text:
    RAYMOND JAMES FINANCIAL SERVICES, INC., Appellant, v. Barbara J. PHILLIPS, as Trustee of the Barbara J. Phillips Trust, and as Guardian to Walter R. Phillips, Jennifer L. Phillips, Individually, and as Trustee of the Barbara J. Phillips Flite Trust; and Margaret K. Camp, Appellees.
    No. 2D10-2144.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2011.
    George L. Guerra and Dominique H. Pearlman of Wiand Guerra King, P.L., Tampa, for Appellant.
    Robert J. Pearl of The Pearl Law Firm, P.A., Naples, for Appellees.
    Scott C. Ilgenfritz of Johnson, Pope, Bo-kor, Ruppel & Burns, LLP, Tampa; and Carl J. Carlson of Carlson & Dennett, P.S., Seattle, Washington, for Amicus Curiae The Public Investors Arbitration Bar Association.
   PER CURIAM.

Raymond James Financial Services, Inc. (Raymond James), appeals the trial court’s final declaratory judgment which found that the arbitration claims of Barbara J. Phillips, as trustee of the Barbara J. Phillips Trust and as a guardian to Walter R. Phillips; Jennifer L. Phillips, individually and as trustee of the Barbara J. Phillips Flite Trust; and Margaret K. Camp (collectively, Account Holders) were not barred by Florida’s statutes of limitations. Because the circuit court correctly determined that arbitrations are not “actions” or “proceedings” for purposes of section 95.011, Florida Statutes (2005), we affirm. In doing so, we choose to discuss only one of the issues raised by Raymond James.

I. Facts and Procedural History

The Account Holders executed client agreements with Raymond James for investment purposes. Pursuant to the provisions of the client agreements, the Account Holders were required to submit any disputes with Raymond James to the National Association of Securities Dealers, Inc. (NASD), for arbitration. Section 10304, the applicable NASD Code of Arbitration Procedure, provides a time limit upon submissions for arbitration. It states in pertinent part:

(a) No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the ... claim.
(b) This Rule shall not extend applicable statutes of limitations; nor shall the six-year time limit ... apply to any claim that is directed to arbitration by the court.

The client agreement also provided:

(d) Nothing in this agreement shall be deemed to limit or waive the application of any relevant state or federal statute of limitation, repose or other time bar. Any claim made by either party to this agreement which is time barred for any reason shall not be eligible for arbitration. The determination of whether any such claim was timely filed shall be by a court having jurisdiction, upon application by either party.

In November 2005 the Account Holders filed arbitration claims with NASD. The Account Holders’ grievances may briefly be summarized as claims of negligence; misconduct, including breaches of fiduciary duty; and state and federal securities violations. In response to the Account Holders’ claims, Raymond James filed a motion to dismiss, asserting that the Account Holders’ claims were barred by the limitations periods in chapter 95, Florida Statutes (2005). The Account Holders then invoked the provision in the arbitration agreement which stated that timeliness issues would be decided by the court, and they filed an action in the circuit court of Collier County seeking a declaratory judgment. The Account Holders argued that Florida’s statutes of limitations do not apply to arbitration proceedings. The circuit court agreed and issued a final declaratory judgment stating that Florida’s statutes of limitations were not applicable to the Account Holders’ arbitration claims as a matter of law. The court reasoned that the Florida Supreme Court’s decision in Miele v. Prudential-Bache Securities, Inc., 656 So.2d 470, 472 (Fla.1995), determined that arbitrations are not “actions” or “proceedings.” This appeal followed. We believe the issue before us is one of first impression in Florida.

II. Analysis

“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007). Likewise, a trial court’s ruling on a motion for declaratory relief is subject to de novo review. Schneberger v. Schneberger, 979 So.2d 981, 982 (Fla. 4th DCA 2008). The issue in this case is a legal issue concerning statutory interpretation. The question is narrow: whether Florida’s statutes of limitations are applicable to arbitration claims when the parties have not expressly included a provision in their arbitration agreement stating that they are applicable.

The language of the contract at issue in this ease does not expressly state that Florida’s statutes of limitations apply to the arbitration claims. Instead, the language states that the contract will not “limit or waive the application of any relevant state or federal statute of limitation.” The Account Holders argue, and we agree, that this phrase does not affirmatively incorporate Florida’s statutes of limitations into the agreement. The phrase indicates that Raymond James did not intend to waive any relevant statute of limitations defenses. Thus, we must determine whether Florida’s statutes of limitations are relevant to arbitration claims. We are not alone in making this determination. See Broom v. Morgan Stanley DW Inc., 169 Wash.2d 281, 236 P.3d 182, 187 (2010) (“We determine independently whether our state statutes of limitations may apply to arbitral proceedings.”).

“As with any case of statutory construction, we begin with the ‘actual language used in the statute.’ ” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006)). “This is because legislative intent is determined primarily from the statute’s text.” Id. (citing Maggio v. Fla. Dep’t of Labor & Employment Sec., 899 So.2d 1074, 1076-77 (Fla.2005)). “It is appropriate to refer to dictionary definitions when construing statutes or rules.” Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116, 1122 (Fla.2008). If “ ‘the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Id. at 1121-22 (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). However, if the language is ambiguous and capable of differing meaning, then the court must use the rules of statutory construction to resolve the ambiguity. Id. at 1122. Thus, when the language is ambiguous and “ ‘[i]n the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term.’” Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So.3d 742, 748 (Fla. 2d DCA 2010) (quoting Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270 (Fla. 4th DCA 2001)).

A. Section 95.011, Florida Statutes (2005)

Section 95.011 provides, “A civil action or proceeding, called ‘action’ in this chapter, ... shall be barred unless begun within the time prescribed in this chapter....” (Emphasis added.) There is nothing within chapter 95 which defines the terms “civil action” or “proceeding.” Thus, we turn to the dictionary definition of these terms. Black’s Law Dictionary defines “civil action” as “[a] civil suit stating a legal cause of action and seeking only a legal remedy.” Black’s Law Dictionary, 31 (8th ed. 2004). It defines “proceeding” as “[a]ny procedural means for seeking redress from a tribunal or agency,” “[t]he business conducted by a court or other official body,” and “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Id. at 1241. Because neither the actual language of the statute nor the dictionary definition include the term arbitration, the meaning of the words “civil action” or “proceeding” do not convey a clear and definite meaning, and we must resort to the principles of statutory construction.

Section 95.011 was enacted in 1974 and included the terms “civil action” and “proceeding.” Ch. 74-882, § 1, Laws of Fla. With one exception, the limitations statutes in effect prior to that time did not contain the word “proceeding.” Even the sole exception — for “proceedings” involving children born out of wedlock — contemplated an action brought in court. § 742.011, Fla. Stat. (1973). Thus, it appears that the legislature’s addition of the term “proceeding” to section 95.011 was done purposefully. However, there is nothing in the legislative history indicating that the words “civil action” or “proceeding” are applicable to arbitration, so we must resort to case law to interpret these terms.

B. Case Law

Because the phrase “civil action” appears prior to the word “proceeding,” we address “civil action” first. Here, the circuit court based its ruling on Miele. Although the Miele opinion is not a statute of limitations case, the language of the case supports the circuit court’s finding that arbitrations are not “actions.” The Miele court considered whether section 768.73, Florida Statutes (1991), which addressed limitations on punitive damage awards, applied to arbitration proceedings. Section 768.73 provided, in pertinent part, that it applied to “any civil action” that fell within certain categories of tort actions. Finding “that the plain meaning of ‘civil action’ must be derived from the context in which the language lies,” the court held that the term “civil action,” as used in the statute, was limited to proceedings “filed in a court” and did not include arbitration. Id. at 472. The court concluded that arbitration is “an alternative to the court system.” Id.

Although the Florida Supreme Court has never expressly receded from Miele, at least one Florida court has attempted to limit its scope. Like Miele, Martin Day-tona Corp. v. Strickland Construction Services, 941 So.2d 1220 (Fla. 5th DCA 2006), is not a statute of limitations case, but it is instructive in considering the application of Florida’s statutes to arbitration. Martin Daytona filed suit against Strickland Construction to recover an unpaid debt. The parties’ contract contained two significant provisions, an arbitration clause and a prevailing party attorneys’ fees clause. After Martin Daytona prevailed in the arbitration, it petitioned the circuit court to confirm the award and grant its motion for fees. Strickland Construction filed an objection to Martin Daytona’s motion for fees, arguing that the motion was untimely pursuant to Florida Rule of Civil Procedure 1.525. Martin Daytona responded that the civil procedure rule did not apply to arbitrations. The circuit court subsequently denied the motion for fees, and Martin Daytona appealed. The Fifth District concluded that under section 682.11, Florida Statutes (2005), arbitrators are prohibited from awarding attorneys’ fees unless the parties, in the arbitration agreement, expressly waive their right to have this issue decided by a court of law. 941 So.2d at 1223. The Martin Daytona agreement provided only that the arbitrator could determine who the prevailing party was for purposes of an eventual fee award. Id.

The court then addressed Martin Dayto-na’s argument that because Florida Rule of Civil Procedure 1.010 provides that the rules of civil procedure “apply to all actions of a civil nature,” rule 1.525 was inapplicable to the arbitration. Id. at 1224. The court concluded that the term “actions of a civil nature” included motions for fees and costs that are based on awards emanating from arbitration but which are filed in circuit court. Id. at 1225. Though acknowledging the holding in Miele, the Fifth District found that the legislature had “a different view from that adopted by the court in Miele regarding the issue [of] whether arbitration proceedings are ‘civil actions’ within the meaning of section 768.73.” Id. The Fifth District reasoned that the legislature’s 1999 enactment of section 768.737, subsequent to the Miele decision, made clear its intent that section 768.73 governs arbitration as well as proceedings before the courts. Section 768.737 provides, “Where punitive damages are available as a remedy in an arbitration proceeding, ss. 768.72, 768.725 and 768.73 apply.” Based on this, the Fifth District concluded the amendment “militates in favor of the view that the term ‘actions of a civil nature’ in rule 1.010 includes motions for fees and costs filed in the Circuit Court that are based on awards emanating from arbitration proceedings.” Id. Having determined that rule 1.525 applied to the arbitration proceedings below, the court found that Martin Daytona’s motion was timely, and it remanded the matter for a determination of the amount of fees to be awarded. 941 So.2d at 1225-26.

We have no quarrel with the outcome of Martin Daytona. As noted, the action began as a civil lawsuit in circuit court, a matter clearly within the scope of rule 1.010. It was only after the action had been filed that it was referred, pursuant to the parties’ contract, to an arbitrator. Moreover, such referral did not put an end to the action because it had to be confirmed by the circuit court, and the circuit court alone could determine entitlement to fees and the amount thereof.

We cannot agree, however, that the enactment of section 768.737 represented a complete repudiation of Miele and certainly not a legislative directive that all arbi-trations are in fact “civil actions.” Section 768.73(2) was part of the 1986 Tort Reform and Insurance Act and reflected a philosophy that punitive damage awards can represent a windfall for the successful plaintiff even if such awards are otherwise appropriate to deter egregious misconduct on the part of the party being sued. Gordon v. State, 608 So.2d 800, 801-02 (Fla.1992). We consider section 768.737 to have been a legislative clarification of the punitive damages provision, the scope of which had previously been uncertain. To read more into it is unwarranted. Had the legislature been particularly concerned that the historic distinction between arbitrations and civil actions was leading to unjust results, it could have gone much further, including amending Florida’s statutes of limitations. In short, Martin Daytona does not compel the result Raymond James asks us to reach.

We acknowledge that the trial court incorrectly relied on the Miele decision when it stated that Miele determined arbitra-tions are not “proceedings.” There is nothing in Miele or any decisions subsequent to Miele which deals with the interpretation of the term “proceeding.” However, we do not find the word “proceeding” indicative of a legislative intent to apply Florida’s statutes of limitations to arbitration; thus, the trial court’s decision was proper.

The phrase used in section 95.011 is “civil action or proceeding.” We find this phrase to mean a court proceeding and not arbitration. If the legislature intended for the term “proceeding” to apply to arbitration, it could have defined “proceeding” to include an arbitration or it could have expressly included the word arbitration within section 95.011. Raymond James’ position that the phrase “or proceeding” means “arbitration” is a strained reading of the statute. This is especially true in light of the fact that the Florida Arbitration Code was enacted in 1957, which is prior to the enactment of section 95.011. Thus, the legislature was aware of arbitration and could have expressly included the term if it intended for Florida’s statutes of limitation to apply to arbitration. This interpretation of the term “proceeding” is also consistent with case law from other states, reflecting a traditional notion of a “proceeding.” See, e.g., Mellen v. Knotts, 125 Ind.App. 118, 119 N.E.2d 20, 23 (1954) (discussing the form and manner of conducting judicial business before court or judicial officers); Queens-Nassau Transit Lines v. Maltbie, 188 Misc. 924, 51 N.Y.S.2d 841, 845 (N.Y.App.Div.1944) (discussing matters pending before judicial tribunals, quasi-judicial officers, and boards); Lane Cnty. v. Bristow, 179 Or. 653, 173 P.2d 954, 959 (1946).

Absent a more specific reference to arbi-trations in section 95.011, and without a clear indication of legislative intent otherwise or case law which interprets this issue, it is too much of a stretch to conclude that the legislature was motivated by a desire to extend our state’s limitations periods to such “proceedings.” See Holly, 450 So.2d at 219; Bill Smith, Inc. v. Cox, 166 So.2d 497, 498 (Fla. 2d DCA 1964). This is supported by the fact that some states’ limitations statutes expressly include the term arbitration. See Weintraub, When Do Statutes of Limitations Apply in Arbitration?, 81 Fla. Bar J. 25, 25 (2007) (citing New York’s and Georgia’s statutes of limitation as examples). In the absence of such inclusion, most jurisdictions that have considered the question do not read into their limitations statutes any implicit extension to arbitrations, given that they are not generally regarded as “proceedings.” Id.

Raymond James also cites O’Keefe Architects, Inc. v. CED Construction Partners, Ltd., 944 So.2d 181 (Fla.2006), as an acknowledgment by the Florida Supreme Court that arbitrations in Florida are subject to Florida’s limitations provisions. This is not so. Rather, the opinion determines only who decides the limitations question. In essence the trial court’s task “is a matter of contract interpretation.” 944 So.2d at 183. In O’Keefe Architects, the parties’ contractual arbitration provision was quite specific, providing that claims should be filed “within a reasonable time after the claim, dispute!,] or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim ... would be barred by the applicable statute of limitations.” Id. at 184. The limitations issue was argued before the arbitrators, who ruled adversely to O’Keefe Architects. O’Keefe Architects petitioned for declaratory relief, but the trial court determined that the limitations question was a factual matter for the arbitrators to decide. Id. at 185. Chapter 682, Florida Statutes (2005), generally empowers Florida courts to determine only issues of “arbitrability.” Id.; O’Keefe Architects, Inc. v. CED Constr. Partners Ltd., 909 So.2d 370 (Fla. 5th DCA 2005). In sum, neither the Fifth District nor the supreme court in O’Keefe Architects reached the limitations issue on its merits but held only that the parties had made a contract in which this decision was relegated to the arbitrators.

By contrast, the client agreement between Raymond James and the Account Holders states that “the determination of whether any ... claim was timely filed shall be by a court having jurisdiction, upon application of either party.” That is, the parties specifically contracted for a determination by the local trial court, not the arbitrator(s). We are in agreement with the opinion recently expressed by the Washington Supreme Court in Broom. There, the parties’ contract reserved the limitations issue for the arbitration panel and stated only that NASD’s rules would apply. The panel then applied Washington law, which disfavored the investors. Even though the NASD code permits arbitrators to apply state statutes of limitations, the Washington court overturned the decision in this particular case due to the lack of sufficient specificity in the contract. 286 P.3d at 188. Similarly, the language of the Raymond James agreement appears to us to be a “one-size-fits-all” clause suitable for use nationwide. To whatever extent it may be viewed as ambiguous, any doubts are properly resolved against the drafter. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000).

III. Conclusion

In sum, Raymond James did not expressly include the Florida statutes of limitations in the contract. Since the contract is construed against the drafter and since the language of the statute does not state that it applies to arbitration, we hold that Florida’s statutes of limitations do not apply to arbitrations where the arbitration agreement does not expressly provide for their application. Thus, the trial court correctly determined that Florida’s statutes of limitation do not bar the Account Holders’ claims. However, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question, which we believe to be of great public importance:

DOES SECTION 95.011, FLORIDA STATUTES, APPLY TO ARBITRATION WHEN THE PARTIES HAVE NOT EXPRESSLY INCLUDED A PROVISION IN THEIR ARBITRATION AGREEMENT STATING THAT IT IS APPLICABLE?

Affirmed.

BLACK, J., and RAIDEN, MICHAEL E., ASSOCIATE JUDGE, Concur.

KELLY, J., Dissents.

      . In July 2007 NASD was consolidated with the member regulation, enforcement, and arbitration functions of the New York Stock Exchange and the Financial Industry Regulatory Authority (FINRA) was created. Raymond James is a member of FINRA.

      . The appropriateness of the chosen forum, the circuit court of Collier County, is not contested.

      . Washington is among those jurisdictions that have held "a catch-all statute of limitations [does] not apply to arbitrations.” Broom, 236 P.3d at 187.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric W. SHULTZ, Former Husband, Appellant, v. Jeanne SHULTZ, Former Wife, Appellee.
    No. 1D12-0237.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2012.

      Brian P. North and Nick James, Gaines-ville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We conclude that the trial court erred in denying the appellant’s petition to disestablish paternity. He proved by un-rebutted scientific evidence that he was not the biological father of the two children born during his marriage to the ap-pellee. Consequently, he has no enforceable legal obligation to make child support payments to the appellee. See Daniel v. Daniel, 695 So.2d 1253 (Fla.1997). We share the trial court’s concern regarding the legitimacy of the children, but legitimacy and paternity are distinct concepts. A child born during the course of a valid marriage is legitimate even if a paternity test conclusively establishes that the husband or former husband is not the biological father. See Daniel; Ferradaz v. Ortiz, 754 So.2d 867 (Fla. 3d DCA 2000).

For these reasons, we reverse with instructions to enter a new final judgment of dissolution that reflects that the appellant is not the father of the children. The new judgment must contain no provision impos- ■ ing a legal obligation on the appellant to make child support payments to his former spouse for the one child who is still a minor. Both of the children retain their status as legitimate children.

Reversed.

BENTON, C.J., PADOVANO, and ROBERTS, JJ., Concur.


text:
    Terronious D. DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3418.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.
    Rehearing Denied April 25, 2013.
    Terronious D. Dixon, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because appellant’s petition for writ of habeas corpus was not filed in the sentencing court, the trial court lacked jurisdiction to address it. See, e.g., Epps v. McNeil, 37 So.3d 923, 923 (Fla. 1st DCA 2010); Zuluaga v. State, Dep’t of Corrs., 32 So.3d 674, 677 (Fla. 1st DCA 2010). We affirm the trial court’s denial of the petition on that basis, without prejudice to appellant’s right to file a proper post-conviction motion in the appropriate court.

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.


author: ALTENBERND, Judge.

text:
    SPRING LAKE NC, LLC; SBK Capital, LLC; Clear Choice Health Care, LLC; Samuel B. Kellett; Jeffrey E. Cleveland; Deborah P. Kennedy; Geoffrey R. Fraser; and Jason Canlas (as to Spring Lake Rehabilitation Center), Appellants, v. Tony HOLLOWAY, as Personal Representative of the Estate of Jessie V. Holloway, Deceased, Appellee.
    No. 2D12-2140.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.
    Rehearing Denied March 20, 2013.
    James D. Moriarty, Melissa M. Bur-ghardt, Brian M. Bursa, and Kirsten K. Ullman of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellant.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

The appellants, collectively referred to as “Spring Lake,” appeal an order denying their motion to compel arbitration in a wrongful death action arising from Jessie V. Holloway’s stay at Spring Lake’s rehabilitation center. The trial court refused to enforce the arbitration agreement that Ms. Holloway signed when she entered the center. We must reverse this order.

The facts involved in this case are not complex. Ms. Holloway was a resident at the Spring Lake rehabilitation center from August 20, 2010, to January 4, 2011. When she entered the facility, she executed a standard resident admission and financial agreement and a separate arbitration agreement. At the time, she was 92 years old and had a fourth-grade education. She could not spell well and often had to sound out words while reading. She had memory problems and was increasingly confused. There is no evidence that the admissions staff at Spring Lake used any improper methods to obtain Ms. Holloway’s signature or that she was misled in any fashion.

The trial court declined to find that Ms. Holloway was incompetent or incapacitated to enter into a contract at the time of her admittance. It was persuaded, however, that the contracts were so complex that she could not possibly have understood what she was signing. Accordingly, it ruled that there was no meeting of the minds between the parties and that the arbitration clause was unenforceable.

We have little doubt that the trial court correctly assessed Ms. Holloway’s ability to understand these documents. For better or worse, her limited abilities are not a basis to prevent the enforceability of this contract. In a very similar case, this court explained:

As a general proposition, “[w]here one contracting party signs the contract, and the other party accepts and signs the contract, a binding contract results.” D.L. Peoples Group, Inc. v. Hawley, 804 So.2d 561, 563 (Fla. 1st DCA 2002) (citing Skinner v. Haugseth, 426 So.2d 1127, 1129 (Fla. 2d DCA 1983)); see also Mandell v. Fortenberry, 290 So.2d 3, 7 (Fla.1974) (“There is a presumption that the parties signing legal documents are competent, that they mean what they say, and that they should be bound by their covenants.”); Dodge of Winter Park, Inc. v. Morley, 756 So.2d 1085, 1085-86 (Fla. 5th DCA 2000) (“Generally, it is enough that the party against whom the contract is sought to be enforced signs it.”). Thus, “[a] party normally is bound by a contract that the party signs unless the party can demonstrate that he or she was prevented from reading it or induced by the other party to refrain from reading it.” Consol. Res. Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500, 504 (Fla. 4th DCA 2003); see also Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347-48 (Fla.1977) (“It has long been held in Florida that one is bound by his contract. Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding.”) Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., 891 So.2d 558, 558 (Fla. 3d DCA 2004) (holding that the fact that the decedent was legally blind when she signed the arbitration agreement did not render the agreement invalid in the absence of evidence that she was coerced into signing it or prevented from knowing its contents). This is true whether a party is physically unable to read the agreement, see Estate of Etting, 891 So.2d at 558, or simply chooses not to read the agreement, see Fenelus, 853 So.2d at 504.

Rocky Creek Ret. Props., Inc. v. Estate of Fox ex rel. Bank of Am., N.A., 19 So.3d 1105, 1108 (Fla. 2d DCA 2009); see also SA-PG Sun City Ctr., LLC v. Kennedy, 79 So.3d 916, 920 (Fla. 2d DCA 2012) (reaffirming that a party’s alleged inability to understand an agreement does not vitiate her assent to that agreement in the absence of some evidence that she was prevented from knowing its contents).

As a practical matter, a significant percentage of the people who enter nursing homes and rehabilitation centers have mental or physical limitations that make it difficult for them to understand the agreements signed at admittance. The agreements are sufficiently complex that many able-bodied adults would not fully understand the agreements. The same is probably true for most of the contracts that we sign for many consumer services and even for the agreements clients sign when they hire attorneys.

There was a time when most contracts were individually negotiated and handwritten. In that period, perhaps the law could adequately describe a mutual agreement as a “meeting of the minds” between the parties. But a literal “meeting of the minds,” requiring both parties to have a comparable, subjective understanding of their agreement is clearly not what the courts intend by the use of this phrase. Our modern economy simply could not function if a “meeting of the minds” required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated between the parties. Without suggesting that the contract in this case is abusive in any fashion, the law must address abuses in standardized contracts by rules other than the “meeting of the minds.”

We note that the. issue addressed in Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211 (Fla. 2d DCA 2012), has also been raised in this appeal. That issue was not the basis of the trial court’s ruling, and we do not reach the issue today.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      . While case law still uses the phrase "meeting of the minds,” especially when the specific terms of an agreement are actually negotiated between the parties, see, e.g., Lunas v. Cooperativa de Seguros Multiples de P.R., 100 So.3d 239, 241 (Fla. 2d DCA 2012), criticism has prompted courts to analyze contracts as requiring a "mutuality of assent,” as a more objective concept. See 30 Williston on Contracts § 75:30 (4th ed. 2012) (noting that the expression, "meeting of the minds” has been repeatedly criticized as obsolete and archaic).


author: VILLANTI, Judge.

text:
    Taylor VAN WEELDE, Appellant, v. Emily VAN WEELDE, Appellee.
    No. 2D11-4277.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.
    Rehearing Denied April 17, 2013.

      N. Burton Williams, Tampa, for Appellant.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Taylor Van Weelde (the Husband) seeks review of the final judgment of dissolution of his marriage to Emily Van Weelde (the Wife). The Husband takes issue only with the court’s earlier order granting the Wife’s motion for summary judgment and thereby “de-legitimizing” R.D.W., the Wife’s four-year-old son of whom the Husband is the legal — but not biological — father. Because the trial court used the incorrect legal standard when determining whether to grant the motion for summary judgment, we must reverse and remand for further proceedings.

When the Husband and Wife first met, the Wife was already pregnant with R.D.W. There is no dispute that the Husband is not the biological father of R.D.W. However, the Husband was present at R.D.W.’s birth in 2006, the Husband is named on R.D.W.’s birth certificate as the father, and the Husband and Wife both signed a voluntary Acknowledgement of Paternity pursuant to section 382.013(2)(c), Florida Statutes (2006), naming the Husband as R.D.W.’s father.

The Husband and Wife married when R.D.W. was approximately sixteen months old. For the entirety of R.D.W.’s life, the Husband has been held out as his father, and the Husband is the only father R.D.W. has ever known. R.D.W.’s alleged biological father is reportedly living in Texas, has had no contact with R.D.W. at any time since his birth, and has done nothing to support R.D.W.

When the Wife filed her petition for dissolution of marriage, she alleged that there were no minor children born of the marriage. The Wife’s sole basis for this allegation was that the Husband was not the biological father of R.D.W. In his answer and counterpetition, the Husband admitted that he was not R.D.W.’s biological father, but he argued that he is the legal father of R.D.W. and that both he and R.D.W. have the right to maintain that legal status. Nevertheless, the trial court granted the Wife’s motion for summary judgment on this issue, concluding that the Husband’s admission that he is not the biological father of R.D.W. was dispositive of the matter. Thus, the trial court denied the Husband’s request for a time-sharing schedule and a determination of child support and effectively “de-legitimized” R.D.W. The Husband now appeals this ruling.

In making its ruling on the Wife’s motion for summary judgment, the trial court did not consider whether the Husband was the legal father of R.D.W. But, despite the Wife’s arguments to the contrary, the Husband is, in fact, the legal father of R.D.W. When R.D.W. was born, the Husband and Wife both signed a sworn voluntary Ac-knowledgement of Paternity in accordance with section 382.013(2)(c). That section provides, in pertinent part,

If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate •without the execution of an affidavit signed by both the mother and the person to be named as the father. The facility shall give notice orally or through the use of video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights, including, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from signing an acknowledgment of paternity, as well as information provided by the Title IV-D agency established pursuant to s. 409.2557, regarding the benefits of voluntary establishment of paternity. Upon request of the mother and the person to be named as the father, the facility shall assist in the execution of the affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2).

(Emphasis added.) Section 742.10, Florida Statutes (2006), sets forth the legal ramifications of a signed voluntary Acknowl-edgement of Paternity. It provides, in pertinent part:

[WJhen an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.0IS or s. 382.016 is executed by both parties, or when paternity is adjudicated by the Department of Revenue as provided in s. 409.256, such adjudication, affidavit, or acknowledgment constitutes the establishment of paternity for purposes of this chapter. If no adjudicatory proceeding was held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2) shall create a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

§ 742.10(1) (emphasis added). Subsection (4) provides that after the sixty-day period referenced in subsection (1) has passed, “a signed voluntary acknowledgement of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.” § 742.10(4) (emphasis added). In addition, subsection (5) provides that “[¡judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowl-edgement of paternity.” § 742.10(5). Nothing in either section 382.013(2)(c) or section 742.10 requires that the person signing the voluntary Acknowledgement of Paternity be the child’s biological father. Instead, the statutes create a mechanism for establishing legal paternity regardless of biology.

Here, both the Husband and Wife signed a voluntary Acknowledgement of Paternity pursuant to section 382.013(2)(c) when R.D.W. was born, and neither of them challenged that Acknowledgement during the sixty-day period provided for in the statute. Thus, this unchallenged voluntary Acknowledgement of Paternity established the Husband’s paternity of R.D.W. He was neither required nor permitted to take action under chapter 742 to further establish his paternity. Nor was he required or permitted to take steps to adopt R.D.W. Instead, once the voluntary Acknowledgement of Paternity was signed and the Husband’s name was placed on R.D.W.’s birth certificate, the Husband became R.D.W.’s legal father for all purposes. As a child with both a mother and father named on his birth certificate, R.D.W. was a legitimate child. And this became even more true when the Husband and Wife subsequently married. See § 742.091 (providing that if the mother of a child born out of wedlock and the reputed father marry after the child is born, the child “shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock”).

Nevertheless, despite the Husband’s status as R.D.W.’s legal father, the trial court granted the Wife’s motion for summary judgment based solely on biology and with no consideration of either the Husband’s rights or those of R.D.W. This was clearly error. Twenty years ago, the Florida Supreme Court stated that “the presumption of legitimacy is based on the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child.” Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993). The court recognized that “[o]nce children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests.” Id. Moreover, “[t]he child’s legally recognized father likewise has an unmistakable interest in maintaining the relationship with his child unim-pugned.” Id. Thus, “there must be a clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.” Id. at 309 (underline emphasis added). And the burden of proof required to overcome this presumption is equivalent to that needed to terminate the legal father’s parental rights because the proceedings “will have the effect of vesting parental rights in the putative natural father and removing parental rights from the legal father.” Id. at 309 n. 7.

Here, the trial court erred by focusing solely on biology and failing to consider whether there was a clear and compelling reason based on RJD.W.’s best interests to overcome his presumption of legitimacy and to remove the Husband’s rights as his legal father. Because the trial court used the incorrect legal standard, it did not consider whether it was in R.D.W.’s best interests to “de-legitimize” him, and the Wife’s desire to dissolve her marriage to the Husband, standing alone, is not a clear and compelling reason to do so. This legal error requires this court to reverse and remand for the trial court to reconsider the issue of the Husband’s rights as R.D.W.’s legal father under the correct legal standard.

In this appeal, as she did in the trial court, the Wife contends that the Husband’s fraud in signing the voluntary Ac-knowledgement of Paternity when he was not the biological father prevents him from enforcing his rights. She points to section 742.10(4), which provides that a voluntary Acknowledgement of Paternity creates only a rebuttable presumption of paternity that can be challenged based on fraud or mistake. She argues that the Husband committed fraud when he signed the voluntary Acknowledgement of Paternity knowing that he was not the biological father and that this fraud eliminates his rights as the legal father. There are three problems with this argument.

First, as noted above, section 382.013(2)(c) does not require that the “person to be named as the father” be the biological father. Thus, it is not clear that the Husband’s signature on the voluntary Acknowledgement of Paternity constituted fraud in the first instance.

Second, the Wife also signed the voluntary Acknowledgement of Paternity with full knowledge that the Husband was not the biological father, and thus she was complicit in any alleged fraud. In such circumstances, a parent may be estopped from challenging the validity of the ac-knowledgement of paternity. See, e.g., Allison v. Medlock, 983 So.2d 789, 790-91 (Fla. 4th DCA 2008) (holding that mother could not establish fraud against man who had signed a voluntary acknowledgement of paternity because the mother also voluntarily signed the acknowledgement knowing that the man was not the father and thus since she was complicit in the fraud she could not now benefit from it); of. Barroso v. Respiratory Care Servs., Inc., 518 So.2d 373, 376-77 (Fla. 5th DCA 1987) (holding that a party guilty of committing fraud could not state a claim for fraud against another party who was complicit in the same fraudulent act).

Third, the Wife may be equitably es-topped from disputing the Husband’s paternity of R.D.W. at this point in time. In Privette, the supreme court noted that parents can be equitably estopped from disputing paternity when they have previously acknowledged the legal father’s paternity. 617 So.2d at 308 n. 3. Moreover, a legal father’s paternity may be ruled unassailable when “the legal father has established a mutually rewarding relationship with the child, he desires to continue exercising parental rights, he is supporting the child to the best of his ability, and maintaining the existing relationship is in the child’s best interests.” Id.

Here, the Wife spent the first four years of R.D.W.’s life acknowledging the Husband as R.D.W.’s father. The Husband was listed as the father with R.D.W.’s child care providers and health care providers. He was held out to all as the child’s father. More importantly, it appears that the Husband has established a mutually rewarding relationship with the child, he understandably desires to continue exercising parental rights, and he is supporting the child to the best of his ability. These facts would seem to support a finding that the Wife was equitably estopped from challenging the Husband’s status as the legal father in the first instance. Certainly, summary judgment was improper on this basis as the Wife failed to prove a negative, i.e., that it was not in R.D.W.’s best interest to maintain a relationship with his legal father. Cf. Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868-69 (Fla. 2d DCA 2011) (noting that “[t]he party moving for summary judgment has the burden to establish irrefutably that the nonmoving party cannot prevail were a trial to be held” and that the trial court’s sole function at the summary judgment stage is to determine whether the moving party has “proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact’ ” (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004))).

While we hold that the trial court erred in granting summary judgment in favor of the Wife, it is not this court’s role when a case is in this posture to determine whether the Husband should retain his legal rights to R.D.W. Instead, because the trial court applied the incorrect legal standard when considering the Wife’s motion for summary judgment, we must reverse and remand for the trial court to reconsider the motion using the correct legal standard. Moreover, in accordance with Privette, the trial court must appoint a guardian ad litem to represent R.D.W.’s interests in making this determination. 617 So.2d at 308 n. 5.

Reversed and remanded for further proceedings not inconsistent with this opinion.

WALLACE and MORRIS, JJ., Concur.


author: SILBERMAN, Chief Judge. DAVIS, Judge,

text:
    ANHLOAN TRAN, Appellant, v. ANVIL IRON WORKS, INC., a Florida corporation, and Kenneth Moulten, Appellees.
    No. 2D11-2819.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.
    Rehearing Denied April 10, 2013.

      Tony Griffith of Tanney & Griffith, P.A., Clearwater, and Celene H. Humphries and Tyler K. Pitchford of Brannock & Hum-phries, Tampa, for Appellant.
    Michael C. Clarke and Betsy E. Gallagher of Kubicki Draper, Tampa, for Appel-lees.
   SILBERMAN, Chief Judge.

Anhloan Tran appeals the circuit court order denying her motion for costs and attorney’s fees. Because we agree with the circuit court that Tran’s proposals for settlement are ambiguous, we affirm the denial of attorney’s fees. However, because there was no legal basis to deny Tran’s motion for costs, we reverse and remand as to that issue.

In March 2006, Anhloan Tran and Kenneth Moulten were involved in an automobile collision. Moulten was driving a car owned by his employer, Anvil Iron Works. In February 2008, Tran brought an action to recover damages for her injuries against Moulten and Anvil Iron. In October 2008, Tran served separate proposals for settlement on both Moulten and Anvil Iron. Paragraphs (A) through (D) of the proposal to Moulten provide as follows:

(A) This proposal is made by the Plaintiff, ANHLOAN TRAN, to the Defendant, KENNETH MOULTEN;
(B) This proposal is attempting to resolve all claims with respect to Plaintiff’s injury claim that are or may be made by Plaintiff, ANHL-OAN TRAN, against Defendant, KENNETH MOULTEN, in the instant action in which this proposal is made and as alleged by Plaintiffs pending Complaint, or that could be raised by Plaintiff as arising out of the incident or incidents which are the subject of Plaintiffs Complaint, including any claims for bad faith or punitive damages;
(C) The relevant conditions of this proposal are that Plaintiff will agree to a voluntary dismissal with prejudice of any and all claims against Defendant, KENNETH MOULTEN. A copy of the proposed Notice of Voluntary Dismissal With Prejudice that Plaintiff agrees to file with the Court upon acceptance of this proposal by the Defendant is attached to this Proposal for Settlement and marked as Exhibit “1” and incorporated herein by this reference;
(D) Plaintiff, ANHLOAN TRAN, proposes settlement of her injury claim to occur upon payment by Defendant, KENNETH MOULTEN, to Plaintiff, ANHLOAN TRAN, of the total sum of SIXTY THOUSAND ($60,000) DOLLARS.

Paragraphs (A) through (D) of the proposal to Anvil Iron are essentially the same, except that all references to Moulten were changed to refer to Anvil Iron. Attached to each proposal is a virtually identical notice of voluntary dismissal with prejudice that states, in pertinent part, as follows:

COMES NOW, the Plaintiff, ANHL-OAN TRAN, by and through her undersigned attorneys, and files this her Notice of Voluntary Dismissal With Prejudice as to the Defendant, KENNETH MOULTON and the Defendant, ANVIL IRON WORKS, INC., from any and all claims Plaintiff may have against Defendants, KENNETH MOULTON and ANVIL IRON WORKS, INC., including but not limited to any and all claims for compensatory damages, punitive damages and bad faith damages.

In short, each proposal for settlement states that if the proposal were accepted by the named defendant, Tran would dismiss all claims against that one named defendant, whereas the attached notices of voluntary dismissal reflect that Tran would dismiss all claims against both defendants.

Neither proposal was accepted, and the case went to trial. After the jury returned a verdict in Tran’s favor, the circuit court entered judgment against Moulten and Anvil Iron in the amount of $93,464.41. Tran then served a timely motion to tax costs pursuant to section 57.041, Florida Statutes (2005), and to tax attorney’s fees based on the unaccepted proposals for settlement, pursuant to section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442. Anvil Iron and Moulten opposed the motion, arguing that the proposals for settlement are ambiguous. The circuit court agreed and denied Tran’s entire motion. Specifically, the court found that “[ajlthough the two proposed Notices of Voluntary Dismissal with Prejudice indicated both defendants would be dismissed, the body of the Proposals For Settlement did not indicate that both defendants would be dismissed.” The circuit court did not give any reason for denying Tran’s motion for costs. This appeal followed.

I. ATTORNEYS’FEES

Section 768.79(1) provides in pertinent part as follows:

In any civil action for damages filed in the courts of this state, ... [i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.

Florida Rule of Civil Procedure 1.442(c)(2) provides that a proposal for settlement shall, in pertinent part, do the following:

(A)name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal.

Whether a proposal for settlement complies with the statute and rule is subject to de novo review. Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002). The statute and rule are punitive and must be strictly construed because they are in derogation of the common law. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003); Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 265 (Fla. 4th DCA 2000). The Florida Supreme Court elaborated on the particularity requirement as follows:

The rule intends for a proposal for judgment to be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions. Furthermore, if accepted, the proposal should be capable of execution without the need for judicial interpretation. Proposals for settlement are intended to end judicial labor, not create more.

State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006) (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002) (citation omitted)). The supreme court further explained:

[Gjiven the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.

Nichols, 932 So.2d at 1079. The particularity requirement also applies to releases and voluntary dismissals incorporated into a settlement proposal. See id. at 1078-79.

For the purposes of the particularity requirement, “an ambiguity is defined as ‘the condition of admitting more than one meaning.’ ” Mix v. Adventist Health Sys./Sunbelt, Inc., 67 So.3d 289, 292 (Fla. 5th DCA 2011) (quoting Saenz v. Campos, 967 So.2d 1114, 1117 (Fla. 4th DCA 2007)). Because of the strict construction requirement, “an ambiguous proposal is not enforceable.” Id.

On appeal, Tran argues that the proposals for settlement are unambiguous. She contends that the only meaning that could be given to the proposals and the attached notices of voluntary dismissal is that upon the acceptance of either proposal, Tran would dismiss any and all claims against the named defendant by executing the attached voluntary dismissal, which in turn would dismiss both defendants.

We disagree that this interpretation is the only meaning that can be given to the proposals and attachments. Although the proposed notices of voluntary dismissal state that any and all claims against both defendants would be dismissed, the language contained in the body of each proposal states only that any and all claims against the named defendant would be dismissed. The proposals themselves are silent as to the unnamed defendant. Thus, the documents are ambiguous: if a proposal for settlement were accepted, would Tran be obligated only to dismiss the claims against the defendant named in the settlement proposal or would Tran be obligated to dismiss the- claims against both defendants as indicated in the proposed notice of voluntary dismissal? This discrepancy between each proposal and the attached notice of voluntary dismissal could “reasonably affect the offeree’s decision.” Nichols, 932 So.2d at 1079. For example, one defendant might want to accept the proposal directed to it only if it knows for certain that its payment would result in the release of both defendants. This may be especially significant in a case such as this where one defendant is the employer/owner of the car and the other defendant is the employee who was driving the car.

Tran necessarily argues that the attached notices of voluntary dismissal should control over the body of the proposals. However, without giving additional weight to either the proposals or the notices of voluntary dismissal, it is unclear whether one defendant’s payment of $60,000 would secure the dismissal of the claims against both Anvil Iron and Moul-ten or just the defendant named in the proposal. And the fact that Tran argues that the wording of the notices of voluntary dismissal should control over the wording of the proposals themselves highlights the fact that there is an ambiguity between those documents.

The situation in this case is distinguishable from the Fourth District’s recent decision in Pratt v. Weiss, 92 So.3d 851 (Fla. 4th DCA 2012). Thei*e, the plaintiff sued two physicians and two corporate owners of the hospital where the physicians worked. Prior to trial, the owners of the hospital submitted a proposal for settlement to the plaintiff and attached a release and hold harmless agreement to the proposal. The plaintiff did not accept the proposal. Id. at 852-53.

After the hospital prevailed at trial, the corporate owners of the hospital sought attorney’s fees pursuant to the proposal for settlement. The plaintiff opposed the motion, arguing that the documents were ambiguous. The appellate court focused on language in the proposal that indicated settlement would resolve all claims against the corporate defendants and language in the release and hold harmless agreement that the agents of the two corporate defendants would also be released but that “[t]his Release does not in any way release other named Defendants.” Id. at 853.

The court rejected the claim that the documents were ambiguous. The court concluded that the wording in the proposal and the wording in the release and hold harmless agreement together specified that other named defendants would not be released and only unnamed agents of the hospital would be released. Id. at 854.

Here, each of Tran’s proposals states that the named defendant in that proposal would be dismissed from the lawsuit, while the notice of voluntary dismissal attached to the proposal provides that both defendants would be dismissed. The proposals and attached notices of voluntary dismissal facially conflict, and unlike in Pratt, they do not contain language that clearly resolves the conflict. Because the documents are in conflict, we agree with the trial court that they are ambiguous. Accordingly, we affirm the circuit court’s order insofar as it denies Tran’s motion for attorney’s fees.

II. COSTS

Section 57.041(1), Florida Statutes (2005), provides that “[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.” Tran prevailed at trial and was entitled to costs. Anvil Iron and Moulten concede that the trial court erred in denying Tran’s motion for costs. Accordingly, we reverse and remand to the trial court to determine the amount of taxable costs to be awarded to Tran.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

DAVIS, J., Dissents in part with opinion, concurs in part.

DAVIS, Judge,

Dissenting in part, concurring in part.

I respectfully dissent as to the affir-mance of the attorney’s fee issue but concur with the majority regarding the reversal as to court costs.

The majority concludes that the offer of settlement was ambiguous because although the offer was made to each defendant individually, the copy of the notice of dismissal that the plaintiff agreed to file with the court dismissed the case as to both of the named defendants. This difference between the wording of the offer and the attached notice, according to the majority, rendered the proposal unenforceable. I disagree.

The issue here is whether the recipient of the offer “can fully evaluate its terms and conditions” and whether, if the offer is accepted, it can be executed “without the need for judicial interpretation.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006) (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002)). The Nichols ’ court states the test as follows: “If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Id.

The plaintiffs action was against the tortfeasor/driver of the vehicle and his employer/owner of the vehicle. The plaintiff made separate offers of settlement to each of the individually named defendants. Both offers used similar language. To the individual defendants, the plaintiff offered to settle the case against the defendant to which the offer was directed for the payment of $60,000. That is, if the individual defendant paid $60,000, that defendant was assured that the case against that defendant would be voluntarily dismissed. However, the plaintiff also attached a copy of the notice of dismissal, which he contractually obligated himself to file with the court upon receipt of the specified sum. That notice did in fact release the individually named defendant and also dismissed the case against the other defendant.

The majority suggests that a reasonable interpretation of the plaintiffs offer and attached notice is that upon the acceptance of the offer by the named offeree, there would be a question as to whether the plaintiff would be obligated to dismiss only the named offeree or would be obligated to dismiss as to both defendants as specified in the attached notice. I disagree that a reasonable reading of the offer and attachment results in such a question. The offer specifically states that “[a] copy of the proposed Notice of Voluntarily Dismissal With Prejudice that the Plaintiff agrees to file with the Court upon the acceptance of this proposal by the Defendant is attached to this Proposal for Settlement and marked as Exhibit T and incorporated herein by this reference.” To suggest that an offeree could reasonably question whether the offeror will in fact comply with the specific terms of the offer is to suggest that all offers are ambiguous because such speculation could never be eliminated. The plain wording of the offer, that the attached notice of dismissal will be filed, is clear. The fact that the case is dismissed against both defendants and not just the offeree does not raise an issue of particularity. The offer is the attempt to settle with this named defendant. He, the named defendant, knows that upon acceptance of the offer, the case against him will be dismissed. Since this is not a joint offer but an individual offer, what more certainty can be required? The offer does not specify payment from any other person but the named defendant. There are no other contingencies that must be met. Thus, the offeree knows for certain that if he pays this amount, the case against him will be dismissed.

Accordingly, I disagree that the offeree in this case is unable to make a reasonable decision as to whether to accept this offer to resolve his individual liability to this plaintiff. I disagree with the majority that the ancillary promise in the attached notice to also dismiss the other named defendant in any way creates confusion in the mind of the named offeree as to whether his paying $60,000 to relieve his liability to the plaintiff is in his best interest. I would therefore reverse the trial court as to the attorney’s fee issue. But I would concur in the majority’s opinion as to the court costs.


author: PER CURIAM. MAKAR, J.

text:
    HILLSBOROUGH COUNTY SCHOOL BOARD/Broadspire, Appellants, v. John E. KUBIK, Appellee.
    No. 1D12-2165.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2013.
    Rehearing Denied April 19, 2013.

      Paulette Z. Brown of Barr, Murman & Tonelli, P.A., Tampa, for Appellants.
    Craig 0. Stewart of Morgan & Morgan, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Servicing Agent (E/SA) appeals an order of the Judge of Compensation Claims (JCC) to the extent it awards Claimant a one-time change of physician, under section 440.13(2)(f), Florida Statutes (2010), and denies the E/SA prevailing-party costs, under section 440.34(3). We affirm the award of a one-time change, without further comment. We reverse the denial of prevailing-party costs to the E/SA, and remand for further proceedings on that issue.

The JCC awarded Claimant some benefits (a period of temporary partial disability benefits, interest and penalties on that award, continued pain management care, and reimbursement of some bills), yet denied other claims for benefits (temporary total disability benefits, compensability of neck complaints, and authorization of some medical benefits). Then, despite the E/SA’s multiple requests (in both the responses to the petitions for benefits and the pre-trial stipulation) for an award of costs for the claims on which it prevailed, the JCC found “[Claimant was the prevailing party” and “E/SA was not the prevailing party,” and, accordingly, granted Claimant’s motion to tax costs and denied the E/SA’s motion to tax costs.

This ruling conflicts with the recent opinion in Aguilar v. Kohl’s Department Stores, Inc., 68 So.3d 356 (Fla. 1st DCA 2011). In Aguilar, this court explained that “the JCC is not limited to finding that only one party (or neither party) prevailed,” and held the order on review was both inconsistent, in that the JCC had awarded the claimant a benefit yet found “neither party was a prevailing party,” and premature, in that “[t]o determine which party prevailed, more specific evidence is needed than was available here.” Id. at 357-58. Similarly, here, the JCC either produced an inconsistent order by denying some of the disputed benefits yet finding the E/SA had not prevailed, or prematurely determined which party (or parties) prevailed without making clear she had considered (as mentioned in Aguilar ) “all claims presented, including those resolved ... pretrial.” Id. at 358. The error is not harmless, because cost awards to prevailing parties are mandatory and cannot be denied as a matter of discretion. See Punsky v. Clay County Bd. of County Comm’rs, 60 So.3d 1088, 1093 (Fla. 1st DCA 2011).

The appropriate remedy here is the remedy provided in Aguilar; accordingly, we remand this case for further proceedings to allow the parties to present evidence “of the specific costs incurred and both their reasonableness and their relevance to all claims presented, including those resolved ... pretrial.” Aguilar, 68 So.3d at 358 (referring to the procedures in Florida Administrative Code Rule 60Q-6.124). We further suggest that the interests of judicial efficiency would be better served in future cases if the JCC simply reserved ruling as to which party prevailed, and thus reserved ruling on both entitlement to and amount of prevailing-party costs until a full consideration of the relevant facts (as set forth in Aguilar) can be facilitated by the procedures in Florida Administrative Code Rule 60Q-6.124.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in accordance with this opinion.

CLARK and WETHERELL, JJ., Concur; MAKAR, J., Concurring in Part, Dissenting in Part.

MAKAR, J.

concurring in part, dissenting in part.

I concur in affirmance of the JCC’s order granting a one-time change of physician under section 440.13(2)(f), Florida Statutes. I cannot agree, however, that we should remand on the costs issue. It is a basic precept of error preservation that trial courts must be put on notice of alleged errors in their rulings so that they have an opportunity to correct them. Philip J. Padovano, Florida Appellate Practice § 8.1 (2013 ed.) (“A legal argument must be raised initially in the lower tribunal by the presentation of a specific motion or objection at the appropriate stage of the proceeding.”); Jack R. Reiter, Principles & Pitfalls of Preservation of Error, 78 Fla. B.J. 32, 32 (Nov. 2004) (“Requiring litigants to preserve error before the lower tribunal maintains the integrity of the judicial process by ensuring that the lower tribunal has the opportunity to correct errors.”). That did not occur here. The E/SA did not object to the JCC’s ruling on costs when it was made nor did it present to the JCC the legal argument it now makes for the first time on appeal.

That argument is based on Aguilar v. Kohl’s Department Stores, Inc., 68 So.3d 356, 358 (Fla. 1st DCA 2011), in which this Court explained that a JCC “is not limited to finding that only one party (or neither party) prevailed.” Aguilar was issued on August 23, 2011, which was seven months prior to the final hearing held on March 28, 2012 in this case. Adequate time existed to apprise the trial court of Aguilar; even if Aguilar had not issued, it was still incumbent upon the E/SA to assert an objection timely (as was done via a motion for rehearing in Aguilar ). See Holland v. Cheney Bros., Inc., 22 So.3d 648, 649 (Fla. 1st DCA 2009) (“Traditional rules of preservation of issues apply to workers’ compensation appeals.”).

The E/SA at no time, however, raised any objection below to the JCC’s denial of costs on the basis of Aguilar or its holding. Making a general request for costs for claims on which it prevailed was insufficient to inform the JCC of the legal issue resolved in Aguilar. See Aills v. Boemi, 29 So.3d 1105, 1109 (Fla.2010) (“[T]he concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.”). The E/SA’s failure to raise below, and ultimately preserve, the issue should bar us from considering it on appeal. See id. Accordingly, I would affirm the order in its entirety.

      . I would grant the Claimant's motion to take judicial notice of this fact.


text:
    Kenneth Ray YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5681.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2013.
    Paolo G. Annino, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Kenneth Ray Young appeals the four concurrent thirty-year sentences imposed when he was resentenced pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We reject without comment Young’s argument concerning an alleged error in failing to use a single scoresheet when sentencing him for multiple offenses. However, Young also argues that the trial court violated the requirements of Graham when it failed to consider Young’s rehabilitation and new-found maturity in determining what sentence to impose at the resentencing hearing. Because Young’s interpretation of Graham does not comport with the plain language of that decision, we affirm on this issue as well.

Young was fourteen and fifteen years old when he committed a series of four armed robberies in 2000. He was originally sentenced to concurrent sentences of life without the possibility of parole for each conviction. After the Supreme Court released its opinion in Graham, which held that sentences of life without the possibility of parole were unconstitutional for juveniles who do not commit homicides, Young filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The postconviction court found that Young’s sentence was unconstitutional under Graham, and it granted the rule 3.800(a) motion and scheduled a re-sentencing hearing.

At that resentencing hearing, Young argued that Graham required the resentenc-ing court to provide Young with a “meaningful opportunity to obtain release ... based on demonstrated maturity and rehabilitation.” Young argued that because Florida abolished its parole system in 1983, that “meaningful opportunity” had to occur at the resentencing hearing. Young then presented evidence that he contended demonstrated that he had been successfully rehabilitated during the eleven years he had already spent in prison. In turn, the State presented evidence concerning the nature of the crimes Young had committed and the continuing effects of those crimes on the victims. After considering this evidence, the resentencing court found that while Young had shown evidence of rehabilitation, he nevertheless needed to be punished for the crimes he committed and that “eleven years [was] not enough” based on the nature and number of the crimes. Thus, while the resentencing court recognized Young’s efforts at rehabilitation, it sentenced Young to the sentence it deemed appropriate based on the totality of the circumstances surrounding his offenses, i.e., concurrent terms of thirty years in prison followed by ten years’ probation.

In this appeal, Young does not contend that the length of his current sentence is illegal pursuant to Graham. Instead, Young contends that Graham required the resentencing court to use the resentencing hearing as the procedural mechanism through which he would have a “meaningful opportunity” to obtain his release based on demonstrated maturity and rehabilitation and that the resentenc-ing court’s failure to consider Young’s efforts at rehabilitation requires this court to reverse and remand for resentencing. We reject this argument for two reasons.

First, we disagree with Young’s interpretation of Graham as requiring the re-sentencing court to consider Young’s new-found maturity and rehabilitation at the resentencing hearing. Graham addressed the narrow issue of whether a sentence of life without the possibility of parole imposed on a juvenile nonhomicide offender violated the Eighth Amendment’s prohibition on cruel and unusual punishment. 130 S.Ct. at 2017-18. The Court analyzed the issue as one of whether such a sentence is categorically “disproportionate to the crime.” Id. at 2021. After a thorough review of national consensus, penological theory, and the psychological differences between juveniles and adults, the Court held that “the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Id. at 2034.

Notably, however, Graham did not prohibit all life sentences for juvenile nonho-micide offenders. Id. at 2030 (providing that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime” and that the Eighth Amendment “does not require the State to release that offender during his natural life”). Instead, Graham held only that if a sentencing court “imposes a sentence of life [on a juvenile nonhomicide offender] it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. at 2034 (emphasis added). And if a life sentence is imposed, the opportunity for release must be based on considerations of the juvenile’s demonstrated maturity and rehabilitation. Id. at 2030. Thus, to comply with the Eighth Amendment’s proportionality requirements, a court may not sentence a juvenile nonhomicide offender to life and conclude at the outset that the offender is incorrigible and incapable of rehabilitation. Id. at 2033. Instead, if the court elects to impose a life sentence, it must provide the juvenile nonhomicide offender with a “chance to later demonstrate that he is fit to rejoin society” based on rehabilitation and newfound maturity. Id.

As is evident from the above, Graham did not alter Florida’s Criminal Punishment Code to the extent that it sets forth the requirements for calculating the lowest permissible prison sentence to which a juvenile nonhomicide offender is' exposed. Graham did not add “maturity and rehabilitation” as grounds for a downward departure sentence under Florida’s sentencing statutes. And Graham did not provide a juvenile nonhomicide offender with the right to a de facto clemency hearing in place of a resentencing hearing. In point of fact, Graham says nothing about the conduct of resentencing hearings. Instead, Graham simply prohibits a court from imposing the specific sentence of life on a juvenile nonhomicide offender unless the court also provides “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 2030.

Because Young was originally given a sentence of life without the possibility of parole, Graham required that Young be resentenced. The resentencing court did so, and it imposed a sentence of thirty years in prison followed by ten years’ probation. Nothing about this sentence offends Graham, and Graham required nothing more from the resentencing court under the facts of this case.

The thrust of Young’s argument in his brief and at oral argument is that Graham requires the court to provide a juvenile nonhomicide offender with a “meaningful opportunity” to be released from any sentence before its natural expiration, regardless of the length of that sentence, based on the defendant’s maturity and rehabilitation. This is simply incorrect. Graham holds only that a court may not sentence a juvenile nonhomicide offender to life in prison without providing a meaningful opportunity for release — not that a juvenile nonhomicide offender sentenced to a term of years must be provided with a meaningful opportunity for release at some point during that term of years. Here, Young was resentenced to a term of thirty years in prison, following which he will be released. Young has a sentence that specifically provides for his eventual release, and he is not entitled under Graham to an additional opportunity for release.

Young also suggests that his guaranteed release after thirty years is not sufficient to comply with Graham because that release will not be based on his “demonstrated maturity and rehabilitation.” Again, Young misreads Graham. Graham requires that juvenile nonhomicide offenders who are sentenced to life be provided with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. Juvenile nonhomi-cide offenders who are given sentences— even lengthy ones — which provide for their release during their anticipated lifetimes do not need such an opportunity since their eventual release is a foregone conclusion.

Moreover, contrary to Young’s argument in his brief and at oral argument, Graham does not require a resentencing court to use a juvenile nonhomicide offender’s resentencing hearing as the “meaningful opportunity” to seek release based upon rehabilitation and maturity. Instead, the Court in Graham made a deliberate decision to permit each state to develop its own procedures for determining how, when, and with what degree of frequency any review of a juvenile nonhomicide offender’s life sentence must occur. Id. at 2030 (noting that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with the requirement of providing the meaningful opportunity to obtain release). Thus, states may choose to provide this opportunity through parole hearings, early release, conditional release, “bonus” gain time, or other statutory methods yet to be devised. In Florida, these procedures appear to be a work in progress. However, since Young was not resentenced to a life sentence, we need not address the proper mechanism for providing the opportunity required by Graham. Instead we note only that Graham does not require that a resentencing hearing be the mechanism for this opportunity.

In short, the resentencing court complied with the requirements of Graham when it granted Young’s rule 3.800(a) motion and resentenced him to a sentence other than life without the possibility of parole. Had the resentencing court again imposed a life sentence, it would have been required by Graham to devise some means of providing Young with a subsequent opportunity to seek release from that life sentence based on his demonstrated maturity and rehabilitation. However, once the resentencing court imposed a nonlife sentence on Young, its obligations under Graham were fulfilled, and Young is not entitled to further relief under Graham.

Second, even if we agreed with Young that Graham required the resen-tencing court to use the resentencing hearing as an opportunity for Young to gain release based on maturity and rehabilitation, the record shows that the resentenc-ing court did so. The record plainly shows that the resentencing court took evidence on and considered in detail the nature of Young’s offenses, the manner in which they were committed, Young’s youthfulness at the time of the offenses, Young’s statements about his culpability at the time of his arrest, Young’s behavior during his trials, the Criminal Punishment Code scoresheets applicable to Young’s convictions, the evidence presented concerning Young’s behavior and rehabilitation during his time in prison, the statutory bases for a downward departure sentence, and the arguments of the parties as to an appropriate sentence. After considering all of this evidence and information, the resentencing court determined that thirty years in prison followed by ten years’ probation was the appropriate sentence. This term of years does not offend the Eighth Amendment. Id. at 2058 (Alito, J., dissenting) (noting that Graham’s attorney “conceded at oral argument that a sentence of as much as 40 years without the possibility of parole ‘probably’ would be constitutional”); see also Walle v. State, 99 So.3d 967, 972-73 (Fla. 2d DCA 2012) (holding that a sentence of sixty-five years imposed on a juvenile nonhomicide offender, which sentence was to run consecutively to a twenty-seven-year sentence for offenses committed in a different county, did not violate the Eighth Amendment as discussed in Graham).

Moreover, the fact that the resentencing court did not give the weight to Young’s rehabilitative efforts that he thought the court should have does not mean that the court failed to consider that evidence in reaching its sentencing decision. In fact, the record belies this assertion. The re-sentencing court could have resentenced Young to a life sentence and devised some means of providing him with an opportunity for later release, but it elected not to do so. The resentencing court could have accepted the State’s request for a forty-year sentence followed by ten years’ probation, but it elected not to do so. Thus, the fact that the resentencing court rejected Young’s request to be released, having served only eleven years in prison for committing four armed robberies during which Young held a gun to the heads of some of the victims, does not show that the court ignored the evidence of Young’s newfound maturity and rehabilitation. Instead, the record demonstrates that the resentencing court considered all of the evidence before it, including the evidence of rehabilitation and maturity, in reaching its sentencing decision. We will neither second-guess the resentencing court’s decision nor delve into the thought processes behind the imposition of Young’s sentence. See Nusspickel v. State, 966 So.2d 441, 444 (Fla. 2d DCA 2007) (noting that “the trial court’s imposition of a sentence that is within the minimum and maximum limits set by the legislature ‘is a matter for the trial [cjourt in the exercise of its discretion, which cannot be inquired into upon the appellate level’ ” (quoting Shellman v. State, 222 So.2d 789, 790 (Fla. 2d DCA 1969))). Instead, finding no abuse of discretion in the imposition of this sentence, we affirm.

Affirmed.

NORTHCUTT and KHOUZAM, JJ„ Concur.

      . The Supreme Court again took up the issue of sentences of life without the possibility of parole for juvenile offenders in Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In that case, the Supreme Court held that state sentencing statutes that make a sentence of life without the possibility of parole mandatory for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment. Id. at 2460. The Court explained that there is a clear distinction between the holdings of Graham and Miller. “Graham established one rule (a flat ban) [on life-without-parole sentences] for nonhomicide offenses, while we set out a different one (individualized sentencing) for homicide offenses.” Id. at 2466 n. 6. In this case, Young relied on certain language from Miller in both his brief and at oral argument to argue that the trial court erred in resentencing him. However, Young is not a homicide offender, and he is not incarcerated under a sentence of life without parole. Therefore, the Miller decision is wholly inapplicable to either the issues or the decision in this case.

      . The original trial judge had retired before the resentencing hearing and thus was unavailable to resentence Young. The record shows that the judge who presided over the resentencing hearing had read the transcripts of all four of Young's trials as well as the presentence investigation report that was prepared before Young was originally sentenced. Thus, the resentencing court was completely familiar with all of the evidence presented both at those trials and at Young’s original sentencing hearings.

      . Two of these sentences were subject to ten-year minimum mandatory terms, but the application of these minimum mandatory terms is moot as Young has already completed them.

      . Certainly, Young retains the opportunity to seek early release from his sentence through executive clemency. Any other opportunities for release must come from the legislative branch — not from the judicial branch or Graham.


author: SWANSON, J.

text:
    Wayne MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6169.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Rehearing Denied April 25, 2013.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

Wayne Martin (“Appellant”) was found guilty by a jury of aggravated assault on a law enforcement officer. Judgment was entered in accordance with the verdict and Appellant was sentenced to a twenty-year mandatory minimum term of imprisonment. On appeal, Appellant argues that the trial court erred by excluding testimony related to self-defense and by denying his request for a jury instruction related to self-defense. We agree, and reverse and remand for a new trial.

On August 19, 2009, at around 1:00 a.m., deputies from the Walton County Sheriffs Office responded to Appellant’s home after receiving a call to check on his welfare. As the deputies approached Appellant’s home, he asked what they were doing “in his fucking yard.” The deputies identified themselves as law enforcement officers, but Appellant responded, “I got something for /all motherfucking asses. I’m going in the house to get my gun.” Appellant retrieved a shotgun from his home and loaded it in the presence of the deputies. As the deputies were moving away from him, Appellant discharged the firearm.

At trial, Appellant’s defense was not guilty by reason of insanity. To establish his defense, his first witness, Dr. Robert Benson, a board certified psychiatrist, testified that on the night in question Appellant had suffered from a temporary episode of insanity caused by delirium. According to Dr. Benson, delirium could have caused Appellant to act in order to protect himself because he believed his life was in danger. Appellant’s second witness, Dr. James Larson, a clinical psychologist, testified he believed Appellant was experiencing paranoid delusions that night, which would have made him feel as though “people were sneaking up on him.” Further, Dr. Larson stated the paranoia caused Appellant to “fire [the gun] in the air as if it was self-defense.” Although Appellant’s attorney tried to develop this theory of self-defense in greater detail, the trial court disallowed any additional testimony from Dr. Larson regarding self-defense.

Correspondingly, at the conclusion of the trial, the court instructed the jury on the defense of insanity, but refused, over Appellant’s objection, to include an instruction on self-defense. The trial court explained that self-defense was never raised, and for that reason it would not be included in the jury instructions. Appellant urged the trial court to reconsider, but the court responded that self-defense “was not brought up in evidence.” The jury found Appellant guilty as charged. Appellant now argues that the trial court erred by excluding testimony related to self-defense, an error compounded by the court’s refusal to instruct the jury on self-defense.

Generally, a trial court’s decision on the admissibility of evidence will not be reversed absent an abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). The trial court’s discretion, however, is “limited by the evidence code and applicable case law.” Id. As such, “[a] court’s erroneous interpretation of these authorities is subject to de novo review.” Id.

A defendant has a fundamental right to present witnesses and offer evidence relevant to his defense. Washington v. State, 737 So.2d 1208, 1221 (Fla. 1st DCA 1999) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). It is error for a court to deny the admission of evidence that “tends in any way, even indirectly, to establish a reasonable doubt of [a] defendant’s guilt.” Rivera v. State, 561 So.2d 536, 539 (Fla.1990). “ ‘If there is any possibility of a tendency of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for its admissibility.’” Washington, 737 So.2d at 1223 (quoting Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998)). In this respect, Appellant correctly argues he had a right to present a defense, and it was error to deny the admission of evidence indicating that he had acted in self-defense. Evidence that Appellant’s delirium arguably caused him to believe his life was in danger, which would have explained why he discharged his firearm, unquestionably tended to create a reasonable doubt regarding the motivation for his actions.

The State, on the other hand, argues evidence of self-defense was not relevant to Appellant’s defense of insanity. In other words, the State maintains the two defenses under the facts of this case are inconsistent. A defendant, however, is permitted to present inconsistent defenses unless one defense “necessarily disproved] the other.” Belser v. State, 854 So.2d 223, 225 (Fla. 1st DCA 2003) (citing Keyes v. State, 804 So.2d 373 (Fla. 4th DCA 2001)). Nevertheless, we find nothing inconsistent between Appellant’s proffered defenses. See Blocker v. State, 92 Fla. 878, 110 So. 547, 552 (1926) (observing that “ ‘if under the influence of his delusion [the defendant] supposes another man to be in the act of taking his life, and he kills that man as he supposes in self-defense, then he would be exempt from punishment’ ”) (quoting Davis v. State, 44 Fla. 32, 32 So. 822 (1902)). Just as the supreme court observed in Blocker, the evidence tending to show Appellant felt threatened by the deputies at the time of the incident, due to his delirium, would support the theory that he acted in self-defense. As such, the trial court erred by excluding evidence regarding whether Appellant’s mental condition caused him to fear for his life.

Turning to the second part of Appellant’s argument, we agree that the trial court erred by denying the requested jury instruction related to self-defense. A trial court’s ruling on whether to include a jury instruction will be reversed only if the trial court abused its discretion. Goode v. State, 856 So.2d 1101, 1104 (Fla. 1st DCA 2003). The trial court’s discretion, however, is “fairly, narrow because appellant.is entitled, upon request and by law, to have the jury instructed on his theory of defense if any evidence supports that theory, so long as the theory is valid under Florida law.” Id. (citations omitted; emphasis in original). See also Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (“A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery.”); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (“Regardless of how improbable the defendant’s testimony was, it certainly was not demonstrably false, and as our Supreme Court did ..., we must hold that the trial court erred in refusing a self-defense instruction.”); Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (“A defendant is entitled to a jury instruction on his theory of the case if there is any evidence to support it, no matter how flimsy that evidence might be.”) (Emphasis in original.). To demonstrate that the' refusal to give a jury instruction constitutes reversible error, the complaining party must establish “(1) the requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.” Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001) (citation omitted; internal quotation marks omitted). We apply this test to the instant case.

First, the facts of the present case obviate the necessity to consider whether Appellant’s requested instruction accurately stated the law on self-defense since the trial court denied Appellant any opportunity to proffer an instruction. Second, there was ample evidence in the record to support Appellant’s request for the jury instruction. Dr. Benson testified he believed Appellant suffered from delirium during the incident, which, he testified, can create “[ijdeas that people are against you or trying to hurt you.” Moreover, Dr. Benson noted these ideas are “very common” in cases of delirium. He similarly opined that Appellant’s belief the deputies were “sneaking up on him suggested] that [Appellant] believed he was in danger or some harm was going to come to him.” Finally, Dr. Benson explained that Appellant’s mood fluctuated rapidly, causing him to feel “suicidal one minute [then] fearing in danger of his life or trying to protect himself,” the next. Dr. Larson testified that paranoia caused Appellant to feel threatened. As a result, discharging the firearm was “more like an act of self-defense to scare away people who were sneaking up on him.” Dr. Larson reiterated his belief that “it was paranoia that he took a gun and went outside and fired it up in the air as if it was self-defense.” Clearly, Appellant’s self-defense argument was not weak, improbable, or flimsy, as there was sufficient evidence in the record indicating his condition may have caused him to believe his life was in danger. As such, the instruction on self-defense was “necessary to allow the jury to properly resolve all issues in the case.” Langston, 789 So.2d at 1026.

The State also argues Appellant waived his right to the jury instruction. During the charge conference, counsel for Appellant stated, “There’s no evidence from Mr. Martin that it was self-defense, but — ”. This, the State urges, demonstrates Appellant acknowledged that self-defense was not a viable defense, but the State points to no authority to support this theory. We hold counsel’s statement did not rise to the level of an affirmative agreement to forgo the jury instruction. See State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (noting that error can be waived only if “defense counsel affirmatively agree[s] to or requests] the incomplete instruction”).

Next, the State urges any error the trial court may have made was harmless. We disagree. An error is harmful “[i]f the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Nevertheless, “[h]armless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.” Id. at 1139. According to the State, the error was harmless because Appellant was able to present a theory of defense: his insanity defense. Moreover, according to the State, the jury was instructed on the insanity defense and could have found Appellant not guilty by reason of insanity. Again, the State does not cite any authority for the proposition that improperly rejecting a valid defense is harmless if the defendant has another defense to offer. On this record, we cannot say that failing to inform the jury that Appellant may have believed he was being threatened, and therefore acted in self-defense, did not affect the verdict beyond a reasonable doubt. To hold otherwise would require this Court to reweigh the evidence as if the error had not occurred. We may not engage in such speculation. Consequently, we hold it was harmful error for the trial court to exclude testimony related to self-defense and to deny Appellant’s request for a jury instruction.

REVERSED and REMANDED for a new trial.

VAN NORTWICK and LEWIS, JJ., concur.

      . Dr. Benson explained that delirium is "a very short-term episode of confusion, often disorientation, misperception ... feeling persecuted or in danger or at risk or people are trying to hurt you or cause harm to come to you.”

      . Appellant also argues that the trial court erred by using "and/or” between the victims’ names in the jury instruction. We affirm this point without further comment.