess knew or should have known about each and every false promise, projection, and representation made by Brink; however, Hess failed to use reasonable care to correct or mitigate the mistakes of their agent. Finally and most importantly, the original complaint alleged that Hess, as Brink’s employer, is responsible for Brink’s fraudulent inducement and that Hess knew or should have known about its agent’s fraudulent scheme, and it failed to remedy the situation, knowing that purchaser and other investors throughout Florida were being defrauded.

These factual allegations set forth in the original complaint were sufficient to give fair notice of the general fact situation out of which the negligent supervision and retention claim arose, especially when construed liberally in favor of relating back. The amended complaint involves the same conduct set forth in the original. Thus, count X for negligent supervision and retention relates back to the date of the original complaint and does not violate the statute of limitations.

Accordingly, we affirm the summary judgment as to all other counts; we reverse summary judgment against count X and remand the case for further proceedings.

Affirmed in part, Reversed in pao% and Remanded.

STEVENSON, J., and BONAVITA, AUGUST, Associate Judge, concur.

      . In his brief, purchaser indicated that Brink was a nominal party to this appeal, noting that the case against Brink proceeded to trial, which resulted in an uncollected jury verdict for two million dollars in compensatory damages and twelve million dollars in punitive damages.


author: PER CURIAM.

text:
    Hong G. WANG, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1232.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant pursuing his pending motion for postcon-viction relief.

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


author: DAMOORGIAN, J.

text:
    Thomas C. FERGUSON, Appellant, v. Theresa F. CARNES, Appellee.
    No. 4D12-54.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Joshua D. Lanning of Moore & Van Allen, PLLC, Charlotte, NC, and Craig A. Rubinstein of Katzman, Waserman, Ben-nardini & Rubinstein, Boca Raton, for appellant.

      Ashley N. Crispin and Brian M. O’Con-nell of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee.
   DAMOORGIAN, J.

In this breach of contract claim, Thomas C. Ferguson (“Ferguson”) appeals a final summary judgment entered against him and in favor of his sister, Theresa F. Carnes (“Carnes”). We reverse.

The genesis of this appeal is a complaint to enforce an oral contract filed by Ferguson against Carnes. In his complaint, Ferguson alleged that he and Carnes are the only living children of a wealthy mother, who frequently threatened to disinherit both siblings. The complaint further alleged that Ferguson and Carnes entered into an oral agreement in order to afford each other assurance against disinheritance. The oral agreement provided that if one sibling were disinherited, Ferguson and Carnes would divide evenly between them whatever property either received from their mother’s estate. Eventually, the mother disinherited Ferguson and designated Carnes as her sole beneficiary.

Carnes refused to divide her inheritance with Ferguson. After Ferguson filed his breach of contract claim, Carnes moved for summary judgment, claiming that the alleged oral agreement failed for lack of consideration. The trial court agreed with Carnes, finding that the agreement was an unenforceable promise because there was no consideration.

“ ‘The standard of review of an order granting summary judgment is de novo.’ ” Corya v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Id. Further, in the absence of any genuine issue of material fact, the moving party must show that it is entitled to judgment as a matter of law. Id.; see also Fla. R. Civ. P. 1.510(c).

An oral contract must meet the requirements of a written contract, including offer, acceptance, consideration, and sufficiently specific terms. St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla.2004). Promises have long been recognized as valid consideration in forming a contract. Diaz v. Rood, 851 So.2d 843, 846 (Fla. 2d DCA 2003) (“ ‘[A] promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do.’ ” (quoting Ashby v. Ashby, 651 So.2d 246, 247 (Fla. 4th DCA 1995))); Wright & Seaton, Inc. v. Prescott, 420 So.2d 623, 626 (Fla. 4th DCA 1982) (“[Mjutual promises constitute considerations for each other.”); Jenkins v. City Ice & Fuel Co., 118 Fla. 795, 160 So. 215, 218 (1935) (“Mutually enforceable promises may constitute a valid consideration for each other.”). A bilateral contract results from “mutual promises to do something in the future, in which the consideration of the one party is the promise on the part of the other, each party being both a promisor and a promis-ee.” McIntosh v. Harbour Club Villas Condo. Ass’n, 468 So.2d 1075, 1076 (Fla. 3d DCA 1985).

The oral agreement between Ferguson and Carnes did not lack consideration. ' Essentially, the terms of the oral agreement as pleaded, which Carnes admitted for purposes of her motion, delineated mutual promises. In other words, Ferguson and Carnes each promised the other to split their respective inheritances with the other, so that each would receive equal shares of whatever amount their mother willed to one or both of them. The consideration lies in the fact that each gave up the possibility of inheriting more than the other in return for insuring that neither would be disinherited in whole or in part. See Ashby, 651 So.2d at 247. The trial court erred by viewing each promise in isolation of the other, rather than viewing them as mutual corresponding promises.

We conclude that Ferguson alleged sufficient facts to establish the creation of an oral agreement and to withstand summary judgment. Accordingly, we reverse and remand for further proceedings.

Reversed.

POLEN and LEVINE, JJ., concur.


text:
    VOCELLE & BERG, L.L.P., Appellant, v. IMG CITRUS, INC., Claude Edward Meadows, III, as Trustee of the Claude E. Meadows Revocable Living Trust, and Frank H. Fee, III, Esq., Appellees.
    No. 4D12-2815.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Paul R. Berg of Vocelle & Berg, L.L.P, Vero Beach, for appellant.
    Jennifer S. Eden and Christina Y. Taylor of Latham, Shuker, Eden & Beaudine, LLP, Orlando for appellee, IMG Citrus, Inc.
   PER CURIAM.

When a contract’s terms are not susceptible to more than one meaning, a court may not indulge in interpretation or resort to extrinsic evidence. Because the terms of the contract at issue are unambiguous, we find that the court below erred in looking outside of the document itself and relying on extrinsic evidence which directly contradicted the terms of the agreement. Accordingly, we reverse. Because we find that the trial court erred here, Vocelle & Berg’s second issue, whether the UCC safe harbor rule was satisfied, is moot and will not be discussed.

IMG Citrus, Inc. (“IMG”) sought relief and was granted a substantial judgment against Claude Edward Meadows, III, as Trustee of Claude E. Meadows Revocable Living Trust (“Meadows”). IMG moved for a Writ of Garnishment pursuant to section 77.03, Florida Statutes (2011), against a real estate escrow agent, alleging that he held property in trust belonging to Meadows.

Vocelle & Berg, L.L.P. (“Vocelle & Berg”), Meadows’s attorneys, filed a third-party affidavit, claiming an interest in the property to be garnished. Vocelle & Berg explained that the funds contained within the escrow account in the possession of the escrow agent belonged to them pursuant to a fee agreement and assignment of property executed by Meadows prior to entry of the judgment. The assignment of property reads:

For ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the undersigned hereby assigns, transfers and delivers to Vocelle & Berg, L.L.P., all sums owned by the undersigned, due or which shall become due and owing to the undersigned from [the escrow agent] as escrow agent of the Escrow Agreement dated April 1, 2010 and Escrow Agreement dated April 1, 2010, attached as Exhibit “A” by reason of a certain agreement dated October 7, 2012 by and between the undersigned and Paul R. Berg, Esquire and Vocelle & Berg, LLP attached as Exhibit “B.”

(emphasis added). The trial court found that this language did not constitute an actual assignment of the escrow, but rather created a continued security interest based on the reference to the fee agreement and a UCC financing statement introduced into evidence. We disagree and find that the plain language of the assignment of property demonstrates that it was unambiguously intended to be an assignment of the escrow funds. The reference to the attachment did not create an ambiguity.

When interpreting the intent of the parties in contracting, courts are bound to the four corners of the document if the terms unambiguously express the parties’ intent. Detroit Diesel Corp. v. Atl. Mut. Ins. Co., 18 So.3d 618, 620 (Fla. 4th DCA 2009). A contract is ambiguous if its words are susceptible to more than one meaning. Id. Only then may a court explore parol evidence, indulge in construction, or engage in interpretation. Id.; see also U.S. on Behalf of Small Bus. Admin, v. S. Atl. Prod. Credit Ass’n, 606 So.2d 691, 695 (Fla. 1st DCA 1992) (citing Vienneau v. Metropolitan Life Ins. Co., 548 So.2d 856, 859 (Fla. 4th DCA 1989)).

Here, the plain language of the assignment of property is unambiguous on its face; it specifically explains that “the undersigned hereby assigns.” Mere reference to a separate document does not destroy the clarity of this statement, and the trial court erred in relying on parol evidence to contradict the document’s plain language. Because the terms of the assignment are not susceptible to more than one meaning, we reverse.

Reversed.

STEVENSON, GERBER and CONNER, JJ., concur.


text:
    Julie CHRISTENSEN f/k/a Julie A. Kniskern, Appellant, v. Thomas KNISKERN, Appellee.
    No. 4D11-3950.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carla Lowry and Brooke Elvington, Fort Lauderdale, for appellant.
    Holly Davidson Schuttler and Renée Sa-fier Harris of Schuttler & Greenberg, LLC, Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Walton v. Walton, 657 So.2d 1214 (Fla. 4th DCA 1995).

MAY, C.J., TAYLOR and GERBER, JJ., concur.


text:
    Ramon MARTINEZ-IZQUIERDO and Jeremy Marquise Carter, Appellants/Petitioners, v. Frank DOME, Sr., Frank Dome, Jr., Maria Dome, Brenda Dome, Elsy Zapata and Jacquelene “Jackie” Dome, Appellees/Respondents.
    Nos. 4D12-99, 4D12-152.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Ramon Martinez-Izquierdo, Coleman, and Jeremy Marquise Carter, Jesup, Georgia, pro se.
    Juan F. Alban and Maria L. Larrabure of Juan F. Alban, P.A., Miami, for appel-lees/respondents.
   PER CURIAM.

As to case number 12-99, we affirm. As to case number 12-152, we deny the petition for writ of prohibition.

TAYLOR, GERBER and LEVINE, JJ., concur.


author: HANZMAN, MICHAEL, Associate Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity, Appellant, v. RIVER MANOR CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D12-901.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Kara Berard Rockenbach and Kristi Bergemann Rothell of Methe & Rocken-bach, P.A., West Palm Beach, for appellant.
    Daniel S. Rosenbaum and Elizabeth L. Hertz of Rosenbaum Mollengarden PLLC, West Palm Beach, for appellee.
   HANZMAN, MICHAEL, Associate Judge.

Appellant, Citizens Property Insurance Corporation (“Citizens”), appeals the trial court’s final judgment confirming an appraisal award. Citizens claims that the final judgment improperly awarded the ap-pellee damages for: (a) property excluded under its policies, and (b) amounts that should have been deducted from the award by application of defenses the trial court refused to consider. We agree in part and reverse.

Facts and Procedural History

The material facts are not in dispute. Appellee, River Manor Condominium Association, Inc. (“River Manor”), operates a residential condominium complex consisting of three buildings — A, B and C — each of which were separately insured by Citizens at the time of Hurricane Wilma. When the parties were unable to agree on the extent of the damage caused by the storm, they participated in a mandatory appraisal process, resulting in an award which specified the total loss sustained by each building and the exterior common elements, as follows: Building A ($1,755,703.50); Building B ($1,839,556.45); Building C ($1,589,157.29); Exterior Common Elements ($1,253,278.84). The appraisers were not charged with the task of deciding — nor did they purport to decide— any coverage issues. Their sole responsibility was to ascertain the amount of damage caused by the insured peril. See Fla. Ins. Guar. Ass’n, Inc. v. Olympus Ass’n, Inc., 34 So.3d 791, 794 (Fla. 4th DCA 2010).

The policies issued by Citizens each exclude from coverage “other structures on the demised locations, set apart from the building by clear space,” including such things as carports, cabanas, swimming pools, Jacuzzis, piers, seawalls, bridges, ramps, walks, decks, patios and similar structures. Also excluded from coverage are trees, shrubs, plants and other landscaping. The parties do not dispute that the appraisal award in the amount of $1,253,278.84 for “exterior common elements” represents compensation for damage caused to such excluded items. If this case turned on a simple application of the controlling insurance contracts it would therefore end here. See, e.g., Graber v. Clarendon Nat’l Ins. Co., 819 So.2d 840, 842 (Fla. 4th DCA 2002) (“Interpretation of insurance policy language is a matter of law....”); Sherman v. Transamerica Life Ins. Co., 475 F.App’x 733, 736 (11th Cir.2012) (“ ‘Florida’s public policy is that contracts, including insurance contracts, must be enforced as written.’ ” (citation omitted)).

This case, however, is not so simple because (a) each policy contains a provision requiring that it be amended to “conform” to any conflicting statutes of. the State where the property is located; and (b) River Manor claims that Citizens’ exclusions “conflict” with section 718.111(11), Florida Statutes (2005), because that statute — and in particular subsection (ll)(b)— requires insurers that issue condominium policies to provide coverage for “[a]ll portions of the condominium property located outside the units,” and “[a]ll portions of the condominium property for which the declaration of condominium requires coverage by the association.” § 718.111(ll)(b), Fla. Stat. (2005). Based upon this supposed “conflict,” River Manor says the policies must be “amended” to delete the exclusions pursuant to the conformance clauses which provide that:

Any terms of this policy which are in conflict with the statutes of the State wherein the property is located are amended to conform to such statutes ....

There is no doubt that River Man- or’s properties are located in Florida, and the exclusions are “terms” that the conformance clauses would require be amended if in “conflict” with the statutes of this State. The only question is whether the exclusions in fact conflict with section 718.111(ll)(b). Finding that section 718.111(11)(b) in fact imposes a mandatory insurance obligation on carriers, and that a “conflict” therefore existed between Citizens’ policy “exclusions” and the statute, the trial court granted summary judgment — and thereafter entered final judgment — awarding the amounts the appraisal attributed to the otherwise excluded items. We review that decision de novo as it raises a matter of statutory interpretation. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

Citizens also claims that certain items contained in the appraisal awards should not have been included in the trial court’s judgment because: (a) River Manor agreed to remove them from the awards; (b) the items were duplicates of other amounts awarded; or (c) the items, such as interior doors, baseboards, light fixtures, and other property within the par-ametrical boundaries of the units, were the unit owners’ responsibility. The trial court refused to address these issues, accepting River Manor’s contention that doing so would require it to improperly consider extrinsic evidence and look beyond the face of the appraisal award. It therefore granted River Manor’s motion for summary judgment on these issues, and eventually entered a final judgment for the amounts assessed in the appraisal, less the amounts previously paid. Our review of an order granting summary judgment is also de novo. See DeLeon v. Dollar Tree Stores, Inc., 98 So.3d 96, 97 (Fla. 4th DCA 2012).

Citizens’ Policy Exclusions Do Not Conflict With Section 718.111(ll)(b), Florida Statutes (2005)

In matters of statutory construction it is fundamental that “legislative intent is the polestar by which the court must be guided-” State v. Webb, 398 So.2d 820, 824 (Fla.1981); see also Princeton Homes, Inc. v. Morgan, 38 So.3d 207, 210-11 (Fla. 4th DCA 2010). To ascertain that intent courts consider a variety of factors “including the language used, the subject matter, the purpose designed to be accomplished, and all other relevant and proper matters.” Badaraco v. Suncoast Towers v. Assocs., 676 So.2d 502, 503 (Fla. 3d DCA 1996) (citing Am. Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524, 532 (1938)); see also Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003) (“ ‘To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.’ ” (citation omitted)).

It is of course true that a “statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). If the “language of the statute is clear and unambiguous and conveys a clear and definite meaning,.there is no occasion for resorting to the rules of statutory interpretation and construction.... ” Id. (quoting A.R. Douglass, 137 So. at 159); see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 66 (Fla. 4th DCA 2011) (same). That does not, however, mean that parts — or in this case sub-parts — of a statute should be read in isolation. Rather, “[ejvery statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (quoting Fleischman v. Dep’t of Prof'l Regulation, 441 So.2d 1121, 1123 (Fla. 3d DCA 1983)). The principle that a statute must be read “in the context of its surrounding sections[,]” BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 290 (Fla.2003), applies with equal force in instances where a part of the statute standing alone may appear to be clear and unambiguous:

[I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.

Florida Dep’t of Envtl. Prot. v. Contract-Point Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008) (citing Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 575-76 (Fla.1958) (emphasis added)). In other words, it is our duty to examine a statute as a “cohesive whole,” Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000), so as “ ‘to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)).

Finally, “a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.” Holly, 450 So.2d at 219 (citing Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256 (Fla.1970)); see also Vrchota Corp. v. Kelly, 42 So.3d 319, 322 (Fla. 4th DCA 2010) (“The legislature is not presumed to enact statutes that provide for absurd results.”); Badaraco, 676 So.2d at 503 (“Where focusing on literal statutory language leads to absurd or unreasonable conclusions ... a court will look beyond the ordinary meaning of the statutory language.”) (citing Weber v. Dobbins, 616 So.2d 956 (Fla.1993)).

Mindful of these principles we now turn to an examination of section 718.111(ll)(b), Florida Statutes (2005), in order to ascertain whether, as River Manor contends, it creates mandatory insurance coverage which conflicts with Citizens’ exclusions. Before reviewing the precise language of the particular subsection at issue, we first observe that section 718.111 is contained within Chapter 718, aptly titled the “Condominium Act,” the purpose of which is to give statutory recognition to the condominium form of ownership of real property and establish procedures for the creation, sale and operation of condominiums. See § 718.102, Fla. Stat. (2005). As its title suggests, the “Condominium Act” regulates condominiums — not insurance companies.

Furthermore, section 718.111 is titled “The association,” and each of its subsections regulate the activities of thát “Corporate entity.” See § 718.111(1), Fla. Stat. (2005). The statute, for example, establishes how the association shall be constituted, see § 718.111(l)(a)-(c); the powers and duties of the association, see § 718.111(2)-(14), including the association’s rights to own and convey property, see § 718.111(7)(a); and the association’s right to purchase land, leases, and condominium units. See § 718.111(8)-(9). The subject matter of this statute is clearly the regulation of condominium associations, as its title suggests.

The fact that section 718.111 is contained within the “Condominium Act”— which regulates only condominiums — and that section 718.111 is aimed squarely at condominium “associations,” suggests that the objective of subsection 11 is not to further regulate the business of insur-anee — an industry extensively regulated elsewhere — but rather to impose certain insurance-related obligations on the association and its board. The statute, read as a “cohesive whole,” reflects a purpose of governing condominium associations, not insurers. See Harris, 772 So.2d at 1287.

This contextual interpretation is reinforced by a textual examination of the particular subsection at issue. Subsection (ll)(a) of section 718.111 requires that a unit-owner controlled association, such as River Manor, use its “best efforts to obtain and maintain adequate insurance to protect the association, the association property, the common elements, and the condominium •property required to be insured by the association pursuant to paragraph (b).” (emphasis supplied). Subsection (ll)(b) then describes the “property required to be insured by the association”:

Every hazard insurance policy issued or renewed on or after January 1, 2004, to protect the condominium shall provide primary coverage for:
1. All portions of the condominium property located outside the units;
2. The condominium property located inside the units as such property was initially installed, or replacements thereof of like kind and quality and in accordance with the original plans and specifications or, if the original plans and specifications are not available, as they existed at the time the unit was initially conveyed; and
3. All portions of the condominium property for which the declaration of condominium requires coverage by the association.

§ 718.111(ll)(b), Fla. Stat. (2005).

This delineation of required coverage is “intended to establish the property or casualty insuring responsibilities of the association and those of the individual unit owner_” § 718.111(ll)(b)3., Fla. Stat. (2005). A reading of subsections (ll)(a) and (ll)(b), in pari materia, therefore suggests that the purpose of subsection (ll)(b) is to identify what types of insurance the association (as opposed to the unit owners) is responsible for obtaining, with paragraph (a) defining what efforts (i.e., best efforts) the association must make to secure it. And if, as River Manor urges, subsection (ll)(b) imposed an absolute obligation on insurers to provide the coverage, subsection (ll)(a) would be meaningless, as the association would not have to use any effort — let alone its “best efforts” — to obtain it. The association, in violation of its statutory obligation, could in fact expend “no effort” and secure the coverage by legislative fiat any time an insurer elected to issue a policy.

A literal reading of subsection (ll)(b) in isolation also requires us to conclude that the legislature intended to force private parties — i.e., condominium associations and their insurers — to enter into a commercial transaction that one or both may not desire. If the carrier is unwilling to provide all the coverage specified under subsection (ll)(b), its only option would be not to issue any policy at all. The same result would occur even where the association sought to purchase the policy the insurer was willing to issue, that is, a policy that did not offer all the coverage required under subsection (ll)(b). And if a carrier is willing to provide all the specified coverage, the association has a concomitant obligation to pay for that policy even if it might be desirable and prudent to self-insure some of its property. Instead of using its business judgment to negotiate a contract that fits its needs, the association would be required to purchase insurance that could be prohibitively expensive, or swallowed by incredibly high deductibles.

Thus, two potential — and likely consequences — of a literal interpretation of subsection (ll)(b) will be that insurers will issue no policies at all, thereby denying condominium associations much needed coverage, or condominium associations will be forced to pay excessive rates for coverage they do not want or need. Such undesirable “[cjonsequences cannot alter statutes, but may help to fix their meaning.” In re Rouss, 221 N.Y. 81, 116 N.E. 782, 785 (1917) (Cardozo, J). And the consequence of the literal interpretation urged by River Manor is an unreasonable result.

Without wading into the academic question of when, and under what circumstances, the legislature may constitutionally use its police powers to require that private parties engage in a particular type of business, we also doubt it would exercise such weighty authority as cavalierly as suggested here, via: (a) a statute which does not regulate the business being mandated; and (b) the use of a single sub-paragraph which imposes no parameters or guidance on the terms of the compelled transaction. We suspect that in exercising its police powers to dictate state-imposed commerce, the legislature would carefully craft a set of laws to be applied in carrying out its mandate, as it has in other insurance contexts. See, e.g., § 627.736, Fla. Stat. (2005) et. seq. It would not simply command the issuance of a policy with specific coverage requirements, and leave it to the parties to work out the material terms.

The total absence of any related provisions addressing the parameters of the transaction supposedly being compelled strongly suggests that the statute was not intended to hoist contractual terms on unwilling participants or eliminate the power of condominium associations to negotiate their own insurance contracts, a power all other property owners possess. In our view the statute was intended to impose upon condominium associations an obligation to use their “best efforts” to secure the designated coverage, implicitly recognizing that market forces may in some instances prevent this objective from being achieved. See, e.g., Roberts v. Nine Island Ave. Condo. Ass’n, Inc., 126 So.3d 286, No. 3D09-371, 2011 WL 4374452, at *3 (Fla. 3d DCA Sept. 21, 2011) (rejecting a claim that condominium association’s board breached its fiduciary duty by failing to use its “best efforts” to obtain insurance for marina and boat slips, as no evidence suggested that such coverage “was available for purchase in the marketplace” at the relevant time).

We appreciate that section 718.111(ll)(b) does say that “every hazard insurance policy issued or renewed on or after January 1, 2004 ... shall provide coverage” for the specified items, and that insurers — not condominium associations— issue or renew insurance policies. We also are cognizant of the fact that the legislature can — and does — regulate the business of insurance, and that unambiguous statutes enacted as part of its regulatory authority are “not subject to judicial construction, however wise it may seem to alter the plain language.” State v. Jett, 626 So.2d 691, 693 (Fla.1993). The path of least resistance would be to simply hold that the statute means what it says, and says what it means. If an insurance carrier wants to issue a condominium policy in this State, it must provide all the specified coverage, end of story. We are convinced, however, that such a literal reading of one isolated sentence in section 718.111(ll)(b) does not reflect the intent of the statute when consideration is given to “the language used, the subject matter, the purpose designed to be accomplished, and all other relevant and proper matters.” Badaraco, 676 So.2d at 503.

We therefore hold that when considered as a cohesive whole, section 718.111(11), Florida Statutes (2005), is intended to regulate the insurance obligation of condominium associations by: (a) specifying the items that the association is responsible for covering versus the items that the unit owners are responsible for covering; and (b) requiring associations to use their “best efforts” to obtain the coverage it is responsible for securing. The statute was not intended to impose a mandatory insurance obligation upon carriers. We therefore reverse the judgment below to the extent it awards damages for items excluded under Citizens’ policies.

Summary Judgment Was Improper Where the Trial Court Failed to Consider One of Citizens’ Objections to Specified Line Item Awards

We next turn to the question of whether the trial court prematurely entered summary judgment without considering Citizens’ objections to certain line item awards. As indicated previously, Citizens refused to pay certain items from the appraisal award, claiming that they were: (a) indisputably not owed pursuant to an agreement of the parties; (b) duplicative of amounts included in other parts of the award; or (c) items that were the responsibility of the unit owners to insure.

As to the first category of the disputed claims, Citizens maintains that prior to the appraisal the parties agreed on the amount owed for roof damage and water extraction loss -to Buildings A and C. As for duplication claims, Citizens asserts that certain losses were awarded twice — an example being an amount for replacing the duct-work in an entire building, and another line item amount for replacing the same ductwork in units within the building. Finally, Citizens claims that it properly removed from the award items that the unit owners were responsible for insuring, examples being amounts allocated to interior improvements such as baseboards, marble sills, and light fixtures.

Because appraisal clauses, such as the one agreed upon here, provide a mechanism for the “prompt resolution of claims and discourage the filing of needless lawsuits,” Fla. Ins. Guar. Ass’n, Inc., 34 So.3d at 794, they are now commonplace in casualty insurance policies, and favored by courts. Appraisers, however, are charged with the limited task of ascertaining. the amount (i.e., dollar value) of loss to the insured’s property. See State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1288 (Fla.1996) (“We interpret the appraisal clause to require an assessment of the amount of a loss.”). Then, “ ‘[i]f after such ascertainment of the amount of the loss, it should be found that the insurers were legally liable for such loss, they at once [become] bound for the “amount” ascertained by such arbitrators.’ ” Id. at 1287 (citing Am. Reliance Ins. Co. v. Vill. Homes at Country Walk, 632 So.2d 106, 109 (Fla. 3d DCA 1994) (Cope, J. dissenting)).

The division of responsibility between the appraisers and court is therefore clear. The appraisers determine the amount of the loss, which includes calculating the cost of repair or replacement of property damaged, and ascertaining how much of the damage was caused by a covered peril as opposed to things such as “ ‘normal wear and tear, dry rot, or various other designated, excluded causes.’” Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1025 (Fla.2002) (quoting Licea, 685 So.2d at 1288). The court decides whether the policy provides coverage for the peril which inflicted the damage, and for the particular property at issue; in other words, all coverage matters. See Florida Ins. Guar. Ass’n, Inc., 34 So.3d at 794 (“Issues relating to coverage challenges are questions exclusively for the judiciary.”). See also Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12 Inc., 54 So.3d 578, 580 (Fla. 3d DCA 2011) (“A challenge to coverage is, as the Florida Supreme Court has confirmed, a matter for determination by a court; whereas, a challenge to the amount of a covered loss is for determination by an appraisal panel.”).

Applying this precedent to the particular defenses asserted by Citizens, we first address the contention that the parties reached a pre-appraisal agreement that settled the amount due for roof repairs and extraction for Buildings A and C, an amount Citizens allegedly paid based on this agreement. This defense does not raise a coverage issue, nor does it challenge the “amount of the loss” determined by the appraisers. It therefore does not clearly fall on either side of the jurisdictional dividing line. We hold that such a defense, in the nature of an accord and satisfaction, is one that should have been entertained by the court, as it raises a claim not encompassed by the appraisal clauses in the policies, as well as one that appraisers are ill equipped to decide. Although this claim is not in the nature of a “coverage” issue, it is a legal defense not directed at the amount of the loss. The trial court was therefore obligated to adjudicate it.

As for Citizens’ second defense— claiming that certain items awarded are duplicative—we hold that the trial court properly declined to address the matter. If the appraisers improperly duplicated itemized losses, it was incumbent upon Citizens to seek clarification and/or modification of the award. It was not the trial court’s duty to ascertain whether the amounts awarded were in fact duplica-tive—a task which could require the Court to engage in a factual inquiry in order to determine whether the assessed amounts in fact represent cost estimates to perform the “same” work. An alleged mistake of that nature raises an issue directly related to the “amount of loss” sustained to the particular property—an issue solely within the province of the appraisers.

Finally, we reject Citizens’ claim that it properly removed amounts from the appraisal award that represent loss to property the unit owners — as opposed to the River Manor — were responsible for insuring pursuant to section 718.111(11), Florida Statutes. We do so because there is much to glean from what Citizens does not argue — namely, that its policies do not provide coverage for these items. Rather, Citizens posits an irrelevant point as it does not matter whether River Manor was statutorily “obligated” to secure coverage for these items. The dispositive issue is whether the policies issued by Citizens actually cover them. Because Citizens does not contend that coverage is lacking the trial court did not err in refusing to entertain this argument, as the statutory division of responsibility urged by Citizens, even if correct, would provide no legal basis for reducing the award.

Conclusion

For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less:

(i) amounts previously paid;
(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and
(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes — after an evidentia-ry hearing — that the parties reached a binding pre-appraisal agreement stipulating to the amount owed.

To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners — as opposed to River Manor — were obligated to insure, the judgment is affirmed.

Affirmed in part, reversed in part and remanded with instructions.

GROSS and DAMOORGIAN, JJ„ concur.

      . We note that section 627.418(1), Florida Statutes (2005), codifies the principle that insurance policies that are inconsistent with any statute within the Insurance Code must "be construed and applied in accordance with such conditions and provisions as would have applied had such policy ... been in full compliance with the code.” See also Auto-Owners Ins. Co. v. DeJohn, 640 So.2d 158, 161 (Fla. 5th DCA 1994) ("When an insurance policy does not conform to the requirements of statutory law, a court must write a provision into the policy to comply with the law, or construe the policy as providing the coverage required by law.”). In Sawyer v. Transamerica Life Ins. Co., 09-cv-61288, 2010 WL 1372447 (S.D.Fla. March 31, 2010), the court found that section 627.418 did not require that insurance policies conform to statutes "outside of the Insurance Code.” Id. at *6-7. Citizens’ policies, however, also require conformance with the "statutes of the State” where the property is located. As Citizens does not assert that the conformance clauses in its policies should be interpreted as requiring amendments only when the policy "con-diets” with statutes within the Insurance Code, we proceed on the assumption that the policies must be amended to conform with any conflicting statute, regardless of its locale.

      . Section 627.4135, Florida Statutes (2005), requires that all contents of casualty insurance covering property in this State "shall be subject to the applicable provisions of this part [i.e., Chapter 627] and to the other applicable provisions of this code.” The "Code” refers to the Florida Insurance Code. The 2005 version comprised Chapters 624-632, 634-636, 641-642, 648, 650, and 651 of the Florida Statutes.

      . Of course in many cases these private parties will negotiate a mutually acceptable contract that includes all the coverage required by the statute. But they do not need legislative assistance to accomplish a transaction each believes to be in their best interest. The market itself will dictate that outcome. The only thing a literal interpretation of the statute does then is either prevent a carrier from issuing a policy altogether, or mandate a policy one or both of the parties may not want.

      . We also have held that an insurer is entitled to raise coverage issues as to the elements of the claim even if it does not challenge coverage for all losses. Florida Ins. Guar. Ass’n, Inc. v. Olympus Ass’n, Inc., 34 So.3d 791 (Fla. 4th DCA 2010). See also Liberty Am. Ins. Co. v. Kennedy, 890 So.2d 539, 541 (Fla. 2d DCA 2005) ("A coverage issue may exist, of course, even where the insurer has not denied the claim as a whole. The issue of coverage is not necessarily a matter of all or nothing.").

      . For example, Citizens claims that the appraisers awarded an amount to replace the ductwork in Building A—($26,124.00)—and then awarded amounts for replacing the same ductwork in the units within the building. Unless the award, on its face, acknowledged this duplication, the trial court would have to take testimony to establish that: (a) the amounts allocated were in fact for the same ductwork; and (b) they are in fact duplicative, as opposed to the appraisers simply allocating the total cost between the building and interi- or units. These are issues that clearly could have — and should have — -been presented to the appraisers via a motion to clarify and/or amend the award.

      . We assume Citizens advanced this particular argument in the alternative to its claim that its policies — and not § 718.111(11)- — dictate the terms of coverage, and that it was not attempting to have it both ways.