author: SLEET, Judge.

text:
    George COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-901.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Rehearing Denied Aug. 5, 2013.

      George Copeland, pro se.
   SLEET, Judge.

George Copeland appeals the order summarily denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 8.800(a). Although we affirm the postconviction court’s denial of Copeland’s motion as successive and without merit, we write to address Copeland’s misplaced reliance on Shingler v. State, 74 So.3d 171 (Fla. 1st DCA 2011).

In his motion, Copeland asserts that because he was sentenced for committing a first-degree felony as a habitual felony offender (HFO), the circuit court was obligated to impose a life sentence under section 775.084(4)(a), Florida Statutes (1995). According to Copeland, it follows that because the circuit court sentenced him to thirty years in prison, it failed to impose a legal sentence. He contends that he cannot be sentenced as an HFO upon re-sentencing and that his sentence must therefore be vacated, thus entitling him to immediate release. To support his claim, Copeland primarily relies on the following quote from Shingler: “On its face, this sentence is unlawful. In the case of a felony of the first degree, section 775.084(4)(b)l., mandates a life sentence; it does not authorize the imposition of a term-of-years sentence.” Id. at 172.

Shingler does not apply to Copeland’s case because Shingler specifically addresses the application of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), to a defendant convicted of a first-degree felony committed when he was sixteen years old and sentenced to life in prison as a habitual violent felony offender (HVFO) under section 775.084(4)(b)(l). However, we write to clarify that sentencing under both the HVFO and HFO statutes is permissive, not mandatory. King v. State, 681 So.2d 1136, 1138 (Fla.1996), receded from on other grounds by Carter v. State, 786 So.2d 1173 (Fla.2001); Allen v. State, 599 So.2d 996, 997 (Fla.1992) (holding that maximum sentences in HFO statutes are permissive); Stephens v. State, 974 So.2d 455, 456 (Fla. 2d DCA 2008) (holding that the sentencing court has discretion when imposing an HFO sentence); Pankhurst v. State, 796 So.2d 618, 620 (Fla. 2d DCA 2001). Therefore it was within the sentencing court’s discretion under section 775.084 to sentence Copeland to a thirty-year sentence as an HFO rather than to a life sentence.

Affirmed.

KELLY and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: THOMAS, J.

license: Public Domain

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Lyantie TOWNSEND, as Personal Representative of the Estate of Frank Townsend, Appellee.
    No. 1D12-3564.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Rehearing Denied Aug. 14, 2013.

      Charles M. Trippe, Jr., Robert B. Parrish, Jeffrey A. Yarbrough and David C. Reeves of Moseley Prichard Parrish Knight & Jones, Jacksonville; Gregory G. Katsas of Jones Day, Washington, D.C.; Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day, Atlanta, for Appellant.
    Steven L. Brannock, Celene H. Hum-phries and Tyler K. Pitchford of Brannock & Humphries, Tampa; Gregory D. Pry-sock and Katherine M. Massa of Morgan & Morgan, P.A., Jacksonville; Keith R. Mitnik of Morgan & Morgan, P.A., Orlando, for Appellee.
   THOMAS, J.

In this Engle progeny case, Appellant, R.J. Reynolds Tobacco Company, appeals the trial court’s remitted punitive damages judgment of $20 million. Appellant argues that the trial court erred by denying Appellant’s request for a new trial on damages. Appellant contends it was entitled to object to the proposed remitted judgment, as provided by section 768.74(4), Florida Statutes, as interpreted by our supreme court in Waste Management, Inc. v. Mora, 940 So.2d 1105 (Fla.2006). Appellant also argues that the remitted judgment exceeds the maximum amount allowable under federal due process. For the reasons that follow, we affirm as to both of these issues.

Although Appellant is correct that Mora stands for the proposition that any party complaining as to the amount of a proposed remitted judgment is an adverse party with a right to object, here, because Appellant failed to raise this argument on rehearing in R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012) (Townsend I), we are constrained by the principles of waiver and law of the case to affirm.

In remanding, this court in Townsend I explicitly instructed the trial court as follows:

[W]e reverse and remand the punitive damages award for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment on the punitive damages award to be established by the trial court.

Id. at at 316 (emphasis added).

Following the plain language of this mandate, the trial court offered only Ap-pellee the opportunity to accept or object to the proposed $20 million remitted judgment. Appellant contended below, as it does now, that the proper procedure is to allow both parties to accept or reject the proposed remitted judgment, and absent an agreement, submit the matter to a jury for a new trial on damages, as required by both section 768.74(4) and Mora. It is Mora’s clarity, as well as that of the mandate in Townsend I, however, that precludes our granting the remedy Appellant seeks.

A motion for rehearing on appeal is meant to alert the court to the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision; a motion for clarification is meant to state the points of law or fact that the movant believes are in need of clarification. See Fla. RApp. P. 9.330(a). The relevant portion of Townsend I was an explicit instruction to the trial court to remit and offer Appellee the opportunity to object and ask for a new trial. If this was a legal error, as Appellant now contends, it was Appellant’s responsibility to alert the Townsend I court to this fact, or to request clarification. In moving for rehearing, Appellant did not alert the Townsend I court that its mandate conflicted with Mora, nor did it ask the court to clarify whether it was incorrectly precluding the trial court from considering Appellant’s right to object to a proposed remitted judgment. Thus, Appellant’s argument here was waived under the law of the case doctrine.

“It is the general rule in Florida that all questions of law which have been decided by the highest appellate court become the law of the case which, except in extraordinary circumstances, must be followed in subsequent proceedings, both in the lower and the appellate courts.” Brunner Enterprises, Inc. v. Dep’t of Rev., 452 So.2d 550, 552 (Fla.1984). Appellant argues that the procedure to follow following remand was not at issue in Townsend I, and thus was not a question of law decided by the court in that case, which in turn means the law of the case doctrine does not apply. Even if that is correct, however, this court in Townsend I instructed the trial court to follow a specific legal procedure regarding the remittitur, making it a legal ruling: “[I]t is a well-settled rule of law that ‘the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act.’ ” Brunner Enterprises, 452 So.2d at 552 (quoting O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130, 131 (Fla.1974)). Thus, it was Appellant’s duty to inform this court that it had erred in its procedure, in contradiction to Mora.

Appellant is now asking this court to reverse the trial court for doing exactly what it was instructed to do, without Appellant first alerting this court that the procedure we instructed the trial court to follow was erroneous under Mora. This is precisely the scenario that rule 9.330(a) is meant to address. As we explained in Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 324 (Fla. 1st DCA 2011), where a court’s error appears for the first time on the face of a final order, the failure to file a motion for rehearing or other available motion in an attempt to correct the error results in the failure to preserve an otherwise meritorious argument. See also Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So.2d 139, 142 (Fla. 2d DCA 1962) (holding “[i]t is the duty and responsibility of the attorneys in a cause to see that the orders entered by the trial court are in proper form and substance....”). Although King and Lake Sarasota, Inc., both concern trial court orders, the same principle applies in the appellate context — a “court should be afforded an opportunity to correct [an] error before the aggrieved party seeks reversal of the order on appeal.” King, 66 So.3d at 324. In essence, here, Appellant is seeking a reversal of this court’s previous mandate in this appeal without having previously afforded this court an opportunity to correct its error.

We recognize that “an appellate court has the authority to reconsider a previous ruling that established the law of the case. [But] a change in the law of the case should only be made in those situations where strict adherence to the rule would result in ‘manifest injustice.’ ” Brunner Enterprises, 452 So.2d at 552-53 (quoting Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965)). One such situation warranting a change in the law of the case, as occurred in Brunner Enterprises, is when there is an intervening case by a higher court that would have required a different outcome. Id. at 553. Here, however, there was no such intervening decision. Indeed, Mora was decided in 2006, or six years before our decision in Townsend I. Although declining to change the law of the case here might result in an erroneous outcome, it was a wholly avoidable one if Appellant had alerted the Townsend I court to its error in depriving Appellant of its statutory right to demand a new trial if the proposed remittitur was unacceptable.

We also reject Appellant’s argument that the $20 million remitted judgment violates federal due process. The trial court used a ratio of 1.85 to 1, which was squarely within the bounds established by Townsend I, in which this court held that a ratio of 1 to 1 was too low, but that a ratio of 3.7 to 1 was too high. 90 So.3d at 315-16. The ratio the trial court used was precisely in the middle of this range. See also R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), rev. denied, 67 So.3d 1050 (Fla.2011), rev. denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 617 (March 26, 2012) (affirming $25 million punitive damages award). As to Appellant’s contention that the proper benchmark for evaluating the reasonableness of the punitive damages award was the compensatory damages award after reduction for comparative fault, this argument is contrary to Townsend I which, in discussing the constitutional infirmity of the original punitive damages award, and discussing the permissible parameters of such an award, used the unreduced compensatory damages award as the proper benchmark. Townsend I, 90 So.3d at 314-15. Appellant did not challenge this benchmark in its motion for rehearing and, thus, it too became the law of the case.

For these reasons, we AFFIRM the remitted punitive damages award of $20 million.

LEWIS and MAKAR, JJ., concur.

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

      . Appellant also renewed, for preservation purposes, its argument in Townsend I that the compensatory damages award in this case was excessive, and that the trial court erred by allowing Appellee to use the Engle findings to establish essential elements of her claims. We affirm as to the former without further comment. The latter argument was recently rejected by our supreme court in Philip Morris, Inc. v. Douglas, 110 So.3d 419, (Fla.2012).


author: SCHWARTZ, Senior Judge.

text:
    Roy E. HALL, et al., Appellants, v. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellee.
    No. 3D13-56.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Rehearing Denied Aug. 30, 2013.

      The Ferraro Law Firm, and James Louis Ferraro, Melissa D. Visconti, Miami, and Allan B. Kaiser, for appellants.
    Arnold & Porter and Geoffrey Michael, Washington, DC; Boies, Schiller & Flex-ner and Mark J. Heise and Stephen N. Zack; Carlton Fields and Benjamin Reid and Olga M. Vieira, for appellees.
    Before CORTIÑAS and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Hall and his wife, plaintiffs in an Engle action claiming damages resulting from his allegedly addictive cigarette smoking, appeal from an order transferring the case under section 47.122, Florida Statutes (2013) from the Miami-Dade County Circuit Court to the Orange County Circuit Court. We affirm.

On the one hand, the Halls are now and have been residents of Orange County throughout his history of smoking and the treatment for its results; on the other, Miami-Dade has no relevant connection whatever to the case: it is neither the location of the underlying facts and circumstances, nor the residence of any of the parties or potential witnesses. On this basis, it is apparent that, at a minimum, the trial court did not abuse its discretion in entering the order below, as is required for reversal. See Fla. Patient’s Compensation Fund v. Fla. Physicians’ Ins. Reciprocal, 507 So.2d 778, 779 (Fla. 3d DCA 1987) (“The decision to transfer venue ... is ‘one within the sound discretion of the trial court, and absent a demonstration of an abuse of discretion, the lower court’s determination will not be overturned on appeal.’ ”) (internal citation omitted); Stoppa v. Water Oak Mgmt. Corp., 584 So.2d 161, 163 (Fla. 1st DCA 1991) (“As a general rule, a trial court has wide discretion in determining whether or not venue of a trial should be changed.”). See also Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978) (reversing order denying transfer of case from Dade County to Highlands County).

In short, this is an Orange County case which belongs in Orange County. See Della-Donna v. Gore Newspaper Co., 390 So.2d 87, 87-88 (Fla. 3d DCA 1980) (“In sum, this is a [Broward County] case, which belongs in Broward County.”) (relying on Leinberger v. Webster, 66 F.R.D. 28, 35 (E.D.N.Y.1975)) (“In sum, this is a Vermont case.”); Westchester Fire Ins. Co. v. Fireman’s Fund Ins. Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996) (“It is ‘in the interest of justice,’ ... that a Dade County jury, which is both a scarce and precious resource, should not be burdened with determining a case that has no connection with Dade County.”); Pep Boys v. Montilla, 62 So.3d 1162, 1166 (Fla. 4th DCA 2011) (“The last factor — the interest of justice — also weighs in favor of Sarasota County ... Broward County’s connections to the case are that the plaintiff’s attorney is from there and the tire had been sold and installed there. Broward County is a larger, more populous county, has crowded dockets, and the community has virtually no connection to the case.”).

Affirmed.

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

      . "For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record which it might have been brought.” § 47.122, Fla. Stat. (2013).

      . The location of plaintiffs’ lawyers does not qualify. See Pearl Cruises v. Bestor, 678 So.2d 372 (Fla. 3d DCA 1996).


author: PER CURIAM.

text:
    SUZLON ENERGY, A/S, etc., Appellant, v. VENTUS DE NICARAGUA, S.A., etc., a Nicaraguan Corporation, Appellee.
    No. 3D11-1087.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Rehearing Denied Aug. 30, 2013.
    Brown Sims and Hilary K Jonczak and Frank J. Sioli, Miami, for appellant.
    Silverio & Hall, and Brian M. Silverio, Miami, for appellee.
    Before LAGOA, SALTER  and FERNANDEZ, JJ.

       Judge Salter did not participate in oral argument.

   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellee Ventus de Nicaragua, S.A., etc.’s motion for rehearing. We withdraw our prior opinion and affirm the trial court’s order confirming the arbitration award for Ventus.

Affirmed.


author: CLARK, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY and Lorillard Tobacco Company, Appellant, v. Robert SURY, as Personal Representative for the Estate of William Sury, Appellee.
    No. 1D12-2110.
    District Court of Appeal of Florida, First District.
    June 24, 2013.
    Rehearing Denied Aug. 21, 2013.

      Robert B. Parrish of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, for Appellant.
    John S. Mills, Tallahassee and John S. Kalil, Jacksonville, for Appellee.
   CLARK, J.

R.J. Reynolds Tobacco Company (“RJR”) appeals the amended final judgment for plaintiff Dr. Robert Sury, the personal representative of the estate of William Sury. We affirm the amended final judgment in all respects, but write to address the issue of apportionment of the damage award in light of the multiple causes of action, the jury verdict, and the applicability of section 786.81, Florida Statutes.

In November, 2007, Appellee, Dr. Robert Sury, along with several other plaintiffs, commenced a lawsuit against RJR and Lorillard Tobacco Co. by filing the initial complaint in Bowman v. R.J. Reynolds Tobacco Co., Case No.2007 CA 011175 (4th Cir. Duval County). Although the elder Mr. Sury died in 1997, Dr. Sury and the other plaintiffs brought their suit as authorized by Engle v. Liggett Group, Inc., 945 So.2d 1246, 1274 (Fla.2006).

Dr. Sury proceeded to trial on his Third Amended Complaint (Complaint), seeking damages for the wrongful death of his father due to lung cancer resulting from Mr. Sury’s addiction to cigarettes containing nicotine. The Complaint included counts for: strict liability; negligence; fraud and fraudulent concealment; civil conspiracy; breach of express and implied warranties; successor liability; and punitive damages. In the Complaint, Dr. Sury acknowledged that his father shared some fault for his smoking-related injuries and he therefore sought “potential apportionment of fault and damages on all counts other than those alleging intentional torts.”

After the lengthy trial, the jury returned a verdict for plaintiff Dr. Robert Sury. The jury specifically found that both RJR and Lorillard were negligent and strictly liable for placing the defective product (cigarettes) on the market. Considering the intentional torts of fraudulent concealment and civil conspiracy to fraudulently conceal, the jury made particular findings that both companies’ fraudulent acts were the legal cause of Mr. Sury’s death. The jury assigned contributory fault, finding the decedent Mr. Sury 60% at fault, RJR 20% at fault, and Lorillard Tobacco 20% at fault. The jury determined that plaintiff Robert Sury suffered $1 million in damages for the loss of his father. The jury declined to award any punitive damages.

The issue of apportionment of the damage award was raised by the parties when they submitted their respective proposed final judgments and presented argument to the court. The plaintiff urged the court to award the entire $1 million against the defendants jointly and severally because the jury found liability on both the negligent tort counts and the intentional tort counts. The defendants countered that the plaintiff had waived any objection to apportionment of the award because Plaintiff acknowledged throughout the trial that his father shared some fault for his choice to smoke cigarettes and failure to overcome his addiction. In addition to waiver, the defendants argued that this case was essentially a products liability claim and that section 768.81, Florida Statutes, required reduction of the award according to the contributory fault found by the jury.

After hearing argument on the motion, the trial court discussed its reasoning and the opinion in Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986), and concluded that section 768.81, Florida Statutes, did not require apportionment of damages for intentional torts, such as fraudulent concealment and civil conspiracy to fraudulently conceal in this case. The trial court also rejected the defendants’ waiver argument. In its Amended Final Judgment, the trial court awarded Dr. Sury the full $1 million, against RJR and Lorillard Tobacco Co. “jointly and severally.”

The trial court properly rejected the defendants’ claim that Dr. Sury waived the award of unreduced damages. While acknowledging the decedent’s partial responsibility for his injuries and death resulting from his smoking behavior and failure to overcome his eventual addiction to cigarettes containing nicotine, the plaintiffs Complaint clearly and specifically sought “potential apportionment of fault and damages on all counts other than those alleging intentional torts.” Dr. Sury never argued to the jury or the court that the damages for his father’s terminal illness should be reduced by his portion of fault. The defendants were on notice from the date of the Complaint that Dr. Sury alleged intentional torts as well as negligent torts. Further, the defendants agreed to the verdict form which listed each cause of action, including the intentional torts, and requested the jury to indicate whether the defendants had committed each individual tort or not.

As recognized in Smith v. R.J. Reynolds Tobacco Co., No. 3:09-cv-10048 (M.D.Fla. May 2, 2013), the respective roles of the jury and of the court are separate and distinct. The jury was properly tasked with determining RJR’s liability or lack thereof, and if liable, the particular legal theory or theories under which it determined liability. The jury was properly requested to determine a total damage amount. The jury was not, and need not have been, instructed about the legal consequences attached to the classification of each tort in terms of the damages awarded. The application of the law to the facts found by the jury, including any apportionment of the actual award, was properly left to the court. There was no inkling that the jury failed to follow the jury instructions or otherwise deliberated improperly.

Applying the law to the facts found by the jury, the trial court properly ruled that section 768.81, Florida Statutes, did not require reduction of the damages awarded in this case, where the jury found the defendants liable under both negligent and intentional tort theories. Section 768.81(2), Florida Statutes provides:

In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

The statute allows for some discretion in the determination of whether an action is “a negligence action,” because section 768.81(l)(c) defines “negligence action” as:

[A] civil action for damages based upon a theory of negligence, strict liability, products liability, ... or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.

The question in this case is whether section 768.81 requires reduction of the damages awarded when the action includes multiple causes of action, both negligent torts, as listed in the statute, and intentional torts such as fraudulent concealment and civil conspiracy to fraudulently conceal.

Rule 1.110(g), Florida Rules of Civil Procedure allows pleading multiple and alternative causes of action. Appellants argue that the combination of the negligent tort counts and the intentional tort counts does not change the substance of this action, which Appellants argue is a negligence/strict liability action. However, we find no abuse of discretion in the trial court’s determination that although the plaintiff pled negligence and strict liability, the additional allegations of the intentional torts and the proof of affirmative, calculated misrepresentations in the tobacco companies’ advertising and other publications supported the conclusion that this action “actually had at its core an intentional tort by someone.” Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 563 (Fla.1997) (section 768.81 did not apply to case where allegations of multiple negligent torts stemmed from intentional acts). The trial court properly relied on Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986) because that jury, like the jury in this case, found the defendants liable for both negligence and intentional torts. In Mazzilli, the Third District Court did not reduce the plaintiffs damage award by the percentage of the plaintiffs liability due to the jury’s verdict on the intentional tort count.

Applying the reasoning in Maz-zilli v. Doud, and considering the plaintiffs consistent pleading and assertion that he agreed to “apportionment of fault and damages on all counts other than those alleging intentional torts,” and considering the defendants’ agreement to the verdict form at trial, we find no abuse of the trial court’s discretion in concluding that section 768.81, Florida Statutes, did not require reduction of the damage award by the percentage of fault found by the jury attributable to the plaintiffs decedent. As explained in Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562 (Fla.1997), the public policy behind the exclusion in section 768.81 for intentional torts is that intentional wrongs “differ from simple negligence ‘not merely in degree but in the kind of fault ... and in the social condemnation attached to it.’ ” In addition, the contributory fault provision, like the rest of section 768.81, is in derogation of the common law and therefore “must be strictly construed in favor of the common law” and “should not be interpreted to displace the common law any more than is necessary.” Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996); see also Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997). The intentional torts pled, argued, and proved to the jury in this case remove it from the dictates of section 768.81(2).

The trial court’s amended final judgment is AFFIRMED.

MARSTILLER, J., and BOLES, W. JOEL, ASSOCIATE JUDGE, concur.

      . In Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), the Florida Supreme Court specified a limited window of time for the filing of individual lawsuits by persons fitting a certain class description as an exception to the ordinary statute of limitations. In addition, Engle provided these plaintiffs the benefit of res judicata on several findings of fact common to the members’ claims {"Engle Phase I findings”—see Engle v. Liggett Group, Inc., 945 So.2d at 1254 n. 4).


author: PALMER, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Evan Cole VITALE, Appellee/Cross-Appellant.
    No. 5D12-3081.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Rehearing Denied Aug. 2, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    William R. Ponall, of Snure & Ponall, P.A., Winter Park, and Tad A. Yates, of Law Offices of Tad A. Yates, P.A., Orlando for Appellee/Cross-Appellant.
   PALMER, J.

The State appeals the trial court’s order granting Evan Cole Vitale’s (defendant’s) motion to dismiss two of the three counts of the information filed against him. Determining that the court erred in concluding that the alleged facts could not support a finding of guilt on these two counts, we reverse. The defendant cross-appeals the same order, challenging the court’s denial of his motion to dismiss count 3. Because that ruling is not appealable, we dismiss the cross-appeal.

The defendant was charged with three counts: (1) traveling to meet a child to engage in unlawful sexual conduct after using a computer to solicit a person believed to be a parent, guardian, or custodian to consent to the child’s participation in sexual conduct; (2) using a computer to solicit a person believed to be a parent, guardian, or custodian to consent to a child’s participation in sexual conduct; and (3) attempted lewd or lascivious battery of a person 12 to 15 years old. The defendant filed two motions to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). The first motion sought dismissal of counts 1 and 2, and the second motion sought dismissal of count 3. The following facts were established for purposes of the motions.

An Orange County detective, posing as a 19-year-old woman, posted a Craigslist advertisement that stated, “We are lookin to chill on this Halloween Weekend. Me and sis, lookin for a good man teacher type.” The defendant responded to the ad, and an online discussion ensued that included references to sexual acts involving both the 19-year-old and her fictitious 15-year-old sister. The conversation included the following exchange:

Defendant: ... do you have your own place?
19-year-old: ya parents house but they left for a cruise lol
I am the boss of her lol

The defendant and the 19-year-old made arrangements for the defendant to come to a house. The defendant drove about 30 miles and, after he entered the house, he was arrested. A bottle of vodka and two condoms were found on his person.

The defendant’s first motion to dismiss challenged counts 1 and 2, arguing that the facts did not show that the defendant believed that the 19-year-old was a “custodian” of the 15-year-old. The second motion challenged count 3, contending that the facts did not support an attempt to commit a lewd or lascivious battery because the defendant’s acts did not reach far enough toward accomplishment of the completed crime. The court entered an order granting the motion to dismiss counts 1 and 2, but denying the motion to dismiss count 3. The State appeals the order as to counts 1 and 2, and the defendant cross-appeals as to count 3.

On counts 1 and 2, the State argues that the facts were prima facie sufficient to show that the defendant believed that the 19-year-old was a custodian. We agree.

“Custodian” is not defined in section 847.0135, the statute under which the defendant was charged. Black’s Law Dictionary defines “custodian” as “[a] person ... that has charge or custody ... of a child.... In reference to a child, a custodian has either legal or physical custody.” Black’s Law Dictionary, “custodian” (9th ed. 2009). A standard dictionary defines “custodian” as “one that guards and protects or maintains.” Merriam-Webster’s Collegiate Dictionary 308 (11th ed. 2012). Under these definitions, the facts were sufficient to create an inference that the defendant believed that the 19-year-old was a custodian of the 15-year-old. In light of the circumstances — the parents had left on a cruise, and the 19-year-old was at the house with her 15-year-old sister — the “boss” language could have led the defendant to believe that the 19-year-old was a custodian of the 15-year-old.

The cases on which the defendant relies are distinguishable. In Johnson v. State, 682 So.2d 215 (Fla. 5th DCA 1996), and Hull v. State, 686 So.2d 676 (Fla. 3d DCA 1996), the extensive facts affirmatively showed that the defendant had no custodial authority over the victim. In contrast, here the limited facts are susceptible to different constructions, the most favorable to the State of which is sufficient to establish a prima facie case. Accordingly, the court erred in dismissing counts 1 and 2.

In his cross-appeal, the defendant argues that the trial court erred in denying his motion to dismiss count 3 because the facts failed to establish a prima facie case of attempted lewd or lascivious battery. This ruling is not cross-appealable.

A defendant can file a cross-appeal in a State’s appeal. Fla. RApp. P. 9.140(b)(4) (2012). However, “[rjeview of cross-appeals before trial is limited to related issues resolved in the same order being appealed.” Id. “Related issues” means issues related to an issue that the State is appealing. See State v. Cassells, 835 So.2d 397, 401 (Fla. 2d DCA 2003). Thus, the question here is whether the issue raised by the defendant on count 3 is related to the issue raised by the State on counts 1 and 2.

In cases where appellate courts have expressly found jurisdiction over a defendant’s cross-appeal, generally the State’s and defendant’s issues were either legally intertwined or closely factually related. For example, in State v. Ashley, 670 So.2d 1087 (Fla. 2d DCA 1996), quashed in part on other grounds, 701 So.2d 338 (Fla.1997), the defendant shot herself in the abdomen to hurt her unborn child, and the child later died after being born alive. The State charged the defendant with manslaughter and with third-degree felony murder, with the predicate felony being abortion or attempted abortion. The defendant moved to dismiss the charges, asserting that she could not be charged with either offense as a matter of law. The trial court granted her motion to dismiss as to murder, but denied it as to manslaughter. The State appealed as to murder, and the defendant cross-appealed as to manslaughter. The Second District held that the cross-appeal was proper. Id. at 1088-89.

Similarly, appellate courts have found jurisdiction where the trial court granted in part and denied in part a motion to suppress different items of evidence found during the same search, State v. Miyasato, 805 So.2d 818, 820 & n. 1 (Fla. 2d DCA 2001); State v. Glass, 657 So.2d 934, 935 & n. 2 (Fla. 1st DCA 1995); cf. State v. Waterman, 613 So.2d 565 (Fla. 2d DCA 1993), approved, Lopez v. State, 638 So.2d 931 (Fla.1994); to suppress different statements made during a booking and transport process, State v. McAdams, 559 So.2d 601 (Fla. 5th DCA 1990), approved, Lopez, or a two-day period, Lopez; or to exclude an out-of-court identification and preclude an in-court identification, State v. Fedor, 714 So.2d 526, 526 (Fla. 5th DCA 1998).

Here, the defendant’s issue relating to the denial of his motion to dismiss count 3 is not legally intertwined with, or closely factually related to, the State’s issue relating to the dismissal of counts 1 and 2. The defendant’s issue, whether his traveling to and entering the house was a sufficient overt act for purposes of attempted lewd or lascivious battery, is based on different facts and different law from the State’s issue, whether the facts supported a finding that the defendant believed the 19-year-old was a custodian of the 15-year-old for purposes of the solicitation and traveling offenses. Accordingly, we lack jurisdiction to review the defendant’s cross-appeal.

REVERSED as to the State’s appeal; DISMISSED as to the defendant’s cross-appeal; REMANDED.

ORFINGER, C.J., and BERGER, J., concur.

      . § 847.0135(4)(b), Fla. Stat. (2011).

      . § 847.0135(3)(b), Fla. Stat. (2011).

      . §§ 800.04(4)(a), 777.04(1), Fla. Stat. (2011).


author: COHEN, J.

text:
    STATE of Florida, Appellant, v. Jose Silvestre GARZA, Appellee.
    No. 5D12-2763.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Rehearing Denied Aug. 2, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   COHEN, J.

Jose Garza was charged with and pled guilty to one count of traveling for the purpose of engaging in unlawful sexual conduct with a minor, a second-degree felony, and to one count of using a computer service or device to solicit a person believed to be the legal guardian or custodian of a minor to consent to the participation of the minor in unlawful sexual conduct, a third-degree felony. The sentencing guidelines called for a forty-two-month sentence. Instead, following a sentencing hearing, the court withheld adjudication and sentenced Garza, who had no prior criminal history, to two years’ community control followed by thirteen years’ probation. On appeal, the State challenges the trial court’s decisions to downwardly depart and to withhold adjudication on the traveling to meet a minor charge. Garza claims the State failed to preserve these issues. We affirm in part and reverse in part.

Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error. See Aills v. Boemi, 29 So.3d 1105, 1108-09 (Fla.2010). Here, the trial judge utilized two statutory bases to justify a downward departure. The objection lodged by the State simply stated, “We would also object to the imposed sentence.” We find the objection in this case was not specific enough to preserve the issue for appeal. See State v. Colbert, 968 So.2d 1043, 1045 (Fla. 5th DCA 2007) (finding objection to downward departure not specific enough to preserve error and explaining that a general objection suffices only “ ‘when the basis for that objection clearly appears from the context.)’ ” (quoting State v. Roberts, 963 So.2d 747, 748 (Fla. 3d DCA 2007)).

Garza cites State v. Calvert, 15 So.3d 946 (Fla. 4th DCA 2009), as support for his position that the State also failed to properly preserve the issue relating to the withhold of adjudication on the second-degree felony traveling to meet a minor charge. In Calvert, the defendant entered into an open plea to the second-degree felony of delivery of cocaine, and after finding he had no criminal record, the court withheld adjudication. The following exchange then occurred:

COURT: You wanted to say something, Mr. Carmona [prosecutor]?
STATE: Yes judge. As far as 07-20628CF10A the court is giving a withhold. We would like to inquire from the court the reason for a withhold on a second degree felony.
COURT: He has no history.
STATE: Okay.
COURT: This is his first — That’s the reason.
STATE: Okay.
COURT: I want to give him the best shot of getting over this and getting on with his life. I know if I make him a convicted felon he’s going to have two strikes against him. If he screws up he faces the possibility of prison and being a convicted felon which will be with him for the rest of his life.
STATE: Yes, judge. Just for purposes of the record obviously it would be over the State’s objection.
COURT: Okay. All right. Thank you. Good-bye.

Id. at 947-48. Holding that the State failed to preserve a challenge to the withhold of adjudication, the Fourth District explained, “while there was an objection made, the prosecutor did not apprise the trial court of the statute relevant to the objection or why the prosecutor believed that the trial court was committing error.” Id. at 948.

We disagree with Calvert. Courts may not withhold adjudication of guilt for a second-degree felony unless “[t]he state attorney requests in writing that adjudication be withheld,” or “[t]he court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance ■with those set forth in [section] 921.0026.” § 775.08435(l)(b)l., 2., Fla. Stat. (2011). Here, the prosecutors specifically objected to the withhold of adjudication, noting that the crime charged was a second-degree felony. In our view, that is adequate to put the trial judge on notice as to the statutory requirement that the court make written findings. Indeed, the trial court did not even orally set forth any rationale for failing to follow the statute’s mandate.

Accordingly, we affirm the downward departure, reverse the withhold of adjudication, and remand for resentencing. Further, we certify conflict with Calvert.

AFFIRMED IN PART; REVERSED IN PART; REMANDED; CONFLICT CERTIFIED.

SAWAYA and BERGER, JJ., concur.

      . § 847.0135(4)(b), Fla. Stat. (2011).

      . § 847.0135(3)(b), Fla. Stat. (2011).


text:
    Brian C. LINDKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2376.
    District Court of Appeal of Florida, First District.
    June 28, 2013.
    Brian C. Lindke, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R. Civ. P. 1.530(b); Fla. R.App. P. 9.020(i).

LEWIS, ROBERTS, and ROWE, JJ., concur.


text:
    Rodger BUTLER, Petitioner, v. Cheryl BARTLEY, Respondent.
    No. 1D13-2506.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Rehearing Denied Aug. 7, 2013.
    Rodger Butler, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Thomas v. State, Dept. of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011) (stating that absent a showing that an express and distinct demand for performance, mandamus will not lie to compel a court to rule on a pleading in a civil matter).

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


author: ORFINGER, J.

text:
    FI-EVERGREEN WOODS, LLC, et al., Appellants, v. The ESTATE OF Virginia A. VRASTIL, etc., Appellee.
    No. 5D12-3122.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Rehearing and Rehearing En Banc Denied Aug. 13, 2013.

      Amy L. Christiansen and Cory L. Chandler, of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.

      Isaac R. Ruiz-Carus, of Wilkes & McHugh, P.A., Tampa, for Appellee.
   ORFINGER, J.

Fi-Evergreen Woods, LLC, Themis Health Management, Airamid Health Management, and Debra Howe (collectively, “Appellants”) appeal an order denying their motion to compel arbitration. This Court has jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(iv). We reverse and remand for an evidentiary hearing.

Virginia Vrastil was admitted to Evergreen Woods nursing home, a facility owned or operated by Appellants. Mary Ellen Gill, Vrastil’s daughter and attorney in fact, signed the admissions paperwork on Vrastil’s behalf. Appellants contend the admissions paperwork included an arbitration agreement, and proffered what they asserted was the agreement between the parties. The proffered arbitration agreement, while signed, was not dated the day Vrastil arrived, and did not name Vrastil or Evergreen Woods. Appellants contend that the proffered agreement binds the parties and requires arbitration under the American Arbitration Association (“AAA”) Commercial Arbitration Rules or the JAMS Comprehensive Arbitration Rules. It further provides, in part, that:

[A]ny and all legal controversies, claims or disputes arising out of, related to, or in connection with this contract, including but not limited to all questions regarding issues of jurisdiction, the existence, scope, validity, performance, interpretation, termination an amendment thereto or breach hereof, between the undersigned Resident ... and the Facility will be resolved by BINDING ARBITRATION.
The arbitration agreement covers a wide variety of claims, including all rights pursuant to the Admission Agreement ... whether arising out of State or Federal law, whether existing or in the future, for any and all negligence, breach of contract, common law, tort or statutory claims for statutory, compensatory or punitive damages arising out of the relationship between the Resident and the Facility, including but not limited to ... those rights that may be available under Florida Statutes §§ 400.22, 400.023, 400.428, 400.429, 415.1111 ... [except claims which could be pursued in small claims court].

Following Vrastil’s death, Gill, as personal representative of Vrastil’s estate (“Appellee”), sued Appellants for negligence and wrongful death based on alleged violations of sections 400.22 and 400.23, Florida Statutes (2010), breach of fiduciary duty, and violations of section 415.1111, Florida Statutes (2010). Appellants moved to stay the proceedings and to compel arbitration. Appellee filed a memorandum in opposition, attaching several documents, including the JAMS fee schedule and rules, and several redacted fee statements purportedly generated in similar, but unrelated cases, showing arbitration costs ranging from $10,000 to $28,000. Appellee also included a statement, dated 2003, ostensibly from AAA, indicating that AAA would no longer arbitrate health care cases “involving individual patients without a post-dispute agreement to arbitrate.” Ap-pellee argued that the proffered arbitration agreement was an “unauthenticated hearsay document”; there was “no valid, enforceable arbitration agreement” between Vrastil and Appellants; the references to AAA and JAMS rules made the agreement invalid; the special rules governing discovery and allocating fees were against public policy; and the offending clauses were not severable. Without conducting a hearing and without explicitly determining whether the arbitration agreement had been entered into, the trial court denied the motion to compel arbitration, ruling that the proffered arbitration agreement limited the statutory remedies available to an injured nursing home resident, and, as a result, was void as against public policy. This appeal followed.

Orders denying motions for arbitration are reviewed de novo, except that factual findings are reviewed for support by competent, substantial evidence. E.g., Best v. Educ. Affiliates, 82 So.3d 143, 145 (Fla. 4th DCA 2012). Appellants assert that the trial court erred when it denied the motion to compel arbitration without first holding an evidentiary hearing, as required by section 682.03(1), Florida Statutes (2012). That section provides:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the comt is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.03(1), Fla. Stat. (2012) (emphasis added). A plain reading of the statute supports Appellants’ position. When there is no question “as to the making of the agreement or provision,” the motion should be granted, but if, as here, there is a “substantial issue,” then at least a summary hearing is needed. § 682.03(1), Fla. Stat. (2012); see, e.g., Crystal Motor Car Co. of Hernando, LLC v. Bailey, 24 So.3d 789, 791 (Fla. 5th DCA 2009) (reversing denial of motion to compel arbitration for failure to hold evidentiary hearing when nonmovant claimed agreement was never signed and signature on document was forgery). The hearing should occur “before the trial court can reach a decision regarding [the] validity of the arbitration provision.” Rowe Enters. LLC v. Int'l Sys. & Elecs. Corp., 932 So.2d 537, 541 (Fla. 1st DCA 2006). It was error to fail to hold the hearing required by section 682.03(1). See Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532-33 (Fla. 2d DCA 2005) (reversing denial of motion to compel for failure to hold evidentiary hearing where nonmovant disputed existence of agreement to arbitrate and requested hearing).

Because remand is necessary, we address Appellee’s claim that the arbitration agreement is void as against public policy. A trial court’s decision regarding whether an arbitration agreement or provision is void as against public policy presents “a pure question of law, subject to de novo review.” Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 471 (Fla.2011).

Relying on Shotts, the trial court found that the proffered arbitration agreement was void as against public policy because it required arbitration under the AAA or JAMS rules. In Shotts, the supreme court held that, in the context of Florida nursing homes and assisted living facilities, contractual limits on noneconomic damages and the elimination of, or imposition of obstacles to, punitive damages were against public policy because they eroded access to the specific remedies provided by sections 400.022 and 400.023. 86 So.3d at 474-75. The court noted that the arbitration agreement in that case broadly incorporated the AHLA rules, one of which altered, to the plaintiffs detriment, the availability of punitive damages authorized by section 400.023. Id. at 476-77. Because the agreement in Shotts lacked a clause requiring Florida law to replace invalid provisions, and the various limits on damages went “to the very essence of the agreement,” the objectionable portions could not be severed and the entire agreement was held to be void. Id. at 478. Importantly, however, the Shotts court did not hold that simply adopting the rules of an arbitration association necessarily rendered an arbitration agreement void as against public policy.

In the present case, the proffered arbitration agreement required the use of either the AAA or the JAMS rules. Both parties agree that the AAA rules were not considered below, leaving the trial court to consider only a proffered version of the JAMS rules. Unlike the AHLA rules in Shotts, the JAMS rules have no restrictions on punitive damages, caps on noneco-nomic damages, or changes in the required burden of proof. Additionally, JAMS Rule 4 provides:

Rule 4. Conflict with Law
If any of these Rules, or modification of these Rules agreed on by the parties, is determined to be in conflict with a provision of applicable law, the provision of law will govern over the Rule in conflict, and no other Rule will be affected.

Consequently, if any JAMS rule violates Florida public policy, unlike the AHLA rules in Shotts, JAMS Rule 4 may save the arbitration agreement (assuming one exists) from being invalidated. See Wilks v. Pep Boys, 241 F.Supp.2d 860, 863-64 (M.D.Tenn.2003) (noting that JAMS Rule 4 could save arbitration agreement from being invalidated when particular arbitration rule conflicts with substantive statutory right); see also Thomas & King, Inc. v. Jaramillo, 2009 WL 649073, slip op. at 12 (E.D.Ky. Mar. 10, 2009).

The trial court further relied on Shotts to find the arbitration agreement violated public policy because it limited the plaintiffs statutory remedies. However, the proffered arbitration agreement does not contain the language limiting compensatory or punitive damages that the Shotts court found to be invalid. Only section 12 of the agreement addresses damages, and it requires a preliminary “reasonable showing by evidence” of a “reasonable basis for recovery” of punitive damages, which “may only be awarded based on clear and convincing evidence and pursuant to Florida law.” This provision is consistent with section 400.0237, Florida Statutes (2010), which provides, in pertinent part:

(1) In any action for damages brought under this part, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
(4) The plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The “greater weight of the evidence” burden of proof applies to a determination of the amount of damages.

While the proffered arbitration agreement does not speak to the use of “the greater weight of the evidence” standard to determine the amount of punitive damages as required by section 400.0237(4), it does not require to the contrary. Indeed, the proffered agreement is silent on the burden of proof needed to prove the amount of punitive damages which an injured person is entitled to recover. Further, section 2 of the proffered arbitration agreement provides that it is to “be governed and interpreted in accordance with the laws of Florida.” Likewise, section 18.C. of the proffered arbitration agreement permits invalid or unenforceable provisions or parts of provisions to be severed, leaving the remainder of the agreement intact. Therefore, even if section 12 violated public policy (which it does not appear to do), it would be severable and would not invalidate the entire arbitration agreement. See Estate of Deresh ex rel. Schneider v. FS Tenant Pool III Trust, 95 So.3d 296, 301 (Fla. 4th DCA 2012) (reviewing Shotts and holding that when arbitration agreement contained severability clause, invalid punitive damages limitation could be severed from arbitration agreement). Thus, we conclude that none of the grounds relied upon by the trial court support its finding that the proffered arbitration agreement was void as against public policy-

Nevertheless, Appellee submits two additional bases for finding the proffered arbitration agreement unenforceable. Ap-pellee points to the proffered agreement’s extensive rules governing and limiting discovery. However, Appellee fails to explain how these procedures violate public policy, referring only to the concurring opinion in ManorCare Health Services, Inc. v. Stiehl, 22 So.3d 96, 102-03 (Fla. 2d DCA 2009), for the proposition that “[t]he arbitration agreement does not explain that the resident is avoiding crowded court dockets and lengthy appeals by agreeing to procedures that significantly reduce the resident’s ability to prevail in the dispute.” But, the majority in Stiehl held that the validity of the discovery provisions found in an arbitration agreement was generally an issue to be decided by the arbitrator, and reversed the lower court’s denial of a motion to compel arbitration. 22 So.3d at 100-01. More importantly, Appellee never raised this argument below, and we will not consider it for the first time on appeal.

Finally, relying on Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), Appellee argues that the high costs of JAMS arbitration, along with a cost-splitting provision in the agreement, and Appellee’s lack of funds, make the arbitration agreement unenforceable. In Green Tree, the Supreme Court wrote that “the existence of large arbitration costs could preclude a litigant ... from effectively vindicating her federal statutory rights in the arbitral forum.” 531 U.S. at 90, 121 S.Ct. 513. However, the Court went on to say that the mere “risk” of prohibitive costs was too speculative to render an arbitration agreement unenforceable, id. at 91, 121 S.Ct. 513. The party seeking to invalidate an arbitration agreement due to prohibitive costs, “bears the burden of showing the likelihood of incurring such costs,” id. at 92, 121 S.Ct. 513. and must show that enforcement of the agreement would preclude the objecting party from effectively vindicating a statutory right in the arbitral forum, id. at 90, 121 S.Ct. 513. In the instant case, Appellee relies on the JAMS fee schedule and on unauthenticated statements from parties in other cases. This information, by itself, is insufficient to find arbitration too burdensome in the present case. Green Tree, 531 U.S. at 91, 121 S.Ct. 513.

For these reasons, based on the limited record before this Court, the trial court’s order denying the motion to compel arbitration is reversed and remanded for further proceedings.

REVERSED and REMANDED.

PALMER and BERGER, JJ., concur.

      . The spaces for the names of the facility and resident were blank.

      . Effective July 1, 2013, Chapter 682 has been substantially rewritten. Ch. 2013-232, Laws of Fla.

      . American Health Lawyers Association.

      . Unlike the agreement in Rent-A-Center, West, Inc. v. Jackson, — U.S. -, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010), the agreement in Shotts did not have a delegation clause. Shotts, 86 So.3d at 478-80.

      . The analysis in Shotts is comparable to the Florida Supreme Court’s recent decision in Franks v. Bowers, 116 So.3d 1240 (Fla.2013). In Franks, the court invalidated an arbitration clause due to specific contractual limitations of statutorily created remedies for a particular class of plaintiffs. Once again, the analysis required a comparison of the contractual provision in question to the relevant statute as we have done in this case.

      . The version of the JAMS rules that Appellee submitted to the trial court are part of the appendix filed with this Court. While Appel-lee furnished these rules to the trial court, they were not authenticated or admitted into evidence.

      . Although a provision that requires both parties to equally share all fees and costs associated with arbitration can render an agreement unenforceable, Flyer Printing Co. v. Hill, 805 So.2d 829, 833 (Fla. 2d DCA 2001), the fees provision in the instant case generally requires both parties to bear their own attorney’s fees and costs, excepting arbitrator expenses and discovery ordered by the arbitrator. "[A]n arbitration agreement is not unenforceable merely because it may involve some 'fee-shifting.' " Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259 (11th Cir.2003). "[A]t this point [p]laintiff has not been assessed with any fees, nor is it certain that [it] ever will be." Id. at 1260.


text:
    Bobby L. MAGWOOD, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-0375.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Rehearing Denied Aug. 16, 2013.
    Bobby L. Magwood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    TRAVELERS INSURANCE and Ann Taylor, Appellants, v. Carol ARMSTRONG, Appellee.
    No. 1D12-5997.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Rehearing Denied Aug. 22, 2013.

      Nicolette E. Tsambis and David K. Beach of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellants.
    Laurie T. Miles of Miles & Parrish, P.A., Lakeland, Susan W. Fox of Fox & Loquas-to, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues that the Judge of Compensation Claims (JCC) erred in disregarding the expert medical advisor’s (EMA’s) opinion because the JCC failed to articulate clear and convincing reasons in support of his rejection of the opinion. The E/C also argues that the JCC erred in determining that Carol Armstrong (Claimant) was entitled to attorney’s fees and costs. For the following reasons, we reverse both issues.

When the JCC rejects the opinion of an EMA, this Court reviews the record for competent, substantial evidence to support the JCC’s determination that clear and convincing evidence existed to contradict the EMA’s opinion. Amau v. Winn Dixie Stores, 105 So.3d 669, 671 (Fla. 1st DCA 2013). Here, the JCC rejected the EMA’s opinion in part because the JCC found that it was “notable” that the EMA avoided answering a question about whether Claimant was a surgical candidate. However, the record shows that the EMA stated in his report that he would not recommend surgery for Claimant and he reaffirmed this statement during his deposition. The next reason given by the JCC for rejecting the EMA’s opinion was that the E/C selected one of the doctors whose opinion differed from the EMA’s opinion, but the JCC failed to explain how the E/C’s selection of one of the doctors who opined that Claimant should undergo surgery undermined the trustworthiness of the EMA’s opinion. Finally, the JCC found that the opinions of the authorized treating physician were “the most logical and comport most closely with reason,” but the JCC failed to articulate how or why he reached this conclusion. Mobile Med. Indus. v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008) (holding that the JCC is required to find and articulate the reasons for rejecting an EMA’s opinion).

Because the JCC failed to articulate clear and convincing reasons for rejecting the EMA’s opinion testimony, the JCC erred in awarding the requested surgery. Likewise, the JCC erred in awarding attorney’s fees and costs. § 440.34(2), Fla. Stat. (2010). Accordingly, the order is REVERSED, and the matter REMANDED, for entry of an order consistent with this opinion.

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


author: EMAS, J.

text:
    Allen R. and Jill F. GREENWALD, Appellants, v. EISINGER, BROWN, LEWIS & FRANKEL, P.A., et al., Appellees.
    No. 3D12-1181.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.
    Rehearing Denied Aug. 30, 2013.

      Damian & Yalori, Peter Valori and Russell Landy, Miami, for appellants.
    Cole, Scott & Kissane and Edward S. Polk and Jessica D. Arbour and Kristen A. Tajak, Miami, for appellees.
    Before CORTEÑAS and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Allen and Jill Greenwald, Plaintiffs below, appeal from a final judgment entered after a jury verdict in favor of defendants below, Gary Brown and Eisinger Brown Lewis & Frankel, P.A., on plaintiffs’ claim for legal malpractice. The plaintiffs allege the trial court committed evidentiary errors which require a new trial. We affirm.

In this appeal, Plaintiffs argue the trial court erred in granting a motion in limine precluding their expert from opining that defendant Brown violated several provisions of Chapter Four of the Rules Regulating the Florida Bar (“Rules of Professional Conduct”). In Plaintiffs’ response to the motion, they argued evidence of a violation of the Rules of Professional Conduct is admissible to establish the standard of care for attorneys, and as evidence of negligence in legal malpractice actions. At a pretrial hearing, the court reserved ruling, stating it would “rule before we get into the substantive part of the trial.” A jury was selected and opening statements were presented the following day. Thereafter, Plaintiffs began the presentation of their case, and called their legal expert to testify. However, at no time prior to this testimony did Plaintiffs seek a ruling on defendants’ motion in limine regarding reference to the Rules of Professional Conduct. The direct examination of Plaintiffs’ expert covers fifty-six pages of transcript, and page fifty-one of the transcript contains the only references to the Rules of Professional Conduct:

PLAINTIFFS’ COUNSEL: Do the rules of ethics require an attorney to be honest?
WITNESS: To my knowledge, yes. DEFENDANTS’ COUNSEL: Objection.
THE COURT: Sustained. Let’s move on.
PLAINTIFFS’ COUNSEL: Do they require an attorney to communicate with his or her client?
DEFENDANTS’ COUNSEL: Objection.
THE COURT: Sustained.
PLAINTIFFS’ COUNSEL: Your Hon- or, may we come sidebar?
THE COURT: No, you may not.

We find Plaintiffs failed to properly preserve the issue for appeal. Although the trial court sustained an objection to the two questions (the first of which was in fact answered by the witness and never stricken), the court had made no definitive ruling on the motion in limine. The fact the trial court sustained an objection to the question and denied a request for a sidebar did not obviate the need for a proffer in this case, nor did it suffice to preserve the claimed error. See Sosa v. State, 435 So.2d 968 (Fla. 3d DCA 1983); Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975). Cf. § 90.104(1)(b), Fla. Stat. (2012) (providing “if the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal”).

Plaintiffs could have sought a definitive ruling from the court at some point prior to commencing the examination of their expert. At that point, Plaintiffs could have made a proffer of the specific rules and testimony it sought to elicit from their expert, providing the court an opportunity to assess the admissibility, including relevance, probative value and prejudice. At the very least, given the sustained objection and denied sidebar, counsel should have requested an opportunity to make a proffer of the specific rules and testimony at the conclusion of its direct examination. See A. McD. v. State, 422 So.2d 336, 337 (Fla. 3d DCA 1982) (observing “[i]t is axiomatic that failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error”). See also Brantley v. Snapper Power Equip., Inc., 665 So.2d 241, 242 n. 3 (Fla. 3d DCA 1995) (observing that where no adequate record of the excluded evidence is made during the hearing on the motion in limine, an offer of proof must be made at trial).

Even were this claim adequately preserved , our review of the record leads us to conclude that plaintiffs failed to establish the trial court abused its discretion in excluding the reference to the Florida Rules of Professional Conduct, or that this exclusion, if error, was harmful. Plaintiffs sought to utilize these provisions, at least in part, to establish the appropriate standard of care. The preamble to Chapter Four of the Rules of Professional Conduct provides in pertinent part:

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty. Nevertheless since the rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.

(Emphasis added).

Plaintiffs assert that the last sentence above mandates the admission of any rule of professional conduct claimed to have been violated by a defendant, and therefore, our standard of review is de novo. We previously have observed that “a [violation of the Code of Professional Responsibility does not prove negligence per se, ... but it may be used as some evidence of negligence.” Oberon Invs., N.V. v. Angel, Cohen & Rogovin, 492 So.2d 1113, 1114 n. 2 (Fla. 3d DCA 1986), rev’d on other grounds, 512 So.2d 192 (Fla.1987). See also Pressley v. Farley, 579 So.2d 160, 161 (Fla. 1st DCA 1991) (holding violation of the Rules of Professional Conduct does not create a legal duty on the part of the lawyer nor constitute negligence per se, although it may be used as some evidence of negligence).

Nevertheless, Plaintiffs have failed to provide any case to support the proposition that the trial court had neither the discretion to determine the admissibility of this evidence, nor the authority to assess, if admissible, whether the “probative value of such evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2012). We do not agree that the preamble language or the caselaw mandates the admission of such evidence; rather, the decision to admit or exclude such evidence remains vested in the broad discretion of the trial court, and will not be disturbed absent an abuse of that discretion. Hendry v. Zelaya, 841 So.2d 572 (Fla. 3d DCA 2003). This discretion may be exercised, generally, to balance the probative value against the danger of unfair prejudice, see § 90.403, or, more specifically here, to ensure the Rules of Professional Conduct are not “subverted when they are invoked by opposing parties as procedural weapons.” R. Regulating Fla. Bar 4 — Preamble.

In the instant case, each side called a legal expert to offer opinions regarding the applicable standards of care and whether the conduct of defendant Brown fell below those standards of care. The trial court reviewed the motions in limine and responses, heard argument from counsel prior to trial, and deferred ruling until the presentation of evidence at trial. Even had the motion been ruled on definitively and properly preserved prior to or during trial, we conclude that, given the relatively elementary nature of the specific rule provisions involved, the issues actually in dispute at trial, and our review of the trial testimony of the experts called on behalf of each side, there was no abuse of discretion in the trial court’s determination.

Finding no error in the other claims raised by plaintiffs on appeal, we affirm the judgment below.

Affirmed.

      . In their brief, Plaintiffs assert they sought admission of the following specific provisions: Rule 4-1.1 ("Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”);
      Rule 4-1.3 (“Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.”);
      Rule 4-1.4(a)(2)("Informing Client of Status of Representation. A lawyer shall: reasonably consult with the client about the means by which the client's objectives are to be accomplished.”);
      Rule 4-1.4(b)(“Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding die representation.”);
      Rule 4-4.1(a) ("Truthfulness in statements to others. In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.”).

      . Neither Defendants' motion in limine, nor Plaintiffs’ response, sets forth the precise rules (or testimony thereon) which plaintiffs sought to introduce. Nor did plaintiffs articulate this during the pretrial hearing. During the testimony of the experts (as discussed infra) the only two rules mentioned related to honesty and communication with the client. This failure to proffer — in their response to the motion in limine, during the hearing on the motion, or during the trial itself — the specific rules and testimony sought to be elicited (as opposed to a generic reference to the rules) underscores the need to adequately preserve the claimed error.
      The primary purpose of a proffer is to set forth, on the record, the evidence sought to be introduced, so the appellate court may assess the existence and extent of any error in the exclusion of the evidence. See Frances v. State, 970 So.2d 806 (Fla.2007). Given the interlocutory nature of a ruling on a motion in limine and “the shifting sands of the trial in progress,” a proffer can serve another equally important purpose. Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997). An in-trial proffer provides the trial court with the substance, scope and relevance of the evidence sought to be introduced, viewed in the context of the testimony already adduced. Such a proffer affords the trial court an opportunity to reconsider its prior ruling (or better inform a deferred ruling), and may result in the admission of the proffered evidence, eliminating any potential error. Id.; Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980).

      . We will not speculate whether, as Plaintiffs contend in their brief, they requested the sidebar for the purpose of making a proffer to preserve this issue. A review of the trial record reveals Plaintiffs never advised the court of this now-asserted purpose, nor do Plaintiffs contend the trial court in any way prevented Plaintiffs from making a proffer. Cf. Cason v. Smith, 365 So.2d 1042 (Fla. 3d DCA 1978).

      . At most, the only issues which arguably have been preserved relate to whether the Rules of Professional Conduct require an attorney to be honest and to communicate with the client, as those were the only two questions posed to plaintiffs’ expert. As to the former question, the expert answered the question (although an objection was thereafter sustained), and the defendants' own expert later acknowledged, during his testimony, that "the rules of the Florida Bar are that a lawyer should not knowingly make a statement that’s false.” Thus, the only remaining error Plaintiffs could raise relate to the sustained objection to the single question of whether the Rules of Professional Conduct require an attorney to communicate with his or her client. However, in his testimony, Defendants' expert agreed a lawyer has a duty to communicate with his or her client

      . Plaintiffs contend the standard of review is de novo, premised on their position that the trial court was required, as a matter of law, to admit the relevant rules to establish the standard of care. See discussion infra.

      . Neither side disagrees with the proposition, as set forth in the preamble, that the rules "are not designed to be a basis for civil liability.” See also Beach Higher Power Corp. v. Rekant, 832 So.2d 831, 833 n. 2 (Fla. 3d DCA 2002) (noting that the Rules of Professional Conduct "clearly provide that they are not to be applied for the purpose of determining ... liability”).

      . Notwithstanding the exclusion of any reference to the rules, the defendants’ expert, when cross-examined by plaintiffs, agreed on the existence of virtually every duty and standard of care referenced by plaintiffs, including the duty to properly represent his client to the best of his ability; the duty to understand the law and the transaction at issue; the duty to explain the transaction to the client and clear up any confusion the client may have regarding the transaction at issue; and the duty not to make false statements.
      The central issue in the case was not the existence of the standards of care, but rather the factual questions surrounding defendants’ actions or inaction in the underlying transaction and whether those actions or inaction fell below the agreed-upon standards of care.

        Any alleged error was harmless. See § 59.0410, Fla. Stat. (2012); Golden & Co-wan, P.A. v. Estate of Kosofsky, 45 So.3d 986 (Fla. 3d DCA 2010).


author: CORTINAS, J.

text:
    Thomas F. COLLINS, et al., Appellants, v. MONROE COUNTY, a Political Subdivision of the State of Florida, and the State of Florida, Appellees.
    No. 3D11-2994.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.
    Rehearing Denied Sept. 3, 2013.

      James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellants.
    Derek V. Howard, Assistant County Attorney, for Monroe County; Pamela Jo Bondi, Attorney General and Jonathan A. Glogau, Chief Complex Litigation, and Lisa M. Raleigh, Tallahassee, Special Counsel, for appellees.
    Before CORTINAS, EMAS and LOGUE, JJ.
   CORTINAS, J.

“[G]eography blended with time equals destiny.”

—Joseph Brodsky

An appeal, and perhaps destiny, bring us back to that unique segment of geography knows as the Florida Keys. In our fifth encounter with these particular appellants, we again explore properties on myriad Keys whose ownerships span decades and whose course to potential development traverses equally numerous paths. The Landowners now return to our Court seeking review of the Final Judgment Denying and Granting Liability entered by the trial court. We affirm.

I. Procedural Background

The Landowners own property in Monroe County, Florida (the “County”). Pursuant to the Monroe County Year 2010 Comprehensive Plan (the “2010 Plan”), the Landowners filed petitions for a Beneficial Use Determination (“BUD”). “A BUD petition requires an applicant to demonstrate that the comprehensive plan and land development regulations in effect at the time of the BUD application deprive the applicant of all reasonable economic use of the property.” Collins v. Monroe Cnty., 999 So.2d 709, 711 (Fla. 3d DCA 2008) (“Collins /”) (citing Monroe Cnty. Code, Sec. 9.5-173, Relief Under Beneficial Use). The petitions were heard in 2000 by a Special Master. Collins I, 999 So.2d at 711. Following the recommendation of the County’s Planning Director, the Special Master hearing each petition determined that each Landowner had been deprived of all use and value of their respective properties and further recommended that the County purchase each of the Landowners’ properties. Id. at 711-12. The County’s Board of Commissioners (“BOCC”) approved the recommendations to purchase the properties. Between 2002 and 2004, the BOCC issued resolutions finding in each instance that applicant had been “deprived of all economic use” of the property at issue and the appropriate remedy was just compensation by purchase in accordance with the 2010 Plan and the Monroe County Code (the “Code”).

In 2004, the Landowners filed an inverse condemnation action against the County “seeking just compensation for the alleged permanent constitutional taking of their property.” Id. at 712. The County, in turn, filed a third party action against the State of Florida. The trial court eventually granted summary judgment against the Landowners, finding that the “ ‘BUD petitions do not constitute the meaningful applications necessary to ripen an as-applied takings claim,’ and that, ‘the claims must be treated in this case as facial takings claims.’ ” Id. at 713.

On appeal, we reversed since the Landowners’ claims were “properly brought as as-applied challenges to the application of the Monroe County land use regulations to specific parcels of property.” Id. at 715. Furthermore, we held that “the Landowners’ claims for inverse condemnation were ripe in 2002 when the BOCC rendered its BUD Resolutions, and the cause of action was timely filed within the four-year statute of limitations.” Id. at 717-18. In arriving at our holding, we specified that

The record shows that the enactment of the regulation did not deprive the Landowners of all reasonable economic use of their property. There is evidence in the record that a subset of the Landowners received post-BUD building permits, or even sold their property. This is strong evidence that those particular properties did, in fact, have development value, that the value of those properties was not completely eliminated by application of the 2010 Comprehensive Plan, and contradicts the findings of the Special Master and the BOCC that a facial taking occurred.

Id. at 714. We then remanded “for consideration of those factors necessary to evaluate an as-applied taking specific to each of the Landowners” and specifically instructed the trial court to:

[Djetermine — for each of the properties — what, if any, reduction in beneficial use has been sustained by application of the challenged land use regulation. In determining to what compensation, if any, the Landowners are entitled, the court must take into consideration the reasonable investment-backed expectations of each Landowner relative to date of purchase (pre-or post-land use regulation) and post-BUD resolution events (sale of property, grants of development permits, lifting of morato-ria, etc.) that, despite the BOCC’s resolutions finding complete diminution of value, may have an impact on the type and level of compensation to be granted to each.

Id. at 718 (emphasis added).

In accordance with our opinion in Collins I, a nine-day liability bench trial on the Landowners’ regulatory takings claims was held in April 2011. The trial court found liability solely in favor of Mr. Davis and found no liability as to the other Landowners. We affirm.

II. Facts

The trial court made several findings of fact as to the properties at issue. Since this was a bench trial, the trial judge’s findings come to us clothed with a presumption of correctness and will not be disturbed unless the appellants are able to demonstrate that the findings are clearly erroneous. Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA 2007); Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005).

A.The Lomrance Property

The Lomrance Property was purchased in 1981 for $6,000 and consists of four (4) unimproved lots on Big Torch Key. Mr. Lomrance was later offered $144,000 by Florida Forever, the Florida Department of Environmental Protection’s land acquisition program, but the offer was refused.

B.The Tost Property

The Tost Property is located on Sum-merland Key and was purchased in 1968 by Mr. Tost. At the time of purchase, Mr. Tost could have built as many as eight (8) homes. Presently, there are three recently-developed homes near the Tost property. Construction required dredge and fill permits as well as mangrove mitigation. Additionally, culverts were installed to alleviate the potentially stymied water flow.

C.The Davis, Johnson, and Radenhauser Properties

The trial court addressed these three properties together because of their “striking similarities.” All three properties are located on Big Pine Key. Based upon the evidence presented, the trial court found that the properties were “incongruous with their neighbors” because the properties are surrounded by improved real estate. It bears noting that the properties owned by the Magrinis and the Collins were also located on Big Pine Key and building permits were issued as to both properties.

D.The Burstyn and Del Valle Properties

Both the Burstyn and Del Valle properties are located on Duck Key. The trial court found that both lots are highly suitable for single family homes.

The Burstyn property was obtained in 1987 as partial payment for attorney services rendered. It is bordered by a nearly-completed stilt home.

The Del Valles purchased their property in 1990 and were put on notice of possible development issues that could potentially impede, though not entirely eliminate, their ability to improve their property.

E.The Hill Property

The Hill property was purchased in October 1984. The Hills own a successful fishing business on Key Largo. Their original intent was to clear the lot to create parking for the Hills’ retail market and for storage of commercial and recreational fishing gear. A Hill family descendant testified at trial that their present interest remains using the lot to park cars, store traps, and provide space for boat trailers.

III. Analysis

As we have previously set forth, “[i]n addressing whether a ‘taking’ has occurred, the United States Supreme ‘Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.’” Galleon Bay Corp. v. Bd. of Cnty. Comm’rs of Monroe Cnty., 105 So.3d 555, 565 (Fla. 3d DCA 2012) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). Moreover, “ ‘whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely upon the particular circumstances [in that] case.’ ” Id. (quoting Penn Cent. Transp. Co., 438 U.S. at 124, 98 S.Ct. 2646).

While the Landowners own properties on distinct areas of the Florida Keys, there appears to be one underlying commonality among them: with the exception of Mr. Davis, the Landowners did not take meaningful steps toward the development of their respective properties, or seek building permits, during their sometimes decades-long possession of their properties. While the Landowners appear to rely heavily on the BUDs and BOCC resolutions, which found that they had been deprived of all economic use of their properties, it would have been difficult for the trial court to find that the Landowners had, in fact, been deprived of all economic use of their land where building permits were issued to the Collins and Magrinis, even after the BUDs and BOCC resolutions. Furthermore, as we noted in Collins I, “Monroe County was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the Landowners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances.” Collins I, 999 So.2d at 718 n. 16 (quoting Monroe Cnty. v. Ambrose, 866 So.2d 707, 711 (Fla. 3d DCA 2003) (“It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land.”)). The property owner in Galleon Bay serves as a suitable contrast to the Landowners in the instant case. In Galleon Bay, the property owner, over the course of several decades, proceeded with numerous efforts to improve its land including, but not limited to, having its subdivision platted, having the zoning district changed, extensively negotiating with the County, and revising its plat. Galleon Bay, 105 So.3d at 555-61. Here, there was a noticeable lack of meaningful efforts by the Landowners to explore the possible development options where, under the specific facts of this case, they became aware that building permits could be made available to them despite the BUDs and BOCC resolutions.

Based upon the foregoing, we affirm the trial court’s Final Judgment.

Affirmed.

      . See Riordan v. Monroe Cnty., 99 So.3d 961 (Fla. 3d DCA 2012); Collins v. Monroe Cnty., 76 So.3d 370 (Fla. 3d DCA 2011); Collins v. Monroe Cnty., 999 So.2d 709, 714 n. 9 (Fla. 3d DCA 2008); and State v. Collins, 940 So.2d 437 (Fla. 3d DCA 2006).

      . The named appellants are Thomas F. Collins and Patricia Collins, Donald Davis, Aurelia Del Valle and Maria Del Valle, Hill Family Investments, Inc., Richard J. Johnson and Joann C. Johnson, Robert A. Lomrance, Joseph Magrini and Elda S. Magrini, Keith P. Radenhausen; Gregory Riordan, Trustee; Hubert Tost and Marilyn Tost, and Samuel I. Burstyn, P.A. (collectively “Landowners”).

      . Of the original set of 11 Landowners, the Collins and the Magrinis each obtained building permits for their respective properties. The Magrini property was sold in 2007. See Collins v. Monroe Cnty., 999 So.2d 709, 714 n. 9 (Fla. 3d DCA 2008). The trial court subsequently granted summary judgment against the Collins and the Magrinis and we affirmed the summary judgment in Collins v. Monroe County, 76 So.3d 370 (Fla. 3d DCA 2011). Summary judgment was also entered against Gregory Riordan, Trustee, and we also affirmed in Riordan v. Monroe County, 99 So.3d 961 (Fla. 3d DCA 2012).

      . Despite being titled the Monroe County Year 2010 Comprehensive Plan, the 2010 Plan in actuality took effect in 1996.

      . The Collins, Magrinis, and Trustee Riordan, were not involved in the trial since their claims had been resolved by summary judgment beforehand.

      . Mrs. Del Valle testified at trial that her contract for the purchase of her property contained an addendum which advised them "that the capacity of the infrastructure, such as the level of the road surface and solid waste, may affect the ability of a building permit for vacant lots at some point in the future.” She further testified that they were "advised [they] should seek legal counsel or consult with the Monroe County Planning and Zoning Department on [their] own discretion.” Although she testified that she and Mr. Del Valle retained counsel, based upon her testimony, it appears that their counsel’s representation was limited to assisting them with the closing of the purchase of their property.

      . Galleon Bay involved a landowner who expended hundreds of thousands of dollars in an effort to develop its property and in pursuit of its reasonable investment-backed expectations. Id. at 567. Here, the evidence presented at trial showed relatively passive landowners who took minimal action towards the improvement or development of their respective properties and invested little into the development other than their initial purchase costs. Under these facts, the trial court correctly found in favor of the appellees under the reasonable investment-backed expectation prong of Penn Central.


text:
    Janet RODRIGUEZ, et al., Appellants, v. William F. MURPHY, Appellee.
    Nos. 3D13-686, 3D13-361.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.
    Rehearing Denied Aug. 30, 2013.

      Janet Rodriguez, in proper person.
    Murphy & O’Brien, LLC, and William F. Murphy, Miami, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).


text:
    Paul AURIEMME, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-3904.
    District Court of Appeal of Florida, First District.
    July 10, 2013.
    Rehearing Denied Aug. 22, 2013.
    Paul Auriemme, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


text:
    Michael GRINER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-0834.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Aug. 16, 2013.
    Michael Griner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charles F. Rivenbark, II, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED.

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    David Russell POSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2949.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Aug. 19, 2013.

      David Russell Posey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(d)(5).

WOLF, ROBERTS, and RAY, JJ., concur.