author: SCALES, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Edelmida and Paulino RODRIGUEZ, et al., Appellees.
    Nos. 3D11-2905, 3D12-506.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 31, 2014.

      Shutts & Bowen, LLP, and Frank A. Zacherl and Stephen T. Maher, Miami, for appellant.
    Deutsch & Blumberg, P.A., and James C. Blecke, Coral Gables, for appellees Edelmida and Paulino Rodriguez; Kuvin & Stettin, LLC, and Eric Stettin, Weston; Joel S. Perwin, P.A., and Joel S. Perwin, Miami, for appellee William Pruitt.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   SCALES, J.

Geico General Insurance Company (Gei-co) appeals a Final Summary Judgment holding Geico responsible for a sanctions judgment rendered against Geico’s insured during the course of a personal injury lawsuit in which 'Geico’s insured was the defendant. Because we conclude the sanctions judgment constituted a cost charged to Geico’s insured in a covered lawsuit as contemplated in Geico’s vehicle liability policy, we affirm.

I. Relevant Factual and Procedural. Background
A. The Insurance Policy and the Accident

On November 2, 2005, Geico issued a renewal automobile liability policy for its insured, Oswaldo St. Blanchard (Blanchard). The Geico policy provided liability limits to Blanchard in the amounts of $10,000 for each claimant, with a limit of $20,000 per occurrence. Additionally, the policy covered all court costs charged to an insured in a covered lawsuit.

On December 22, 2005, Blanchard, while operating a motor vehicle covered under the Geico policy, struck pedestrians, Edel-mida and Paulino Rodriguez — Appellees here and the plaintiffs below — near the intersection of SW 72nd Street and SW 97th Avenue in Miami. At the time of the accident, Blanchard was eighty-three years old.

B. Geico’s Tender of Policy Limits and Subsequent Dispute

While Geico immediately tendered its $20,000 policy limits, a dispute arose between Geico and the Rodriguezes’ counsel .regarding indemnification of Geico for medical liens resulting from the Rodri-guezes’ medical treatment.

Unable to resolve this dispute, the Rod-riguezes filed a negligence action against Blanchard in March 2006. Pursuant to the policy, Geico provided defense counsel for Blanchard.

C. Blanchard Deposition and Subsequent Discovery

On March 7, 2007, approximately one year after the lawsuit was filed, the Rodri-guezes deposed Blanchard. At his deposition, Blanchard testified that, at the time of the accident, Blanchard had no physical impairments that would prevent him from being a safe driver. Blanchard also testified he had no impairments that would have affected his vision at the time of the accident.

Shortly after the March 7 deposition, medical records produced in the case indicated that, contrary to Blanchard’s deposition testimony, Blanchard was, at all times material, legally blind, had experienced significant vision problems, and had been advised by his treating physicians that he should not be driving.

D. Sanctions Motion

In April 2007, the Rodriguezes filed a motion for sanctions against Blanchard, asserting that Blanchard’s misrepresentations in his deposition constituted a fraud on the court. The Rodriguezes sought an order striking Blanchard’s pleadings. The Rodriguezes also sought, as additional sanctions, the costs and attorney fees incurred by the Rodriguezes as a result of Blanchard’s misrepresentations.

In August 2007, the trial court held a hearing on the Rodriguezes’ motion for sanctions, and in November 2007 entered an order detailing the significant discrepancies between Blanchard’s deposition testimony, and the contrary facts established through the Rodriguezes’ discovery. In its order, the court struck Blanchard’s pleadings and granted the Rodriguezes leave to file an amended complaint to assert a claim for punitive damages. The trial court scheduled a hearing for April 21, 2008 to determine whether the Rodri-guezes would be entitled to monetary sanctions.

E. Geico’s Purported Reservation of Rights

In December 2007, Blanchard died, and in February 2008, William Pruitt (Pruitt) was substituted into the lawsuit for Blanchard as the personal representative of Blanchard’s estate.

On April 17, 2008, just four days before the scheduled hearing on the Rodriguezes’ request for monetary sanctions, Geico sent Pruitt a reservation of rights letter (ROR). In its April 2008 ROR, Geico stated:

As a result of the conduct of Mr. Blanchard in this claim and/or during the acei-dent lawsuit, there may be no coverage under GEICO’s policy for this claim, for damages claimed in the accident lawsuit, for sanctions, and/or for fees or costs awarded in connection with sanctions.

Geico cited to the “Fraud and Misrepresentation” provision'of the “General Conditions” of the Geico policy as the basis for its purported reservation of rights.

F. Monetary Sanctions Imposed

Shortly after Geico issued its April 2008 ROR, on April 21, 2008, the trial court conducted the hearing on the Rodriguezes’ motion to recover the costs and attorney fees incurred by the Rodriguezes as a result of Blanchard’s misrepresentations. On May 13, 2008, the trial court entered an order granting the Rodriguezes’ motion and ordering Pruitt, as the personal representative of Blanchard’s estate, to pay the Rodriguezes sanctions in the amount of $22,050 for attorney fees and an additional $5,293.45 in costs.

On May 29, 2008, the trial court reduced its order into a judgment against Geico’s insured (sanctions judgment).

Shortly thereafter, on June 6, 2008, Gei-co filed a lawsuit against the estate in federal court seeking a declaration that there is no insurance coverage available to the estate because of Blanchard’s misrepresentations.

G. Estate Hires New Counsel

Pruitt (the personal representative for Blanchard’s estate) initially filed an appeal with this court of the sanctions judgment. However, after a dispute arose between Pruitt and defense counsel which Geico had provided to Pruitt, Pruitt retained new counsel and dismissed the estate’s appeal of the sanctions judgment.

Geico offered Pruitt several choices to replace defense counsel, but Pruitt insisted that Geico retract its April 2008 ROR as a condition to Pruitt allowing Geico to control the estate’s defense and agreeing to new counsel’s representation of the estate. Geico would not agree to withdraw its April 2008 ROR, and, therefore, the estate proceeded with legal counsel selected solely by Pruitt.

After the entry of the sanctions judgment, the Rodriguezes filed an amended complaint against the estate and added Geico as a party defendant. In their amended complaint, the Rodriguezes sought an order requiring Geico to pay the sanctions judgment.

Pruitt, now represented by new counsel (and obviously not counsel retained by Geico), filed a cross-claim against Geico, seeking a declaration requiring Geico to provide indemnity to the estate for the sanctions judgment.

II. Geico’s Second ROR and the Stipulated Consent Judgments

On September 5, 2008, Geico issued to Pruitt a second ROR. The second ROR alleged that Pruitt’s failure to agree to Geico’s suggested replacement counsel constituted a breach of the estate’s contractual duty to cooperate with Geico in the handling and defense of the Rodri-guezes’ liability claim against the estate.

Shortly thereafter, on October 1, 2008, at a calendar call on the underlying negligence action (i.e., the Rodriguezes’ negligence claim against the estate), Pruitt’s independent counsel and the Rodriguezes’ counsel presented the trial court with a stipulation for the entry of two final judgments against the estate (consent judgments). The consent judgments totaled $750,000 ($500,000 consent judgment for Paulino Rodriguez and $250,000 consent judgment for Edelmida Rodriguez).

Subsequently, on October 31, 2008, Gei-co sent a letter to the estate refusing to defend the estate under the policy.

I. Summary Judgment Motion and Resulting Final Summary Judgment

In August 2011, the Rodriguezes filed a motion for final summary judgment directed against Geico, alleging that Geico, pursuant to its policy, was responsible to pay the sanctions judgment. The trial court heard argument in September 2011 and entered a Final Summary Judgment in favor of the Rodriguezes on October 19, 2011.

The trial court found that, pursuant to its policy of insurance issued to Blanchard, Geico was required to pay the sanctions judgment. The trial court reasoned that Geico’s purported April 2008 ROR constituted a violation of Florida’s Claims Administrations Statute — section 627.426, Florida Statutes (2011) (the CAS). The trial court determined that Geico violated section 627.426(2)(a), which requires an insurer to assert a coverage defense within thirty days of the insurer becoming aware of the coverage defense, since Geico was aware of Blanchard’s deposition misrepresentations in April 2007, yet Geico waited until April 2008 to issue its ROR.

The trial court further found that, because of Geico’s violation of the CAS, the estate owed no duty of cooperation to Gei-co. Moreover, the trial court found that the sanctions judgment was a court cost charged to an insured in a covered lawsuit as contemplated by the Geico liability policy.

Geico timely appeals the Final Summary Judgment entered on behalf of the Rodri-guezes with regard to these issues.

II. Analysis

The issue in this case is whether the trial court erred by granting the Rod-riguezes’ motion for final summary judgment which determined that Geico was responsible for the sanctions judgment entered against Geico’s insured. We review the trial court’s summary judgment de novo. See Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

Geico argues there is no insurance coverage available to the estate under its liability policy. Specifically, Geico asserts that the “Fraud and Misrepresentation” provision in its policy was implicated by Blanchard’s deposition testimony so as to give Geico the right to void insurance coverage under the liability policy.

Geico essentially argues that the “Fraud and Misrepresentation” provision of its policy provides Geico with a “defense of no coverage” which, unlike a “coverage defense,” does not require compliance with the CAS.

Because we hold that Blanchard’s misrepresentations in his deposition testimony did not implicate the “Fraud and Misrepresentation” provision of the Geico policy, we need not decide the issue of whether that provision — if implicated — would provide Geico with a coverage defense (requiring compliance with the CAS) or constitute a “defense of no coverage” which would authorize Geico to void the policy outright.

However, to better understand Geico’s argument, and to provide guidance to insurers and claimants, we first provide the following brief analysis of the distinction between an insurer’s “defense of no coverage” and an insurer’s “coverage defense.”

A. Coverage Defense vs. Defense of No Coverage

Under different facts than those in the instant case, whether the “Fraud and Misrepresentation” provision of Geico’s policy results in a “coverage defense” — as opposed to a “defense of no coverage” — is potentially significant.

If Blanchard’s misrepresentations in deposition had implicated the provision, and the provision provided Geico with a “coverage defense,” then Geico would have. been obliged to comply with the provisions of the CAS. On the other hand, if Blanchard’s deposition misrepresentations implicated the provision, and the provision provided Geico a “defense of no coverage,” then Geico could void the policy outright and the CAS would not be applicable. AIU Ins. Co. v. Block Marina Inn, Inc., 544 So.2d 998, 1000 (Fla.1989).

Again, though, since we hold that Blanchard’s misrepresentation did not implicate the provision, this analysis is academic.

B. “Fraud and Misrepresentation Provision” of the Geico Policg

Geico’s “Fraud and Misrepresentation” provision reads, in its entirety, as follows:

FRAUD AND MISREPRESENTATION
Coverage is not provided to any person who knowingly conceals or misrepresents any material fact or circumstance relating to this insurance:
1. at the time application is made; or
2. at any time during the policy period; or
3. in connection with the presentation or settlement of a claim.

(emphasis added).

Geico argues that Blanchard’s misrepresentations in his deposition constituted a misrepresentation of material fact in connection with the presentation or settlement of a claim as contemplated by the provision.

Geico further argues .that, based on the first four words of the provision (“coverage is not provided”), Blanchard’s misrepresentations allowed Geico to void the policy ab initio, and therefore provided Geico a “defense of no coverage” not requiring compliance with the CAS.

While Geico might be correct that the provision, if implicated, may allow Geico to void coverage, Geico cites to no authority which would give an insurer the ability to void an otherwise valid insurance policy due to an insured’s deposition testimony elicited during the course of litigation of a covered claim.

Geico suggests that the court should treat Blanchard’s misrepresentation in the deposition similar to a misrepresentation on an application for insurance upon which the insurer detrimentally relies in issuing a policy. We decline Geieo’s invitation to read its “Fraud and Misrepresentation” provision so broadly.

At the outset, we are guided by the general rule that where language in an insurance policy is subject to differing interpretations, the court must construe the policy liberally in favor of the insured and strictly against the insurer. Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002). Hence, we are bound to interpret the provision in favor of the insured, i.e., the estate.

Geico argues that Blanchard’s misrepresentations in deposition were made “in connection with the presentation or settlement of a claim,” therefore implicating the provision. However, pursuant to the plain language of the provision, for any misrepresentations to implicate the provision, the misrepresentations must relate to the insurance provided under the policy. Nothing in the record indicates that Blanchard’s deposition testimony was, in any way, related to the insurance Geico was providing Blanchard. While, in the deposition testimony elicited by the plaintiffs, Blanchard misrepresented his vision capabilities, the record is devoid of any misrepresentation by Blanchard, upon which Geico, in any way, detrimentally relied.

While the trial court specifically determined that Blanchard’s misrepresentations went to the heart of Blanchard’s liability for the accident, it cannot be seriously argued that Blanchard’s misrepresentations in deposition in any way related to the insurance coverage provided by Geico. Indeed, there has been no factual finding that Blanchard’s misrepresentations “related to” the insurance policy — an express condition precedent to implicate the subject provision.

We hold that Blanchard’s misrepresentations during his deposition — even though they were characterized by the trial court as a “fraud on the court” — are not the type of misrepresentations contemplated by the “Fraud and Misrepresentation” provision in the Geico policy which would authorize Geico to void coverage under the policy ab initio. That provision plainly contemplates the ability of Geico to void coverage in the event an insured makes a material misrepresentation to Geico in order to obtain coverage that would otherwise not be available.

For example, if Blanchard had misrepresented the date of the accident in order to obtain coverage for a claim which occurred outside of the policy period, such a misrepresentation would have been “in connection with the presentment or settlement of a claim” and “related to this insurance” so as to trigger the provision.

Similarly, if Blanchard, in his application for insurance, had misrepresented to Geico his vision capabilities, and, as a result of the misrepresentation, Geico issued the policy which it otherwise would not have issued, that misrepresentation would also have been considered within the scope of the provision.

However, for Geico to argue the provision allows Geico to void an insurance policy based on an insured’s misrepresentation in a deposition regarding a claim that is otherwise covered by the policy, would expand the provision far beyond its intended scope and 'could, conceivably, produce absurd results.

For example, if during the course of litigation, an insured insists that a stoplight was green, while a fmder-of-fact ultimately determines the light was red, allowing an insurer to void the policy by suggesting the insured misrepresented a material fact certainly would undermine liability insurance coverage as we have come to know it.

Hence, since we have determined that Blanchard’s misrepresentations, albeit material, did not “relate to” the liability insurance so as to implicate the provision, we need not reach the issue of whether Blanchard’s misrepresentations in deposition triggered a “coverage defense” — requiring compliance with the CAS — or a “defense of no coverage” allowing Geico to void the policy. In sum, we hold that the policy provision relied upon by Geico to void coverage was not implicated by Blanchard’s conduct; ■ therefore, Geico’s April 2008 ROR was ineffectual. We, therefore, do not reach the issue of whether Geico complied with the CAS.

C. Geico’s Second ROR

Geico also argues that Pruitt’s lack of cooperation with Geico constituted a breach of the duty-to-cooperate provision of the insurance policy, authorizing Geico’s denial of coverage for the sanctions judgment. Specifically, Geico asserts that Gei-co was within its rights to issue the second ROR in September 2008 — and to ultimately deny coverage on October 31, 2008— when Pruitt conditioned acceptance of replacement defense counsel on Geico’s withdrawal of its April 2008 ROR.

After the withdrawal of initial defense counsel, Geico proffered several qualified attorneys to defend the estate in the litigation. On September 4, 2008, the estate’s independent attorney notified Geico that the estate would accept one of the proffered defense attorneys, and turn over control of the estate’s defense to Geico, on the condition that Geico “admits to insurance coverage, indemnifies [the estate for] the fee judgment pursuant to the insurance contract, [and] dismisses the coverage lawsuit .... ”

Geico responded to this September 4 letter not by withdrawing the previously issued ROR, but by issuing a second ROR asserting an additional coverage defense. In its second ROR, Geico alleged that the estate’s actions — i.e. conditioning acceptance of replacement counsel on Geico’s withdrawal of its April 2008 ROR — constituted a breach of the insured’s duty of cooperation owed to the insurer.

Appellees argue that, once Geico issued the April 2008 ROR — whether improvidently or not — the insured no longer owed any duty to cooperate with Geico. Appel-lees suggest that, once the insurer asserts a reservation of rights, even, as here, when the insurer continues to defend the insured under the reservation of rights, the insured has the right to “buy its own peace,” control its own defense, and settle with the plaintiffs.

D. Insured’s Duty to Cooperate

Against this factual backdrop, we agree with Appellees that, once Geico issued its April 2008 ROR, Geico’s insured no longer owed Geico a duty of cooperation. Taylor v. Safeco Ins. Co., 361 So.2d 743, 745 (Fla. 1st DCA 1978) (“[T]he insured is not required to abandon control of his own defense as the price of preserving his claim, disputed by the insurer, that the insurer pay any judgment.”); Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1003 (Fla. 4th DCA 2002) (“[A] carrier’s unilateral defense under a reservation of rights is similar to a refusal to provide any defense at all in its effect on the insured. In either case, the carrier has violated its duties under the policy unconditionally to defend and indemnify its insured within specified limits.”).

In sum, under the facts of this case, the estate’s conditioning its acceptance of replacement legal counsel upon Geico’s withdrawal of Geico’s April 2008 ROR did not constitute a violation of the estate’s contractual duty to cooperate. This is true especially in light of the fact that, as we have held, Geico’s April 2008 ROR was based on an inapplicable policy provision, and the fact that Geico had filed a federal lawsuit against its insured seeking a declaration that there was no coverage for the estate under the Geico policy.

E. The Estate’s Dismissal of the Sanctions Judgment Appeal

As referenced earlier, the estate initially appealed the sanctions judgment. Geico argues that the estate’s insistence that Geico withdraw its April 2008 ROR, and the estate’s refusal to consent to replacement counsel, ultimately resulting in the dismissal of the appeal of the sanctions judgment, constituted a lack of cooperation severely prejudicing Geico.

Put another way, Geico argues it would be inequitable to hold Geico responsible for the sanctions judgment when Geico was effectively precluded from prosecuting the appeal of same. However, under Taylor and Beville, the estate had the right to control the defense of the case given (i) Geico’s improvidently issued April 2008 ROR and Geico’s steadfast refusal to withdraw same and (ii) Geico’s initiation of litigation against its insured.

Hence, any prejudice suffered by Geico as a result of the coverage dispute between Geico and the estate was invited by Geico’s insistence on conditioning any defense of the estate on maintaining its reservation of rights to deny coverage to its insured.

F. Coverage for the Sanctions Judgment Under the Geico Policy

Having held that the trial court correctly determined that Geico’s April 2008 ROR was ineffectual and improvidently issued, resulting in the ability of the estate to exercise control of the defense of this case, we now turn to the ultimate issue of whether the Geico policy covered the sanctions judgment.

The relevant portion of the Geico policy reads as follows:

ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES
2. All court costs charged to an insured in a covered law suit.

(first emphasis added).

Hence, pursuant to the unambiguous language of the policy, Geico agrees to pay all court costs charged to an insured in a lawsuit which is covered under Geico’s policy.

Since we have determined that the underlying negligence action was a “covered lawsuit,” we turn to the issue of whether the sanctions judgment constituted a “court cost” as contemplated in the policy.

Given this court’s precedent that (i) costs may be chargeable to a liability insurance carrier and (ii) insurance policies are to be liberally interpreted in favor of coverage, coupled with the fact that the instant policy does not define court costs, we cannot find error in the trial court’s holding that the Geico policy provides coverage for sanctions entered against the insured as an additional cost of the litigation.

G. Geico’s Equitable/Public Policy Argument

Finally, we are not unsympathetic towards Geico’s argument that, as a matter of public policy, a liability insurer should not be responsible for monetary sanctions imposed when an insured makes misrepresentations during discovery. However, during the year that elapsed between Blanchard’s deposition and Geico’s issuance of its April 2008 ROR, Geico controlled Blanchard’s defense, and, therefore, was in a better position than Blanchard (or the Rodriguezes) to mitigate any effects of its insured’s misrepresentations. Also, since the Rodriguezes’ claim was covered under the Geico policy, Geico stood to potentially benefit from Blanchard’s misrepresentations as Blanchard’s testimony plainly addressed Blanchard’s liability for the accident, rather than any issue regarding insurance. Finally, we are aware of no impediment which would have prohibited Geico from clarifying in its liability policy that monetary sanctions resulting from an insured’s intentional misrepresentations during discovery made without the knowledge or consent of Geico are not considered a “court cost” under the “additional payments” provision of the Geico policy.

III. Conclusion

The insurance policy issued by Geico to Blanchard covered the automobile accident. While Blanchard’s misrepresentations in his deposition constituted sanction-able conduct, they are not the type of material misrepresentations “relating to insurance” that would implicate the “Fraud and Misrepresentation” provision of the Geico policy. Hence, Geico’s attempt to void the policy based on those misrepresentations was ineffectual. Gei-co’s April 2008 ROR issued to Blanchard’s estate, purporting to disclaim coverage to the estate based on Blanchard^ misrepresentations, was ineffectual and allowed Blanchard’s estate to take control over the litigation, despite Geico’s willingness to continue to provide a defense, albeit subject to their reservation of rights.

Since the sanctions judgment was a court cost charged to Blanchard as part of a lawsuit covered by Geico’s policy, the Geico policy provided coverage to Blanchard’s estate for the sanctions judgment. We therefore affirm the trial court’s summary judgment determining that Geico is responsible for payment of the sanctions judgment. We reiterate, however, that we do not reach the issue of whether Geico is exposed to liability for the consent judgments in excess of its policy limits.

Affirmed.

      . While not relevant to this appeal, the Rodri-guezes assert that the dispute centered around Geico’s insistence that the Rodri-guezes’ attorney personally execute a hold harmless/indemnity agreement as part of the settlement documents.

      . The Rodriguezes claimed that Blanchard committed a fraud on the court by falsely testifying that his vision was fine despite evidence establishing that Blanchard was legally blind. The Rodriguezes deposed approximately ten witnesses, to prove the falsity of Blanchard’s deposition testimony.

      . The Rodriguezes and Pruitt filed separate lawsuits against Geico alleging that Geico is also responsible for payment of the consent judgments. While those actions were consolidated with this action by the trial court, the trial court abated those proceedings during the pendency of this appeal. Nothing herein should be construed to, in any way, prejudge these claims, or prevent or foreclose Geico from presenting any applicable factual or legal defenses in those proceedings.

      . We affirm the trial court’s summary judgment requiring Geico to pay the sanctions judgment for somewhat different reasons than those articulated by the trial court. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999) (explaining "tipsy coachman” rule; if a trial court reaches the right result but for the wrong reason, an appellate court may uphold the result if there is any basis to support the judgment in the record).

      . As articulated in AIU, the rationale for the distinction rests upon the Florida Supreme Court’s determination that the CAS was "not intended to create coverage where a claim is made outside the effective date of the policy or where a particular loss is expressly excluded from coverage.” Id. at 999-1000 (citations omitted). Put another way, a violation of the CAS cannot create insurance coverage for a claim that otherwise is not a covered claim. ' One purpose of the CAS is to provide a mechanism for an insurer to notify an insured of an insurer's particular coverage defense of an otherwise covered claim. As the court expressed in AIU:

      [W]e hold that the term "coverage defense,” as used in section 627.426(2), means a defense to coverage that otherwise exists. We do not construe the term to include a disclaimer of liability based on a complete lack of coverage for the loss sustained. Under this construction, for example, if the insurer fails to comply with the requirements of the statute, it may not declare a forfeiture of coverage which otherwise exists based on a breach of a condition of the policy. ' However, [the insurer’s] failure to comply with the requirements of the statute will not bar an insurer from disclaiming liability where a policy or endorsement has expired or where the coverage sought is expressly excluded or otherwise unavailable under the policy or under existing law.

        Id. at 1000.

      . We note the term "court costs” is not defined in the policy.

      . See Tri-State Ins, Co. of Minn. v. Fitzgerald, 593 So.2d 1118 (Fla. 3d DCA 1992); Pac. Employers Ins. Co. v. Hofrichter, 670 So.2d 1023 (Fla. 3d DCA 1996).

      . See Bethel v. Sec. Nat’l Ins. Co., 949 So.2d 219, 223 (Fla. 3d DCA 2006) (stating insurance policies are to be constructed in favor of the insured and insurance coverage); Rabatie v. U.S. Sec. Ins. Co., 581 So.2d 1327, 1329 (Fla. 3d DCA 1989); Shelby Mut. Ins. Co. of Shelby, Ohio v. Manchester, 376 So.2d 266, 268 (Fla. 3d DCA 1979) ("[WJhen the terms of an insurance policy are capable of two or more constructions, the construction permitting recovery is to be given effect.”).


source: Caselaw Access Project

author: WOLF, J. MAKAR, J.,

license: Public Domain

text:
    Charles J. DAVIS, Appellant, v. BAY COUNTY JAIL, Sheriff, Frank McKeithen, et al., Appellees.
    No. 1D13-2119.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.

      Charles Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Barbara C. Fromm of Jolly & Peterson, P.A., Tallahassee, for Appellees Rick Anglin and Ronald Lippmann.
   WOLF, J.

In this prisoner civil litigation case, with one exception, we find no error in the dismissal with prejudice' of appellant’s four-time amended complaint. Upon close consideration of the amended complaint, we find that appellant has sufficiently alleged facts in support of a 42 U.S.C. § 1983 claim of inadequate medical care to avoid a motion to dismiss. We, therefore, reverse the order of dismissal in part and remand for further proceedings consistent with this opinion.

In his complaint (which this court concedes is not the model of clarity), appellant alleged that Rick Anglin, warden of the Bay County jail, and Doctor Ronald Lippmann, the physician overseeing medical care of inmates held in the jail, in their individual capacity, inflicted “cruel and unusual” punishment in violation of appellant’s Eighth Amendment rights by demonstrating “deliberate indifference” to appellant’s diagnosed medical condition and continuing severe pain. Appellant alleges he repeatedly requested medical passes and pain medication for a ruptured disk and pinched nerve in his lower back and that his condition was documented in medical records held by the jail from a prior incarceration. While Anglin and Dr. Lippmann were not personally involved in appellant’s initial medical screening upon arrival at the jail, appellant alleges that both were informed of his continuing pain and requests for medical assistance through repeated grievance and medical request forms and both failed to provide adequate care. Appellant alleges that after seventy-eight days in detention, he was finally provided medical passes and pain medication, but only after notice of this suit was filed.

The trial court, after allowing multiple amendments, dismissed the complaint with prejudice, in part for failing to state facts sufficient to rise to the level of constitutional violations for medical care. The court explained that the complaint attempted to hold Anglin and Dr. Lippmann responsible for “simply knowing” about alleged improper medical care rendered by the medical staff and failed to allege facts to hold them personally liable for another’s negligent acts or omissions. This was error. For a constitutional cause of action against Anglin and Dr. Lippmann to survive a motion to dismiss, it is not necessary for appellant to allege facts to hold them liable for another’s acts or omissions as the court asserts.

We review an order dismissing a complaint with prejudice under the de novo standard. See Hardwick v. Moore, 795 So.2d 970, 972 (Fla. 1st DCA 2001).

Inadequate medical care can be the basis of an Eighth Amendment “cruel and unusual punishment” § 1983 claim in state courts. See Higgs v. Fla. Dep’t of Corr., 647 So.2d 962 (Fla. 1st DCA 1994). The United States Supreme Court has determined that deliberate indifference to a prisoner’s serious medical condition may violate the Eighth Amendment prohibition against “cruel and unusual punishment.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”). As the court explained, “deliberate indifference,” or purposely ignoring the “serious medical needs” of prisoners, amounts to “cruel and unusual punishment” forbidden by the Eighth Amendment. Id.

The “deliberate indifference” standard involves both an objective and a subjective component. The objective component is met by evidence of “serious medical need” which includes, in relevant part, the existence of “chronic and substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir.2003). Appellant’s allegation of continual severe pain coupled with the claim that appellant was eventually provided the medical passes and pain medication he sought appears to meet this objective component.

The subjective component requires an official to know the facts that could have shown the prisoner’s health was in danger and the official must actually believe the prisoner’s health is in danger. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).

Notably, a mere difference of opinion between an inmate and prison medical staff does not give rise to an Eighth Amendment violation. See Smith v. Fisher, 965 So.2d 205, 207 (Fla. 4th DCA 2007). However, some types of situations where courts have found prison medical staff to be “deliberately indifferent,” and not just exercising differences of professional opinion, include failure to provide treatment for diagnosed conditions and failure to investigate the medical situation enough to make an informed judgment—including reviewing medical records. See Hudson v. McHugh, 148 F.3d 859, 861 (7th Cir.1998); and McElligott v. Foley, 182 F.3d 1248, 1252, 1256-57 (11th Cir.1999) (finding in a Florida case that failure to inquire about and treat patient’s severe pain, and repeated delays in doctors seeing the patient, could constitute deliberate indifference). Here, appellant alleges both a prior diagnosis of a ruptured disk and pinched nerve and the existence of prior medical records in the jail’s possession confirming the diagnosis and treatment.

Because of the knowledge requirement of the subjective component, individual liability cannot attach through vicarious liability, such as respondeat superior. Liability requires a showing that the supervisor themselves acted with “deliberate indifference.” See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (discussing the ways in which supervisors may be found liable under § 1983); and Burton v. Lynch, 664 F.Supp.2d 349 (S.D.N.Y.2009) (attaching liability to prison official who reviews prison grievance evidencing an ongoing constitutional violation and fails to remedy the violation only when the violation is in fact ongoing and subject to remedy by that official). Thus, the supervisor can become personally liable under the correct facts.

In this case, appellant alleged that both Anglin and Dr. Lippmann were well aware of his complaints and they themselves failed to act. This is a separate allegation from any claim that the medical staff initially failed to provide adequate care. In focusing on whether Anglin and Dr. Lippmann could be personally liable for another’s acts, the court overlooked the fact that the complaint alleged that the two men would be directly liable for their own acts or omissions. For a cause of action against Anglin and Dr. Lippmann to survive a motion to dismiss, it is not necessary for appellant to allege facts to hold them liable for another’s acts or omissions as the court asserts.

Appellant alleged that both Anglin and Dr. Lippmann were “deliberately indifferent” to his serious medical needs, specifically chronic severe pain, and failed to provide adequate care for seventy-eight days despite learning of the improper medical care via repeated grievances and medical request forms. These are all facts alleged in the complaint that would support a § 1983 claim for improper medical care. We reverse the order of dismissal only as it pertains to Anglin and Dr. Lippmann for appellant’s constitutional claim of inadequate medical care. We affirm the order in all other respects.

REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings.

LEWIS, C.J., concurs; MAKAR, J., concurring in part and dissenting in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part.

Shortly after his arrest, Charles J. Davis was placed in the Bay County detention center in Panama City, Florida on January 6, 2011. According to the allegations in his five page, fifth amended complaint, which relates only to the time he was a pre-trial detainee at the center, he made known to medical staff upon his arrival that he had preexisting injuries for which pain medications and other accommodations were necessary (such as a lower bunk, work restrictions, and avoidance of stairs). His medical evaluation and decisions about his medical treatment were made by a physician’s assistant, who denied his initial request for accommodations as well as his renewed requests a few weeks later during a physical exam.

Although neither the warden, Rick Ang-lin, nor the physician overseeing the center’s provision of medical services, Dr. R. Lippmann, were involved in these medical decisions, Davis alleges he filed grievances about the lack of proper medical care and accommodations, which were denied by the warden, the physician and the physician’s assistant. He alleges that shortly thereafter, on March 24, 2011, “all requested medical passes and pain meds, were finally issued” after he notified the warden that he was going to file a lawsuit. A little over a week later, Davis filed his initial complaint in circuit court, naming nine individuals and the county commission as defendants who engaged in a range of offenses against him, which was dismissed due to its “vague, incomplete or incomprehensible” allegations. Over the course of almost the next two years, the same trial judge allowed Davis to amend his complaint multiple times to overcome various deficiencies. The fifth iteration of his complaint — which consisted of state and federal claims — was ultimately dismissed with prejudice by the trial judge, who concluded that Davis had failed “to allege facts sufficient to rise to the level of a constitutional violation.” He also ruled that insufficient facts were alleged to hold Warden Anglin and Dr. Lippman “personally liable for another’s negligent acts or omissions.” This appeal ensued.

Because dismissal of all of the state and federal claims was appropriate, allowing Davis’s federal constitutional claim to proceed against the warden and the supervisory physician is error. The theory of Davis’s federal constitutional claim is that both of these individuals were on notice that his serious medical needs were not being met (because of his grievances) and that they acquiesced in these deprivations (by denying the grievances) thereby imposing individual liability on them under section 1983. But a viable claim of individual liability under section 1983 must overcome various pleading hurdles, which Davis has failed to do, even in light of the leniency given to pro se litigants.

Under Florida procedural law, a complaint that simply strings together a series of sentences and paragraphs containing legal conclusions and theories does not establish a claim for relief. See Rule 1.110, Fla. R. Civ. P.; see e.g., Barrett v. City of Margate, 743 So.2d 1160, 1162-63 (Fla. 4th DCA 1999) (“It is insufficient to plead opinions, theories, legal conclusions or argument.”); Maiden v. Carter, 234 So.2d 168, 170 (Fla. 1st DCA 1970) (“It is a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal conclusions which, if proved, would establish a cause of action for which relief may be granted.”). Pro se litigants get leniency in amending their complaints, but in the end they must meet pleading requirements to allege ultimate facts holding the defendants liable. Barrett, 743 So.2d at 1162-63 (“The complaint, whether filed by an attorney or pro se litigant, must set forth factual assertions that can be supported by evidence which gives rise to legal liability.”).

Similar principles apply in federal courts: a complaint that patches together a string of legal conclusions will not survive a motion to dismiss. Ashcroft v. Iqbal 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). If legal conclusions are alleged, they are not deemed true for purposes of a motion to dismiss. Id. (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). As the Supreme Court has long held, “we are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Likewise, “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlefrnent] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted).

Here, Davis — despite many opportunities to allege a claim — has come up short. The allegations applicable to Warden Ang-lin and Dr. Lippman amount to legal conclusions “couched as” factual allegations. Davis claims:

• “[T]hat his 14th Amendment rights towards a pretrial detainee, was [sic] violated by warden, Rick Anglin, and medical staff, physician R. Lippman, each, in their individual capacity, due process clause.”
• “Cruel and unusual punishments — denial of medical passes, placed into confinement twice by not having required medical passes. Warden, Rick Anglin, medical staff, physician, R. Lippman, each, in their individual capacity. Petitioner had to suffer with severe pains in his head, neck, lower back, because of his improper care, and no meds.”
• “[T]hat warden, Rick Anglin, oversees the Bay County Jail, and he has a duty to assure that all pretrial detainees are provided with proper medical care. He further states that physician, R. Lipp-man, oversees his asst., Kathi Norman, knowingly and willingly allowed his asst., to continue to give a pretrial detainee improper medical care. Prior notice was given to warden, and medical staff, that a law suit was in process of being filed, on or about March 2011.”

These amount to legal conclusions that the two defendants violated his rights, which need not be accepted as true. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (legal conclusions “are not entitled to the assumption of truth.”). They are classic examples of formulaic labels that fall short under applicable pleading standards. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Similarly, because Davis is asserting a deliberate indifference claim under the Eighth Amendment, he must plead facts showing that actions taken by prison officials were done with the intent or purpose of causing harm; it is not enough to allege a prison official had knowledge of the harm. Iqbal, 556 U.S. at 676-77, 129 S.Ct. 1937 (“Under extant precedent purposeful discrimination requires more than ‘intent as violation or intent awareness of consequences[.]’ It instead involves a decision-maker’s undertaking a course of action ‘because of,’ not merely ‘in spite of [the action’s] adverse effects upon an identifiable group.”) (internal citations omitted). But that is all Davis has done.

• Davis “states that medical staff, warden, Rick Anglin, knowingly and willingly made him suffer with severe pains, even though he had prior medical files to verify his complaints.” (emphasis added).
• Davis “states that warden Rick Anglin, and physician, R. Lippman, both knew of his improper medical treatments by the facility asst., physician, Kathi Norman.” (emphasis added).
• Davis pleads: “Delibert [sic] Indifference — Physician, R. Lippman, warden, Rick Anglin, each, in their individual capacity, both R. Lippman and warden knew of petitioner’s serious medical needs and failed to provide him with adequate care.” (emphasis added).

Nowhere does Davis allege specific facts of the type that would support a “deliberate indifference” claim; instead, he alleges that the defendants merely “knew” of allegedly improper care and failed to take remedial steps within their authority, which falls short of the requisite standard for this type of constitutional violation. Iqbal, 556 U.S. at 676-77, 129 S.Ct. 1937; see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). His allegation that the actions were “willingly” done is a legal conclusion that fails to advance a viable claim; at most it is a legal conclusion that serves only to frame the structure of a claim. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”); see also Barrett, 743 So.2d at 1162-63; Maiden, 234 So.2d at 170.

Prison officials exercise their judgment (and sometimes negligent judgment) daily in denying medical requests and grievances with knowledge that the grievant-prisoners have made claims for specific medical care or treatment. Liability does not exist in these situations absent facts showing that prison officials acted with the requisite subjective intent to harm and engaged in conduct more culpable than negligence, i.e., deliberate indifference. Differences of opinion and negligence do not meet the constitutional standard. See, e.g., Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

This analysis is based on principles of Florida procedural law (and federal principles consistent with Florida principles); it is not based on the even more demanding “plausibility” standard in federal law. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Nonetheless, it is noteworthy that had Davis’s case been removed to federal court (as almost always happens in state section 1983 actions), it would likely have been dismissed without as many opportunities for amendment and likely summarily affirmed on appeal. See Rosa v. Fla. Dep’t of Corr., 522 Fed.Appx. 710, 715-16 (11th Cir.2013) (inmate provided an opportunity to amend, but made only “threadbare assertions of alleged constitutional violations, without further factual support” which are insufficient under Iqbal). Notably, the claims in Rosa included claims that the warden and others “were deliberately indifferent either to his grievances or to the retaliatory actions of their subordinates.” Id. The inmate also alleged that one defendant “was deliberately indifferent to his care and safety, and that [another defendant] was liable for her ‘no care policy,’ which led to the filing of false reports.” Id. Much like Davis’s claims, the inmate’s claims were dismissed and then affirmed on appeal because they “were too concluso-ry and vague to satisfy the pleading standards set forth in Tivombhj and Iqbal.” Id.

In addition, the alleged actions of Warden Anglin and Dr. Lippman in denying Davis’s grievances are just as consistent with lawful conduct as Davis’s constitutional claims; absent some statement of ultimate facts showing that these officials acted in an unconstitutional manner, dismissal was proper. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The fact pattern that Davis alleges is consistent with lawful conduct for which the defendants have no legal liability; applying a “deliberate indifference” label to this conduct does not add any ultimate fact distinguishing lawful from unlawful conduct.

Florida’s judicial system is open to litigants asserting federal claims that meet pleading standards. Davis — a prolific prisoner-litigant with four cases currently lodged in this court — was given exceptional leniency in his attempt to assert federal and state claims; none satisfy the basic pleading requirements of Florida law, including his federal claim, whose dismissal should also be affirmed.


author: LEVINE, J.

text:
    Sanford D. LYONS, Timothy R. Lyons, and John C. Lyons, as Trustees of the Norma W. Lyons 1993 Qualified Personal Residence Trust, Appellants, v. Norma W. LYONS, Valerie A. Lyons, William M. Tuttle, II, and Dorothy A. Lyons Heffner, Appellees.
    Nos. 4D13-1793, 4D13-4211.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.
    Rehearing En Banc Denied Feb. 20, 2015.

      Daniel L. Wallach and Allen M. Levine of Becker & Poliakoff, P.A., Fort Lauder-dale, for appellants.
    William M. Tuttle, II of William M. Tuttle, II, P.A., Coral Gables, for appellees Norma W. Lyons, Valerie A. Lyons and William M. Tuttle, II.
   LEVINE, J.

The issue presented is whether the trial court erred in finding that a wife had standing to assert the homestead rights of her deceased husband, who did not sign a 1993 deed, and declare the quit claim deed to a residence trust void ab initio. We find that the wife lacked standing to raise her deceased husband’s homestead rights and, as such, we reverse.

Richard and Norma Lyons, a husband and wife, owned a home that was their primary residence. In 1993, Richard and Norma quit claimed the residence to Norma alone. The quit claim deed contained language that Richard “does hereby remise, release and quit-claim unto the said second party [Norma] forever, all the right, title, interest, claim and demand which the said first party [Richard] has in and to the [property].” On the same day, Norma quit claimed the deed to a qualified personal residence trust (“QPRT”). The irrevocable trust provided for an income term of fifteen years or until the settlor’s death, whichever came first. In 2002, Richard executed a will in which he acknowledged the QPRT. Richard passed away in 2007.

The Lyonses had five children, all of whom had reached the age of majority in 1993. In 2010, Norma executed a quit claim deed seeking to convey the residence to herself and daughter Valerie. In July 2011, the sons — Sanford, Timothy and John — as trustees of the trust, filed a complaint against Norma, daughters Valerie and Dorothy, and the attorney, William Tuttle, who prepared the 2010 quit claim deed, seeking to set aside the 2010 deed on the grounds that Norma did not own the residence when she attempted to convey it.

In 2011, Norma, Valerie, and Tuttle moved for summary judgment, arguing that the 1993 deed was void ab initio because it was signed only- by Norma, and not signed by Richard, and thus, violated Richard’s homestead rights. Norma filed an affidavit at the same time, claiming that it was her intent and Richard’s intent to leave the residence exclusively to Valerie. The sons in response argued that Richard waived his homestead rights and that Norma lacked standing to assert her deceased husband’s homestead claims.

The trial court entered a summary judgment in favor of Norma, Valerie, and Tuttle, finding that the 1993 deed was void ab initio because Richard, the deceased husband, had not signed the quit claim deed to the trust that Norma had signed. This appeal ensues.

A trial court’s entry of summary judgment is reviewed de novo, as is an issue involving interpretation of the Florida constitution. Karayiannakis v. Nikolits, 23 So.3d 844, 845 (Fla. 4th DCA 2009).

In reviewing constitutional provisions, a court must “examine the actual language used in the constitution.” Lewis v. Leon Cnty., 73 So.3d 151, 153 (Fla.2011). “If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.” ' Id. (citation omitted). “The words of the constitution ‘are to be interpreted in their most usual and obvious meaning, unless the text suggests that they have been used in a technical sense.’ ” Id. (citation omitted). Constitutional provisions should be construed in a manner consistent with the- intent of the framers and the voters. Id.

The Florida constitutional provision limiting the devise and alienation of homestead is governed by article X, section 4(c), which provides:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Article X, section 4(c) evidences the constitutional intent to protect a surviving spouse and minor children who otherwise would have no interest in the homestead. “The constitutional provision prohibiting devise of the homestead property if the owner is survived by a spouse or minor child reflects [a] concern for protection of the family.” City Nat’l Bank of Fla. v. Tescher, 578 So.2d 701, 703 (Fla.1991); see also In re Estate of Boyd, 519 So.2d 692, 694 (Fla. 4th DCA 1988) (“The historical purpose of the homestead provision was to protect those legally dependent on the decedent because of a family relationship.”). As such, “article X, section 4(c) is designed to protect two classes of persons only: surviving spouses and minor children.” Id.; see also In re Estate of Scholtz, 543 So.2d 219, 221 (Fla.1989) (“The homestead may not be devised if the owner is survived by a spouse or minor child.”).

The constitutional provision is inapplicable to the present case. In this case neither Norma nor the adult children were members of the class specifically protected by the constitutional provision. The children would obviously not qualify as “minor children.” As to Norma, although she is a surviving spouse, she owned the homestead and transferred the homestead to the QPRT. Article X, section 4(c) does not serve to protect Norma from her own actions in transferring her own homestead property.

The plain language of the constitutional provision describes and limits the actions of the owner of the homestead property. The provision highlights that the “homestead shall not be subject to devise if the owner is survived by spouse or minor child.” Further, the provision describes when “the owner of homestead real estate” may alienate the homestead. The entire provision hinges on the conduct of the owner spouse, and the resultant protections to the non-owner surviving spouse or minor children.

Clearly, in the present case, Norma and her husband were owners of the homestead when they quit claimed the homestead to Norma. Norma then became the sole owner of the homestead and quit claimed the homestead to the QPRT. Norma cannot now claim the quit claim she then executed as sole owner was void ab initio, as she is not the non-owner surviving spouse. At the time of Norma’s quit claim to the QPRT, the only non-owner spouse was Richard.

If there were any infirmities in Norma’s action of quit claiming the homestead to the QPRT, only Richard as the non-owner spouse could rely on the provisions of article X, section 4(c). Clearly, Norma does not have standing to assert Richard’s potential rights had he been the surviving spouse. Norma, as the owner, should not be able to challenge her own acts, as she is not within the class of persons the constitutional provision is designed to protect.

Further, it would be absurd for the party who created the alleged infirmities in the quit claim deed to be able to attack the viability of the same quit claim deed. In other words, Norma should not be able to attack the quit claim deed as void ab initio, where she drafted, relied on, and was the sole signatory to it.

For the foregoing reasons, we reverse the final summary judgment and remand for further proceedings. Because we reverse the summary judgment, we also reverse the order dissolving the lis pendens.

Reversed and remanded for further proceedings.

STEVENSON and MAY, JJ., concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Clay MONTGOMERY, Appellee.
    No. 2D13-5355.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Rehearing Denied Jan. 9, 2015.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Joseph T. Hobson of Hobson Law Firm, LLC, Clearwater, for Appellee.
   KELLY, Judge.

The State appeals from the sentence imposed on Clay Montgomery after he entered a plea to aggravated battery. The State argues that no evidence was presented of the victim’s need for restitution to support a downward departure from the recommended guidelines range. We agree and reverse.

Before trial of the case commenced, the parties engaged in unsuccessful plea negotiations. The State offered Montgomery a cap of four years in prison, which Montgomery rejected. Thereafter, Montgomery’s defense counsel, the victim, and the victim’s civil lawyer negotiated “a settlement” in which the victim agreed to accept payment of $50,000 in exchange for a release from any further civil or criminal actions against Montgomery. The State expressed the belief that the offense was worthy of a prison sentence and objected to any disposition below the minimum recommended guidelines sentence of 35.4 months’ imprisonment. The trial court acknowledged the State’s objection but engaged in a discussion with the victim as to whether, in his view, restitution in lieu of prison time would be an acceptable disposition of the case. Based on the victim’s assent, the trial court adjudicated Montgomery guilty, placed him on five years of probation, and ordered payment of $50,000 in restitution to the victim.

The primary purpose of sentencing is to punish the offender. § 921.002(l)(b), Fla. Stat. (2011). A settlement and release of liability on a civil claim for damages between private parties does not prohibit the trial court from fulfilling its obligation to impose criminal sanctions. See Kirby v. State, 863 So.2d 238, 242 (Fla.2003). A victim’s need for restitution is a valid reason for departure from the sentencing guidelines under section 921.0026(2)(e), if the evidence shows that the victim’s actual need outweighs the need for imprisonment. State v. Adkison, 56 So.3d 880, 883 (Fla. 1st DCA 2011). A trial court’s imposition of a downward departure sentence will be upheld on appeal only if competent, substantial evidence supports the ruling and if the court did not abuse its discretion in finding that departure is the best sentencing option for the defendant. State v. Ford, 27 So.3d 725, 726-27 (Fla. 3d DCA 2010) (citing Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999)). “[E]vidence that would support such a finding includes the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.” State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000) (citing State v. Knopp, 765 So.2d 164 (Fla. 2d DCA 2000)). “When the defense offers no evidence of these factors other than the argument of counsel, the departure must be reversed.” Id. See Banks, 732 So.2d at 1067. In this case, the victim never testified under oath about his need for restitution, the extent of his injuries, or his financial loss. No medical bills were introduced into evidence. Without any evidence of the victim’s actual need for restitution, the trial court abused its discretion in departing from the recommended guidelines sentencing range.

Accordingly, we reverse Montgomery’s downward departure sentence. Because the sentence resulted from a plea agreement, on remand, Montgomery must be given the opportunity to withdraw his plea. Knopp, 765 So.2d at 165. If Montgomery does withdraw his plea, the trial court may again impose a downward departure sentence provided the reason for departure is supported by a preponderance of the evidence. See id.; State v. Stewart, 749 So.2d 555 (Fla. 2d DCA 2000).

Reversed and remanded for further proceedings.

VILLANTI and LaROSE, JJ., concur.


author: FORST, J.

text:
    Alfredo Arturo Sotelo GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2976.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.

      Valarie Linnen, Atlantic Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Appellant Alfredo Arturo Sotelo Gomez appeals his convictions for first-degree murder and kidnapping. Appellant specifically challenges the denial of his motion to suppress all statements and physical evidence derived from his arrest and the denial of his request for a special jury instruction on the “independent act” defense. As set forth below, we find no error in the trial court’s decisions and affirm.

Background

Appellant became involved in negotiating a narcotics deal with an undercover police officer after the victim introduced the officer, whose true identity remained unknown to either of them, to Appellant. Appellant eventually told the undercover officer that he did not trust the victim because the victim had been “snitching” on some drug dealers, but Appellant assured the undercover officer not to worry because “we’ll get him by tomorrow.” Soon thereafter, the victim’s lifeless body was found floating in a canal, with multiple stab wounds.

When the undercover officer heard that the victim had been murdered, he contacted the detective in charge of the investigation to tell her what he had heard from Appellant. The detective and the officer arranged for the undercover officer to meet with Appellant regarding the narcotics transaction while the detective had a tactical unit on location for surveillance and to obtain Appellant’s identification.

The meeting occurred, but no drugs were exchanged, and so Appellant left. Appellant was approached by a deputy, who was part of the surveillance team, on the street soon after as he was walking from his home nearby. The deputy told Appellant that he was investigating a robbery, which was a ruse, and asked if he had seen anything. Appellant said he had not and then the deputy asked for his identification. After Appellant’s identification came back with no outstanding warrants, the deputy asked if he would wait for a detective to come to speak with him about the robbery. Appellant agreed.

The detective arrived and asked Appellant a few questions. She then asked Appellant to come to the Sheriffs headquarters with her to see if he could help with the robbery investigation. Appellant agreed and rode, unrestrained, to the headquarters with another officer. At this point, the officers had not returned Appellant’s identification.

At the headquarters, Appellant was kept unrestrained and agreed to have his fingerprints, his DNA, and some pictures taken. The detective read Appellant his Miranda warnings, and then she and the undercover officer asked Appellant about the victim’s murder. Appellant eventually confessed to his involvement in the murder. He explained that he and a group of drug dealers wanted to shut up the victim and “make him deaf and mute” because he had “ratted them out.” The group devised a plan to have a female accomplice bring the victim to a certain bar and then come outside when the group arrived. When the group arrived at the bar, the victim came outside with the woman and then got in the car with Appellant. The group drove to a canal where Appellant led the victim out of the car, holding the victim’s hands behind his back. Another individual, nicknamed “Yogi” or “Yoqui,” then came up from behind Appellant and slashed the victim’s throat and stabbed him while Appellant held him. Appellant and another accomplice then dragged the victim’s body to the canal and threw him in. This interview was recorded.

Appellant moved to suppress the statements to the officers and the physical evidence obtained after his arrest, arguing that the officers lacked probable cause to arrest him. The trial court denied the motion, finding that, although the State argued that Appellant was never arrested but voluntarily went with the officers, there was a de facto arrest of Appellant that was based on probable cause. The case proceed to trial, and Appellant was convicted of first-degree murder and kidnapping.

Standard of Review

With a motion to suppress, a trial court’s factual findings are reviewed for competent, substantial evidence and mixed questions of law and fact are reviewed de novo. R.J.C. v. State, 84 So.3d 1250, 1254 (Fla. 4th DCA 2012). The trial court’s ruling comes to this court “clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Id. (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)).

Denial of the Motion to Suppress

We recognize that even a de fac-to arrest, where the police do not intend to officially arrest a defendant but the circumstances amount to the defendant not being free to leave the encounter, requires probable cause. See M.J. v. State, 121 So.3d 1151, 1154-56 (Fla. 4th DCA 2013). “Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not a crime has been committed.” Bethel v. State, 93 So.3d 410, 413 (Fla. 4th DCA 2012) (quoting State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011)). This is a low standard that does not require absolute certainty about criminal activity. Blaylock, 76 So.3d at 15. Additionally, “[u]nder the [fellow officer] rule, one officer may rely on the knowledge and information possessed by another officer to establish probable cause for an arrest for a felony .... ” State v. Bowers, 87 So.3d 704, 707 (Fla.2012) (quoting Boioers v. State, 23 So.3d 767, 770 (Fla. 2d DCA 2009)).

We hold that the instant facts, viewed in the light most favorable to sustaining the trial court’s ruling, support the conclusion that (1) the officers did conduct a de facto arrest of Appellant, where the failure to return his identification caused Appellant to reasonably believe he was not free to leave, and (2) the arrest was based on probable cause. Appellant’s argument on appeal is that the police lacked probable cause to arrest him because the undercover agent testified, “He said that he was going to take care of him by tomorrow, meaning, like many things. I [didn’t] know that [the murder of the victim] was what’s going to happen.” As such, Appellant maintains, this statement was too ambiguous, “standing alone,” to lead a prudent person to believe that Appellant committed any offense.

The flaw with Appellant’s challenges is that the undercover officer’s report was one piece of the puzzle providing the police with probable cause to arrest and question Appellant. At the time of the arrest, the officers collectively knew that Appellant was negotiating a narcotics transaction with an undercover officer after being introduced to the officer by the victim; Appellant had just come from a meeting about that transaction; Appellant had a motive to harm the victim, as he had told the undercover officer (whom he did not know was a law enforcement agent) that he believed the victim was “a snitch”; he had expressed an intent to “deal with” the victim (he told the officer that the victim “would be taken care of’); and there was evidence of murder with respect to the person who Appellant had declared would be “taken care of,” as the police recovered the victim’s body from the canal shortly after that statement was made. This information warranted a reasonable person to believe that, more likely than not, Appellant was involved in the victim’s murder. We therefore affirm the trial court’s ruling on the issue of probable cause.

The Jury Instruction on the Independent Act Defense

Appellant’s second challenge on appeal relates to his request for a jury instruction on the independent act defense. We review the trial court’s refusal of a requested jury instruction for abuse of discretion. McClover v. State, 125 So.3d 926, 927 (Fla. 4th DCA 2013). “[T]he trial judge’s discretion is fairly narrow because a criminal defendant is entitled, by law, to have the jury instructed on his theory of defense if there is any evidence to support his theory and the theory is recognized under Florida law.” Id. (quoting Patmore v. State, 838 So.2d 1222, 1223 (Fla. 1st DCA 2003) (emphasis in original)).

“The independent act doctrine arises when one co-felon, who previously participated in a common plan, does not participate in acts committed by his co-felon, which fall outside the common design of the original collaboration.” Lopez v. State, 97 So.3d 301, 304 (Fla. 4th DCA 2012); see also Fla. Std. Jury Instr. (Crim.) 3.6(i). “[Where, however,] the defendant was a willing participant in the' underlying felony and the murder resulted from forces that they set in motion, the independent act instruction is inappropriate.” Johnson v. State, 36 So.3d 170, 172 (Fla. 3d DCA 2010).

In the present case, the trial court did not abuse its discretion in denying the request for an instruction on the independent act defense where the evidence does not support giving the instruction. Appellant and the group of drug dealers clearly devised a plan to intimidate and/or harm the victim. One member of the group testified that the plan was to make the victim “permanently deaf and blind.” The same witness testified that they all saw “Yogi” with the murder weapon while they were making the plan. Although Appellant may not have intended for the victim to be so brutally murdered or even murdered at all, Appellant willingly participated in the crimes by preventing the victim from running away and holding his hands behind his back, which set forces in motion leading to the murder. See id. Even after the victim’s throat was slashed, Appellant assisted in throwing the body in the canal. Furthermore, the harming and killing of the victim were “a reasonably foreseeable consequence of the common design” to make the victim “permanently deaf and blind,” as contemplated by Appellant. See Fla. Std. Jury Instr. (Crim.) 3.6(i).

Conclusion

Because we find no error in the trial court’s decision to deny the motion to suppress and deny the requested jury instruction, we affirm.

Affirmed.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: VILLANTI, Judge.

text:
    BETHANY TRACE OWNERS’ ASSOCIATION, INC., a Florida nonprofit corporation, Appellant, v. WHISPERING LAKES I, LLC, a Florida limited liability company; and Watermen-Pinnacle, Inc., a Florida corporation, f/k/a Bethany Trace Estates, Inc., Appellees.
    No. 2D13-2792.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Rehearing Denied Jan. 23, 2015.

      Matthew S. Toll and Thomas S. Heid-kamp of Toll Law, Cape Coral, for Appellant.
    Steven H. Mezer of Bush Ross, P.A., Tampa, for Appellee Whispering Lakes I, LLC.
    Scott A. Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita Springs, for Appellee Watermen-Pinnacle, Inc.
   VILLANTI, Judge.

Bethany Trace Owners’ Association, Inc. (the Association), appeals the final summary judgment entered in favor of Whispering Lakes I, LLC, and Watermen-Pin-nacle, Inc., in this case arising out of the ownership of certain lands associated with the Bethany Trace subdivision. Because the trial court entered summary judgment based on an interpretation of the relevant documents that renders portions of them meaningless and because a plausible alternate interpretation gives meaning to all of the provisions, we reverse the final summary judgment and remand for further proceedings.

In the early 1990s, Lehigh Corporation began developing a tract of land in Lee County for a subdivision that was to be called Bethany Trace. As part of the original development of the subdivision, Le-high Corporation prepared a Declaration of Covenants, Conditions, Restrictions & Easements (the Declaration). The Declaration contained the following definition of the “Common Areas” related to the subdivision:

1.6. “Common Areas ” mean those, tracts, easements or areas of land shown on any recorded subdivision plat of the Property which are intended to be devoted to the general common use and enjoyment of the Owners in the Property, which shall include without limitation, any areas denoted thereon as a common area, including any fences surrounding or within the Property and the entranceway thereof, and water management, conservation tracts and retention tracts, including, without limitation, Bethany Lake, the Lake Maintenance Area, the Park Areas, and the Conservation Area and Conservation Buffer Area. The Common Areas shall also include all improvements now or hereafter constructed on or in the foregoing areas including, without limitation, irrigation systems, planted landscaping, pedestrian or other easement areas within the foregoing areas, signage, structures, lakes and landscaping thereon. Additional Common Areas may be designated by the Developer pursuant to Section 10.12 hereof.

Attached to the Declaration were metes and bounds descriptions of Bethany Lake (Exhibit B), the Lake Maintenance Area (Exhibit C), the Park Areas (Exhibit D), and the Conservation Area and the Conservation Buffer Area (Exhibit E). The Declaration and its exhibits were recorded in the public records of Lee County on September 23,1994.

On September 13, 2001, Lehigh Corporation assigned its rights and obligations under the Declaration to Watermen. In that assignment, Watermen agreed to “convey to the Association, for no further consideration and free and clear of any liens or encumbrances, those Common Areas referred to [as] ‘Bethany Lake’, the ‘Lake Maintenance Area’, the ‘Park Area’, and the ‘Conservation Area and Conservation Buffer Area’, as those areas are described in the Declaration.” Rather than doing so, Watermen sold those lands to Whispering Lakes, which bulldozed certain improvements on them, apparently in anticipation of building additional residences in the area.

Upon learning of the sale of these lands to Whispering Lakes, the Association sued Watermen for breach of contract and sued Whispering Lakes for breach of covenant and trespass. Watermen and Whispering Lakes subsequently moved for summary judgment, arguing that the language of the Declaration clearly showed that the Association had no legally cognizable interest in any of the identified lands as a matter of law and that therefore Watermen and Whispering Lakes were entitled to judgment in their favor.

In making this argument, Watermen and Whispering Lakes pointed to the definition of “Common Areas” in section 1.6 of the Declaration. They contended that the first sentence of that definition, which refers to lands identified as common areas on a recorded plat, applies to the entire definition and means that only those areas identified as common areas on a recorded plat are “Common Areas,” regardless of any other language in the Declaration. They contended that since no plat of the Bethany Trace subdivision was ever recorded, no “Common Areas” ever came into existence and therefore Watermen never had any obligations toward the Association as to any “Common Areas.” They also contended that the identification of Bethany Lake, the Lake Maintenance Area, the Park Areas, and the Conservation Area and Conservation Buffer Area in the definition of “Common Areas” was nothing more than an illustration of what some “Common Areas” might be if and when the developer actually recorded a plat.

The Association, on the other hand, argued that the definition of “Common Areas” in section 1.6 contemplates four different types of common areas: (1) those identified on a recorded plat if one is subsequently recorded; (2) water management and conservation tracts, including Bethany Lake, the Lake Maintenance Area, the Park Areas, and the Conservation Area and Conservation Buffer Area; (3) improvements constructed on any of the foregoing areas; and (4) additional areas designated by the developer at some later time. Thus, the Association argued that the lack of a recorded plat did not affect its ownership interest in Bethany Lake, the Lake Maintenance Area, the Park Areas, and the Conservation Area and Conservation Buffer Area because those lands were specifically identified both by name and metes and bounds description in the recorded Declaration.

The trial court agreed with the interpretation of section 1.6 urged by Watermen, and Whispering Lakes. Thus, it found that the Association had no ownership interest of any kind in Bethany Lake, the Lake Maintenance Area, the Park Areas, and the Conservation Area and Conservation Buffer Area because neither the original developer nor any subsequent assignee had ever recorded a plat for the subdivision. And because the Association had no ownership interest in these lands, neither Watermen nor Whispering Lakes breached any contract or covenant to convey those rights or could commit a trespass as a matter of law. On the basis of these findings, the trial court entered final summary judgment in favor of Watermen and Whispering Lakes, and the Association now seeks review.

We review the trial court’s interpretation of a contract de novo. See Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013); Vollmer v. Key Fin. Corp., 810 So.2d 966, 968 (Fla. 2d DCA 2002). Because the interpretation of a contract is a question of law, this court may reach a construction or interpretation of the contract contrary to that of the trial court. See, e.g., Gemini Ventures of Tampa, Inc. v. Hamilton Eng’g & Surveying, Inc., 784 So.2d 1179, 1180 (Fla. 2d DCA 2001); Whitley v. Royal Trails Prop. Owners’ Ass’n, 910 So.2d 381, 385 (Fla. 5th DCA 2005). When interpreting contractual' provisions, courts “will not interpret a contract in such a way as to render provisions meaningless when there is a reasonable interpretation that does not do so.” Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005); see also Publix Super Markets, Inc. v. Wilder Corp. of Del., 876 So.2d 652, 654 (Fla. 2d DCA 2004). Instead, courts must strive to interpret a contract in such a way as to give meaning to all provisions while doing violence to none.

In this case, the interpretation of section 1.6 as requiring a recorded plat to create any and all “Common Areas” unjustifiably ignores other sections of the Declaration that clearly give the Association ownership rights and obligations in Bethany Lake, the Lake Maintenance Area, the Park Area, and the Conservation Area and Conservation Buffer Area. For example, article II of the Declaration, entitled “Land Plan,” contains the following relevant provisions:

2.2. The Park Areas. The Park Areas shall be owned by the Association and maintained in an attractive landscaped manner, all consistent with and in accordance with all laws, ordinances and regulations.
2.4. The Conservation Area and the Conservation Buffer Area.
a. The Conservation Area and the Conservation Buffer Area shall be owned by and shall be the perpetual responsibility of the Bethany Trace Owners’ Association, Inc. and may in no way be altered from their natural state....
b. The Association shall be responsible for an annual basic wetland monitoring plan for the period which ends on September 30, 1997, which will include panoramic photographs, staff gauge readings and vegetation discussion. This information will be submitted to South Florida Water Management District in accordance with the permit issued for Bethany Trace.
2.5. Bethany Lake. Bethany Lake shall be owned by the Association and maintained in an attractive manner, all consistent with and in accordance with all laws, ordinances and regulations.
2.6. The Lake Maintenance Area. The Lake Maintenance Area shall be owned by the Association and maintained in an attractive manner, all consistent with and'in accordance with all laws, ordinances and regulations.
2.15. Title to Common Areas. The Developer shall convey legal title to the Common Areas to the Association free and clear of any encumbrances, and such conveyance shall be subject to the terms of this Declaration and any Supplemental Declaration, including any easement and licenses set out therein and easements for such utility services as the Developer deems appropriate, but may not be subject to the terms of a mortgage.

(Emphasis added.) Article VI of the Declaration requires the Association to maintain Bethany Lake add the Lake Maintenance Area. Article IX of the Declaration identifies the Association’s expenses as those necessary to “own and maintain the Common Areas, including without limitation, the Park Areas, Bethany Lake and the Lake Maintenance Area, [and] to preserve and monitor the Conservation Area and the Conservation Buffer Area.” That same article requires. the Association to insure and maintain — and collect assessments to pay for the maintenance of— these identified lands. Finally, article VII of the Declaration makes the Association responsible for the removal of invasive exotic species in the Conservation Area and Conservation Buffer Area.

It is clear from the language of the entire Declaration that the Association was given ownership rights and obligations in Bethany Lake, the Lake Maintenance Area, the Park Area, and the Conservation Area and Conservation Buffer Area that are separate and apart from some otherwise generic “common areas” that might be identified on some future recorded plat. None of the Association’s obligations as to these specifically identified lands are contingent on the developer subsequently recording a separate plat that identifies them as “Common Areas.” Instead, it is clear from a reading of the entire Declaration that the ownership rights and obligations as to these identified lands spring from the Declaration itself. And this interpretation is further reinforced by section 10.12 of the Declaration, which permits the developer to add common areas to the subdivision by recording an amendment to the Declaration — not by recording a new subdivision plat.

Additional support for this interpreta-' tion of section 1.6 comes from the language of the assignment from Lehigh Corporation to Watermen. That assignment required Watermen to convey to the Association “those Common Areas referred to as ‘Bethany Lake’, the ‘Lake Maintenance Area’, the ‘Park Area’, and the ‘Conservation Area and Conservation Buffer Area.’ ” This phrasing indicates that these identified lands are separate and apart from any general “common areas” that might otherwise exist. And an interpretation of section 1.6 as requiring a recorded plat before any interest arose in these identified lands would render Watermen’s obligation to convey them to the Association illusory since it was undisputed that no plat of Bethany Trace had been recorded in the years between 1994, when the Declaration was recorded, and 2001, when the assignment was signed.

Here, the interpretation adopted by the trial court results in portions of the Declaration being meaningless. It ignores those portions of the Declaration that state that the Association shall own and maintain Bethany Lake, the Lake Maintenance Area, the Park Area, and the Conservation Area and Conservation Buffer Area, and it also, renders the obligation of the developer to convey legal title to these lands to the Association meaningless. The Association’s interpretation, on the other hand, is a reasonable interpretation that gives meaning to all of the provisions of the Declaration and the subsequent assignment. Therefore, we reverse the final summary judgment in favor of Watermen and Whispering Lakes and remand for further proceedings.

Reversed and remanded for further proceedings.

DAVIS, C.J., and KELLY, J., Concur.

      . Prior to the assignment, Lehigh Corporation changed its name to Florida Landmark Communities, Inc. And the assignment was actually made to Watermen's predecessor-in-interest, Bethany Trace Estates, Inc. However, because there is no dispute concerning the corporate identity of any of the parties, we simply refer to them as Lehigh and Watermen for ease of reference.


text:
    Clifton LINDQUIST, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1692.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Rehearing Denied Jan. 22, 2015.
    Clifton Lindquist, pro se.
   VILLANTI, Judge.

Clifton Lindquist appeals the postconviction court’s order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm as to all grounds but write to comment on one of the issues raised by Lindquist.

After Lindquist entered a negotiated plea to felony charges in 1998, the court sentenced him as a violent career criminal to a mandatory term of thirty years in prison. The court also imposed various costs and fees and ordered restitution to the victim. In his rule 3.800(a) motion filed fifteen years after he was sentenced, Lindquist challenged the trial court’s imposition of costs and fees on the ground that no one — the trial judge, his attorney, or the prosecutor — informed him of his right to contest them. Relying on the Fourth District’s opinion in Walden v. State, 112 So.3d 578 (Fla. 4th DCA 2013), the postconviction court denied Lindquist’s motion, noting that challenges to the imposition of court costs are not cognizable under rule 3.800(a). We agree with the postconviction court’s analysis.

Lindquist requests that he be granted a new sentencing hearing to correct the allegedly illegal imposition of costs. However, Lindquist’s specific claim takes issue with the procedure employed during sentencing, as opposed to the actual sentence imposed, and is not cognizable in a rule 3.800(a) motion. See Steward v. State, 931 So.2d 133, 134 (Fla. 2d DCA 2006) (“Steward’s claims contesting the sentencing procedure are procedurally barred in a rule 3.800(a) motion.”); Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1991) (en banc) (“[Rule 3.800(a) ] is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.”). In contrast, this court has held that such challenges may be raised in a timely motion for postconviction relief under rule 3.850. See Richie v. State, 777 So.2d 977, 978 (Fla. 2d DCA 1999); Townsend v. State, 604 So.2d 885, 885 (Fla. 2d DCA 1992). But the time for Lindquist to file such a motion expired many years ago. See Fla. R. Crim. P. 3.850(b).

Like the Fourth District in Walden, 112 So.3d at 580, we hold that challenges to the imposition of costs and fees are not cognizable under rule 3.800(a). Accordingly, the postconviction court’s order is affirmed.

Affirmed.

NORTHCUTT and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Peter A. GERACI, Appellant/Cross-Appellee, v. Sheila A. GERACI, Appellee/Cross-Appellant.
    No. 2D13-1206.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.
    Rehearing Denied Jan. 20, 2015.

      Patricia K. Kuhlman and David A. Ma-ney of Maney, Damsker, Jones & Kuhl-man, P.A., Tampa; and Mark A. Linsky of Mark A. Linsky, P.A., Tampa, for Appellant/Cross-Appellee.
    Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., Tampa; and David M. Carr of David Michael Carr, P.A., Tampa; and Mafias Blanco, Jr., Tampa, for Appellee/Cross-Appellant.
   ALTENBERND, Judge.

The former husband, Peter A. Geraci, appeals the judgment of dissolution of marriage from his former wife, Sheila A. Geraci. She cross appeals from the same judgment. Except for an issue involving a $220,000 certificate of deposit, we affirm the trial court.

This couple married in 1982. The marriage lasted nearly thirty years. Prior to and during the marriage, Mr. Geraci’s family had substantial business and real estate investments primarily in Pasco County and Hillsborough County. At the time of the marriage, the couple executed an antenuptial agreement in which Ms. Geraci waived all rights to support and most rights to equitable distribution in the event of a divorce. The dissolution proceeding was extensively litigated with the focus of the dispute on the enforceability of the antenuptial agreement and the marital or nonmarital status of the extensive real estate holdings. The record on appeal is approximately twenty-five thousand pages in length, and as a digital record, it has been a challenge for this court to review.

In the trial court, this case was resolved in a two-step process. First, the enforceability of the antenuptial agreement was litigated before Judge Weis, and then the issues of support and equitable distribution were litigated before Judge Thomas. Judge Weis determined that the 1982 ante-nuptial agreement was abandoned or rescinded by mutual consent as a result of the conduct of the parties during this long marriage. The law of the Second District has long recognized that an abandonment of an antenuptial agreement is a factual possibility. See McMullen v. McMullen, 185 So.2d 191, 193 (Fla. 2d DCA 1966). After a review of the evidence, we conclude that the trial court’s determination that the parties’ conduct over the life of this marriage effected an abandonment of the antenuptial agreement is supported by competent, substantial evidence.

The impact of the ruling on the antenup-tial agreement is softened by Judge Thomas’s subsequent ruling that Mr. Geraci had retained the nonmarital status of much of his property. To the largest extent, Judge Thomas accepted the testimony of Mr. Geraci’s financial expert. As a result, the amount of appreciation to real estate treated as marital property subject to equitable distribution was quite limited. Of the more than twenty-nine million dollars of assets valued in the final judgment, more than twenty million dollars of assets were treated as Mr. Geraci’s nonmarital property. Only 8.4 million dollars of property was subject to equitable distribution, and it was equally divided. As for support, the trial court determined that Ms. Geraci’s needs per month totaled $12,657. After accounting for investment income and other factors, the trial court awarded Ms. Geraci $6928 per month in permanent periodic alimony.

We reject Mr. Geraci’s arguments that the antenuptial agreement prevents the award of support or equitable distribution in this case. The valuation of the assets for equitable distribution is supported by competent, substantial evidence, and we find no abuse of discretion in the awards made by Judge Thomas. Likewise, we reject Ms. Geraci’s argument that the trial court was required to base the equitable distribution on a larger portion of the real estate.

In the final judgment, Judge Thomas determined that shortly before filing for divorce, Ms. Geraci removed approximately $220,000 from a certificate of deposit solely owned by Mr. Geraci. We can find no adjustment to any monetary award in the final judgment to account for this determination. We do not know whether Judge Thomas factored that amount into the support provided during the pendency of the proceeding or whether this amount was simply overlooked in the calculations. Accordingly, we reverse this judgment only to the extent of requiring Judge Thomas on remand to address this $220,000 issue and enter an amended judgment providing appropriate relief.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Anthony Alonzo WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2202.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2014.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Anthony Alonzo Williams appeals his judgment and sentence entered following his no contest plea to the charge of possession of a weapon and/or ammunition by a convicted felon. We affirm without prejudice to any right he may have to file a motion for postconviction relief. See Fisher v. State, 35 So.3d 143, 144 (Fla. 2d DCA 2010).

Affirmed.

WALLACE and SLEET, JJ., Concur.


author: PER CURIAM.

text:
    CITY OF FORT PIERCE/FLORIDA MUNICIPAL INSURANCE TRUST, Appellant, v. Donald SPENCE, Appellee.
    No. 1D14-937.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2014.
    Rehearing Denied Feb. 2, 2015.
    Lamar D. Oxford and Alan D. Kalinoski of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellant.
    Bill McCabe, Longwood, and Andrew A. Reich, Port St. Lucie, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals, and Claimant cross-appeals, an order of the Judge of Compensation Claims (JCC) ordering facet injections and denying claims for authorization of an orthopedic surgeon and a cervical diskectomy and fusion at C5-6. For the reasons that follow, we reverse the award of facet injections, and affirm the remainder of the order.

Claimant was injured on October 21, 2012, in a work-related motor vehicle accident; the E/C stipulated to compensa-bility. Authorized pain management specialist Dr. Slobasky recommended bilateral cervical facet medial branch blocks, and in deposition attributed seventy percent of Claimant’s need for those facet injections to a non-work-related degenerative condition of Claimant’s spine, which Claimant’s family doctor had found before the work accident and characterized as “usual findings in a patient of 44 years of age.” The JCC, in awarding the facet injections, accepted Dr. Slobask/s percentages, but discounted them on the reasoning that the degenerative condition was “normal, aging,” and cited in support Bysczynski v. United Parcel Services, Inc., 53 So.3d 328 (Fla. 1st DCA 2010). The JCC’s order evinces his misunderstanding of Bysczyn-ski

As we recently clarified in Osceola County School Board v. Pabellon-Nieves, 152 So.3d 733, 734 (Fla. 1st DCA 2014), “it does not matter whether a preexisting condition is ‘age-appropriate;’ what matters is whether there is medical evidence that it is the major contributing cause of the need for the requested treatment.” In By-sczynski; the preexisting degeneration “did not ... independently require any level of treatment either- before or after Claimant’s two compensable accidents.” 53 So.3d at 331. In contrast, in the instant case there is medical evidence that the preexisting degeneration is the major contributing cause of the current need for facet injections, and that evidence was accepted by the JCC; therefore, the JCC erred in awarding the facet injections. We affirm the other issue on appeal without further comment.

On the cross-appeal, we note that, given the JCC’s unchallenged finding that care provided by Dr. Roush is compensa-ble, the JCC erred in excluding, under section 440.13(5)(e), Florida Statutes, Dr. Roush’s medical opinion testimony that the diskectomy and fusion surgery is needed. See Romano v. Trinity Sch. for Children, 43 So.3d 928 (Fla. 1st DCA 2010); see also Miller Elec. Co. v. Oursler, 113 So.3d 1004 (Fla. 1st DCA 2013); Parodi v. Fla. Contracting Co., Inc., 16 So.3d 958 (Fla. 1st DCA 2009).

This error is harmless, however, given the JCC’s alternative finding that he would reject Dr. Roush’s opinion in light of Dr. Slobasky’s opinion that the facet joints (and not the disks) are the primary pain generator in Claimant’s neck. Even though Dr. Roush’s opinion on this matter is unrefuted, the JCC was permitted to reject it because the JCC gave a reason, see Vadala v. Polk County School Board, 822 So.2d 582, 584 (Fla. 1st DCA 2002), and the reason he gave, which is supported by the record, “is a reasonable evidentiary basis for doing so,” see Trejo-Perez v. Arry’s Roofing, 141 So.3d 220, 223 (Fla. 1st DCA 2014) (citing Wald v. Grainger, 64 So.3d 1201 (Fla.2011)).

AFFIRMED in part, REVERSED in part, and REMANDED for entry of an order denying the claim for facet injections.

THOMAS, WETHERELL, and ROWE, JJ., concur.