text:
    Antonio BELTRAN, M.D. and Antonio Beltran, M.D., P.A., Appellants, v. VINCENT P. MIRAGLIA, M.D., P.A., Appellee.
    No. 4D11-4738.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Craig M. Rappel and Robert Rappel of Rappel Health Law Group, P.L., Vero Beach, for appellants.
    Shelly J. Stirrat and W. Thomas Wack-een of Fox, Wackeen, Dungey, Beard, Bush & McCluskey, LLP, Stuart, and Catherine Miraglia Lecky, Stone Harbor, New Jersey, for appellee.
   KEYSER, JANIS BRUSTARES, Associate Judge.

Antonio Beltran, M.D. and Antonio Bel-tran, M.D., P.A., defendants below, appeal a final judgment finding Dr. Beltran and his professional association jointly and severally liable to plaintiff, Vincent P. Mirag-lia, M.D., P.A., for claims arising out of a business dispute. Defendants argue that the trial court erred in entering judgment against Dr. Beltran, individually, and that the statute of limitations bars the claims against his professional association. We find merit in both arguments and, therefore, reverse and remand with directions to the trial court to enter judgment in favor of the defendants.

In March of 2009, Vincent P. Miraglia, P.A. filed suit against Antonio Beltran, M.D., individually, seeking Dr. Beltran’s share of certain office overhead expenses, alleging theories of recovery based upon breach of oral contracts, unjust enrichment, and quantum meruit. In his answer, Dr. Beltran raised as an affirmative defense the plaintiffs failure to join Dr. Beltran’s professional association, Antonio Beltran, M.D., P.A., as an indispensable party.

The non-jury trial of this case commenced in November of 2011. During the presentation of the plaintiffs case in chief, Dr. Miraglia was asked whether his business arrangement had been made with Dr. Beltran individually or with Dr. Beltran’s professional association. After Dr. Mirag-lia testified his business dealings were between “M.D. P.A. on my side and M.D. P.A. on his side” and the alleged oral agreements were made between the professional associations, the plaintiff made an ore tenus motion to amend the complaint to add Dr. Beltran’s professional association as a defendant. The defense objected, noting that, in Dr. Beltran’s answer, he had raised the plaintiffs failure to join Dr. Beltran’s professional association as an affirmative defense. The plaintiffs counsel insisted that, until Dr. Miraglia’s testimony at trial, he believed the agreement was with Dr. Beltran personally. The trial court permitted the amendment, with the caveat that the defendants would be permitted to amend the answer so as to raise a statute of limitations defense on behalf of the professional association.

At the conclusion of the trial, the trial court found in favor of the plaintiff and against the defendants on the theories of quantum meruit and/or unjust enrichment and awarded the plaintiff $53,260 in compensatory damages, which represented sums owed for office overhead expenses that had accumulated between June 2004 and June 2006.

At the close of the plaintiffs case, and again at the close of all the evidence, the defendants moved for an involuntary dismissal as to Dr. Beltran, individually, arguing that the evidence established that any agreement was made between the plaintiff and the professional association, not Dr. Beltran personally. The trial court’s denial of this motion is reviewed de novo by this court. See 3618 Lantana Rd. Partners, LLC v. Palm Beach Pain Mgmt., Inc., 57 So.3d 966, 968 (Fla. 4th DCA 2011).

No evidence was presented at trial indicating that Dr. Beltran personally entered into any agreements with the plaintiff regarding the splitting of office expenses and medical supplies, or the paying of plaintiff to use a portion of the plaintiffs office space. Dr. Miraglia himself testified the agreement was between “M.D. P.A.” and “M.D. P.A.”

A general principle of corporate law is that a corporation is a separate legal entity, distinct from the individual persons comprising them, and, absent some basis to pierce the corporate veil, there is no basis for imposing liability for corporate debts and obligations upon the individuals. See Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008). Three factors must be proven to “pierce the corporate veil” and hold an individual shareholder liable for the debts of the corporation:

“(1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation;
(2) the corporate form must have been used fraudulently or for an improper purpose; and
(3) the fraudulent or improper use of the corporate form caused injury to the claimant.”

Id. (quoting Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998)). Here, there was no evidence of wrongdoing that would support piercing the corporate veil. There was also no evidence that Dr. Beltran agreed to be personally liable for the debt.

In Gasparini, the court reversed the portion of the judgment holding Gasparini personally liable on an unjust enrichment theory since the agreement was made with International Trading, not Gasparini individually. 972 So.2d at 1055. The court noted that the law is clear that mere ownership of a corporation by a few shareholders, or even one shareholder, is an insufficient reason to pierce the corporate veil and, therefore, the mere fact that Gaspari-ni was a stockholder and officer of International Trading did not, without more, create personal liability. Id.; see also King 205, LLC v. Dick Pittman Roof Servs., Inc., 31 So.3d 242 (Fla. 5th DCA 2010) (reversing judgment against individual defendant where contract was with corporate defendant).

Here, while Dr. Miraglia testified he would have looked to Dr. Beltran personally for payment in the event Dr. Beltran’s P.A. failed to pay, there was no evidence of any actual agreement between the parties that Dr. Beltran, individually, would serve as a guarantor. Accordingly, a judgment against Dr. Beltran, individually, is not supported by the evidence.

Dr. Beltran next contends that the judgment against his P.A. must be reversed because the trial court found in favor of Dr. Miraglia only with respect to amounts due and owing from June 2004 through June 2006, and the statute of limitations had run as to such claims prior to the time of the plaintiffs November 2011, mid-trial amendment of his pleadings naming the P.A. as a party defendant. The issue of whether the claim is barred by the statute of limitations is a question of law subject to de novo review. See, e.g., Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (legal issues surrounding statutes of limitations reviewed de novo).

The trial court entered judgment in favor of the plaintiff based upon the unjust enrichment and/or quantum meruit claims for goods and services provided between June 2004 and June 2006. The relevant statute of limitations for quantum meruit or unjust enrichment claims is four years. See § 95.11(3)(k), Fla. Stat. (2011) (providing for four-year statute of limitations for “[a] legal or equitable action on a contract, obligation, or liability not founded on a written instrument”). Statutes of limitations on unjust enrichment or quantum meruit claims generally begin to run upon the occurrence of the event that created the uncompensated benefit in the defendant, i.e., the plaintiff performed the labor that benefitted the defendant or the defendant obtained the subject property or goods. See Davis v. Monahan, 832 So.2d 708 (Fla.2002) (holding unjust enrichment claim alleging misappropriation of funds by family members for transactions occurring from 1990 to 1992 barred by statute of limitations as complaint not filed until 1997); Swafford v. Schweitzer, 906 So.2d 1194 (Fla. 4th DCA 2005) (holding statute of limitations limited plaintiffs right to recover for improvements to real property to those improvements made within four years of filing of complaint); Matthews v. Matthews, 222 So.2d 282, 286 (Fla. 2d DCA 1969) (“[I]n quantum meruit [claim for services] and quantum valebant [claim for goods], the cause of action accrued when the services have been performed or the property transferred.”).

In this case, suit against Dr. Beltran’s P.A. was not commenced until the trial court’s November 7, 2011 ruling permitting the plaintiff to add Dr. Beltran’s P.A. as a party. Thus, unless the claim against the P.A. relates back to the filing of the original action in March of 2009, the statute of limitations bars any claims for services or goods received prior to November 7, 2007.

As a general rule, “[w]hen the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” See Fla. R. Civ. P. 1.190(c). This general rule does not apply to permit the addition of a new party unless there is a sufficient “identity of interest” such that there is no prejudice to the new party. See Rayner v. Aircraft Spruce-Advantage, Inc., 38 So.3d 817, 820 (Fla. 5th DCA 2010), rev. denied sub nom. Rayner v. Irwin Int'l, Inc., 64 So.3d 679 (Fla.2011). In Cabot v. Clearwater Construction Co., 89 So.2d 662, 663-64 (Fla.1956), the Florida Supreme Court explained the relation back doctrine as follows:

The general rule appears to be that whether an amendment of process or pleading changing the description of a party from a corporation to an individual or vice versa after the statute of limitations has run introduces a new party or new cause of action depends upon whether the mis-description is interpreted merely as a misnomer or defect in the characterization of the party or whether it is deemed an entire change of parties. If the former, the amendment relates back to the commencement of the action. If the latter, the amendment amounts to the institution of an entirely new action.

See also Graney v. Caduceus Props., LLC, 91 So.3d 220, 224-25 (Fla. 1st DCA 2012). Courts have refused to apply the “identity of interest” exception so as to allow the addition of a party to relate back where the plaintiffs failure to timely join the correct party was due to his own inexcusable neglect. See Garrido v. Markus, Winter & Spitale Law Firm, 358 So.2d 577, 583 (Fla. 3d DCA 1978).

In Garrido, the plaintiff originally filed an action for legal malpractice against the partnership law firm and later attempted to amend the complaint beyond the applicable statute of limitations to add and/or substitute the individual lawyers comprising the partnership as party defendants. Id. at 578. The court affirmed the trial court’s denial of the motion to substitute parties, finding that no “mistake” occurred and stated “[t]o permit a substitution at this point would be tantamount to introducing ‘new parties’ into the lawsuit and, ... such is not the nature of the ‘relation back’ doctrine.” Id. at 583; see also Frankowitz v. Propst, 489 So.2d 51, 52-53 (Fla. 4th DCA 1986) (holding treating physician did not have such identity of interests with the employer medical group and his co-practitioners such that amendment adding him related back to filing of original complaint).

Similarly, here, we find the plaintiff did not seek to add Dr. Beltran’s professional association to correct a misnomer or a defect in the characterization of the defendant, but rather to add an entirely new party. The claim against Dr. Beltran’s professional association was made in November 2011, when the trial court allowed the amendment during trial, and does not relate back to the March 2009 filing of the original complaint. Moreover, not only did the answer put the plaintiff on notice that Dr. Beltran’s professional association was a necessary party, the partial payments referenced in the plaintiffs complaint were drawn on the account of Dr. Beltran’s professional association.

We find the relation back doctrine does not apply to render the claim against the P.A. timely and, therefore, the four-year statute of limitations bars any claim for amounts incurred prior to November 7, 2007. The damages award in favor of the plaintiff represents sums for goods and services during the period from June 2004 through June 2006. Thus, the judgment in fayor of Dr. Beltran’s P.A. must also be reversed.

Having concluded that the judgment cannot stand against either Dr. Beltran, individually, or Dr. Beltran’s P.A., we reverse and remand with directions to the trial court to enter judgment in favor of the defendants. In light of our ruling, we need not address the remaining issues on appeal.

Reversed & Remanded.

POLEN and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEON F. COHN, M.D., P.A., Appellant, v. VISUAL HEALTH AND SURGICAL CENTER, INC., a Florida corporation, Antonio Bolet, individually, et. al., Appellees.
    Nos. 4D10-1116, 4D11-3359.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Scott M. Behren of the Behren Law Form, Weston, and Karen Spigler of the Law Firm of Karen Spigler, LLC, SW Ranches, for appellant.
    Jack R. Reiter, Thomas Meeks and Christopher B. Corts of Carlton Fields, Miami, for appellee.
   PER CURIAM.

Leon F. Cohn, M.D., P.A. (“Cohn”), appeals a final judgment entered upon a jury verdict in its favor on a breach of contract claim against Visual Health and Surgical Center, Inc. (“Visual Health”), and in favor of Visual Health on its “money had and received” claim. Cohn also appeals an order finding that Cohn was not entitled to fees and costs. We affirm the final judgment in all respects but reverse the order finding that Cohn was not entitled to fees and costs.

Dr. Cohn agreed to sell his ophthalmology practice to Visual Health. Pursuant to the agreement, Dr. Cohn would continue to practice medicine, but Visual Health would take over the operation and management of the practice. At the time of the sale, the parties simultaneously executed both an Asset Purchase Agreement (“APA”) as well as a Comprehensive Service Agreement (“CSA”). Under the terms of the APA, Visual Health agreed to buy the assets of the practice. Under the CSA, Visual Health agreed to manage and administer the practice. The APA contained a provision for prevailing party’s attorney’s fees; the CSA did not.

The relationship between the parties soured when Cohn’s practice failed to generate the kind of profits that both parties expected when they entered into the agreement. Ultimately, Cohn purchased the practice back from Visual Health. About two years later, Cohn filed suit against Visual Health for breach of contract, alleging mismanagement of the practice. Visual Health counterclaimed for breach of contract and later amended its counterclaim to include a claim for money had and received. The money had and received claim sought the return of excess funds Cohn allegedly received in advance against expected earnings. Visual Health offered to settle the claim with Cohn, but Cohn declined the offer. A trial followed, and the jury found that Visual Health had breached its contractual obligations to Cohn, but that Cohn was in possession of funds which, in good conscience, had to be returned to Visual Health.

Both parties moved for attorney’s fees after the final judgment was entered. Cohn claimed entitlement as the prevailing party under the contracts. Visual Health claimed entitlement pursuant to Florida’s Offer of Judgment Statute, section 768.79, Florida Statutes (1997). The trial court found that both parties had prevailed on their claims and held that both parties were entitled to any fees or costs for which they could establish a contractual or statutory basis. On rehearing, however, the trial court reversed its original order and held that Cohn was not entitled to attorney’s fees because the net judgment Cohn received was less than seventy-five percent of the offer of settlement proposed by Visual Health. This appeal followed.

At the outset, we agree with the trial court’s original finding that Cohn was entitled to prevailing party’s attorney’s fees on the breach of contract claim. The CSA and APA were executed by the same parties at the same time and referenced each other. Both documents dealt with the same overarching transaction and should be construed together as a single contract. The attorney’s fee provision in the APA was not expressly limited to a breach of the APA, but applied to any “dispute between the parties resulting] in litigation.” The attorney’s fee provision was thus part of the agreement between the parties. See Citicorp Real Estate, Inc. v. Ameripalms 6B GP, Inc., 633 So.2d 47, 49 (Fla. 3d DCA 1994) (“The law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.”); Popwell v. Abel, 226 So.2d 418, 421 (Fla. 4th DCA 1969) (“Where one instrument is given contemporaneously with another, stated simply, as part of the same transaction and each refers to each other, then they should be considered together in determining their meaning and effect.”).

Because Cohn prevailed on the breach of contract claim and the contract contained a provision awarding attorney’s fees to the prevailing party, we reverse and remand for the trial court to reconsider the issue of Cohn’s entitlement to fees after conducting an evidentiary hearing to determine the total net judgment, which shall include the amount of fees and taxable costs incurred by Cohn in litigating the breach of contract claim up to the date of the offer. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1074-75 (Fla.2006); see also White v. Steak & Ale of Fla., Inc., 816 So.2d 546, 551 (Fla.2002) (“Thus, in calculating the ‘judgment obtained’ for purposes of determining whether the party who made the offer is entitled to attorneys’ fees, the court must determine the total net judgment, which in-eludes the plaintiffs taxable costs up to the date of the offer, and, where applicable, the plaintiffs attorneys’ fees up to the date of the offer.”).

Although the trial court held that Cohn was the prevailing party on the breach of contract claim, the trial court also held that Visual Health was the prevailing party on its counterclaim for money had and received because its claim was separate and distinct from Cohn’s claim for breach of contract. “Florida law permits more than one prevailing party in a single lawsuit where each of the claims that support a fee award is ‘separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong.’ ” Fidelity Warranty Servs., Inc. v. Firstate Ins. Holdings, Inc., 98 So.3d 672, 677 (Fla. 4th DCA 2012) (quoting Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986), superseded by rule on other grounds as stated in E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449 (Fla. 3d DCA 2003)). Based upon the facts of this case, the trial court erred by finding that there was more than one prevailing party in this suit.

“The determination of whether multiple claims within a lawsuit are separate and distinct for purposes of attorney’s fees is a matter of law to be reviewed de novo.” Avatar Dev. Corp. v. DePani Const., Inc., 883 So.2d 344, 345 (Fla. 4th DCA 2004) (citing Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002)). “[T]he ‘logical relationship test’ is the yardstick for measuring whether a claim is compulsory.” Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992). A claim is logically related to the original claim if “the same aggregate of operative facts serves as the basis of both claims,” or “the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.” Id. (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981)).

“Generally, when an action for breach of contract contains alternative theories of liability for the same wrong, rather than separate and distinct claims, only one party can prevail in the same lawsuit.” Anglia, 830 So.2d at 171 (citing Lucite Ctr., Inc. v. Mercede, 606 So.2d 492, 493 (Fla. 4th DCA 1992); Reinhart v. Miller, 548 So.2d 1176, 1177 (Fla. 4th DCA 1989)). In this case, both parties relied upon “the same aggregate of operative facts” in proving their claims for economic losses. Al though Visual Health’s claim for money had and received arose outside of provisions contained in the APA and CSA, its claim was tied to the same facts that the parties relied upon in prosecuting and defending their causes of action for breach of contract.

“When one party loses in an action for breach of contract, the adverse party is the prevailing party.” Point E. Four Condo. Corp., Inc. v. Zevuloni & Assocs., Inc., 50 So.3d 687, 688 (Fla. 4th DCA 2010) (citing Scutti v. Daniel E. Adache & Assoc. Arch. P.A., 515 So.2d 1023, 1024 (Fla. 4th DCA 1987)). Notwithstanding Visual Health’s counterclaim in quasi-contract, the issue in this case was which party bore the blame for the medical practice’s decline. The jury found that Visual Health was responsible, thus making Cohn the prevailing party in this litigation. See Scutti, 515 So.2d at 1024.

Affirmed in part; Reversed in part; and Remanded.

MAY, C.J., TAYLOR and CONNER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Jessica TOME, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Appellee.
    No. 4D11-2255.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Andrew Harris of Burlington & Rocken-bach, P.A., West Palm Beach, and Edrick Barnes of Liggio Benrubi, West Palm Beach, for appellant.
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for ap-pellee.
   DAMOORGIAN, J.

Appellant, Jessica Tome (“Tome”), appeals the final summary judgment granted in favor of Appellee, State Farm Fire & Casualty Company (“State Farm”), arising from State Farm’s denial of automobile insurance coverage on the basis that Tome’s policy had been non-renewed. On appeal, Tome makes three arguments for reversal, all of which are meritless. We affirm.

The following facts are not in dispute. Tome insured her Dodge Durango with State Farm in April 2007, on the same policy that insured her husband’s Toyota Corolla. In August 2007, State Farm discovered that Tome’s husband’s driver’s license had been suspended and that he had been convicted of driving on a suspended or revoked license. State Farm sent Tome a Driver Exclusion Agreement to exclude her husband and the Corolla from the policy. In September, Tome received notice that her husband and the Corolla were to be non-renewed. At the end of 2007, Tome received another Driver Exclusion Agreement for the Durango, which she returned with the understanding that the Exclusion only applied to her husband. At about the same time, State Farm issued an insurance identification card for the Durango indicating that the policy had the effective date of January 1, 2008. There was no reference to the policy’s expiration date on the identification card, but the card indicated that it was only valid for one year after issuance. Other policy documentation indicated that the policy was in effect for a six-month term, running from November 1, 2007, to May 1, 2008.

On March 4, 2008, State Farm sent Tome a letter indicating that it was non-renewing the Durango policy as of May 1, 2008. State Farm cited the driving record of Tome’s husband. State Farm obtained a “Certificate of Mailing” addressed to Tome from the United States Postal Service indicating that the March 4th letter had been delivered to the post office, postage pre-paid. However, Tome contended that she never received notice of non-renewal.

On May 28, 2008, Tome’s Durango was stolen. Tome timely reported the theft to State Farm. State Farm denied coverage on the grounds that her policy had been non-renewed based on her husband’s driving record. According to State Farm’s internal policies, State Farm cannot “do driver exclusions on a spouse,” which precluded Tome from keeping her policy.

Tome filed suit alleging common law breach of contract, statutory breach of contract pursuant to section 627.728(4)(c), Florida Statutes, (2008), and promissory estoppel. State Farm responded by filing a motion for summary judgment which the trial court granted. This appeal followed.

“Summary Judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Our review is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).

Tome first argues that there are genuine issues of material fact as to whether State Farm provided proper notice that it had non-renewed her insurance policy. Section 627.728(5), Florida Statutes (2008), provides that “United States postal proof of mailing ... of notice of ... intention not to renew ... to the named insured at the address shown in the policy shall be sufficient proof of notice.” Once an insurer establishes that its notice of intention not to renew complied with subsection 627.728(5), “the insured’s evidence of nonreceipt is irrelevant.” Aries Ins. Co. v. Cayre, 785 So.2d 656, 658 (Fla. 3d DCA 2001). See Bankers Ins. Co. v. Pannunzio, 538 So.2d 61, 62 (Fla. 4th DCA 1989) (“[T]he official ‘United States Postal Service Certificate of Mailing’ introduced by appellant showing that the Notice of Intent was mailed to the insured at the address given by him prevails, as a matter of law, over the insured’s self-serving denial of receipt of this and other mailings.”) disapproved on other grounds, 624 So.2d 252 (Fla.1993). State Farm’s Certificate of Mailing was sufficient proof of notice as a matter of law. Tome’s only response was to deny receipt of the Notice of Intent. Failing any countervailing evidence that the Certificate of Mailing was defective, we are compelled to reject this argument. Aries Ins. Co., 785 So.2d at 658.

Next, we turn to Tome’s argument that summary judgment was improper because there were genuine issues of material fact regarding whether State Farm’s denial of coverage was arbitrary or capricious, contrary to section 627.728(4)(c), Florida Statutes. State Farm non-renewed the policy for the legitimate reason that it discovered that Tome’s husband’s driver’s license was suspended. See Lidsky v. State Farm Fire & Cas. Co., 604 So.2d 869, 871 (Fla. 3d DCA 1992) (“Where the insurer does not violate any statute or act arbitrarily or capriciously in refusing to renew an automobile insurance policy, there is no general duty to issue a new policy at the end of the policy period.”). State Farm presented un-rebutted evidence that it acted pursuant to its internal policy prohibiting driver exclusions on a spouse of an insured. Moreover, State Farm believed that it was legally bound to adhere to its policy and had acted consistently by non-renewing the Corolla policy. Based upon the foregoing, we hold that the trial court correctly concluded that State Farm did not act arbitrarily or capriciously in refusing to renew Tome’s policy.

Finally, Tome argues that the trial court erred in granting final summary judgment on the promissory estoppel claim. “ ‘The essential elements of estop-pel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.’ ” Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So.3d 89, 93 (Fla. 4th DCA 2009) (quoting Curci Village Condo. Ass’n v. Maria, 14 So.3d 1175, 1177 (Fla. 4th DCA 2009)). “[F]or the trial court to properly grant summary judgment on promissory estoppel, there must be an absence of disputed fact as to all three elements cited above.” FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla. 2d DCA 2005). In insurance law, this represents a “very narrow exception,” AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 n. 1 (Fla.1989), to the general rule that “equitable estoppel may be used to prevent a forfeiture of insurance coverage but not to create coverage where none exists.” Cummins v. Allstate Indem. Co., 732 So.2d 380, 382 (Fla. 4th DCA 1999).

Regarding the representation element, courts have required that the promise be definite, and when the promise is “ ‘entirely indefinite as to terms and time,”’ this is insufficient to support an estoppel claim. W.R. Grace & Co. v. Geodata Servs., Inc., 547 So.2d 919, 924 (Fla.1989) (quoting Hygema v. Markley, 137 Fla. 1, 187 So. 373, 380 (1939)). See also Prof'l Underwriters Ins. Co. v. Freytes & Sons Corp., 565 So.2d 900, 903 (Fla. 5th DCA 1990) (holding that when a representation was “that the insured had “what [coverage] it needed’ ... such a statement does not rise to the level of specificity required to be a ‘representation’ of liquor liability coverage”). Here, Tome’s only basis for the assertion that State Farm “represented” coverage was the Driver Exclusion Agreement. However, the Driver Exclusion Agreement, in and of itself, does not constitute a definite promise “as to terms and time” — the exclusion of certain coverages while the husband operated a vehicle was in no sense a promise that the policy would provide coverage that would extend beyond its expiration term. Therefore, Tome failed to present a genuine issue of material fact as to this element.

Tome also fails to raise a genuine issue of material fact regarding the reasonableness of her reliance on the Driver Exclusion Agreement. Tome could not have reasonably relied on the exclusion as a promise that the policy would extend beyond the policy’s stated expiration date, especially after State Farm sent non-renewal notices for the two policies. This is further supported by the preceding non-renewal of the Corolla policy. Thus, having failed to raise an issue of fact as to these elements, and without raising argument as to the third element — a detrimental change in position caused by representation and reliance thereon — Tome’s arguments for reversal fail. Accordingly, we affirm.

Affimed.

GROSS, J., and HANZMAN, MICHAEL, Associate Judge, concur.


text:
    Paula KUNSMAN, Appellant, v. Joel WALL, Appellee.
    No. 4D11-3285.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Paula Kunsman, Pompano Beach, pro se.
    Michael R. Bass of Michael R. Bass, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Paula Kunsman appeals the trial court’s order denying her exceptions to a general magistrate’s report on her motions for contempt and enforcement and on Joel Wall’s motion for enforcement and amendment to his motion for enforcement and for other relief. Kunsman raises twenty-two points of error in the magistrate’s report. We affirm on all issues raised except the following: ■

1) The magistrate awarded Wall $1010 in attorney’s fees and costs pursuant to sections 57.105(1) and (2) and section 61.16, Florida Statutes, (2011), holding Kunsman’s actions forced Wall to file a motion to compel delivery of a quit-claim deed for her share of the marital home as required by the marital settlement agreement. Wall sought sanctions for having to file a motion to enforce the final judgment, but did not pleaded the statute under which he sought fees in his original motion. Although Wall plead sections 57.105 and 61.16 as a basis for his entitlement to fees in his amendment to his motion to enforce, he sought fees only for Kunsman’s filing of frivolous motions in the amendment, not for her actions in refusing to sign the deed. The magistrate erred in awarding fees because Wall did not plead the basis for his entitlement to fees in his original motion to enforce. See Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991). Further, in regard to section 57.105 fees, Wall failed to provide Kunsman with twenty-one days notice as required by section 57.105(4), Florida Statutes. Therefore, we strike the award of attorney’s fees.

2) The magistrate held two withdrawals made by Wall from joint checking accounts, totaling $4600, were used to pay marital obligations and thus were not subject to equitable distribution. At trial, Wall presented evidence that $1400 was used to pay for the minor child’s attorney in a criminal case, and $728.60 was spent on tuition for an adult child. Wall’s attorney then explained that the remainder of the money was spent by Wall on miscellaneous family expenses. We find no error in determining the $1400 was spent on marital obligations.

Regarding the payment of tuition to an adult child, the marital settlement agreements or temporary support order did not require Wall to pay the adult sons tuition. “Any duty a parent has to pay an adult child’s college expenses is moral rather than legal.” Riera v. Riera, 86 So.3d 1163, 1167 (Fla. 3d DCA 2012) (citing Grapin v. Grapin, 450 So.2d 853, 854 (Fla.1984)). This court has previously held that “since a parent has no obligation to support a grown child, any expenses associated with that child are not properly considered in awarding alimony.” Coniglio v. Coniglio, 969 So.2d 579, 580 (Fla. 4th DCA 2007). It follows that since there is no legal obligation to support a grown child (absent a contractual arrangement not present here), Wall’s expenditure of marital funds on the adult child should not have been considered a marital obligation, and the $728.60 in marital funds spent by Wall should be equitably divided.

Regarding the remaining $2471.40 for miscellaneous family expenses, the only evidence showing how these marital funds were spent was argument of counsel, “argument of counsel does not constitute evidence.” Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005). Thus, we remand for the trial court to equitably divide the $728.60 spent on the adult son’s tuition and the $2471.40 spent on miscellaneous family expenses.

3) The magistrate awarded Kuns-man half of Wall’s state pension, DROP (Deferred Retirement Option Plan) fund, and sick leave based on their value on the day the petition for dissolution was filed, but ruled Kunsman is not entitled to receive these monies until Wall retires and the monies are disbursed to him. Kuns-man argues the magistrate failed to award interest on these monies from the date of the petition for dissolution until Wall retires. We agree only that Kunsman is entitled to accumulated interest and cost-of-living adjustments on her share of the DROP fund when it is disbursed. Russell v. Russell, 922 So.2d 1097, 1099 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So.2d 735, 738 (Fla. 4th DCA 2004). We remand for the trial court to correct the DROP fund award to include interest and cost-of-living adjustments.

Affirmed in part, reversed in part, and remanded.

POLEN, GROSS and CONNER, JJ„ concur.

      . A parent may be obligated to pay an adult child's college expenses pursuant to a marital settlement agreement. Such an obligation is not child support, but a contractual obligation. Riera, 86 So.3d at 1168 (citing Sutton v. Sutton, 701 So.2d 370, 372 (Fla. 2d DCA 1997)).


author: CIKLIN, J.

text:
    Patrick J. O’MEARA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4031.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Patrick O’Meara appeals his conviction for aggravated battery, arguing that using a pistol as a bludgeon does not qualify as use of a deadly weapon for purposes of the aggravated battery statute. We disagree and find that when a person commits a battery by using a firearm as a bludgeon, the person uses a deadly weapon within the meaning of the aggravated battery statute.

The state charged O’Meara by information with one count of home invasion robbery with a firearm and one count of aggravated battery with a firearm. The case proceeded to a trial by jury.

At trial, the victim testified that she was an acquaintance of O’Meara’s. On the night of the incident, O’Meara and his girlfriend (also a friend of the victim) visited the victim’s home. The victim, who suffers from several health issues, was lying on a couch. While she spoke with O’Meara and his girlfriend, the victim took a prescription pain pill. O’Meara asked the victim for one of the phis, and the victim refused.

O’Meara then produced a .380 caliber handgun and pointed it at the victim’s head, and said to the victim, “You caused this on yourself.” O’Meara then struck the victim’s forehead with the firearm, causing a small bruise and laceration near the victim’s left eye. At the same moment O’Meara struck the victim’s face, the gun fired. The bullet did not strike anyone and passed through the couch and into a wall. O’Meara or his girlfriend then grabbed the victim’s purse, which contained money and her prescription pain medications, and the pair left the home.

O’Meara’s counsel moved for a judgment of acquittal on the aggravated battery charge, arguing that striking a person with a firearm as a bludgeon, without anyone being actually struck by its projectile, was insufficient to meet the requirement that a person “[u]ses a deadly weapon” under the aggravated battery statute. § 784.045(l)(a)2, Fla. Stat. (2008). The court denied O’Meara’s motion.

At the close of trial, the jury returned a verdict of guilty for aggravated battery with a firearm, and a verdict of not guilty for home invasion robbery. The jury also found that O’Meara actually possessed and discharged a firearm during the commission of the aggravated battery, and the court sentenced him to the twenty-year minimum mandatory term of imprisonment pursuant to section 775.087(2), Florida Statutes (2008).

On appeal, O’Meara argues that the trial court erred by denying his motion for judgment of acquittal on the aggravated battery charge. “A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo.... ” State v. Konegen, 18 So.3d 697, 698 (Fla. 4th DCA 2009) (citation omitted).

O’Meara was convicted of aggravated battery under section 784.045(l)(a), Florida Statutes (2008), which states:

A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.

In State v. Williams, 10 So.3d 1172, 1175 (Fla. 3d DCA 2009) the Third District determined that the use of a firearm as a bludgeon in a battery constitutes aggravated battery. The defendant struck the victim’s right temple with a firearm and the state charged him with aggravated battery pursuant to subsection 2 of section 784.045(l)(a) (by the use of a deadly weapon). Id. at 1173. The defendant moved to dismiss the aggravated battery charge, arguing that the use of a firearm as a bludgeon was not a “deadly weapon” within the meaning of the statute. Id. The trial court dismissed the aggravated battery charge and reduced the charge to simple battery. Id. at 1174. The state appealed, and the Third District reversed. The court noted that “[a] firearm is, by definition, a deadly weapon because it is designed to expel a projectile by the action of an explosive which is likely to cause death or great bodily injury.” Id. The court found that when a firearm is used as a bludgeon to strike a person, the firearm is still a deadly weapon. See id. (citing Riggins v. State, 557 So.2d 185 (Fla. 3d DCA 1990)). The Third District remanded the case with instructions to the trial court to reinstate the aggravated battery charge. Id.

We agree with the Williams court and accordingly find that the trial court properly denied O’Meara’s motion for judgment of acquittal.

Our holding is entirely consistent with the legislative goals of the aggravated battery statute: “[T]he legislative intent [of the aggravated battery statute is] increasing punishment as the degree of actual injury or 'potential for serious injury becomes great..." Lareau v. State, 573 So.2d 813, 815 (Fla.1991) (emphasis added). As the instant case dramatically shows, the risk of great bodily harm or death greatly increases when a person commits a battery with a deadly weapon. Had O’Meara’s .380 caliber firearm been pointed in a slightly different direction, the discharged bullet could have hit one of the three persons in the room.

O’Meara contends that his motion for judgment of acquittal should have been granted under this court’s en banc decision in Severance v. State, 972 So.2d 931 (Fla. 4th DCA 2007). In Severance, the defendant punched the victim and then grabbed a knife and held it near the victim’s throat while choking the victim with his other hand. Id. at 932. The knife never came in contact with the victim. The issue before this court was whether the “[u]ses a deadly weapon” prong of the aggravated battery statute requires an actual touching with the deadly weapon to commit the battery.

The Severance majority consisting of Judges Shahood, Gunther, Warner, Polen, Farmer, and Gross found that “the plain meaning [of the aggravated battery statute] is that if a deadly weapon is used in any manner the battery is aggravated.” Id. at 934. This court held that the defendant’s actions were sufficient to qualify as aggravated battery under the statute and that there was no requirement that the weapon actually contact the victim. Id.

The facts of Severance produced several concurring and dissenting opinions. In a concurring opinion, Judge Farmer wrote that the “only possible meaning [of the aggravated battery statute] is that the deadly weapon be applied or employed in any way assisting the commission of a battery.” Id. at 935 (Farmer, J., concurring). Judge Farmer applied the plain meaning of “uses,” which would not require that the deadly weapon contact the victim. Id. at 938.

Judge May opined that “the weapon must be used in such a way as to assist in accomplishing the battery,” and urged that the majority’s holding was too broad because it could allow a conviction for aggravated battery when the weapon was not actually used in the commission of the battery. Id. at 939-40 (May, J., concurring in part and dissenting in part) (citation omitted). Judge Stevenson agreed with Judge May’s opinion, and wrote separately to distinguish contact from impact: “Simply stated, the deadly weapon must be physically involved with the impact which constitutes the unwanted touching,” but contact between the weapon and the victim was not required. Id. at 939 (Stevenson, J., concurring in part and dissenting in part).

In a dissenting opinion, Judge Klein asserted that battery requires an unwanted touching, and that battery with a deadly weapon would require that the deadly weapon contact the victim. Id. at 940-41 (Klein, J., dissenting). Judge Klein also argued that “[i]f this statute is susceptible of different interpretations ... our lenity statute ... requires us to apply the interpretation favorable to the defendant.” Id. at 941.

Under the application of any of the Severance opinions, we find O’Meara’s actions constituted an aggravated battery. In this case, the use of the deadly weapon to pistol whip the victim is by definition contact with the victim.

Accordingly, we affirm the trial court’s denial of O’Meara’s motion for judgment of acquittal. We affirm the remaining issues of the appeal without comment.

Affirmed.

STEVENSON and GERBER, JJ„ concur.

      . The statute provides:
      Any person who is convicted of a felony or an attempt to commit a felony [enumerated in a list that includes aggravated battery], regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a ‘firearm’ ... shall be sentenced to a minimum term of imprisonment of 20 years.
      § 775.087(2)(a)2, Fla. Stat. (2008); see Mendenhall v. State, 48 So.3d 740, 743 (Fla.2010) ("The 10-20-Life statute provides for mandatory minimum sentences for certain enumerated offenses ... where a defendant ... [who] discharges a firearm [receives a] minimum term of imprisonment of twenty years .... ” (citation omitted)).

      . Because the jury found that the battery did not cause great bodily harm to the victim, its finding of guilt was based on his "[u]se [of] a deadly weapon.”


text:
    Olga GARAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-51.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    V.J. (Jimmy) Benincasa, Vero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Joseph v. State, 107 So.3d 492 (Fla. 4th DCA 2013).

STEVENSON, TAYLOR and DAMOORGIAN, JJ., concur.


author: POLEN, J.

text:
    Jesse THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4171.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.

      Michael R. Hanrahan of Michael R. Hanrahan, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

POLEN, J.

We deny defendant’s motion for rehearing, but grant his motion to issue a written opinion. The defendant, Jesse Thomas, appealed his convictions and sentences for the following crimes: racketeering; conspiracy to commit racketeering; two counts of possession of marijuana with intent to sell; possession of paraphernalia; possession of forged notes, bills, checks or drafts; and resisting without violence. He has argued that the trial court erred in: (1) denying his motion to dismiss when the court found that the Office of the Statewide Prosecutor (OSP) had jurisdiction to prosecute the case; (2) denying his motion for judgment of acquittal; and (3) using a non-specific verdict form. We have considered all of the issues raised and are not persuaded by the arguments. Each will be addressed in turn.

First, the OSP properly had jurisdiction because the offenses the defendant was tried for were sufficiently alleged to be part of a related transaction and connected to an organized criminal conspiracy involving predicate acts committed by the defendant and his codefendants and affected two or more judicial circuits. Thus, the OSP had jurisdiction over him despite the fact that his predicate acts had physically taken place in Palm Beach County. See Carbajal v. State, 75 So.3d 258, 261-62 (Fla.2011); § 16.56(1)(a), Fla. Stat. (2008).

Second, the record contains sufficient evidence to prove that: (1) Top 6 was an enterprise; (2) the defendant was asso-dated with that enterprise; (3) he committed the predicate acts; and (4) the predicate acts were connected to the enterprise. See Vargas v. State, 34 So.3d 44, 47-48 (Fla. 4th DCA 2010); see also § 895.03, Fla. Stat. (2008). More than one witness testified that Top 6 had a common purpose of selling drugs and committing acts of violence on an ongoing basis. Likewise, despite the defendant’s argument that two of the State’s witnesses testified that he was not an actual member, the State presented sufficient evidence that he was. See Strouse v. State, 932 So.2d 326, 328 (Fla. 4th DCA 2006) (a single witness’s testimony, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction) (citation omitted). Thus, the trial court properly denied the defendant’s motion for judgment of acquittal and submitted the case to the jury.

Finally, we conclude that there was no fundamental error in the trial court’s use of the verdict form as the defendant claims. He was charged with one count of racketeering and one count of conspiracy to commit the same, and the State presented evidence supporting only those counts. He was also tried for four additional crimes, each of which was listed as a predicate incident. He was ultimately convicted of each of those crimes. Therefore, it is clear from those verdict forms that the jury unanimously agreed that defendant had committed at least four of the predicate offenses — offenses which all stemmed from the raid on his home in execution of the arrest and search warrants.

Rehearing Denied.

GROSS, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    David GOLFE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-3579, 4D12-4066, 4D12-4124.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      David Golfe, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We consolidate these three cases for resolution by the same panel and for record and opinion purposes. We affirm the trial court’s denial of appellant’s frivolous postconviction challenges and determine that the trial court did not abuse its discretion in imposing sanctions.

In 2007, appellant entered a negotiated no contest plea to various drug offenses in two underlying cases in exchange for an eight-year sentence. Appellant failed to appear at sentencing, and pursuant to the terms of the plea, he was sentenced in absentia to sixty years in prison. He subsequently turned himself in and moved to mitigate his sentence. In October 2007, the court mitigated his sentence to fifteen years in prison. He did not appeal.

Since then, appellant has filed a series of meritless postconviction challenges. In February 2009, he filed a Rule 3.850 motion claiming that his sentences could not exceed the negotiated eight-year term. The court denied the motion because appellant’s appearance at sentencing was an express condition of his plea. During the plea hearing, the court accepted the plea “on one condition”:

THE COURT: That you appear in court on August 30, 2007 at 1:15 p.m. to be sentenced. They’ll give you a card here to your right with that date and time on it. If you fail to appear on that day at that time, I reserve the right to sentence you in absentia which means I’ll sentence you without you being here and I reserve the right to sentence you to any lawful sentence you could receive, including up to the maximum on each of [sic] you fail to appear. Do you understand—
MR. GOLFE: Yes.

Appellant appealed the denial of this motion and this court per curiam affirmed. Golfe v. State, 67 So.3d 219 (Fla. 4th DCA 2011).

In May 2011, appellant filed a motion to withdraw plea that was stricken. Appellant appealed, but ultimately voluntarily dismissed that appeal in case number 4D11-2678.

On August 9, 2011, appellant filed a Rule 3.800(a) motion to correct illegal sentence that attempted to challenge his convictions on double jeopardy grounds. That motion was denied as procedurally barred and affirmed on appeal. Golfe v. State, 96 So.3d 906 (Fla. 4th DCA 2012).

On August 23, 2011, appellant filed a procedurally barred petition for writ of habeas corpus in the circuit court attempting to collaterally challenge his convictions in these cases. See Fla. R. Crim. P. 3.850(0; Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (holding that a petition for writ of habeas corpus may not be used as substitute for a Rule 3.850 motion). The circuit court properly transferred the petition to the trial court to proceed as a postconviction motion under Rule 3.850.

The petition claimed that the arrest affidavit was hearsay and that the prosecutor committed perjury when filing the information in 2006 because the prosecutor had allegedly not received sworn testimony'from a material witness. It is well-established that such a claim provides no basis for relief. Sears v. State, 123 So.3d 1160, 2013 WL 692432 (Fla. 4th DCA Feb. 27, 2013); Collins v. State, 97 So.3d 305, 306 (Fla. 4th DCA 2012); Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012); McCutcheon v. State, 44 So.3d 156, 160 (Fla. 4th DCA 2010); Logan v. State, 1 So.3d 1253, 1254-55 (Fla. 4th DCA 2009). The court denied the motion and cautioned appellant about sanctions for frivolous filing.

After the admonition, on August 23, 2012, appellant filed two more post-conviction motions. In an untimely and successive Rule 3.850 motion, appellant repeated the frivolous claim that the information was not properly verified. Grounds 1, 2, 3, and 5 were all founded on this contention. In Ground 4, he claimed that counsel could not stipulate to the factual basis for his pleas, and in Grounds 6 and 7, he alleged that the judge could not initiate a plea negotiation. Appellant argued that this motion was timely because he had filed a motion for rehearing in 4D11-3607 where he had appealed the denial of his prior Rule 3.800(a) motion. The motion was frivolous and a gross abuse of postconviction relief procedure.

Tn the Rule 3.800(a) motion that he filed on the same day, he claimed that the judge was required to sentence him within the guidelines range and could not exceed the eight-year negotiated sentence. Appellant committed his offenses in 2006 and was sentenced under the Criminal Punishment Code. The court could sentence him to the statutory maximum and was not required to provide departure reasons.

The court denied these motions and issued an order to show cause why appellant should not be prohibited from filing any further pro se challenges to his convictions and sentences in these cases. After considering appellant’s response, the court imposed the sanction.

In these three consolidated cases, appellant appeals the denial of his procedurally barred petition for habeas corpus, the denial of his untimely, successive, and frivolous Rule 3.850 and Rule 3.800(a) motions, and the order imposing sanctions.

We affirm all three orders. Appellant’s postconviction challenges were frivolous. Appellant has abused postconviction relief procedures. The trial court followed State v. Spencer, 751 So.2d 47 (Fla.1999), and afforded appellant an opportunity to be heard before imposing sanctions. The court did not abuse its discretion in determining that sanctions were appropriate. Abuse of postconviction relief process interferes with the ability of courts to consider legitimate claims, and damages the remedy for others. McCutcheon, 44 So.3d at 161.

We direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures which may include forfeiture of gain time. §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2012). See Marc v. State, 46 So.3d 1045, 1046 (Fla. 4th DCA 2010).

With this opinion, we are issuing an order requiring appellant to show cause why this court should not impose the sanction of no longer accepting his pro se filings.

Affirmed. Appellant referred to prison officials. An order to show cause why sanctions should not be imposed shall issue.

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


text:
    Raymond GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4341.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Raymond Grant, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Tukes v. State, 115 So.3d 1014 (Fla. 4th DCA 2013) (citing Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012), and Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012)); see also Medina v. State, 690 So.2d 1241, 1249 (Fla.1997) (constitutionality of statute improper subject of Rule 3.850 motion).

Based on appellant’s history of litigating legally frivolous post-conviction claims in this court, the clerk is hereby directed to send a certified copy of this opinion to the appropriate institution for disciplinary proceedings. § 944.279(1), Fla. Stat. (2012); Sears v. State, 123 So.3d 1160 (Fla. 4th DCA 2013). Appellant is cautioned that any further frivolous or malicious filings will result in this court imposing the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

WARNER, GROSS and GERBER,'JJ., concur.


author: GERBER, J.

text:
    Ronald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4237.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Jonathan R. Kaplan and Richard G. Lu-bin of Richard G. Lubin, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his four consecutive minimum mandatory twenty-year sentences on four counts of aggravated assault with a firearm resulting from one criminal episode. He argues the trial court erred in finding that it was required to impose consecutive sentences pursuant to section 775.087(2)(d), Florida Statutes (2008), which provides:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (2008) (emphasis added).

Applying the plain language of section 775.087(2)(d), as interpreted by our supreme court in State v. Sousa, 903 So.2d 923 (Fla.2005), we conclude that the trial court was required to impose consecutive sentences. Therefore, we affirm. However, because this issue likely will recur statewide, and because our supreme court has not addressed whether consecutive sentences are required under section 775.087(2)(d), we certify the following question to be of great public importance:

Does section 775.087(2)(d)’s statement that “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense” require consecutive sentences when the sentences arise from one criminal episode?

This certified question arises from the following history of the case. Four men were outside their home when they exchanged words with the defendant. The defendant pulled a gun, pointed it at the men, and then fired the gun into the air multiple times, causing the men to run inside their home.

The state charged the defendant by information with four counts of aggravated assault with a firearm, during the course of which the defendant actually possessed and discharged a firearm. The four counts corresponded with each of the four victims.

The jury found the defendant guilty as charged on all four counts. The- jury also specifically found that the defendant actually possessed and discharged a firearm on all four counts.

At sentencing, the court first recognized that each count carried a minimum mandatory twenty-year sentence. See § 775.087(2)(a)2„ Fla. Stat. (2008) (“Any person who is convicted of a felony ... listed in sub-subparagraphs (a)l.a.-q. [including aggravated assault] ... and during the course of the commission of the felony such person discharged a ‘firearm’ ... shall be sentenced to a minimum term of imprisonment of 20 years.”).

The court then heard the parties’ sentencing recommendations. The state recommended that the court impose consecutive sentences. The defendant recommended that the court impose concurrent sentences. The defendant argued that consecutive sentences were not required. In support, the defendant cited State v. Christian, 692 So.2d 889 (Fla.1997), where our supreme court held: “As a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim.” Id. at 890 (emphasis added; footnotes omitted).

The state replied that section 775.087(2)(d), which the legislature added in 1999 after Christian, required consecutive sentences. The state also cited Scott v. State, 42 So.3d 923 (Fla. 2d DCA 2010), where the second district held that under section 775.087(2)(d), a trial court could impose consecutive sentences upon a defendant who sprayed gunfire at multiple victims in a single episode but did not strike anyone.

The trial court agreed with the state’s recommendation to impose consecutive sentences. The court reasoned:

Given the language of [section 775.087](2)(d), as well as this Scott opinion from the [second district], I believe that ... it’s not a permissible stacking situation, it’s a mandatory stacking situation. Pre-amendment, it would appear that it would have been merely permissible. But again, in this amendment to the statute, and the language in the Scott opinion, it appears to be mandatory.

The court then sentenced the defendant to the four consecutive minimum mandatory twenty-year sentences on the four counts of aggravated assault with a firearm.

The defendant filed a notice of appeal. While the appeal was pending, the defendant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error. The motion raised two grounds.

First, the defendant argued that the trial court misinterpreted Scott as requiring consecutive sentences. According to the defendant, Scott used language implying that the trial court had the discretion to impose either consecutive or concurrent sentences. The defendant quoted the following language from Scott:

There is no dispute that the crimes in this case arose from a single criminal episode and that [the defendant] did not move during the entire duration of the incident. But the issue before us is whether the fact that [the defendant’s] conduct threatened multiple victims allows stacking of the mandatory minimum portions of his sentences.

42 So.3d at 924-25 (emphasis added).

Second, the defendant argued that section 775.087(2)(d)’s last clause, requiring consecutive sentences “for any other felony offense,” refers to an offense arising from a separate criminal episode, rather than an offense arising from the same criminal episode. To support that argument, the defendant cited Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002), and Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). Those cases held that “on the face of [section 775.087(2)(d) ], the reference to ‘any other’ felony refers ... only to another separate crime, rather than those involved in a single prosecution.” Stafford, 818 So.2d at 694 (citation omitted); Mondesir, 814 So.2d at 1173 (footnote and emphasis omitted). To support that holding, those courts also relied upon section 775.082(2)(d)’s accompanying legislative staff analysis:

Consecutive Sentences
The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count, and the court is required to impose the minimum mandatory sentences required by the bill consecutive to any other term of imprisonment imposed for any other felony offense. This provision does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other.

Fla. House of Reps. Comm, on Crime & Punishment, Final Analysis, CS/CS/HB 113 (SB 194) (emphasis added).

A successor judge heard the defendant’s motion to correct sentencing error. That judge denied the motion orally and by written order. The order stated, in pertinent part: “The language, in [section 775.087(2)(d) ], although ambiguous, seems to suggest that the sentencing court is required to impose consecutive sentences under these circumstances.”

The defendant then resumed this appeal, supplementing his argument with his motion to correct sentencing error and the successor judge’s order denying that motion. He argues both judges erred in finding that they were required to impose consecutive sentences pursuant to section 775.087(2)(d). The defendant’s briefs essentially mirror the arguments which the defendant raised below. Our review is de novo. See Johnson v. State, 78 So.3d 1305, 1310 (Fla.2012) (“Judicial interpretations of statutes are pure questions of law subject to de novo review.”).

Applying the plain language of section 775.087(2)(d), as interpreted by our supreme court in State v. Sousa, 903 So.2d 923 (Fla.2005), we conclude that the trial court was required to impose consecutive sentences.

To support our conclusion, we first provide a detailed recitation of Sousa before explaining our reasoning in this case.

In Sousa, the defendant shot at three people during one criminal episode. Two of the people were struck. A jury convicted the defendant of two counts of attempted murder with a firearm and one count of aggravated assault with a firearm. The trial court imposed three consecutive sentences: fifty years of imprisonment with a twenty-five year mandatory minimum term for each of the second-degree murder convictions, and five years of imprisonment with a three-year mandatory minimum term for the aggravated assault conviction.

The second district reversed the consecutive sentences, holding that section 775.087(2)(d) did not “provide the legislative authorization necessary to require consecutive sentencing.” Sousa v. State (“Sousa I”), 868 So.2d 538, 540 (Fla. 2d DCA 2003). To support that holding, the second district agreed with Mondesir that section 775.087(2)(d)’s last clause, requiring consecutive sentences “for any other felony offense,” means that “sentences received pursuant to section 775.087(2)(d) must only be consecutive to other felony sentences not subject to section 775.087(2)(d)." Sousa I, 868 So.2d at 539 (emphasis added) (citing Mondesir, 814 So.2d at 1178). After expressing this agreement with Mondesir, the second district acknowledged that the legislative staff analysis upon which Mondesir relied “appears to contrast with the wording of the statute.” Sousa I, 868 So.2d at 540. However, the second district agreed that Mondesir “appropriately looked to legislative history to clear up confusion surrounding this statute.” Id. at 540 n. 1 (citation omitted).

Our supreme court accepted jurisdiction to review Sousa I. State v. Sousa (“Sousa II”), 903 So.2d 923 (Fla.2005). According to the supreme court, Sousa I was in conflict with its holding in Christian that “a trial court did have the authority to impose consecutive mandatory minimum sentences where a gun was fired at and injured multiple victims.” Sousa II, 903 So.2d at 924 (emphasis added). The supreme court later characterized Christian as recognizing that “consecutive mandatory minimum sentences are permissible when a defendant shoots at multiple victims.” Sousa II, 903 So.2d at 926 (emphasis added).

Upon consideration of Christian and other cases, Sousa II, 903 So.2d at 924-26, the supreme court quashed Sousa I and disapproved Mondesir. Sousa II, 903 So.2d at 928. The court reasoned:

We do not agree with the reasoning of the Third District in Mondesir to the extent it construes the statute to mean that the “any other” language only refers to crimes which took place at different times. We find nothing in the statutory language which supports that construction of the statute. The statute’s plain language does not state that, nor do we find the language of the statute to be ambiguous.
In this case, section 775.087(2)(d) states that “[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” The Second District, in following the holding of Mondesir, construed this provision to hold that a trial court is precluded from imposing consecutive mandatory minimum sentences unless the other felony offenses occurred during a different criminal episode. The Second District’s decision does not apply the plain language of the statute....
... As [the defendant’s] consecutive mandatory minimum sentences were proper under these circumstances, we remand with instructions to reinstate the trial judge’s imposition of consecutive sentences.

Id. at 927-28 (emphasis added; internal citations and quotations omitted).

Sousa II thus answered the question of whether consecutive mandatory minimum sentences are permissible under section 775.087(2)(d), even if the “other felony offense[s]” fall under section 775.087’s mandatory minimum provisions and occur during the same criminal episode. Sousa II left unanswered the question of whether consecutive mandatory minimum sentences are required by section 775.087(2)(d) under the same circumstances.

We answer that question “yes” after applying the plain language of section 775.087(2)(d), as interpreted by the supreme court in Sousa II. Section 775.087(2)(d)’s last clause states: “The court shall impose any term of imprisonment provided for in this subsection consecutively. to any other term of imprisonment imposed for any other felony offense.” (emphasis added). The supreme court held in Sousa II that “any other felony offense” may include offenses falling under section 775.087(2)(a)’s mandatory minimum provisions and occurring during the same criminal episode. Thus, when a defendant is convicted of such offenses, as occurred in this case, the word “shall” prefacing section 775.087(2)(d)’s last clause requires that a court impose consecutive sentences for each of those offenses. See Sanders v. City of Orlando, 997 So.2d 1089, 1095 (Fla.2008) (“The word ‘shall’ is mandatory in nature.”) (citation omitted).

The defendant argues that such an interpretation of section 775.087(2)(d)’s last clause misapplies Sousa II. According to the defendant, if such an interpretation were correct, then the supreme court in Sousa II could have held that consecutive sentences are not only permissible for offenses falling under section 775.087’s mandatory minimum provisions and occurring during the same criminal episode; such sentences are required. That argument is not persuasive. The issue before the supreme court in Sousa II was whether consecutive sentences are permissible, not whether such sentences are required. Our certified question now presents the latter issue to the supreme court.

The defendant also argues that such an interpretation of section 775.087(2)(d)’s last clause conflicts with our holding in Arutyunyan v. State, 863 So.2d 410 (Fla. 4th DCA 2003). There, we faced the same issue as in this case, that is, whether consecutive sentences are required for offenses falling under section 775.087(2)’s mandatory minimum provisions and occurring during the same criminal episode. Id. at 412. We held that such sentences are not required pursuant to Mondesir’s and Stafford’s holdings that “the reference to ‘any other ’ felony refers ... only to another separate crime, rather than those involved in a single prosecution.” Arutyunyan, 863 So.2d at 412 (quoting Mondesir, 814 So.2d at 1173, and citing Stafford, 818 So.2d at 694-95). Sousa II’s later disapproval of Mondesir’s holding implicitly rejected our reasoning in Arutyunyan. Because Arutyunyan conflicts with today’s decision, we recede from Arutyunyan.

In reaching our conclusion, we note that the supreme court in Sousa II did not address our sister courts’ reliance upon section 775.082(2)(d)’s accompanying legislative staff analysis advising that the statute “does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other.” Fla. House of Reps. Comm, on Crime & Punishment, Final Analysis, CS/CS/HB 113 (SB 194). We do not rely upon the staff analysis. As the second district acknowledged in Sousa I, the legislative staff analysis “appears to contrast with the wording of the statute.” 868 So.2d at 540.

Based on the foregoing, we affirm the defendant’s four consecutive minimum mandatory twenty-year sentences and certify the following question to be of great public importance:

Does section 775.087(2)(d)’s statement that “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense” require consecutive sentences when the sentences arise from one criminal episode?

Affirmed; question certified.

MAY, C.J., WARNER, POLEN, STEVENSON, GROSS, TAYLOR, DAMOORGIAN, CIKLIN, LEVINE, and CONNER, JJ., concur.

      . In reaching our conclusion, we also have come to recognize the need to clarify a statement from one of our recent decisions, Jean-Michel v. State, 96 So.3d 1043 (Fla. 4th DCA 2012). There, we stated: "Sousa [II] held that 10-20-Life sentences involving multiple victims must be served consecutively to each other, in accordance with the statutory mandate.” Id. at 1046. Sousa II did not expressly state such a holding, although we recognize such a holding in today’s opinion.


author: COX, JACK S., Associate Judge.

text:
    Christos N. KRITIKOS, an individual, and Jupiter Holding Co., LLC, Appellants, v. John T. ANDERSEN, an individual, and John T. Andersen d/b/a Andersen Builders, ARCS Construction Services, Inc., and Peter Gluck, Appellees.
    Nos. 4D11-2575, 4D11-43.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellants.
    Thomas A. Berger of Boyd & Jenerette, Fort Lauderdale, and John P. Seiler, Seiler, Sautter, Zaden, Rimes & Weihe, Wilton Manors, for appellees, John T. Andersen, an individual, and John T. Andersen, d/b/a Andersen Builders.
   COX, JACK S., Associate Judge.

Appellants, Christos N. Kritikos and Jupiter Holding Co., LLC, appeal the final judgment of the trial court entered in favor of the Appellee, Andersen Builders, awarding damages based upon a jury verdict and foreclosing on a construction lien pursuant to Chapter 713, Florida Statutes. Andersen Builders cross appeals that portion of the final judgment allowing for a set-off of construction delay damages in favor of Kritikos and Jupiter Holding Co., LLC. Because Kritikos was erroneously precluded from offering certain evidence of damages against Andersen, we reverse for a new trial on damages. On the cross appeal, we affirm.

The Agreement

In 2003, Kritikos purchased ocean-front property on Jupiter Island in Martin County, Florida. Kritikos hired a New York architect, Peter Gluck, to design the home. Gluck’s corporation, ARCS Construction Services, Inc., contracted with Kritikos to serve as a construction manager. Gluck did not have a Florida contractor’s license. As an agent of Kritikos, Gluck entered into a construction agreement with Andersen Builders, Inc., a licensed general contractor.

The amended construction agreement is less than two and a half pages in total. On its face, it is not an agreement by the contractor to construct the entire house but, rather, an agreement for Andersen to perform specific services:

• Andersen was to provide supervision and coordination of the trades, and it was required to have a working superintendent and a laborer present full-time to ensure hands-on supervision of the project and to coordinate with local and state building officials.
• Andersen was to work with the architect’s personnel, who would be located onsite, to provide incidental support to the architect in obtaining bids from all necessary subcontractors. But upon awarding the bid, the architect would prepare all necessary contracts and/or vendor agreements for Andersen’s approval.
• All bids from subcontractors were to be initialed by the architect, with Andersen providing one additional copy, if needed, to ensure effective cost control of the project.
• All contract documents were to be prepared by the architect and forwarded to Andersen for final review and signature.
• All invoices were to be paid by the architect, while Andersen was required to pay incidental invoices that totaled less than $1,000 and submit to the architect a monthly itemized invoice of all “paid in full” invoices and “architect to pay direct” invoices.
• The architect was to have a full-time architect onsite to cooperate with subcontractors and handle all administrative activities necessary to complete the project.
• Andersen was to be onsite with a full-time working superintendent to oversee all issues surrounding actual construction of the project.

Pursuant to the contract, compensation was to be allocated as follows:

• The management fee of $350,000, which was to be based on contributions made directly by the architect (Gluck) to the project, was to be paid out to Andersen at $25,000 per month over a 14-month project time period.
• Andersen was to be paid $30,000 for providing the builder’s license and insurance for the duration of the project.
• The direct labor Andersen supplied would be billed at cost plus 15% with the following labor breakdown: $40 per hour for the supervisor, $35 per hour for the carpenters, $35 per hour for the painters, and $25 per hour for the laborers.

The entire project was anticipated to take fourteen months to complete. Therefore, based on the agreed contract price, Andersen would have been entitled to a total of $380,000 plus the cost of his direct labor supplied to the job for supervisors, carpenters, painters, and laborers.

The original construction budget estimate was just over $4 million. However, by the original contemplated date of completion, the house was approximately 60% complete and the projected cost of the construction budget had doubled to $8 million. Approximately four months after the original completion date, Andersen was terminated by Kritikos and taken off the job.

Procedural Posture

Andersen filed a complaint against Kriti-kos for breach of contract, unjust enrichment, and foreclosure of a construction hen. Kritikos pled an affirmative defense for set-off and countersued Andersen for breach of contract, negligence, and a fraudulent lien, all based on his claims of construction defects, overcharges by Andersen, and delay damages. In a separate lawsuit against Peter Gluck and ARCS Construction, which included a breach of contract claim, Kritikos also sought damages for construction defects, overcharges, and delay.

The two lawsuits were consolidated and tried together in a month-long jury trial, at the close of which both parties submitted multiple motions for directed verdicts. The trial court eventually entered directed verdicts against Kritikos, denying his affirmative defense of set-off and finding against his counterclaim for construction defects. According to the trial judge, the basis of this ruling was that there had “not been one scintilla of evidence” of the “cost of correcting the work” or overbilling. It appears that the court read Barile Excavating & Pipeline Co. v. Kendall Props. Inc., 462 So.2d 1129 (Fla. 4th DCA 1984) for the proposition that, to recover damages for construction defects, a plaintiff must show that the defects were repaired and base the damages on the actual cost of the repairs, rather than using the estimated cost of completing the work according to the contract. It was Kritikos’ position that much of the defective work had been the subject of a design change, so that the proper proof of damages could not be the actual cost of repair, but an estimate of what it would have cost to complete the work according to the original contract.

Although Kritikos was limited to delay damages in its suit against Andersen, the trial court ruled differently with respect to Kritikos’ breach of contract claim against ARCS Construction. There, the court allowed Kritikos to seek damages for construction defects, overcharges, and delay based on the same evidence that had been precluded in the Andersen/Kritikos case.

The jury awarded $548,817.04 with interest on Andersen’s breach of contract action, which was then set-off by Kritikos’s $130,000 award, plus interest, for delay damages. The final judgment placed a $581,912.33 construction lien on the property in favor of Andersen. On Kritikos’ breach of contract claim against ARCS Construction, where Kritikos was allowed to present his full evidence on damages, the jury awarded Kritikos $1,139,343, the full sum that had been requested in closing argument.

Both parties appeal the final judgment, and each party raises issues contesting the final calculation of the construction lien.

The Directed Verdicts

The trial court misapplied Barile Excavating in granting directed verdicts in favor of Andersen. As Kritikos argues, Barile Excavating “stands only for the proposition that where an owner/plaintiff actually completes ” work that a contractor has failed to complete, the proper measure of damages in a breach of contract action against the contractor is the “actual cost” to complete the work and not “estimates as to the cost of completion.” 462 So.2d at 1130. Kritikos offered evidence that many of the items at issue had not been completed according to the original contract and he was entitled to this view of the evidence at the time the court granted a directed verdict.

Barile Excavating relied on Grossman Holdings Limited, v. Hourihan, where the Supreme Court held that one measure of damages for an unfinished construction contract is the “reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste.” 414 So.2d 1037, 1039 (Fla.1982) (quoting Restatement (First) of Contracts § 346(l)(a)(i) (1932)). Nothing in Gross-man compels the conclusion that damages for breach of a construction contract are not recoverable unless the plaintiff offers proof of the cost of completed repairs for the faulty construction. In fact, the Supreme Court has approved the use of estimates to establish the cost of correcting a construction defect. See Davis v. Stow, 60 So.2d 630, 631 (Fla.1952); see also B & J Holding Corp. v. Weiss, 353 So.2d 141, 143 (Fla. 3d DCA 1977) (rejecting the notion that plaintiffs in a construction defects case were required to offer proof of “sums incurred to correct or repair the deficiencies” as opposed to estimates of what would “have to be incurred”).

Since the case involves a factual scenario similar to the case at bar — reconstruction under a different design — Justice (then Judge) Grimes’ description of the measure of damages in Temple Beth Sholom & Jewish Center, Inc. v. Thyne Construction Corp., 399 So.2d 525, 526 (Fla. 2d DCA 1981), is especially on point:

The proper measure of damages for construction defects is the cost of correcting the defects, except in certain instances where the corrections involve an unreasonable destruction of the structure and a cost which is grossly disproportionate to the results to be obtained. If in the course of making repairs the owner elects to adopt a more expensive design, the recovery should be limited to what would have been the reasonable cost of repair according to the original design.

(Citations omitted).

Tuttle/White Constructors, Inc. v. Montgomery Elevator Co., 385 So.2d 98 (Fla. 5th DCA 1980), does not compel a different result. That case stated the “general rule” that the non-defaulting party in an elevator installation contract “must show actual expenditures occasioned by the breach.” Id. at 100. As authority for that rule, Tuttle/White, cited to R.K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87, 88 (Fla. 3d DCA 1969), a case that rejected the notion that damages should be measured by the reasonable value of work and materials when there is evidence of “actual expenditures, made in good faith, that are necessary to complete the job covered by the original contract.” The court held that when a party has actually expended money to complete a job, the defaulting party cannot complain that he spent too much, absent evidence of “waste, extravagance, or lack of good faith.” Id. at 89. Tuttle-White and R.K. Cooper concern the “general rule” that applies where a party has spent money to correct damages resulting from a breach of contract; the cases do not support the conclusion that a plaintiff must offer evidence of completed repairs in every breach of construction contract case. This is especially true where design modifications resulted in changes to the design in the original contract.

Delay Damages

Delay damages were properly presented to the jury. By their very nature, delay damages may not be subject to exact calculation, making the owner’s opinion of the value of his loss of use of his property admissible and relevant. In the case at hand, the jury made a determination that the contractor breached the contract; the contractor then had to offer counter-evidence as to the delay claim. Under such circumstances, the jury is charged with the duty to weigh the evidence in determining the verdict. That portion of the final judgment finding delay damages in the amount of $130,000, having been properly decided by the jury as trier of fact, is therefore affirmed and shall reduce the construction lien amount.

We reverse the remaining portion of the final judgment and remand to the trial court for a new trial on damages and the amount of the construction lien.

We also reverse the final judgment awarding attorney’s fees and costs for a redetermination of entitlement to attorney’s fees and their amount. Appellate attorney’s fees and costs shall be awarded to the prevailing party under section 713.29, Florida Statutes (2006), after retrial.

Affirmed in part, reversed in part, and remanded.

GROSS and CONNER, JJ., concur.

      . Although the complaint described the cause of action as "unjust enrichment,” it appears that Andersen stated a claim for a contract implied in fact for "work [that] was performed at the request of the OWNER and with the knowledge and consent of the OWNER.” "Common examples of contracts implied in fact are where a person performs services at another's request, or ‘where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances’ fairly raising the presumption that the parties understood and intended that compensation was to be paid.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (quoting Lewis v. Meginniss, 30 Fla. 419, 12 So. 19, 21 (1892)).

      . An appeal was taken from the ARCS Construction final judgment, but the appeal was dismissed prior to briefing.