author: TAYLOR, J.

text:
    DIPLOMAT PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, as assignee of Shower Concepts, Inc., a Florida corporation, Appellant, v. TECNOGLASS, LLC, a Florida limited liability company, Tecnoglass USA, Inc., a Florida corporation, Tecnoglass Colombia S.A., Inc., a foreign corporation, and Guardian Industries Corp., a foreign corporation, Appellees.
    No. 4D12-2086.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Edward M. Baird and Russell J. Newman of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for appellant.
    Phillip M. Hudson III and Hilda Piloto of Arnstein & Lehr LLP, Miami, for appel-lees.
   TAYLOR, J.

Appellant, Diplomat Properties, L.P. (“Diplomat”), appeals an order which dismissed all of its claims against the defendants, Tecnoglass USA, Inc., and Tecno-glass Colombia S.A., Inc. (collectively “Tecnoglass”). In this appeal, Diplomat challenges only the dismissal of its common law indemnity claim. We reverse.

Diplomat is the owner of the Westin Diplomat Resort and Spa (the “hotel”) in Hollywood, Florida. During the construction of the hotel, Diplomat contracted with Shower Concepts, Inc. (“Shower Concepts”) to furnish and install glass shower doors in the guest rooms. Shower Concepts, in turn, entered into a contract with Tecnoglass, who fabricated the glass doors. After the hotel opened for business in 2002, at least thirty-nine of the installed glass doors spontaneously fractured into small pieces. According to Diplomat’s complaint, nickel sulfide inclusions in the glass doors caused them to break spontaneously.

In 2006, Diplomat brought an arbitration proceeding against Shower Concepts to recover damages for breach of contract. Specifically, Diplomat sought to recover the costs associated with replacing all the defective glass shower doors in the hotel. Shower Concepts failed to defend and did not appear at the arbitration hearing. In 2007, the arbitrator rendered an award in favor of Diplomat and against Shower Concepts. In 2008, the circuit court confirmed the arbitrator’s award and entered a final judgment awarding Diplomat over $2.5 million against Shower Concepts. In exchange for Diplomat’s agreement not to execute on the judgment, Shower Concepts assigned to Diplomat any claims it had against third parties arising from the defects in the glass doors.

In 2011, Diplomat, standing in the shoes of Shower Concepts, filed a multi-count complaint against Tecnoglass, Tecnoglass LLC, and another defendant. Relevant to this appeal, Count VI of the complaint asserted a claim against Tecnoglass for common law indemnification.

Tecnoglass moved to dismiss all of Diplomat’s claims. The motion to dismiss sought dismissal of the common law indemnity claim on two grounds: 1) Diplomat did not allege facts supporting the existence of a special relationship between Shower Concepts and Tecnoglass; and 2) the arbitrator’s award held Shower Concepts liable for breach of contract and included “no finding that such liability is vicarious, constructive, or derivative to the Defendants.”

Following a hearing on the motion to dismiss, the trial court dismissed all of Diplomat’s claims against Tecnoglass with prejudice. This appeal ensued.

We apply a de novo standard of review to a final order of dismissal for failure to state a cause of action. Kreizinger v. Schlesinger, 925 So.2d 481, 432 (Fla. 4th DCA 2006). A court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. Id. at 432-38.

The seminal Florida case on common law indemnity is Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). The issue presented in Houdaille was whether a manufacturer of a defective product that contributes to an on-the-job injury of a worker may seek common law indemnity from the employer of the injured worker. In addressing this issue, the Florida Supreme Court set forth the general principles of common law indemnity.

Common law indemnity is a claim that “shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Indemnity rests upon the fault of another which has been imputed to or constructively fastened upon the one seeking indemnity, and there can be no indemnity between joint tortfeasors.” Id.

The Florida Supreme Court noted that although the courts “have consistently premised the allowance of indemnity upon a special relationship between the primary defendant and the third-party defendant,” confusion had arisen over the use of the labels that courts employed to designate the types of conduct that would permit the party seeking common law indemnity to recover. Id. The Houdaille court stated that “[rjegardless of what specific terms are employed whether the courts say active-passive or primary-secondary what they are really speaking of is fault or no fault.” Id.

The Florida Supreme Court explained that in determining whether a party is entitled to indemnity, the courts will not weigh the relative fault of the parties. Id. Rather, the courts must look to the party seeking indemnity to determine whether he is without fault. Id. If both parties are at fault, no matter how slight the fault of the party seeking indemnity, recovery for common law indemnity is precluded. Id. at 494.

Applying these principles, the Florida Supreme Court held that “absent a special relationship between the manufacturer and the employer which would make the manufacturer only vicariously, constructively, derivatively, or technically liable for the wrongful acts of the employer, there is no right of indemnification on the part of the manufacturer against the employer.” Id. at 492. The court noted that the manufacturer’s claim that the worker’s death resulted solely from the negligence of the employer would have stated a complete defense to the original action, and did not establish that the manufacturer was vicariously, constructively, derivatively, or technically liable for the employer’s negligence. Id. at 494. However, the court noted that a “different situation may exist where the manufacturer’s liability arises because of a defective component supplied by another and incorporated into the product which is subsequently sold to one injured by the defect.” Id. at 493 n. 3. “In that case, a manufacturer who is held liable for a breach of an implied warranty of fitness could be without fault insofar as its relationship with the supplier of the component part is concerned and may be permitted to seek indemnification from the supplier.” Id.

Following the Houdaille decision, “[fjor a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 642 (Fla.1999). “First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. Second, indemnification can only come from a party who was at fault.” Id. (citation omitted). “Additionally, Florida courts have required a special relationship between the parties in order for common law indemnification to exist.” Id.

Undoubtedly, the most common factual scenario for an indemnity claim is where the party seeking indemnity was exposed to tort liability through no fault of its own. However, contrary to Tecno-glass’s argument, a party’s liability for breach of contract can form the basis for an indemnification claim against a third party. See Auto-Owners Ins. Co. v. Ace Elec. Serv., Inc., 648 F.Supp.2d 1371, 1379 (M.D.Fla.2009) (holding that a City, which was sued by an electrical contractor for breach of contract following a dispute regarding additional costs necessary to complete electrical work, could maintain a common law indemnity claim against a design professional “to the extent the City is found to be without fault for the conduct which forms the basis of the indemnity claim”); Hiller Group, Inc. v. Redwing Carriers, Inc., 779 So.2d 602, 608-04 (Fla. 2d DCA 2001) (holding that a fuel broker, which was sued by a marina for breach of warranty and breach of contract arising out of contaminated fuel, was entitled to indemnification from the company that improperly pumped the wrong fuel into the marina’s storage tanks; the fuel broker was exposed to liability through no act of its own, but due solely to the wrongful acts of the company that delivered the fuel).

Here, the fact that Shower Concepts was found liable for breach of contract does not preclude it (or its assignee) from bringing a common law indemnity claim against Tecnoglass. The federal court’s analysis in Auto-Owners is instructive:

In this case, the City’s potential contract liability to Ace [the electrical contractor] does not mean that its liability is “direct” such that an indemnification claim is impermissible. To the extent Dickens [the design professional ] is arguing that contract liability to one party can never form the basis of an indemnification claim against a third party, the argument is unpersuasive. Of the terms “vicarious,” “constructive,” “derivative” and “technical” liability, only “vicarious liability” is a recognized term of art, and it is typically used to describe liability imposed by agency law. The Florida Supreme Court’s analysis in Houdaille strongly suggests that the other three terms, “constructive,” “derivative,” and “technical,” are meant merely to capture the concept that the party seeking indemnity must be without fault ....
As these passages demonstrate, the common theme throughout the opinion is the need for the party seeking indemnity to be faultless, and the Florida Supreme Court has given no indication that a party’s liability for breach of contract precludes a finding of faultlessness. In fact, the common usage of indemnification against manufacturers in products liability cases where a customer sues a retailer for breach of implied warranty, a type of contract claim, suggests that a party may be indemnified for liability arising from a breach of contract.

648 F.Supp.2d at 1179 (emphasis added). The federal court went on to give several scenarios in which the electrical contractor could successfully sue the City for some of the alleged breaches of contract, yet the City would nevertheless be faultless. Id. at 1180.

In this case, Diplomat, which stepped into the shoes of Shower Concepts, alleged that 1) Shower Concepts was wholly without fault for the defective shower doors, 2) Tecnoglass was at fault for the defective shower doors, and 3) Shower Concepts was held vicariously, constructively, derivatively or technically liable for the wrongful acts of Tecnoglass. These allegations were sufficient to state a cause of action for common law indemnity. See Fla. Farm Bureau Gen. Ins. Co., v. Ins. Co. of N. Am., 763 So.2d 429, 435 (Fla. 5th DCA 2000) (“In order to properly plead a cause of action for common law indemnity, the party seeking indemnity must allege in his complaint 1) that he is wholly without fault; 2) that the party from whom he is seeking indemnity is at fault; and 3) that he is liable to the injured party only because he is vicariously, constructively, derivatively, or technically liable for the wrongful acts of the party from whom he is seeking indemnity.”).

Diplomat did not need to specifically plead the existence of a “special relationship” between Shower Concepts and Tecnoglass in order to properly state a cause of action for common law indemnity. The term “special relationship” merely describes a relationship which makes a faultless party “only vicariously, constructively, derivatively, or technically liable for the wrongful acts” of the party at fault. Houdaille, 374 So.2d at 492. Here, Diplomat alleged that Shower Concepts was “vicariously, constructively, derivatively or technically liable” solely because Tecno-glass supplied Shower Concepts with defective glass shower doors. This is a sufficient allegation of vicarious, constructive, derivative or technical liability. See id. at 493 n. 3 (explaining that a manufacturer who is held liable for a breach of an implied warranty of fitness “could be without fault insofar as its relationship with the supplier of the component part is concerned and may be permitted to seek indemnification from the supplier”); see also K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9 (Fla. 5th DCA 1987) (“The mere selling of a defective product by a retailer does not constitute ‘fault’ under Houdaille. Rather, the retailer is ‘vicariously, constructively, derivatively or technically liable’ in that instance.”) (footnotes omitted).

The Fifth District’s decision in Paul N. Howard Co. v. Affholder, Inc., 701 So.2d 402 (Fla. 5th DCA 1997), does not change the result. There, the Fifth District held that a general contractor could not state a claim for common law indemnity against an independent subcontractor, because the general contractor “cannot be held vicariously, constructively, derivatively, or technically liable for” the independent contractor’s alleged negligence. Crucial to the Fifth District’s analysis, however, was that if the claimant’s injury was caused by the negligence of the independent contractor, there would be no liability on the part of the general contractor. Id. at 403. Thus, in Affholder, any claim that the underlying injury resulted solely from the negligence of the independent contractor would have been a complete defense for the general contractor. By contrast, in this case, the complaint alleged that Shower Concepts was in fact held liable, due to its contract with Diplomat, for the negligence of Tec-noglass in fabricating the defective glass doors.

Tecnoglass also argues that the common law indemnity claim is barred because Shower Concepts failed to raise as a defense in the arbitration proceeding that its liability was vicarious, constructive, derivative or technical. This argument is simply a non-sequitur. A claim for common law indemnity is a basis for recovery against a third party, not a defense to a breach of contract action. In other words, a claim that the failure of the glass shower doors resulted solely from the negligence of Tecnoglass would not have stated a defense to Diplomat’s claim against Shower Concepts for breach of contract. Accordingly, Shower Concepts did not need to claim in the original arbitration proceeding that its liability was vicarious, constructive, derivative or technical in order to preserve its indemnity claim against Tecnoglass.

Moreover, Shower Concepts did not need to bring a third party claim against Tecnoglass in the original arbitration proceeding, as Tecnoglass now suggests. The Florida Rules of Civil Procedure do not provide for compulsory third party claims. The language of Florida Rule of Civil Procedure 1.180, which governs third party practice, is not mandatory. See Fla. R. Civ. P. 1.180 (Author’s Comment — 1967) (“The language of the rule is not mandatory, and a party may refrain from impleading a third party defendant and assert his claim in an independent action if he so prefers”). Therefore, Diplomat, standing in the shoes of Shower Concepts, was free to assert the third party common law indemnity claim against Tecnoglass in an independent action after the conclusion of the original arbitration proceeding.

Finally, Tecnoglass argues that Shower Concepts was “liable for failing to properly install” the glass doors under its contract with Diplomat, thereby precluding the indemnity claim. To be sure, a former adjudication against an indemni-tee, finding the indemnitee’s acts to be wrongful, is binding against the indemni-tee and precludes indemnification. Aerovias, SA. v. Air Haiti, S.A., 680 So.2d 1077, 1078 n. 1 (Fla. 3d DCA 1996). In this case, however, there is no finding in the four corners of the arbitrator’s award that Shower Glass improperly installed the glass doors or was otherwise “at fault” for the failure of the glass doors. Moreover, the complaint in the instant case specifically alleged that Shower Glass was only vicariously, constructively, derivatively or technically liable, which is sufficient to withstand a motion to dismiss. Accordingly, there is no former adjudication against Shower Concepts finding its acts to be wrongful, and Diplomat — standing in the shoes of Shower Concepts— may maintain its indemnity claim. See id. at 1078 & n. 1 (although the plaintiffs complaint against the indemnitee included allegations of negligence and the plaintiff prevailed on summary judgment against the indemnitee, the indemnitee in its third-party complaint asserted that its liability arose only vicariously from the third-party defendant’s negligence and the plaintiffs judgment against the indemni-tee did not constitute a former adjudication finding the indemnitee’s acts to be wrongful).

In sum, because Diplomat stated a cause of action for common law indemnity, the trial court erred in dismissing this claim. We reverse the dismissal of the common law indemnity claim and remand for further proceedings.

Reversed and Remanded.

MAY, C.J., and GERBER, J., concur.

      . Diplomat later voluntarily dismissed its claims against Tecnoglass LLC.

      . Of course, if Tecnoglass can prove that Shower Concepts was even slightly at fault for the failure of the glass doors, then the indemnity claim will fail. However, the issue of whether Shower Concepts was in any way at fault in causing the failure of the glass doors is one that cannot be decided at the motion to dismiss stage. The only issue before the court at this stage is whether the allegations of the complaint were sufficient to state a claim for common law indemnity.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    BONE & JOINT TREATMENT CENTERS OF AMERICA, Appellant/Cross-Appellee, v. HEALTHTRONICS SURGICAL SERVICES, INC., Appellee/Cross-Appellant, HT Orthotripsy Management Company, LLC, and SanuWave, Inc., Appellees.
    Nos. 3D12-52, 3D12-82.
    District Court of Appeal of Florida, Third District.
    May 22, 2013.

      Carlton Fields, P.A., and Charles M. Rosenberg and Nancy C. Ciampa, Miami, for appellant/cross-appellee.
    Petros & Elegant, and William L. Petros and Serena A. Witter, Coral Gables, for appellees and for cross-appellant Health-Tronics Surgical Services, Inc.

      Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The plaintiff below, Bone & Joint Treatment Centers of America (“BJA”), appeals from the final judgment entered in its favor against defendant HealthTronics Surgical Services, Inc. (“HealthTronics”), and from the final judgment entered in favor of defendants HT Orthotripsy Management Company, LLC (“HTO”), a wholly-owned subsidiary of HealthTronics, and SanuWave, Inc. (“SanuWave”). Health-Tronics cross-appeals from the final judgment entered in favor of BJA. We reverse the final judgment entered in favor of BJA, and remand for entry of a final judgment in favor of HealthTronics, and affirm the final judgment entered in favor of HTO and SanuWave.

This appeal and cross-appeal stem from an agreement entered into between five entities following months of negotiations— HealthTronics; BJA, whose partners are Dr. Marvin Madorsky (“Dr. Madorsky”) and Dr. Richard Levitt; HTO; Miami Medical Management, Inc.; and Bone & Joint Center of South Florida, Ltd. (“Agreement”). One of the primary issues asserted in the cross-appeal relates to Paragraph 11 of the Agreement, which grants “tag along” rights to BJA in the event that “HTO accepts an offer to Dispose of all or substantially all of [its] interest” to a third party, but does not grant HealthTronics any tag along rights.

A few years after the five entities entered in the Agreement, HealthTronics entered into a purchase agreement with Sa-nuWave, whereby HealthTronics agreed to sell its entire orthotripsy division, which was held by its subsidiary HTO, to Sanu-Wave. Following the execution of the purchase agreement, BJA attempted to exercise the tag along rights set forth in Paragraph 11 of the Agreement. The transaction between HealthTronics and SanuWave closed without BJA exercising any tag along rights. Following the closing, BJA filed suit against HealthTronics, HTO, and SanuWave, asserting several causes of actions, including equitable reformation of the Agreement to include HealthTronics in the tag along provision set forth in Paragraph 11.

The predecessor judge, Judge Peter Adrien, bifurcated the reformation claim from the remaining claims asserted by BJA. During the bench trial, Judge Adrien heard evidence regarding the parties’ intent when entering into the Agreement and he reviewed several emails between HealthTronics’ counsel, Ted Biderman (“Mr. Biderman”), and BJA’s counsel, Marsha Madorsky (“Ms. Madorsky”), relating to the tag along provision. At the conclusion of the bench trial, Judge Adrien ruled that (1) due to the parties’ mutual mistake, HealthTronics was not named in the tag along provision, or (2) if there was no mutual mistake, there was a unilateral mistake on BJA’s part coupled with inequitable conduct on HealthTronics’ part. Specifically, Judge Adrien found that Mr. Biderman, HealthTronics’ counsel, assured Dr. Madorsky that HealthTronics would accommodate the request for a tag along provision, and in reliance, BJA relinquished its exclusive right to distribute the OssaTron machine and provide ortho-tripsy services in Florida. Judge Adrien also found that HealthTronics acted inequitably by structuring the sale to Sanu-Wave in a way that denied BJA of its tag along rights. In May 2010, Judge Adrien entered an order granting equitable reformation of the Agreement to add HealthTronics to the tag along provision, and ordering that a jury determine the tag along damages.

At the conclusion of the six-day trial, the defendants moved for a directed verdict as to all counts, including equitable reformation. The trial court granted the motion as to several counts, but denied the motion as to equitable reformation. Therefore, the only issue remaining for the jury’s determination was the amount of tag along damages, if any. The jury awarded $278,996 to BJA against HealthTronics. Thereafter, the trial court entered final judgment in favor of BJA and against HealthTronics. The trial court also entered final judgment in favor of defendants SanuWave and HTO. This appeal and cross-appeal followed.

In the cross-appeal, HealthTronics contends that the trial court erred by granting BJA’s claim for equitable reformation of the Agreement to add HealthTronics to the tag along provision. We agree.

Reformation of a contract is proper if the plaintiff establishes by clear and convincing evidence that the contract is the product of (1) the parties’ mutual mistake, or (2) a mistake on the part of one party coupled with the inequitable conduct on the part of the other party. See Providence Square Ass’n. v. Biancardi, 507 So.2d 1366, 1369, 1372 n. 3 (Fla.1987); Romo v. Amedex Ins. Co., 930 So.2d 643, 649 (Fla. 3d DCA 2006) (noting that reformation of a contract is proper if there is either a mutual mistake of the parties or a unilateral mistake by one party coupled with the inequitable conduct of the other party, and therefore, the written document fails to express the agreement of the parties).

The “clear and convincing” standard is “an intermediate standard of proof between the ‘preponderance of the evidence’ standard used in most civil cases, and the ‘beyond a reasonable doubt standard’ of criminal cases.” Morey v. Everbank, 93 So.3d 482, 489 n. 10 (Fla. 1st DCA 2012). The clear and convincing standard requires that the evidence “be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Id. (quoting Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3d DCA 2011) (citations omitted)). An appellate court “may not overturn a trial court’s finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing.” Morey, 93 So.3d at 489 (quoting Reid, 63 So.3d at 10).

In the instant case, the trial court granted the reformation of the Agreement finding that, based on a mutual mistake of the parties, HealthTronics was not included in the tag along provision or, in the alternative, if there was no mutual mistake, there was a unilateral mistake on the part of BJA coupled with the inequitable conduct of HealthTronics, namely Health-Tronics’ counsel, Mr. Biderman. A review of the record before this Court does not support the trial court’s finding that BJA established by clear and convincing evidence that there was either a mutual mistake by the parties or, in the alternative, a unilateral mistake by one party coupled with the inequitable conduct of the other party.

The record evidence demonstrates that prior to the execution of the Agreement in 2003, the parties to the Agreement were operating under several contracts/agreements relating to the OssaTron, a medical device that treats orthopedic conditions using shock waves, and orthotripsy services utilizing the OssaTron. Over the years, the relationship between the parties deteriorated, and therefore, they met to address their future business relationship (“Blue Lagoon meeting”). BJA’s counsel, Ms. Madorsky, acknowledges that the tag along issue was not addressed at the Blue Lagoon meeting. Moreover, the first draft of the agreement that Mr. Biderman emailed to Ms. Madorsky on February 25, 2003, does not contain a tag along provision. Likewise, the revised drafts emailed by Mr. Biderman to Ms. Madorsky on March 17, 2003, and April 28, 2003, do not contain a tag along provision.

Tag along rights, however, were addressed in a May 8, 2003, email sent from Dr. Madorsky to BJA’s counsel, Ms. Ma-dorsky, which was then forwarded to Mr. Biderman. In relevant part, Dr. Mador-sky stated, “If [HealthTronics] sells their share of the partnership, BJA should have the option to sell their partnership share at the same terms of [HealthTronics].” On the following day, Friday, May 9, 2003, Mr. Biderman responded directly to Dr. Madorsky, stating: “Dr. Madorsky, these are all good points for which we can accommodate. ... I will revise to address your comments and return Wednesday [sic] when i[sie] am back in the office.” However, on Thursday, May 15, 2003, Mr. Bider-man emailed Ms. Madorsky, explaining that the revised draft did not include the requested “ ‘tag along sale rights to BJA as the typical arrangement provides that [HealthTronics] syndicate its interest to physician investors and it does not make sense to try to syndicate a ‘profit interest’ at the same time.” Approximately thirty minutes later, Ms. Madorsky emailed Mr. Biderman, objecting to his failure to include the tag along provision, stating, in part: “I don’t quite understand what you mean about the tag along rights not being included. Why if [HealthTronics] is selling shouldn’t we be afforded the like rights whether profits interest or otherwise.... ” A few minutes later, Mr. Biderman responded to Ms. Madorsky’s email, stating, in part: “This agreement clearly states our agreement at our [Blue Lagoon] meeting and none of these issues were raised in our numerous prior drafts.” Mr. Bider-man also explained that a tag along provision is contrary to HealthTronics’ model.

On May 27, 2003, Ms. Madorsky sent a revised draft of the Agreement to Mr. Biderman that included two drafts of a tag along provision for Mr. Biderman’s consideration. Importantly, the two proposed drafts included tag along rights for BJA only as to HTO, not as to HealthTronics. Thereafter, on July 15, 2003, Ms. Mador-sky suggested additional language to be included in the tag along provision, but the additional language again did not add HealthTronics to the provision. Mr. Biderman agreed to include the additional language, and thereafter, on August 22, 2003, the parties executed the Agreement, which included the following tag along provision:

11. Capital Transaction. If HTO accepts an offer to Dispose of all or substantially all of their interests in the Florida Venture to a third party (the “Acquiror”), then (i) BJA shall have the right to require that the Acquiror acquire the interests of BJA at the same time and on the same terms as HTO interests are being acquired or HTO will be prohibited from Disposing of their interest; and (ii) HTO shall have the right to require that BJA Dispose of their interest to the Acquiror at the same time and on the same terms as the interests of BJA are being acquired. In addition, in the event of such a disposition, any part of the purchase price paid by an Acquiror that is attributable to the rights to develop the territory in Florida or exclusivity in Florida for orthopedic treatment technology, services or procedures, HTO shall split such attributed purchased price equally with BJA (50% each).

Despite these emails, Ms. Madorsky testified that she believed that the tag along provision relating to HTO included a tag along provision for HealthTronics because it was her belief that HTO and Health-Tronics were essentially the same entity.

The trial court’s finding that BJA established by clear and convincing evidence a mutual mistake by the parties is not supported by the record. First, the Agreement identifies each of the five entities separately, including HealthTronics and HTO, and sets forth separate contractual obligations for each entity. Second, the Agreement included separate signatures lines for each of the five separate entities. Third, Ms. Madorsky acknowledged she was aware of the relationship between HTO and HealthTronics — HTO was a wholly-owned subsidiary of HealthTron-ics — but believed that they were one and the same. See Reynolds Am., Inc. v. Gero, 56 So.3d 117, 120 (Fla. 3d DCA 2011) (noting that a “parent corporation and its wholly-owned subsidiary are separate and distinct legal entities”) (quoting Am. Int'l. Grp., Inc. v. Cornerstone Bus., Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004)). Finally, the various emails indicate that Mr. Biderman did not waiver in his position that a tag along provision is contrary to HealthTronics’ model, and Mr. Biderman clearly informed BJA of HealthTronics position.

Next, we address the trial court’s alternative finding that BJA established by clear and convincing evidence that there was a unilateral mistake on BJA’s part coupled with inequitable conduct by HealthTronics’ counsel, Mr. Biderman. The trial court’s finding of inequitable conduct was based on Mr. Biderman’s conduct leading up to the execution of the Agreement and Mr. Biderman’s post-Agreement conduct — the manner in which the sale to SanuWave was structured.

In arguing that the trial court properly relied on Mr. Biderman’s post-Agreement conduct in finding inequitable conduct by HealthTronics, via Mr. Biderman, BJA relies on Resort of Indian Spring, Inc. v. Indian Spring Country Club, Inc., 747 So.2d 974 (Fla. 4th DCA 1999); Kolski v. Kolski 731 So.2d 169 (Fla. 3d DCA 1999); and Ayers v. Thompson, 536 So.2d 1151 (Fla. 1st DCA 1988). We conclude that BJA’s reliance on these cases is misplaced.

First, in Resort of Indian Spring, the issue was whether there was a mutual mistake, not whether there was a unilateral mistake coupled with inequitable conduct. Therefore, Resort of Indian Spring is inapplicable.

Next, in Kolski, the issue was whether the complaint stated a cause of action for reformation. The complaint alleged that the plaintiff (appellant) loaned money to the defendant (appellee), and that the loan was payable on demand. Although the parties did not enter into a written agreement when the loan was made, the appellate court found that the parties’ subsequent writings were sufficient “to take the oral agreement out of the statute of frauds.” Kolski, 731 So.2d at 172. These subsequent writings, however, did not address whether the loan was payable upon demand, and the plaintiff sought reformation of these writings to include a payable on demand provision. This Court held that the trial court erred by dismissing the complaint because the allegations were sufficient to state a cause of action. The Kolski opinion did not address whether a party’s post-writing conduct could form the basis for a finding of inequitable conduct leading to the reformation of the agreement. Thus, Kolski is inapplicable.

Likewise, we conclude that BJA’s reliance on Ayers is misplaced. In Ayers, Mr. Thompson, the purchaser, and Mr. and Mrs. Ayers, the sellers, entered into a purchase and sale agreement. The property was “a portion of, and adjacent to property on which there is situated a restaurant and lounge owned and operated by” the Ayers. Ayers, 536 So.2d at 1152. During closing, the following language was inserted into the warranty deed: “Grantor reserves ten (10) feet along the southerly boundary for common access of both grantor and grantee.” After the transaction closed, Mr. Thompson constructed a building within ten feet of the property line and erected fences extending to the back of the property line. Thereafter, Mr. Ayers’ attorney wrote letters requesting that the fences be removed. Eventually, Mr. Ayers took matters into his own hands, and he had the fences removed.

After the fences were removed, Mr. Thompson filed suit against the Ayers, seeking, in part, the equitable reformation of the warranty deed to strike the easement provision. The parties disputed the circumstances concerning the insertion of the easement provision. Mr. Ayers’ testimony reflected that, in reviewing the survey, he realized that the property to be sold was actually closer to his building than he had anticipated, and thereafter, he informed the realtor that he intended to reduce the amount of land to be sold by ten feet. In response, the realtor suggested that instead of reducing the amount of land, there should be an easement. At closing, Mr. Ayers noticed that the easement provision had not been inserted into the warranty deed. After discussions, the closing agent was directed to insert the easement provision. Mr. Ayers further testified that he would not have signed the warranty deed if the provision had not been inserted.

In contrast, Mr. Thompson testified that he did not know that the closing agent had inserted the easement provision into the warranty deed. After he purchased the property, he constructed a building ten feet from the property line, and thereafter, he erected fences that extended to the back of the property line. Mr. Thompson also testified that he first learned of the easement when he received a letter from Mr. Ayers’ attorney, requesting that the fences be removed.

In the final judgment granting reformation, the trial court acknowledged that at closing, there was discussion regarding either the establishment of a ten-foot set back of the building or an easement to allow ingress and egress along the boundary line, however, “the buyer’s conduct made it clear that he did not intend to grant a ten-foot easement.” Id. at 1153.

Mr. and Mrs. Ayers appealed. The First District Court of Appeal noted that “the trial court was required to resolve conflicting versions concerning not only the point at which the ten-foot reservation was inserted into the deed, but also the purpose of the reservation.” Id. at 1154. The First District concluded:

[T]he trial court’s finding that the subsequent conduct of Mr. Thompson demonstrated that there was no agreement between the parties regarding the grant of a ten-foot easement, is a reasonable interpretation of the evidence. Furthermore, implicit in this determination was the trial court’s finding that Mr. Ayers was guilty of inequitable conduct, thereby justifying the equitable remedy of reformation.

Id. at 1155.

Contrary to BJA’s assertion, the Ayers opinion does not stand for the proposition that the inequitable conduct supporting the reformation of a written conduct can occur after the writing was executed. The Ayers opinion merely points out that Mr. Thompson’s post-writing conduct demonstrates that he did not know that a certain provision had been inserted into the writing, and therefore, implicitly found that Mr. Ayers was guilty of inequitable conduct. The inequitable conduct was Mr. Ayers’ involvement in, or knowledge of, the insertion of the easement provision in the warranty deed without Mr. Thompson’s knowledge. The warranty deed, therefore, failed to express the agreement of the parties.

In the instant case, there was no inequitable conduct by HealthTronics’ counsel, Mr. Biderman, leading to the execution of the Agreement. Throughout the negotiations, Mr. Biderman informed BJA that a tag along provision relating to Health-Tronics would not be included in the Agreement. Finally, after months of negotiations, Ms. Madorsky, BJA’s counsel, drafted two proposed tag along provision as to HTO, not HealthTronics, and requested that Mr. Biderman agree to include one of the provisions in the final Agreement. At Ms. Madorskys request, Mr. Biderman chose one of the two provisions, which was ultimately inserted into the Agreement. Therefore, unlike Ayers, in the instant case, the party seeking reformation, BJA, knew the provision was being inserted into the Agreement and had itself proposed the specific language of the provision.

As we conclude that the record evidence does not support the trial court’s finding that BJA established by clear and convincing evidence that there was either a mutual mistake by the parties or a unilateral mistake by one party coupled with the inequitable conduct of the other party, we reverse the order granting reformation of the Agreement. The remaining issue raised by HealthTronics in its cross-appeal is rendered moot as a result of the reversal of the order granting reformation, and the remaining issues raised by BJA in its appeal lack merit. Accordingly, we reverse the final order entered in favor of BJA, and remand with directions to enter final judgment in favor of HealthTronics, and affirm the final judgment entered in favor of HTO and SanuWave.

Affirmed, in part; reversed, in part, and remanded with directions.

      . BJA named SanuWave as an appellee, but did not challenge the final judgment entered in favor of SanuWave. See Fla. R.App. P. 9.020(g)(2) (defining "appellee” as "[ejvery party in the proceeding in the lower tribunal other than an appellant”).

      . On May 8, 2003, Dr. Madorsky emailed Ms. Madorsky, regarding the inclusion of a tag along provision as to HealthTronics, which email was forwarded to Mr. Biderman. Mr. Biderman responded the following day, stating that Dr. Madorsky's request could be accommodated. However, within a few days, Mr. Biderman clarified his position, explaining that the attached revised draft did not include the requested " 'tag along' sale rights.” Thus, this cannot form the basis for the trial court’s finding of a mutual mistake as Mr. Biderman’s position was made clear pri- or to the execution of the Agreement.

      . The trial court could not have found any inequitable conduct by Mr. Biderman leading up to the execution of the Agreement. As previously addressed in this opinion, Mr. Biderman was forthright with Ms. Madorsky that HealthTronics objected to any tag along provision.


text:
    Stella Maris PARRA DE REY a/k/a Stella Maria Parra de Rey, Appellant, v. Alfonso REY, Appellee.
    No. 3D12-363.
    District Court of Appeal of Florida, Third District.
    May 22, 2013.

      Robert S. Glazier, Miami, for appellant.
    Law Offices of Greene Smith & Associates, P.A., and Cynthia L. Greene, Miami, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Stella Maris Parra de Rey a/k/a Stella Maria Parra de Rey (“the Wife”) appeals from a final judgment for dissolution of marriage entered pursuant to Alfonso Rey’s (“the Husband”) motion for summary judgment, upholding the validity of a marital settlement agreement entered into between the parties. We affirm.

The Husband and the Wife married in 1982. During their twenty-eight year marriage, the Husband became a successful businessman, amassing substantial wealth. During that same time, the Wife owned and operated a series of beauty supply businesses.

Eventually, the parties experienced marital difficulties, and in December 2007, the Husband filed a petition for dissolution of marriage (“the First Dissolution Action”). During the pendency of the First Dissolution Action, the parties, who were attempting to resolve their differences, began to negotiate a marital settlement agreement that would control the terms of any future dissolution.

In January 2008, the Husband’s attorney sent the Wife’s attorney and the Wife’s accountant a draft of a proposed agreement, along with a box of various personal and corporate financial records. In response, the Wife requested that the Husband submit a financial affidavit and other financial records, which the Husband immediately provided. After the Wife reviewed the additional documents with her counsel and forensic accountant, the Wife’s accountant compiled a list of additional financial documents to be produced by the Husband. After the Husband’s counsel received the list, which the Wife’s accountant admitted was quite expansive, the parties set a meeting to “try to narrow down what [the accountant] really needed” and possibly to reach a settlement.

That meeting took place on March 10, 2008, with the Husband, the Wife, their attorneys, and their accountants in attendance. At some point during the meeting, the Husband proposed settlement terms. The Wife’s accountant, however, indicated that neither he nor the Wife’s counsel could make any recommendations until the Husband furnished additional financial information. The Husband agreed to provide the additional records, but also withdrew the settlement offer. As the Wife’s counsel confirmed:

Q. Then at that point Mr. [Roberto] Dilena— [, the Husband’s accountant,] went outside with Mr. Rey and myself. We came back in and said, “Nevermind. If you want, we have no problem. We will give you the records and we will do this again another day, but we will withdraw our offer at this time.”
A. That’s correct.

The Wife then spoke with her lawyer and accountant; told them she wanted to take the offer even though the Husband had not yet furnished the additional financial statements; and instructed her accountant not to seek additional financial- disclosure. The Wife’s counsel and the Wife’s accountant both advised her not to accept the offer without additional financial disclosure. Specifically, the Wife’s accountant explained as follows:

A. I explained to her that I could not make any conclusion of value on any of the entities or a conclusion of value as to income or any other assets until I concluded my due diligence, which included the proposed meeting with myself and ... the husband’s accountant to go over the items that I needed to complete my valuations.
Q. So what was her response?
A. Her response 'was that she wanted to take this offer and she wanted not to continue on with the valuations.
Q.... Your recommendation was you could make no recommendation until all the records were reviewed, analyzed and values affixed on everything?
A. That is correct.
Q. Ms. Parra chose to ignore that advice, correct?
A. Ms. Parra said she wanted to settle her case.
Q.... You were prepared to do whatever discovery needed to be done in order to make recommendations as to income, valuations of assets, valuations of liabilities, correct?
A. That is correct.
Q. You were prepared to do a lifestyle analysis if one were required?
A. Yes.
Q. You were going to do everything?
A. Whatever was requested of me, absolutely.
Q. And the only reason you didn’t is because she told you to stop?
A. Yes.
A.... I expressed to her that I could not make any determinations, and I could not advise her as to whether any of the values on that chart were correct or not without completing my work which consisted of me doing my due diligence on all of the companies and all of the assets.
Q. Did you suggest that maybe she should just wait a while and see what you came up with before she made such a decision?
A. I had suggested that she let me work with the accountant on his offer to review the rest of the records and complete my work with respect to the valuations.
Q. Her decision or statement to you was?
A. Her decision was she wanted to accept the offer and not continue on with the valuations.

The Wife’s accountant and the Wife’s counsel also confirmed that the Husband had been completely cooperative with respect to his financial disclosures up until the point the Wife instructed them to discontinue seeking financial information. In this regard, the Wife’s accountant testified as follows:

Q.... At any time during the litigation, did either Mr. Rey or myself refuse to provide you with records that you were requesting?
A. No.
Q. Were Mr. Rey and my office cooperative in trying to provide you with documentation?
A. Yes.
Q. Now, obviously you didn’t have every single record and that would take a period of time. But did you find that whatever was requested, Mr. Rey was making his best efforts to obtain those records for you?
A. Yes
Q. Did you ever find in the case that Mr. Rey or myself were in any way trying to frustrate the discovery process?
A. No.
A. I received initially, without a request, a box of documents from your office. Upon reviewing and analyzing the records I received from your office, I put out a request list for additional documents, but the bulk of the documents came without me even requesting them.
Q. So it was done voluntarily?
A. It was done prior to me even issuing a document request, correct.
Q. Were there discussions that Mr. Dilena would be in contact with you directly and you with him directly without the intervention of the lawyers, to try to gather up whatever documentation you needed?
A. That’s correct.

The Wife’s counsel likewise confirmed that the Husband cooperated with respect to his financial information:

Q. Now, up to that point did you see any efforts on the part of my office to frustrate your request for documents?
A. No.
Q. Did you request any documents that you’re aware of that we just said we’re not going to give to you?
A. No. There were outstanding document requests, but there was not a flat out denial of providing a document.
Q. And some records were coming, not all at one time, but records were being provided to Mike Everett, [the Wife’s accountant]?
A. Correct.
Q. So basically as we received them they were going over to your side?
A. To the best of my knowledge, yes.

Over the next few months, the parties engaged in negotiations, which the Wife admits resulted in the incorporation of several terms that were to her benefit. In June 2008, the Husband provided a second financial affidavit to the Wife. Between June 20, 2008, and July 12, 2008, the Wife met with her counsel six times to discuss the proposed agreement. The Wife’s accountant explained to the Wife the terms of the agreement in great detail. Additionally, the Wife’s accountant composed and presented to the Wife an equitable distribution schedule from the financial information he had obtained from the Husband, which demonstrated that the Wife should receive an additional $7,033,435 to equalize the proposed share of assets.

Q. So, according to your Equitable Distribution Schedule that you prepared with the numbers that you applied, in order to equalize Mr. Rey would have owed to Ms. Parra $7,033,435; correct? A. Yes, correct.
Q. Was this schedule provided to Ms. McMillan?
A. Yes.
Q. Was it provided to Ms. Parra, to the best of your knowledge?
A. Yes.
Q.... Assuming she did not receive the equalization payment and everything was left in the columns that you have, then that deal would not have been a good deal that was bargained?
A. Based on this chart if she didn’t receive this equalizer, then no.
Q. But that was communicated to her, to the best of your knowledge?
A. To the best of my knowledge.
Q. So this was all discussed beforehand?
A. This schedule was absolutely discussed, yes.
Q. What did Ms. Parra say about it?
A. She wanted to accept the offer.
Q. In spite of the disparity in the offer?
A. She understood the disparity, but she wanted to accept the offer.

The Wife’s counsel explained to the Wife that she did not need to sign the agreement, and she could continue to pursue further financial disclosure and engage in additional negotiations. The Wife, however,- insisted on entering into the agreement.

The agreement, which explained that the parties were attempting to reconcile and “strengthen their marriage,” was signed by the Husband on July 21, 2008, and by the Wife on July 23, 2008. Pursuant to the agreement, the Wife would receive over $6.8 million of the parties’ assets, including $175,000 cash upon the execution of the agreement. The Husband would retain the remaining assets. The agreement also provided that each party waived any claim to alimony. Regarding the vol-untariness of the execution of the agreement, the agreement states that:

8.1. Each party has had the opportunity to have independent counsel and legal advice of his or her own selection in the negotiations and in the preparation of this Marital Settlement Agreement. ...
8.3. Each party executed this Agreement freely and voluntarily, and each party believes that the provisions of this Agreement are fair, reasonable and just....
8.4. Each of the parties to this Agreement acknowledge (sic) that each has been given full and complete access to each other’s financial records. Each party acknowledges that he or she has the absolute right and entitlement to inquire into the financial condition of the other, but has specifically chosen not to pursue such financial discovery. Further, each party waives any additional financial disclosure from the other as to income, assets, liabilities and expenses. Each party represents that this Agreement is fair and equitable, and that he and she do not wish to expend the time and money to engage in further discovery, and each believes he and she has an adequate knowledge of the other’s exact financial circumstances with reference to entering into this Agreement.

The Wife’s counsel testified that she did not believe that the Wife was under any type of duress when she executed the agreement:

Q. Would you ever allow a client of yours to execute an agreement if you believed that they were under any type of coercion or duress?
A. Never.
Q. We will go into some of the documentation. From your observations, did you believe that the wife in this ease, in the Rey case, did you believe she was under any type of coercion or duress?
A. No.
Q. Did you believe, without going into the details, that you and Mike Everett [Wife’s accountant] provided her with the pros and cons of signing the Agreement?
A. Definitely.
Q. Did she appear in any way to be reluctant to sign the Agreement at that time?
A. In fact, no. She wanted to sign the Agreement.
Q. She was enthusiastic about signing it?
A. Yes
Q. Did she appear to be happy that she was signing it at that point, to the best of your knowledge and observations.
A. She was happy to sign it.
Q. Did you at any time have an impression that she was signing this against her will?
A. No.
Q. Or that she was defrauded?
A. No.
Q. In fact, Mike Everett [Wife’s accountant] said to her at your meeting with her when the equalization was going on that he can still get records and nobody had to sign this right away. Do you remember that?
A. Yes.
Q. Did she indicate to Mike Everett she wanted no further production?
A. She indicated she was done and was ready to sign the Settlement Agreement.
Q. Did Mike Everett indicate that his preference would be to get additional records so he could give a more accurate recommendation to your former client?
A. Yes.
Q. And she refused? She refused those suggestions, correct?
A. She went ahead and signed the Agreement, yes.
Q. And you discussed the ramifications of each provision?
A. Of course.

Likewise, the Wife’s accountant testified that the Wife did not appear coerced into signing the agreement.

Q. Did you see any coercion or duress by Mr. Rey or by my office during your period of time in sessions here with her that day?
Q. Did you see any threats on his part, any coercion, any duress, any forcing from him for her to take this deal?
A. Not while I was here, no, sir.
Q. Did she appear to be in any way distraught or hysterical or unraveled at all when she told you [that she wanted to accept the offer]?
A. No, I don’t think so.
Q. ' Did Ms. Parra ever tell you she was forced into this agreement?
A. No.
Q. From your communications with her, was she ever forced into this agreement?
A. Not by myself, no.
Q. Or by anybody?
A. Not to my knowledge.
Q. Did she indicate anything else to you at all; that he threatened her, he forced her into this agreement, anything at all?
A. No, she never made any indication to me of any of those issues.

After the execution of the agreement, the Husband filed a motion for the trial court to adopt and ratify the agreement, as contemplated by paragraph 20 of the marital settlement agreement. At a hearing on the motion, the Wife testified that she understood the agreement, entered into it freely and voluntarily, reviewed it with her counsel, and accepted its terms. The entire questioning by the Husband’s counsel and the trial court is set forth below. First, the Husband’s counsel questioned the Wife as follows:

Q. Now, you understand the agreement, correct?
A. Yes.
Q. You had your attorney go through the agreement with you?
A. Uh-huh.
Q. Yes?
A. Yes.
Q. Okay. And you understand this is the final agreement?
A. Yes.
Q. And if later the two of you don’t stay married for whatever reason, you don’t get more and don’t get less. This is the agreement?
A. Yes.
Q. And that is acceptable to you?
A. Uh-huh, yes.
Q. Are you entering into this agreement freely? So you are doing it on purpose, you understand it?
A. Uh-huh.
Q. Yes?
A. Yes.
Q. Voluntarily?
A. Voluntarily.
Q. And with the advice of your lawyer?
A. Yes.
Q. And you understand you could have had a judge make a final decision, but this is good for you, correct?
A. Yes.
Q. You are satisfied with it?
A. Yes.
Q. Nobody has forced you in any way to sign this, is this correct?
A. No, no nobody forced me.

Then, the trial court questioned the Wife as follows:

Q. So you are comfortable that you totally understand the agreement?
A. Yes, I understand the agreement.
Q. Okay. And you are satisfied with your attorney?
A. Yes, I am satisfied.
Q. All right. And you understand, as I told your husband, that I hope you stay together, but if you do not, that he can walk into court at any time and say, “Okay. I want a divorce,” and I say “All right. Here is the agreement. The property is divided. You get a divorce.” You understand that?
A. Yes, I understand that.
Q. Okay. And that is okay with you?
A. Yes, that is okay.

After questioning the Wife, the trial court adopted and ratified the agreement. The First Dissolution Action was thereafter dismissed on February 12, 2010, for lack of prosecution.

In February 2011, the Husband filed a second petition for dissolution, asking the trial court to distribute the assets pursuant to the marital settlement agreement. ■ The Wife responded by raising the following affirmative defenses:

1. The Marital Settlement Agreement (MSA) was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching by the Husband, and therefore should be vacated.
2. The MSA makes unfair or unreasonable provision for the Wife, given the circumstances of the parties at the time, and therefore should be vacated.
3. The MSA, on its face, does not adequately provide for the Wife. Consequently, it is unreasonable and should be vacated.

Based on these affirmative defenses, the Wife demanded additional, extensive discovery of financial documents from twenty-nine corporations. The Husband filed objections to these discovery requests, characterizing them as a “fishing expedition,” and requested that before the production of any documents, the Wife be deposed.

The Wife’s deposition reflects that she was questioned regarding her ability to obtain more documents prior to signing the agreement and her choice not to do so; her accountant’s advice not to sign the agreement until he obtained the additional financial disclosures from the Husband; and the Wife’s instruction to her accountant not to pursue the additional financial disclosures:

Q. Do you remember Mike ever telling you that he would get more documents if you wanted them before you signed the Post-Nuptial Agreement?
Q.... In fact, Michael Everett told you that he [w]as going to get more records. Do you remember that?
A. He said that he could obtain more records or that they were going to provide him with more information.
Q. Do you remember telling him you did not need any more records, you were signing the agreement.
A. Yes, it could be. Yes.
Q. Not it could be. It was what happened, was it not?
A. Yes, yes.
Q. Michael Everett suggested to you that it would be wise to get more records before you signed the agreement. Do you remember that?
A. Yes, yes.
Q.... Did you ever go through the records that your husband provided to the accountant?
A. No.
Q. So when Michael Everett said to you that you could look through more records, why did you say there was no need to look at anything else?
A. Because my husband had convinced me that the businesses were nearly bankrupt and that they were worthless; to believe him that he was not lying and that the businesses were not doing well. Q. Well, wouldn’t that be even more of a reason to have Mike Everett look at the numbers to see if, in fact, that was accurate or not?
A. I don’t know.

The Husband’s counsel also questioned the Wife regarding her allegations of fraud. The Wife claimed the Husband defrauded her by characterizing his businesses as “bankrupt” and deceiving her into believing he had “no money in the bank.” However, through questioning, the Husband’s counsel ultimately established that the Wife’s allegations were completely unsubstantiated, and that the financial disclosures the Husband had provided to the Wife rebutted each of the Wife’s claims. With respect to the Husband’s businesses, the Husband’s counsel questioned the Wife as follows:

Q. Which businesses did he tell you were bankrupt?
A. Centurion and Cielos Airline, MTA and Record Air Parts and everything. ...
Q. When you say “everything-,” what else?
A. Record Air Parts and Record Air Service. I don’t remember the other companies.
Q. These are the principal companies? A. The principal companies. And DC 10, what is it called? I don’t recall. The lease — no.
Q. Well, these were the companies that you wanted Mike Everett to review records from, did you not?
A. Those are the companies that he presented the records to be checked. Q. So those records for these companies were given to Mike Everett, correct?
A. I suppose so. I didn’t see them.
Q. You told us that your husband represented to you that these companies were bankrupt. One was Cielos, C-IE-L-O-S, another was Centurion and then Sky Lease I and II, is that right? A. That they were doing bad, financially they were not doing well.
Q. So what were they really worth then?
A. I don’t know.
Q. So you don’t know if he told you the truth or not, do you?
A. I know that he lied to me.
Q. Tell me, please, what investigation you have done by review of any records since July 23rd, 2008, which leads you to the opinion that he lied to you.
A. I don’t have records or documents that he lied to me, but ...
Q. “But” what?
A. But his lifestyle and what he spends in one month, I don’t spend it in one year.
Q. Let me make sure I’m clear then. What you’re saying is he must have lied to you because he has a much higher lifestyle than you would expect for him to have based on what he was left with. Is that what you’re telling us?
A. No. no. With what I have or what was given to me, I cannot live within the same lifestyle that I have previously.
Q. Well, you said in your answer to the divorce that the Marital Settlement Agreement was reached under fraud. I want to know every single basis for fraud that you are aware of.
A. I cannot answer with specific details on that, but my attorney is the one that can.
Q. I’m not asking about your lawyers. I’m asking about you. And my question to you is, I want to know every specific document or instance or misrepresentation or omission that would constitute fraud.
A. As far as I know, he omitted or hid information.
Q. Well, you have no proof of any assets that he had at the time of the agreement that were not disclosed, do you?
A. If I have any proof?
Q. Yes. , •
A. No.
Q. Now, in fact, when you said before that he had represented to you that Centurion Air Cargo was doing poorly and was almost bankrupt, you believed that to be the case, did you not?
A. Of course. I believed him.
Q. Well, his financial affidavit of June 20th said the value was $5,372,102 as of 2007. You knew that?
A. Yes, that’s what is written there, five million.
Q.... Now let’s go into these businesses that you said your husband represented were near bankrupt. Cielos, which you said he represented was near bankrupt. I want you to turn to page six.
Q. Take a look at what it says for the 49 percent interest in Cielos Airlines that you told us your husband said was almost bankrupt. What is the value? A. Cielos, $4,502,108.
Q. So, I want you to tell us, please, under this agreement what the net worth was for you and your husband. If you take a look on page number seven the assets are over 19 million dollars. Then on page eight the debts are about [$]449,000. So the two of you had a net worth of 19 million dollars at least, did you not?
A. Yes.
A. But I never saw that he had a salary of $81,000 a month.
Q. Ma’am, it was provided to your attorney.
A. Okay.
Q. It was provided to the accountant.
A. I never saw it.
Q. In fact, in the financial affidavit provided to your attorney, there is one of February 4th, this is in the file we were provided from your attorney which showed $208,000 a month.
A. I didn’t see that, no.
Q. What facts do you have to show those numbers are wrong?
A. I don’t have any evidence because the accountant has to do the work first to determine it.

With respect to the amount of money, or lack thereof, the Husband had in the bank, the Husband’s counsel questioned the Wife as follows:

Q. Now, is there any other basis for fraud that you can tell us about?
A. He said that he didn’t have any money in the bank.
Q. When did he say he had no money in the bank?
A. During the agreement he said that he didn’t have any money, so he didn’t give me any cash.
Q. So how come on his financial affidavit he shows $604,207?
A. It was in his account, not in my account.
Q. I understand. But you just said he had no money.
A. He didn’t give me any cash.
Q. My question was any basis for fraud, and you said he said he had no cash. But you were aware of a financial affidavit that he provided to your attorney that showed he had $604,207 in banks as of June 20th of 2008, correct?
A. Okay. So?
Q. So your husband represented, in fact, he did have cash at the time, did he not?
A. It’s not that he told me that he didn’t have any money. I only received the properties. I didn’t receive any cash.

The Wife also alleged that the Husband had concealed the existence of a Hialeah property he owned, but after questioning, she admitted that she knew about the property at the time of the execution of the agreement; the Husband had mentioned the property prior to the execution of the agreement; and the Husband may have disclosed the existence of the property through his financial disclosures, but she had not checked them to confirm. With regard to the Wife’s allegation that the Husband hid unspecified ownership interests in unspecified Uruguayan companies, the Wife ultimately admitted that the sole basis for this allegation was that the Husband’s brother and his accountant owned office space in Uruguay, and the Husband maintains an office with them in Uruguay. The Wife, however, could not provide any evidence suggesting that the Husband possessed an ownership interest in any undisclosed Uruguayan companies. The Wife also confirmed that she knew about this office when she signed the agreement. And, as to the Wife’s allegation that the Husband concealed his ownership interest in an Islamorada property, the Wife admitted she did not know whether he purchased the property prior to or after the execution of the agreement.

The Husband’s counsel also questioned the Wife regarding her allegations of duress, coercion, and overreaching. The Wife testified that the marital settlement agreement was the product of duress and coercion because the Husband had “psychologically abused and harassed her,” which she was unaware she was experiencing at the time she executed the agreement because she “was not going to the psychologist yet.” Thus, her claim is essentially that through psychological counseling she received subsequent to the signing of the agreement, she learned she was experiencing psychological or emotional abuse. Regarding her allegation of overreaching, the Wife testified without further elaboration that she believed the Husband had taken advantage of her affection toward him.

The Husband filed a motion for summary judgment regarding the Wife’s affirmative defenses, arguing that as a matter of law the agreement was valid and should control the dissolution action. Attached to the motion was the transcript of the hearing where the agreement was ratified by the trial court. The evidence presented at the hearing on the motion for summary judgment included the depositions of the Wife, her accountant, and her counsel. The trial court granted the Husband’s motion for summary judgment and entered a final judgment for dissolution of marriage, which adopted and ratified the marital settlement agreement. This appeal followed.

On appeal, the Wife relies entirely on Casto v. Casto, 508 So.2d 330 (Fla.1987), to argue that the trial court erred in entering summary judgment. Under Cas-to, there are two alternative grounds by which either spouse may challenge a post-nuptial agreement and have it vacated or modified. Id. at 333.

First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872 (1947); Hahn [v. Hahn, 465 So.2d 1352 (Fla. 5th DCA 1985)]; O’Connor [v. O’Connor, 435 So.2d 344 (Fla. 1st DCA 1983) ]. See also Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).
The second ground to vacate a settlement agreement contains multiple elements. Initially, a challenging spouse must establish that the agreement makes unfair or unreasonable provision for that spouse, given the circumstances of the parties. Del Vecchio, 143 So.2d at 20. To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status. With this basic information, a trial court may determine that the agreement on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable. In making this determination, the trial court must find that the agreement is “disproportionate to the means” of the defending spouse. Id. This finding requires some evidence in the record to establish a defending spouse’s financial means. Additional evidence other than the basic financial information may be necessary to establish the unreasonableness of the agreement.
Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either (a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. The test in this regard is the adequacy of the challenging spouse’s knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information. Id,.; see Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Del Vecchio.

Id.

Relying on this passage, the Wife advances two primary arguments. First, the Wife argues that the trial court erred in granting summary judgment because there was evidence of fraud, duress, coercion, misrepresentation, or overreaching. Second, the Wife argues that there was evidence that the agreement made unfair and unreasonable provision for the Wife, leaving her only one-fourth of the marital assets and no alimony after a twenty-eight year marriage. According to the Wife, Casto dictates that once she demonstrated that the agreement was unreasonable, the burden shifted to the Husband to rebut the presumption that he concealed his finances or that the Wife lacked knowledge of the Husband’s finances, which she argues he failed to do. At the very least, the Wife contends the trial court erred by ruling on the validity of the marital settlement agreement without allowing her the benefit of the additional discovery she sought, which she claims would have enabled her to prove that, based on the relative financial positions of the parties during the marriage, the agreement made unfair or unreasonable provision to the Wife. We disagree.

We dispense with the Wife’s discovery argument at the outset. In Carter v. Carter, 3 So.3d 397 (Fla. 4th DCA 2009), the Fourth District established that when a party moves to set aside a marital settlement agreement entered into during the course of litigation on the basis of fraud and misrepresentation, but in so doing pleads these grounds conclusorily and without specificity, it would be a departure from the essential requirements of the law for the trial court to allow discovery prior to ruling on the validity of the marital settlement agreement.

Subsequently, the wife also moved to set aside the settlement agreement, based in part on eonclusory allegations that the husband’s disclosure of his income on his financial affidavit was “fraudulent.” She now takes the position that the discovery previously sought is necessary for her to litigate this motion.
Whether the trial court departed in ordering that discovery is the issue presented by the instant petition. While personal financial information is fully discoverable when relevant to the subject matter of the pending action, it may cause irreparable harm to a person who is forced to disclose it when the information is not relevant.
Under the circumstances of this case, we agree with the husband’s position that he should not be compelled to produce the discovery requested by the wife unless and until the court first determines the validity of the parties’ settlement agreement.
Although in this case the wife claims the agreement was procured by fraud or misrepresentation by the husband, the record before this court does not demonstrate that she pleaded such with specificity.
Unless and until the trial court invalidates the parties’ marital settlement agreement, the husband’s private financial information should remain private.

Id. at 397-98 (internal citations and quotations omitted).

In this case, as in Carter, the Wife attempted to set aside a marital settlement agreement entered into during the course of litigation, but her pleadings were entirely conclusory and lacked specificity. Under these circumstances, the trial court was duty-bound to determine the validity of the marital settlement agreement prior to granting the Wife’s discovery requests. We therefore reject the Wife’s discovery argument.

Additionally, the Wife’s reliance on Cas-to is misplaced. Casto concerned a post-nuptial agreement entered into between a husband and wife who, unlike the Husband and the Wife in this case, were not in the midst of litigation against each other. The rationale underpinning the holding in Cas-to is that a husband and wife in such a situation hold a position of mutual trust and confidence, and, therefore, a trial judge may more carefully scrutinize a marital settlement agreement between an un-estranged husband and wife for fairness. See Casto, 508 So.2d at 334 (“Courts ... must recognize that parties to a marriage are not dealing at arm’s length, and, consequently, trial judges must carefully examine the circumstances to determine the validity of these agreements.”).

Florida case law is clear that Casto does not govern marital settlement agreements entered into during the course of litigation, when the Husband and the Wife are necessarily dealing at arm’s length, and when each party has had ample opportunity to avail himself or herself of Florida’s liberal discovery procedures to unearth the opposing party’s finances. Petracca v. Petracca, 706 So.2d 904, 911-12 (Fla. 4th DCA 1998); see also Kuehera v. Kuehera, 983 So.2d 776, 780 (Fla. 4th DCA 2008); Griffith v. Griffith, 860 So.2d 1069, 1074 (Fla. 1st DCA 2003); Crupi v. Crupi, 784 So.2d 611, 612-13 (Fla. 5th DCA 2001). As the Fourth District held in Petracca:

The adequacy of knowledge can be plausibly raised only when the agreement was reached by marital parties in conditions of mutual trust and confidence and who were, therefore, not dealing at arm’s length. The wife in this case attempts to imply that even when the parties are engaged in contested dissolution of marriage proceedings — when there has been ample opportunity for the party to make use of the procedural rules for discovery of financial resources — a party can still plausibly allege that they were still dealing in mutual trust and confidence and not at arm’s length or from inadequate knowledge of finances.
We are compelled by the supreme court holdings discussed above to reject the wife’s argument. Once the parties are involved in full-fledged litigation over dissolution of property and support rights, they are necessarily dealing at arm’s length and without the special fiduciary relationship of unestranged marital parties. As we noted in Zakoor [v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970)], there can be no question of the adequacy of knowledge when an adversarial party has had the opportunity of financial discovery under the applicable rules of procedure. The Casto line of cases, therefore, logically has no application when the challenging spouse has had the benefit of litigation discovery through independently chosen counsel to learn the full nature and extent of the finances of the other spouse. The very purpose of litigation is to unearth the other party’s assets and income. The law quite properly presumes that a litigation settlement made after discovery and just before trial was done with full knowledge by the challenging spouse.
... After resorting to litigation over marital property rights, neither party can be thought dealing as fiduciaries or inadequately informed as to financial affairs.

Petracca, 706 So.2d at 911-13 (footnote omitted). The distinction recognized in Petracca holds true even when the agreement entered into during litigation contemplates reconciliation and the underlying dissolution action is subsequently dismissed. See Kuchera, 983 So.2d at 777-80.

It is uncontested that the agreement at issue here was entered into during the course of litigation. Thus, the Wife’s reliance on Casto is misplaced, and the Wife’s second and third affirmative defenses, which were premised entirely on the fairness inquiry in Casto, were deficient as a matter of law.

We turn now to the standard that does govern the present case. To set aside a marital settlement agreement during the course of litigation, “the challenging spouse is ... limited to showing fraud, misrepresentation in the discovery, or coercion.” Petracca, 706 So.2d at 912. As we will demonstrate below, the Wife, as a matter of law, has failed to establish any of these three grounds.

First, the Wife failed to plead the affirmative defense of fraud with even a semblance of particularity, and therefore waived fraud as a defense. See Cocoves v. Campbell, 819 So.2d 910, 913 (Fla. 4th DCA 2002) (“An affirmative defense of fraud that is not pleaded with particularity is deemed waived.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159-60 (Fla. 3d DCA 2008) (holding that the factual basis for a claim of fraud must be pled with particularity and must specifically identify misrepresentations or omissions of fact, as well as time, place or manner in which they were made). In this situation, the vagueness of the Wife’s pleading was understandable, given that the Husband’s counsel demonstrated that every instance of fraud the Wife alleged in her deposition was entirely baseless. Without rehashing the entire testimony, the following excerpt provides a sufficient summary of the Wife’s entire deposition:

Q. Well, you said in your answer to the divorce that the Marital Settlement Agreement was reached under fraud. I want to know every single basis for fraud that you are aware of.
A. I cannot answer with specific details on that, but my attorney is the one that can.
Q. I’m not asking about your lawyers. I’m asking about you. And my question to you is, I want to know every specific document or instance or misrepresentation or omission that would constitute fraud.
A. As far as I know, he omitted or hid information.
Q. Well, you have no proof of any assets that he had at the time of the agreement that were not disclosed, do you?
A. If I have any proof?
Q. Yes.
A. No.

It goes without saying that conclusory allegations of fraud are insufficient to survive a motion for summary judgment.

With respect to the second ground, the Wife herself admitted in her deposition that she had no basis for alleging any “misrepresentation in the discovery.”

Q. What facts do you have to show those numbers are wrong?
A. I don’t have any evidence because the accountant has to do the work first to determine it.

Thus, the Wife’s own unrebutted testimony establishes that the Husband was entitled to summary judgment on the Wife’s defense of “misrepresentation in the discovery.”

Lastly, with respect to the third ground, the Wife claims the marital settlement agreement was the product of duress because the Husband slashed her tires three times at unspecified points over the course of their twenty-eight year marriage, slept with a gun underneath the mattress, and at some point called her and stated, “[I]f you don’t sign the agreement I will take care of you.” The Wife, however, failed to establish any nexus between the first two allegations and her signing of the agreement. For instance, the Wife did not testify that the Husband slashed her tires because she did not or would not sign the agreement. Likewise, the Wife did not testify that the Husband threatened her with the gun, or otherwise used it to intimidate her into signing the agreement. Surely, the fact that the Husband exercised his second amendment right to bear arms, standing alone, does not rise to the level of duress. Finally, even if we were to read the Wife’s third duress allegation in the light most favorable to her, i.e., that the Husband meant that he “would take care of her” in a threatening, rather than in a loving way, it would still be insufficient to survive a motion for summary judgment.

Duress “is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” Francavilla v. Francavil-la, 969 So.2d 522, 524-25 (Fla. 4th DCA 2007) (emphasis added) (quoting Williams v. Williams, 939 So.2d 1154, 1157 (Fla. 2d DCA 2006)). It is now well settled that “[t]wo factors must be proven to establish duress: ‘(a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.’ ” Francavilla, 969 So.2d at 525 (emphasis added) (quoting City of Miami v. Kory, 394 So.2d 494, 497 (Fla. 3d DCA 1981)). “Duress involves a ‘dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.’ ” Francavilla, 969 So.2d at 525. As such, the party claiming duress must establish that the effects of the alleged coercive behavior affected their subjective intent to act.

The Wife has established the opposite in this case. Importantly, during her deposition testimony, the Wife explained that the reason she stated, in open court, that she was entering the agreement freely and voluntarily was that she was not aware of any psychological stress resulting from the above mentioned allegations at the time she executed the agreement, or during her colloquy with the trial court, and that she actually believed she was entering into the agreement freely and voluntarily when she executed the agreement.

Q.... Ms. Parra, I’m a little confused. Because if you say the agreement was reached with duress and coercion, why did you tell the judge that you were entering this agreement freely and voluntarily?
A. Because I believed that at the time I was doing the best that I could do.
Q. Well, I don’t know what that means. You have a judge who is sitting up there, who is listening to see whether she is going to approve this agreement or not, and if you would have said “I’m not entering into this freely, I have been psychologically or emotionally abused, I have changed my mind,” it’s more likely than not the judge would not have signed the order. So why didn’t you say something?
A. I was not aware at the time. At the time I was not going to the psychologist yet."
Q. You told the judge that you were entering into this agreement freely and voluntarily, correct?
A. That’s what I thought.
Q. Correct?
A. That’s what I believed.
Q. And not until your husband filed for divorce over two years later do you say, “Oops, no, it’s not a fair agreement,” correct?
A. Yes, because divorce is something completely different.

It follows that if the Wife was unaware of the impact of the Husband’s alleged coercive actions, then their resulting pressures could not have “destroy[ed] the free agency of [the Wife] and cause[d] [her] to ... make a contract not of [her] own volition,” or “free choice or will.” As a result, the Wife has failed to establish the defense of duress.

For these reasons, we affirm the trial court’s entry of summary judgment in favor of the Husband.

Affirmed.


author: PER CURIAM.

text:
    Jon Manuel RIVERACRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2691.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Hall v. State, 765 So.2d 282, 283-84 (Fla. 4th DCA 2000).

GROSS, CIKLIN and CONNER, JJ, concur.


text:
    Carmen Cecilia Sarmiento AVILA a/k/a Carmen Escobar, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3916.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Sui Chung of Immigration Law & Litigation Group, Miami, and Michael Vastine, Miami Gardens, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d (Fla.2012).

GROSS, GERBER and LEVINE, JJ., concur.


text:
    FLORIDA CAPITAL MANAGEMENT, LLC, Petitioner, v. TOWN OF PALM BEACH, Respondent.
    No. 4D12-4190.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Robert C. Stone of Law Office of Robert C. Stone, P.A., Boca Raton, for petitioner.
    John C. Randolph and Joanne M. O’Con-nor of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, 'for respondent.
   PER CURIAM.

We deny petitioner Florida Capital Management’s petition for second-tier certiora-ri to review an order of the circuit court for Palm Beach County that dismissed petitioner’s appeal for failure to submit an initial brief. Petitioner and respondent Town of Palm Beach had been involved in a dispute over purported code violations attributed to property owned by petitioner. After the parties negotiated a particular amount of fine to be levied for the alleged violations, petitioner filed a notice of appeal on June 17, 2011 in Palm Beach County circuit court seeking appellate review. Petitioner’s appellate counsel sought and received two separate extensions of time to file the initial brief in that appeal, but no initial brief was filed and no further extension of time was sought by appellate counsel for petitioner.

As a result, on March 18, 2012, the circuit court, sitting in its appellate capacity, sua sponte issued an order directing petitioner to show cause why the appeal should not be dismissed for failure to serve the initial brief within thirty days of the second extension of time granted by that court. This order stated that failure to respond within ten days of the date of that order “will result in dismissal of [petitioner’s] appeal” (emphasis supplied). Thereafter, on May 21, 2012, the circuit court issued an order dismissing petitioner’s appeal, citing Fla. R.App. P. 9.410. At that time, petitioner had still not filed either an initial brief or third motion for extension of time to do so. After petitioner’s motion for rehearing was denied by the circuit court, petitioner petitioned this court for a writ of certiorari seeking to quash the circuit court’s order of dismissal, arguing that dismissal was too severe a sanction under the facts of this case, citing the failure of appellate counsel to keep petitioner’s owner informed of the status of the case.

Review by certiorari of a decision of a circuit court sitting in its appellate capacity involves consideration of whether the order provided the petitioner procedural due process and applied the correct law. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1098-94 (Fla.2010); Kirrie v. Indian River Cnty.Code Enforcement Bd., 104 So.3d 1177, 1179 (Fla. 4th DCA 2012). Here, Florida Rule of Appellate Procedure 9.410(a) provides that with ten days notice, an appellate court may, as a sanction for violation of the Florida Rules of Appellate Procedure, dismiss an appeal filed under those rules. Here, the circuit court’s original show cause order of March 18, 2012, explicitly warned petitioner that its appeal was subject to dismissal if that order was not complied with. As a consequence, the court’s subsequent order of dismissal comported with due process. Baron v. First Union Nat’l Bank, 792 So.2d 708, 710 (Fla. 5th DCA 2001); Swicegood v. Fla. Dep’t of Transp., 394 So.2d 1111, 1112 (Fla. 1st DCA 1981).

In addition, the circuit court applied the correct law to the facts of this case, as the intentional disregard of a court order provides justification for dismissal of an appeal for failure to timely file the initial brief. United Auto. Ins. Co. v. Cnty. Line Chiropractic Ctr., 8 So.3d 1258, 1260 (Fla. 4th DCA 2009). The petitioner failed to respond to the circuit court’s March 18, 2012 order to show cause after failing to either file the initial brief or again move for extension of time to do so. As a result, the circuit court was authorized by Rule 9.410(a) to impose dismissal as a sanction for failure to prosecute the appeal in this case.

Petition denied.

MAY, C.J., WARNER and STEVENSON, JJ., concur.


text:
    V.A., The Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES AND GUARDIAN AD LITEM PROGRAM, Appellees.
    No. 4D13-775.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Richard F. Joyce, Miami, for appellant.
    Carolyn Schwarz, Attorney General Children’s Legal Services, Fort Lauder-dale, for appellee Department of Children and Families.
    Hillary Kambour, Tavares, for appellee Guardian Ad Litem Program.
   PER CURIAM.

Upon consideration of appellee’s concession of error, which we find to be correct, the disposition order issued by the circuit court is reversed and the cause is remanded to that court for a disposition hearing, to allow the father to be represented by counsel or waive counsel, if he chooses. If the father again waives counsel, the trial court must question the father in sufficient detail to ascertain that the waiver is made knowingly, intelligently and voluntarily, and make its findings in writing. See § 39.013(9)(a), Fla. Stat. (2012); see also A.G. v. Florida Dep’t. of Children & Families, 65 So.3d 1180, 1183 (Fla. 1st DCA 2011) (holding that “the trial court should have advised the father of his right to counsel [during the shelter hearing] and, depending on his response, should have appointed counsel or obtained a knowing and intelligent waiver before proceeding.”). Thereafter, the trial court shall hold the disposition hearing, and make the findings required for disposition under section 39.521, Florida Statutes (2012).

Reversed and Remanded.

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


text:
    Lilia NIVIA, Appellant, v. BANK UNITED, Appellee.
    No. 4D12-2831.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Lilia Nivia, Weston, pro se.
    Joseph C. Savino of Lazer, Aptheker, Rosella & Yedid, P.C., West Palm Beach, for appellee.
   PER CURIAM.

The mortgagor appeals the trial court’s order denying her motion to cancel foreclosure sale after the court granted final summary judgment in favor of appellee, Bank United. Appellant argues that the court erred in denying her motion to cancel the foreclosure sale since the sale took place while the parties were engaged in the federal Home Affordable Modification Program (“HAMP”). The bank argues that appellant was given proper notice that she did not qualify for a modification under the program. She claims that pursuant to HAMP procedures and the HAMP Supplemental Directive 10-02, dated March 24, 2010, addressing borrower outreach and communication, the sale should have been postponed for thirty days from the date of the notice of non-approval of the modification. That directive, however, does not require a thirty-day postponement where the request for HAMP modification was made after a foreclosure date had been set, and the reason for denial was the ineligibility of the mortgagor under HAMP requirements. As the appellant had requested HAMP modification after foreclosure had been set originally, and the bank found that appellant was ineligible because of lack of the required income level, it was not compelled by the directive to postpone the sale.

We find the remaining grounds to be without merit or directed to the final judgment of foreclosure, which was never appealed.

Affirmed.

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Michelle S. MAXWELL, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee.
    No. 3D12-2106.
    District Court of Appeal of Florida, Third District.
    May 22, 2013.
    Michelle S. Maxwell, in proper person.
    Pennington, P.A., and Brandice D. Dickson, Tallahassee, for appellee.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Blaesser v. State Bd. of Admin., — So.3d - (Fla. 1st DCA 2012), review denied, 110 So.3d 440 (Fla.2013).


author: PER CURIAM. EMAS, J.,

text:
    R.M. and R.M., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D12-3063.
    District Court of Appeal of Florida, Third District.
    May 22, 2013.
    Jason A. Setchen, Miami, for appellants.

      Karla Perkins, Appellate Counsel, Department of Children & Familes; Hillary S. Kambour, Appellate Counsel, Guardian ad Litem Program, Miami, for appellees.
    Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed.

EMAS, J.,

concurring specially.

I concur in affirming this appeal per curiam, but write only to note that the trial court’s apparent concern, as expressed in its order, has been addressed at least in part by the Florida Legislature in the 2013 legislative session. See Ch.2013-21, § 3, Laws of Fla. (amending § 39.522, Florida Statutes, effective July 1, 2013, adding subsection (3), to provide that in a post-disposition change of custody proceeding in which the issue is “whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.”).


text:
    Pleadro SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2024.
    District Court of Appeal of Florida, Third District.
    May 22, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant,
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before CORTIÑAS, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

We remand this matter to the trial court for the sole purpose of permitting the trial court to replace the erroneous reference in Scott’s sentence to a nonexistent statutory section. In all other aspects, we summarily affirm.

Affirmed, in part, reversed, in part, and remanded for proceedings consistent with this opinion.


author: MAY, C.J.

text:
    A.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-847.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, C.J.

We reverse a restitution order because the evidence was insufficient to support the award.

A juvenile entered a plea of no contest to burglary of a dwelling; the State nolle prossed the remaining grand theft charge. The parties agreed the juvenile would pay restitution in an amount to be determined at a subsequent hearing. The trial court withheld adjudication and placed the juvenile on probation.

At the restitution hearing, neither the juvenile nor his attorney was initially present in the courtroom. The trial court, the State, and the victim began to discuss the restitution issue. The victim indicated that the stolen iPod and Xbox controller were returned, but the stolen Xbox was not. The trial court then asked the prosecutor to discuss the issue with defense counsel.

Both attorneys returned to the courtroom, but the defendant still was not present. The victim testified that the missing video game was worth about $20, and the Xbox was worth about $200 based on the amount the victim spent to purchase a replacement at a pawn shop. When offered the opportunity to cross-examine the victim, defense counsel stated that the evidence was insufficient to establish the value of the two missing items. The victim offered to accept $175. The trial court then ordered the juvenile to pay $220 in restitution. From this order, the juvenile now appeals.

The juvenile argues that the restitution amount should be reversed because it was not supported by competent, substantial evidence. The State responds that the victim’s testimony was sufficient evidence of the items’ value.

“We review a trial court’s determination of the amount of restitution for an abuse of discretion.” Thompson v. State, 68 So.3d 425, 426 (Fla. 4th DCA 2011). “The amount of restitution must be supported by competent, substantial evidence.” Id. Although we have “consistently recognized that a trial court is not limited to consideration of fair market value, ... ‘absent circumstances tending to show that fair market value does not adequately compensate the victim or otherwise serve the purpose of restitution,’ fair market value should be used.” Id. at 426-27 (quoting Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993)). Fair market value can be proven “by reference to four factors: (1) the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation.” Thompson, 68 So.3d at 426.

Here, the trial court erred in ordering $220 in restitution because the victim’s testimony was based on the replacement value of the Xbox, and the source of her testimony regarding the value of the missing video game is unknown. Because the State failed to present competent, substantial evidence of the items’ fair market value, we must reverse the restitution order. This does not prevent the State from conducting another hearing at which the fair market value of the stolen items can be properly proven.

Reversed and Remanded.

TAYLOR and GERBER, JJ„ concur.

      . We find no merit in the defendant’s argument that the trial court committed fundamental error by engaging in ex parte communications with the State and the victim before the restitution hearing commenced.