author: CRENSHAW, Judge.

text:
    Brittany BROWN and Joseph Brown, Appellants, v. Michael LUNSKIS, Appellee.
    No. 2D12-957.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2013.
    Rehearing Denied Dec. 6, 2013.
    Rosemary Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellants.
    Samuel S. Mehring, Jr., Tampa; and Louis K. Rosenbloum of Louis K. Rosenbl-oum, P.A., Pensacola, for Appellee.
   CRENSHAW, Judge.

Brittany and Joseph Brown appeal an order granting Michael Lunskis a new trial on the issue of damages in this automobile negligence case. The trial court granted the new trial after it directed a verdict on the issue of the permanency of one of Mr. Lunskis’s claimed injuries. The directed verdict was entered on a renewed motion for directed verdict filed after the jury had returned its verdict. The focus of that motion was not the primary injuries allegedly sustained by Mr. Lunskis, but rather a temporomandibular joint (TMJ) condition. We conclude that the holding in Wald v. Grainger, 64 So.3d 1201 (Fla. 2011), does not support the trial court’s decision to grant the directed verdict. Accordingly, we reverse the order granting new trial and remand for entry of a judgment based on the jury’s verdict that awarded Mr. Lunskis his past medical expenses and determined that he had not sustained a permanent injury.

I. The Accident and the Primary Injuries at Issue During the Trial

This case arises from a relatively minor automobile accident that occurred on January 21, 2009. Mr. Lunskis was on his way to a doctor’s appointment, driving his car on a four-lane street in a residential neighborhood. He was wearing his seatbelt. Brittany Brown was driving her father’s car in the opposite direction on the street. She turned left at an intersection in front of Mr. Lunskis whose view of her was blocked by a large bus. Though fortunately Ms. Brown nearly cleared the intersection, Mr. Lunskis’s car collided with her car. His front passenger-side fender hit her rear passenger-side fender behind the rear wheel. Mr. Lunskis’s car, a 1996 Mazda sedan, was still operable and sustained damage totaling $1660.70, including sales tax. Neither the police nor an ambulance was called to the scene of this accident. After the drivers exchanged information and talked for a while, they both drove their cars away from the scene of the accident.

Mr. Lunskis continued to his doctor’s appointment. At the time of the accident, Mr. Lunskis was a retired librarian in his mid-fifties. He had been treated by his regular physician since 2006. Mr. Lun-skis’s regular physician had been providing medication to help Mr. Lunskis’s control his diabetes, high blood pressure, and fi-bromyalgia. She was also helping him control his weight. As a result of the accident, he was late to his appointment, and it is unclear whether the doctor actually examined him on that date. He apparently received no treatment or medication on the day of the accident.

Mr. Lunskis felt “achy” the following day, but did not seek treatment until he returned to his regular physician a week later. His regular physician did not treat patients involved in automobile accidents. She gave him a list of doctors from which he selected Dr. Clara Creighton.

Mr. Lunskis first saw Dr. Creighton on January 30, 2009. She primarily treats patients who have been in automobile accidents. Mr. Lunskis testified at trial that Dr. Creighton would not treat him unless he hired a lawyer and gave her a letter of protection. Dr. Creighton saw Mr. Lun-skis on a regular basis from January 30 until June 26, 2009. She primarily provided medications and physical therapy. Thereafter he saw her in mid-August 2010 and a few more times in the months preceding the trial.

Sometime after Mr. Lunskis began being treated by Dr. Creighton, he began having increased pain in his left knee. Dr. Creighton referred Mr. Lunskis to an orthopedic surgeon in late April. The surgeon diagnosed a strained ligament, a meniscus tear, and a Baker’s cyst. He performed arthroscopic surgery on the left knee. He testified that the condition in the knee was caused by the accident.

In addition to the knee injury, Mr. Lun-skis testified that he had low back and neck pain caused by the accident. These conditions had been treated conservatively. Without detailing the evidence, the jury received conflicting testimony from the doctors presented by Mr. Lunskis and those presented by the Browns as to whether the pain in Mr. Lunskis’s back and neck was caused by the accident and whether it was permanent. The Browns maintained that the conditions in his back as well as the conditions in his knee were long-standing, degenerative conditions unrelated to the accident.

At trial, the Browns admitted that Ms. Brown had been negligent at the time of the accident and that Mr. Lunskis had not committed any comparative negligence. They admitted that Mr. Lunskis had sustained at least some injury. Thus, the issues presented to the jury required it to decide what injuries were caused by the accident and whether any of those injuries were permanent. The jury decided that Mr. Lunskis had sustained no permanent injuries and awarded him $58,763.43, which was the precise amount of his medical bills.

II. The TMJ Condition

In both the original motion for directed verdict and in the renewed motion, Mr. Lunskis argued that there was no jury question that he had sustained a TMJ injury that was permanent. Oddly, the evidence concerning his alleged TMJ syndrome came only from Dr. Creighton. Mr. Lunskis never testified that he experienced any TMJ pain.

Dr. Creighton, like most of the physicians in this case, did not testify live at the trial. In her video deposition, she explained her credentials without identifying the medical school she attended. She joined the Navy after medical school, becoming a flight surgeon. Thereafter she practiced medicine in a small Iowa town and eventually transitioned to work in hospital emergency rooms. She is board certified in emergency medical treatment, having been grandfathered into that certification based on her experience. Following her own automobile accident in 1995, she left the field of emergency medical treatment and began working in a clinic that specializes in patients who had been in automobile accidents. She apparently has no special training in orthopedics, neurology, or dentistry.

Dr. Creighton testified, and her reports confirm, that her initial examination showed signs of mild bilateral TMJ pain and that she suspected TMJ dysfunction. She continued to note some level of TMJ syndrome throughout Mr. Lunskis’s visits to her office. She never referred him to a specialist to diagnose this syndrome or recommend treatment. In her “final narrative report” on June 26, 2009, she recommended that he see a “TMJ Specialist” “to undergo diagnostic testing and fabrication of an occlusal splint.” But Mr. Lunskis never went to any dentist or physician who specialized in TMJ to receive that diagnosis.

In addition to testifying that Mr. Lun-skis had a permanent TMJ syndrome that she related to this accident, Dr. Creighton opined that numerous other injuries throughout Mr. Lunskis’s body existed, were permanent, and were related to this accident. The jury rejected each and every opinion of permanency to which Dr. Creighton testified.

III. Standard of Review

We review the trial court’s rulings on a motion for directed verdict de novo and apply the same test used by the trial court in ruling on the motion. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009) (citing Sims v. Cristinzio, 898 So.2d 1004, 1006 (Fla. 2d DCA 2005)).

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmov-ing party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

Id. (quoting Sims, 898 So.2d at 1005).

IV. Wald v. Grainger

In Wald v. Grainger, the supreme court held that a trial court can direct a verdict on permanency based on expert testimony even though such determinations are usually made by juries in personal injury cases. 64 So.3d 1201, 1204 (Fla.2011). The court outlined the procedure for such issues:

A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. Once this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiffs expert,[] or present other evidence which creates a direct conflict with the plaintiffs evidence. If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate.

Id. at 1204-05 (citations omitted). The court then further explained:

A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony. However, when medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it.

Id. at 1205.

Thus, Wald allows for a directed verdict on permanency based on expert testimony except when (1) it is rebutted by another expert, (2) the testimony is impeached, or (3) other conflicting evidence is presented. See id. at 1204. The first and third manners are not particularly complicated, but impeachment of the expert warrants further discussion.

In Wald, the supreme court specifically stated how an expert’s testimony on permanency can be impeached or otherwise rebutted:

[T]he jury’s ability to reject the testimony must be based on some reasonable basis in the evidence. This can include conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiffs conflicting testimony or self-contradictory statements regarding the injury. For example, when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony, even without conflicting medical testimony, if there is conflicting lay testimony.

Id. at 1205-06 (citations omitted). From our review of the record, we determine that there were several bases in the evidence for the jury to disregard the testimony of Mr. Lunskis’s witness.

Y. Application of Wald v. Grainger

The record in this case reflects three critical reasons a directed verdict should not have been entered in this case. First, the independent medical examiner, a witness for the Browns, testified that there was “no permanent injury.” This itself was reason enough a directed verdict should not have been granted, because it is for the jury to decide which testimony was more credible, and it cannot be said that there was no “conflicting medical evidence.” Id. at 1206. We recognize though that the independent medical examiner did not testify specifically that “there was no permanent injury to the TMJ.” Second, the expertise regarding TMJ issues of Mr. Lunskis’s witness, Dr. Creighton, was hotly debated in that her ability to diagnose Mr. Lunskis at all was a feature of the trial in this case. The record reflects that Dr. Creighton treats patients in accident cases often but generally refers out TMJ issues. She is not an orthopedic surgeon and has never been one, nor does she have experience with dentistry. Therefore it cannot be said that there was no “evidence that impeaches the expert’s testimony or calls it into question” because her credibility as an expert itself was subject to criticism. Id. Third, “when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony.” Id. In this case, the record reflects that Dr. Creighton was not apprised of Mr. Lunskis’s historical dental problems. The record also reflects that there was testimony that TMJ and dental issues are often linked. We need not determine the veracity of that argument but recognize that it is relevant to the jury’s role in weighing expert testimony. It suffices to say that Dr. Creighton was not given a complete medical record regarding Mr. Lunskis, allowing the jury to reject Dr. Creighton’s testimony. In reviewing the record in this case, it is clear that there were several grounds upon which the expert’s testimony could be rejected by the jury.

VI. Conclusion

Accordingly, we reverse the order granting new trial and remand for entry of a judgment based on the jury’s verdict.

Reversed and remanded with directions.

ALTENBERND and WALLACE, JJ„ Concur.

      . As Judge Makar has noted, "[t]he Court's opinion is internally inconsistent, stating in its background discussion that the testimony or evidence must ‘severely impeach’ a plaintiff's expert but later saying that evidence that simply ‘impeaches’ the expert's testimony is reasonable for that purpose.” Foster v. State Farm Mut. Ins. Co., 85 So.3d 1219, 1220 n. 1 (Fla. 1st DCA 2012) (Makar, J., specially concurring) (citations omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leon COUNTY, Appellant, v. EXPEDIA, INC., et al., Appellee.
    No. 1D12-4815.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2013.
    Rehearing Denied Oct. 9, 2013.

      Harry F. Chiles, Robert L. Nabors, and Bethany A. Burgess, Nabors Giblin Nick-erson, Tallahassee, Edward A. Dion, Na-bors Giblin Nickerson, Ft. Lauderdale, and Roberto Martinez, Francisco Maderal, Maureen Elizabeth Lefebvre, and Stephanie Casey, Colson Hicks Eidson, Coral Gables, for Appellant.
    Pamela Jo Bondi, Attorney General, Joseph C. Mellichamp, III, Assistant Attorney General, and J. Clifton Cox, Assistant Attorney General, Tallahassee, for Appel-lee Florida Department of Revenue.
    Mark E. Holcomb, Madsen Goldman & Holcomb, Tallahassee, for Appellees Expe-dia, Inc., Hotels.com, Hotwire, Inc., Orbitz, LLC, Orbitz for Business, Inc., Trip Network, Inc., Priceline.com, Inc., Travelweb, LLC, and Travelocity.com.
    Elizabeth B. Herrington and Mark J. Altschul, McDermott Will & Emery, Chicago, Illinois, pro hac vice for Appellees Orbitz, LLC, Orbitz for Business, Inc., and Trip Network, Inc.
    Larry Smith, Deputy County Attorney, and Mary G. Jolley, Assistant County Attorney, DeLand, for Amici Curiae County of Volusia and School Board of Volusia County.
   PER CURIAM.

AFFIRMED. See Alachua Cnty. v. Ex-pedía, Inc., 110 So.3d 941 (Fla. 1st DCA 2013).

BENTON, RAY, and MAKAR, JJ., concur.


author: WALLACE, Judge. CASANUEVA and SLEET, JJ., Concur.

text:
    Miriam R. TARKOW, n/k/a Katherine Kofler, Appellant/Cross-Appellee, v. Stanley A. TARKOW, Appellee/Cross-Appellant.
    No. 2D12-1162.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2013.

      Stanford R. Solomon and Matthew E. Thatcher of The Solomon Law Group, P.A., Tampa, for Appellant/Cross-Appel-lee.
    Allison M. Perry and Stacey A. Rickies of Law Office of Allison M. Perry, P.A., Tampa; and Ellen D. Ostman of Givens Givens Spark, PLLC, Tampa, for Appel-lee/Cross-Appellant.
   WALLACE, Judge.

Based on claims by Stanley A. Tarkow (the Former Husband) that his financial circumstances had changed substantially and that Miriam R. Tarkow, n/k/a Katherine Kofler (the Former Wife), is in a supportive relationship, the circuit court entered an order that substantially reduced the Former Husband’s permanent periodic alimony payments. The Former Wife appeals the order, and the Former Husband cross-appeals. On the appeal, we affirm in part and reverse in part; we affirm on the cross-appeal.

I. THE FACTS AND PROCEDURAL HISTORY

The parties were divorced in 2000 after twenty-eight years of marriage. On appeal from the final judgment of dissolution of marriage, this court reduced the amount of the permanent periodic alimony award to the Former Wife and affirmed the final judgment in all other respects. Tarkow v. Tarkow, 805 So.2d 854 (Fla. 2d DCA 2001).

In May 2010, the Former Husband filed a petition seeking a reduction or termination of his obligation to pay permanent periodic alimony. When he filed his modification petition, the Former Husband was obligated to pay the Former Wife $6000 per month in permanent periodic alimony. In support of his petition, the Former Husband alleged that there had been a substantial change of circumstances consisting of a significant reduction in his income. The Former Husband also alleged that the Former Wife was in a “supportive relationship” within the meaning of section 61.14(l)(b), Florida Statutes (2009). The Former Wife answered the modification petition and denied its material allegations. The circuit court referred the matter to a general magistrate (the GM).

After a hearing, the GM entered an extensive Report and Recommendation (the Recommended Order). In the Recommended Order, the GM found that there had been a substantial change of circumstances based on a decrease in the Former Husband’s income. The GM also found “that the change was not contemplated at the time of the final judgment, and that the change is sufficient, material, involuntary and permanent in nature.” In addition, based on the evidence and a review of the factors outlined in section 61.14(l)(b)(2), the GM ruled “that the Former Wife is in a committed and supportive relationship.” After analyzing the Former Husband’s ability to pay and the Former Wife’s current needs, the GM recommended that the Former Husband’s modification petition should be “granted to the extent that the Former Husband’s alimony obligation is reduced to $1294.06 per month.”

Both parties timely filed exceptions to the Recommended Order. After a hearing, the circuit court entered an order that denied the exceptions. The circuit court also approved and ratified the Recommended Order as an order of the court. The Former Wife moved for a rehearing of the circuit court’s order, and the circuit court denied the motion. The Former Wife appealed the order, and the Former Husband filed a cross-appeal.

II. DISCUSSION

On appeal, both parties raise multiple issues and sub-issues. We find merit only in two arguments made by the Former Wife. First, the Former Wife argues that the circuit court erred in failing to consider the income tax consequences of the reduced alimony award to the Former Wife in determining her need for continued support. Second, the Former Wife contends that the circuit court erred in failing to consider current information concerning her investment income. Because these are issues of law, our standard of review is de novo. Kaaa v. Kaaa, 58 So.3d 867, 869 (Fla.2010) (as revised on denial of rehearing).

A. The Income Tax Consequences of the Alimony Award.

The GM had before her a “Chart of Lifestyles Expenditures, January 2007 through December 2010,” submitted by the Former Wife. This chart listed the annual living expenses claimed by the Former Wife averaged over the four calendar years preceding the final hearing. The GM used this chart to calculate the amount of the Former Wife’s current living expenses. Among the expenses on the list was a $13,497 item for income taxes. Thus the Former Wife’s “monthly need” calculation included the payment of income taxes. However, in calculating the Former Wife’s current needs, the GM declined to consider several entries on the chart, including the income tax expense.

The GM found the Former Wife’s current monthly need to be $5330.19, excluding the payment of income taxes. The GM calculated the Former Wife’s current monthly income from sources other than alimony — investments and retirement accounts — to be $4036.13. By subtracting the current monthly need of $5330.19 from the monthly income of $4036.13 that the Former Wife received from sources other than alimony, the GM arrived at a negative balance of $1294.06. This figure is the amount to which the GM recommended that the Former Husband’s monthly alimony payment be reduced.

Unfortunately, the GM’s calculations fail to take into account the effect of federal and state income taxes on the Former Wife’s needs. The Former Wife raised this issue in her exceptions to the Recommended Order. Along with her exceptions to the Recommended Order, the Former Wife submitted a “FinPlan Schedule” that she asserted reflected “the necessary-amount of alimony needed to pay the State and Federal Income Tax liabilities attendant with the investment and retirement incomes found by the [GM].” The Former Wife also raised the income tax issue in her motion for rehearing. The circuit court did not address the issue of the Former Wife’s expenses for income taxes either in its order approving and ratifying the Recommended Order or in its order denying the Former Wife’s motion for rehearing.

Section 61.08(2)(h) requires that “in determining the ... amount of alimony ..., the court shall consider all relevant factors, including, but not limited to: [t]he tax treatment and consequences to both parties of any alimony award.” “It is error for the trial court to fail to consider tax implications of an alimony award when such evidence is presented.” Farley v. Farley, 800 So.2d 710, 712 (Fla. 2d DCA 2001) (citing Miller v. Miller, 625 So.2d 1320, 1321 (Fla. 5th DCA 1993)). Here, the Former Wife presented appropriate evidence to the GM and to the circuit court concerning the income tax implications of the alimony award and her need for continued support in an amount sufficient to enable her to pay her obligations for federal and state income taxes. In calculating the Former Wife’s current needs, both the GM and the circuit court failed to account for the income tax consequences of the award to the Former Wife and the Former Wife’s expenses for the payment of income taxes.

B. The Reduction in the Former Wife’s Investment Income.

The circuit court also erred in using outdated information to calculate the Former Wife’s investment income. The final hearing before the GM was originally scheduled for April 12, 2011, but the parties could not conclude the matter within the time allotted on that day. Two months later, on June 16, 2011, the parties reconvened before the GM to complete the final hearing. At the continuation of the final hearing, the Former Wife proffered evidence that her investment accounts had been reduced in value in the amount of $61,146 during the period between the two sessions. Although the Former Husband did not dispute the accuracy of this evidence, he objected to its admission. The GM sustained the objection and refused to consider the updated information. As a result, the GM used incorrect information to calculate the Former Wife’s income from her investments. Thus the GM’s calculations substantially overstated the Former Wife’s investment income going forward. The GM’s calculations of the Former Wife’s income from her investments should have reflected current reality. See Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998); Greenberg v. Green-berg, 793 So.2d 52, 55 (Fla. 4th DCA 2001); Woodard v. Woodard, 634 So.2d 782, 783 (Fla. 5th DCA 1994).

The Former Wife raised the issue of the GM’s failure to consider the Former Wife’s current investment income in her exceptions to the Recommended Order and in her Motion for Rehearing. The circuit court did not consider this issue either in its order approving and ratifying the Recommended Order or in the order denying the Former Wife’s motion for rehearing.

III. CONCLUSION

By failing to consider the Former Wife’s expenses for federal and state income taxes and her current investment income, the GM recommended an alimony award to the Former Wife in an amount that was less than necessary to meet her needs. The circuit court overruled the Former Wife’s exceptions and approved the recommended amount without addressing these issues. This constituted error.

Accordingly, on the Former Wife’s appeal, we reverse the amount of the reduction in the alimony award to the Former Wife. On remand, the circuit court shall reconsider the reduction in the amount of the alimony award to the Former Wife in light of the Former Wife’s income tax obligations and her current investment income. Upon such reconsideration, the circuit court shall adjust the amount of the reduction in alimony so that the Former Husband’s alimony obligation is sufficient to meet the Former Wife’s needs. On the Former Wife’s appeal, we affirm the order under review in all other respects. On the Former Husband’s appeal, we affirm the order under review.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SLEET, JJ., Concur.

      . The Recommended Order consists of seventeen pages of detailed findings of fact and conclusions of law. We commend the GM, Mary Lou Cuellar-Stilo, for the effort she obviously devoted to the preparation of this Order. Her work has made this court's task of appellate review much easier than it might have been in a case such as this.

      . After the dissolution of the parties' marriage, the Former Wife relocated to California. The evidence at the final hearing established that she was liable for the payment of both federal and California income taxes.


text:
    Paul BOATMAN, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3789.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2013.
    Rehearing Denied Oct. 18, 2013.
    Paul Boatman, Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Michael RUFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3453.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2013.
    Rehearing Denied Oct. 18, 2013.
    Michael Ruffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    David ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1636.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Rehearing Denied Dec. 19, 2013.
    David Arnett, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising three claims for relief. We affirm the denial as to grounds two and three without further discussion. However, for the reasons discussed below, we reverse and remand the denial as to ground one.

In ground one, the appellant asserts that a three-year minimum mandatory sentence imposed for his conviction for possession of a firearm by a convicted felon is illegal because he was never charged with being in “actual possession” of the firearm. Section 775.087(2)(a)l.r., Florida Statutes (2008), provides that an individual convicted of possession of a firearm by a convicted felon shall be subject to a three-year mandatory-minimum sentence; however, it is only applicable if the defendant is found to have been in actual possession of the firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) (“To impose a three-year mandatory minimum sentence ... the factfinder must make a specific finding of actual possession.”).

In order to enhance a defendant’s sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information. See Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012). In this case, although the appellant was charged with possessing a firearm, he was never charged with “actually” possessing the firearm. Cf. Green v. State, 18 So.3d 656 (Fla. 2d DCA 2009) (finding that trial court committed fundamental error by reclassifying defendant’s offense of trafficking in cocaine from a first-degree felony to a life felony pursuant to section 775.087(1) based on jury’s finding that defendant was in “actual possession” of a firearm at the time of the offense where criminal information did not allege that defendant was in actual possession of a firearm, but rather that he “carried, displayed, used, threatened to use or attempted to use” a firearm). The state asserts that there is no error because the jury in this case made a specific finding that the appellant actually possessed the firearm. However, a jury finding that the appellant actually possessed a firearm does not cure the charging defect. Cf. Davis v. State, 884 So.2d 1058 (Fla. 2d DCA 2004) (25-year minimum mandatory sentence illegal where death or great bodily harm not alleged in the information, even if a jury makes such a finding and the statute is quoted in the information).

Accordingly, we reverse and remand for the trial court to strike the three-year minimum mandatory sentence. We affirm the denial of the appellant’s remaining claims.

AFFIRMED in part, REVERSED and REMANDED IN PART with directions.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.

      . Here, the information charging the appellant with possession of a firearm by a convicted felon reads:
      On January 12, 2007, [the appellant] did unlawfully own or have in his care or her care, custody, possession or control a firearm, having been previously convicted of a felony....”


author: SILBERMAN, Judge.

text:
    Steve Lawrence GRIFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4728.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Dec. 2, 2013.

      Howard L. Dimmig, II, Public Defender, and Deana K. Marshall, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Steve Lawrence Griffin, Jr., seeks review of his judgment and sentence for second-degree murder with a firearm. Griffin argues that the trial court committed fundamental error by giving the standard instruction on the lesser included offense of manslaughter by act and that the court abused its discretion by denying his motion for new trial based on several alleged incidents of State misconduct. We find no abuse of discretion in the denial of the motion for new trial and do not discuss that issue further. As to the jury instruction issue, we agree that the manslaughter instruction given by the court was erroneous. However, we conclude that the error in giving the instruction did not rise to the level of fundamental error because the error did not pertain to a disputed element of the offense. Accordingly, we affirm.

Griffin was tried by a jury for second-degree murder in violation of section 782.04(2), Florida Statutes (2010). During the jury charge conference, the parties agreed that the lesser included offense of manslaughter by act should be read to the jury. Despite the fact that the date of the offense was January 2011, the court was provided with the 2006 version of the standard manslaughter by act instruction which the Florida Supreme Court has held erroneously requires an intent to kill. See State v. Montgomery, 39 So.3d 252, 257 (Fla.2010). The supreme court has concluded that it is fundamental error to give this instruction when the defendant is convicted of an offense that is only one step removed from the lesser included offense of manslaughter and the element of intent is disputed at trial. See Daniels v. State, 121 So.3d 409 (Fla. June 6, 2013); Haygood v. State, 109 So.3d 735, 742 (Fla.2013); Montgomery, 39 So.3d at 258-59.

The State does not dispute that the jury instruction given by the trial court was erroneous under Montgomery. However, the State asserts that the error in giving the instruction was not fundamental because Griffin was convicted of second-degree murder as charged, as opposed to as a lesser included offense. The State cites to Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), in support of this argument.

In Joyner, the defendant was charged with and convicted of second-degree murder. Id. at 306. On appeal, the defendant argued that the standard jury instruction on the lesser included offense of manslaughter by act constituted fundamental error under Montgomery. The First District distinguished Montgomery on three bases. Id. at 306-07. As one of those bases the court stated, without elaborating, that the defendant was not convicted of a lesser included offense but was convicted as charged. Id. at 306.

We do not find this to be a valid basis on which to distinguish Montgomery. We recognize that the defendant in Montgomery was charged with premeditated first-degree murder and convicted of the lesser included offense of second-degree murder. See 39 So.3d at 254. However, the charged offense did not factor into the court’s fundamental error analysis. Instead, the court focused on whether the erroneous instruction pertained to a crime that was one step removed from the crime for which the defendant is convicted. Id. at 259. We therefore decline the State’s invitation to follow Joyner.

The State also argues that giving the instruction in this case did not constitute fundamental error because the intent element was not disputed at trial. We agree. The supreme court has “long held that fundamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.” Hay-good, 109 So.3d at 741 (citing State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). This standard is equally applicable in the context of the Montgomery instruction on manslaughter by act. See Daniels, 121 So.3d at 409; Haygood, 109 So.3d at 742; Montgomery, 39 So.3d at 258.

In this case, the State presented eyewitness testimony that Griffin pulled up next to the victim’s vehicle in a convenience store parking lot and had words with him through the windows. Then Griffin pulled out a long black gun, put it through the window, and shot the victim in the neck where he sat. Griffin’s sole defense was mistaken identity. Griffin admitted that he pulled his vehicle up next to the victim’s vehicle and had a conversation with him. He claimed that an unknown individual walked between the vehicles to the victim’s window, pulled out a shotgun, pointed it at the victim, and shot him.

Griffin did not argue that the manner of the shooting did not establish the requisite intent; he simply argued that he was not the perpetrator. There is no dispute regarding the elements of an offense when the manner of the crime is conceded and the sole defense is mistaken identity. Battle v. State, 911 So.2d 85, 89 (Fla.2005). Because there was no dispute regarding the element of intent, the erroneous jury instruction on the intent element of the lesser included offense of manslaughter did not constitute fundamental error. See Ingraham v. State, 32 So.3d 761, 767-68 (Fla. 2d DCA 2010) (holding that the error of omitting the element of intent to commit larceny from the jury instruction was not fundamental because the only disputed issue at trial was identity); Davis v. State, 839 So.2d 734, 735 (Fla. 4th DCA 2003) (holding that the error in failing to instruct the jury on the guilty knowledge element for a drug possession crime was not fundamental because the only disputed issue at trial was identity). Accordingly, we affirm.

Affirmed.

NORTHCUTT and SLEET, JJ., Concur.


author: WALLACE, Judge.

text:
    Maurice STARKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5723.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Oct. 29, 2013.
    Maurice Starks, pro se.
   WALLACE, Judge.

Maurice D. Starks appeals the order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm because neither Miller v. Alabama, -U.S.-,-, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012), nor Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010), applies to Starks’ life sentences for his homicide and his nonhomicide convictions, respectively. Consequently, his sentences are not illegal.

After a jury trial, Starks was convicted on November 8, 2002, of the lesser-included offense of second-degree murder with a firearm of James Kehoe in violation of section 782.04(2), Florida Statutes (2000), and the charged offense of armed burglary with assault or battery of Kehoe in violation of section 810.02(2)(b), Florida Statutes (2000). The offenses were committed on December 27, 2000, when Starks was seventeen years of age. After ordering a presentence investigation report (PSI), the trial court sentenced Starks to life imprisonment on both counts.

In his motion to correct illegal sentence, Starks argued that because he was seventeen at the time of the offenses, his sentence of life for the second-degree murder is illegal under Miller, 132 S.Ct. at 2475 (holding that the Eighth Amendment prohibits mandatory life without the possibility of parole for a juvenile who commits homicide; “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles”), and his sentence of life for the burglary was illegal under Graham, 130 S.Ct. at 2030 (holding that the Eighth Amendment forbids life without the possibility of parole for a juvenile who commits a nonhomicide offense). We write to explain why the postconviction court correctly denied Starks’ motion.

Starks’ Sentence For Murder

In Miller, 132 S.Ct. at 2471 n. 10, the United States Supreme Court “consider[ed] the constitutionality of mandatory sentencing schemes — which by definition remove a judge’s or jury’s discretion”— and held that mandatory sentences of life without the possibility of parole for juveniles violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 2469. Starks’ argument that his sentence is illegal under Miller assumes that Miller applies retroactively.

However, we need not decide that issue because Miller does not apply to Starks’ sentence. The record reveals that Starks’ conviction of second-degree murder was enhanced to a life felony under section 775.087, Florida Statutes (2000), because of his use of a firearm. Section 775.082(3)(a)(3) provides that a life felony is to be punished “by a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment.” Thus, because the statute under which Starks was sentenced did not mandate a life sentence but provided the trial court with a choice of a life sentence or a sentence of a term of years, Starks was not sentenced under a sentencing scheme condemned in Miller.

Starks’ Sentence For Burglary

Starks’ life sentence for the burglary is not illegal under Graham because the burglary was committed during the same criminal episode as the murder, and the Graham Court, in dicta, “noted an exception for juveniles who commit nonhomicide offenses in conjunction with homicide offenses.” Washington v. State, 110 So.3d 1, 2-3 (Fla. 2d DCA 2012); accord Lawton v. State, 109 So.3d 825, 828 (Fla. 3d DCA 2013). Contra Johnson v. State,-So.3d -,-, 38 Fla. L. Weekly D953, D954, 2013 WL 1809685 (Fla. 1st DCA Apr.30, 2013) (certifying conflict with Lawton on the issue of whether Graham applies to juveniles convicted of a homicide and a nonhomicide offense arising out of a single criminal episode).

In the course of its opinion in Graham, the Supreme Court relied on the Annino study to find that there is a consensus against mandatory life sentences for juveniles who commit nonhomicide offenses. See Graham, 130 S.Ct. at 2023 (citing P. Annino, D. Rasmussen, & C. Rice, Juvenile Life without Parole for Non-Homicide Offenses: Florida Compared to Nation 2 (Sept. 14, 2009)). In doing so, it responded to the State’s argument that the study was not accurate because it did not include juveniles who were convicted of both a homicide and a nonhomicide offense, even when they received a life sentence for a nonhomieide. The Court found this distinction unpersuasive:

Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.

Id. at 2023.

Having committed a homicide and a non-homicide offense during a single criminal episode, Starks squarely falls under this exception; therefore, his life sentence for the burglary is not illegal.

Affirmed.

MORRIS and BLACK, JJ., Concur.

      . A life sentence imposed under the Criminal Punishment Code in Florida does not carry with it the possibility of parole. § 921.002(l)(e), Fla. Stat. (2000).

      . The court's consideration of a presentence investigation report before imposing sentence indicates that it factored Starks' youth into its decision to sentence him to life.


author: DAVIS, Chief Judge.

text:
    Eli VILLAREAL a/k/a Eli Villareal Alvarez, Appellant, v. Heather ERES, Individually and as Personal Representative of the Estate of Kevin D. Bryant, Appellees.
    No. 2D11-6037.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Dec. 6, 2013.

      Tracy Raffles Gunn of Gunn Appellate Practice P.A., Tampa, for Appellant.
    Weldon Brennan of Brennan, Holden & Kavouklis, P.A., Tampa, and Joel Eaton of Podhurst Orseck, P.A., Miami, for Appel-lees.
   DAVIS, Chief Judge.

Eli Villareal appeals the final judgment for personal injuries and wrongful death entered in favor of Heather Eres, individually, and as personal representative of the Estate of Kevin D. Bryant. Villareal raises several issues on appeal. We conclude that the trial court correctly granted Eres’ motion for partial summary judgment on the issue of settlement and affirm the final judgment.

Heather Eres and her minor child, Kevin Bryant, were in a motor vehicle that was struck from the rear by a vehicle driven by Eli Villareal. The impact of the collision thrust Eres’ vehicle forward into a moving train that was crossing the road just ahead of Eres. The impact of the car’s striking the moving train resulted in Kevin Bryant’s death, as well as serious personal injuries to Eres.

Eres’ attorney contacted Villareal’s insurer, asked for the disclosure of insurance coverage information described in section 627.4137(1), Florida Statutes (2008), and offered to settle for policy limits. The offer included a time limit for accepting and referred to restrictions on the nature of the release that Eres would be willing to sign. The insurance company timely responded to the offer with the required information, draft checks for the payment of the policy limits, and proposed releases, one for Eres personally and one for the Estate. Eres’ attorney responded that the releases violated the restrictions specifically delineated in the offer and stated that Eres considered the insurer’s response a rejection of the initial offer and a counteroffer. Counsel advised that Eres rejected that counteroffer and would file suit.

In response to the complaint filed by Eres, Villareal filed an answer and affirmative defenses, one of which was that Eres presented a settlement offer that was accepted by Villareal. Denying that the parties ever entered into a settlement, Eres filed a motion for partial summary judgment on this affirmative defense, which was granted by the trial court. The remaining matters went to jury trial, and the jury awarded Eres a judgment for $10,639,585.36. It is this final judgment that Villareal now appeals.

At the hearing on the motion for summary judgment, Eres argued that the language of the proposed releases was but an attempt to include a hold harmless/indemnification agreement in the release. Eres argued that by the terms of her offer, the proposed language in the releases was considered a rejection of the offer and that there was no settlement as a matter of law. Villareal responded that the releases did not contain a hold harmless agreement and were consistent with Eres’ request. Based on the language of the letters, it was Villareal’s opinion that all of the conditions of the offer had been accepted and met. Additionally, Villareal suggested as an alternative argument that the terms of the releases were not essential elements of the offer, that the signing of the releases was but a ministerial act to effectuate the agreement, and that the releases could be amended by the parties after the acceptance of the offer.

In granting partial summary judgment, the trial court determined that there was no meeting of the minds, thereby implicitly finding that there was no acceptance of the offer based on the language of the releases — which the trial court found to be an essential term of the offer. After reviewing the transcript of the hearing on Eres’ motion for partial summary judgment and the memoranda filed by the parties, it is clear that the trial court found that the language in the releases was in the nature of a hold harmless/indemnification agreement. This determination resulted in the conclusion that the acceptance of the offer was invalid and that there was no settlement because there was no meeting of the minds evidenced by an offer and acceptance, as required by contract law.

On appeal, Villareal again argues that the terms of the releases were not essential elements of the offer and that the releases were subject to further modification after the offer was accepted. He suggests that his acceptance of the other terms was a valid acceptance of the offer and that Eres was contractually bound by that acceptance. We reject this argument and agree with the trial court’s determination that the terms of the releases were essential elements of Eres’ offer. We also agree with the trial court’s ruling that an acceptance that is in variance with the release restrictions delineated in the offer is not a binding acceptance even when accompanied by an offer to further modify the release terms.

In Florida, settlement agreements are governed by contract law. Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217, 219 (Fla. 1st DCA 2002) (“Pursuant to contract law, the acceptance of an offer which results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.”). “Settlements are ‘highly favored and will be enforced whenever possible.’ ” Hanson v. Maxfield, 23 So.3d 736, 739 (Fla. 1st DCA 2009) (quoting Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985)). However, “[t]he party seeking judgment based on a settlement has the burden to prove assent by the opposing party and must establish that there was a meeting of the minds or mutual or reciprocal assent to certain definite propositions.” Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001).

Whether Villareal’s response and proposed releases were an acceptance of Eres’ offer such that a binding settlement was reached must be resolved by a close examination of the contents of the correspondence exchanged by the parties. On March 19, 2009, Eres’ attorney, Peter Ma-caluso, contacted the claims representative for Progressive Insurance Company, the insurer of Villareal. By that letter, the attorney advised that he had reason to believe that the coverage Progressive provided had policy limits of $10,000 per person and $20,000 per accident. He asked that the insurer provide the coverage information affidavits required by section 627.4137. He further indicated that his client was ready to settle for policy limits but wanted to do so by Easter weekend. In addition to the payment of policy limits for bodily injury, Attorney Macaluso asked that the carrier also reimburse Eres the sum of $650 for her son’s personal property that had been destroyed in the accident.

The crucial language of this offer was as follows:

In exchange for the above, my clients, including the estate!,] have agreed to sign a general release of all claims against your insured. Because this claim is only against your insured my clients are unwilling to sign a release which releases anyone or any entity other than your insured. Also my clients agree to satisfy all valid liens out of the proceeds of the settlement. However, my clients cannot agree to a release which has a hold harmless or indemnity agreement in it. Please understand providing us with any release containing anyone or any entity other than the insured, or a hold harmless indemnity agreement, would act as a rejection of this good faith offer to settle this matter.

(Emphasis added.)

Progressive responded to this letter on April 8, 2009. The response included the information and affidavits regarding coverage requested in the letter and drafts for a total of $20,000. Additionally, the letter explained that although the prior payments to the lien holder on the vehicle and to Eres personally for her equity in the vehicle exhausted the $10,000 limits on the property damage coverage, a draft for the $650 was included “due to the very tragic circumstances of this accident.”

Also enclosed were the “proposed” releases, which included the following language:

The undersigned reserve(s) their right to pursue and recover future medical expenses, health care and related expenses from any person, firm, or organization who may be responsible for payment of such expenses, including any first party health or first party automobile coverage, if so entitled. However, said reservation does not include the party(ies) released who is/are given a full and final release of all claims, including, but not limited to, past, present, or future claims for subrogation arising out of the above-referenced accident.

(Emphasis added.) Progressive’s letter referenced the releases by stating: “Please notify me if you require changes to either release.” The letter closed with the following statements: “ We believe that we have complied with all of the requests outlined in your letter. Please notify us if there is any additional information you need to resolve these claims.” The next day Villareal’s counsel, Katherine Shed-wick, wrote to Attorney Macaluso advising that she was sending the original affidavit executed by her client. The letter stated: “I believe that my client and Progressive have satisfied all conditions of your demand at this time. If you disagree and require anything further, please advise immediately so that I may work diligently to timely address the issue.”

On April 14, 2009, Attorney Macaluso contacted Progressive’s claims representative to advise that he considered the April 8 response and the enclosed releases to be a rejection of Eres’ offer. He suggested that the language in the proposed releases that referred to “subrogation claims” was in effect a hold harmless/indemnification agreement. Because Eres’ original offer advised that such a hold harmless/indemnification agreement was not acceptable and that a release that included the same would be deemed a rejection of the offer to settle, Attorney Macaluso considered the response to be a counteroffer. He stated that his client would not sign such a release and that he considered the counteroffer rejected. He further advised that he would be filing suit.

On April 22, 2009, Progressive replied that their April 8 response was not a rejection of the initial offer but was an acceptance of it. Progressive’s agent argued that the language in the proposed releases was not an indemnification or a hold harmless agreement. She stated that “the plain wording of the proposed releases require[s] only a release of claims against our insured held by your client and expressly reserves your client’s rights to pursue claims against any and all other first or third parties.” She reminded Attorney Macaluso that the April 8 letter asked that he notify her if he should “require changes to either release.” The letter concluded with the following statement: “If you are, for whatever reason, uncomfortable having your clients execute releases containing the wording ‘... including, but not limited to, past, present, or future claims for subrogation arising out of the above-referenced accident,’ feel free to strike it from the releases.”

The facts of this case are similar to those in Trout v. Apicella, 78 So.3d 681 (Fla. 5th DCA 2012). In that case, Trout was seriously injured as a passenger in a vehicle operated by Apicella and insured by Geico. Geico immediately initiated settlement negotiations by sending an offer to settle with policy limits for the bodily injury liability coverage provided to Apicella and the owner of the vehicle under separate policies. Trout rejected this offer, and the parties continued negotiating as to the proceeds under other types of coverage. Finally, Trout’s attorney sent a letter offering to finalize the settlement discussions. His offer stated as follows:

So just send me a single bodily injury release of your insureds only without any additional language that would require my client to pay their defense costs for claims by third parties. If I have valid checks for all bodily injury liability insurance available to your insureds, along with that release and the complete statutory insurance disclosures, within fifteen days of this letter, my client will sign the release and those claims will be settled.

Id. at 683 (emphasis omitted).

Geico responded by sending a release providing that Trout was releasing Apicel-la and the owner of the vehicle from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, on account of all injuries and damages, known and unknown, which have resulted or may in the future develop as a consequence of a motor vehicle accident that occurred at Volusia County on or about the 30th of March, 2008.

Id. at 683-84 (internal quotation marks omitted). The letter went on to provide:

We consider the enclosed proposed release a ministerial document which memorializes our settlement of this case.... We do not consider the release a document which creates any new terms or conditions governing our resolution of your claim. If you feel there is any aspect of the enclosed document which does not reflect our settlement of your claim, please contact me immediately so that we can see that the document is revised to reflect the exact terms of our agreement.

Id. at 684 (emphasis omitted).

In response to Geico’s “acceptance,” Trout advised that he was proceeding with the filing of a suit because the release tendered included the “release for all claims, which was not what Trout offered.” Id. After Trout filed his suit, Geico filed its answer and affirmative defenses, one of which alleged settlement and release. Following a hearing on the cross-motions for summary judgment on this affirmative defense, the trial court ruled that Geico’s acceptance was valid and that Trout was bound by the settlement.

On appeal, the Fifth District reversed the trial court’s determination, concluding that Trout’s offer “was an offer for a unilateral contract that required performance by Geico.” Id. The court noted that although Geico indicated that it was willing to change any wording in the release that Trout found objectionable, the only acceptance provided by Trout’s offer was a release that met the terms of the offer, one of which was “one release for the bodily injury claim only that released Geico’s insureds without any indemnification language.” Id. at 685.

The Fifth District concluded:

Performance was an essential requirement for the acceptance of Trout’s offer. Instead of performing, however, Geico proffered a release that did not just fail to meet the terms of Trout’s offer, it blatantly failed.... Geico’s offer to consider any release amendment and explanation Trout might suggest was inadequate and the disclaimer of “new terms” ineffective.... Geico’s offer (probably) to change the release was, at best, a promise to perform, which is not sufficient here to create a binding contract-The language of the offer communicates how it is to be accepted.

Id.

As in Trout, Eres’ offer to settle was an offer for a unilateral contract. That is, she conditioned Villareal’s acceptance on a specified performance — agreement with the exact terms of the release that was contemplated in the offer. Furthermore, Eres’ offer specifically stated that the sending of “any release containing anyone or any entity other than the insured, or a hold harmless indemnity agreement, would act as a rejection of this good faith offer to settle this matter.” Therefore, for Villareal to accept the offer and have a binding settlement with Eres, the release had to meet the specifications in the offer. And Villareal’s overture to alter the release language was not sufficient to constitute an acceptance that would bind Eres to her offer. See Knowling v. Mana-voglu, 73 So.3d 301, 303 (Fla. 5th DCA 2011) (“For acceptance of an offer to bind the maker of the offer it ‘must be absolute, unconditional, and identical with the terms of the offer.’ ” (quoting Montgomery v. English, 902 So.2d 836, 837 (Fla. 5th DCA 2005))).

Villareal argues on appeal that even if the subrogation language of the proposed releases could somehow be understood to be a hold harmless/indemnification agreement, this language was meaningless because it is not clear that a subrogation claim even exists. Furthermore, he argues that if such a claim did exist, Eres could not release Villareal from the subrogation cause of action. Villareal in essence maintains that any language in the proposed releases regarding future subrogation claims is a nullity. We disagree.

It is true that Eres cannot legally release Villareal from liability to third parties who Villareal knows — at the time Eres executes the release — might have a subrogation claim against him. See generally Lincoln Nat’l Health & Cas. Ins. Co. v. Mitsubishi Motor Sales of Am., Inc., 666 So.2d 159,163 (Fla. 5th DCA 1995) (“A tortfeasor cannot expect to rely on a release from the victim if he knows that equity has transferred a portion of the victim’s claim of recovery into the hands of a third party who has paid a part of what the tortfeasor by rights should pay.”); see also Ortega v. Motors Ins. Corp., 552 So.2d 1127, 1128 (Fla. 3d DCA 1989) (“Because the tortfeasor had knowledge of Motors’ perfected subrogation rights when Ortega executed the releases, he was estopped from raising those releases as a defense to Motors’ action.” (emphasis added)). In such case, the release language would be a nullity as to third parties. But it would not be a nullity as to Eres’ liability to Villareal.

Villareal’s proposed releases were not contingent upon the specific facts of the instant litigation, but rather were unconditional. If a third party had compensated Eres for some or all of her losses, a subro-gation claim against Villareal would be possible. If the subrogee was successful in obtaining a judgment against Villareal, the language providing that Eres would release Villareal from such liability could arguably become the basis of an action by Villareal against Eres for reimbursement of his payment to the subrogee. Such action would be, in essence, an action for indemnification because by “releasing” Vil-lareal from liability for a subrogation claim, Eres would be in effect assuring Villareal that should a subrogation judgment be entered against him, she would indemnify (release) him against such loss.

The proposed releases included in Progressive’s attempted acceptance would, in other situations, act to hold Villareal harmless for subrogation because as a general rule a subrogee stands in the shoes of the subrogor and thus would be bound by any release given to the tortfeasor by the sub-rogor. See Lincoln Nat’l Health & Cas. Ins., 666 So.2d at 162 (“We think the law is clear that if one who sustains the loss as the result of negligence or wrongdoing of another releases the tortfeasor, an insurer subrogated to the right of the injured party is barred by that release.”).

In this case, without attempting to determine whether the releases would serve as an effective affirmative defense against a subsequent subrogation claim, Eres simply required that a release be presented that did not include any language that could possibly later be used as a basis for any indemnification action. It is the presence of the language in the proposed releases, not the effectiveness of the terms themselves, that does not comply with the offer. The offer clearly stated that such language would be deemed a rejection of the offer, and Eres therefore was justified in treating the response as a rejection.

Finally, Villareal argues on appeal that the trial court improperly accepted parol evidence in making its determination. We recognize that Eres did present evidence below, including the deposition testimony of a Progressive agent who stated that a hold harmless/indemnification action was a possible result of the language at issue and a letter from another Progressive agent sent in another case that described the same language as that at issue here as a “hold harmless” agreement. However, independent of any consideration of that parol evidence, the trial court correctly determined that Villareal and Progressive did not perform under the identical terms of Eres’ offer. Without performance evidencing that both parties had a meeting of the minds as to the terms of the settlement, there was no acceptance and consequently no settlement.

As such, the order granting partial summary judgment was properly entered, and we must affirm the final judgment.

Affirmed.

KELLY and MORRIS, JJ., Concur.

      . Section 627.4137(1) provides as follows:
      (1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer's claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance:
      (a) The name of the insurer.
      (b) The name of each insured.
      (c) The limits of the liability coverage.
      (d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement.
      (e) A copy of the policy.
      In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant’s attorney, shall disclose the name and coverage of each known insurer to the claimant and shall forward such request for information as required by this subsection to all affected insurers. The insurer shall then supply the information required in this subsection to the claimant within 30 days of receipt of such request.

      . In 2009, Easter was celebrated on April 12.

      . The affidavit attached to the claims representative’s April 8, 2009, letter was a copy of the affidavit executed by Villareal. His attorney then supplemented the response with the original affidavit.

      . We do recognize that the proposed releases do not use the terms “hold harmless” or "indemnification.” Nevertheless, the release language purports to give to Villareal "a full and final release of all claims, including, but not limited to, past, present, or future claims for subrogation arising out of the above-referenced accident.” As such it is in the nature of a hold harmless or indemnification agreement. See Trout, 78 So.3d at 683 (describing similar language that required the injured party to release the tortfeasor from "any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever” as indemnification language).

      . A meeting of the minds is determined by an objective test; it is not what the parties meant but what they said that is determinative. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985) ("We have consistently held that an objective test is used to determine whether a contract is enforceable.... 'The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.'" (quoting Blackhawk Heating & Plumbing Co. v. Data

        Lease Fin. Corp., 302 So.2d 404, 407 (Fla. 1974))).

      . Villareal also argues on appeal that the trial court erred in making certain evidentiary rulings, in ruling on his motion for new trial, ' and in denying his motion for remittitur. We find no merit to those arguments.


author: CASANUEVA, Judge.

text:
    James David PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4630.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 22, 2013.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

James David Phillips appeals his judgments and sentences for sexual battery on a person less than twelve years of age and lewd and lascivious molestation on a person less than twelve years of age. He raises several issues on appeal, but we find merit only in his argument that his judgment for lewd and lascivious molestation should be remanded to omit the language stating that the victim was less than twelve years old.

The jury was instructed that before it could find Mr. Phillips guilty of committing lewd or lascivious molestation, it was required to find that the victim was less than sixteen years old, a second-degree felony. See § 800.04(5)(c)(2), Fla. Stat. (2004). However, the judgment reflects that he was found guilty of a first-degree felony. § 800.04(5)(b). Mr. Phillips filed a motion to correct sentencing error, and the trial court agreed that Mr. Phillips was found guilty of a second-degree felony and reduced his habitual felony offender sentence from sixty years to thirty years in prison, see § 775.084(4)(a)(2), Fla. Stat. (2004), but it failed to correct the judgment. Mr. Phillips argues, and the State correctly concedes, that the judgment should be remanded for the trial court to correct the judgment to reflect that the lewd or lascivious molestation conviction was a second-degree felony. See § 800.04(5)(c)(2).

Accordingly, we remand this case for the trial court to enter a corrected judgment reflecting that Mr. Phillips was found guilty of lewd or lascivious molestation. Mr. Phillips need not be present for the correction of his judgment. Mr. Phillips’s judgment for sexual battery on a person less than twelve years of age and his sentences are affirmed.

MORRIS and SLEET, JJ., Concur.


text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D13-4210.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Rehearing Denied Nov. 5, 2013.
    Danny O. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, WETHERELL, and RAY, JJ., concur.


author: STEVENSON, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Connie BUONOMO, as Personal Representative of the Estate of Matthew Buonomo, Appellee.
    No. 4D10-3543.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2013.
    Rehearing Denied Dec. 11, 2013.

      Gregory G. Katsas of Jones Day, Washington, D.C., Benjamin Reid and Cristina Alonso of Carlton Fields, P.A., Miami, and Stephanie E. Parker of Jones Day, Atlanta, Georgia, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and John Uustal and Todd R. McPharlin of Kelley Uustal PLC, Fort Lauderdale, for appellee.
   STEVENSON, J.

In this Engle progeny case, R.J. Reynolds Tobacco Company (RJR) appeals a jury verdict in favor of plaintiff, as personal representative of the estate of her late husband, on personal injury and wrongful death claims based on strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment. The jury apportioned 77.5% of the fault to RJR and 22.5% to the smoker, awarding $5,235,000 in compensatory damages and $25 million in punitive damages. Faced with RJR’s motion for remittitur, the trial court reduced the compensatory damages to account for the percentage of fault the jury assigned to the smoker and reduced the punitive damages to $15,705,000, three times the compensatory damages awarded by the jury. RJR has appealed and plaintiff has cross-appealed. While the parties raise a number of issues, we find merit in only two — RJR’s claim that the trial court erred in striking its statute of repose defense and plaintiffs claim that the trial court erroneously believed it was required to reduce the punitive damages award. We affirm the other issues raised and write solely to address the aforementioned matters.

Factual Background

Matthew Buonomo began smoking at age thirteen. In 1995, after fifty-plus years of smoking three packs a day, Buo-nomo began suffering from chronic obstructive pulmonary disease (COPD). Pri- or to his death in 2008, Buonomo filed suit against RJR. Connie Buonomo, Matthew’s widow and the personal representative of his estate, was substituted as the plaintiff and the case was tried in 2010. Plaintiff asserted claims for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment.

As an Engle progeny case, the trial proceeded in two phases. In phase I, the jury was asked to determine whether Buonomo was a member of the Engle class, i.e., whether he was addicted to cigarettes, whether his addiction to cigarettes was a legal cause of his COPD, and whether he had COPD prior to November 21, 1996. After resolving these issues in plaintiffs favor, the trial proceeded to phase II, which required the jury to determine whether Buonomo’s COPD was a legal cause of his death and whether RJR’s negligence and intentional misconduct were a legal cause of Buonomo’s death.

During phase II, the jury heard extensive testimony concerning the tobacco industry’s efforts to conceal the harmful effects of smoking. The jury was instructed to accept the following factual findings established as the result of the Engle case: (1) nicotine is addictive; (2) smoking causes COPD; (3) RJR was negligent; (4) RJR placed cigarettes on the market that were defective and unreasonably dangerous; and (5) RJR concealed and/or omitted material information or failed to disclose material facts concerning the health effects or addictive nature of cigarettes and entered into an agreement to conceal or omit the health effects or their addictive nature with the intent that smokers and the public rely on such information to their detriment. The jury also listened to Buo-nomo’s widow, daughters, and granddaughters testify about the debilitating effects of the COPD and the toll Buonomo’s illness took on the family, particularly his wife of nearly sixty years and, in the end, his caregiver.

Having heard the evidence, the jury returned a verdict in favor of the plaintiff, finding that RJR was guilty of negligence, gross negligence, and intentional misconduct; that RJR’s negligence and intentional misconduct were the legal cause of Buonomo’s COPD and death; and that Buonomo had reasonably relied upon RJR’s concealment or omission of material information concerning the health effects and addictive nature of cigarettes. The jury apportioned 77.5% of the fault to RJR and 22.5% to Buonomo, awarding $405,000 for medical and funeral expenses, $4.83 million for plaintiffs past and future pain and suffering and her loss of companionship, and $25 million in punitive damages. As the result of RJR’s post-trial motions for remittitur, the trial court reduced the compensatory damages award by the 22.5% fault the jury attributed to Buonomo and reduced the punitive damages to $15,705,000 — three times the amount of compensatory damages awarded by the jury.

Statute of Repose

RJR sought to avoid liability for the fraudulent concealment and conspiracy to commit fraudulent concealment claims by asserting a statute of repose defense, 1.e., plaintiffs claims were barred as plaintiff could not demonstrate detrimental reliance upon any statements made by defendant on or after May 5, 1982, twelve years prior to the filing of suit by plaintiffs in the Engle case. See § 95.031(2)(a), Fla. Stat. (stating that “in any event an action for fraud ... must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered”). Prior to trial, the trial court struck the defense. RJR insists the striking of the defense was error, maintaining that the statute of repose is an individualized defense that was not foreclosed by Engle and that must be decided on a case-by-case basis — an argument with which we have consistently agreed. See Philip Morris USA Inc. v. Putney, 117 So.3d 798, 803-04 (Fla. 4th DCA 2013); -Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145, 1150-51 (Fla. 4th DCA 2012); Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 947 (Fla. 4th DCA 2012); Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 260-61 (Fla. 4th DCA 2012), review denied, 117 So.3d' 412 (Fla. 2013).

As we have previously held, while the conduct elements of the claims for fraudulent concealment and conspiracy to commit fraudulent concealment were established by virtue of the Engle decision, an Engle progeny plaintiff still must prove detrimental reliance upon the defendant tobacco company’s misinformation. See Kayton, 104 So.3d at 1150-51; Hess, 95 So.3d at 260-61. And, “[bjecause fraud cannot be committed absent detrimental reliance by the plaintiff, see Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985), whether a fraudulent act was committed within twelve years of the filing of an action can only be determined based on the timing of a particular plaintiffs alleged reliance.” Kayton, 104 So.3d at 1151; see also Hess, 95 So.3d at 261 (rejecting plaintiffs claim that date of reliance was irrelevant as “the triggering event set forth in the applicable statute of repose, ‘the date of the commission of the alleged fraud,’ necessarily includes reliance by the plaintiff’) (quoting section 95.031(2)(a), Fla. Stat. (1993)); but see Frazier v. Philip Morris USA Inc., 89 So.3d 937, 947-48 (Fla. 3d DCA 2012) (holding that, for conspiracy claim, it is the last act done in furtherance of the conspiracy that fixes the date for commencement of the statute of repose and plaintiff need not show continued reliance upon that last act). While the record contains evidence that could support a finding .of reliance on or after May 5, 1982, the trial court’s ruling precluded a jury determination on the issue and deprived RJR of the defense. This was error.

Cross-Appeal: Punitive Damages

The jury awarded $25 million in punitive damages in connection with the fraud claims. In response to RJR’s motion for remittitur, the trial court reduced the punitive damages to $15,705,000. The trial court’s order states that, as the result of section 768.73(l)(a)l., Florida Statutes, the punitive damages “must be reduced to three times the compensatory damages awarded.” Plaintiff argues the trial court erred in finding the statute required the reduction of the punitive damages to three times the compensatory damages. We agree.

We begin by finding that neither the $25 million in punitive damages initially awarded by the jury nor the reduced amount of $15,705,000 is so excessive as to violate due process. See R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 313 (Fla. 1st DCA 2012) (affirming award to smoker’s widow of $10.8 million in compensatory damages, reduced to $5.5 million based on jury’s apportionment of fault, and $40.8 million in punitive damages; finding record was “replete with evidence of the decades-long, wanton and intentional conduct by RJR in vigorously, persuasively marketing to the public ... a product the company knew was addictive; willfully concealing the serious health hazards posed by cigarette smoking; affirmatively deceiving the public into believing that cigarettes may not be harmful; and refusing to remove certain ingredients in cigarettes (such as nicotine) that the company counted on to sustain sales”), review denied, 110 So.3d 441 (Fla.2013), review dismissed, 110 So.3d 442 (Fla.2013); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1070-72 (Fla. 1st DCA 2010) (affirming award to smoker’s widow of $5 million in compensatory damages, reduced to $3.3 million based on jury’s apportionment of fault, and $25 million in punitive damages), review denied, 67 So.3d 1050 (Fla.2011), cert, denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 617 (2012). The trial court reduced the $25 million awarded by the jury to $15,705,000 believing that section 768.73 of the Florida Statutes required it to do so. This is not, however, the case.

In its order, the trial court cited section 768.73(l)(a)l. While the court did not include a year, section 768.73 did not have a subsection “(l)(a)l.” until after the 1999 amendments. See Ch. 99-225, § 23, at 1416-18, Laws of Fla. And, under the posL-1999 version of the statute (the statute has not been amended since 1999), a punitive damages award cannot exceed the greater of three times the compensatory damages award or $500,000 unless certain findings are made by the “fact finder.” See § 768.73(l)(a)-(c), Fla. Stat. (2012). It is, howevei", the 1995 version of the statute that governs the instant case — a fact the parties do not dispute. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding substantive amendment to section 768.73 could not be applied to cause of action that accrued prior to effective date of amendment); St. John v. Coisman, 799 So.2d 1110, 1113 (Fla. 5th DCA 2001) (holding that applicable version of section 768.73 was version in effect at the time the cause of action accrued). And, under the 1995 version of the statute, the trial court is free to exceed the three-times-compensatory cap on punitive damages if “the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.” § 768.73(l)(b), Fla. Stat. (1995) (emphasis added). For the foregoing reasons, we must remand the matter to the trial court to exercise the discretion afforded it by the governing 1995 version of section 768.73.

Conclusion

In sum, having considered all arguments raised, we affirm the judgment and damages awarded on the plaintiffs strict liability and negligence claims. We reverse, however, the judgment entered in plaintiffs favor on the claims for fraudulent concealment and conspiracy to commit fraud by concealment due to the erroneous striking of RJR’s statute of repose defense. To remedy the erroneous striking of the defense, we remand the case for a jury determination on the statute of repose issue. In the event the jury should find in favor of the plaintiff on the statute of repose issue, the trial court is free to reinstate the punitive damages award made by the jury, subject to any reduction made by the trial court in the exercise of the discretion afforded it under section 768.73, Florida Statutes (1995).

Affirmed in part, Reversed in part, and Remanded.

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

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . In Hess, the Florida Supreme Court denied Philip Morris's petition for review by order dated June 3, 2013. That same day, however, in case number SC12-2153, the Florida Supreme Court granted Elaine Hess’s petition for review. Similarly, in Kayton, both parties have filed petitions seeking review from the Florida Supreme Court. On June 13, 2013, in case numbers SC13-171 and SC13-243, the Florida Supreme Court ordered the proceedings in Kayton stayed pending disposition of Hess.

      . Plaintiff also asserts error in the reduction of the compensatory damages award to account for the smoker’s contributory fault. Any error in the reduction of the compensatory damages was invited and/or waived by plaintiff. Compare Philip Morris USA, Inc. v. Hess, 95 So.3d at 256 n. 2 (finding any error in reduction of compensatory damages by fault attributed to smoker was invited where the jury was told that the court would reduce the damages to account for the assignment of fault), with RJ. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013) (refusing to find waiver/invited error where plaintiff sought apportionment on counts "other than those alleging intentional torts” and plaintiff "never argued to the jury or the court that the damages ... should be reduced by his [the smoker’s] portion of fault”). Accordingly, we do not reach the merits of plaintiff’s argument that reduction of the compensatory damages pursuant to section 768.81, Florida Statutes, was not appropriate as the gist of the suit is an intentional tort.


author: SHEPHERD, C.J. SCHWARTZ, Senior Judge,

text:
    VILLAGE CARVER PHASE 1, LLC, etc., Appellant, v. FIDELITY NATIONAL TITLE INSURANCE CO., etc., Appellee.
    No. 3D12-166.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 2013.
    Rehearing Denied Dec. 24, 2013.

      Paul Morris, Miami; Lynn Washington, Miami, for appellant.
    Levine Kellogg Lehman Schneider & Grossman, Miami, and Stuart I. Grossman and Brandon M. Thompson, Miami, for appellee.
    Before SHEPHERD, C.J, and ROTHENBERG, J, and SCHWARTZ, Senior Judge.
   SHEPHERD, C.J.

Village Carver Phase I, LLC (“Village Carver”) appeals an order of dismissal with prejudice of its amended complaint, seeking recovery under an owner’s policy of title insurance for losses associated with the demolition and redesign of a portion of an affordable housing project on which was unearthed an abandoned cemetery and human remains during the course of construction. Village Carver argues the title policy affords it coverage for the losses because appellee, Fidelity National Title Insurance Company (“Fidelity National”), failed to except from coverage under the policy the statutory easement for ingress and egress provided to “relatives and descendants of any person buried in a cemetery [in this state] for the purpose of visiting the cemetery.” See § 704.08, Fla. Stat. (2008). We disagree.

Analysis

The cemetery discovered during the course of construction in this case was created by a deed recorded in the public records in 1908. The title insurance policy in this case was issued one-hundred years later on December 24, 2008. Although the deed was recorded and searchable, Village Carver properly concedes that the Florida Marketable Record Title to Real Property Act (MRTA), § 712.01, et seq., Fla. Stat. (2008), relieved Fidelity National of any legal obligation to search the chain of title pertaining to the insured property back to that time. Nor did Fidelity National have actual knowledge of the existence of the cemetery at the time it issued the title insurance policy. Research, undertaken by the City of Miami Historic and Environmental Preservation Board after the discovery, revealed that the headstones and other cemetery markings had been removed by the time buildings were constructed on the property in 1948.

Village Carver asserts that coverage and liability nevertheless exist under the insurance policy because Fidelity National had “implied notice of the existence of a cemetery and human remains in the ground” or alternately that “the mere possibility of the existence of an easement in favor of relatives renders the title unmarketable.”

Village Carver’s first ground for reversal fails for the same reason the existence of record of the 1908 deed does not educe liability under the policy. Section 627.7845(1) of the Florida Statutes merely requires a title insurer to perform a “reasonable title search” before issuing a title insurance “commitment, endorsement, or policy.” Section 712.04 of the MRTA states that “[sjubject to s. 712.03, a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title.” § 712.04, Fla. Stat. (2011). “ ‘Root of Title’ means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.” § 712.01(2), Fla. Stat. (2011). It is uncontested that the 1908 deed was recorded more than thirty years before the effective date of the root of title in this case. The “implied notice” on which Village Carver relies “depends upon” the existence of the 1908 deed. § 712.04. The delivery and recording of that deed is indisputably “an act, title transaction, event, or omission that occurred before the effective date of the root of title” within the meaning of the MRTA. The Act represents a codified limitation on a title insurer’s obligation to research the public records in connection with the issuance of a title insurance policy. Village Carver’s attempt to charge Fidelity National with “implied notice” of the existence of the cemetery is excluded by law.

Village Carver, joined by the dissent, next contends that Fidelity National had an obligation to list section 704.08 as an exception to coverage under the insurance policy vel non. For this contention, Village Carver and the dissent place primary reliance on Blanton v. City of Pinel-las Park, 887 So.2d 1224 (Fla.2004). Their reliance is misplaced. The estate or interest at issue in Blanton was a statutory way of necessity, governed by section 704.01(2). The “precise issue” addressed was “whether the [Marketable Record Ti-tie to Real Property Act] applies to statutory ways of necessity.” The Supreme Court held that statutory ways of necessity are not subject to the provisions of the MRTA. The Court reasoned: “[Djeter-mining whether a landlocked owner has a valid claim to a statutory way of necessity requires only findings on the current status of the property — that the parcel is landlocked, that the parcel is outside a municipality, and that the parcel is being used or desired to be used for one of the enunciated purposes.” Blanton, 887 So.2d at 1232 (citing Roy v. Euro-Holland Vastgoed, B.V., 404 So.2d 410, 412 (Fla. 4th DCA 1981), quoting 25 Am.Jur.2d Easements & Licenses § 34, at 447-48) (second emphasis added). In the case before us, no one has sought to exercise a legal right or assert any interest pursuant to section 704.08. There has been no “act, title transaction, event or omission” giving rise to a claim under the title insurance policy, not to mention one “that occurred before the effective date of root of title.” § 712.04. Section 704.08 does not create an interest in real property. It creates nothing more than a personal privilege, exercisable in the future if (1) a relative or descendant of a person buried in the cemetery comes forward, and (2) he or she seeks to visit the cemetery.

Village Carver confuses title insurance with casualty insurance. Title insurance is different from most other types of insurance. Title insurance policies are indemnity contracts against actual monetary loss resulting from specified causes, such as defects, liens and encumbrances existing on the date the insurance policy is issued. Title insurance policies do not insure against future occurrences. Village Carver and the dissent forget this critical distinction.

We affirm the decision of the trial court.

ROTHENBERG, J., concurs.

SCHWARTZ, Senior Judge,

dissenting.

Because (a) section 704.08, Florida Statutes (2012), renders the title to the instant property unmarketable; and (b) unlike many such policies, the present one does not except or exclude the existence of a cemetery or the consequent effect of section 704.08; see Attorneys’ Title Insurance Fund, Fund Title Notes § 25.03.11; see also Blanton v. City of Pinellas Park, 887 So.2d 1224, 1232 (Fla.2004) (“[A]ll landowners are on notice of statutory ways of necessity by virtue of section 704.01(2).”); the upshot is a clear breach of the insuring agreement as written. See Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 68 (Fla. 4th DCA 2011) (“An insurance company is not precluded from offering greater coverage than that required by statute.”).

I would therefore reverse.

      . Section 704.08 reads in full:
      704.08. Cemeteries: right of ingress and egress for visiting or maintenance The relatives and descendants of any person buried in a cemetery shall have an easement for ingress and egress for the purpose of visiting the cemetery at reasonable times and in a reasonable manner. The owner of the land may designate the easement. If the cemetery is abandoned or otherwise not being maintained, such relatives and descendants may request the owner to provide for reasonable maintenance of the cemetery, and, if the owner refuses or fails to maintain the cemetery, the relatives and descendants shall have the right to maintain the cemetery.

      . The policy's insuring clause states:
      Subject to the exclusions from coverage, the exceptions contained in schedule B and the provisions of the conditions and stipulations hereof. Fidelity National Title Insur-anee Company, a California corporation, herein called the Company, insures as of date of policy shown in schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, and costs, attorneys’ fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:
      1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein;
      2. Any defect in or lien or encumbrance on such title;
      3. Lack of a right of access to and from the land; or
      4. Unmarketability of such title, (emphasis added)
      Village Carver argues that coverage exists under the second and fourth bolded coverage clauses.

      . Section 712.03 exempts from the provisions of the MRTA estates, interests, easements and use restrictions filed after the date of the root of title, renewals of previously filed deeds or muniments of title; public utility easements and rights of way in use; rights of persons in whose name the land is assessed on the county tax roles for a period of up to three years; and estates and interests held by the Trustees of the Internal Improvement Trust Fund or water management district created under Chapter 373 of the Florida Statutes or the United States. None of these exceptions are applicable in this case.

      . The provision in effect in 2003 read as follows:
      (2) Statutory way of necessity exclusive of common-law right.—
      Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land or'portion thereof outside any municipality which is being used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.
      § 704.01(2), Fla. Stat. (2003).