text:
    H.D., a child, Petitioner, v. Sharon SHORE, Superintendent of the Broward County Regional Detention Center, Respondent.
    No. 4D13-2690.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Howard Finkelstein, Public Defender, Diane Marie Cuddihy and Kory Hill, Assistant Public Defenders, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We previously granted this petition for writ of habeas corpus and ordered the juvenile immediately released from secure detention. This opinion follows to explain our reasoning.

The juvenile was arrested for burglary of a dwelling and grand theft offenses. It is undisputed that he does not score suffi-dent points on the risk assessment instrument for secure detention. At the initial detention hearing, the trial court ordered home detention for up to twenty-one days pending the adjudicatory hearing. See § 985.26(2), Fla. Stat. (2012).

A few days into the period of home detention, the mother reported that the juvenile had left her home without permission. The juvenile arrived at the father’s home that evening around the time he was to have returned from school. The following day, the father learned that, contrary to the juvenile’s statement, he had not gone to school. The father reported the violation. The juvenile probation officer filed an affidavit setting forth the violation.

The juvenile was taken into custody, and the trial court held a detention hearing. The State argued that the juvenile should be held in secure detention for the remainder of the twenty-one days. Defense counsel argued that there was no statutory authority for such action and that, pursuant to K.T.E. v. Lofthiem, 915 So.2d 767 (Fla. 2d DCA 2005), the court would have to commence an indirect contempt proceeding or find significantly changed circumstances before ordering transfer to secure detention. The trial court determined that it was not bound by K.T.E. and ordered the child held in secure detention until expiration of the twenty-one day period. The court did not indicate under what authority the child was being held and made no oral or written findings to support its determination. This petition followed.

First, we reject the State’s contention that the argument raised in this proceeding was not sufficiently preserved below. “The detention of juveniles is governed entirely by statute and strict compliance is required.” S.M. v. Dep’t of Juvenile Justice, 91 So.3d 175, 175 (Fla. 4th DCA 2012). The juvenile demonstrated an entitlement to immediate release in that secure detention was not authorized by the statute under the circumstances of this ease.

The juvenile detention statute does not authorize a court to order secure detention of a juvenile based merely on a violation of pre-adjudication home detention. See § 985.255, Fla. Stat. (2012) (setting forth detention criteria). Section 985.255(l)(a) pertains to a juvenile alleged to be an escapee from a residential commitment program, or alleged to be an absconder from a nonresidential program or post-adjudication community supervision. That section does not apply to the pre-adjudication home detention. Further, the court’s detention decision must be based on the results of a risk assessment instrument (“RAI”) and on the criteria of subsection (1). § 985.255(3)(a), Fla. Stat. (2012).

Accepting the State’s argument, as the trial court did, would allow a court to convert the remainder of the twenty-one day pre-adjudication detention period of section 985.26(2) to secure detention whenever a juvenile is alleged to have violated a condition of home detention. This is inconsistent with the statutory scheme.

At the hearing, the State correctly noted that section 985.24(l)(d) permits the use of secure detention in some circumstances to punish contempt of court. The court, however, did not initiate indirect contempt proceedings under section 985.037(4), Florida Statutes (2012). Further, a first contempt offense could be punished by up to five days in secure detention only. § 985.037(2), Fla. Stat. (2012).

We agree with K.T.E. that a court may initiate indirect contempt proceedings to punish a violation of a pre-adjudication home detention order. We disagree with K.T.E., however, that what is now section 985.265(1), Florida Statutes (2012), provides an independent basis for ordering secure detention as occurred here.

In K.T.E., and in subsequent published orders in K.D.R. v. Uliasz, 30 So.3d 502 (Fla. 2d DCA 2010), and C.H.M. v. Uliasz, 18 So.3d 536 (Fla. 2d DCA 2009), the Second District has indicated that a trial court can order secure detention by making written findings of “significantly changed circumstances.”

Section 985.265(1), Florida Statutes (2012), provides: “If a child is detained under this part, the depaHment may transfer the child from nonsecure or home detention care to secure detention care only if significantly changed circumstances warrant such transfer.” (Emphasis supplied). This provision constrains the department. It does not create an independent basis for a trial court to order secure detention. If a juvenile is transferred to secure detention under this provision, the court must conduct a detention hearing and comply with the requirements and criteria of section 985.255, Florida Statutes. The court may continue secure detention only if it complies with the detention statute and provides a basis for it.

The statutory scheme permits a juvenile who has violated home detention to be taken into custody by law enforcement. See § 985.101(l)(d), Fla. Stat. (2012). But secure detention is not thereafter authorized based solely on that violation unless the other statutory criteria are met. Id. (“Nothing in this subsection shall be construed to allow the detention of a child who does not meet the detention criteria in part V.”).

Here, the child did not score sufficient points on the RAI for secure detention, and the court did not provide clear and convincing written reasons for departing from the RAI. § 985.255(3)(b), Fla. Stat. (2012) (“If the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state, in writing, clear and convincing reasons for such placement.”).

Because the juvenile did not qualify for secure detention under the RAI, or state in writing other “clear and convincing” reasons, and the juvenile was not transferred to secure detention by the department, we grant the petition. We certify conflict with K.T.E. to the extent discussed in this opinion.

Petition granted.

WARNER, TAYLOR and LEVINE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4291.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Rehearing Denied March 31 2014.
    Danny O. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

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


author: CIKLIN, J.

text:
    Tiara DAVIS, Appellant, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2, a Delaware Statutory Trust, Appellee.
    No. 4D12-4503.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Scott Alan Orth of the Law Offices of Scott Alan Orth, P.A., Hollywood, for appellant.
    No brief filed on behalf of appellees.
   CIKLIN, J.

The appellant, Tiara Davis, appeals the non-final order denying her motion to quash service of process based on an irregular summons and improper service. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(i). Davis argues the trial court erred in not conducting an evidentia-ry hearing when she alleged that the summons was not regular on its face and she submitted an affidavit of non-service which contested that service complied with the statute. We find that the summons was regular on its face, but we agree with Davis that the court erred in not holding an evidentiary hearing.

In Fern, Ltd. v. Road Legends, Inc., 698 So.2d 364 (Fla. 4th DCA 1997), we explained that “neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.” Id. at 365 (quoting Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991)). Where the allegations contained in the motion to quash service of process and the supporting affidavit would establish a failure to effect valid service, an evidentiary hearing is required. Id. Here, Davis alleged in her affidavit that the summons and complaint were left on the doorstep of her apartment and that neither she nor a person residing in her home was served. Although there are exceptions, service is generally improper where the summons and complaint are left at the defendant’s door. See BoatFloat, LLC v. Cent. Transp. Int’l, Inc., 941 So.2d 1271, 1274-75 (Fla. 4th DCA 2006); Willoughby v. Seese Realty Inc., 421 So.2d 691, 692 (Fla. 4th DCA 1982).

Because Davis contested the veracity of the statements in the return of service, an evidentiary hearing was required. On remand, Davis will have the burden of proving by clear and convincing evidence that service did not meet the requirements of section 48.031, Florida Statutes (2012). See Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 503 (Fla. 4th DCA 2010) (“If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence.”) (quoting Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007)).

Reversed and remanded for further proceedings in accordance with this opinion.

WARNER and GERBER, JJ., concur.


text:
    Richard MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-3000.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.
    Rehearing Denied Nov. 6, 2013.

      Richard Morris, Wewahitchka, pro se.
    No appearance for respondent.
   On Motion for Rehearing

PER CURIAM.

We previously denied petitioner’s successive petition alleging ineffective assistance of appellate counsel (IAAC) by order citing Francois v. Wainwright, 470 So.2d 685, 686 (Fla.1985), and Xiques v. Dugger, 571 So.2d 3, 4 (Fla. 2d DCA 1990). Petitioner moves for rehearing, arguing that he was entitled to file a successive petition pursuant to Florida Rule of Appellate Procedure 9.141(d)(6)(C) which provides:

The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure.

Petitioner asserts that his successive petition alleged a new ground and was not an abuse of procedure. Petitioner shows no extraordinary circumstances that prohibited him from raising the issue in the first petition, and we deny the motion for rehearing.

It is well recognized that generally only one Rule 3.850 motion or IAAC petition is allowed. See Baker v. State, 878 So.2d 1236, 1243 (Fla.2004); Christopher v. State, 489 So.2d 22, 24 (Fla.1986); see also Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012) (en banc).

Rule 9.141(d)(6)(C) treats successive IAAC petitions similarly to successive Rule 3.850 motions for postconviction relief. Rule 3.850(h) limits movants to one Rule 3.850 motion unless extraordinary circumstances are shown. A court may dismiss a successive motion that raises new grounds if there is no good cause for the failure to have raised the grounds in the prior motion. Id. The Florida Supreme Court long ago observed:

The abuse of the procedure doctrine, as recently codified in rule 3.850, is now expanded to allow a court to summarily deny a successive motion for post-conviction relief unless the movant alleges that the asserted grounds were not known and could not have been known to the movant at the time the initial motion was filed. Further, the movant must show justification for the failure to raise the asserted issues in the first motion.

Christopher, 489 So.2d at 24 (citations omitted). The burden is on the movant to show extraordinary circumstances and good cause for having failed to raise the “new” claim in the prior motion.

The same principles are stated in Francois and Xiques with respect to petitions alleging ineffective assistance of appellate counsel. Courts routinely deny successive petitions under Xiques and the rule. E.g. Hernandez v. State, 990 So.2d 1116, 1117 (Fla. 3d DCA 2008); Marzullo v. State, 908 So.2d 1144, 1145 (Fla. 1st DCA 2005). The authority to allow a successive IAAC petition is discretionary, not mandatory. The burden is on the petitioner to show extraordinary circumstances and good cause for the failure to have raised the issue in the prior petition.

Here, petitioner alleged that when he filed his prior petition, he was not aware of Mullins v. State, 766 So.2d 1136 (Fla. 2d DCA 2000), regarding whether it is eiTor to allow witnesses to testify in prison clothing. The motion for rehearing refers to petitioner’s lack of education, and the limited abilities of prisoners to conduct legal research from within the prison system. The discovery of a case does not excuse the failure to have raised the issue in his first petition.

We are not unsympathetic to the plight of inmates attempting to conduct legal research from prison, but a prisoner’s recent discovery of an already existing case simply does not constitute extraordinary circumstances or good cause. To permit a successive motion/petition in this situation would be inconsistent with the intent of the rule and the general principles underlying the abuse of procedure doctrine. Generally, only one postconviction motion or petition alleging ineffective assistance of appellate counsel is allowed. Mullins issued more than a decade before petitioner filed his first petition. Petitioner’s recent discovery of this case is not good cause to permit a successive petition. Prisoners are not exempt from the rule prohibiting successive petitions.

Motion for rehearing denied.

WARNER, TAYLOR and CONNER, JJ., concur.


text:
    Sonia O. Del Risco POLLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5271.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Nov. 20, 2013.

      Crystal McBee Frusciante of the Crystal McBee Law Firm, P.A., Jupiter, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON MOTION FOR REHEARING, REQUEST FOR WRITTEN OPINION, and MOTION FOR REHEARING EN BANC

PER CURIAM.

This cause is before us on appellant’s Motion for Rehearing, Request for Written Opinion, and Motion for Rehearing En Banc. We deny appellant’s motion for rehearing and motion for rehearing en banc. However, we grant her request for written opinion, withdraw our previously issued per curiam affirmance, and substitute the following opinion in its place.

In this appeal, appellant challenges her convictions for conspiracy to manufacture cannabis and manufacturing cannabis. We affirm on all issues, but write this opinion solely to address her claim of fundamental error in the jury instructions.

When the trial court orally instructed the jury, the court incorrectly substituted the word “possessing” for the word “processing” in the definition of the term “manufacture.” Specifically, the court orally instructed the jury as follows: “Manufacture means the production, preparation, packaging, labeling or re-labeling, propagation, compounding, cultivating, growing, conversion or possessing of a controlled substance either directly or indirectly.” (Emphasis added). However, the written jury instructions included the correct definition of manufacture: “ ‘Manufacture’ means the production, preparation, packaging, labeling or re-labeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance either directly or indirectly.” (Emphasis added).

Although appellant raised no objection to the instructions below, appellant argues on appeal that the trial court committed fundamental error when it orally instructed the jury that the term “manufacture” included “possessing” rather than “processing.”

Unless an error is fundamental, it must have been preserved for review through a contemporaneous objection. State v. Delva, 575 So.2d 643, 644 (Fla.1991). To constitute fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. at 644-45 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). An error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). “The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla.1988).

“A proper approach to fundamental error considers the jury instructions as a whole, in the context of the case that was tried; a proper approach does not nitpick at the instructions to manufacture a fundamental error that was overlooked by all the participants at trial.” Garzon v. State, 939 So.2d 278, 285 (Fla. 4th DCA 2006). Nonetheless, an erroneous jury instruction constitutes fundamental error “when the omission is pertinent or material to what the jury must consider in order to convict.” Delva, 575 So.2d at 645 (citation omitted). Applying this principle, we have held that “fundamental error occurs where a jury instruction incorrectly defines a disputed element of the crime in such a way as to reduce the state’s burden of proof.” Kennedy v. State, 59 So.3d 376, 381 (Fla. 4th DCA 2011).

Here, we acknowledge that replacing the word “processing” with the word “possessing” in the oral instruction on “manufacture” resulted in an incorrect definition of a disputed element of the crime. However, given that the written jury instructions were correct, we do not believe that fundamental error occurred merely because the trial court misstated a single word while orally instructing the jury.

In evaluating a claim of fundamental error in jury instructions, the proper approach is to examine the jury instructions as a whole, without nitpicking them to manufacture a fundamental error that was overlooked by all the participants at trial. Because the written jury instructions correctly stated the law and included the proper definition of “manufacture,” the erroneous oral instruction did not give rise to fundamental error. See Wike v. State, 698 So.2d 817, 822 (Fla.1997) (erroneous oral jury instruction using an “or” where an “and” was required did not constitute fundamental error where the jury was provided with a correct written copy of the instructions); Minor v. Singletary, 730 So.2d 326, 327 (Fla. 3d DCA 1999) (erroneous oral jury instruction regarding the definition of “excusable homicide” was not fundamental error where the jury was provided with the correct written instructions).

The Fifth District, however, appears to have reached a contrary result, expressly rejecting the argument that a correct written copy of the jury instructions cured an error in the oral instruction. See Stone v. State, 899 So.2d 421, 422 (Fla. 5th DCA 2005) (improper oral instruction on the elements of burglary constituted fundamental error even though a correct written copy of the instructions was furnished to the jury); Valentine v. State, 774 So.2d 934, 936-37 (Fla. 5th DCA 2001) (holding that it cannot be assumed that the jury disregarded the erroneous oral instruction even though correct written instructions were given to the jury) (per Griffin, J., with one judge concurring in result only).

Here, notwithstanding the fact that the trial court misspoke while orally instructing the jury, the written jury instructions were correct. In light of the correct written jury instructions, the jury would not have been misled into believing that mere possession was enough to establish the element of manufacturing. This is particularly true where the jury was instructed that possession of cannabis was a lesser included offense of manufacturing cannabis.

To the extent that Stone and Valentine are inconsistent with this opinion, we certify conflict with the Fifth District.

Affirmed.

TAYLOR, LEVINE and KLINGENSMITH, JJ„ concur.


author: GROSS, J.

text:
    PEOPLE’S TRUST INSURANCE COMPANY, Appellant, v. Raymond N. RODDY, Appellee.
    No. 4D12-4456.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 3, 2014.

      Alan S. Feldman, Anthony J. Tinelli, Alex Tirado-Lunciano and Michelle Diver-io of Lydecker Diaz, LLC, Miami, for appellant.
    Michael J. Mortell of Michael J. Mortell, P.A., Stuart, for appellee.
   GROSS, J.

After his home was destroyed by a fire, appellee Raymond Roddy filed a claim with his insurer, appellant People’s Trust Insurance Company. People’s denied coverage for numerous reasons, one being the claim that Roddy had made material misrepresentations on his application for insurance. The case was submitted to a jury, which awarded Roddy $766,258.06 in damages.

There was no signed, written insurance application, nor did Roddy ever receive a copy of the policy in the mail. Roddy applied for insurance over the phone. People’s telephone representative did not remember speaking with Roddy, but she testified to her usual practice in processing applications and said that she checked boxes on her computer based on Roddy’s answers to her questions. One such box indicated that Roddy’s home had a burglar alarm, a fact that was not true. Roddy denied saying that his home had a burglar alarm. There was no recording of the phone conversation between Roddy and the People’s telephone representative.

On March 18, 2009, People’s entered into a consent order with the Florida Department of Financial Services. A witness from the Department testified about the conduct that led to the consent order, including the assertion that People’s was “advertising rates that were much too low” so that “there was no way that they could support them.” In addition, unlicensed agents were giving quotes “based on every available discount”; People’s software auto-populated the discounts whether or not an applicant claimed to have a device that would warrant a discount.

On appeal, People’s attacks the admission of the consent order and the testimony of the Department witness as being unduly prejudicial under section 90.403, Florida Statutes (2012). The evidence was relevant to the issue of whether Roddy made a misrepresentation in applying for insurance. To prove how the application was made, People’s relied on its usual business practice, where telephone agents always check application boxes to reflect information provided by an applicant. To counter this evidence, Roddy was entitled to present evidence of a contrary business practice embedded in the company’s software. “Evidence of the routine practice of an organization ... is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.” § 90.406, Fla. Stat. (2012). This evidence went to the heart of the case and was not “unduly prejudicial” under section 90.408.

On a separate issue, the trial court erred in instructing the jury about an adverse inference that could be drawn from a failure to produce evidence. “For the court to tell a jury that an adverse inference may be drawn from the failure to produce evidence invades the province of the jury.” Jordan ex rel. Shealey v. Masters, 821 So.2d 842, 346 (Fla. 4th DCA 2002) (footnote omitted). However, we find the error to be harmless. The instruction let the jury decide whether there was evidence within the defendant’s control that it could have preserved; it did not suggest to the jury that the defendant failed to produce evidence within its control. Cf id. at 346-47.

We have fully considered the remaining issues on appeal and find no error.

WARNER and LEVINE, JJ., concur.


text:
    Mark J. CUYLER, Appellant, v. Judge Lisa MUNYON, et al., Appellee.
    No. 5D13-3514.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2013.
    Rehearing Denied Jan. 16, 2014.
    Rehearing Stricken Jan. 27, 2014.
    Mark Cuyler, Maitland, pro se.
    Pamela Jo Bondi, Attorney General, and Alex B.C. Ershock, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

TORPY, C.J., GRIFFIN and BERGER, JJ., concur.


author: MAY, J.

text:
    PALM BEACH POLO HOLDINGS, INC., a Florida corporation, Appellant, v. STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellee.
    Nos. 4D11-4660, 12-231.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Kristie Hatcher-Bolin and Monterey Campbell of GrayRobinson, P.A., Lake-land, and Neil P. Linden and David B. Levin of GrayRobinson, P.A., Miami, for appellee.
   MAY, J.

An insured property owner, Palm Beach Polo Holdings, Inc., challenges two final judgments entered in favor of its title insurer, Stewart Title Guaranty Company, in this consolidated appeal. Case number 11-4660 is an appeal from a final judgment for the insurer, reimbursing it for attorneys’ fees incurred when it represented the insured in an underlying property dispute. Case number 12-231 is an appeal of the trial court’s award of attorneys’ fees to the insurer, pursuant to section 57.105, Florida Statutes (2012). Multiple issues are raised. We find merit in one of them and reverse in part.

The Prequel

These appeals find their origin in a property dispute. The insured subdivided a parcel of property causing one parcel to become landlocked. The insured’s policy covered a “lack of a right of access to and from the land.” The policy stated that the insurer “will also pay the costs, attorneys’ fees and expenses incurred in defense of the title as insured, but only to the extent provided in the Conditions and Stipulations.” The conditions and stipulations provided that the insurer “will not pay fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy.”

Equestrian Club Estates (“Club”) owned a private road, which the insured wanted to use to access the landlocked parcel. The Club denied the insured access to the road. The insured made a demand on its title insurer, which retained counsel for the insured under a reservation of rights, to seek declaratory and injunctive relief for an implied grant of way over the Club’s road based on necessity. Following a non-jury trial, the court entered a final judgment in favor of the Club. It denied the insured a common-law way of necessity because the insured had created the lack of access by its own subdivision of the property. The trial court based its decision on the insured’s ownership of a second corporation that owned the adjoining parcel, which could be accessed from a public road.

The insured appealed the final judgment, and demanded that the insurer finance the appeal. The insurer denied coverage after entry of the final judgment in the underlying dispute, and did not finance the appeal. We affirmed. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, 949 So.2d 347 (Fla. 4th DCA 2007).

The Sequel

But the insured’s dispute with the insurer did not stop there. The insured filed a two-count complaint against the insurer, alleging that it had (1) breached the insurance contract and (2) acted in bad faith when it denied coverage and refused to finance the appeal. The insurer answered the breach of contract claim, moved to dismiss the bad-faith claim as premature, and filed a counterclaim against the insured for reimbursement of the attorneys’ fees and costs incurred during the trial in the underlying property dispute. The insurer also sought sanctions against the insured under section 57.105, Florida Statutes, alleging that the insured was judicially estopped from bringing these claims against the insurer. The trial court dismissed the bad-faith claim and granted sanctions, reserving jurisdiction to determine the amount.

The insurer moved for a judgment on the pleadings on its counterclaim for reimbursement of the trial fees. It argued that our decision in the prior property-dispute appeal established the lack of coverage for the insured’s claim. And once it is determined that no coverage exists, an insurer is entitled to indemnification for attorneys’ fees and costs incurred in representing the insured under a reservation of rights. The reservation of rights stated that the insurer would provide representation, but it reserved the right to seek reimbursement if the action was later determined to not be covered under the policy.

The trial court held a hearing on the insurer’s motion for judgment on the pleadings. The insured argued that there is a difference between “defending” and “prosecuting” a claim. The policy only provided that the insurer will not pay fees for the “defense” of actions not insured against, thus the insured argued that the insurer was not entitled to reimbursement of fees for “prosecution” of an action, even if not insured against under the policy. The insurer pointed to its reservation-of-rights letter that offered to provide coverage for the insured’s access claim subject to the reservation of rights. The trial court granted the insurer’s motion for judgment on the pleadings.

This left only the amount of sanctions to be imposed under section 57.105, and the amount of attorneys’ fees the insured owed to the insurer for reimbursement from the trial on the underlying property dispute— the basis of the insurer’s counterclaim. The parties stipulated to most of the facts. The ease proceeded to trial, where a jury determined the amount of damages owed by the insured on the counterclaim, and the trial court determined the amount of sanctions under section 57.105.

The insurer’s vice-president testified about the concept of title insurance, and that title insurers may defend an insured’s title by prosecuting a lawsuit. She also explained the concept of a reservation-of-rights letter, and the insurer’s entitlement to recover the cost of representing the insured. The insured attempted to admit the policy to distinguish between “defending” and “prosecuting” a claim. The insurer argued the policy was irrelevant because entitlement had already been determined. The trial court sustained the insurer’s objection.

The insurer then called an attorney from the law firm that represented the insured in the property dispute to explain the difference between defending and prosecuting a claim. The attorney provided the following:

In the title insurance world, and when you defend somebody’s title, sometimes you have to defend their title by prosecuting what you would think of as prosecuting a claim. Just like if, if somebody accosted your child or your wife or somebody on the street and said, “I’m going to beat you up, I’m going to take your money,” you might defend that person’s honor by prosecuting or attacking that person, so that’s the sense that it’s used in title insurance defense.

The insurer also called an expert witness, who testified that he had reviewed the files and billings from the property-dispute litigation. He testified about the attorney’s reputation for professionalism in the community, that the hourly rate of $175 was “extremely reasonable,” and that a reasonable fee was $156,870 for approximately 896.4 hours of work. In arriving at his conclusion, the expert considered the list of factors identified in the Rules Regulating the Florida Bar. He found that the law firm had incurred costs of $15,963.20, for a total of $172,853.20. Following the expert’s testimony, the insurer rested.

The insured moved for a directed verdict and argued: (1) that the law firm was retained for the sole purpose of seeking affirmative relief by “prosecuting” the claim for implied way of necessity; (2) that the policy “specifically distinguishes between defending a case and prosecuting a claim”; and (3) that because attorneys’ fees provisions are strictly construed, the insured should be granted a directed verdict. The insurer responded that the scope of the trial was limited to the amount of attorney’s fees, not entitlement, which had already been decided.

In denying the insured’s motion, the trial judge reviewed the reservation-of-rights letter and commented that the insurer’s reservation was for a cause of action the insured filed and then “asked the title company take over.” The trial court indicated that it did not have to make that determination because the predecessor judge had already decided entitlement.

While the jury was deliberating, the trial court held a bench trial on the amount of sanctions to be imposed under section 57.105. On cross-examination of the insurer’s vice-president, the insured pointed out that the bills of the law firm that defended the two-count complaint did not differentiate between work done on the bad-faith claim and work done on the breach-of-contract claim. Of the $54,000 requested, the witness could not allocate the time attributed to each claim, nor could she identify how much of the fees were for travel expenses from Miami to West Palm Beach. On redirect, the insurer’s vice-president indicated that the motion for sanctions encompassed both claims.

The insurer again called the expert witness to provide his opinion on the reasonableness of the second law firm’s fees and costs with respect to the sanctions order for having to defend the two-count complaint. He testified that the rates charged were reasonable; that 203.2 hours was a reasonable amount of time; that the total amount of fees was $54,051.20; and the total amount of costs was $1,836.98 for a total of $55,888.18.

On cross-examination, the expert testified that the attorney’s efforts expended on the claims for breach of contract and bad faith “were intermingled” because, among other things, “the same factual allegations or factual basis” applied to both causes of action, and they involved the same work. He did not reduce the fees and costs by the amount charged for travel time because the fees and costs were meant as a sanction to punish the insured. The trial court directed the parties to submit post-trial memoranda.

On the counterclaim, the jury awarded the insurer $156,870 in attorneys’ fees and $15,963.20 in costs and expenses. After determining prejudgment interest, the trial court entered a final judgment in the amount of $255,219. The insured filed a motion to set aside the verdict and for new trial, which the trial court denied. As to section 57.105 sanctions, the trial court entered an order entitling the insurer to $54,051.20. This brings us to this consolidated appeal.

The insured argues that the trial court’s order is technically deficient because it does not expressly state the court’s finding of frivolity. The insurer concedes that the order is technically deficient, but argues that there was competent, substantial evidence to support the order. As such, the insurer requests only a remand for entry of a proper order, rather than reversing the judgment.

Section 57.105 requires an explicit finding by the trial court that there was a complete absence of a justiciable issue of law or fact raised by the plaintiff in the action. There must be a finding on record, supported by substantial competent evidence, in order for the trial court to award attorney’s fees and costs.

Vasquez v. Provincial S., Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001) (citations omitted).

Here, neither the order finding the insurer entitled to section 57.105 fees nor the order awarding the amount contains express findings of fact. There was, however, competent, substantial evidence to support the trial court’s award.

[A] review of Florida case law reveals that there are established guidelines for determining when an action is frivolous. These include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) [sic] as asserting material factual statements that are false.

Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 619 (Fla. 4th DCA 2006) (quoting Wendy’s of Ne. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003)) ( [sic] in original).

Here, the insurer correctly denied the claim. The insurance policy excluded “[d]efeets, liens, encumbrances, adverse claims or other matters” that were “created, suffered, assumed or agreed to by the insured claimant.” Because the insured caused his land to become landlocked, he created the defect, and his claim was not covered under the policy. Equestrian Club Estates, 949 So.2d at 350. There was substantial, competent evidence to support the finding that the two-count complaint was frivolous.

Similarly, the order determining the amount of the section 57.105 sanctions was supported by competent, substantial evidence. The insurer’s expert testified that the rates and number of hours expended were reasonable, and the expert relied on the correct factors in rendering his opinion.

BUT, the trial court’s order is technically deficient because it fails to include a specific finding regarding the complete absence of a justiciable issue in the insured’s cause of action. Peerless Elec. Co. v. Goldberger, 473 So.2d 300 (Fla. 4th DCA 1985). We therefore reverse on this issue only and remand the case to the trial court for the requisite findings. The trial court may order the same award without hearing more evidence. See, e.g., Schwartz v. W-K Partners, 530 So.2d 456, 458 (Fla. 5th DCA 1988).

Reversed and Remanded.

CIKLIN, J., and SCHIFF, LOUIS, Associate Judge, concur.

      . Although Judge Lewis determined the insurer’s entitlement to fees as a sanction against the insured under section 57.105, Judge Cox held the evidentiary hearing and determined the amount.

      . At the hearing, there was confusion over whether the trial court’s previous order dismissed one or both of the insured’s claims. The record is unclear whether the judge dismissed count I (breach of insurance contract). However, considering the judge sanctioned the insured, it must have determined that neither claim had merit. Moreover, the insured's attorney admitted that the breach of contract claim was dismissed.

      .The insured challenges the amount of fees only to the extent that the sanction included fees for time spent on the insurer’s counterclaim and reimbursement for attorneys’ travel time.


text:
    ARROWOOD INDEMNITY COMPANY, a Delaware corporation, Appellant, v. CONROY, SIMBERG, GANON, KREVANS, ABEL, LURVEY, MORROW & SCHEFER, P.A., a Florida Corporation, Joseph L. Zollner, individually, and John E. Herndon, Jr., individually, Appellees.
    No. 4D12-3251.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 24, 2014.

      Elaine D. Walter, Greg M. Gaebe and Joseph Winsby of Gaebe, Mullen, Antonelli & DeMatteo, Coral Gables, and Gary A. Grasso of Grasso Bass, P.C., Burr Ridge, Illinois, for appellant.
    Jay B. Green and Jonathan M. Matzner of Green, Ackerman & Frost, P.A., Boca Raton, for appellees.
   CIKLIN, J.

Arrowood Indemnity Company (“Arro-wood”) appeals the trial court’s order dismissing its legal malpractice case against Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Joseph L. Zollner, and John E. Herndon, Jr. (collectively “Conroy Simberg”). Arrowood asserts the trial court erred when it determined that the statute of limitations began to accrue when Arrowood and other parties executed an agreement to settle underlying litigation. During the underlying litigation, Arrowood alleges, Conroy Sim-berg committed malpractice in the course of representing the interests of Arrowood. On appeal, Arrowood argues the statute of limitations began to accrue not at the time the parties settled the litigation but when the trial court’s actual order dismissing the underlying litigation (based on the settlement agreement) became final. Because the underlying litigation had not reached its outermost boundary of finality when the parties entered the settlement agreement, we agree with Arrowood that the statute of limitations had not expired in this case.

Facts

This matter arose from a dispute and ensuing litigation relating to a construction project. Estoril, Inc. (“Estoril”) was the builder of a condominium construction project. Estoril created and maintained its own “owner-controlled” insurance program with a designated insurance company and excess coverage policies with additional insurers, including Arrowood. In 2005, Es-toril sued the general manager, subcontractors, and other parties involved in the project alleging construction defects. Several insurers, including Arrowood, became involved in the litigation.

On December 6, 2005, Arrowood retained Conroy Simberg as coverage counsel and sought professional advice relating to the insurance program and the excess coverage policies, plus other legal services relating to the litigation commenced by Estoril. Conroy Simberg represented Ar-rowood until October 2007, when Arro-wood terminated Conroy Simberg and retained new counsel.

In December 2008, Estoril, the other parties to the litigation, and the insurers, including Arrowood, reached a settlement (“the Settlement”). The Settlement provided that Arrowood would pay Estoril $4.8 million, and the other insurers and parties would collectively pay Estoril $5.2 million. The Settlement required the parties and insurers, including Arrowood, to wire their respective payments to a law firm serving as an escrow agent on or before December 22, 2008. In exchange for the Settlement, the parties agreed to a dismissal of the litigation with prejudice.

Between December 15 and 18, 2008, Es-toril, Arrowood, and the other parties and insurers executed documents which memorialized the Settlement. Arrowood’s representative signed the Settlement papers on December 16. In accordance with the Settlement, Arrowood wired its portion of the Settlement payment to the escrow agent on December 22, 2008. A stipulation for dismissal with prejudice was filed with the trial court, together with a proposed order of dismissal. On January 12, 2009, the trial court formally entered its order of dismissal with prejudice. No party appealed the order of dismissal.

On December 22, 2010, Arrowood filed a legal malpractice action against Conroy Simberg in federal court.

On February 29, 2012, Arrowood filed its legal malpractice suit against Conroy Simberg in Florida circuit court. Arro-wood alleged that Conroy Simberg breached its duties of care in various ways during the litigation. Arrowood further alleged that if Conroy Simberg had not been negligent in its representation of Arrowood, Arrowood would have settled the litigation for “at least $1,000,000. less” than the Settlement amount, and would have saved over $1,000,000 in legal fees.

Conroy Simberg moved to dismiss the case on the grounds that the statute of limitations for an attorney malpractice claim had elapsed before the date the malpractice suit was filed. In support of its position, Conroy Simberg primarily relied on this court’s decision in Glucksman v. Persol North America, Inc., 813 So.2d 122 (Fla. 4th DCA 2002). Arrowood filed a response in opposition to Conroy Sun-berg’s motion to dismiss and the case proceeded to a hearing on Conroy Simberg’s motion’ After hearing argument, the court concluded “it appears that Glucks-man controls, and this case is past the statute of limitations. So the motion is granted.” The court issued a written order of dismissal and subsequently denied Arrowood’s motion for rehearing.

Analysis

“We review orders of dismissal de novo.” Horton v. Freeman, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006) (citation omitted). “In ruling on a motion to dismiss, the trial court must confine itself to the four corners of the complaint, accept the allegations of the complaint as true, and construe the allegations in the light most favorable to the plaintiff.” Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002) (citation omitted).

Because of the tolling agreement executed by the parties in this case, the issue squarely before us is whether the statute of limitations for Arrowood’s legal malpractice claim expired before December 22, 2010, the date it filed suit against its former attorneys. Generally, “[a] cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2008). “ ‘A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client.’ ” Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36, 39 (Fla.2009) (quoting Law Office of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla.2007)).

Florida law sets a two-year statute of limitations for professional malpractice: “Within two years ... An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” § 95.11(4)(a), Fla. Stat. (2008).

Recognizing that the law was unclear as to when the limitations period for legal malpractice in a litigation-related context began to run, the Florida Supreme Court established a bright-line rule in Silvestrone v. Edell: “We therefore hold, in those cases that proceed to final judgment, the two-year statute of limitations for litigation-related malpractice under section 95.11(4)(a) ... begins to run when final judgment becomes final.” 721 So.2d 1173, 1175-76 (Fla.1998). The Court reasoned that “[s]ince redressable harm is not established until final judgment is rendered, a malpractice claim is hypothetical and damages are speculative until the underlying action is concluded with an adverse outcome to the client.” Id. at 1175 (citations omitted). The Court also provided guidance for determining when a final judgment becomes final: “[A] judgment becomes final either upon the expiration of the time for filing an appeal or post-judgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing.” Id. at 1175 n. 2. Finally, the Court rejected a case by case factual analysis of when a plaintiff knew it had suffered “redressable harm” in litigation malpractice cases, and the Court instead opted for “certainty.” Id. at 1175-76.

Where, however, the underlying dispute is not litigated, the cause of action for legal malpractice. accrues “when the client’s right to sue in the related or underlying proceeding expires.” Glucksman, 813 So.2d at 124 (citing Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1065 (Fla.2001)). Although riddled with complex facts, the holding of Glucksman was straightforward. This court concluded that when no underlying judicial proceedings exist and the dispute ends in a settlement agreement, the limitations period begins to run when the parties execute the settlement agreement. Id. at 126. However, when a malpractice action is predicated on errors or omissions committed in the course of litigation, the cause of action accrues “when the client incurs damages at the conclusion of the related or underlying judicial proceeding.” Id. at 124 (citation omitted and emphasis added).

Consistent with the bright-line rule firmly set forth in Silvestrone, we find that the statute of limitations period began to run when the trial court’s order dismissing the underlying Estoril litigation became final. Although Arrowood arguably knew the nature of the harm caused to it by the alleged negligence of Conroy Simberg when it entered the Settlement, the full extent of Arrowood’s damages could not be considered established and the underlying litigation could not be considered concluded until the trial court dismissed the litigation. See Zakak v. Broida & Napier, P.A., 545 So.2d 380, 381 (Fla. 2d DCA 1989). As Arrowood correctly points out, had a party not complied with the terms of the Settlement, the intervention of the trial court may have been needed. In other words, Arrowood did not know for certain that the Settlement of the underlying litigation was final until the trial court dismissed the litigation and no party timely appealed the dismissal.

We must acknowledge that some confusion has arisen as a result of the Florida Supreme Court’s opinion in Larson & Larson, P.A. v. TSE Industries, Inc. In Larson, a federal court entered a final judgment in favor of Franklynn Industries, Inc. against TSE Industries, Inc. Larson, 22 So.3d at 38. Franklynn then followed up on the final judgment by filing a subsequent motion for sanctions against TSE. The federal court granted the sanctions motion but withheld determination of the sanctions award. While the motion for sanctions was pending, the parties settled the sanctions issue and agreed to a sanctions award amount which was filed with the court in the form of a stipulation of dismissal.

In Larson, the Supreme Court confronted the issue of statute of limitations accrual as to (1) the final judgment and (2) the subsequent sanctions amount. Id. at 41. The Court applied the ordinary Silvestrone rule to the final judgment, stating that “[ujnder the Silvestrone bright-line rule, redressable harm was established when the final judgment against TSE in the patent infringement action became final.” Id. at 43. However, for the sanctions claim which was ultimately settled and dismissed, Justice Canady, with two justices concurring in the opinion and three justices concurring only in the result, decided:

Here, the point of finality with respect to the sanctions claim was not reached until the settlement was entered while the sanctions litigation was pending. Until then, it was possible that an appeal in the sanctions litigation would produce an outcome favorable to TSE. Only with the entry of the settlement agreement was the existence of any harm to TSE arising from the sanctions claim determined with sufficient certainty to justify commencement of the limitations period.

Id. at 47-48.

In the case at bar, the cause of action against Conroy Simberg accrued when the trial court’s order dismissing the underlying litigation became “final.”

In light of our holding, we decline to address Arrowood’s other arguments on appeal.

Reversed and remanded.

STEVENSON and KLINGENSMITH, JJ., concur.

      . At this point, Arrowood was known as Royal Surplus Lines Insurance Company.

      . Arrowood and Conroy Simberg executed a “tolling agreement’’ that tolled the expiration of the statute of limitations for any claims that had arisen by December 22, 2008, until March 1, 2012. The federal case was dismissed without prejudice..

      . The' order dismissing the Estoril litigation was not appealed, so the order became final thirty days after the trial court rendered the order of dismissal. See Silvestrone. 721 So.2d at 1175 n. 2.

      . It appears that the parties entered the settlement agreement and filed the joint stipulation of dismissal on the same day. See id. at 49 (Perry, J., concurring in part and dissenting in part).

      . Larson was a divided opinion. Two justices concurred fully with Justice Canady’s opinion. Id. at 48. Justice Perry concurred in part and dissented in part, and argued that both the underlying judgment and the sanctions award were barred by the statute of limitations. Id. at 48 (Perry, J., concurring in part and dissenting in part). Three justices dissented and argued the statute of limitations had not passed for either the underlying judgment or the sanctions award. Id. at 52-58 (Lewis, J., dissenting). Thus, the Court’s judgment with regard to the malpractice claim for the underlying judgment was concurred in by Justices Canady, Polston, Labar-ga, and Perry, and the judgment with regard to the sanctions claim was concurred in by then Chief Justice Quince and Justices Par-iente, Lewis, Canady, Polston, and Labarga. Id. at 48 n. 8.

      .As the Florida Supreme Court discussed in Silvestrone:

      For instance, a judgment becomes final either upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing.

        Silvestrone. 721 So.2d at 1175 n. 2.


author: KLINGENSMITH, J. TAYLOR, J.,

text:
    OB/GYN SPECIALISTS OF THE PALM BEACHES, P.A., Perinatal and Gynecologic Specialists of the Palm Beaches, Inc., d/b/a Perinatal Specialists of the Palm Beaches, and Marie Morel, M.D., Appellants, v. Ana MEJIA and Rodolfo Santana, individually, and as parent and natural guardians of Bryan Santana, a minor, Appellees.
    No. 4D12-42.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied March 31, 2014.

      Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, and Steven Lubell and Mark L. Rosen of Lubell & Rosen, LLC, Fort Lauderdale, for appellants.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, and Robert T. Bergin, Jr., P.A., West Palm Beach, for appellees.
   KLINGENSMITH, J.

Appellants/defendants, OB/GYN Specialists of the Palm Beaches and Marie Morel, M.D., appeal a final judgment awarding appellees/plaintiffs $2.5 million in damages following a jury trial in a medical malpractice action. They contend that the trial court committed reversible error by precluding them from presenting argument and evidence that third trimester abortions are generally illegal in the state of Florida. In support, they claim this information was directly relevant to whether they fell below the standard of care and deprived plaintiffs of the opportunity to obtain an abortion. We agree that the trial court erred in denying the defense the opportunity to argue the application of this law and reverse for a new trial on the issues of liability and causation only.

Plaintiffs are the parents of a child born with significant birth defects. During her pregnancy, the mother suffered from episodes of bleeding and was referred to the hospital for ultrasounds. At the first ultrasound on June 4, 2008, the position of the fetus allowed for only limited views of all four extremities. As such, the ultrasound report noted the anatomy appeared normal, with the qualification that the view was limited due to fetal lie. However, the report noted other abnormalities, prompting the mother’s referral to genetic counseling and an additional, more detailed, ultrasound known as a Level II ultrasound.

At the genetic counseling session, plaintiffs were informed about the significance of the abnormalities seen on the prior ultrasound and presented with the option of undergoing amniocentesis to screen for genetic abnormalities. The mother declined the amniocentesis procedure, but returned on June 30, 2008, for the Level II ultrasound as recommended.

The Level II ultrasound report stated that the views of the upper extremities were limited, the hands of the fetus were not visible, and the position of the fetus’s feet looked normal. The report also noted that there were “4 limbs.” The impression from the testing indicated that “[t]he anatomy seen on the Level II Ultrasound appears normal. Fetal growth is appropriate. Limited upper extreme [sic], nose, lips.” The mother testified that during this visit she was told that everything was “perfect.”

However, when the mother gave birth on October 15, 2008, she learned for the first time that the baby had no hands, only one leg, and a fraction of a foot attached to the hip on the other leg. Plaintiffs subsequently filed suit against a number of medical providers involved in the mother’s prenatal care. The allegation made against Dr. Morel and her employer, OB/GYN Specialists, was that Dr. Morel fell below the standard of care by failing to advise plaintiffs in a timely manner that the fetus had limb defects, thereby preventing them from making an informed decision as to whether they should terminate the pregnancy.

Prior to trial, defendants sought to preclude plaintiffs from presenting any evidence or argument that the Level II ultrasound caused any damages. The defendants cited section 390.0111, Florida Statutes, which, in pertinent part, provides:

(1) TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.— No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy unless:
(a) Two physicians certify in writing to the fact that, to a reasonable degree of medical probability, the termination of pregnancy is necessary to save the life or preserve the health of the pregnant woman; or
(b) The physician certifies in writing to the medical necessity for legitimate emergency medical procedures for termination of pregnancy in the third trimester, and another physician is not available for consultation.

§ 390.0111(1), Fla. Stat. (2008) (emphasis added). Defendants asserted that using the gestational age to calculate the weeks of the mother’s pregnancy, the Level II ultrasound was performed one day into the mother’s third trimester of pregnancy. Therefore, they argued that even if the Level II ultrasound had been reported accurately, the mother could not have obtained a lawful abortion in Florida. Plaintiffs, however, represented that using the date of conception, the mother was not in her third trimester when the Level II ultrasound was performed.

The trial court ruled that any reference or evidence regarding Florida’s prohibition against third trimester abortions under section 390.0111, as applied to the Level II ultrasound, was irrelevant. As the basis for its ruling, the court concluded that: 1) the mother was not in the third trimester of pregnancy, based on counsel’s representation regarding the date of conception; 2) admitting evidence of the statute would create a “trial within a trial” regarding whether any exceptions to the statute applied; and 3) the case did not involve a claim that defendants should have performed or recommended termination of the pregnancy.

At trial, plaintiffs’ medical expert testified that the ultrasound performed on June 4 fell below the standard of care, was reported inaccurately, and had a negative effect on future ultrasounds. He testified that the June 30 Level II ultrasound was also incorrectly reported. The mother testified that she would have undergone an abortion had she known of the birth defects.

At the end of plaintiffs’ case, defendants moved for directed verdict, once again arguing that any alleged acts of negligence occurring in the third trimester, including the alleged misreading of the Level II ultrasound, could not be the legal cause of any damage to plaintiffs because the mother could not have legally terminated her pregnancy at that point in time. The trial court denied the motion, reasoning that the mother could have obtained a legal abortion in another state. Following the adverse jury verdict and final judgment ultimately rendered against the defendants, this timely appeal was taken.

On appeal, defendants assert that the trial court incorrectly ruled section 390.0111 was irrelevant. They maintain that the mother could not have obtained an abortion in Florida as of the date of the Level II ultrasound, arguing that the term “third trimester” as used in section 390.0111, should be calculated using the gestational age. We agree.

Plaintiffs’ suit was based on the wrongful birth of their child. “ “Wrongful birth’ is that species of medical malpractice in which parents give birth to an impaired or deformed child and allege that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.” Kush v. Lloyd, 616 So.2d 415, 417 n. 2 (Fla.1992). “Causation can be shown if the plaintiff can prove that she would have obtained an abortion if the doctor had not been negligent.” Campbell v. United States, 795 F.Supp. 1118, 1124 (N.D.Ga.1990); accord Keel v. Banach, 624 So.2d 1022, 1027 (Ala.1993). Therefore, a plaintiffs ability to medically, legally, and logistically undergo such a procedure is clearly relevant to the issue of causation. See, e.g., Davis v. Columbia Hosp. for Women Med. Ctr., Inc., No. 91-16305, 1996 WL 33649490, at *11-12 (D.C.Super.Ct. June 24, 1996) (in wrongful birth action, defendants were free to present evidence that a viable fetus existed on the relevant date and that there was no basis to terminate the mother’s pregnancy at that time because of threats to her life or health). Accordingly, whether the mother could have lawfully obtained an abortion at the time the Level II ultrasound was performed was certainly relevant to establish causation, or lack thereof.

Chapter 390’s definition section defines “third trimester” as “the weeks of pregnancy after the 24th week of pregnancy.” § 390.011(8), Fla. Stat. (2008). The term “pregnancy” is not defined in Chapter 390. Likewise there are no statutory provisions that define how “weeks of pregnancy” should be calculated. Courts generally interpret the words of a statute by giving them their plain and ordinary meaning. Maxwell v. State, 110 So.3d 958, 961 (Fla. 4th DCA 2013). However, such a construction must be avoided if it leads to an unreasonable result or a result clearly contrary to legislative intent. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). Additionally, in considering the meaning of particular words and phrases, courts must also distinguish between terms of art- that may have specialized meanings and other words that are ordinarily given a dictionary definition. See, e.g., Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008). In the context of the statute under review, “third trimester” is a term that has a particular medical meaning designed to give effect to its application.

To help decipher the phrase “weeks of pregnancy,” for the purpose of determining when the second trimester ends and the third trimester begins, the portion of the Florida Administrative Code pertaining to Medical Screening and Evaluation of Patients Receiving Second Trimester Abortions is instructive. It provides, in pertinent part:

(1) Each abortion clinic that provides second trimester abortions shall formulate and adhere to written patient care policies and procedures designed to ensure professional and safe care for patients undergoing second trimester abortions and shall maintain a medical record for each such patient that records history, care and services. Any abortion clinic that performs second trimester abortions which is in operation at the time of adoption of this rule shall be given six (6) months within which to comply with these patient care policies and procedures for patients undergoing second trimester abortions, to include but not limited to the following:
(a) Admission criteria and procedures;
(b) Identification in the medical record of physician(s) and nurse(s) involved in providing the services offered for patients undergoing second trimester abortions;
(c) Specific details regarding the preoperative procedures performed, to include:
1. History and physical examination, to include verification of pregnancy, estimation of gestational age, identification of any preexisting conditions or complications; including allergies to medications, antiseptic solutions, or latex; and a complete obstetric and gynecological history.
2. Special examinations, lab procedures, and/or consultations required, to include ultrasonography to confirm gestational age and a physical examination including a bi-manual examination estimating uterine size and palpation of the adnexa. The physician shall keep original prints of each ultrasound examination of a patient in the patient’s medical history file. For an abortion in which an ultrasound examination is not performed before the abortion procedure, urine or blood tests for pregnancy shall be performed before the abortion procedure.

Fla. Admin. Code. R. 59A-9.025 (emphasis added). Therefore, to determine whether an abortion can legally be performed before the end of the second trimester, the “gestational age” of the fetus is relevant to the inquiry and must be documented in the patient’s medical records.

Additional guidance can be gleaned from the Supreme Court cases creating and interpreting the trimester framework upon which the Florida law is based. This framework was first enunciated in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). There, the Supreme Court explained that “[viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id. at 160, 93 S.Ct. 705. “The fourteenth edition of L. Heilman & J. Pritchard, Williams Obstetrics, on which the Court relied in Roe for its understanding of [fetal] viability, stated that ‘[attainment of a [fetal] weight of 1,000 g [or a fetal age of approximately 28 weeks gestation] is ... widely used as the criterion of viability.’ ” City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 457, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (O’Connor, J., dissenting) (emphasis added). Thus, it appears that the Supreme Court in Roe also measured the weeks of pregnancy and trimesters by the fetus’s gestational age. Id. Consequently, we hold that the term “third trimester” as used section 390.0111 must also be interpreted using gestational age in light of Roe’s trimester viability analysis.

Although plaintiffs suggest that this court calculate “weeks of pregnancy” as used in section 390.011(8)’s definition of “third trimester” from the date of conception, in doing so they also concede that the fetus’s date of conception in this case is unknown, and, in most cases, cannot be reliably ascertained. In fact, nowhere in the administrative code regulating abortion screening and patient evaluation is there any requirement that a physician take steps to estimate or confirm the date of conception, only gestational age. Moreover, physicians may be disciplined for performing a third trimester abortion that does not comply with the statutory regulations governing such a procedure. Pendergraft v. Dep’t of Health, 19 So.3d 392 (Fla. 5th DCA 2009). In one case, Ticktin v. Department of Professional Regulation, 532 So.2d 47 (Fla. 1st DCA 1988), the First District upheld a ruling by the State Board of Medicine revoking a doctor’s license after he miscalculated the gestational age of the fetus and performed an abortion during the last trimester of the patient’s pregnancy. To adopt plaintiffs’ view that “third trimester” as used in section 390.0111 should be determined using the date of conception would hereafter require clinicians to calculate the “weeks of pregnancy” based on indiscernible facts and make estimates of fetal age in a manner contrary to established medical practice, all in order to render medical care and treatment in conformity with Florida law.

Not surprisingly, all of the medical experts who testified at trial in this case agreed that in order to determine the weeks of pregnancy at any given point in time, physicians customarily and routinely use the “gestational age” method that is consistent with the standard of care. Using this calculation, record evidence in this case showed that the gestational age of the mother’s fetus when the Level II ultrasound was performed on June 30 was twenty-four weeks and one day — just past the statutory deadline for when a lawful abortion could have been obtained in Florida.

Even if we were to agree that the statute should be interpreted to measure pregnancy from the alleged time of conception, thereby allowing the mother nearly two weeks after the June 30 Level II ultrasound to obtain a lawful abortion under Florida law, the existence of section 390.0111 would still be relevant to whether the mother could have logistically obtained an abortion in Florida before the statutory deadline. For example, in Hall v. Dartmouth Hitchcock Medical Center, 153 N.H. 388, 899 A.2d 240 (2006), the court held that the defendant’s disclosure to the parents of the possibility that the fetus would have serious birth defects was timely, even though it was made late in the second trimester (when the mother was between twenty-three and twenty-four weeks of gestation), because the parents failed to offer any expert evidence that the defendant could have disclosed the information concerning the increased possibility of birth defects earlier, and also failed to establish that the mother could not have terminated her pregnancy within the period of time remaining in her second trimester. The court went on to explain that in determining whether a disclosure of an increased risk of birth defects was “timely” in a wrongful birth action, a fact finder should be permitted to consider, among other things: expert testimony concerning the proximity of the disclosure to the end of the plaintiffs second trimester; expert testimony about whether the medical providers could have earlier disclosed information concerning the increased possibility of birth defects; the practicability of scheduling an abortion to occur prior to the expiration of the second trimester, taking into account whether a medical provider reasonably would have performed the procedure within such a timeframe; the availability of third trimester abortions in other jurisdictions; the requirements for obtaining a third trimester abortion in other jurisdictions; and whether the plaintiffs clinical situation, at the time of the disclosure, would have met such requirements. Id. at 248-49.

Additionally, other factors relating to the practicability of obtaining an abortion prior to the end of the second trimester may also be relevant in any given case, including but not limited to the credibility of the mother’s claim she would have sought to terminate her pregnancy, the relative ease or difficulty in locating a provider willing to perform the required procedure, and the mother’s ability to travel within the applicable window of opportunity to the location where the procedure would be performed.

Plaintiffs also contend that had the Level II ultrasound been properly interpreted, the mother could have traveled to another state to obtain an abortion at her stage of pregnancy, or perhaps could have secured a third trimester abortion in Florida or elsewhere under an applicable statutory exception. Here, the trial court made a legal determination when denying the defense’s motion for directed verdict that the mother could have obtained an abortion in another state. However, no cases have been presented to this court holding that a physician has a duty to provide information to a patient about whether she could legally undergo a third trimester abortion in another state in which that physician is not licensed. As such, we decline to establish such a duty for the first time here.

Our holding in this case is consistent with the well-settled principle that a party is entitled to have the trial court instruct the jury on its theory of the case when the evidence, even though controverted, supports that theory. Mathieu v. Schnitzer, 559 So.2d 1244, 1245-46 (Fla. 4th DCA 1990); L.K. v. Water’s Edge Ass’n, 582 So.2d 1097, 1098 (Fla. 3d DCA 1988). Other states considering the issue presented herein have likewise determined that a specific jury instruction on the state’s law on. abortions should be given at the conclusion of trial. See, e.g., Peled v. Bohn, No. B193225, 2007 WL 3026532, at *11 (Cal.Ct. App. Oct. 18, 2007) (in wrongful life action, the trial court did not commit error in instructing the jury as follows: “A woman cannot have an abortion in California where the fetus is viable and the pregnancy does not pose a risk to the life or health of a pregnant woman. A fetus is generally considered viable at and after 24 weeks of gestation. A physician has no duty to disclose information regarding treatment that is not legally available to a patient in California.”).

While evidence of the availability of abortions in other states and the possibility that the mother might have been able to obtain a third trimester abortion in Florida or elsewhere may also be relevant to a jury on the issue of causation, those considerations do not constitute valid reasons for excluding evidence that third trimester abortions are generally illegal in Florida. In light of the trial court’s failure to permit the jury to consider the relevance of section 390.0111 to the plaintiffs’ specific situation, leading to the exclusion of other relevant evidence on that factual issue, a new trial on the issue of liability and causation is required.

Reversed and Remanded for a New Trial on Liability and Causation.

DAMOORGIAN, C.J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J.,

dissenting.

I respectfully dissent. I would hold that the trial court did not abuse its discretion in excluding Florida’s abortion statute from the jury’s consideration at trial. First, I disagree with the majority’s conclusion that the statute applied to the mother in this case. Second, even if the statute did apply to the mother, the trial court appropriately exercised its discretion in excluding it from consideration at trial so as to avoid unfair prejudice and confusion of the issues.

Florida law prohibits abortions during the third trimester unless necessary to save the life or preserve the health of the pregnant woman. See § 390.0111(l)(a) & (b), Fla. Stat. (2008). The “third trimester” is defined under Florida law as “the weeks of pregnancy after the 24th week of pregnancy.” § 390.011(8), Fla. Stat. (2008). The term “pregnancy” is not defined in the statute.

As a preliminary matter, I disagree with the majority’s interpretation of the term “pregnancy” under section 390.011(8), Florida Statutes (2008). The majority holds that the weeks of pregnancy under the statute must be measured by the fetus’s gestational age, which begins with the mother’s last menstrual period. However, section 390.011(8) refers to weeks of “pregnancy,” and does not mention the fetus’s gestational age.

Because the term “pregnancy” is undefined in the statute, the term is to be given its plain and ordinary meaning, which can be ascertained by reference to a dictionary. Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000). Merriam-Webster’s Collegiate Dictionary defines “pregnancy” as the “condition of being pregnant” and defines “pregnant” as “containing a developing embryo, fetus, or unborn offspring within the body.” Merriam-Webster’s Collegiate Dictionary 979 (11th ed. 2012).

Under the plain meaning of the term, a woman cannot be “pregnant” without a developing embryo, fetus, or unborn offspring within her body. A woman is not “pregnant,” and therefore “pregnancy” has not begun, at the time of her last menstrual period. Accordingly, the dictionary definition of “pregnancy” indicates that a pregnancy begins, at the earliest, at conception.

The majority contends that the term “weeks of pregnancy” is a term of art with a specialized meaning for the medical profession. However, when a term has both a common and a technical meaning, there is a presumption in favor of the common meaning unless the profession to which the technical term belongs is the legal profession. City of Tampa v. Thatcher Glass Corp. 445 So.2d 578, 579 n. 2 (Fla.1984). In this case, there is no indication that the legislature meant anything other than the common meaning of “pregnancy.” The presumption in favor of the common meaning applies. Had the legislature meant “gestational age” as measured from the last menstrual period, it could have easily said so.

Applying the plain meaning of section 390.011(8) would not lead to an unreasonable result or one clearly contrary to legislative intent. While the exact date of a fetus’s conception is generally unknown, it does not follow that the legislature necessarily intended for pregnancy to be measured from the last menstrual period. Pregnancy can be “measured either from the date of a woman’s [last menstrual period] or from conception, which is generally considered to occur two weeks after a woman’s [last menstrual period].” Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 177 n. 3 (4th Cir.2000). Both of these measurements are approximate in nature. See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 431 n. 15, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). Whether a pregnancy is measured from the time of conception or from the beginning of the woman’s last menstrual period, there is no certain method of delineating precisely when a particular trimester begins. Id. Thus, because both methods are simply approximations, measuring pregnancy from the time of conception — which is consistent with the plain language of the statute — is not unreasonable or clearly contrary to legislative intent.

Even if I were to agree that measuring the weeks of pregnancy by the fetus’s gestational age is a reasonable interpretation of the statute, my construction of the statute would not change. At a minimum, measuring the weeks of pregnancy from the point of conception would also be a reasonable interpretation of the statute.

Where there is more than one reasonable interpretation of a statute, the statute is ambiguous and this court may resort to principles of statutory construction to determine the meaning of the statute. Rollins, 761 So.2d at 297. In civil cases where the governing standard is set forth in a criminal statute, “it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the statute’s coverage.” Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). The rule of lenity “ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Indeed, in Florida, the rule of lenity is not just an interpretive tool, but is also a statutory directive, requiring that any ambiguity in which statutory language is susceptible to differing constructions must be resolved in favor of the accused. Kasischke v. State, 991 So.2d 803, 814 (Fla.2008). Accordingly, even if measuring the weeks of pregnancy in section 390.011(8) by the fetus’s gestational age is a reasonable interpretation of the statute, the rule of lenity still dictates that we interpret the statute in favor of permitting an abortion until the 24th week of pregnancy as measured from the point of conception.

The majority suggests that in light of the trimester framework of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), section 390.011(8) must be interpreted using gestational age. However, while Roe relies upon weeks of gestational age in discussing fetal viability, Roe is not a statutory interpretation case and does not provide any guidance on how to interpret a statute which proscribes an abortion after a certain number of weeks of “pregnancy.”

Therefore, although there was evidence that the mother’s fetus had a gestational age of about twenty-four weeks at the time of the June 30th ultrasound, section 390.0111 would not have precluded her from obtaining an abortion in Florida at that time had she been properly notified of the fetus’s defects. Because the mother was not in the third trimester under Florida law, the statute would not have precluded her from obtaining an abortion at the time of the ultrasound on June 30, 2008, and the trial court’s exclusion of section 390.0111 from the jury’s consideration was not an abuse of discretion.

Furthermore, even if the mother was past the deadline for obtaining a legal abortion under Florida law, the mother could have obtained an abortion outside the state of Florida. Contrary to the majority’s suggestion, the availability of an abortion to the mother in another jurisdiction cannot be seriously questioned. For example, Maryland allows abortions in the third trimester where the “fetus is affected by a genetic defect or serious deformity or abnormality.” Md. Code, Health — General, § 20 — 209(b)(2)(h) (2008). In this case, there was undisputed evidence at trial that the mother’s child was born with severe deformities. In light of this undisputed evidence, the Maryland statute would have allowed the mother to obtain an abortion in Maryland as a matter of law.

The trial court’s decision to exclude Florida’s abortion statute from the jury’s consideration must be viewed in light of the nature of the plaintiffs’ claim. A wrongful birth claim requires proof that negligent treatment or advice deprived the plaintiffs of the opportunity to avoid conception or to terminate the pregnancy. Kush v. Lloyd, 616 So.2d 415, 417 n. 2 (Fla.1992). The purpose of a wrongful birth claim is to recover damages for the extraordinary expense of caring for the impaired or deformed child, over and above routine rearing expenses. Id.

Our supreme court has never articulated any requirement that the plaintiff in a wrongful birth case must prove exactly where the abortion would have occurred. Nor have the defendants even challenged the sufficiency of the evidence in this case.

Assuming Florida’s abortion statute was relevant, the exclusion of that statute from the jury’s consideration still was not an abuse of discretion. Section 90.403, Florida Statutes, renders otherwise relevant evidence inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or the possibility that the jury may be misled.

“The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Sims v. Brown, 574 So.2d 131, 133 (Fla.1991). Here, as noted above, the mother could have obtained an abortion in another jurisdiction had she been informed of the fetus’s deformities. The defendants’ attempt to make an issue over whether the abortion could have occurred in Florida was nothing more than an obfuscation of the true issue in this case, which was whether the plaintiffs were robbed of the opportunity to terminate the pregnancy as a result of the defendants’ malpractice. The trial court was well within its discretion to prevent a mini-trial on a largely irrelevant issue concerning the logistics of obtaining a hypothetical abortion.

Presenting the jury with evidence that a third trimester abortion is generally illegal in Florida would have been unfairly prejudicial and would have confused the issues in the case. This evidence would have unfairly injected the plaintiffs’ financial status into the case by opening an inquiry into whether they could afford to travel to another jurisdiction for the abortion. This evidence also could have unfairly painted the plaintiffs as doing something nefarious by traveling to another jurisdiction to evade the requirements of Florida law.

Under the abuse of discretion standard of review, a trial court’s ruling on the admissibility of evidence will be upheld absent an abuse of discretion. Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008); Hayes v. Wal-Mart Stores, Inc., 933 So.2d 124, 126 (Fla. 4th DCA 2006). If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In this case, the defendants have failed to demonstrate that no reasonable person would have made the decision to exclude evidence concerning Florida’s abortion statute from the jury’s consideration.

Because I find no reversible error in any of the issues raised by the defendants, I would affirm.

      . This gestational age calculation uses the date of the mother's last menstrual period, not the point of conception, to measure the fetus’s development through the trimester stages and determine the projected due date, also known as the estimated date of confinement.

      . The trial court granted the defendants’ motion in limine as to additional ultrasounds performed in August and September 2008, but denied it as to the June 30 Level II ultrasound.

      . We recognize, as have other courts, that there are different methods of calculating the duration of pregnancy, depending on the professionals involved and their field of expertise. The average duration of pregnancy is about 280 days. Estimation of the date on which delivery should occur is based on the first day of the last menstrual period. Taber’s Cy-clopedic Medical Dictionary 1730 (19th ed. 2001). However, depending on the calculation used, there may be more than a two-week deviation either way. City of Akron, 462 U.S. at 432 n. 15, 103 S.Ct. 2481. "Clinicians use gestational age, or menstrual age, calculated from the first day of the last menstrual period to identify events in pregnancy, whereas embryologists and other biologists more often use ovulatory age, or fertilization age, which is typically 2 weeks shorter.” Driessen v. Freborg, 431 F.Supp. 1191, 1194-95 (D.N.D.1977).

        Because this case concerns the standard of care for clinicians, their usual and customary method of calculation, consistent with their standard of care, is the one relevant to our inquiry.

      . It should also be noted that the mere fact that a presentation of these issues may require a fact finder to conduct a “trial within a trial” is not a proper basis for denying parties the ability to present evidence on relevant issues pertaining to their theory of the case. Tarleton v. Arnstein & Lehr, 719 So.2d 325 (Fla. 4th DCA 1998) ("trial within a trial” required to determine causation in a legal malpractice case).

      . There was no evidence presented at trial that the mother met any applicable medical criteria that would have permitted the procedure to be performed under a Florida exception, or performed elsewhere. Regardless, whether or not an abortion was indeed available to the mother in another state was a question of fact for resolution by the jury, not the court.

      . Any reference to "gestational age” in this opinion will refer to gestational age as measured from the last menstrual period.

      . There is an added complication in that some medical texts describe pregnancy as beginning at implantation, rather than conception. As one court noted: “Standard medical texts describe the beginning of pregnancy as the time of implantation of a zygote into the uterus, about six days after conception.” Karlin v. Foust, 975 F.Supp. 1177, 1193 (W.D.Wis.1997), rev’d in part on other grounds, 188 F.3d 446 (7th Cir.1999).

      . In fact, other state abortion statutes contain provisions measuring weeks of pregnancy from the point of conception. See, e.g., S.C. Code § 44 — 41—10(i) (2008) (measuring weeks of pregnancy as "commencing with conception rather than computed on the basis of the menstrual cycle”); Nev. Stat. §§ 442.250 l.(b), 442.253 l.(b) (2008) (allowing abortions within twenty-four weeks after the commencement of the pregnancy and requiring the physician to inform the pregnant woman of the "number of weeks which have elapsed from the probable time of conception”).

      . The majority argues that even if the statute should be interpreted to measure pregnancy from the time of conception, thereby allowing the mother nearly two weeks after the June 30th ultrasound to obtain a lawful abortion under Florida law, "the existence of section 390.0111 would still be relevant to whether the mother could have logistically obtained an abortion in Florida before the statutory deadline.” However, the defendants never raised this precise argument below, nor did they proffer exactly what evidence of logistical obstacles to an abortion that they wanted to present to the jury. Therefore, this argument was not preserved and cannot be a valid basis for reversing the trial court.

      . Among other things, the defendants argued below that: 1) all the medical experts agreed that on June 30th, the mother was in her third trimester under Florida law; and 2) at a minimum, the method of counting the length of the pregnancy presented a "question of fact.” However, these arguments miss the mark. The proper interpretation of section 390.011(8) is a question of law, not a question of fact, and the medical experts were not qualified to give an opinion on Florida law. The correct meaning of section 390.011(8) is a question for a court to decide. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.”).

      . The mother also could have obtained an abortion in South Carolina. See S.C. Code § 44-41-20 (2008) (allowing a second trimester abortion if "performed with the pregnant woman’s consent by her attending physician in a hospital or clinic certified by the Department”); S.C. Code § 44-41-10(i) (2008) (measuring weeks of pregnancy as "commencing with conception rather than computed on the basis of the menstrual cycle”); S.C. Code § 44 — 41—10(j) (2008) (defining "second trimester” as the portion of a pregnancy following the twelfth week and extending through the twenty-fourth week).

      . Contrary to the suggestion by the majority, the plaintiffs have not requested that this court impose a duty on a physician to provide information to a patient about where she could legally undergo a third trimester abortion.


text:
    Tammy Lyn BOBYACK, Appellant, v. Andrew J. LARKIN, Appellee.
    No. 4D13-486.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2014.
    Rehearing Denied Feb. 11, 2014.

      L. Louis Mrachek, Alan B. Rose and N. Patrick Hely of Page, Mrachek, Fitzgerald, Rose, Konopka & Dow, P.A., West Palm Beach, for appellant.
    Joel M. Weissman and Ashley M. Johnson of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   MAY, J.

A dispute over a diamond ring brings this case to our court. A former fiancé appeals a summary judgment requiring her to return a diamond ring. She argues that genuine issues of material fact prevented the trial court from entering a summary judgment as a matter of law. We agree and reverse.

Tammy met Andrew in November 2005. She resigned from her part-time job at Andrew’s request to spend more time with him. Andrew began to contribute to her support. They initially maintained separate residences, but not long after they met, Tammy helped Andrew find a home to purchase. A month later, he moved in; Tammy and her three children moved in to join him.

After cohabitating, Tammy realized that Andrew had a problem. She and her children continued to live with him until June 2008 when he asked them to leave. The couple reconciled in December, but Tammy told Andrew she would not many him if he did not enter treatment. He promised her that he would seek treatment. She testified that she would never have moved back into the house unless she was assured they could stay.

To provide Tammy and her children with more security, Andrew asked his attorney to put Tammy’s name on the deed to the house. He presented the revised deed to her as a birthday gift. He also gave Tammy and her children $12,000 each.

Andrew asked Tammy to marry him. He bought her a 6.71 carat diamond ring in December as both a Christmas gift and an engagement,ring. She felt that it also provided additional monetary security for her and her children. They planned to wed in June.

In March, Tammy confronted Andrew about entering treatment. He told her that he did not think he had a problem. When Tammy forced the issue, he told her that he no longer wanted to marry her. Two days later, Tammy called law enforcement for a domestic dispute after an argument concerning their engagement. Law enforcement arrested Andrew.

The next month, Andrew filed a four-count complaint seeking replevin of the diamond ring along with other relief. He alleged that the diamond ring was given in contemplation of marriage and, since Tammy terminated the engagement, he was entitled to its return. According to Tammy, she never intended to break the engagement, but simply to postpone the wedding until Andrew completed treatment.

Andrew moved for summary judgment. Tammy filed documents and case law in opposition to the motion. She also adopted the arguments, authorities, and materials contained in her response to a prior order to show cause.

At the hearing, the trial court found that the diamond ring was given in contemplation of marriage and, because the engagement had ended, Andrew was entitled to its return. Despite Tammy’s testimony, the court found no evidence to support her position that the diamond ring had been given as a gift.

According to the court, it did not matter who broke off the engagement. Because the marriage did not take place, Andrew was entitled to the ring. The court granted summary judgment in Andrew’s favor. From this judgment, Tammy appeals.

Tammy argues this is a classic “he said, she said” case not suitable for summary judgment. Each party presented conflicting versions of the facts, and the trial court entered a summary judgment even though there was a genuine issue of material fact. Andrew responds that there was no genuine issue of material fact. Their wedding was not conditioned on Andrew entering into treatment. Because Tammy broke the engagement, they did not marry on their scheduled wedding date. Under Florida law, Andrew is entitled to the return of the ring.

We have de novo review of this summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 180 (Fla.2000).

We need not reach the issue of when an engagement ring must be returned. We must simply determine whether a genuine issue of material fact existed. The answer to that question is “yes.” This is a classic example of “he said, she said,” which precluded the trial court from entering summary judgment on the issue. We therefore reverse and remand the case for further proceedings.

Reversed and Remanded.

CIKLIN, J., and SCHIFF, LOUIS, Associate Judge, concur.


author: FORST, J.

text:
    Leslie HARRIS, Appellant, v. ABERDEEN GOLF & COUNTRY CLUB, INC., Appellee.
    No. 4D12-3702.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.
    Rehearing Denied Jan. 22, 2014.
    Leslie K. Harris, Boynton Beach, pro se.
    Robert Rivas of Sachs Sax Caplan, P.I., Tallahassee, for appellee.
   ON MOTION FOR REHEARING

FORST, J.

The Appellant, Leslie Harris, appeals the order entering final judgment for Aberdeen Golf & Country Club (“Aberdeen Club”), after Aberdeen Club’s motion for summary judgment was granted. The order reflects that final judgment was entered for Aberdeen Club based solely on the entry of final orders as to the co-defendants, Aberdeen Property Owners Association (Aberdeen POA) and Bristol Lakes Homeowners Association (Bristol Lakes HOA). As to Aberdeen POA, the court entered a final summary judgment based on the statute of limitations. As to Bristol Lakes HOA, the court entered an order dismissing the count related to Bristol Lakes HOA, based on Harris’s failure to comply with a condition precedent to suing a homeowners association.

On appeal, Harris argues the trial court lacked jurisdiction to enter a final judgment in favor of Aberdeen Club when appeals of final orders related to the other defendants were pending. We find no merit to this argument. However, we do agree with Harris that if the final summary judgment entered in favor of Aberdeen POA is reversed, the final judgment in the instant case should also be reversed, because Aberdeen Club’s and Aberdeen POA’s motions for summary judgment were both based on the statute of limitations. Because we reversed the final summary judgment entered in favor of Aberdeen POA, see Harris v. Aberdeen Property Owners Association (Fla. 4th DCA 2013), we reverse the final judgment in the instant case. We note that although the trial court also based its final judgment for Aberdeen Club on the final order entered in favor of Bristol Lakes HOA, that order really had no impact on the suit against Aberdeen Club, as the order was based on an issue not related to the counts against Aberdeen Club and Aberdeen POA.

Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.


text:
    Brian WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4472.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Brian Williams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013) (reaffirming the holding in Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012), that the decision in Miller v. Alabama, — U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), did not apply retroactively to defendant’s postcon-viction motion, and certifying question to Florida Supreme Court as a matter of great public importance).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.