author: TAYLOR, J.

text:
    MEDYTOX SOLUTIONS, INC., Seamus Lagan and William G. Forhan, Appellants, v. INVESTORSHUB.COM, INC., Appellee.
    No. 4D13-3469.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Michael C. Marsh, Francisco A. Rodriguez and Naim S. Surgeon of Akerman, LLP, Miami, for appellants.
    Deanna K. Shullman and Allison S. Lo-velady of Thomas & Locicero PL, Fort Lauderdale, for appellee.
   TAYLOR, J.

This case concerns efforts by the plaintiffs to force an interactive computer service provider to remove statements from its website made by a third party that allegedly defamed the plaintiffs. We affirm the trial court’s dismissal of the complaint for injunctive relief, because the website operator enjoys immunity from such relief under section 230 of the Communications Decency Act, 47 U.S.C. § 230.

The defendant, InvestorsHub.com, operates a website that serves as a forum for investors to discuss financial markets and information about public companies. According to the operative complaint, the website hosts nearly 85 million individual postings on almost 22,000 separate message boards, with new postings added at a rate of 40,000 new messages on each trading day.

In 2012, Christopher Hawley, using the screen name “Seamus outer,” posted several allegedly defamatory statements about the plaintiffs, Medytox Solutions, Inc., Seamus Lagan, and William Forhan, on the InvestorsHub website. In a separate action, Medytox Solutions and Mr. Lagan filed a third-party complaint against Hawley for defamation and tortious interference. The plaintiffs’ counsel contacted the defendant and its counsel, seeking to have the postings removed from the website. The defendant removed two of Haw-ley’s posts, but declined to remove the remaining two posts.

In February 2013, the plaintiffs brought an action for declaratory relief against the defendant for its failure to remove the allegedly defamatory postings from its website The plaintiffs later filed an amended complaint, adding a separate count for injunctive relief.

The defendant moved to dismiss the amended complaint on the grounds that it was immune as an internet service provider under the Communications Decency Act, and that equity would not enjoin a libel under Florida law. After a hearing, the trial court entered an order granting the defendant’s motion to dismiss with prejudice, relying on case law from the Florida Supreme Court and the Third District. The trial court later entered a final order of dismissal.

On appeal, the plaintiffs argue that the Communications Decency Act does not preempt an equitable action under Florida law for the removal of libelous postings. They contend that the preemption recognized by the Florida Supreme Court is limited to tort-based claims seeking monetary liability, and that nothing in the Communications Decency Act suggests that Congress intended to preempt equitable claims for injunctive relief.

The defendant responds that the immunity afforded by section 230 of the Communications Decency Act broadly extends to “any action” against a provider of an interactive computer service if the action is premised upon the content of another. The defendant maintains that section 230 immunity applies with equal force in injunction matters as it does in actions seeking money damages.

“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.” Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

Section 230 of the Communications Decency Act states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230 further states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). Certain causes of action, however, are not barred by section 230, including actions based on federal criminal statutes, intellectual property law, and “any State law that is consistent with this section.” 47 U.S.C. § 230(e)(l)-(3).

The plain language of section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.1997). Section 230 “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” Id. Consequently, “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” Id.

In enacting section 230, “Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir.2003). Section 230 was therefore designed, in part, “to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F.3d at 330.

Another specific purpose of section 230 was to overrule the decision in Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794, 1995 WL 323710 (N.Y.Sup.Ct.1995), which held that an Internet Service Provider could be liable for defamatory statements if it exercised sufficient editorial control over its bulletin boards so as to render it a publisher. See S. Rep. No. 104-230, at 194 (1996) (Conf. Rep.). As the Fourth Circuit explained:

Congress enacted § 230 to remove the disincentives to selfregulation [sic] created by the Stratton Oakmont decision. Under that court’s holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher.

Zeran, 129 F.3d at 331.

In Doe v. America Online, Inc., 783 So.2d 1010, 1013-17 (Fla.2001), the Florida Supreme Court held that section 230 preempts Florida law as to causes of action based in negligence against an Internet Service Provider as a distributor of information. Our supreme court found the Zeran court’s reasoning persuasive, adopting the Fourth Circuit’s analysis of the history of the Communications Decency Act as a basis for its own reading of section 230. Id. at 1013-15. Accordingly, the court explained: “We specifically concur that section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning.” Id. at 1018.

Although Doe v. America Online does not specifically address the availability of injunctive relief, the Third District recently confronted this issue in Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011). In Giordano, a user of the website ri-poffreport.com posted false and defamatory statements about the plaintiffs. The plaintiffs brought four defamation-based claims against the user, and one claim seeking injunctive relief against the website’s operator, Xcentric. Although the plaintiffs initially obtained an injunction prohibiting the posting from remaining on the website, the trial court ultimately entered an order dissolving the injunction and dismissing Xcentric from the suit.

The Third District affirmed the dismissal, concluding that “Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.” Id. at 1102. Explaining that the Florida Supreme Court unambiguously adopted the Zeran court’s interpretation of the Communications Decency Act, the Third District reasoned that “section 230 of the CDA ‘creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’” Id. (quoting Zeran, 129 F.3d at 330).

Moreover, other courts have found that the immunity afforded by section 230 encompasses claims for injunctive relief. See Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 983-86 (10th Cir.2000) (holding that section 230 immunized a computer service provider from a suit for damages and injunctive relief); Noah v. AOL Time Warner, Inc., 261 F.Supp.2d 532, 540 (E.D.Va.2003) (“Indeed, given that the purpose of § 230 is to shield service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims that request only injunctive relief.”); Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 104 Cal.Rptr.2d 772 (Cal.Ct.App.2001) (section 230 barred all the plaintiffs state law claims, including those for injunctive relief, arising out of a city library’s failure to restrict her minor son’s access to sexually explicit Internet materials); Smith v. Intercosmos Media Grp., Inc., 2002 WL 31844907, at *5 (E.D.La. Dec. 17, 2002) (concluding that section 230 provides immunity from claims for injunctive relief).

We affirm the trial court’s dismissal of the plaintiffs’ claim for injunctive relief, and in doing so, follow the Third District’s reasoning in Giordano. The Third District’s conclusion is consistent with the language and purpose of the Communications Decency Act. Section 230 states in broad terms that “[n]o cause of action may be brought and no liability may be imposed under any State or. local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3) (emphasis added). The statute precludes not only “liability,” but also causes of action for other forms of relief based upon any State or local law inconsistent with section 230. An action to force a website to remove content on the sole basis that the content is defamatory is necessarily treating the website as a publisher, and is therefore inconsistent with section 230. Thus, by the plain language of the statute, the immunity afforded by section 230 encompasses the claims for declaratory and injunctive relief sought in this case.

Affirmed.

GROSS and GERBER, JJ„ concur.

      . By contrast, where an action against a provider of an interactive computer service does not derive from the provider’s status as a publisher or speaker, section 230 does not preclude the action. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.2009) (section 230 barred negligence claim against the internet service provider (ISP), but did not bar a promissory estoppel claim based on the ISP’s promise to remove from its website nude photographs of the plaintiff and other indecent materials posted by the plaintiff’s ex-boyfriend; the asserted liability for promissory estoppel was not based upon the ISP’s status as a publisher, but rather from its status as a promisor who displayed a manifest intention to be legally obligated to do something).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alfonza SPEARS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4123.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from appellant’s convictions and sentences for battery on a law enforcement officer, resisting an officer without violence, depriving an officer of a means of protection or communication, and battery, we conclude the trial court did not abuse its discretion in denying appellant’s requested jury instruction on the charge of depriving an officer of a means of protection or communication. Furthermore, because the jury was not instructed that depriving an officer of a means of protection or communication was a strict liability crime, we do not address appellant’s claim, which was raised for the first time on appeal, that section 843.025, Florida Statutes (2011), violates due process. Finally, although appellant “opened the door” to specific questions about his prior record when he testified that he never hit a police officer in his life, we conclude the trial court abused its discretion in allowing the prosecutor to question him about a 1973 offense, which did not involve a law enforcement officer, and a 1994 offense involving aggravated battery on a law enforcement officer where appellant denied being convicted of that offense and the state’s only evidence was a rap sheet entry. Contrary to the state’s assertion, we find this claim was preserved for appeal and that the error was not harmless beyond a reasonable doubt. Accordingly, we reverse and remand for a new trial.

AFFIRMED in part; REVERSED in part; and REMANDED for new trial.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    OSCEOLA COUNTY SCHOOL BOARD And Florida School Board Insurance Trust Claims Administration, Appellants, v. Ivonne PABELLON-NIEVES, Appellee.
    No. 1D14-2092.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.
    Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse, P.A., Maitland, for Appellants.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa; Kellye A. Shoemaker, Maitland, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier argues that the Judge of Compensation Claims (JCC) erred in awarding continuing medical treatment for Claimant’s work-related neck injury. Finding no error in the JCC’s award of the continuing care, we affirm the order. We write, however, to clarify application of section 440.09(l)(b), Florida Statutes (2009).

Section 440.09(l)(b) provides:

If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more that 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for re-treatment. Major contributing cause must be demonstrated by medical evidence only.

This court addressed application of this subsection in Bysczynski v. United Parcel Services, Inc., 53 So.3d 328 (Fla. 1st DCA 2010). Based on' a review of the trial transcript, the order on appeal, and the briefs submitted by the parties, it appears that the holding in Bysczynski is often misunderstood by both the bench and the bar.

Bysczynski ultimately turned on an issue of competent, substantial evidence rather than an issue of law. This court held that the JCC’s ruling that the degenerative condition was the major contributing cause of the need for treatment was not supported by any medical evidence (and in fact the expert medical advisor expressly testified that the preexisting degenerative disc disease was not a cause of Mr. Bysczynski’s need for surgery). Id. at 330-31. Although this court observed in Bysczynski that the claimant’s preexisting degenerative disc disease “merely bespeaks Claimant’s age,” such was not a holding that age-related illnesses or conditions can never be a contributing cause of a disability or need for treatment for the purposes of major contributing cause analysis. Id. at 331. Closer review of By-sczynski reveals that it does not matter whether a preexisting condition is “age-appropriate;” what matters is whether there is medical evidence that it is the major contributing cause of the need for the requested treatment. See § 440.09(l)(b), Fla. Stat. (2012) (providing that if compensable work injury combines with preexisting condition to cause or prolong need for treatment, employers need provide benefits only to extent work injury is and remains major contributing cause of need for benefits); Ch. 03^112, § 6, Laws of Fla. (amending section 440.09(l)(b) as of October 1, 2003, to require that major contributing cause be proven “by medical evidence only”).

Here, the JCC found Claimant had a pre-existing condition — one based on degenerative changes to her cervical spine and not based on any prior accident. The JCC distinguished the facts of this case from the facts in Bysczynski. The JCC explained that in Bysczynski, the degenerative condition in Mr. Bysczynski’s spine did not independently require any level of treatment either before or after the worker’s two compensable accidents. For that reason, the JCC correctly explained that in Bysczynski this condition was not properly considered a contributing cause for major contributing cause purposes.

On the other hand, the JCC found that there was evidence that Ms. Nieves’ preexisting neck condition required some level of treatment prior to this workplace accident; consequently, a question arose as to “whether Ms. Nieves’ degenerative neck condition merely bespoke of her age or whether it was a preexisting condition requiring treatment that may be considered a contributing legal cause of her injury and need for treatment and thus — a proper subject for the application of the major contributing cause standard.” (Emphasis in original.)

The JCC then proceeded to engage in a major contributing cause analysis. In doing so, he appropriately considered the nature of the preexisting condition — including the level of treatment necessitated by the preexisting condition prior to the date of the accident — as compared to Claimant’s current condition and need for treatment. Because competent, substantial evidence supports the JCC’s finding that the major contributing cause of Claimant’s need for ongoing treatment was her compensable injury, we affirm the order.

AFFIRMED.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Neville BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4635.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction for attempted first degree murder and kidnapping with a firearm. We find no merit in his claim that the court erred in denying his motion to suppress based upon an invalid search warrant which relied on an anonymous source. Under the totality of the circumstances, the magistrate had sufficient probable cause to issue the warrant. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Here, in addition to the anonymous source, there was other verified information upon which the magistrate could rely. Appellant also claims that the court erred in preventing an expert’s use of a PowerPoint presentation, but no proffer was made of the presentation. In any event, the trial court prevented its use, because the state had never been notified of it prior to the expert testifying. The court did not abuse its discretion. Finally, no error occurred when the trial court allowed a detective to testify that a gun could fit into a bag held by appellant and observed on a surveillance video.

The trial court sentenced appellant to life in prison for attempted first degree murder and, consecutively, to life in prison for kidnapping. The state concedes that it was error to sentence appellant to life for attempted first degree murder because attempted first degree murder is a first degree felony punishable by imprisonment for thirty years. See §§ 775.082, 777.04(4)(b), Fla. Stat. (2009); see also Croft v. State, 60 So.3d 1151, 1152 (Fla. 5th DCA 2011) (holding that attempted first degree murder is a first degree felony, not a life felony, and that it is punishable by a maximum of thirty years’ imprisonment). We thus reverse appellant’s sentence on attempted first degree murder and remand for resentencing on that charge.

Affirmed in part and reversed in part and remanded.

WARNER, MAY and CONNER, JJ., concur.


text:
    James L. HARPER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-1935, 4D13-1936.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Carey Haughwout, Public Defender, James W. Mclntire, Assistant Public Defender, West Palm Beach, and James L. Harper, Bonifay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the denial of appellant’s motion, filed before sentencing, to withdraw his pleas pursuant to Florida Rule of Criminal Procedure 3.170(f). There was no meeting of the minds as to the length of time appellant had to perform under a substantial assistance agreement and his efforts were shut down by the supervising detective after only 16 or 17 days. See Arzola v. State, 994 So.2d 1209 (Fla. 5th DCA 2008); Timothee v. State, 721 So.2d 776 (Fla. 4th DCA 1998); Pate v. State, 547 So.2d 316 (Fla. 4th DCA 1989); Elias v. State, 531 So.2d 418 (Fla. 4th DCA 1988); Soto v. State, 515 So.2d 249 (Fla. 5th DCA 1987). No direct evidence contradicted appellant’s claim that he did not understand that his efforts at substantial assistance were subject to such a short time frame. The plea conference was abbreviated and perfunctory. The October 26, 2012 order provides that appellant’s release from jail prior to sentencing was “solely for the purpose of assisting law enforcement.” Although the order was silent as to the length of time that appellant had to perform .and the agreement gave the supervising detective the “sole discretion” to take appellant into custody “when the defendant is no longer needed in ongoing investigations,” appellant testified that he believed he had until January 28, 2013, when his sentencing was set, in which to “produce something,” presumably a drug transaction.

Under the circumstances, the trial court’s decision is reversed. The nature, scope and duration of the substantial assistance agreement were vague, both when initially explained to appellant and with respect to its implementation. On remand, appellant shall be given leave to withdraw his plea and proceed to trial.

GROSS, MAY and FORST, JJ., concur.


author: GROSS, J.

text:
    Anthony COSTANZO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3344.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.
    Rehearing Denied Dec. 29, 2014.
    Rhea P. Grossman of Rhea P. Gross-man, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Appellant was a detective at the Bro-ward Sheriffs Office. Following a jury trial, he was acquitted of two charges and convicted of evidence tampering. We reverse the tampering conviction because the State failed to establish a violation of section 918.13, Florida Statutes (2013).

The evidence tampering charge arose from appellant’s deletion of a video from his work cellular phone. On January 20, 2012, a suspect in a case made statements about an unrelated criminal case where the defendants were two other officers, Koepke and Dodge, friends of appellant. Appellant made a video of these statements with his phone. He then texted the video to Koepke, showed the video to his supervisor, and used his work e-mail account to send the video to the general counsel for the Police Benevolent Association. Ten days later, appellant’s cell phone was seized by an investigator with the State Attorney’s Office. The January 20 video could not be located on appellant’s phone and an expert concluded that the video had been deleted.

The January 20 video was ultimately recovered from two locations — Koepke’s Sprint/Nextel account and the e-mail servers at the Broward Sheriffs Office. Both versions of the video were played for the jury.

Both at the conclusion of the State’s case and after the defense rested, appellant moved for a judgment of acquittal on the evidence tampering count. After the jury verdict, he filed post-trial motions directed at the evidence tampering conviction.

Section 918.13, Florida Statutes (2013), provides in pertinent part:

(1) No person, knowing that a criminal trial or proceeding • or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation ....

To establish a violation of the statute, “the State must prove a defendant ‘had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation.’ ” State v. Major, 30 So.3d 608, 609 (Fla. 4th DCA 2010) (quoting C.K v. State, 753 So.2d 617, 618 (Fla. 4th DCA 2000)). Appellant admitted he was “buddies” with Koepke, so he knew that there was a pending investigation into the matter; that was why he recorded the conversation in the first place. There is thus no issue with the “knowledge” element of the crime. Appellant takes issue with the second element— that he intentionally deleted the video from his phone with the purpose to impair its availability for the investigation.

We have held that a defendant’s equivocal conduct toward evidence is insufficient to demonstrate the intent necessary for a section 918.13 violation; merely discarding evidence from one’s person, without more, does not amount to a violation of the statute. “[TJhe offense of tampering is committed only when the defendant takes some action that is designed to actually alter or destroy the evidence rather than just removing it from his or her person.” E.I. v. State, 25 So.3d 625, 627 (Fla. 2d DCA 2009).

In Obas v. State, 935 So.2d 38, 38 (Fla. 4th DCA 2006), for example, the defendant emptied a pill container of crack cocaine rocks as police approached. He tossed the container five feet away after police ordered him to stop. Id. This Court reversed the defendant’s conviction for tampering with evidence, stating:

We are unable, on these facts, to accept the state’s argument that defendant •violated the statute. If defendant had dropped or thrown the items so that they could not have been retrieved, it would be another matter, like swallowing. In this case, however, where he merely dropped the cocaine rocks and tossed the container on the ground, and both were easily found, the evidence was insufficient. Otherwise a tampering conviction could be obtained whenever a suspect merely drops drugs on the ground.

Id. at 39.

Similarly, in Evans v. State, 997 So.2d 1281 (Fla. 4th DCA 2009), we held that the trial court erred in denying a motion for judgment of acquittal on a charge of tampering with evidence where the defendant threw a crack cocaine rock onto sandy ground as officers approached for a stop. We held that the fact the officers were unable to find the drugs due to the nature of the surface of the ground did not demonstrate the necessary specific intent to tamper with or conceal the evidence. Id. at 1284.

Such equivocal conduct differs from that conduct that completely destroys potential evidence, such as swallowing an object. See State v. Jennings, 666 So.2d 181, 138 (Fla.1995); McKenzie v. State, 632 So.2d 276, 277 (Fla. 4th DCA 1994) (holding that “swallowing a substance” demonstrates the necessary intent to amount to a violation of section 918.13, just like “flushing it down a toilet”).

In this case, after appellant recorded the video on his cell phone, he showed it to his supervisor, texted it to Koepke, and e-mailed it to an attorney for the Police Benevolent Association. As we know from videos that have gone viral, texting or emailing a video is the antithesis of trying to destroy it. In fact, with the assistance of technology, the video was recovered from two separate locations. There was insufficient evidence of appellant’s intent to violate the tampering statute. In addition, there was insufficient evidence that the video was “destroyfed]” within the meaning of the statute; the statute does not criminalize deleting evidence existing in the memory of a particular electronic device, particularly where such evidence resides elsewhere in the electronic ether. The trial court’s denial of appellant’s motion for judgment of acquittal was therefore erroneous.

We reverse the conviction and remand to the circuit court with direction to grant the motion for judgment of acquittal.

DAMOORGIAN, C.J., and MAY, J., concur.


author: CIKLIN, J.

text:
    Dale BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-984.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Dale Brown, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Dale Brown challenges the order dismissing the alternative writ of mandamus issued by the trial court upon remand from this court in Brown’s previous appeal. He raises three issues on appeal, only one of which merits discussion. Because the response of the Office of the Public Defender did not assert that it had actually searched for the records requested by Brown and that they were ho longer archived, we reverse and remand for an evidentiary hearing.

In 2011, Brown petitioned the circuit court for a writ of mandamus, seeking records from the Office of the Public Defender regarding his 1996 felony case. The circuit court denied the petition without elaboration. On appeal, this court reversed and remanded, finding that Brown’s petition “set forth a prima facie case for relief on the ground that he has a clearly established legal right to compel his trial attorneys to provide him with transcripts and other record documents obtained on his behalf at public expense.” Brown v. State, 93 So.3d 1194, 1196 (Fla. 4th DCA 2012). We directed the circuit court to issue an alternative writ of mandamus but to deny the petition to the extent Brown requested free copies of documents that were not contained in his attorneys’ files or were not obtained at public expense.

On remand, in response to the circuit court’s alternative writ of mandamus, the Office of the Public Defender asserted that it contacted the appellate division that handled the appeal of the 1996 case and that “[a]n assistant in that office advised the undersigned attorney that ... the records [in the direct appeal] would have been sent certified return receipt to the Defendant approximately two weeks after the mandate issued.” According to the attorney’s response, the assistant also advised that the receipt “would have been destroyed in the record purge that occurred in 2007 .... ” The assistant advised that any records stored with the Office of the Public Defender would have been destroyed seven years after the mandate issued. The attorney also stated that she reviewed the case management system and that the “Defendant was notified that the archive file box had previously been destroyed .... ” Based on this response, the circuit court dismissed the alternative writ of mandamus.

We reverse because the response of the Office of the Public Defender did not refute Brown’s allegation that his attorneys possessed the documents. Instead, the response merely informed the court that the Defendant had previously been advised the records he sought were destroyed and that an unidentified assistant advised the public defender as to what would have happened to the records pursuant to office policy. If the attorney had made it clear that the records had in fact been destroyed, this would have been a valid defense to the alternative writ of mandamus and the court would have been on solid ground in denying the petition. As it stands, this is not a case where there is no contested issue of fact. See, e.g., Anderson v. Helm, 581 So.2d 590, 591 (Fla. 2d DCA 1990) (denying petition for writ of mandamus directed to appellate counsel where counsel asserted that the case file was destroyed pursuant to office policy).

On remand, if the Office of the Public Defender produces evidence that it does not in fact possess the documents which Brown is entitled to have, the petition should be denied without prejudice to Brown seeking to obtain them from other agencies that may possess them, i.e., the clerk’s office or state attorney’s office.

Reversed and remanded with instructions.

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


author: GROSS, J. WARNER, J.,

text:
    Kendrick JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D14-2678.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.
    Rehearing Denied Jan. 9, 2015.

      Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen ,R. Geesey, Assistant Attorney General, West Palm Beach, for respondent.
   GROSS, J.

Kendrick Joseph petitions for a writ of certiorari to quash June 19, 2014 orders denying his motion to dismiss in five pending felony cases. He contends that he is entitled to dismissals pursuant to section 916.303(1), Florida Statutes (2013), which provides:

The charges against any defendant found to be incompetent to proceed due to intellectual disability or autism shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The charges may be refiled by the state if the defendant is declared competent to proceed in the future.

(Emphasis added). Section 916.106(13) defines “intellectual disability” as having “the same meaning as in s. 393.063.” Section 393.063(21) defines “intellectual disability” as follows:

(21) “Intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which manifests before the age of 18 and can reasonably be expected to continue indefinitely. For the purposes of this definition, the term:
(a) “Adaptive behavior” means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
(b) “Significantly subaverage general intellectual functioning” means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency.
For purposes of the application of the criminal laws and procedural rules of this state to matters relating to pretrial, trial, sentencing, and any matters relating to the imposition and execution of the death penalty, the terms “intellectual disability” or “intellectually disabled” are interchangeable with and have the same meaning as the terms “mental retardation” or “retardation” and “mentally retarded” as defined in this section before July 1, 2013.

None of the evaluations of the defendant have ever found Joseph to have met the statutory definition of “intellectual disability.” Some recent evaluations found that Joseph suffered from a mental illness; however, the statutory definition of “mental illness” “does not apply to defendants who have only an intellectual disability.” § 916.106(14), Fla. Stat. (2013). Section 916.145, Florida Statutes (2013), provides for the dismissal of charges after five years where incompetency is due to mental illness.

Joseph has not demonstrated that he is statutorily entitled to dismissals at this time. The petition for writ of certiorari is denied.

MAY, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

Since 2009 appellant has been evaluated nearly every six months to determine whether he was competent to proceed with juvenile and now adult charges. I count thirteen evaluations. Each time, save one (in 2011), he was. determined not to be competent. Almost all of the examiners found that he had significant developmental and learning disabilities. None diagnosed him with a mental illness, although a couple of the reports opine that he might have a psychotic disorder. Several others said that he did not have a mental illness. Some reports suggested ruling out retardation. Others did not mention it. Most likely, the reason that the reports don’t use the magic words “intellectual disability” is because these don’t appear in the statute until 2013, when an amendment changed “mental retardation or autism” to “intellectual disability or autism” in section 916.303(1), Florida Statutes (2013).

No testing was done of any significance to determine his intellectual capacity until 2014. Almost all of the reports suggest treatment, including residential treatment, to restore competency, but either the state has not provided it or it has been unsuccessful. I note that in 2009 the evaluators thought that with educational and behavioral training the chances of competency restoration were good, but more recent reports state that his prognosis to be restored to competency is “guarded.”

I do not pretend to understand the diagnoses in the psychological reports sufficiently to determine whether the learning disabilities would constitute “mental retardation” under the prior statute or “intellectual disability” under the present statute. Therefore, I cannot disagree with, the conclusion of the majority opinion that the record does not support the statutory requirements for dismissal of the charges. If, however, the appellant can show through the testimony or affidavits of the prior evaluators that their reports meant that he was intellectually disabled within the meaning of the statute, then he should be able to move again for dismissal of the charges.


author: SALTER, J.

text:
    Luis Javier DIAZ, Appellant, v. Zoraya Becerra DIAZ, Appellee.
    No. 3D14-882.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.

      Michael F. Vander Wyden, for appellant.
    Padrón & Estevez-Pazos and Brian D. Fell, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ. '
   SALTER, J.

The former husband appeals a final judgment of dissolution of marriage. In the absence of a transcript of the final hearing or a statement of the evidence prepared in accordance with Florida Rule of Appellate Procedure 9.200, we are unable to evaluate the former husband’s arguments that the award of any durational alimony was erroneous and that the equitable distribution of the former husband’s bank account was unsupported by the record. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

We do, however, find one issue raised by the former husband to be meritorious and apparent on the face of the final judgment. The parties were married for three years and four months (measured from the date of marriage to the date the petition for dissolution was filed, as specified by section 61.08(4), Florida Statutes (2010)). Section 61.08(7) specifies that the length of an award of durational alimony “may not be modified except under exceptional circumstances and may not exceed the length of'the marriage.” We reject the former wife’s argument that under exceptional circumstances, the term of an award of durational alimony may exceed the duration of the marriage. This “equitable” argument fails because of the clarity of the statute.

We affirm the final judgment of dissolution of marriage in all respects except one. That portion of the award of durational alimony setting the term of the monthly payments at 48 months is reversed and remanded for a reduction to 40 months, the statutory limit.

Affirmed in part, reversed in part, and remanded for reduction of the term of durational alimony.

      . The parties were married previously, from May 2002 through September 2004, but the record of the prior dissolution of that marriage is not before us. There is no apparent basis to consider that marriage for purposes of durational alimony in the current dissolution action or this appeal.


text:
    HHH MOTORS, LLP, d/b/a Hyundai of Orange Park, f/k/a HHH Motors, Ltd., d/b/a Hyundai of Orange Park, Appellant, v. Jenny Lee HOLT and Kristopher P. Holt, on behalf of themselves and all others similarly situated, HA Motors, LLP, d/b/a Acura of Orange Park; Hanania OAJ, LLP, d/b/a Audi of Jacksonville and/or Audi Jacksonville; Hanania FOP, LLP, d/b/a Fiat of Orange Park; Hanania OPM, LLC, d/b/a Orange Park Mitsubishi; Hanania VOP, LLP, d/b/a Volkswagen of Orange Park; and HHH Motors 2, LLP, d/b/a Westside Hyundai, Appellee.
    No. 1D13-4397.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.

      Jon Michael Lindell of Lindell & Far-son, P.A.; and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    William C. Bielecky of William C. Bie-lecky, P.A., Tallahassee; Deanna L. Blair of Jacksonville Area Legal Aid, Green Cove Springs; and Brian W. Warwick of Varnell & Warwick, P.A., The Villages, for Appellee.
   ON MOTION FOR REHEARING, WRITTEN OPINION, AND CERTIFICATION

PER CURIAM.

The crux of this dispute is whether the parties agreed in the purchase and financing agreements at issue that this class action lawsuit must be submitted to arbitration or whether it may proceed in court. For the following reasons, we affirm the trial court’s determination that the parties did not agree to arbitration. In doing so, we grant the motion for written opinion of HHH Motors, LLP, but deny its motions for rehearing and certification.

On July 28, 2010, HHH Motors, LLP, and two of its customers, Jenny and Kristopher Holt, executed a Retail Purchase Agreement (RPA) for the purchase of a 2007 Dodge Ram. The RPA contained an arbitration clause which stated, in pertinent part:

Except as specifically excluded in this agreement, purchaser and dealer agree to submit any and all controversies, claims, or disputes arising out of or relating to this agreement and all other agreements executed by purchaser and dealer related to the vehicle purchase transaction, or related to any aspect of the transaction contemplated by this agreement, to binding arbitration. It is the express intent of purchaser and dealer that this arbitration provision applies to all disputes, including contract disputes, tort claims, fraud claims and fraud-in-the-inducement claims, statutory claims, and regulatory' claims that would not have arisen but for the vehicle purchase transaction and resulting relationship between purchaser and dealer.

The RPA also contained a clause referring to additional documents, which stated:

You agree to execute additional forms, contracts or other documents prepared in connection with the purchase, those required by the various purchase documents, any retail installment or consumer credit sale contract or those required by federal and/or state law, rule or requirement.

After executing the RPA, the Holts executed a Retail Installment Sales Contract (RISC) to finance the purchase of the vehicle. The RISC, however, did not contain an arbitration clause, but included the following merger clause: “This contract contains the entire agreement between you and us relating to this contract. Any change to this contract must be in writing and we must sign it.”

The Holts filed a class action lawsuit against HHH Motors in circuit court alleging violations of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) relating to electronic titling/registration filing fees that HHH Motors charges its customers. In response, HHH Motors filed a motion to compel arbitration pursuant to the arbitration clause in the RPA. In a detailed written order, the trial court denied the motion, concluding that when the Holts signed the RISC, which contained the merger clause, a new contract was formed. This meant that the RISC, which did not have an arbitration clause, superseded the RPA, which did. And because the RISC appeared facially complete, no parol evidence could be considered to address alleged ambiguities. The denial prompted this appeal.

The issue presented is whether a valid written agreement to arbitrate exists, a question we review de novo. Duval Motors Co. v. Rogers, 73 So.3d 261, 264 (Fla. 1st DCA 2011). Under federal and Florida law, a court considers three elements when ruling on a motion to compel arbitration: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitral issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Absent a valid written agreement to arbitrate, no party may be forced to submit to arbitration. Id. (citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1352 (11th Cir.1982) (holding that the federal policy favoring arbitration cannot “stretch a contract beyond the scope originally intended by the parties”)). Furthermore, the applicability of the Federal Arbitration Act (FAA), which preempts state law and state public policy concerns, hinges on whether such an agreement exists. McKenzie Check Advance of Florida, LLC v. Betts, 112 So.3d 1176, 1183 (Fla.2013) (stating that “to the extent that Florida law would invalidate the class action waiver on this basis, the FAA preempts Florida law under the facts presented here.”); Seifert, 750 So.2d at 636.

HHH Motors argues that all three Sei-fert elements are met, that its right to arbitrate vested when the RPA was executed regardless of any subsequent agreement entered by the parties; it thereby claims that the FAA governs the parties’ dispute arising from the sales agreement. On the other hand, the Holts contend that the trial court had a legally sufficient basis to determine, as a matter of fact, that the first element of the Seifert analysis was not met, i.e., that the parties lacked a valid written agreement to arbitrate. The Holts argue that the facts of this case are similar to those in Duval Motors, in which this Court held that a RISC containing a merger clause was a fully integrated document, such that parol evidence of a retail buyer’s order (which contained an arbitration clause) was not admissible to show disputes under contract were subject to arbitration. See Duval Motors, 73 So.3d at 267. It also held that the retail buyer’s order was not a valid change to the RISC. See id. at 269. The Holts also argue that the FAA is not triggered unless the parties first have a valid written agreement to arbitrate, a threshold determination that should be decided by a court, not an arbitrator. They conclude that because the trial court found that no agreement to arbitrate existed, the FAA is inapplicable.

We agree with the well-reasoned analysis of the trial court, which followed a two-step process in its consideration of the applicability of the arbitration clause in the RPA. First, there must be the threshold determination of whether an agreement to arbitrate was formed pursuant to Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287, 180 S.Ct. 2847, 177 L.Ed.2d 567 (2010). A difference exists, however, between the validity of a contract and the formation of a contract. Solymar Investments, Ltd. v. Banco Santander S.A., 672 F.3d 981, 992 (11th Cir.2012) (“The issue of the contract’s validity is different from the issue whether any agreement ... was ever concluded.”) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)). Challenges to the validity of a contract are resolved by the arbitrator, but challenges to formation or existence of a contract are' resolved by the court. Granite Rock, 561 U.S. at 296, 130 S.Ct. 2847; cf. Dasher v. RBC Bank, 745 F.3d 1111 (11th Cir.2014) (holding that whether a subsequent agreement entirely supersedes a prior agreement is made under state law, without applying the FAA’s presumption). The determination of whether a contract exists, is governed by state law, and Florida law permits a court to admit parol evidence to discern the parties’ intent if there is an ambiguity in the contract language. Soly-mar, 672 F.3d at 991. Second, there must be a determination of whether any subsequent challenges are to the whole contract, or just the arbitration clause, pursuant to Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).

In this case, the inquiry ended upon the threshold determination by the trial court that no agreement to arbitrate existed pursuant to Granite Rock. No dispute exists that the Holts signed the RPA first. HHH Motors argues that its right to arbitrate vested at that point, regardless of the validity of the RPA or subsequent action by the parties. Indeed, the trial court acknowledged that it would have been binding but for the execution of the RISC, which was entered concurrently. After executing the RPA, the Holts immediately signed the RISC which stated, in part, that “[b]y signing this contract, you choose to buy the vehicle on credit under the agreements on the front and back of this contract.” Under the circumstances, the trial court concluded that the RISC and its merger clause was sufficiently unequivocal to render the RPA’s arbitration clause nugatory. Our holding in Duval Motors is persuasive on this point and supports the conclusion that no agreement to arbitrate was formed. While HHH Motors correctly notes that the fact pattern is somewhat different, the issue was very similar: whether the merger clause of the RISC precluded consideration of the retail buyer’s order. In Duval Motors, this Court determined that the plain language of the RISC was clear and unambiguous, so parol evidence of the arbitration clause contained in the retail buyer’s order could not be considered. The same holds true here. HHH Motors is being held to the language of its own concurrently-signed documents. See also Basulto v. Hialeah Automotive, 141 So.3d 1145 (Fla.2014) (affirming trial court’s finding that there were issues regarding the making of the agreement, so it was proper to deny the motion to compel). If it intended for credit buyers to be subject to the arbitration clause, then it could have said so in the RISC, but did not.

HHH Motors argues that when two or more documents are executed by the same parties “contemporaneously” in the course of the same transaction concerning the same subject, they should be read and construed together. See, e.g., Quiz Snaxx, Inc. v. Sorensen, 710 So.2d 152, 153 (Fla. 3d DCA 1998) (“Documents executed by the same parties, on or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract. Where a ■writing expressly refers to and sufficiently describes another document, the other document, or so much of it as is referred to, is to be interpreted as part of the writing.”). While this is true, we find no legal error in the trial court’s conclusion that the RISC and its merger clause operated to negate the arbitration clause in the RPA. The FAA thereby does not apply because no valid agreement to arbitrate exists.

In its motion for rehearing and written opinion, HHH Motors claims that our disposition of this case conflicts with the Fourth District’s decision in Morse Operations, Inc. v. Sonar Radio Corp., 449 So.2d 1002 (Fla. 4th DCA 1984). That case, however, is factually different because— unlike the present case — the financing agreement at issue in Morse Operations did not have a merger clause. The absence of a merger clause justified a different result, there being “no support in the record for the trial court’s conclusion that the financing agreement superseded the underlying contract for this transaction.” Id. at 1008. Though we find no conflict and do not certify a question of great public importance, we provide this opinion to explain our reasoning, which may be beneficial in the development of this area of the law.

In conclusion,. the trial court properly denied the motion to compel arbitration.

AFFIRMED.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


author: CONNER, J.

text:
    Howard ELIAS, Appellant, v. Cindy ELIAS, Max Elias, Joyce Elias, Mahogany Reality, Inc., Elite Services, Inc., J.M.K. Family Enterprises, One Royal Palm Partners, One Royal Palm Associates, One Royal Palm Holdings, LLC, Philip J. Feldman, Elidin Enterprises, LLC, Steven Dingle and Scott Dingle, Appellees.
    No. 4D14-1068.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellant.
    Joel M. Weissman and Ashley M. Johnson of Joel M. Weissman, P.A., West Palm Beach, for appellees.
   CONNER, J.

Appellant, Howard Elias (“the husband”), timely appeals the trial court’s order determining the date of legal separation from his wife, Appellee, Cindy Elias (“the wife”), and the trial court’s order requiring the sale of some of the couple’s assets pursuant to a prenuptial agreement. The husband argues that the trial court erred in determining that the couple became legally separated pursuant to a judicial proceeding and in issuing the order of sale. Because we determine that the trial court erred in the threshold determination that the relevant paragraph in the prenuptial agreement was unambiguous, we reverse. Since this renders the trial court’s ultimate rulings moot, we remand for further proceedings.

Pertinent Facts and Trial Proceedings

The husband and the wife entered into a prenuptial agreement. Pertinent to this appeal is a paragraph within the prenuptial agreement regarding the sale of some of the couple’s joint assets upon becoming “legally separated.” The paragraph states:

4. Termination of Mamage; Separation. If the marriage shall be judicially terminated, or, if the parties become legally separated pursuant to judicial proceedings or an agreement, any property owned by the parties as tenants in common, joint tenants with right of survivorship, or tenants by the entirety, unless the parties then agree in writing to the contrary, shall be sold and the net proceeds of sale shall be distributed between the parties in equal shares or in such other proportions as may have been agreed by the parties by written agreement or in accordance with their respective ownership interests as tenants in common as shall be conclusively determined by the applicable instrument.

After signing the prenuptial agreement, the husband and the wife married.

Subsequently, the wife petitioned for dissolution of marriage. Next, the wife filed a motion to determine that a legal separation had occurred between the parties as of the • date of the filing of the petition for dissolution of marriage, or a subsequent date. Simultaneously, the wife filed a motion to determine the items to be sold pursuant to the prenuptial agreement.

The trial court held a hearing on the wife’s motions. At the hearing, the husband argued that the term “legally separated pursuant to judicial proceedings,” as used in paragraph four, was ambiguous. Additionally, when the wife’s attorney attempted to call her to the stand to proffer evidence, the trial court stated:

Well, you know, I’m going to shortchange this, because I’ve looked at this and I understood what it is. I think once the Court has jurisdiction over both of the parties, that’s when the separation occurred, and that’s when the assets, everything starts coming into play.... But once the service was perfected, that meant the parties meant that they were going to war, and at that particular point, I’m going to rule that as far as this — that the plain meaning of these terms is that the parties become legally separated pursuant to judicial proceedings. Well, the proceedings started and they were mandatory with regards to both parties, that’s when we had — the Court had jurisdiction over them. That seems to me to be a logical point of time.

After the hearing, the trial court entered a written order granting the wife’s motion to determine the date of legal separation. The trial court found that the terms and conditions of the prenuptial agreement were unambiguous, and determined that the parties became legally separated on the date that the wife perfected service of her petition for dissolution on the husband. The trial court also granted the wife’s motion to determine the assets to be sold, and held that, since the parties were legally separated, that certain assets of the parties were to be sold. The husband appeals both of these orders.

Appellate Analysis

As an initial matter, we note that this court granted the wife’s motion to dismiss the husband’s appeal of the trial court’s order determining the date of legal separation. Upon reconsideration and in conjunction with the facts as provided in the full record on appeal, we reverse our previous order. Cf. Lester v. City of St. Petersburg, 190 So.2d 307 (Fla.1966); Am. Bridge v. Kromis, 555 So.2d 1285 (Fla. 2d DCA 1989); Hampton v. A. Duda & Sons, Inc., 511 So.2d 1104 (Fla. 5th DCA 1987). It is now clear that the trial court’s sale order was based upon its threshold determination of the date of legal separation, which in turn was premised upon the conclusion that the prenuptial agreement is unambiguous. Thus, we must review both orders in conjunction with one another.

“A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.” Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009). “[T]he standard of review applicable to the determination of whether a contract is ambiguous is the de novo standard of review.” Essex Ins. Co. v. Simpler, 911 So.2d 794 (Fla. 1st DCA 2004).

Because the trial court’s decision that the parties were legally separated was based on a finding that the language of the prenuptial agreement was unambiguous, the threshold determination for us on review is whether the trial court’s preliminary finding was correct.

“A contract provision is ambiguous if it is ‘rationally susceptible to more than one construction.’ ” State, Dep’t. of Transp. v. Fla. Gas Transmission Co., 126 So.3d 1095, 1101 (Fla. 4th DCA 2012) (quoting Segal v. Rhumbline Int'l Inc., 688 So.2d 397, 398 (Fla. 4th DCA 1997)). “When a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.” Fecteau v. Southeast Bank, N.A., 585 So.2d 1005, 1007 (Fla. DCA 4th 1991) (quoting Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980)) (internal quotation marks omitted).

One of the triggering events for the sale of marital property under paragraph four is “if the parties become legally separated pursuant to judicial proceedings or an agreement.” In Florida, there is no cause of action for a legal separation. Thus, it is unclear, in the context of Florida law and the facts of this case, what the language “if the parties become legally separated pursuant to judicial proceedings ” means. Moreover, it is also unclear, under Florida law and the facts of this case, what the language “if the parties become legally separated pursuant to ... an agreement,” means. For those reasons, we determine that the language “if the parties become legally separated pursuant to judicial proceedings or an agreement” in the prenuptial agreement is reasonably susceptible to more than one construction, and the trial court erred in determining that the language of the prenuptial agreement was unambiguous. That error led to the erroneous entry of the orders determining the date the parties were legally separated and directing the sale of some of the marital assets.

Appellate Disposition

We reverse the trial court’s order determining the date of legal separation and the trial court’s sale order and direct the trial court to vacate those orders. Since the trial court did not accept any evidence at the hearing, because it determined the clause to be unambiguous, we remand the case so that the trial court may hear evidence as to the meaning of the clause.

Reversed and remanded.

WARNER and MAY, JJ., concur.

      . The court dismissed the appeal regarding the issue of the date of legal separation because, standing alone, the order is a nonfinal, non-appealable interlocutory order. See generally Fla. R. App. P. 9.130.

      . It was suggested in the briefs and in oral argument before the trial court that the wife’s attorney involved in drafting or negotiating the prenuptial agreement was a New York attorney. New York law provides a judicial proceeding for a legal separation of married parties. See § 200, N.Y. Dom. Rel. (2013) ("An action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board, forever, or for a limited time.”). However, a separate clause of the prenuptial agreement made it clear that interpretation enforcement of the agreement was to be pursuant to Florida law.


author: LAMBERT, J.

text:
    Arvita M. COLEMAN, Appellant, v. Michael BLAND, Appellee.
    No. 5D10-1326.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Carlton Pierce, of Carlton Pierce, P.A., West Palm Beach, for Appellant.
    Michael B. Jones, Eric Lee Bensen and Cynthia M. Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.
   ON MOTION TO REVIEW TRIAL COURT’S POST-MANDATE AWARD OF ATTORNEYS FEES AND DENIAL OF MOTION TO TAX COSTS

LAMBERT, J.

Pursuant to Florida Rule of Appellate Procedure 9.400(c), Arvita M. Coleman (“Former Wife”) seeks review of a trial court order that she contends awarded her attorney’s fees, but denied her motion for taxation of appellate costs.

Former Wife previously appealed the final judgment, later amended, dissolving her marriage to Michael Bland (“Former Husband”). At that time, we found no reversible error as to any of the issues raised, except as to whether any part of Former Husband’s pension was a marital asset. Coleman v. Bland, 73 So.3d 795, 795 (Fla. 5th DCA 2011). We determined that the record showed that a small portion of the pension was earned during the marriage and should be classified as a marital asset; therefore, we remanded -as to only that issue for the court to make proper findings as to the disposition of Former Husband’s pension. Id. at 796. We separately entered an order granting Former Wife’s motion for appellate attorney’s fees conditioned upon the trial court finding need of Former Wife and commensurate ability to pay of Former Husband, and remanded the case to the trial court to assess the amount of the award, if any.

Pursuant to Florida Rule of Appellate Procedure 9.400(a), Former Wife then timely filed a motion to tax appellate costs. She also separately filed a motion in the trial court seeking an award of temporary attorney’s fees needed to litigate the issue on remand regarding the Former Husband’s pension. The trial court held an evidentiary hearing on all issues, and entered an order, which provided in pertinent part:

2. The Former Husband shall pay the Former Wife the sum of Five Thousand Dollars ($5,000) for and as a contribution toward the Former Wife’s appellate attorney’s fees and costs and post-judgment non-appellate attorney’s fees and costs.
3. Said $5,000 shall be paid at the rate of Five Hundred Dollars ($500) per month beginning September 29, 2014.

In the instant case, Former Wife contends the trial court erred in not awarding her the full amount of her appellate attorney’s fees and in denying her request for appellate costs. However, because the trial court failed to specify in its order whether the $5000 award applied to appellate attorney’s fees, appellate costs, or post-mandate attorney’s fees at the trial court level, we are precluded from meaningful review of the award. See Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of E. Fla., 483 So.2d 852, 854 (Fla. 5th DCA 1986) (stating that “we can undertake no meaningful review of the sums awarded because the lower court failed to stipulate in its order what amounts awarded pertain to appellate fees and costs as opposed to trial fees and costs”). Accordingly, we remand this cause to the trial court for the purpose of apportioning attorney’s fees and/or costs awarded between appellate and trial work.

REMANDED.

TORPY, C.J., and LAWSON, J., concur.

      . "[T]he correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review in the appellate court in the proceeding that was the subject of the award, within 30 days of rendition of the order in the lower tribunal.” Pallar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997).

      . We remind the trial court that if it awards appellate attorney’s fees, there should be specific findings as to the reasonable number of hours expended and the reasonable hourly rate. Furthermore, Florida Rule of Appellate Procedure 9.400(a) permits appellate costs to be taxed in favor of the "prevailing party” unless the court orders otherwise. Therefore, in determining whether to award appellate costs, the trial court must decide whether Former Wife was the "prevailing party” on the primary appeal. See, e.g., Markin v. Markin, 953 So.2d 13, 15 (Fla. 4th DCA 2007) (reversing award of appellate costs in favor of former husband who prevailed on an issue, but not "the significant issues” on appeal).


author: PALMER, J.

text:
    Jeffrey WEISSMAN, etc., Appellant, v. RADIOLOGY ASSOCIATES OF OCALA, P.A., et al., Appellees.
    No. 5D13-2579.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Lauri Waldman Ross and Theresa L. Girten, of Ross & Girten, Miami, and Ronald M. Zakarin and Michael I. Kotler, of Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., Boca Raton, for Appellant.
    Erik P. Bartenhagen and Dinah Stein, of Hicks, Porter, Ebenfeld & Stein, PA., Miami, and Richards H. Ford and Clay H. Coward, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellees.
   PALMER, J.

Jeffrey Weissman timely appeals the order entered by the trial court granting a new trial. Determining that the trial court abused its discretion in granting the new trial, we reverse and remand for reinstatement of the jury verdict.

Weissman filed a wrongful death action against Radiology Associates of Ocala (RAO) for alleged medical malpractice. The jury entered a verdict in Weissman’s favor. After conducting post-trial background investigations on the jurors, RAO filed a motion to conduct juror interviews, alleging material non-disclosures by several jurors. The trial court conducted juror interviews and then granted RAO’s pending motion for a new trial, finding that three jurors had failed to disclose material information. Weissman appeals, contending that the trial court abused its discretion in ordering a new trial, arguing that none of the alleged non-disclosures were sufficient to justify the grant of a new trial. We agree.

The standard of review of a trial court’s order granting a new trial based on juror non-disclosure of material information is an abuse of discretion. See McCauslin v. O’Conner, 985 So.2d 558 (Fla. 5th DCA 2008).

In De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), our Supreme Court adopted a three-part test to be utilized in determining whether a juror’s non-disclosure of information during voir dire warrants a new trial: (1) was the information relevant and material to jury service in the case; (2) did the juror conceal information during questioning; and (3) was the juror’s failure to disclose information attributable to the complaining party’s lack of diligence. Id. at 241. Here, the trial court found that all elements of the De La Rosa test were satisfied regarding non-disclosures by jurors Mesa, Garcia, and Lewis. We disagree.

As for Mesa, RAO asserted that she failed to disclose her treatment and billing history with RAO, and the trial court determined that RAO had met the De La Rosa test with regard to Mesa because of said non-disclosure.

During voir dire, the prospective jurors were asked whether any of them “had ever been to RAO.” They were also asked whether they harbored “negative feelings about doctors, hospitals, or healthcare providers or had other healthcare issues that might somehow come into play here.” None of the prospective jurors responded affirmatively. After conducting a post-trial search of its internal billing records, RAO claimed that Mesa received services from RAO at area hospitals and that her account had gone into collections. RAO’s counsel provided documents to the court, over Weissman’s objection, allegedly showing that Mesa had been billed for services performed by RAO and that her account had been sent to collections. During her juror interview, Mesa never testified that she had been to RAO, that she had received services from RAO, that she had received any bills from RAO, or that any bills from RAO had gone to collections.. We conclude that, because RAO failed to properly authenticate its documents, presenting no witnesses at the hearing to identify the documents, the trial court improperly admitted those documents into evidence. ' Absent those documents, the trial court had no evidence demonstrating that Mesa concealed any information during voir dire. Accordingly, RAO failed to meet the De La Rosa test as to Mesa.

As for Garcia, RAO asserted that he failed to disclose that he filed a chapter 13 bankruptcy proceeding in 2011. The trial court determined that RAO met the De La Rosa test with regard to Garcia because of the non-disclosure of the bankruptcy filing.

During voir dire, the prospective jurors were not specifically asked about bankruptcy filings. Rather, counsel for Weiss-man asked whether the jurors had ever been involved in any kind of litigation, either as a plaintiff or as a defendant. RAO then asked:

Have you ever been involved with a lawsuit that means all types of lawsuits ... even if you were in a foreclosure action, some action for some sort of credit issues. Has anyone ever been involved in any sort of lawsuit?

None of the prospective jurors responded affirmatively.

Weissman contends that RAO’s questions during voir dire were too imprecise to trigger a response about Garcia’s bankruptcy proceeding, since a bankruptcy filing does not involve a plaintiff or a defendant, nor is the filing party either suing or being sued. RAO responds to that argument as follows:

[Djefense counsel listed as examples two types of lawsuits that jurors might not typically associate with courtroom litigation — “foreclosure actions” and “some action for some sort of credit issues.”
Here, while counsel for Defendants did not use the actual word “bankruptcy” during voir dire, counsel did question the jurors about actions having to do with “credit issues.” This was more than enough to have caused reasonable jurors in Mr. Garcia’s and Ms. Lewis’ position to mention their personal bankruptcy filings.

We agree with Weissman. RAO’s example of “some action for some sort of credit issues” was immediately preceded by and followed with direct questioning about whether the prospective jurors had been involved in any lawsuits. Considering the context of RAO’s question, a juror could have concluded that RAO was asking only about lawsuits involving credit issues.

In Public Health Trust of Miami-Dade County v. Metellus, 948 So.2d 4 (Fla. 3d DCA 2006), the district court reversed an order granting a new trial for a juror’s failure to disclose involvement in divorce and collection proceedings, .finding no concealment in the absence of a definition of a lawsuit provided in the questioning. The voir dire questioning here was similarly imprecise. It did not specifically ask about bankruptcy proceedings and talked in terms of any juror having been a plaintiff or defendant, or having sued or been sued, none of which are applicable to a bankruptcy proceeding. As such, RAO failed to meet the De La Rosa test as to Garcia. See also Rodgers v. After Sch. Programs Inc., 78 So.3d 42 (Fla. 4th DCA 2012) (affirming the trial court’s denial of a motion for a new trial when attorneys’ questioning was imprecise and not designed to elicit the type of information that was supposedly concealed).

As to Lewis, RAO alleged that she failed to disclose that she filed a chapter 7 bankruptcy action and that she was a party to various litigation. For the same reasons set forth above with regard to Garcia, RAO failed to meet the De La Rosa test as to Lewis’ non-disclosure of her bankruptcy filing.

As for her involvement in other-lawsuits, RAO alleged that Lewis was a party to at least four previous lawsuits. However, before interviewing Lewis, the trial court specifically stated that it would not question her about those actions because they were “too remote in time.” Nonetheless, inexplicably, in announcing its ruling, the trial court relied upon those lawsuits in granting RAO’s motion for new trial. Such reliance was improper in light of the trial court’s earlier determination that such litigation was too remote in time. Accordingly, RAO failed to meet the De La Rosa test as to Lewis’ non-disclosure of those lawsuits.

Since RAO failed to meet its burden of proof under De La Rosa as to any of the challenged jurors, the trial court abused its discretion in granting a new trial. Accordingly, we reverse and remand for reinstatement of the jury verdict.

REVERSED and REMANDED.

WALLIS and LeBLANC, R. Associate Judge, concur.

      . This court has jurisdiction. See Fla. R. App. P. 9.130(a)(4); 9.110(a)(3).


text:
    THYSSENKRUPP ELEVATOR CORP., Appellant, v. HAMPTON MANOR AT DEERWOOD, LLC, Appellee.
    No. 5D13-4130.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Christie J. Vetter and Shawn E. Harrison, of Shawn Harrison Associates, PLLC, Tampa, for Appellant.
    Michael E. Rodriguez, of Michael E. Rodriguez, P.L., Tampa, for Appellee.
   PER CURIAM.

Appellant, ThyssenKrupp Elevator Corporation (“ThyssenKrupp”), appeals a summary final judgment awarding it damages on a breach of contract claim. On appeal, Thyssenkrupp contends that it is entitled to more damages than were awarded by the court for the breach of the contract. We agree and reverse.

The parties entered into a maintenance contract in which ThyssenKrupp was to provide elevator maintenance service to Hampton Manor at Deerwood (“Hampton Manor”) for a term of five years. Thys-senkrupp provided the services for the five-year term. At the end of the five-year term, the contract automatically renewed for an additional five years.

During the time of the second renewal, Harbor Manor breached the contract by failing to pay for work performed in the amount of $1,157.14. The contract provided that upon failure to pay an overdue invoice, Thyssenkrupp could either: (1) suspend all service until all amounts due had been paid in full, or (2) declare all sums for the unexpired term of the agreement due immediately and terminate the contract. In this case, Thyssenkrupp elected option two. It filed suit stating a claim for the unpaid invoices and for sums due for the unexpired term of the contract. Harbor Manor answered the complaint by a general denial of the allegations and raised no affirmative defenses.

The case ultimately went before the court on Thyssenkrupp’s motion for summary judgment. At the summary judgment hearing, Thyssenkrupp provided the contract, the unpaid invoices, and the affidavit of its corporate representative as to all the amounts due and owing, including the amounts for the unexpired term, all totaling $30,259.71. Harbor Manor provided no counter-affidavits. It made a legal argument that Thyssenkrupp’s corporate representative’s affidavit did not comply with Florida Rule of Civil Procedure 1.510(e). It claimed that the affidavit was not based upon personal knowledge and did not set forth facts that would be admissible into evidence. In addition, Harbor Manor argued that the affidavit did not show affirmatively that the affiant was competent to testify to the matters stated therein, citing Jones Construction Co. of Central Florida., Inc. v. Florida Workers’ Compensation, JUA, Inc., 793 So.2d 978, 980 (Fla. 2d DCA2001).

After hearing arguments, the court entered judgment in favor of Thyssenkrupp in the principal amount of $1,157.14, the amount of the outstanding invoices, but did not grant damages for the unexpired term of the contract in the amount of $29,102.57. The court found Thyssenkrupp’s corporate representative’s affidavit complied with rule 1.510(e).

The contract is clearly unambiguous, and its plain meaning sets forth that upon default Thyssenkrupp is entitled to recover the monthly fee for the remaining term of the contract. When the terms of a contract are clear and unambiguous, a court has no right to give it a meaning other than that expressed in it. See Hamilton Const. Co. v. Bd. of Pub. Instruction of Dade Cnty., 65 So.2d 729, 731 (Fla.1953). “To hold otherwise would be to do violence to the most fundamental principle of contracts.” Id.

In this case, the parties agreed that upon Harbor Manor’s failure to pay an outstanding invoice, Thyssenkrupp could cancel the contract and accelerate the remaining term, which it clearly did. Therefore, it was entitled to damages for the unpaid invoices in the amount of $1,157.14, and damages pursuant to the terms of the contract in the amount of $29,102.57, making the total principal amount owed to Thyssenkrupp $30,259.71. This case is remanded for entry of a judgment in favor of Thyssenkrupp in the principal amount of $30,259.71.

REVERSED and REMANDED.

ORFINGER, EVANDER, JJ. and JACOBUS, B.W.', Senior Judge, concur.


author: COHEN, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. Armando MARTUCCI and Joyce Soper, Appellees.
    No. 5D13-4513.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Hinda Klein, of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant.
    Robert E. Biasotti and Annette Marie Lang, of Biasotti and Associates, St. Pe-tersburg, for Appellees.
   COHEN, J.

The Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order compelling it to participate in an appraisal of a homeowner’s insurance claim. FIGA argues that Armando Martucci and Joyce Soper (collectively, “the Insureds”) waived their right to appraisal. We disagree and affirm.

In September 2010, the Insureds filed suit against their homeowner’s insurance provider, Homewise Preferred Insurance Company (“Homewise”), claiming that a 'sinkhole had caused property damage to their home. After Homewise denied coverage of the claim, the parties engaged in extensive discovery.

■ Then, in December 2012, FIGA notified the Insureds that it was assuming the handling of their claim due to Homewise’s insolvency. On July 19, 2012, FIGA admitted — for the first time — that the Insureds’ claim was covered under the Homewise insurance policy. Shortly thereafter, the Insureds amended their complaint to substitute FIGA for Home-wise. Less than a month after FIGA filed its answer, the Insureds demanded appraisal, and eventually filed a motion to compel appraisal.

FIGA claimed that appraisal was inappropriate because: (1) the Insureds waived their right to appraisal by not filing their motion to compel appraisal until two years after filing suit against Homewise; (2) the dispute centered on the method of repair rather than the amount of loss; and (3) FIGA was submitting the claim to neutral evaluation. After the parties participated in neutral evaluation, the trial court granted the Insureds’ motion to compel appraisal and stayed the proceedings. This appeal followed.

The central issue on appeal is whether the Insureds waived their right to appraisal by filing an amended complaint against FIGA and failing to demand appraisal until December 20, 2012. When the underlying facts are undisputed, as they are here, we review the issue of waiver de novo. See Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488 (Fla. 5th DCA 2014).

Waiver of the right to appraisal occurs when a party “actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal.” Fla. Ins. Guar. Ass’n v. Maroulis, 153 So.3d 298, -, 2014 WL 5285013, 39 Fla. L. Weekly D2198, D2199 (Fla. 5th DCA Oct. 17, 2014) (citing Branco, 148 So.3d at 493). Because appraisal exists only to determine the amount of loss, and not whether coverage exists, a party cannot seek appraisal until the insurer admits coverage (or until coverage is determined by the court). Id. Consequently, a party cannot act inconsistently with the right to seek appraisal until that time. Id.

Here, appraisal was not warranted until July 19, 2012 — when FIGA first admitted coverage. See id. Thus, despite FIGA’s argument to the contrary, it is irrelevant that the Insureds engaged in extensive discovery with Homewise and failed to request appraisal until two years after filing the original complaint. Instead, the relevant time period began in July 2012, and after that time, the Insureds’ only action that was arguably “inconsistent with the right to appraisal” was amending the complaint to substitute FIGA for Homewise. They amended the complaint only a few weeks after FIGA admitted coverage, and then demanded appraisal five months later.

We recognize that the Insureds’ five-month delay makes this case fall somewhere between the cases where courts have found waiver and those where they have not. Compare Branco, 148 So.3d at 494 (finding no waiver where insured demanded appraisal three weeks after FIGA admitted coverage), and Fla. Ins. Guar. Ass’n v. Santos, 148 So.3d 837 (Fla. 5th DCA 2014) (finding no waiver where insured demanded appraisal three months after FIGA admitted coverage), with Maroulis, — So.3d at-, 39 Fla. L. Weekly at D2199 (finding waiver where insured demanded appraisal nearly a year after FIGA admitted coverage), and Fla. Ins. Guar. v. Rodriguez, 153 So.3d 301, -, 2014 WL 5285005, 39 Fla. L. Weekly D2196, D2197 (Fla. 5th DCA Oct. 17, 2014) (finding waiver where insured demanded appraisal three years after FIGA admitted coverage), and Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So.2d 1170, 1171 (Fla. 3d DCA 1997) (finding waiver where insured litigated case for fourteen months and filed a motion for summary judgment). But the waiver analysis does not turn entirely on the amount of time the case was pending; it focuses on whether the Insureds acted inconsistently with their appraisal rights. See Branco, 148 So.3d at 493.

Certainly, the Insureds in this case could, and should, have demanded appraisal sooner. Nonetheless; we cannot say that they “aggressively litigated” the case after FIGA admitted coverage. Cf. ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver where party “aggressively litigated” for nine months). The Insureds did not request any discovery, file any motions, or otherwise indicate that they wanted to resolve the amount-of-loss issue by way of litigation rather than appraisal. Cf. Rodriguez, — So.3d at—, 39 Fla. L. Weekly at D2196-97 (finding waiver where insureds filed several discovery requests and pursued other litigation activities). Nor can we say that filing an amended complaint to substitute FIGA soon after FIGA admitted coverage was, alone, sufficient to constitute waiver. Cf. Maroulis, — So.3d at—, 39 Fla. L. Weekly at D2199 (finding waiver where insureds pursued “significant litigation activities,” including amending their complaint, requesting further admissions, and attending mediation); Santos, 148 So.3d at 839 (finding no waiver even though insured filed a discovery request because the single discovery request did not go to the “amount of loss” or “method of repair” issue).

In sum, under the facts of this case, we believe that the Insureds did not act inconsistently with, or waive, their right to demand appraisal. Accordingly, we affirm.

AFFIRMED.

TORPY, C.J., and SAWAYA, J., concur.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.130(3)(C)(iv).

      . FIGA’s other arguments do not warrant discussion, as they have been thoroughly discussed and rejected in several of this Court's recent opinions. See Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488 (Fla. 5th DCA 2014) (holding that "method of repair” is an issue that falls within the scope of "amount of loss,” and that FIGA's concerns about having to pay more than the "covered losses” and having to pay the insureds directly were not within the scope of review); see also Fla. Ins. Guar. Ass'n v. Santos, 148 So.3d 837 (Fla. 5th DCA 2014) (affirming the holding in Branco); Fla. Ins. Guar. Ass’n v. Sill, 39 Fla. L. Weekly D2197, 2014 WL 5285004 (Fla. 5th DCA Oct. 17, 2014) (same). Although FIGA has framed the issue slightly differently in this case, we remain unpersuaded.

      .FIGA is a "public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers [that] have become insolvent.” Branco, 148 So.3d at 490 n. 1 (quoting Fla. Ins. Guar.

        Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011)); see also §§ 631.51-.55, Fla. Stat. (2011).

      . The Homewise policy contained a provision that allowed for appraisal when the parties disputed the amount of loss.


text:
    Timothy CLAYTON, Appellant, v. Linnea CLAYTON, Appellee.
    No. 5D14-1402.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Scott T. Smith, of Scott Timothy Smith, P.A., Brooksville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Timothy Clayton, appeals the final judgment dissolving his marriage to Appellee, Linnea Clayton. We affirm in part and reverse in part.

There are four errors in the final judgment that require reversal. First, the final judgment incorporates an erroneous child support worksheet. Inexplicably, the worksheet utilizes net income for Appellee, but gross income for Appellant. In addition, although the worksheet utilizes the “Gross Up Method” of calculation of child support, the time-sharing arrangement does not support this method. See § 61.30(ll)(b), Fla. Stat. (2013) (setting forth method court shall use when time-sharing schedule provides each child spend at least twenty percent of overnights with each parent). Second, the final judgment fails to comply with section 61.13(l)(a), Florida Statutes (2013), in that it does not provide the requisite schedule, nor does it state the month, day and year that the reduction in child support shall become effective. Third, the final judgment fails to allocate the liabilities between the parties. See Austin v. Austin, 12 So.3d 314, 315 (Fla. 2d DCA 2009) (recognizing that trial court is required to identify marital liabilities in final judgment and designate which spouse is responsible for each liability). Finally, the incorporated parenting plan does not clearly set forth the times Appellant is to have the children on Wednesdays and it does not set forth the total number of overnights the parties are to have the children throughout the year.

We reverse and remand these portions of the final judgment so that the court can make the necessary corrections. In all other respects, the final judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

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


author: ROWE, J.

text:
    BORDEN DAIRY COMPANY OF ALABAMA, LLC, and Major O. Greenrock, Appellants, v. Susanne L. KUHAJDA, Appellee.
    No. 1D13-4896.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2014.

      Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Faith A. Nixon of Carr Allison, Daphne, Alabama, for Appellants.
    Clayton R. Syfrett of Syfrett & Dykes Law Offices, P.A., Panama City; Laura Beth Faragasso of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellee.
   ROWE, J.

Borden Dairy Company of Alabama, LLC, and Major 0. Greenrock, the appellants, challenge a judgment from a jury verdict'finding them liable for injuries sustained by Susanne L. Kuhajda, the appel-lee, in a vehicle accident. The appellants argue that the trial court abused its discretion by denying the defense’s motion for a new trial, which asserted that the trial court erred in allowing the plaintiff to play a portion of Mr. Greenrock’s videotaped deposition during closing argument. We write to confirm our position that the law supports using a party’s deposition for any purpose, and once the videotaped deposition of Mr. Greenrock had been admitted into evidence, it was fully available to the jury to be considered. We affirm all other issues without further discussion.

FACTS

This case arose out of a motor vehicle accident which occurred when a delivery truck owned by Borden Dairy and being driven by Borden’s employee, Major Greenrock, was involved in a collision with a vehicle being driven by Susanne Kuhaj-da. Ms. Kuhajda filed a negligence action against Borden Dairy and Mr. Greenrock for damages alleged to have been incurred due to injuries she sustained as a result of the accident.

Mr. Greenrock testified at trial that he was attempting to drive his 30-foot delivery truck across five lanes, with traffic coming from his left. With the aid of an aerial photograph exhibit at trial, he indicated the positions of his truck and other traffic, including the position of Ms. Kuhaj-da’s vehicle on his left. He testified that a vehicle pulled out from a parking lot to his right, passed in front of him, and prevented him from continuing across the divided highway as he had anticipated, requiring him to stop his truck with the front bumper somewhere in the median, and the rear of the truck blocking south-bound lanes of travel.

Mr. Greenrock’s videotaped deposition was admitted into evidence at trial without objection. During Mr. Greem;ock’s live testimony at trial, the plaintiff impeached him with portions of his transcribed videotaped deposition. Before resting her case, plaintiffs counsel stated that he wanted to use portions, of Mr. Greenrock’s videotaped deposition during closing argument. At that time, Borden raised an objection to allowing use of the deposition; the trial court reserved ruling on the objection, but when the trial court allowed the plaintiff to play a video clip of Mr. Greenrock’s deposition during its closing argument, the defense did not object.

The jury returned a verdict finding the defendants 100% liable for the collision and awarding Ms. Kuhajda damages. .Borden filed a motion for new trial, asserting error in permitting plaintiffs counsel to play a portion of Mr. Greenrock’s deposition in closing argument. The trial court denied the motion for new trial.

ANALYSIS

Rulings on the admissibility of testimony are reviewed for an abuse of discretion. See, e.g., Kormondy v. State, 845 So.2d 41, 52 (Fla.2003). A. trial court’s ruling on a motion for new trial is governed by the abuse of discretion standard of review. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998); Morgan v. Milton, 105 So.3d 545 (Fla. 1st DCA 2012).

To receive a new trial in a civil case based on closing argument, the complaining party must first establish that the argument being challenged is improper. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). In determining whether a challenged argument is improper, the trial court must consider whether the attorney confined closing argument to the facts and evidence presented to the jury and whether the argument improperly invoked emotional responses from the jury which could have affected the verdict. Id. at 1018. Parties are to be granted great latitude in argument before a civil jury, and a trial court’s rulings regarding alleged improper argument are presumed to have been made within the trial court’s discretion. See id. We conclude that the trial court did not abuse its discretion in this case by allowing the plaintiff to use portions of Mr. Greenrock’s videotaped deposition during closing argument.

The court admitted Mr. Green-rock’s videotaped deposition pursuant to Florida Rule of Civil Procedure 1.330(a)(2), which provides that “[t]he deposition of a party ... may be used by an adverse party for any purpose.” In ruling the deposition admissible, the court expressly referred to that rule:

[T]he rule says that the deposition of any party can be used for any purpose. And so, you know, whether it was the focal point of their case or wasn’t, they can use it now. It is evidence. And they don’t have to read or show the entire deposition.

Admitting the deposition of Mr. Greenrock was not only a ruling within the trial court’s discretion, but failure to permit the use of deposition testimony by a party when such use is expressly authorized pursuant to the rules would have been reversible as a matter of law. See, e.g., Castaneda v. Redlands Christian Migrant Ass’n, 884 So.2d 1087, 1090 (Fla. 4th DCA 2004). Further, while not specifically addressed in Florida, there appears to be no absolute prohibition from using videotaped depositions during closing argument. See, e.g., K.C. & Calaway v. Schucker, 2013 WL 5972192 (W.D.Tenn.) (recognizing there is no per se ban on use of video excerpts of depositions in closing arguments); Morgan v. Scott, 291 S.W.3d 622, 636 (Ky.2009) (same); Perry v. City and County of San Francisco, 2011 WL 2419868 (9th Cir. Apr. 27, 2011) (noting parties may play excerpts from video-recorded depositions during course of closing arguments); see also 88 C.J.S. Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument, and trial courts have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.”).

During closing argument, the plaintiff played portions of Mr. Greenrock’s videotaped deposition without a contemporaneous objection from the defense. Although it would have been error for counsel to have presented facts to the jury in closing that were not presented in the taking of evidence, see Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994), the record demonstrates that the evidence at issue here had been presented to the jury. Mr. Greenrock’s videotaped deposition had been admitted into evidence, he testified live at trial, and most of the testimony included in the video clip played for the jury had been used during the trial to impeach Mr. Greenrock during his live testimony.

' The appellants rely on Shoaf v. Getting, 960 So.2d 41 (Fla. 5th DCA 2007), to support their argument for reversal. There, the Fifth District held that it was reversible error to allow a party to play videotaped deposition testimony of witnesses during closing argument where that testimony had not been previously admitted into evidence in that form. This case is clearly distinguishable from Shoaf. The deposition testimony at issue in Shoaf was that of witnesses who were not subject to rule 1.330, while the deposition testimony in this case was of a party, Mr. Greenrock; thus, his deposition testimony could be used for any purpose. Further, unlike the witness depositions at issue in Shoaf, the deposition testimony of Mr. Greenrock had been admitted into evidence. Thus, the reasoning in Shoaf is not persuasive in this case.

Because rule 1.330(a)(2) allows the deposition of a party to be used for any purpose and the deposition of Mr. Greenrock was properly admitted into evidence, the trial court’s decision to allow videotaped portions of the deposition to be played during closing argument is AFFIRMED.

ROBERTS, J., concurs.

THOMAS, J., concurs in result only.