author: CASANUEVA, Judge.

text:
    GENERAL ELECTRIC CAPITAL CORP., Petitioner, v. Richard NUNZIATA, as Personal Representative of the Estate of Elvira Nunziata; Trans Health Management, Inc.; and Rubin Schron, Respondents.
    No. 2D13-422.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
    Rehearing Denied Nov. 5, 2013.
    Carol A. Licko of Hogan Lovells U.S. LLP, Miami, for Petitioner.
    Isaac R. Ruiz-Carus, Bennie Lazzara, Jr., and Joanna M. Greber of Wilkes & McHugh, P.A., Tampa, for Respondent, Richard Nunziata.
    No appearance for remaining Respondents.
   CASANUEVA, Judge.

General Electric Capital Corp. (GECC) has filed a petition for a writ of certiorari, challenging the trial court’s order denying its motion for a protective order from a subpoena duces tecum. We grant the petition, concluding that the trial court departed from the essential requirements of the law, causing material injury throughout the remainder of the proceedings below, and effectively leaving no adequate remedy on appeal by requiring GECC to divulge extensive business records that are related to the underlying action in a rarely seen tenuous manner. We have jurisdiction. See Nussbaumer v. State, 882 So.2d 1067, 1072 (Fla. 2d DCA 2004) (“[T]he only way that a nonparty claiming privilege may test a court’s order — other than by certiorari — is to risk a contempt citation and then to appeal if cited for contempt. However, this is ‘too great a price.’ ” (quoting Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980))).

Background

Respondent Richard Nunziata is the personal representative of the estate of his mother, Elvira Nunziata. Ms. Nunziata died in 2004 after she sustained severe injuries in the nursing home where she was a patient. Mr. Nunziata instituted a nursing home malpractice case against the nursing home’s corporate licensee, several other corporations, and its supervisory staff, including; respondent Trans Health Management, Inc. (THMI). THMI had provided back-office functions at the nursing home until several months before Ms. Nunziata’s accident that led to her death. As is typical in nursing home litigation, all the upchain corporate entities or natural persons associated with these upchain corporations who had an interest in the nursing home or who provided various services to the nursing home were also defendants in the suit. But the parent company of THMI, Trans Health, Inc. (THI), was not among the listed defendants. All the defendants except THMI settled before trial, but THMI defaulted and did not appear at the bench trial on liability. Thus, the trial court entered a judgment against THMI on liability and held a jury trial on damages alone. The jury returned a verdict in favor of Mr. Nunziata for $60 million in compensatory damages and $140 million in punitive damages. Attempting to locate assets to satisfy his $200 million award, Mr. Nunziata instituted a proceeding supplementary in aid of execution and served a subpoena duces tecum on GECC. As is clear from this narrative, GECC is not the judgment debtor.

GECC is a lender of capital. Through its Healthcare Financial Services Division, GECC lends healthcare businesses money to finance projects. In 2002, several of THI’s subsidiaries — but not THMI — borrowed $55 million; THMI was, however, one of sixteen guarantors of that loan. The original lender subsequently transferred this loan to GECC for consideration. The borrowers on that loan defaulted, but GECC never looked to THMI for repayment. Instead, GECC restructured the loan in 2006 and, importantly, THMI ceased, with GECC’s approval, being a guarantor of the newly-restructured loan.

Regardless of the fact that since 2006 THMI no longer had any connection to the loan, and regardless of the fact that THMI was no longer under contract for back-office functions at the time of Ms. Nunzia-ta’s accident, Mr. Nunziata subpoenaed GECC pursuant to Florida Rule of Civil Procedure 1.560, the rule of procedure relating to discovery of assets of a judgment debtor. The subpoena duces tecum listed fifty-seven separate document requests in seventeen single-spaced pages, and many of the individual requests had nine or more subparts. But only three requests arguably referred to THMI. The general ten- or of the requests appears to delve into GECC’s internal matters, including documents relating to its accounting reserves, underwriting and servicing of loans issued to other of THI’s subsidiaries, and communications related to a January 2012 agreement to which THMI is not a party.

GECC objected to the wide-ranging scope of the discovery request, but it offered to provide all documents in its possession that mentioned THMI — which were very few — as well as to allow Mr. Nunziata’s counsel to use in this case the more than 278,000 pages of documents it had produced in a different case, also against THMI. But Mr. Nunziata’s counsel rejected this offer, so GECC moved for a protective order.

The trial court held a multiday hearing on GECC’s motion for protective order and its objections to the fifty-seven discovery requests. The trial court denied the motion for protective order and overruled all of GECC’s objections except for objections to seven requests that Mr. Nunziata’s counsel withdrew during oral argument. The trial court also refused to grant GECC’s request for a confidentiality order to protect it from unwarranted disclosure of documents relating to GECC’s accounting reserves and internal loan-underwriting analyses. Instead, the trial court ordered GECC to present its confidential documents at an all-day in camera hearing. Not willing to comply with this burdensome task and believing it was being subjected to a fishing expedition at the hands of Mr. Nunziata’s counsel, GECC petitioned this court for a writ of certiorari to quash the trial court’s orders.

Analysis

It is clear to this court that Mr. Nunziata’s counsel has painted the proceedings supplementary with a very wide brush vis-á-vis GECC. GECC is not the judgment debtor in this case, and from what we can glean from the record before this court, the relationship between GECC and THMI is, at best, very remote and, at worst, nonexistent since 2006 when THMI’s role as guarantor of the original loan to THI’s other subsidiaries terminated. This court has held that discovery in aid of execution cannot be used to pry into the assets and business of persons other than the judgment debtor, unless the judgment creditor can provide a good reason and close link between the unrelated entity and the judgment debtor. See, e.g., Walter v. Page, 638 So.2d 1030 (Fla. 2d DCA 1994). Mr. Nunziata suggests that there has been commingling of assets so as to allow inquiry into GECC’s financial affairs, but the record does not persuade us that the relationship between THMI and GECC provides such a close link.

■ The circumstances of Walter parallel this case. The plaintifi7appellee in Walter, Dominic Longo, had obtained a judgment for breach of contract against defendants Stephen Page and Florida Financial Partners, Inc. (FFP). The appellant, Barbara Walter, was a corporate officer of FFP. In proceedings supplementary, she was served with a subpoena duces tecum for deposition and to produce FFP’s business documents and her personal financial records. She moved for a protective order and claimed, similarly to GECC here, that the request was too broad in requiring her personal information. The trial judge at first denied her motion for protective order, but after she filed an emergency motion to stay discovery, a different trial judge granted her motion to stay in part, ruling that Longo could not depose her regarding her personal finances and assets because she was not subject to the judgment Longo had obtained against FFP. She was deposed on FFP’s financial records and then filed an appeal from the order denying her motion for protective order. Id. at 1031.

This court agreed with Ms. Walter that the subpoena duces tecum was too broad in seeking “virtually all of [her] personal financial documents.” Id. We noted, as we note again here, that a “subpoena duces tecum is not the equivalent of a search warrant [ ] and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted.” Id. (citing Palmer v. Servis, 393 So.2d 653 (Fla. 5th DCA 1981)). This is especially true where the person subject to the subpoena is not the judgment debtor. See, e.g., Jim Appley’s Tru-Arc, Inc. v. Liquid Extraction Sys. Ltd. P’ship, 526 So.2d 177, 179 (Fla. 2d DCA 1988) (prohibiting discovery by judgment creditor into separate income and assets of judgment debtor’s wife). If a proper predicate is laid, someone other than the judgment debtor may be required to submit to financial discovery, but in this case, Mr. Nunziata’s counsel has not laid the proper predicate. Cf. Jerry's S., Inc. v. Morran, 582 So.2d 803 (Fla. 1st DCA 1991) (granting writ of certiorari and quashing pretrial order requiring nonparty corporate defendants to produce all business records of the corporations in plaintiffs search for information regarding ownership of bar that provided service to allegedly intoxicated patron who subsequently threatened and struck plaintiff).

Conclusion

The trial court erred in denying GECC’s motion for protective order. Mr. Nunzia-ta’s far-reaching requests for GECC’s internal operating documents were not properly limited in seeking the assets of the judgment debtor, THMI, that are possibly subject to execution. “In the context of postjudgment discovery, matters relevant to the subject matter of the pending action or which would lead to the discovery of admissible evidence, per [Florida] Rule [of Civil Procedure] 1.280(b)(1), would encompass matters identifying or leading to the discovery of assets available for execution .... ” 4 Bruce J. Berman, Berman’s Florida Civil Procedure, ¶ 560.3[5] (2013). Mr. Nunziata has not shown that to be the case here.

We grant the writ of certiorari, quash the order below, and remand for further proceedings.

DAVIS, C.J., and BLACK, J„ Concur.

      . THMI’s status as a corporation permitted to conduct business in Florida was revoked in 2004 for failure to file an annual report with the Department of State. Section 607.1622(8), Florida Statutes (2004), provided:
      Any corporation failing to file an annual report which complies with the [filing] requirements of this section shall not be permitted to maintain or defend any action in any court of this state until such report is filed and all fees and taxes due under this act are paid and shall be subject to dissolution or cancellation of its certificate of authority to do business as provided in this act.
      There is no indication in the record before us that THMI corrected its revoked status prior to the trial court entering the default judgment on liability.

      . Mr. Nunziata had alleged that the nursing home staff knew of Ms. Nunziata's propensity to wander off without supervision and that safety precautions at the nursing home were substandard. Ms. Nunziata’s death resulted from falling down a stairwell in her wheelchair.

      . Florida Rule of Civil Procedure 1.560, titled "Discovery in Aid of Execution,” provides, in pertinent- part: "(a) In General. In aid of a judgment, decree, or execution the judgment creditor or the successor in interest, when the interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.”


source: Caselaw Access Project

author: WELLS, Judge. SCHWARTZ, Senior Judge,

license: Public Domain

text:
    Jaime CACHO a/k/a Jaime R. Cacho, et al., Appellants, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 3D12-3373.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Rehearing Denied Nov. 5, 2013.

      Karen J. Barnel>-Backer and John H. Ruiz, Miami, for appellants.
    Van Ness and Morgan L. Weinstein, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

The Law Offices of La Ley con John H. Ruiz, P.A. appeals from an order denying its motion to assess attorney’s fees against The Bank of New York Mellon in this now dismissed mortgage foreclosure case. Because no legal basis exists to support an award of fees in this matter in favor of Ruiz against the Bank, we affirm.

This action commenced in October of 2009 when the Bank sought to foreclose a loan secured by a mortgage executed by Jaime Cacho. Cacho initially was represented by John Ruiz (and his firm) who filed an answer and affirmative defenses on Cacho’s behalf. In that answer, Cacho sought an award of attorneys fees should he prevail in the matter:

Pursuant to Paragraph 24 of the Mortgage, the Plaintiff shall be entitled to expenses including attorney’s fees in pursuing the remedies provided in Paragraph 22 of the Mortgage. Since the Plaintiff is pursuing attorney’s fees pursuant to the Mortgage’s Paragraph 24, then pursuant to Section 57.105(7), the Defendant is entitled to attorney’s fees if he/she/they prevails(s) in this action.

Following an initial flurry of discovery by Ruiz on Cacho’s behalf, Ruiz sought leave to withdraw as Cacho’s counsel of record and was permitted to withdraw on March 81, 2011. Cacho thereafter was unrepresented.

On December 29, 2011, after the Bank failed to appear for trial, the action was dismissed in an order that makes no mention of attorney’s fees. On January 19, 2012, Ruiz, claiming to be acting on behalf of Cacho, moved for an award of attorney’s fees from the Bank for services rendered before Ruiz withdrew:

COMES NOW, the Defendant, JAIME CACHO, by and through his undersigned counsel and hereby files this Motion For Attorney’s Fees against Plaintiff, THE BANK OF NEW YORK MELLON ....

On November 20, 2012, ten months after this motion was filed, Ruiz filed a notice of attorney’s charging lien to recover for services rendered to Cacho “pursuant to a written, express contract between the aforementioned JAIME CACHO and the undersigned attorney.” On November 21, 2012, “Defendant’s Motion for Entitlement to Attorneys Fees and Costs” was denied.

Ruiz appeals that order claiming that he was entitled to seek and to secure a fee award from the Bank because (1) the mortgage and note executed by Cacho in favor of the Bank provides for an award of fees to the Bank should it prevail in an action to enforce the note and mortgage; (2) under section 57.105(7) of the Florida Statutes, Cacho would be entitled to a fee award should he prevail in any such enforcement action; (8) pursuant to this authority, in the foreclosure action, Cacho had requested a fee award in the event he prevailed; and (4) Cacho had prevailed.

While all of this: entitled Cacho to pursue and to secure a fee award against the bank, see, e.g., Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010) (holding mortgagors in dismissed foreclosure action entitled to fee award as prevailing parties under section 57.105(7)); § 57.105(7), Fla. Stat. (2012) (making contractual fee provisions reciprocal), none of it entitled Ruiz to pursue or to secure a fee award against the Bank in this action.

Ruiz’s entitlement to fees stems from his agreement, whether express or implied, with Cacho pursuant to which Cacho agreed to pay Ruiz for his services. Ca-cho’s entitlement in turn to secure payment of those fees by the Bank stems from the express terms of a mortgage agreement between Cacho and the Bank pursuant to which the Bank became obligated to pay Cacho in the event he prevailed in any enforcement litigtion. Ruiz cites to no agreement between either Cacho and the Bank, himself and the Bank, or himself and Cacho which would authorize him independently of Cacho to seek payment of Cacho’s attorney’s fees or which would obligate the Bank to pay him directly for services he rendered to Cacho.

As Ruiz concedes in his initial and reply briefs, by the time this action was dismissed and the motion for fees filed, Ruiz no longer represented Cacho. Ruiz was, therefore, without authority to seek any relief on Cacho’s behalf. See Fla. R. Jud. Admin. Rule 2.505(f) (2012) (providing that the appearance of an attorney for a party “shall terminate” upon a court order authorizing withdrawal); Fla. R. Jud. Admin. 2.505(e) (2012) (stating that an attorney may appear in a proceeding in one of three ways: (1) by serving and filing, on behalf of a party, “the party’s first pleading or paper in the proceeding”; (2) by substitution of counsel, “but only by order of court and with written consent of the client, filed with the court”; and (3) by filing with the court and serving on all parties a “notice of appearance as counsel for a party”) (emphasis added); see Pasco County v. Quail Hollow Props., Inc., 693 So.2d 82, 83 (Fla. 2 DCA 1997) (confirming that the rationale behind the appearance of counsel rule is to assure courts that they may, rely on the representations of the attorneys who file pleadings before them; to protect clients who may be bound by such representations;' and to ensure the rights of other parties to know with whom they are dealing); see also Thomas v. State, 884 So.2d 309, 311 (Fla. 2d DCA 2004) (striking as nullities motions filed by an additional attorney who had not filed an appearance in the case). Moreover, because Ruiz failed to timely seek a charging lien, he lost any opportunity in this case to seek relief on his own behalf. As this court said in Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 93 n. 6, n. 7 (Fla. 3d DCA 1987):

It may be that this notice [of a timely claim of lien] is critical to a discharged or- withdrawing attorney, who is, perforce, no 'longer a part of the litigation and must take affirmative steps to retain his position vis-a-vis the client and the outcome; notice in such a case both alerts a successor attorney to a potential reduction of his own fee and “reminds” a client that discharge or withdrawal of an attorney does not reheve the client of his obligation to that attorney.
However, if an attorney has not claimed a charging lien or there are no proceeds to which a lien can attach, he nonetheless retains the right to sue the client on the contract in an action at law in which the client is entitled to a jury trial. However, mere withdrawal or discharge of the attorney before litigation is ended does not deprive him of his right to enforce a claim of lien asserted before the close of the litigation.

(Citations omitted).

In sum, the fact that Ruiz was not Ca-cho’s attorney at the time of the dismissal or any time thereafter and that Ruiz failed to timely assert a charging lien, leaves Ruiz where he always has been. He agreed to represent Cacho in a mortgage foreclosure action, a defensive battle in which no damage award was realistically contemplated. Cacho apparently agreed to pay Ruiz for that representation. The foreclosure action was dismissed entitling Cacho to seek recovery of his fees from the Bank, a right which he did not pursue. Because Ruiz failed to timely seek a charging lien which arguably might have provided him with an avenue to seek a fee award directly from the Bank, he remains exactly where he started: holding Cacho’s contractual obligation to pay his fees.

Accordingly, the order on appeal is affirmed.

LOGUE, J., concurs.

SCHWARTZ, Senior Judge,

(specially concurring).

I agree to affirmance on the ground that there is no basis for granting standing to any attorney, let alone one who has withdrawn, to directly seek attorney’s fees from an adverse party who may or may not be liable for those fees to his client.

      . Ruiz made no mention of a charging lien in his motion to withdraw, distinguishing this case from, for example, Heller v. Held, 817 So.2d 1023, 1026 (Fla. 4th DCA 2002), where counsel filed his motion to withdraw, asserting that, pursuant to a fee contract, he was entitled to a charging lien on the plaintiff's interest in the action and asking the court to reserve jurisdiction to entertain a petition to establish and enforce a charging lien.

      . Ruiz's briefs filed herein are cleverly crafted to make it appear as though Cacho is the party or the appellant seeking relief. These suggestions are belied by random statements in the briefs which demonstrate that the “party” prosecuting these matters is John Ruiz and his firm:
      Appellant’s counsel [this would be John Ruiz, Cacho’s former counsel] filed a motion to withdraw for Appellant’s [Cacho’s] failure to abide by its [sic] contractual obligation to pay attorneys’ fees and costs and to cooperate in the defense of the foreclosure litigation and assistance with pursuing loss mitigation efforts. The fact that the undersigned [John Ruiz’s firm, the purported counsel for Cacho] had withdrawn from the case, in no way leads to the conclusion that the undersigned [John Ruiz's firm] would not be entitled to recover the attorneys' fees it is due when the Appellee took a voluntary dismissal. In fact, the Appellant’s [Cacho’s former ] counsel, prior to the hearing on the Motion for Entitlement to Attorneys' Fees, filed with the Court a Notice of Attorneys’ Charging Lien in this case.
      Despite the fact that Ruiz and his firm were not counsel for Cacho — the Defendant — when the motion for fees was filed, that motion expressly misrepresents that Ruiz is filing the motion as counsel for Cacho and on his behalf:
      COMES NOW, the Defendant, JAIME CACHO, by and through his undersigned counsel and hereby files this Motion. For Attorney’s Fees against Plaintiff ....

      . The record before us is devoid of any indication that Ruiz filed a notice of appearance or was substituted as counsel or that Cacho in any manner rehired Ruiz. See Bortz v. Bortz, 675 So.2d 622, 624 (Fla. 1st DCA 1996) ("The record does not reflect that a motion was ever filed requesting leave by the second attorney to substitute for the former wife’s first attorney, or that the former wife consented in writing to such a substitution. Moreover, no order was ever entered permitting substitution. Accordingly, based upon the clear language of rule 2.060(h), [now 2.505] we conclude that the trial court correctly determined that the motion for rehearing, filed by the second attorney, was a nullity.”).

      . The charging lien Ruiz filed more than ten months after the dismissal was entered was untimely and deprived the court below of the authority to enforce it. See Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983) (stating that a charging lien "is an equitable right to have costs and fees due an attorney for services in [a] suit secured to him in the judgment or recovery of that particular suit”); Naftzger v. Elam, 41 So.3d 944, 946-47 (Fla. 2d DCA 2010) (“When an attorney wishes to enforce a charging líen for attorney's fees, 'the attorney must show: (1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.’ Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla.1986). Regarding the fourth requirement, notice of the charging lien must be filed or the lien pursued in the action before entry of a final judgment or dismissal of the case. Weiland v. Weiland, 814 So.2d 1252, 1253 (Fla. 2d DCA 2002); Levine v. Gonzalez, 901 So.2d 969, 974 (Fla. 4th DCA 2005); Hannah v. Elder, 545 So.2d 503, 504 (Fla. 4th DCA 1989). If notice is not given before entry of the final judgment or an order dismissing the case, the trial court loses jurisdiction to enforce a charging lien in the original action,") (emphasis added); Gaebe, Murphy, Mullen & Antonelli v. Bradt, 704 So.2d 618, 619 (Fla. 4th DCA 1997) ("[C]ase law only requires that notice be sent before the case is resolved.”).


author: NORTHCUTT, Judge.

text:
    ESSEX INSURANCE CO., Appellant, v. INTEGRATED DRAINAGE SOLUTIONS, INC., a Florida profit corporation; Verizon Communications, Inc., a foreign corporation; Verizon Services Corp., a foreign corporation; Verizon Florida, LLC, a Florida limited liability corporation; Mastec, Inc., a Florida profit corporation; Mastec North America, Inc., a Florida profit corporation; and Erica Wiggins, as Personal Representative of the Estate of Diane Yeager-Lombard, Deceased, Appellees.
    No. 2D12-3146.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2013.

      Robert Alden Swift of Cole, Scott, & Kissane, P.A., Orlando, for Appellant.
    Mark A. Boyle, Geoffrey H. Gentile, Michael W. Leonard, Debbie Sines Crockett, and Amanda K. Anderson of Boyle, Gentile, Leonard & Crockett, P.A., for Appel-lees.
    Verizon Communications, Inc., Verizon Services Corp., Verizon Florida, LLC, Mastec, Inc., and Mastec North America, Inc.
    No appearance for Appellees Integrated Drainage Solutions, Inc., and Erica Wiggins as Personal Representative of the Estate of Diane Yeager-Lombard, Deceased.
   NORTHCUTT, Judge.

Essex Insurance Company filed an action seeking a declaration that it was not obligated to defend or indemnify the defendants in a wrongful death suit. The circuit court entered a final summary judgment ruling that Essex was contractually bound to defend and to indemnify them. We reverse the summary judgment and remand for additional proceedings consistent with this opinion.

The wrongful death action was brought by Erica Wiggins, the personal representative of the Estate of Diane Yeager-Lombard, against Integrated Drainage Solutions, Inc. (IDS); Verizon Communications, Inc., Verizon Services Corporation, Verizon Florida LLC (collectively iCVerizon”); Mastec, Inc.; and Mastec North America, Inc. (collectively “Mas-tec”). The underlying facts were that Verizon contracted with Mastec, and Mas-tec subcontracted with IDS, to lay fiber optic cable in Pasco County. An IDS employee, Justo Arturo Moreno-Gonzales, met Ms. Yeager-Lombard while he was laying cable on land adjacent to her property. Moreno-Gonzales became romantically infatuated with Ms. Yeager-Lombard, but she repeatedly told him that his feelings were not reciprocated. She finally demanded that he cease entering her property. Moreno-Gonzales became verbally abusive. He obtained her telephone number and began harassing her by telephone. Ms. Yeager-Lombard complained to the police. Two days later, on May 3, 2008, Morales-Gonzalez shot her to death.

Ms. Yeager-Lombard’s personal representative filed suit against Verizon, Mas-tec, and IDS. The complaint alleged the following theories against the defendants: Verizon — negligent hiring and retention; negligent selection and employment of a contractor; negligent supervision of a contractor; and vicarious liability for a contractor’s negligence; Mastec — negligent hiring and retention; negligent selection and employment of a contractor; negligent supervision of a contractor; and vicarious liability for a contractor’s negligence; IDS — negligent hiring; negligent retention; respondeat superior for the negligence of others.

In March 2008, Essex had issued a commercial general liability policy to IDS, as the named insured. Mastec North America was an additional insured on the policy. The policy provided coverage for certain occurrences, including losses related to bodily injury. The defendants in the wrongful death action demanded that Essex provide a defense and indemnify them for any damages awarded.

In October 2010, Essex filed its declaratory judgment action contending that it was not obligated to defend or indemnify the defendants. It relied on the following exclusions from coverage contained in the policy’s combination general endorsement:

VII. This insurance does not apply to “bodily injury”, “property damage”, “advertising injury” or any injury, loss, or damages, including consequential injury, loss or damage, arising out of, caused or contributed to by:
C. ' alleged negligence or other wrongdoing in the hiring, training, placement, supervision, or monitoring of others by .insured.
F. criminal, fraudulent, dishonest or malicious acts or omissions from any insured, any employee of any insured or anyone for whom you may be held liable.
VIII.' Where there is no coverage under this policy, there is no duty to defend.

Verizon and Mastec filed affirmative defenses and a counterclaim for declaratory relief, against Essex, alleging that the above-quoted exclusions were unenforceable because Essex had not complied with two Florida statutes: the defendants pointed out that Essex had failed to file and obtain preapproval of the combination general endorsement as required by section 627.410, Florida Statutes (2008), and they alleged that Essex had failed to comply with Florida’s claims administration statute, section 627.426. Verizon and Mas-tec also asserted that the exclusions did not apply to the claims for negligent retention, negligent selection and employment, negligent failure to warn, and vicarious liability. The parties subsequently filed cross-motions for summary judgment.

At the hearing on the motions and in their memoranda, the parties focused on Verizon’s and Mastec’s defense that Essex had not complied with section 627.410. Essex argued that because it was a surplus lines carrier, see § 626.913, Fla. Stat. (2008), it was exempt from the filing and approval requirements of section 627.410. It pointed out that in 2009, the Florida legislature amended section 626.913 to expressly declare that the provisions in chapter 627 did not apply to surplus lines carriers. § 626.913(4), Fla. Stat. (2009). Further, the enacting legislation stated that “[t]he amendments to s. 626.913, Florida Statutes, in this act are remedial in nature and operate retroactively to the regulation of surplus lines insurers from October 1, 1988, except with respect to lawsuits that are filed on or before May 15, 2009.” Ch. 09-166, § 7, at 1733, Laws of Fla. As mentioned, the circuit court granted summary judgment to the defendants.

We review a summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Here, the circuit court ruled against Essex on two bases. First, it found that the retroactivity language in chapter 2009-166 was effectively repealed because it was not included in the codified version of the 2010 statute. Second, it decided that even if the retroactivity language had not been repealed, application of the 2009 amendment would impair the insureds’ vested rights and, therefore, would be unconstitutional. We disagree with both rationales.

Retroactivity

In June 2008, the Florida Supreme Court issued Essex Insurance Co. v. Zota, 985 So.2d 1036 (Fla.2008). The court opined that section 627.021(2)(e), Florida Statutes (2003), which stated that “[t]his chapter does not apply to: ... [sjurplus lines insurance placed under the provisions of ss. 626.913-626.937,” only implicated part one of the insurance code, i.e., sections 627.011-627.381. Accordingly, it held that the balance of chapter 627 did apply to surplus lines carriers. Id. at 1044. Zota was followed in August 2008 by an Eleventh Circuit decision, CNL Hotels & Resorts. Inc. v. Twin City Fire Insurance Co., 291 Fed.Appx. 220 (11th Cir.2008), which addressed section 627.410, the filing requirements statute at issue here. The CNL court relied on Zota and concluded that section 627.410 applied to surplus lines carriers.

At its next regular session, the Florida legislature responded to these two decisions by enacting section 626.913(4), Florida Statutes (2009). A staff analysis for the committee substitute for Senate bill 1894 cast light on the intent behind the legislation. It stated:

Historically, surplus lines insurers have not been subject to the insurance regulatory requirements in ch. 627, F.S., as authorized insurers due to a specific exemption provision for surplus lines under [ section 627.021(2) ]. Furthermore, the Office of Insurance Regulation (OIR) has never regulated surplus lines insurers as to rate, form, or other requirements under ch. 627, F.S. However, two recent rulings by the Florida Supreme Court [Zota] and a federal appellate court [CNL ] have altered the manner in which surplus lines insurers have historically been regulated. Essentially, these rulings require that surplus lines policy forms must now be filed, reviewed, and approved by the OIR under part II of ch. 627, F.S., which has never before been a requirement for these carriers.
The bill responds to these court decisions by clarifying that the form filing and other provisions of ch. 627, F.S., except where specifically stated, do not apply to surplus lines insurance.
[T]he legislation provides that the provisions of the bill will operate retroactively to October 1,1988, the effective date of a law enacted in 1988 adding the surplus lines exemption to [section 627.021], Thus, the bill exempts surplus lines insurance from the provisions of ch. 627, F.S., from October 1, 1988, to present.

Fla. S. Comm, on Judiciary, CS for SB 1894 (2009) Staff Analysis 1-2 (Apr. 2, 2009) (on file with the committee) (footnotes omitted). The retroactivity language discussed in this analysis appeared in chapter 2009-166, section 7, Laws of Florida. But in the 2009 Florida Statutes, it was relegated to a footnote to the amended statute. See § 626.913 n. 1, Fla. Stat. (2009).

A statute is presumed not to have retroactive application, but the presumption is rebuttable by clear evidence that the legislature intended that the statute be applied retroactively. Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 195 (Fla.2011). Thus, under the Florida Supreme Court’s two-prong test for retroactivity: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 877 (Fla.2010).

In this case, as in Devon, the published text of the amended statute itself does not contain a provision addressing retroactivity. However, like the Devon court, we have looked to the enacting law to ascertain the legislature’s intent. See 67 So.3d at 196; see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995) (noting that the statute at issue did not contain a retroactivity statement, but citing the enacting law for the proposition that “the Legislature has expressly stated that section 627,727(10) is remedial and is to be applied retroactively”). That law, chapter 2009-166, section 7, specifically declares that “[t]he amendments to s.626.913, Florida Statutes, in this act are remedial in nature and operate retroactively to the regulation of surplus lines insurers from October 1,1988.” A more clear expression of legislative intent could hardly be found. Thus,- the first prong of the retroactivity test has been met.

The second prong of the test requires us to consider whether retroactive application of the statute would violate constitutional principles. Even when the legislature has clearly expressed its intention that the statute be given a retroactive application, courts must refuse to do so' if it “impairs vested rights, creates new obligations, or imposes new penalties.” Lafor-et, 658 So.2d at 61. The appellees here maintain that retroactive application of section 626.913 would impair their vested rights to have policy terms preapproved by the Office of Insurance Regulation. See § 627.410. But at the time the policy was issued, March 2008, the OIR was not regulating the forms used by surplus lines insurers. See Staff Analysis, supra. Thus any such right, if there was one, did not spring into being until the supreme court issued its Zota decision on June 26, 2008, well after the effective date of the policy. As to this particular policy, no right to OIR review existed at the time of its issuance.

When the legislature amends a statute shortly after controversy has arisen over its interpretation, the amendment can be considered an interpretation of the original law, not a substantive change. See Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So.2d 494, 503 (Fla.1999). Here, the legislature did just that. Following the Zota and CNL decisions, it quickly amended the statutes and, by providing that the amended provisions apply retroactively, it clarified that it had intended since 1988 that chapter 627 did not apply to surplus lines carriers.

Moreover, even if Essex had been required to present the exclusions for OIR’s review, its failure to do so would not be cause for voiding them. In QBE Insurance Corp. v. Chalfonte Condominium, Apartment Association, 94 So.3d 541, 545 (Fla.2012), our supreme court was presented with the following certified question: “Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable?” It answered that question in the negative, in part because voiding the deductible provision in the policy would alter the terms of the insurance contract. The parties had bargained for the coverage and the deductible, and the premiums were set based on that bargain. Id. at 554.

Voiding the exclusions at issue in this case would have the exact effect discussed in Chalfonte. “Voidance of exclusion to an insurance policy is a severe penalty which alters the very terms of the deal between the parties. It requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” Id. (quoting Fed. Deposit Ins. Corp. v. Am. Cas. Co. of Reading, Pa., 975 F.2d 677, 683 (10th Cir.1992)).

In arriving at its decision on this point, the Chalfonte court also relied on Essex Insurance Co. v. Zota, 607 F.Supp.2d 1340, 1351 (S.D.Fla.2009), the federal case that had originally posed the question answered in our supreme court’s Zota decision. After the certified question had been answered, i.e., whether chapter 627 applied to surplus lines carriers, the court was faced with the question of whether an exclusion in the Essex policy should be voided because the insurer did not have OIR approval. The Southern District held that voiding the exclusion and allowing the rest of the policy to remain in force would raise constitutional concerns. Id. at 1350-51 (citing AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989)). It held that the exclusion was valid notwithstanding Essex’s failure to comply with chapter 627. Id. at 1352. For these reasons, we hold that Verizon and Mastec have not shown a constitutional violation that would prevent section 626.913 from being retroactively applied.

In sum, we hold that: (I) the 2009 amendment to section 626.913 applies retroactively; (II) such retroactive application is not unconstitutional; and (III) failure to comply with section 627.410 does not invalidate the policy exclusions. We reverse the summary judgment entered in this case and remand to the circuit court for further proceedings in accordance herewith.

Application of the Policy Exclusions

The remaining issue in this case is whether the exclusions contained in the policy’s combination general endorsement apply to the claims asserted in the underlying wrongful death suit. Essex asks us to rule in its favor on that point as well. However, although the parties addressed that issue in their cross-motions for summary judgment, the circuit court did not decide it. Accordingly, we decline to resolve this issue, and we leave it for the circuit court to address on remand.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.

      . Section 627.426 was not specifically addressed, but as will become clear, our decision in this case applies equally to that statutory provision.

      . Surplus lines insurance is an alternative product that can be purchased from insurers not authorized to do business in Florida when the coverage sought is not available from authorized insurers. § 626.915, Fla. Stat. (2008).

      .The parties do not dispute that the complaints involved in this case, in the underlying suit by the personal representative and in Essex’s suit for declaratory relief, were filed after May 15, 2009.

      . The court in that case also found that Essex was not entitled to rescind the policy, a theory not asserted here.


text:
    Jovan LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6111.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Rehearing Denied Nov. 26, 2013.

      Dane K. Chase of Bower Rodriguez, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Elizabeth Macks, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Jovan Lamb appeals the denial of his motion for postconviction relief, which challenged his convictions for armed false imprisonment, burglary of a conveyance, grand theft auto, and fleeing at high speed. Lamb argues, and we agree, that he was prejudiced by his trial counsel’s' ineffective assistance in failing to file a motion for new trial. Accordingly, we reverse and remand for a new trial.

Lamb’s charges arose from an armed robbery of Dexter Rhodes and his girlfriend, Chananja Jackson. According to the trial testimony, the couple had arrived at Rhodes’ home- late one night. As they exited the car, a masked man jumped Rhodes, who tripped and fell as he tried to run away. Other perpetrators came from the side of the house, and one had a gun. They took money from. Rhodes’ pocket and secured him with duct tape. At first Rhodes believed that one of the robbers might be Lamb, whom he knew by the nickname of Chicken. But when he called out using that nickname, there was no response, so Rhodes figured that he was not Lamb. A police officer testified that Rhodes also said one of the men might have been his uncle. But at trial Rhodes denied saying that, although he admitted that Lamb, his uncle, and one of the perpetrators were generally the same physical build.

As Rhodes was being robbed, one of the men pushed Jackson onto the back seat of the car, and it sped off. One man was in the back with Jackson, and two men were in the front seat. After about five minutes, the car slowed and the back-seat passenger jumped out. At some point, the front-seat passenger threw the gun out the window. Jackson heard the driver and front-seat passenger talking, and she said they used the nicknames Chicken and Snap. Jackson testified that Chicken was the driver. She testified that the men never removed their masks, but in a seeming contradiction, she also testified that she got a glimpse of their faces. Eventually, the car stopped and Jackson got out. The car drove away, and Jackson was picked up by the police.

The following day, Jackson picked Lamb’s picture from a photopack at the police station. A detective testified that Jackson immediately picked Lamb’s photo and said he was one of the persons involved in the crime. Another officer testified that Jackson said she knew who Chicken and Snap were, that at some point they had taken off their masks, and that she saw their faces. At trial, Jackson identified Lamb as the person she had chosen from the photopack. But she testified that she was not sure who the driver of the car and passenger were, and specifically she could not identify Lamb as one of them.

In argument on Lamb’s motion for judgment of acquittal, the State and defense disagreed over whether Jackson ever identified Lamb as a perpetrator in her trial testimony. The parties concurred that the entire case turned on her identification of Lamb, and the trial judge observed that it was “certainly not the strongest that I’ve ever heard ... one of the weakest in my experience of trying these kinds of cases.” The judge reserved ruling on the motion in order to review the trial transcript overnight. The judge noted:

I got the impression that Ms. Jackson and her boyfriend would have a preference to be anyplace but here. For what reason, I don’t know, but they were certainly not very helpful to the State. And there is nothing else in the testimony from the officers that lend credence to an identification of Mr. Lamb as being the perpetrator. This case turns solely on Ms. Jackson’s testimony.

The following day, after the charge conference, the judge stated: “I’m not so sure we’re going to get that far. Because I’m still thinking about her testimony, and my recollection is when you tried to get her to ID Mr. Lamb, she didn’t.” The judge later stated that he did not know if Jackson “was confused or evasive.” But the judge ultimately denied the motion for judgment of acquittal, concluding “that there was identification sufficient to go to the jury.” Lamb was convicted as charged.

In one of the claims asserted in Lamb’s postconviction motion filed under Florida Rule of Criminal Procedure 3.850, Lamb alleged that his trial counsel rendered ineffective assistance in failing to file a motion for new trial. Lamb maintained that the motion should have been based on the weight of the evidence and on Jackson’s recanted testimony. The postconviction court granted an evidentiary hearing on this claim.

At the hearing, Lamb’s trial counsel testified that he filed a renewed motion for judgment of acquittal after the verdict. He believed this motion was sufficient because it would end the case, whereas a motion for new trial would merely garner a new trial. Counsel recalled that he did not think a motion for new trial would cause the judge to change his mind about rulings made during the trial. He also asserted that he refrained from filing a motion for new trial as a matter of trial strategy, but he admitted that there was no harm in filing the motion. Finally, trial counsel testified that Jackson did not approach him after trial to recant her testimony.

Denying relief on this claim, the postconviction order stated that “[i]t was proper for trial counsel to raise a claim of insufficiency of the evidence in a renewed Motion for JOA.” That statement, while accurate, failed to address Lamb’s claim that counsel should have filed a motion for new trial based on the weight of the evidence. And trial counsel’s testimony at the evidentiary hearing reflected his misunderstanding of the two motions.

On the one hand, a motion for judgment of acquittal tests the sufficiency of the evidence; a trial court must determine “whether the evidence presented is legally adequate to permit a verdict.” Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). On the other hand, a motion for new trial tests the weight of the evidence; a trial court must weigh the evidence and determine credibility just as a juror is required to do. Id.

Fergien v. State, 79 So.3d 907, 908 (Fla. 2d DCA 2012).

Trial counsel asserted that he forewent moving for a new trial because he did not think the judge would change his mind about rulings made during the trial. But his renewed motion for judgment of acquittal asked the judge to do precisely that in regard to the judge’s previous ruling that the State’s evidence was sufficient. A motion for new trial would have presented an entirely different question for the judge — based on the weight of the evidence, not its sufficiency.

The failure to file a motion for new trial can support a claim for postconviction relief. In Robinson v. State, 462 So.2d 471 (Fla. 1st DCA 1984), the First District reversed convictions for sexual battery and kidnapping and remanded for a new trial after defense counsel filed an untimely but successful motion for new trial. The order granting new trial was reversed on appeal because the motion had been untimely, and Robinson was then adjudicated guilty. Id. at 475 (citing State v. Robinson, 417 So.2d 760 (Fla. 1st DCA 1982)). In the subsequent appeal, Robinson argued that a new trial was warranted in the interest of justice. Id. at 476. Although the victim had positively identified Robinson as the rapist, there was expert testimony casting doubt on his participation. Id. at 474-75. Robinson maintained that he only gave the victim a ride in his car, and he denied any sexual contact. Id. at 474.

Although the appellate court recounted the evidence from Robinson’s trial, it explained the trial judge’s exclusive authority to review the weight of the evidence: “the only avenue for judicial review of the weight of the evidence is by motion for new trial at the trial court level.” Id. at 476-77. The First District then recognized an obligation on defense counsel to file a motion for new trial “in criminal cases where the evidence of guilt is tenuous.” Id. at 477.

Since the only judicial review of the weight of the evidence available to an accused is a motion for new trial, a fortiori the failure to timely file such a motion which results in the loss of all judicial review of evidentiary weight should likewise constitute ineffective assistance of counsel, in violation of the defendant’s constitutional rights.

Id. But rather than holding that it was ineffective assistance, the First District determined to grant a new trial “in the interest of justice.” Id. (citing Fla. R. App. P. 9.140(f), now found at 9.140(i): “In the interest of justice, the court may grant any relief to which any party is entitled.”).

The First District later clarified that Robinson did not establish “a per se rule of entitlement to relief for ineffective assistance of counsel without regard to the underlying facts involved in the case.” Williams v. State, 553 So.2d 309, 309 (Fla. 1st DCA 1989). Notwithstanding, Robinson provides a persuasive analysis of the circumstances in which the failure to file a motion for new trial may constitute ineffective assistance of counsel. In contrast, in Manley v. State, 605 So.2d 1327, 1328 (Fla. 2d DCA 1992), this court affirmed the denial an ineffective assistance claim based on counsel’s failure to file a motion for new trial, holding that it was “not convinced of any strong likelihood a new trial would have been ordered.”

We conclude that defense counsel’s failure to file a motion for new trial in this case constituted deficient performance. See Robinson, 462 So.2d at 477. The standard for proving ineffective assistance of counsel is two-pronged: a defendant must show that counsel’s performance was deficient and that the deficient performance caused prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While strategic decisions of counsel are subject to great deference in postconviction review, “‘patently unreasonable’ decisions, although characterized as tactical, are not immune.” Cabrera v. State, 766 So.2d 1131, 1133-34 (Fla. 2d DCA 2000) (quoting in part Roesch v. State, 627 So.2d 57, 58 n. 3 (Fla. 2d DCA 1993)). Trial counsel’s explanation for failing to file the motion reveals a fundamental misunderstanding of the difference between a motion for judgment of acquittal and a motion for new trial. We conclude that counsel’s decision to forego a motion for new trial was not reasonable trial strategy.

We also conclude that the prejudice prong of the Strickland test is satisfied here; there is a reasonable probability that, but for counsel’s failure to file a motion for new trial, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “The concern of the court evaluating an ineffectiveness claim should be whether the result of a particular proceeding is unreliable because of a breakdown in the adversarial process.” Cabrera, 766 So.2d at 1134 (quoting Downs v. State, 453 So.2d 1102, 1108-09 (Fla.1984)) (internal quotation marks omitted).

In this case, the identification testimony underpinning Lamb’s prosecution was highly equivocal. Although the trial judge ultimately concluded that the testimony was legally sufficient, he struggled with that question, and he characterized the testimony as the weakest identification evidence he had ever seen. We conclude that there is a reasonable probability that the judge would have granted a new trial if defense counsel had filed the proper motion based on the weight of the evidence. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SILBÉRMAN and SLEET, JJ„ Concur.

      . We note that the postconviction judge did not preside over the trial.

      . The order held that “there was no reason to file a Motion for New Trial based on recantation” inasmuch as defense counsel testified that Jackson did not contact him after the trial. That conclusion was supported by the testimony, and we discuss this issue no further.


author: ORFINGER, J.

text:
    Johnathan HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-116.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Certification to S.Ct. Denied Nov. 13, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Johnathan J. Henry appeals his conviction of burglary of an occupied dwelling. Henry argues that he was denied his constitutionally protected rights to a fair trial and access to the courts when, after electing self-representation, he was given no access to a law library, online legal research materials or some comparable legal resource. We affirm.

The facts of the case are unnecessary for our consideration of the legal issue presented. It is enough to know that the Office of the Public Defender was appointed to represent Henry until he expressed a desire to represent himself, something he informed the court he had done on four previous occasions. The trial court warned Henry about the lack of access to legal research materials in the county jail where he was held, but Henry was undeterred. After a thorough Faretta inquiry, the court allowed the public defender to withdraw and authorized Henry to proceed pro se. However, the court appointed standby counsel. Before jury selection, the court repeated most of its Faretta inquiry, confirmed standby counsel’s presence and again addressed Henry’s concerns about the lack of access to legal research material. Nonetheless, Henry informed the court that he was prepared to go to trial. After jury selection, the court asked Henry if he had any other matters to address. Henry responded, “I think we discussed them this morning. He gave me the witness list anyways. That was all I really wanted. That was my big deal.” The trial proceeded, and things did not go as Henry had hoped, as the jury found him guilty of burglary of an occupied dwelling. The court sentenced him to twenty-five years in prison.

Criminal defendants have a fundamental, constitutional right to adequate, effective, and meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). This right “require[s] prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 828 (holding in context of petitioners for postconviction relief). However, while the right of access to the courts does not allow a state to prevent an inmate from bringing a grievance to court, it also does not require the state to enable a prisoner to “litigate effectively.” Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (disclaiming language in Bounds, suggesting otherwise). Thus, it is clear that Bounds did not recognize an abstract, free-standing right to a law library, litigation tools, or legal assistance. Id. at 351.

Neither the United States Supreme Court nor any Florida court has directly addressed the question of whether an incarcerated pretrial defendant, who chooses self-representation, is denied the right of access to the courts when he is not provided access to legal research materials. But, guided by Bounds, many federal circuit courts and state courts have answered this question with a resounding “no,” holding that the offer of counsel to a defendant who then elects instead to proceed pro se, as was the case here, satisfies the state’s obligations under Bounds. See, e.g., Jones v. Armstrong, 367 Fed.Appx. 256, 259 (2d Cir.2010) (holding that discharging appointed counsel waived concerns under Bounds); United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir.1999) (explaining that providing counsel is constitutionally acceptable alternative to prisoner’s demand to access law library); Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir.1996) (holding state is not required to provide law library access to defendant who rejects offer of counsel); United States v. Smith, 907 F.2d 42, 44-45 (6th Cir.1990) (holding defendant’s waiver of counsel also “relinquished his access to a law library” and that to require law libraries for all pro se defendants would “cut against the entire grain of our criminal justice system”); Edwards v. United States, 795 F.2d 958, 961 n. 3 (11th Cir.1986) (“When counsel is offered, the alternative of a library is not mandatory.”); United States ex rel George v. Lane, 718 F.2d 226, 283 (7th Cir.1983) (determining state was not required to offer defendant law library access • once it offered defendant assistance of counsel, which defendant declined); United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir.1982) (explaining that prisoner’s right to self-representation does not include right to conduct research at' government’s expense); United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir.1978) (holding obligation to provide access to courts was satisfied by offering defendant assistance of counsel); Myron v. State, 248 Ga. 120, 281 S.E.2d 600, 603 (1981) (holding no error when defendant knew jail library was inadequate, yet repeatedly chose self-representation); State v. Brandt, 135 Idaho 205, 16 P.3d 302, 304 (2000) (“The constitution is not offended when a prisoner is required to choose between court-appointed counsel and proceeding pro se without the state providing legal materials.”); Piper v. State, 770 N.E.2d 880, 884-85 (Ind.Ct.App.2002) (holding state not required to provide' library access to defendant who rejected offer of counsel).

In the case before us, Henry discharged the public defender and elected to proceed pro se, fully aware of the lack of legal research material in the county jail. We agree with the rationale adopted by the federal and state courts cited above, and conclude the State satisfied its obligations under Bounds when it offered Henry counsel.

Still, Henry argues that because the postconviction petitioners in Bounds and Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997), were provided access to legal materials, he should have received access as well. He contends that a pretrial detainee’s need for legal materials is greater than that of a postconviction petitioner. We disagree. The State meets its constitutional obligation by providing “adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828, 97 S.Ct. 1491 (emphasis added). The state is not required to provide both. E.g., Kelsey v. Minnesota, 622 F.2d 956, 958 (8th Cir.1980) (“[A] prison law library is only one means of providing access ... the government need not provide inmates with every possible means....”). Normally, the state can choose the form of assistance. E.g., Lane, 718 F.2d at 231 (“The option rests with the government....”). In Henry’s situation, unlike that of a postconviction petitioner, the Sixth Amendment has predetermined the state’s choice and required the appointment of counsel. Appointed counsel is not generally required in postconviction proceedings. Compare Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding Sixth Amendment requires appointment of counsel in criminal prosecutions), with Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (declining to require appointment of counsel in postconviction proceedings), and State v. Weeks, 166 So.2d 892, 896 (Fla.1964) (holding no absolute right to postconviction counsel). Once the state offers counsel, it need not offer anything further. E.g., Lane, 718 F.2d at 231; Chatman, 584 F.2d at 1360. Thus, we conclude that Henry’s constitutional rights were not violated. None of the other arguments advanced by Henry have merit.

AFFIRMED.

TORPY, C.J. and COHEN, J, concur.

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

      . Most recently, the Court held that the denial of access to a law library before trial does not provide a basis for a pro se petitioner’s habe-as corpus relief because no Supreme Court case clearly establishes a pro se petitioner’s constitutional right to law library access. Kane v. Garcia Espitia, 546 U.S. 9, 10, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005).

      .Generally, cases that confront the issue of a pretrial detainee’s access to legal materials treat this as an "access to courts” issue. However, the few that mention the right to a fair trial conflate the two rights without elaboration. See United States v. Grimes, 641 F.2d 96, 98 (3d Cir.1981). Either way, Henry has not developed his contentions about the fairness of his triál in a way that distinguishes that issue from his access to courts argument.

      . The trial court wisely appointed standby counsel, who assisted Henry throughout trial. Several states have held that the appointment of standby counsel ameliorates any potential concerns under Bounds, following a knowing and voluntary election to proceed pro se. See, e.g., State v. Murray, 184 Ariz. 9, 906 P.2d 542, 561 (1995); State v. Fernandez, 254 Conn. 637, 758 A.2d 842, 852-53 (2000); State v. Simon, 297 N.W.2d 206, 209-10 (Iowa 1980); Evans v. State, 725 So.2d 613, 702-04 (Miss.1997); Wilkie v. State, 98 Nev. 192, 644 P.2d 508, 509 (1982); State v. Panzera, 139 N.H. 235, 652 A.2d 136, 139 (1994); Jennings v. State, 4 P.3d 915, 919 (Wyo.2000).

      . Even if this Court held that Henry had a right to legal research materials, he would be required to demonstrate sufficient prejudice to warrant reversal. Lewis, 518 U.S. at 349, 116 S.Ct. at 2174; State v. Knight, 866 So.2d 1195, 1207-08 (Fla.2003). That was not done here.


author: PER CURIAM.

text:
    Harvey BLANK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4454.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2013.
    Rehearing Denied Nov. 21, 2013.
    Harvey Blank, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Courtney BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2356.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Bryan Courtney, Zephyrhills, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 998 So.2d 650, 651 (Fla. 4th DCA 2008); Robinson v. State, 943 So.2d 860, 861 (Fla. 4th DCA 2006); Ulcena v. State, 925 So.2d 346, 347 (Fla. 4th DCA 2006).

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


text:
    Ivory M. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Ivory M. Brown, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, C.J., WARNER and CONNER, JJ., concur.


text:
    Gregory ROWE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2187.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Gregory Rowe, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ajfimed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

TAYLOR, LEVINE and FORST, JJ., concur.


author: GROSS, J.

text:
    Danielle CARUSO, Rick Bernat and Catherine Del Re, Petitioners, v. Joyce KNIGHT and Michelle Jones, Respondents.
    No. 4D13-1551.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Rehearing Denied Nov. 19, 2013.

      Mary Barzee Flores, Robert T. Kofman and Tobi B. Lebowitz of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for petitioners.
    Kenneth J. Kavanaugh of Kenneth J. Kavanaugh, P.A., Miami, for respondents.
   GROSS, J.

Three Publix managers petition for a writ of certiorari to review an order disqualifying their counsel, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. (“Stearns Weaver”). The managers are being sued by two former bakery employees for, among other things, conspiring to have them fired. Publix is not a defendant in this civil suit, but one of the former employees previously filed an employment discrimination complaint against Publix with the Florida Commission on Human Relations. Publix retained Stearns Weaver to represent both the managers in this case and Publix’s interests. The trial court disqualified Stearns Weaver because the law'firm had access to private or confidential information in Publix’s personnel files for the former employees and access to the confidential FCHR file. The managers were involved in responding to the FCHR complaint and at least one of the managers had access to the personnel files. The court was concerned, however, that Stearns Weaver, which solely represented Publix, had access to confidential irrelevant information that would not otherwise have been available.

Disqualification of a party’s chosen counsel is a drastic remedy that should be used sparingly. Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 608 (Fla. 4th DCA 2004); see also Gutierrez v. Rubio, 126 So.3d 320, 2013 WL 1316383 (Fla. 3d DCA Apr. 3, 2013). The party seeking disqualification has the burden of showing that it is necessary because of actual harm. Coral Reef of Key Biscayne Developers v. Lloyd's Underwriters at London, 911 So.2d 155, 158 (Fla. 3d DCA 2005). Disqualification is not appropriate if lesser alternatives can alleviate the harm. Id.; Esquire Care, Inc. v. Maguire, 532 So.2d 740, 741 (Fla. 2d DCA 1988) (recognizing that before ordering disqualification the trial court should determine whether “one party has obtained an unfair advantage over the other which can only be alleviated by removal of the attorney” (citations omitted)).

We agree with petitioners that the disqualification order departs from the essential requirements of law. This case does not involve attorney-client confidences or work product concerns which serve as the grounds for many of the attorney disqualification cases. Counsel’s access to private information in the FCHR file and the personnel files did not warrant disqualification. Although Publix is not a party in this suit, its interests are aligned with those of the managers. Information in the personnel files is relevant to this litigation. The files include attendance and tardiness records and other information related to the former employees’ termination. Counsel’s access to any irrelevant private information in the personnel files and FCHR complaint is not equivalent to disclosure of privileged attorney-client information. Thus, the privacy rights of the former employees could have been protected by less drastic means, such as the issuance of a protective order to prevent use or dissemination of irrelevant personal information.

Accordingly, we grant the petition and quash the trial court’s order.

DAMOORGIAN, C.J., and WARNER, J., concur.


text:
    Mark OLIVEIRA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1311.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Rehearing Denied Nov. 26, 2013.

      Mark Oliveira, Live Oak, pro se.
    No appearance for respondent.
   PER CURIAM.

Mark Oliveira filed a pro se habeas petition in this court, challenging his convictions and sentences in two lower court cases as well as an order that barred him from filing future pro se filings in the trial court. Oliveira previously appealed his convictions and sentences. See Oliveira v. State, 751 So.2d 611 (Fla. 4th DCA 1999); Oliveira v. State, 718 So.2d 1258 (Fla. 4th DCA 1998). He subsequently filed over thirty appeals and petitions in this court in connection with those lower court cases.

In 2011, this court directed Oliveira to show cause why sanctions should not be imposed. In 2012, this court affirmed the trial court’s denial of another post-conviction relief motion filed by Oliveira. Oliveira v. State, 96 So.3d 908 (Fla. 4th DCA 2012). This court also affirmed the trial court’s sanction order. Id. With these two 2012 affirmances, orders were issued directing Oliveira once again to show cause why sanctions should not be imposed by our court. Though no sanction order was issued in either 2011 or 2012, Oliveira was well aware that future frivolous filings could result in sanctions.

Undeterred, and barred from filing in the trial court, Oliveira filed this frivolous petition for "writ of habeas corpus. See Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (“[Hjabeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to [rule 3.850].”) (quoting Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001)). Because of Oliveira’s ongoing abuse of the postconviction process, we directed Oli-veira to explain why he should not be barred with respect to future pro se filings pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), and Florida Rule of Criminal Procedure 3.850(m). We have reviewed Oliveira’s response and conclude that sanctions are appropriate. Lake v. State, 115 So.3d 1046 (Fla. 4th DCA 2013) (citing Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995)); see also McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

Accordingly, the Clerk of this court is directed to no longer accept any paper filed by Mark Oliveira unless that paper has been signed by a member in good standing of The Florida Bar and -that member certifies that a good faith basis exists for each claim presented. Further, we direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

Petition denied. Sanctions imposed.

DAMOORGIAN, C.J., CONNER and FORST, JJ., concur.

      . LT 96-6058 & LT 97-1481.

      . Oliveira prevailed on a sentencing challenge claiming that his reclassified sentence associated with battery on a law enforcement officer could not be enhanced under the habitual offender statute. Oliveira was receded from by Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000), which was the subject of the Florida Supreme Court’s decision in State v. Hearns, 961 So.2d 211 (Fla.2007).

      . LT 96-6058: 4D99-417 (3.800); 4D00-4607 (IAAC petition); 4D02-278 (3.850); 4D02-4537 (belated appeal); 4D03-1515 (3.800); 4D05-3762; 4D07-206 (3.800); 4D08-4605 (3.800); 4D10-5345 (mandamus); 4D11-322 (mandamus); 4D11-1638 (3.850); 4D11-3267 (3.850).

        LT 97-1481: 4D97-2088 (appeal); 4D98-3476 (habeas corpus); 4D98-4257 (habeas corpus); 4D99-3798; 4D00-112 (belated appeal); 4D02-291 (belated appeal); 4D02-461 (3.850 appeal); 4D02-3500 (3.850); 4D03-1203 (3.800); 4D03-4767 (3.800); 4D04-3585 (habeas appeal); 4D04-3792 (appeal); 4D05-3493 (3.800); 4D08-244 (3.800); 4D09-3100 (3.800); 4D10-5344 (mandamus); 4D11-323 (mandamus); 4D11-1637(3.850); 4D11-3262 (3.850 & Spencer).

      . 4D11-1637 & 4D11-1638 (orders of August 21, 2011).

      . Consolidated cases 4D11-3262 & 4D11-3267.


text:
    Marvin CROWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-885.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

After our independent review of the record, we affirm the disposition order entered following the appellant’s plea. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, we remand the case to the circuit court with instructions to correct the order to specify the maximum term of imprisonment which an adult may serve for each offense, as outlined at the plea hearing.

Affirmed and remanded with directions.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Dwayne Don WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-424.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Cedric Anthony LUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-360.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Walker v. State, 656 So.2d 950 (Fla. 5th DCA 1995).

GROSS, MAY and CIKLIN, JJ., concur.


text:
    Jhonathan RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1612.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.

      Daniel Mark Cohen of Daniel Mark Cohen, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of his postconviction motion. See Fla. R. Crim. P. 3.850. We affirm the denial without prejudice to his right to file a facially sufficient motion within sixty days of the issuance of the mandate in this case.

The defendant entered a negotiated guilty plea to one count of DUI Manslaughter on April 30, 2008. He was sentenced to one year in jail, followed by 15 years’ probation. The charges arose from allegations that the defendant was racing another motorist, whose car crashed. The passenger in the other vehicle died.

The defendant alleged that his counsel failed to advise him of the deportation consequences of entering the plea, and that the trial court indicated only that the defendant could be subject to deportation, not that he would be subject to deportation. Hernandez v. State, 124 So.3d 757, 761, 2012 WL 5869660, *3 (Fla. Nov. 21, 2012).

Because the defendant raises color-able claims, our denial is without prejudice to his right to file a facially sufficient motion consistent with Cano v. State, 112 So.3d 646, 648 (Fla. 4th DCA 2013):

Where a movant has received the standard “may” or “could” deportation warning required by rule 3.172(c)(8), to state a claim for relief under Padilla, a movant must establish the following: (1) that the movant was present in the country lawfully at the time of the plea; (2) that the plea at issue is the sole basis for the movant’s deportation; (3) that the law, as it existed at the time of the plea, subjected the movant to “virtually automatic” deportation; (4) that the “presumptively mandatory” consequence of deportation is clear from the face of the immigration statute; (5) that counsel failed to accurately advise the movant about the deportation consequences of the plea; and (6) that, if the movant had been accurately advised, he or she would not have entered the plea.

Id. (citations omitted).

We therefore affirm the summary denial of the defendant’s postconviction motion without prejudice to his right to amend, in good faith, consistent with this Court’s opinion. Should he do so, we remind the trial court to either attach portions of the record conclusively refuting his claims or to hold an evidentiary hearing on the matter.

WARNER, GROSS and MAY, JJ„ concur.


author: EMAS, J.

text:
    CAREPLUS HEALTH PLANS, INC., Appellant, v. INTERAMERICAN MEDICAL CENTER GROUP, LLC, Appellee.
    No. 3D13-1459.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.

      Kenny Nachwalter and Robert D.W. Landon, III, Miami, and Victoria J. Shan-strom, for appellant.
    Jose Menendez, Coral Gables; Ralph 0. Anderson, Fort Lauderdale, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Defendant/Appellant CarePlus Health Plans, Inc. (“CarePlus”) appeals from the lower court’s order denying a motion to compel arbitration of the claims brought by Plaintiff/Appellee Interameriean Medical Center Group, LLC (“Interameriean”).

Interameriean operates medical centers in South Florida that treat patients through licensed healthcare professionals. CarePlus is a state-licensed Health Maintenance Organization that has a contract with the federal Centers for Medicare and Medicaid Services (“CMS”) to provide medical services.

CarePlus and Interameriean entered into a Primary Care Agreement in 2004 (the “2004 Agreement”). Under that contract, Interameriean treated CarePlus’s Medicare Advantage members pursuant to a “risk capitation” arrangement in which CarePlus agreed to cede to Interameriean a portion of the premium it received from CMS in exchange for treatment. The 2004 Agreement does not contain any provision regarding arbitration of disputes arising out of the 2004 Agreement. It does, however, contain a provision that actions both at law and in equity are to be commenced and maintained exclusively in Miami-Dade County, as well as a provision that the 2004 Agreement “may not be amended, supplemented, waived or changed orally or by course of conduct of the parties but only by a written and signed document by the party by whom enforcement is sought and which shall make specific reference to this Agreement.” (Emphasis added).

Six years later, in 2010, Interameriean entered into the Independent Practice Association Participation Agreement (the “2010 Agreement”) with Humana Insurance Company, Humana Health Insurance Company of Florida, Inc., and Humana Medical Plan, Inc. (collectively “Humana”). Included in the “Humana” designation were affiliates of the specifically named Humana entities “that underwrite or administer health plans.” CarePlus was not a signatory to the 2010 Agreement but is alleged to be an “affiliate” of Humana. The 2010 Agreement contains the following arbitration provision:

Agreement to Arbitrate. The parties agree that any dispute arising out of them business relationship which cannot be settled by mutual agreement shall be submitted to final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including disputes concerning the scope, validity, or applicability of this agreement to arbitrate (“Arbitration Agreement”). The parties agree that this Arbitration Agreement is subject to, and shall be interpreted in accordance with, the Federal Arbitration Act, 9 U.S.C. §§ 1-14. No claim or allegation shall be excepted from this Arbitration Agreement, including alleged breaches or the [2010] Agreement. .. .The parties agree to arbitrate disputes arising from the parties’ business relationship prior to the effective date of the [2010] Agreement under the terms of this arbitration provision....

CarePlus terminated the 2004 Agreement on or about August 81, 2011. In March of 2012, CarePlus provided Inter-american with a final reconciliation of the amounts it owed to Interamerican under the 2004 Agreement. Interamerican disputed the reconciliation and filed suit against CarePlus on March 13, 2013. Count I of that complaint seeks damages from CarePlus for CarePlus’s alleged breach of the 2004 Agreement. Count II seeks an accounting from CarePlus.

Instead of answering the complaint, Ca-rePlus filed a motion to compel arbitration. In its motion, CarePlus acknowledged that the 2004 Agreement did not include an arbitration provision but asserted it was entitled to arbitration of the 2004 Agreement pursuant to the arbitration provision of the 2010 Agreement. CarePlus argued it was (i) included in the 2010 Agreement’s definition of parties to the Agreement because it underwrites/administers health plans and was an affiliate of one or more of the specifically named Humana entities; (ii) the 2010 Agreement’s arbitration provision encompassed any dispute the parties had arising out of their “business relationship,” and (iii) the 2004 contract claims asserted in the lawsuit arise out of the overall business relationship between Ca-rePlus and Interamerican.

Interamerican opposed the motion on the basis that the lawsuit did not involve Humana or the 2010 Agreement, that the 2004 Agreement contained no arbitration provision, and that the parties never intended to arbitrate disputes under the 2004 Agreement.

The trial court held a hearing on Care-Plus’s arbitration motion, at the conclusion of which the court entered an order denying the motion. This appeal followed.

We review de novo the court’s determination on a motion to compel arbitration. Turner Const. Co. v. Advanced Roofing, Inc., 904 So.2d 466 (Fla. 3d DCA 2005).

This ease rests upon whether the arbitration clause contained in the 2010 Agreement between Humana and Interamerican is sufficient to compel arbitration of the disputes between Interamerican and Care-Plus arising out of the 2004 Agreement.

Generally, three elements must be considered in ruling on a motion to compel arbitration: “(1) whether a valid arbitration agreement exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). ‘Whether an arbitration clause requires arbitration of a particular dispute depends on'the intent of the parties to the contract.” Id. Florida law and public policy strongly favor arbitration and are encouraged to resolve doubts in favor of arbitration. Id.

The parties do not dispute that the issue for which Interamerican brings action against CarePlus is a breach of the 2004 Agreement, namely the payment terms of that Agreement. Nonetheless, CarePlus contends the language of the arbitration clause in the 2010 Agreement governs the 2004 Agreement and compels arbitration of a dispute involving an alleged breach of the 2004 Agreement. We do not agree.

Here, the two agreements were executed six years apart by different signatories. The signatories to the 2004 Agreement are Interamerican and CarePlus, whereas the signatories to the 2010 Agreement are In-teramerican and Humana. Most significantly, the 2004 Agreement contains a provision that the 2004 Agreement “may not be amended, supplemented, waived or changed orally or by course of conduct of the parties but only by a written and signed document by the party by whom enforcement is sought and which shall make specific reference to this Agreement.”

Thus, under the terms of the 2004 Agreement, Interamerican and CarePlus evidenced no intent to arbitrate disputes arising from the 2004 Agreement, and prohibited modification of its terms unless in writing and specifically referencing the 2004 Agreement. The 2010 Agreement does nothing to alter the parties’ intent, and the general language in the 2010 Agreement to “arbitrate disputes arising from the parties’ business relationship pri- or to the effective date of the [2010] Agreement” falls short of the express requirement in the 2004 Agreement that any modification of its terms make “specific reference” to the 2004 Agreement.

CarePlus maintains, however, that because the 2010 Agreement contains a valid and broad arbitration provision—including language that any dispute regarding the provision’s scope or applicability is to be determined in arbitration—the question of whether that provision compels arbitration of disputes under the 2004 Agreement is merely one of scope and should therefore be determined by the arbitrator rather than the trial court. See Mercedes Homes, Inc. v. Rosario, 920 So.2d 1254 (Fla. 2d DCA 2006)(holding the issue of arbitrability was a question for the arbitrator because the agreement provided that the parties would arbitrate any dispute over the scope of the arbitration.)

Even if we were persuaded that the question of the application of the 2010 Agreement’s arbitration provision to the 2004 Agreement is one of scope, CarePlus fails to meet the second prong of Seifert— whether an arbitrable issue exists. To satisfy this prong, there must exist a significant relationship between the claim and the agreement containing the arbitration clause. Seifert, 750 So.2d at 637-38.

As the Seifert Court observed:

[E]ven in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.

Id. at 638.

The Florida Supreme Court recently expounded on the requirement of a “significant relationship” or “nexus” in this context:

A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract.

Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013) (internal citations omitted).

This prong CarePlus cannot meet, as there is no nexus between the 2010 Agreement and the claims in dispute. The dispute revolves around the terms, and the alleged breach, of the 2004 Agreement. In attempting to establish the claims asserted in its complaint, Interamerican need not rely upon, refer to, construe or introduce any portion of the 2010 Agreement. In order to be arbitrable, the claim “must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the [2010] contract itself.” Seifert, 750 So.2d at 638. The absence of any identifiable nexus or significant relationship between the 2010 Agreement and the claims arising out of the 2004 Agreement is fatal to the position taken by CarePlus, and the trial court properly denied the motion to compel arbitration.

Affirmed.

      . CarePlus contends that because the designation of Humana in the 2010 Agreement includes Humana entities "that underwrite or administer health plans” (and therefore includes CarePlus), it can enforce arbitration as a member of the identified class of parties to that agreement. We need not, and therefore do not, reach this secondary issue of whether CarePlus, as an affiliate of Humana, can seek to compel arbitration of the 2004 Agreement by way of the 2010 Agreement to which it was neither a party nor a signatory. See Henderson v. Idowu, 828 So.2d 451 (Fla. 4th DCA 2002)(holding that a non-signatory to an arbitration agreement is entitled to its benefits as a third party beneficiary of that agreement).


text:
    Raynall L. NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4121.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See G.L.T. v. State, 366 So.2d 25 (Fla.1978).

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Ivan MALDONADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3782.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

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


text:
    Barry L. DUNCAN, Appellant, v. Karen Adler DUNCAN, Appellee.
    No. 4D12-2827.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Hal Vogel, Miami, for appellant.
    Cynthia J. Dienstag of Cynthia J. Dien-stag, P.A., Miami, for appellee.
   PER CURIAM.

This case involves a straightforward request for temporary support in a dissolution action. Barry Duncan (the Husband) appeals an order compelling him to pay $50,000 in temporary attorney’s fees and $10,000 in temporary accountant’s fees within fifteen days to Karen Duncan (the Wife). Because the trial court failed to make a factual finding regarding the Husband’s monthly income, which was disputed by the parties, we are compelled to reverse. We further address the fifteen-day deadline given to the Husband to pay the temporary fees and conclude his income and assets were insufficient to allow him to comply with the deadline.

The Wife filed a motion for temporary support, seeking temporary support, attorney’s fees, and costs for a forensic accountant. After a hearing on the motion, the trial court entered an order holding the Wife’s monthly gross income was $6844, her net monthly income was $5555, and her monthly expenses were $11,885. The trial court noted that the Husband’s forensic accountant testified that the Husband’s gross monthly income was $13,598, while the Wife’s forensic accountant testified that the Husband’s gross monthly income was $14,899.26. However, the trial court did not make a factual finding as to which figure was actually the Husband’s income. The trial court also found the Husband had a net worth of $494,120. The trial court held that the Wife had the need, and the Husband had the ability to pay, both temporary support and attorney’s fees.

On appeal, the Husband claims the trial court abused its discretion in finding both the Wife had a need, and he had an ability to pay, the temporary attorney’s fees award. With regard to the Wife’s need for an award of attorney’s fees, we affirm the trial court’s decision.

Our analysis of the Husband’s ability to pay is frustrated by the trial court’s failure to make findings as to Husband’s gross and net monthly income. Using the Husband’s figures, the Husband is in a worse financial position than the Wife and lacks the ability to pay any significant amount of the Wife’s fees. See Galligar v. Galligar, 77 So.3d 808 (Fla. 1st DCA 2011). However, using the Wife’s figures, the Husband is in a better financial position than the Wife and could pay at least part, if not all, of the Wife’s fees over time. Because we are unable to determine whether the Husband has the ability to pay the Wife’s fees, we must reverse and remand for the trial court to determine the Husband’s net monthly income. See Hernandez v. Hernandez, 58 So.3d 313, 315 (Fla. 5th DCA 2011).

Even using the Wife’s figures for the Husband’s income, the trial court erred in finding the Husband had the ability to pay the entirety of the Wife’s fees within fifteen days. It is reversible error for a trial court to order a large lump-sum payment when there is no evidence the payor has the ability to make the payment in the time frame ordered. Robinson v. Robinson, 668 So.2d 1074 (Fla. 2d DCA 1996). There is no record evidence that Husband could pay $60,000 in temporary fees in fifteen days. If, on remand, the trial court finds the Husband has the ability to pay all or part of the Wife’s fees, it should determine a schedule in line with the Husband’s ability to pay.

Reversed and remanded for further proceedings.

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

      . The Husband does not appeal that portion of the order awarding $3000 per month in temporary support.


text:
    Tyrez R. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2710.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 873 So.2d 898 (Fla.1979).

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: MAY, J.

text:
    Ronald JUVONEN, Diane Fronczek and Steven Gordon, Appellants, v. UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D12-230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Christopher Casper of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, and Ronald S. Nisonson of Ward, Damon, Pos-ner, Pheterson & Bleau, PL, West Palm Beach, for appellants.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   MAY, J.

Homeowners appeal an adverse summary judgment on an insurance coverage issue. They argue the trial court erred in finding that the insurer could refuse to pay General Contractor Overhead and Profit expenses (“GC Overhead”) as part of their claims for hurricane damage to their homes until the homeowners actually incurred the expenses. We agree.

Three homeowners had insurance policies with the insurer. After they sustained hurricane damage to their homes in 2005, they filed claims for benefits. The insurer assigned adjusters to determine the scope of the covered damage.

The adjusters did not include in their estimates, and the insurer did not pay, GC Overhead in its upfront or pre-repair payments to the homeowners. The insurer wrote to the homeowners explaining that the estimates did not include GC Overhead, but that if a general contractor was hired and the expense incurred, then the homeowners could forward the final bill for review and reimbursement.

The homeowners filed a complaint for declaratory relief and breach of contract against the insurer. They also sought class certification, which is not at issue in this appeal.

The homeowners claimed that the “Loss Settlement” provisions in their policies were ambiguous because they were silent on the insurer’s obligation to include GC Overhead in the pre-repair payment when that cost was reasonably likely to be incurred. They argued that sections 627.7011(3) and 627.7011(6), Florida Statutes (2008), require those amounts to be included, and the insurer violated the statute by refusing to make such payments until the expense was actually incurred.

The insurer moved to dismiss the complaint or for final summary judgment. It argued that the homeowners failed to state a cause of action for declaratory relief because they did not allege a breach of a specific policy provision. The insurer further argued that the statutory authority supporting their claims applied only to policies issued or renewed on or after October 1, 2005, and the homeowners’ policies were issued before that date.

The insurer argued it was entitled to dismissal or summary judgment on the breach of contract claim because it was not required to pay GC Overhead until those costs were actually incurred. The insurer relied on Trinidad v. Florida Peninsula Insurance Co. (Trinidad I), 99 So.3d 502 (Fla. 3d DCA 2011), rev. granted, 88 So.3d 151 (Fla.2012). Relying on Trinidad I, the trial court awarded summary judgment in favor of the insurer. Since that time, our supreme court has reversed Trinidad I. Trinidad v. Fla. Peninsula Ins. Co. (Trinidad II), 121 So.3d 433 (Fla.2013).

In Trinidad II, the supreme court held that an insurer’s required payment under a replacement cost policy includes overhead and profit, where the insured is reasonably likely to need a contractor for the repairs, because the insured would be required to pay costs for a general contractor’s overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property.

Id. at 436.

Yet, the insurer argues that Trinidad II does not apply because the supreme court interpreted the 2008 version of section 627.7011, and the 2005 version is at issue in this cáse. The insurer also argues that the homeowners failed to plead and prove a reasonable likelihood that GC Overhead would be incurred.

Although the 2008 version of section 627.7011 contains subsection (6), which the 2005 version did not, we find no meaningful distinction between the two versions that would dictate a different outcome. Further, in paragraph thirty-four of the homeowners’ Third Amended Complaint, they alleged entitlement to GC Overhead that is “reasonably likely” to be incurred. For these reasons, we reverse and remand the case to the trial court for a determination of whether the homeowners were reasonably likely to incur GC Overhead as part of their damages.

Reversed and Remanded.

GROSS and FORST, JJ., concur.

      . GC Overhead "are costs included in repair estimates and paid to contractors pursuant to contracts for repairs. Specifically, overhead includes fixed costs to run the contractor's business, such as salaries, rent, utilities, and licenses, and profit is the amount the contractor expects to earn for his services.” Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 436 (Fla.2013) (internal quotation omitted).

      . We understand that the trial court did not have the benefit of the supreme court’s opinion in Trinidad II at the time it ruled on the motion for summary judgment.


text:
    Joshua Ryan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4324.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences except to remand for correction of the written Order of Community Control/Probation to reflect that the sentences in Case Number 10CF1944AXX have been vacated.

Affirmed and Remanded.

TAYLOR, FORST and KLINGENSMITH, JJ., concur.