text:
    In re Amendments to FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420.
    No. SC14-2434.
    Supreme Court of Florida.
    Jan. 22, 2015.
    Murray Bruce Silverstein, Chair, Rules of Judicial Administration Committee, Greenberg Traurig, P.A., Tampa, FL; John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration amendments to Florida Rule of Judicial Administration 2.420 (Public Access to Judicial Branch Records) proposed by the The Florida Bar’s Rules of Judicial Administration Committee (RJA Committee) in its “fast-track” out-of-cycle report. See Fla. Rule Jud. Admin. 2.140(e). We have jurisdiction and amend the rule as proposed by the RJA Committee and approved by the Executive Committee of the Board of Governors of The Florida Bar.

The amendments to subdivision (d)(1)(B) (Procedures for Determining Confidentiality of Court Records) are in response to chapters 2014-67 and 2014-1. 174, Laws of Florida, and add two new categories of information in court records that the clerks of court must automatically designate and maintain as confidential. New subdivision (d)(1)(B)(xxi) adds “[f]orensic behavioral health evaluations under chapter 916,” Florida Statutes, to the list of automatically confidential information. See ch.2014-67, § 1, Laws of Fla. (creating § 916.1065, Fla. Stat., effective July 1, 2014). New subdivision (d)(1)(B)(xxii) adds “[eligibility screening, substance abuse screening, behavioral health evaluations, and treatment status reports for defendants referred to or considered for referral to a drug court program” to the list of automatically confidential information. See ch.2014-174, § 1, Laws of Fla. (creating § 397.334(10)(a), Fla. Stat., effective June 20, 2014).

The amendment to subdivision (d)(1)(B)(iv) corrects a statutory reference.

Accordingly, the Florida Rules of Judicial Administration are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a)-(c) [No Change]

(d) Procedures for Determining Confidentiality of Court Records.

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:

(A) information described by any of subdivisions (c)(1) through (c)(6) of this rule; and

(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution as specifically stated in any of the following statutes or as they may be amended or renumbered:

(i) Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment. §§ 39.0132(3), 39.0132(4)(a), Fla. Stat.

(ii) Adoption records. § 63.162, Fla. Stat.

(in) Social Security, bank account, charge, debit, and credit card numbers. § 119.0714(l)(i) — (J), (2)(a)— (e), Fla. Stat. (Unless redaction is requested pursuant to § 119.0714(2), Fla. Stat., this information is exempt only as of January 1, 2012.)

(iv) HIV test results and the identity of any person upon whom an HIV test has been performed. § 381.004(32)(e), Fla. Stat.

(v) Records, including test results, held by the Department of Health or its authorized representatives relating to sexually transmissible diseases. § 384.29, Fla. Stat.

(vi) Birth records and portions of death and fetal death records. §§ 382.008(6), 382.025(1), Fla. Stat.

(vii) Information that can be used to identify a minor petitioning for a waiver of parental notice when seeking to terminate pregnancy. § 390.01116, Fla. Stat.

(viii) Clinical records under the Baker Act. § 394.4615(7), Fla. Stat.

(ix) Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals. § 397.501(7), Fla. Stat.

(x) Clinical records of criminal defendants found incompetent to proceed or acquitted by reason of insanity. § 916.107(8), Fla. Stat.

(xi) Estate inventories and account-ings. § 733.604(1), Fla. Stat.

(xii) The victim’s address in a domestic violence action on petitioner’s request. § 741.30(3)(b), Fla. Stat.

(xiii) Protected information regarding victims of child abuse or sexual offenses. §§ 119.071(2)(h), 119.0714(l)(h), Fla. Stat.

(xiv) Gestational surrogacy records. § 742.16(9), Fla. Stat.

(xv) Guardianship reports, orders appointing court monitors, and orders relating to findings of no probable cause in guardianship cases. §§ 744.1076, 744.3701, Fla. Stat.

(xvi) Grand jury records. §§ 905.17, 905.28(1), Fla. Stat.

(xvii) Records acquired by courts and law enforcement regarding family services for children. § 984.06(3)-(4), Fla. Stat.

(xviii) Juvenile delinquency records. §§ 985.04(1), 985.045(2), Fla. Stat.

(xix) Records disclosing the identity of persons subject to tuberculosis proceedings and records held by the Department of Health or its authorized representatives relating to known or suspected cases of tuberculosis or exposure to tuberculosis. §§ 392.545, 392.65, Fla. Stat.

(xx) Complete presentence investigation reports. Fla. R.Crim. P. 3.712.

(xxi) Forensic behavioral health evaluations under Chapter 916. § 916.1065, Fla. Stat.

(xxii) Eligibility screening, substance abuse screening, behavioral health evaluations, and treatment status reports for defendants referred to or considered for referral to a drug court program. § 397.334(10)(a), Fla. Stat.

(2)-(5) [No Change]

(e)-(m) [No Change]

Committee Note

[No Change]

2002-2007 Court Commentary

[No Change]

2007 Committee Commentary

[No Change]

APPENDIX TO RULE 2.420

[No Change]

      . See art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before March 23, 2015, with a certificate of service verifying that a copy has been served on the Committee Chair, Murray B. Silverstein, 625 E. Twiggs Street, Suite 100, Tampa, Florida 33602-3925, silversteinmb@ gtlaw.com, and on the Bar Staff Liaison to the Committee, Krys Godwin, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, krgodwin@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until April 13, 2015 to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Mathew PAKONIS, Appellant, v. Scott CLARK, etc., et al., Appellees.
    Nos. 3D13-952, 3D12-200, 3D12-3272.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Mark A. Dienstag, Miami, for appellant.
    Squire Sanders and Alvin B. Davis, Miami, and Jason Daniel Joffe, West Palm Beach, for appellee Scott Clark, etc.; John R. Sutton, Miami, for appellees Barry V. Lee, Darelynn L. Prejean-Graves, a/k/a Darelynn L. Prejean.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   SUAREZ, J.

In these consolidated appeals appellant Mathew Pakonis (“Pakonis”) seeks review of: 1) a summary judgment in favor of appellee Scott Clark, as Trustee of the Scott Clark Revocable Living Trust dated June 18, 2004 (“Clark”) on Clark’s claim for partition; 2) a directed verdict in favor of Clark and appellees Barry V. Lee (“Lee”) and Darelynn L. Prejean-Graves (“Graves”) on conspiracy claims; 3) summary judgment for Lee and Graves on tortious interference claims; and 4) awards of attorney’s fees to Clark, Lee and Graves. We affirm as to all judgments and orders appealed.

Pakonis initially appeals a summary judgment entered in favor of Clark on Clark’s claim for partition of certain real property as to which Pakonis had deeded a fifty-percent interest to Clark in 2004. That deed was the result of a 1998 agreement between Clark and Pakonis and a series of payments made by Clark. The trial court granted summary judgment to Clark on the partition claim. A jury trial was later held on Pakonis’ counter-claims of breach of fiduciary duty, constructive fraud, conversion and conspiracy, which raised the same factual issues as his defenses to the partition action. The jury returned a verdict in favor of Clark and final judgment was entered in Clark’s favor. Pakonis has not appealed that judgment.

The trial court correctly granted summary judgment to Clark on the partition claim because nothing raised by Pakonis created an issue of material fact as to Clark’s entitlement to partition. Haddad v. Hester, 964 So.2d 707, 710 (Fla. 3d DCA 2007), Rose v. Hansell, 929 So.2d 22, 23 (Fla. 3d DCA 2006). The correctness of the summary judgment was reinforced by the jury verdict, which likewise rejected all of Pakonis’ allegations against Clark in his counterclaim. See, ie., Gutierrez v. Bermudez, 540 So.2d 888, 890 (Fla. 5th DCA 1989) (a trial “becomes the best test of either party’s right to judgment.”), quoting, Fish Carburetor Corp. v. Great Am. Ins. Co., 125 So.2d 889, 891 (Fla. 1st DCA 1961).

During the jury trial the trial court entered a directed verdict as to Clark, Lee and Graves on Pakonis’ claims for conspiracy. Health Options, Inc. v. Palmetto Pathology Svcs., P.A., 983 So.2d 608, 613 (Fla. 3d DCA 2008) (“A trial court’s rulings on motions for directed verdict, and its interpretation of statutes and contracts, are reviewed de novo.”) Pakonis appeals that ruling, but we affirm finding that Pakonis failed to establish any specific overt acts or common goal between Graves, Lee and Clark which was connected in any way to a business opportunity held by Pakonis or any related entity. American Credit Card Telephone Co. v. National Pay Telephone Corp., 504 So.2d 486, 488 (Fla. 1st DCA 1987).

Pakonis next challenges the trial court’s grant of summary judgment to Lee and Graves on his claims for tortious interference. Once again, we affirm. Pakonis failed to establish the elements of such a claim, especially the existence of any protected business relationship. Scott Ferris v. South Florida Stadium Corp., 926 So.2d 399, 402 (Fla. 3d DCA 2006).

Pakonis also challenges the trial court’s award of attorney’s fees to Clark. The award was based upon offers of judgment made by Clark in 2007 and 2011. We affirm. Pakonis conceded Clark’s entitlement to fees below and thus has not preserved this issue for appeal. Vorbeck v. Betancourt, 107 So.3d 1142, 1147-48 (Fla. 3d DCA 2012). Moreover, Pakonis has failed to demonstrate that either offer of judgment was improperly made or filed. Frosti v. Creel, 979- So.2d 912, 916 (Fla.2008), Mills v. Martinez, 909 So.2d 340, 344 (Fla. 5th DCA 2005). We affirm the trial court’s award of attorney’s fees to Lee and Graves on the same grounds.

Affirmed.

      . Pakonis' appeal of claims against Sea Level Marine, LLC were dismissed by Order of this Court dated February 5, 2014. Consequently, we do not address any arguments relating to that entity.


author: PER CURIAM.

text:
    Roy B. HARRIS, Appellant, v. STATE of Florida, et al., Appellees.
    No. 3D14-814.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2014.

      Roy B. Harris, in proper person.
    Sarah J. Rumph, for the Florida Parole Commission (Tallahassee).
    Before SHEPHERD, C.J., and WELLS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Gibbs v. Cochran, 142 So.2d 276, 278 (Fla.1962) (holding that the jurisdiction of the parole commission is not disturbed when the infraction giving rise to revocation was committed during the parole period, but actual revocation occurred after the period had run); Harris v. Fla. Parole Comm’n, 654 So.2d 138 (Fla. 1st DCA 1995) (table) (per curiam affirming Appellant’s earlier identical jurisdictional challenge).


text:
    Patricia SBROGGIO, Appellant, v. Graziano SBROGGIO, Appellee.
    No. 3D13-2361.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2014.
    Rehearing Denied Feb. 4, 2015.
    Robert J. Merlin, for appellant.
    Perez-Abreu & Martin-Lavielle and Ana-Maria Mejer and Javier Perez-Abreu, Coral Gables, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

We affirm the trial court on the granting of Appellee’s Petition for Modification of Parenting Plan/Timesharing. We reverse the trial court’s retention of jurisdiction to consider Appellant’s claim for attorney’s fees because it was not properly pled below.

Affirmed in part, reversed in part.


text:
    HAAS AUTOMATION, INC., etc., Appellant, v. Dr. Robert FOX, Helene Fox, Dr. Steven Fox, Sherri Fox, and Fisher Auction Company, Inc., Appellees.
    No. 3D13-2424.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Rehearing Denied Feb. 6, 2015.
    Kopelowitz Ostrow and John J. Shahady and Thomas R. Shahady (Fort Lauder-dale); Douglas Paul Solomon (Fort Laud-erdale), for appellant.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff and Christopher M. Yannuzzi, Miami, for appellees Dr. Robert Fox, Helene Fox, Dr. Steven Fox, and Sherri Fox, Tallahassee; Marshall Socarras Grant, P.L., and Ruben E. Socarras (Boca Raton), for appellee Fisher Auction Company, Inc.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Haas Automation, Inc. (“Haas”) appeals an order granting final summary judgment in favor of Dr. Robert Fox, Helene Fox, Dr. Steven Fox, Sherri Fox, and Fisher Auction Company, Inc. (collectively the Appellees). We reverse.

A review of the record reveals that genuine issues of material fact remain unresolved that preclude entry of summary judgment including the Bid Acknowledgement and Receipt for Deposit form, which lists the total percentage of the Buyer’s Premium as $620,000 and the total contract price as $6,820,000. Because these factual issues should be resolved by a jury, summary judgment was improper. See Fla. Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd’s London Subscribing to Policy No. 893/HC/97/9096, 979 So.2d 429 (Fla. 3d DCA 2008); Giardina v. Bowe, 680 So.2d 1071 (Fla. 3d DCA 1996). “Where there is room for rational difference of opinion as to the existence of evi-dentiary facts from which an ultimate factual conclusion is sought to be established, the court should submit the case to the jury.” 47th St. Serv. Station, Inc. v. Campos, 595 So.2d 229, 230 (Fla. 3d DCA 1992).

Accordingly, we reverse the entry of summary judgment in favor of the Appel-lees.

REVERSED AND REMANDED.


author: OSTERHAUS, J.

text:
    BIEL REO, LLC, Appellant, v. BAREFOOT COTTAGES DEVELOPMENT COMPANY LLC, a Florida Limited Liability Company, Curtis H. Gwin and H. Ray Shoults, Whitney National Bank, et al., Appellees.
    No. 1D14-46.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Rehearing Denied Feb. 3, 2015.

      Craig S. Barnett of Greenberg Traurig P.A., Fort Lauderdale, for Appellant.'
    Louis K. Rosenbloum, Pensacola, James L. Dye, and David P. Healy, Tallahassee, H. Bart Fleet, and Whitney Leigh Smith, Shalimar, for Appellees.
   OSTERHAUS, J.

This case involves proceedings supplementary to execution, section 56.29, Florida Statutes, which for almost 100 years has afforded an efficient and direct way for judgment holders in Florida to identify a debtor’s assets and satisfy an execution.

Curtis H. Gwin and H. Ray Shoults guaranteed a commercial loan from a bank to their development company for a project near Port St. Joe. Then within weeks of the company defaulting on the loan in 2008, Gwin and Shoults transferred millions of dollars into newly established irrevocable family trusts (“Family Trusts”). The Family Trusts named Gwin and Shoults as beneficiaries as co-tenants by the entirety with their wives. And their wives were named as the trustees. Later, after the bank obtained a $4.5 million judgment against Gwin and Shoults (“Debtors”) in 2010, appellant Biel Reo, LLC, the assignee of the judgment, initiated proceedings supplementary to satisfy the execution; and they impleaded the trustees. The Trustees — Appellee Rita C. Gwin, as Trustee of the Gwin Family Irrevocable Trust, and Appellee Marion Buckley Shoults, as Trustee of the Shoults Family Irrevocable Trust — moved for summary judgment, which the trial court granted on the basis that Biel Reo’s Family Trust-related claims were barred by laches and the Uniform Fraudulent Transfer Act’s statute of limitations and could not otherwise survive. Biel Reo appealed.

We now reverse because proceedings supplementary may be initiated by a judgment holder for the life of the judgment, “[w]hen any person or entity holds an unsatisfied judgment or judgment lien” and files the requisite affidavit. § 56.29(1), Fla. Stat. Because Biel Reo holds a valid, unsatisfied execution and § 56.29(6) entitles judgment creditors to proceedings supplementary in circumstances involving felicitous transfers of personal property to spouses, Biel Reo’s action involving the Family Trusts is timely and can proceed.

I.

A.

We review the grant of summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is appropriate only “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. (citing Menendez v. Palms West Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)).

B.

Section 56.29, Florida Statutes (2012), establishes “proceedings supplementary” to execution providing a speedy and direct means for “the holder of a valid and outstanding execution to ferret out what assets the judgment debtor may have ... or [that others] may have received from him to defeat the collection of the lien or claim, that might be subject to the execution.” See Young v. McKenzie, 46 So.2d 184, 185 (Fla.1950); Zureikat v. Shaibani, 944 So.2d 1019, 1022-23 (Fla. 5th DCA 2006). These proceedings are “equitable in nature,” Ferguson v. State Exchange Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972); “collateral to the main action at law,” Young, 46 So.2d at 185; and designed ‘“to avoid the necessity of the judgment creditor initiating an entirely separate action for a creditor’s bill.’ ” Fundamental Long Term Care Holdings, LLC v. Estate of Jackson ex rel. Jackson-Platts, 110 So.3d 6, 7-8 (Fla. 2d DCA 2012), reh’g denied (Feb. 8, 2013), review denied, 118 So.3d 220 (Fla.2013) (quoting Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994)). The proceedings are intended to give “the most complete relief possible in satisfying [a creditor’s] judgment.” Riley v. Fatt, 47 So.2d 769, 772 (Fla.1950). And courts may “enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution.” § 56.29(9), Fla. Stat. (2012) (emphasis added).

What is required for a judgment creditor to initiate proceedings supplementary to execution is to file a motion and an affidavit averring specific information about the judgment or judgment lien and the existence of an unsatisfied execution. § 56.29(1), Fla. Stat. The same applies when third parties are impleaded, Regent Bank v. Woodcox, 636 So.2d at 886, in which case, the affidavit should also list the parties to be impleaded. Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008). Once these prerequisites are met, a judgment creditor “is entitled to the proceedings supplementary,” § 56.29(1); a court cannot deny a motion that meets the statutory prerequisites. See Biloxi Casino Corp. v. Wolf, 900 So.2d 734 (Fla. 4th DCA 2005).

After initiation of proceedings supplementary, a judgment creditor may pursue assets held by the debtor, § 56.29(l)-(2); pursue the debtor’s assets held by another, so long as the property is not exempt from execution, § 56.29(5); or seek to void and execute upon debtor assets transferred to a spouse or other third party for purposes of delaying, hindering, or defrauding a creditor, § 56.29(6). See, e.g., Treated Timber Prods., Inc. v. S & A Assocs., 488 So.2d 159, 160 (Fla. 1st DCA 1986); see also State v. Viney, 120 Fla. 657, 163 So. 57, 60 (1935). “Most often, ... the procedure is used to challenge the fraudulent transfer of property that would otherwise be subject to execution.” Philip J. Padovano, Florida Civil Practice § 13:6 (2014 ed.). Courts have broad powers in proceedings supplementary over personal property transferred to a third party by a debtor “ ‘whether in the name or possession of third parties or not.’ ” Schwartz v. Capital City Nat’l Bank, 365 So.2d 181, 183 (Fla. 1st DCA 1978) (quoting Viney, 163 So. at 60). But the rights of a third party must be respected by means of bringing them into the case:

[N]o rights of such third parties should be adjudged to be affected, impaired, or finally cut off ... unless [they] have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims as parties[.]

Viney, 163 So. at 60; see also Pollizzi v. Paulshock, 52 So.3d 786, 789 (Fla. 5th DCA 2010); Mejia v. Ruiz, 985 So.2d at 1112-13.

II.

In 2012, Biel Reo initiated proceedings supplementary under § 56.29(5) and (6) and impleaded the Trustees. It hoped to satisfy its $4.5 million execution against the large sums that the Debtors had transferred from formerly revocable trusts into irrevocable Family Trusts after defaulting on the loan they had guaranteed. The trial court found Biel Reo’s Family Trust-related claims to be time-barred because § 56.29(6) makes use of substantive provisions of the Uniform Fraudulent Transfer Act (UFTA), see § 726.105, Fla. Stat., and § 56.29(5) makes use of substantive portions of § 736.0505, Fla. Stat. (involving creditor claims against trusts). The UFTA and § 736.0505 have shorter statutes of limitations that the trial court determined to have expired.

The problem we have with the Trustees’ statute of limitations argument is that it does not comport with the text of § 56.29, or with the cases construing it. The first sentence of § 56.29(1) expressly addresses when a creditor is entitled to avail itself of the statute’s processes: “When any person or entity holds an unsatisfied judgment or judgment lien obtained under chapter 55 [and files the requisite motion and affidavit] thereupon the judgment holder or judgment lienholder is entitled to these proceedings supplementary to execution.” (Emphasis added.) According to the Florida Supreme Court in Young, 46 So.2d at 185 — a case involving an allegedly fraudulent transfer — once the requisite affidavit is filed by a creditor:

That sets the machinery in motion which secures to him an examination of the defendant and, if the circumstances warrant it, of others who have been involved in gifts, transfers, or assignments of the defendant’s property. Upon the information so obtained, the judge may order such property in the hands of the judgment debtor himself or others as the evidence justifies to be applied toward the satisfaction of the debt.

In Young, the Court linked the timeliness of initiating proceedings supplementary to “the period of efficacy of an execution,” concluding that proceedings supplementary could be brought for the twenty-year life of the judgment. Id. at 185-86.

The Trustees would have us apply a different statute of limitations for proceedings supplementary that involve fraudulent transfers under § 56.29(6) (which is when § 56.29 is most often used, see Padovano, Florida Civil Practice § 13:6). But we find no good reason to depart from Young. More recent cases continue to follow Young’s lead. In Zureikat v. Shaibani 944 So.2d 1019, 1022-23 (Fla. 5th DCA 2006), for instance, a judgment debtor allegedly transferred funds and assets to his family and purchased homestead property against which the judgment creditor sought execution under § 56.29. The debtor argued the UFTA and § 95.11(3)’s limitations periods barred proceedings supplementary. But the Fifth District rejected the argument, concluding that proceedings supplementary could be initiated during the life of the judgment and that “even the passage of over six years will not prevent, by operation of statute of limitations, a judgment creditor from initiating proceedings supplementary.” Zureikat, 944 So.2d at 1023.

Likewise in Ferre v. City Nat’l Bank of Miami, 548 So.2d 701 (Fla. 3d DCA 1989), the Third District rejected statute of limitations and laches arguments made by an impleaded spouse who received more than a million dollars from her debtor husband. Almost a dozen years had passed between the entry of judgment against the debtor and the initiation of proceedings supplementary, but the court looked to the life of the judgment:

The Supreme Court of Florida long ago indicated that an action to enforce a judgment involving fraudulent conveyances to a member of the judgment debtor’s family, particularly when the judgment debtor continued to enjoy the benefits of the transferred asset, was viable for the life of the judgment. See Robinson v. The Springfield Co., 21 Fla. 203 (1885) and Isaacs v. Mulray, 112 Fla. 197, 150 So. 232 (1933).

Id. at 703-04 (emphasis added).

The cases cited by the Trustees do not compel the application of a different statute of limitations. Although the Trustees are correct that the manner of proving and defending fraudulent transfer claims under § 56.29 borrow substantively from the UFTA, this fact does not require the adoption of the UFTA’s much shorter limitations period, because § 56.29’s contrary scheme and precedent broadly establish the availability of proceedings supplementary for the life of the judgment, when a valid, unsatisfied execution exists.

III.

We therefore reverse the trial court’s grant of summary judgment insofar as it found Biel Reo’s proceedings supplementary to be time-barred and remand for further proceedings supplementary under § 56.29(6). We affirm, however, the judgment below on the issue of whether the Family Trusts were self-settled and reachable by way of § 56.29(5).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

VAN NORTWICK, J., and FENSOM, JAMES B., Associate Judge, concur.

      . Section 56.29, Florida Statutes (2012), provides in relevant part, that:
      Section 56.29 Proceedings supplementary-—
      (1) When any person or entity holds an unsatisfied judgment or judgment lien obtained under chapter 55, the judgment holder or judgment lienholder may file a motion and an affidavit so stating, identifying, if applicable, the issuing court, the case number, and the unsatisfied amount of the judgment or judgment lien, including accrued costs and interest, and stating that the execution is valid and outstanding, and thereupon the judgment holder or judgment lienholder is entitled to these proceedings supplementary to execution. * * *
      (5) The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.
      (6)(a) When, within 1 year before the service of process on him or her, defendant has had title to, or paid the purchase price of, any personal property to which the defendant’s spouse, any relative, or any person on confidential terms with defendant claims title and right of possession at the time of examination, the defendant has the burden of proof to establish that such transfer or gift from him or her was not made to delay, hinder, or defraud creditors.
      (b) When any gift, transfer, assignment or other conveyance of personal property has been made or contrived by defendant to delay, hinder or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void and direct the sheriff to take the property to satisfy the execution. This does not authorize seizure of property exempted from levy and sale under execution or property which has passed to a bona fide purchaser for value and without notice. Any person aggrieved by the levy may proceed under ss. 56.16-56.20.

      .Effective July 1, 2014, Section 56.29(9) was amended to expressly include what has long been the law in Florida, that "entry of any orders” includes "entry of money judgments against any impleaded defendants!.]” The parties haven't argued that the amendment effects the issues here.

      . The legislature amended § 56.29(5), effective July 1, 2014, but, again, the parties haven't argued that these changes effect the issues here.

      . The record reflects that Shoults transferred over $3 million in assets to his Family Trust. The record does not reflect the amount of Gwin's transfer.

      . Whether these statutes of limitations expired remains disputed by the parties here, but is unnecessary for us to resolve because we do not find them applicable.
      Biel Reo also argues that the Family Trusts were reachable directly in proceedings supplementary under subsection (5) as self-settled trusts. But we agree with the trial court’s reading of the terms of the trusts and affirm on this point. See, e.g., Amsouth Bank of Fla. v. Hepner, 647 So.2d 907, 908 (Fla. 1st DCA 1994) ("A joint tenant whose interest is by the entireties, ... does not have an interest that is subject to execution on a judgment lien.”). Consequently, this opinion focuses more narrowly on Biel Reo’s subsection (6)-based argument that the UFTA’s statute of limitations does not apply.

      . See, e.g., Mejia, 985 So.2d at 1112-13 (explaining that for purposes of § 56.29(6)(b), “[w]hether a defendant’s actions are made or contrived to ‘delay, hinder, or defraud’ must be determined with reference to section 726.105(1) [UFTA].”); Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002) (noting that the UFTA applies in determining whether a transfer to a third party is invalid); Morton v. Cord Realty, Inc., 677 So.2d 1322, 1324 (Fla. 4th DCA 1996) (“Under section 56.29, it is the burden of the defendant to prove that a transfer was not a fraudulent transfer. The manner in which a defendant may prove that a transfer was not fraudulent is governed by case law and the UFTA.”).


author: WELLS, Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant, v. Beatriz A. LLORENTE, etc., Appellee.
    No. 3D12-1101.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2014.
    Rehearing Denied Feb. 19, 2015.

      Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap and Chris Ballentine, Orlando, for appellant.
    Seiden, Alder, McLeod & Goodman and Wayne M. Alder, Boca Raton, for appellee.
    Before SHEPHERD, C.J., and WELLS  and ROTHENBERG, JJ.

       Judge Wells did not participate in oral argument.

   WELLS, Judge.

St. Paul Fire & Marine Insurance Company appeals the Final Summary Judgment entered in favor of Beatriz A. Llorente P.A. and Beatriz A. Llorente. The issue presented was whether an alleged negligent disbursement of funds by Lló-rente from her trust account was excluded from coverage under her Professional Liability Policy, which excluded “claims: ... [ajrising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.” The trial court found the exclusion inapplicable, we disagree. We reverse the order denying insurer St. Paul’s motion for summary judgment and granting summary judgment in insured’s favor.

We review interpretation of an insurance policy de novo. Am. Equity Ins. Co. v. Van Ginhoven, 788 So.2d 388, 390 (Fla. 5th DCA 2001) (“Because the interpretation of an insurance contract is a question of law, this court is entitled to review the trial court’s coverage determination de novo.”). As this court has previously explained, “[i]f exclusions are clearly stated within an insurance policy, they, will be upheld.” Hawk Termite & Pest Control, Inc. v. Old Republic Ins. Co., 596 So.2d 96, 97 (Fla. 3d DCA 1992); accord Van Ginhoven, 788 So.2d at 390.

The exclusion at issue in this case could not be more clearly stated and excludes Llorente’s claim. The policy at issue was issued to Llórente both as an attorney and as a title insurance agent and, as pertinent here, obligates St. Paul to pay damages arising out of any error, omission, or negligent act on Llorente’s part while rendering professional services.. The policy does not, however, cover damages if Llórente erroneously or negligently pays or fails to pay any funds held by her or erroneously or negligently fails to keep safe or guard any funds held by her:

SECTION VI — EXCLUSIONS
This insurance does not apply to “claims”
L. Arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.

Llórente, while acting as escrow agent during a real estate transaction, disbursed $1.5 million being held in her trust account before the conditions for release of those funds were met. The insurer claimed that this constituted a failure to safeguard the funds entrusted to Llórente, a circumstance excluded from coverage under the policy.

Llórente maintained that the term “safeguard” as used in the policy was ambiguous and therefore should be interpreted as requiring no more than protecting the funds from something undesirable happening to them such as conversion, misappropriation, or improper commingling, leading to a loss. We find this limited view of the term “safeguard” spurious, especially in light of the policy’s exclusionary section VI A, which separately and specifically excludes such claims:

SECTION VI — EXCLUSIONS
This insurance does not ' apply to “claims”

A. Arising out of any dishonest, fraudulent, criminal or malicious act, error, omission or “personal injury” committed by, at the direction of an insured.

Interesting too, is the next sentence of section VI A:

This exclusion does not apply to an insured who did not personally commit or personally participate in committing any of the knowingly wrongful acts, errors, omissions or “personal injury” provided that: [insured had no notice] [upon notice, immediately contacted the insurer].

No similar forgiving language appears in the exclusionary section VI L. Rather, we find it clear that, as St. Paul argues, the failure to “safeguard” funds must include the act of négligently or wrongfully releasing the funds.

We reject Llorente’s argument that “safeguard” is an ambiguous term. Thus, there is no need to read meaning into the term “safeguard” and no reason to require the insurer to cover a loss it expressly excluded from its policy coverage. See, e.g., Chicago Title Ins. Co. v. Northland Ins. Co., 31 So.3d 214, 216 (Fla. 4th DCA 2010) (stating that “semantics cannot avoid the obvious”).

We see no reason why Llórente and St. Paul’s definition of the word “safeguard” do not both easily fall under the definition of safeguard. Whether stolen or wrongfully disbursed, there was a failure to safeguard the $L5 million at issue, i.e. keep it safe until disbursement was properly authorized. When this attorney/escrow agent/fiduciary disbursed the funds before the preconditions to the release of those funds had been met there is no question that she failed to guard and keep safe the funds entrusted to her. See SO5 501, LLC v. Metro-Dade Title Co., 109 So.3d 1192, 1194 (Fla. 3d DCA 2013) (acknowledging the fiduciary duty owed by escrow agents); Watkins v. NCNB Nat. Bank of Florida, N.A., 622 So.2d 1063, 1064 (Fla. 3d DCA 1993); Williams v. Hunt Bros. Constr., Inc., 475 So.2d 738, 741 (Fla. 2d DCA 1985) (“A fiduciary, be he an attorney or not, must account for and deliver over property or money of a beneficiary, client, or third party which has been entrusted to him for a particular purpose and which he was required to have held in trust.”); see also United Am. Bank of Cent. Fla., Inc. v. Seligman, 599 So.2d 1014, 1017 (Fla. 5th DCA 1992) (concluding that an escrow agent breached his duty when he disbursed escrowed funds directly to his client, rather than the bank which had become third-party beneficiary to client’s rights by virtue of assignment of client’s interests in the escrow funds).

Llorente cites to Flint-Lambert, P.C. v. Gulf Ins. Co., 2005 WL 2042062, *1 (N.D.Tex. Aug.25, 2005). However that case supports St. Paul’s rather than Llo-rente’s position. Flint-Lambert is a law firm. It provided improper wiring instructions from which its title company client disbursed escrow payments from real estate transactions. After the title company made good the erroneous payment made pursuant to Flint-Lambert’s instructions, it demanded that Flint-Lambert reimburse it. Flint-Lambert then made a claim with Gulf, its insurer, to recover on this loss. Gulf denied the claim because although Gulfs policy provided that Gulf would pay on behalf of Flint-Lambert damages arising out of an error, omission, or negligent act while rendering or failing to render professional legal services, Flint-Lambert’s claim was excluded from coverage under the same provision at issue here.

While the dispute in Flint-Lambert centered on the same exclusionary language at issue here, the case did not turn on the meaning of “safeguard.” Rather, that case turned on whether the exclusion applied only to the loss of funds held by Flint-Lambert (the insured) itself, or to the loss of funds held by a third party, there the title company:

[Insurer] reads the provision to exclude claims arising out of [insured’s] inability or failure to administer or safeguard funds irrespective of who held the funds; [insured], on the other hand, reads the provision to exclude claims arising out of its inability or failure to administer or safeguard funds held by [insured] for others.

Flint-Lambert, 2005 WL 2042062, at *2.

To be sure, no one in that case argued the exclusionary language was inapplicable to a case where the funds were mistakenly or erroneously (as was the case there) released. Rather, the conflict and ambiguity in that case was found in who had to be in possession of the funds in order to make the provision applicable. No such question exists here.

Likewise, Llorente cites to Murray v. Greenwich Ins. Co., 533 F.3d 644, 650 (8th Cir.2008), as a case with similar exclusionary policy language to support the conclusion that the exclusion here 'does not apply. However, Murray supports no such conclusion and holds nothing more than a “failure to return the entrusted deposits” triggers application of the exclusion:

Each of the claims asserted within the underlying complaint, either directly or by incorporation, allege an injury originating from, or having its origin in, growing out of, or flowing from the failure to return the deposited funds. “But for” the failure to refund those deposits as promised, there would have been no claims. In other words, had the funds not been mishandled the claims alleged in the complaint would not have arisen. Thus, each of the claims is causally connected to and arose out of the failure to return the entrusted deposits. Accordingly, we conclude the exclusion applies and [the insurer] has no duty to defend.

Murray, 533 F.3d at 650 (citation omitted).

In sum, we conclude that this claim falls squarely within the policy exclusion providing that there is no coverage for any claims “arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.” Lló-rente did not “safeguard” the $1.5 million entrusted to her when she disbursed that sum before she was authorized to do so. The trial court’s decision is reversed and the case remanded for entry of summary judgment in St. Paul’s favor, resulting in no coverage for Llórente.

ROTHENBERG, J., concurs.

SHEPHERD, C.J., dissenting.

The question on this appeal is whether an attorney who is alleged to have negligently disbursed $1.5 million from an escrow account for which she was responsible, has also failed to “safeguard” those funds within the meaning of an exclusion from coverage, appearing in a Lawyers Professional Liability Insurance Policy, which excludes “claims: ... [a]rising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.” (emphasis added). The intuitive answer to the question is “yes.” However, as the following discussion will demonstrate, it is dangerous to intuit the law.

The insurance policy in this case was issued by St. Paul Fire & Marine Insurance Company to Beatriz Llorente. The policy insured Llorente both as an attorney and title insurance agent. The policy’s insuring agreement obligates St. Paul to pay “damages” which “arise out of an error, omission, negligent act or ‘personal injury’ in the rendering of or failure to render ‘professional legal services’ for others by you or on your behalf.” In a separate action, HBR Realty, LLC alleges wrongful conduct by Llórente in her capacity as a closing and escrow agent for a real estate transaction by improperly releasing $1.5 million from her trust account before conditions precedent occurred. For purpose of this coverage determination, Llorente’s negligence is assumed. U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 so.2d 686, 691 (Fla. 4th DCA 2006) (“If the complaint sets forth facts which bring the claim within the policy coverage, [a] duty to defend arises.”).

St. Paul asserts loss is excluded from coverage under Section VI L of the insurance policy. This section of the policy reads as follows:

SECTION VI — EXCLUSIONS
This insurance does not apply to “claims”:
L. Arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others,

(emphasis added).

The term “safeguard,” as used within Section VI L of the policy, is not defined. Llórente argues that “safeguard” simply means to protect funds against something undesirable happening to them, such as theft, conversion, misappropriation, or improper commingling, leading to a loss. Support for her position is found in the dictionary definition of safeguard and even in the legal definition of synonymous words, such as “safekeeping.” See The American Heritage Dictionary of the English Language 1142 (William Morris ed., 1979) (“safeguard ... — tr.v .... [t]o insure the safety of; to guard; protect. See Synonyms at defend.”); see also Black’s Law Dictionary 1453 (9th ed.2009) (“safekeeping. 1. The act of protecting something in one’s custody. 2. Under the Securities Investors Protection Act, the holding of a security on behalf of the investor or broker that has paid for it.”). St. Paul, on the other hand, urges that a wrongful disbursement of the funds is also included.

The majority reasons that because, in its mind, both parties’ definition of the word “safeguard” could “easily fall under the definition of safeguard,” the exclusion applies. The reasoning of the majority begs the question. The parties in this case contend for opposing interpretations of the operative exclusionary language. These proposals are no more compatible with each other than a briar and a rose. However, even if the majority’s reasoning is correct, coverage nevertheless exists. See Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla.2013) (“[P]olicy language is considered to be ambiguous ... if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ”) (quoting State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla.2011)); Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla.2004); Swire Pacific Holdings Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003); Cheetham v. Southern Oak Ins. Co., 114 So.3d 257, 261 (Fla. 3d DCA 2013) (“[I]f the salient policy language is susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous.”) (quoting Fayad v. Clarendon Nat. Ins. Co., 899 So.2d 1082, 1086 (Fla.2005)); East Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 676 (Fla. 3d DCA 2005) (“[I]f the language of the policy is susceptible to more than one reasonable interpretation, it is ambiguous, and a court will resolve such ambiguity in favor of the insured.”). I would find, as did the learned trial judge, that the meaning of the word “safeguard,” found in the exclusion, is ambiguous as applied to the facts of this case.

Such a finding, of course, precipitates a host of interpretive rules adverse to the insurer. Perhaps most pertinent here is the rule that “where the language in an insurance policy is subject to differing interpretations, the policy language ‘should be construed liberally in favor of the insured and strictly against the insurer.’” Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002) (citing State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998)); see also Williamson v. Nurses’ Mut. Protective Corp., 142 Fla. 225, 194 So. 643, 644 (1940) (“We are aware of the rule approved by this court that in studying and construing insurance policies every effort should be bent to give force to all of the provisions contained and that in the event of ambiguities the insured will be favored over the insurer so that liberality will be indulged for the insured or for the larger indemnity”). “This is particularly true in interpreting exclusionary clauses, which are to be construed even more strictly than coverage elapses.” Triano v. State Farm Mut. Auto. Ins. Co., 565 So.2d 748, 749 (Fla. 3d DCA 1990).

The closest case which actually interprets the same exclusion at issue in this case that the parties have found, or that I have found through the use of electronically assisted research, is Flint-Lambert, P.C. v. Gulf Ins. Co., 2005 WL 2042062 (N.D.Tex.2005) (unpublished). The underlying action in Flint-Lambert was a claim for indemnity brought by a real estate title company against its law firm, Flint-Lambert, P.C., to recover a loss incurred when the company disbursed escrow funds held by it based upon erroneous wiring instructions received from the law firm. The lawyer malpractice insurance policy, issued by Gulf Insurance Company to Flint-Lambert, contained the identical “funds handling” exclusion as does the policy issued by St. Paul to Llórente in our case. In Flint-Lambert, Gulf Insurance read the provision to exclude claims arising out of the law firm’s inability or failure to administer or safeguard funds irrespective of who held the funds. The title company urged a narrower interpretation of the policy, arguing that by its terms the exclusion operated to exclude only claims arising out of funds “held by” the law firm or “to be held” by the law firm. The United States District Court concluded that both parties’ interpretations were reasonable, and therefore, provision L of the Gulf Insurance policy was ambiguous. The Court found coverage to exist in favor of the third-party claimant title company.

Although the ambiguity in the case before us arises out of a different factual scenario, the claimant in the underlying legal malpractice case is also a third-party claimant. The underlying claim falls within the language of the insuring agreement. “It has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla.1997). Under St. Paul’s interpretation of “safeguard,” any loss of funds through any act of negligence of an insured attorney or title insurance agent acting in her capacity as a closing and escrow agent would not be covered under the insurance policy. Like the Flint-Lambert court, I would decline to approve such a broad interpretation of provision L.

Conclusion

When all is said and done, it appears the majority has conflated the negligence claims made by HBR Realty, LLC against Llórente in the underlying liability case with the contractual question raised by the handling of funds exclusion in this declaratory judgment case. The first is a given for purposes of the coverage analysis in this case. The latter is a matter of contract interpretation with all the presumptions and adverse canons of constructions appurtenant thereto in the often separate and sometimes arcane world of insurance coverage law.

I would affirm the judgment of the trial court.

      . The fact that an apple and a banana are both "fruits" does not make the term "fruit” ambiguous.

      . The policy in Flint-Lambert, like the one at issue here, excluded claims "[a]rising out of the inability or failure to pay, collect, administer, safeguard, funds held or to be held for others." Id. at *1 (emphasis added).

      . There, as here, the policy excluded coverage for claims arising out of the inability or failure to safeguard funds held for others:
      Exclusion D excludes coverage for claims: D, based on or arising out of:

      3. the inability or failure to pay, collect or safeguard funds held for others.

        Murray, 533 F.3d at 647.

      . As to Five Star Real Estate, LLC v. Kemper Cas. Ins. Co., 2006 WL 1294238, *2 (Mich.Ct.App.2006), cited by the dissent, we find the facts of that case too far afield from the allegations herein to be persuasive in any manner.


text:
    Mark SMITH, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-2643.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Rehearing Denied March 6, 2015.
    Mark Smith, in proper person.

      Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, SUAREZ, and ROTHENBERG.
   PER CURIAM.

The defendant has filed a petition for writ of mandamus attempting to, once again, obtain a resentencing on counts I and II. This is his fourth attempt to obtain such a resentencing. In 2008, this Court rejected a similar argument saying “the same issue has been raised in a previous motion and been ruled upon and denied. See Smith v. State, 669 So.2d 1133 (Fla. 3d DCA 1996).” We therefore deny this petition for a writ of mandamus. We caution the defendant that further attempts to obtain such relief may subject the defendant to sanctions.

Petition denied.


author: EVANDER, J.

text:
    Lisa RENE, Appellant, v. Janie SYKES-KENNEDY and Lillie S. White, etc., Appellees.
    No. 5D14-975.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Rehearing Denied Feb. 2, 2015.
    J. Stephen McDonald, Heidi W. Isen-hart, and Stephanie L. Cook, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellant.
    Padrick A. Pinkney, Port St. Lucie, for Appellee Janie Sykes-Kennedy.
    John H. Pelzer, of Greenspoon Marder, P.A., Fort Lauderdale, for Appellee Lillie S. White.
   EVANDER, J.

Lisa Rene appeals from an order in a guardianship proceeding authorizing Janie Sykes-Kennedy, the court-appointed guardian for Lillie S. White, to amend White’s 2006 revocable trust to appoint herself (Sykes-Kennedy) as trustee. The trust document had provided for Rene, White’s granddaughter, to become trustee in the event White became incapacitated. On appeal, Renee contends, inter alia, that the guardianship court lacked the authority to enter the challenged order and that the order was not in the ward’s best interest. We affirm.

In June 2013, the trial court found that White was incapacitated due to senile dementia and appointed her sister, Janie Sykes-Kennedy, to be her limited guardian. The trial court determined that White was incapable, among other things, of exercising her right to contract, to sue and defend lawsuits, to manage property, to make any gift or disposition of property, to consent to medical treatment, or to make decisions about her social environment or other social aspects of her life.

In August 2013, Sykes-Kennedy filed a petition in the guardianship proceeding requesting that the trial court authorize her, as White’s guardian, to amend the 2006 revocable trust so as to appoint herself as trustee. In her petition, Sykes-Kennedy alleged that it was necessary for the guardian to be able to access assets in the 2006 trust in order to provide care for White and, additionally, that White had “expressed continued worry” that her property was being controlled by Rene.

At the conclusion of an evidentiary hearing, the trial court granted Sykes-Kennedy’s petition, finding that the ward’s best interests would be served by having Sykes-Kennedy appointed trustee. Although Sykes-Kennedy was authorized by the trial court to amend the 2006 revocable trust to appoint herself as trustee, she was prohibited from amending the trust in any other manner. Furthermore, the trial court made an express finding that there was no evidence of wrongdoing by Rene.

Rene argues that the guardianship court did not have the authority to enter an order approving an amendment to White’s revocable trust because section 736.0201(i), Florida Statutes (2013) states that “judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure.” We reject Rene’s argument because Florida’s Trust Code provides elsewhere that, in accordance with section 744.441, a guardian of the property of the settlor may exercise a settlor’s power to amend a trust. See § 736.0602(6), Fla. Stat. (2013) (“A guardian of the property of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only as provided in section 744.441.”).

Section 744.441, Florida Statutes (2013) sets forth the powers that a guardian may exercise with court approval. Among these powers is the authority to exercise any power as trustee that the ward might have lawfully exercised if not incapacitated, if the best interest of the ward requires such action. See § 744.441(2), Fla. Stat. (2013); see also In re Guardianship of Muller, 650 So.2d 698 (Fla. 4th DCA 1995) (holding that section 744.441(2) authorized exercise of ward’s power to amend trust to appoint new trustee).

Here, if not incapacitated, White had the power to amend her trust and appoint Sykes-Kennedy as the new trustee. Furthermore, given the evidence regarding Sykes-Kennedy’s education, business experience, and relationship with the ward, we have no difficulty concluding that there was substantial, competent evidence to support the trial court’s determination that it was in the ward’s best interest to have Sykes-Kennedy replace Rene as trustee.

We find the other issues raised by Rene to be without merit.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      . 744.441 Powers of guardian upon court approval. — After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may:

      (2) Execute, exercise, or release any powers as trustee, personal representative, custodian for minors, conservator, or donee of any power of appointment or other power that the ward might have lawfully exercised, consummated, or executed if not incapacitated, if the best interest of the ward requires such execution, exercise, or release.

      . Our affirmance of the trial court’s order should not, however, be construed to suggest that the trial court may authorize Sykes-Kennedy to amend the trust's provision regarding the trust's beneficiaries. That issue was not before us in the instant appeal.


author: BENTON, J.

text:
    AMERISURE MUTUAL INSURANCE COMPANY, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 1D14-0873.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Rehearing Denied Feb. 20, 2015.

      Maria Elena Abate and Sharlee Hobbs Edwards of Colodny, Fass, Talenfeld, Kar-linsky, Abate & Webb, P.A., Fort Lauder-dale, for Appellant.
    Richard T. Donelan, Jr., Chief Counsel, Michael H. Davidson, Assistant General Counsel, and David Hershel, Assistant General Counsel, Tallahassee, for Appel-lee.
   BENTON, J.

Amerisure Mutual Insurance Company (Amerisure) appeals a final order of the Florida Department of Financial Services, Division of Workers’ Compensation (Department). We affirm. We reject appellant’s contention that the Department ignored the findings of fact the administrative law judge (ALJ) made and improperly substituted its conclusions of law for those of the ALJ. The Department correctly applied the governing statute.

As an insurance carrier authorized to transact a workers’ compensation line of business in Florida, Amerisure is subject to certain assessments: Amerisure is required to pay quarterly assessments to the Special Disability Trust Fund (SDTF) pursuant to section 440.49(9), Florida Statutes (2008), which provides in part:

(9) SPECIAL DISABILITY TRUST FUND.—
(b)l. The Special Disability Trust Fund shall be maintained by annual assessments upon the insurance companies writing compensation insurance in the state, ... which assessments shall become due and be paid quarterly at the same time and in addition to the assessments provided in s. 440.51_
3. The net premiums written by the companies for workers’ compensation in this state ... are the basis for computing the amount to be assessed as a percentage of net premiums. Such payments shall be made by each carrier and self-insurer to the department for the Special Disability Trust Fund in accordance with such regulations as the department prescribes.

Amerisure is also required to pay quarterly assessments to the Workers’ Compensation Administration Trust Fund (WCATF) pursuant to section 440.51(1), Florida Statutes (2008), which provides in part:

Expenses of administration.—
(1) The department shall estimate annually in advance the amounts necessary for the administration of this chapter. ...
(a) The department shall, by July 1 of each year, notify carriers and self-insurers of the assessment rate....
(b) The total expenses of administration shall be prorated among the carriers writing compensation insurance in the state and self-insurers. The net premiums collected by carriers and the amount of premiums calculated by the department for self-insured employers are the basis for computing the amount to be assessed....
(5) Any amount so assessed against and paid by an insurance carrier ... shall be allowed as a deduction against the amount of any other tax levied by the state upon the premiums, assessments, or deposits for workers’ compensation insurance on contracts or policies of said insurance carrier.... Because deductions under this subsection are available to insurance carriers, s. 624.5091 does not limit such deductions in any manner.

(Boldface omitted.) Also applicable and pertinent to determination of a carrier’s assessments for these trust funds is section 624.5094, Florida Statutes (2008), which provides:

Casualty insurance premiums. — Notwithstanding any statutory provision to the contrary, for the purposes of calculating the annual assessments for the Special Disability Trust Fund under s. 440.49 and expenses of administration under s. 440.51, any amount paid or credited as dividends or premium refunds in the same calendar year by the insurer to its policyholders must be deducted from “net premium,” “net premiums written,” “direct premium,” and “net premium collected” for the calendar year. Such offset for dividends or premium refunds paid or credited for the current year must be applied against the current year’s net premium for that year’s assessment regardless of the policy year for which the dividends or premium refunds are being reimbursed.

(Boldface omitted.) The Division of Workers’ Compensation (Division) generated a one-page form (never promulgated as a rule) for carriers’ use in reporting net premiums and calculating quarterly assessments for the two trust funds. The form provided a space for the carrier to indicate whether net premium was positive or negative for the quarter and in what amount.

The form also had a space for carrying forward “debits” or “credits” from prior quarters and aggregating them with the current quarter’s net premium and assessment due. The initial premium for a workers’ compensation policy is based on an estimate of what the insured’s payroll and the classification of its employees will be during the coverage period, typically a year. Because assessments for the two trust funds must be paid quarterly, an insurer may overpay an annual assessment when positive net premiums in one or more early quarters are exceeded by negative net premium in subsequent quarter(s) in the same calendar year.

Amerisure’s SDTF Assessments

In 2008, Amerisure reported positive net premium totaling $32,934,173 for the first two quarters of the calendar year and paid SDTF assessments totaling $1,488,624. For the third quarter of 2008, Amerisure reported negative net premium (<$923,-750>), and paid no assessment. Based on Amerisure’s reported negative net premium for the third quarter, the Division’s form for the fourth quarter of 2008 indicated Amerisure had a “credit” of $41,745.36 for SDTF assessment purposes (determined by multiplying the reported negative net premium for the third quarter by the assessment rate of 0.0452). For the fourth quarter of 2008, Amerisure reported negative net premium (<$1,269,343>) and again paid no assessment. An additional credit of $57,374.30 was calculated for the fourth quarter (the fourth-quarter negative net premium multiplied by the assessment rate of 0.0452).

In this way, Amerisure paid $99,119.66 more in estimated payments (for the first two quarters of 2008) than it owed for its 2008 SDTF annual assessment, and ended the year with a credit reflecting the overpayment. In 2009, Amerisure reported negative net premiums all four quarters and paid no SDTF assessments for any quarter. The form the Division provided Amerisure with which to report its SDTF assessment for the first quarter of 2010, reflected a credit of $99,119.66, based on Amerisure’s actual overpayment of the 2008 annual assessment, but carried forward nothing for 2009 in which no assessments had been paid.

In 2010, Amerisure reported positive net premium of $828,566 for the first quarter of 2010, resulting in an SDTF assessment of $37,451.18 for the quarter. The Division reduced the $99,119.66 credit by that amount, so that the Division’s form for the second quarter of 2010 indicated Ameri-sure had a credit of $61,668.48. Amerisure reported a positive net premium of $1,282,179 for the second quarter of 2010, resulting in an assessment of $57,954.49 for that quarter. The Division again reduced the (remaining) credit by the amount of the assessment, so the Division’s form for the third quarter of 2010 reflected a “Prior Balance Carried Forward” of $3,713.99. Amerisure reported a positive net premium of $937,504.00 for the third quarter, resulting in an assessment of $13,688.00 for the third quarter. Reducing this by the “prior balance carried forward” resulted in an amount due of $9,974.01.

Amerisure’s WCATF Assessments

Similarly, in 2008, Amerisure reported positive net premiums for the first three quarters of the calendar year totaling $37,925,003 and paid WCATF assessments totaling $94,813. For the fourth quarter of 2008, Amerisure reported a negative net premium of $1,271,387, and paid no assessment. In this way, Amerisure paid $3,178.47 more (in estimated payments during the first three quarters of 2008) than it owed for its 2008 WCATF annual assessment. In 2009, Amerisure reported negative net premiums in each quarter and paid no WCATF assessments.

On the form provided for Amerisure to report net premium and the assessment for the first quarter of 2010, the Division indicated Amerisure had a credit of $3,178.47 for WCATF purposes — the amount actually overpaid in 2008. Ameri-sure reported positive net premium of $225,027 for the first quarter of 2010, resulting in an assessment of $1,800 for the first quarter. Accordingly, the Division reduced the $3,178.47 credit by $1,800.22, so that the Division’s form for the second quarter of 2010 indicated Amerisure had a credit of $1,378.25. For the second quarter of 2010, Amerisure reported positive net premium of $2,011,533, and a corresponding quarterly WCATF assessment of $16,092.26. Amerisure made no payment to the Division with this report, and the Division’s form for the third quarter of 2010 indicated Amerisure had a “Prior Balance Carried Forward” of $14,714.01 (the $16,092.26 second-quarter assessment reduced by the remaining credit of $1,378.25).

Procedural History

On September 16, 2012, Amerisure submitted an application for refunds of monies paid to the SDTF and the WCATF from October 26, 2010 through July 26, 2012., On January 28, 2013, the Department issued a Notice of Intent to Deny Applications for Refund, saying that “Amerisure received credit totaling $99,119.66 for its overpayments to the SDTF in year 2008. Amerisure to date has received, and has been allowed to apply to its subsequent payment obligations, full credit for all overpayments made by it to the SDTF;” and that “Amerisure received credit totaling $3,178.47 for its overpayments to the WCATF in year 2008. Amerisure to date has received, and has been allowed to apply to its subsequent payment obligations, full credit for all overpayments made by it to the WCATF.”

The Department took the position that to allow Amerisure to obtain in addition the cash refunds Amerisure requested “would be inconsistent with the provisions” of Sections 440.49(9)(b) and 440.51(1), Florida Statutes. The Department concluded. Amerisure was not entitled to any money from the State Treasury or to any “credits” based on the negative net premiums reported during 2009 because it paid no assessments into either the WCATF or the SDTF in 2009.

Amerisure then filed a petition for a formal administrative hearing, challenging the notice of intent to deny its applications for refund, and alleging that unadopted rules were the basis of the notice of intent to deny. Amerisure contended the Department treated “credit balances” accrued in 2009 as “excess credits,” which had to be forfeited at the end of the calendar year, and argued section 624.5094 did “not authorize the Department to eliminate accrued credits” or “support the Department’s interpretation that no credit can be accrued during a year when no monies are due and paid into the fund(s).”

Recommended Order

The administrative law judge (ALJ) rejected the Department’s position that “credits” based on negative net premiums in 2009 never actually assumed any legal significance. The ALJ cited the entries on the reporting forms sent to Amerisure each quarter and reasoned in her recommended order that the forms indicated “credits” had accrued in 2009. The recommended order recited that Department staff acknowledged “eliminating” the 2009 “credits” when the 2010 quarterly reporting forms were sent to Amerisure.

In the recommended order, the ALJ attributed the Department’s denial of refunds to the first of two putative, unadopt-ed rules. The recommended order identified two statements as agency policies that met the definition of a rule but had not been adopted through the rulemaking process: (1) any credits accruing in a calendar year in which net premiums are negative for each quarter are excess credits that are eliminated at year end and cannot be carried over to the next calendar year; and (2) credits can be carried forward for a three-year period from one calendar year to the next as long as the insurer had at least one quarter per calendar year with positive net premium; although after three years the credits are eliminated unless the insurer requests a refund. Finding the Department had not demonstrated circumstances excusing a lack of rulemaking as contemplated by section 120.57(l)(e), the ALJ determined Amerisure was entitled to recover fees and costs pursuant to section 120.595(4)(a), Florida Statutes.

The ALJ determined that a “credit” was created “by Amerisure paying more out in refunds and dividends than it wrote or collected in premium.... The Department implicitly acknowledged that reality when it calculated a credit for each quarter in 2009 and included that credit on the forms it forwarded to Amerisure for its quarterly reports.” The ALJ recommended that the “Department enter a final order ... reinstating Amerisure’s 2009 credits as credits toward future assessments due to the Trust Funds.” But, as the recommended order itself acknowledges, the governing statutes say nothing whatsoever about credits for “paying more out in refunds and dividends” than premiums received in a calendar year or carrying any such putative credits forward.

The ALJ determined the Department’s position was “not a simple application of the law to the information provided, because no statute referenced by the Department makes any mention of excess credits and how they are to be treated.” The statute makes no mention of “credits,” excess or otherwise. Indeed, the ALJ concluded that the Department’s elimination of the 2009 “credits” was based on an erroneous interpretation of section 624.5094 on grounds that the provision “does not address credits in any way, and certainly does not mandate that credits be eliminated should a carrier have four quarters in a year where negative premiums were reported.” That the statute does not “address credits in any way” led the Department to different conclusions.

Final Order

The Department rejected the ALJ’s view that Amerisure accrued credits that could be applied against subsequent years’ SDTF and WCATF assessments as a result of negative net premium in the year 2009. Focusing on the statutes, not the forms, the final order ruled the ALJ had attached “undue significance to the fact that for the 2009 assessment year only, Division employees, acting without statutory authority ..., supplied Amerisure with a quarterly assessment form that was never promulgated as a rule and that purported to identify ‘credits’ to which the carrier was entitled. Thus, the ALJ in her Recommended Order makes findings of fact that are technically accurate, but then draws legally erroneous legal conclusions from those facts.”

The Department’s final order stated the ALJ’s legal conclusions were in error because “there is neither statutory nor constitutional authority for the Division to create free-standing tax credits redeemable from the State Treasury for the benefit of a private insurance carrier that paid nothing [for the year 2009] in assessments to the Division.” The final order concluded instead:

Section 624.5094 makes clear that, for annual assessment purposes, all statutory deductions from a carrier’s “net” premium base must be taken in the assessment year in which they occur “regardless of the policy year” to which the deductions relate_ If ... a carrier must return more premiums than remain in force during an assessment year, it is entirely foreseeable that a carrier, as did Amerisure in 2009, will have no positive cash flow from which an annual assessment can be paid. The only logical resolution of this situation is for the regulator, as the statute clearly authorizes, to excuse the carrier from its obligation to pay an assessment for the assessment year in question. That is exactly what happened here. The reason it happened was not based upon so-called “credits” issued by the Department, however. The assessment was not imposed because Amerisure had no “net premium” for 2009 that could be assessed.
... No action by the Department “eliminates” a carrier’s “credits” against its assessment liability for dividends paid and premiums returned when its annual assessment is finalized at [or below] zero. Section 624.5094, Florida Statutes, by operation of law, forecloses a carrier’s ability to apply its “excess credits” — that is, the carrier’s having made more expenditures for dividends and return premium than were needed to offset the carrier’s entire assessment obligations for that year — to reduce a future year’s tax liability. This statute simply does not grant the Department independent, extra-statutory discretion to devise and declare additional deductions from a carrier’s current or future annual assessment bases, and thereby reduce the amount of tax it owes to the State.

Regarding the purportedly dispositive, unadopted rule, the Department again emphasized that there was no statutory authority for calculating “credits” on the basis asserted by Amerisure, given the plain meaning of section 624.5094: “Simply put, an insurer that has not paid an assessment is not entitled to a refund of a portion of that ‘non-assessment’ just because it has experienced a ‘negative net premium’ for an entire assessment year.... What the Recommended Order brands as an illicit non-rule policy of ‘eliminating’ the ‘excess credits’ ignores that the supposed ‘policy’ is merely ... the plain meaning of the applicable statutes.”

Analysis

In rejecting the ALJ’s conclusions of law, the final order did not ignore or reject any finding of fact the ALJ made. An agency may not reject an ALJ’s findings of fact “without first finding, after a review of the entire record, that the ALJ’s factual findings were not supported by competent, substantial evidence.” Viering v. Fla. Comm’n on Human Relations ex rel. Watson, 109 So.3d 296, 298 (Fla. 1st DCA 2013). Nor may an agency avoid the obligation “ ‘to honor the [ALJ’s] findings of fact ... by categorizing a contrary finding as a conclusion of law.’ ” Id. (quoting Pillsbury v. State, Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999)). But the record in the present case reveals no violation of this “cardinal tenet of administrative law.” Id.

The final order discussed the various forms filled out by Amerisure and the Department in the present case in some detail. The fact that the credit based on reported negative net premium in 2008 was carried forward while the “credit” based on 2009 reported negative net premium was not carried forward was addressed head on in the final order:

Because Amerisure had already paid its IQ and 2Q 2008 estimated assessments, its total 2008 assessment payments exceeded the revised final assessments for that year, resulting in Department recognition of a $99,119.66 overpayment to the SDTF by Amerisure and a $3,178.47 overpayment to the WCATF. Ameri-sure could have elected to obtain a cash refund of its 2008 overpayment, but elected instead to apply the balance to reduce a future assessment liability, which it ultimately did, by applying its 2008 overpayment to its 2010 assess,ment.
Amerisure, however, had no assessment liability for 2009 against which Amerisure’s overpayment “credit balance” could apply, and no assessment was levied. Put another way, Ameri-sure had no tax obligation for calendar [year] 2009 that could be offset, in part, by means of its overpayment balance. The record shows that the balance was applied and extinguished the next time Amerisure did have a tax liability to the Department: its calendar [year] 2010 assessments. Thus, Amerisure’s actual 2008 tax overpayment was refunded in 2010 in the form of cash equivalent credits redeemable against its pending assessment obligations for 2010. This refund transaction falls squarely within the ambit of Section 215.26, Florida Statutes.

(Internal citations omitted.) That the quarterly forms indicated increasing “credits” during 2009 based on the quarterly reports of negative net premium is not disputed by the Department. The ALJ’s statement that the forms “clearly indicated accrued credits,” to the extent this references the increasing amount of the “credit” indicated in each succeeding quarter, is a factual finding supported by competent, substantial evidence, a factual finding the Department accepted.

To the extent the ALJ determined Am-erisure had “accrued credits” that had “come into existence as an enforceable claim or right” under any set of facts, however, such a determination must necessarily have been a legal conclusion. See Black’s Law Dictionary 21 (7th ed.1999) (defining “accrue”). At issue here is not what Amerisure reported each quarter in 2009. Instead, as the Department maintains, at issue is the legal significance of Amerisure’s negative net premiums in all four quarters of the 2009 calendar year, and its consequent failure to pay assessments that year.

At issue finally is a question of statutory interpretation, as to which the standard of review is de novo. An agency

“is afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer,” Office of Fire Code Official of Collier County Fire Control & Rescue Dists. v. Fla. Dep’t of Fin. Servs., 869 So.2d 1233, 1237 (Fla. 2d DCA 2004) (citation omitted), but nothing requires “that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency.” Id. “If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed,” Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003), but “judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning.” Werner v. Dep’t of Ins. & Treasurer, 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) (quoting PAC for Equal. v. Dep’t of State, Fla. Elections Comm’n, 542 So.2d 459, 460 (Fla. 2d DCA 1989)).

Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004).

Amerisure’s contention that a carryforward of a “credit” from a year in which it paid no assessment is necessary in order for it to be made “whole” overlooks the basic fact that the governing statutes levy an assessment on carriers— not on policyholders. See §§ 440.49(9)(b)1., Fla. Stat. (2008) (“The Special Disability Trust Fund shall be maintained by annual assessments upon the insurance companies writing compensation insurance in the state....”) (emphasis supplied); 440.51(1)(b), Fla. Stat. (2008) (“The total expenses of administration shall be prorated among the carriers writing compensation insurance in the state and self-insurers. The net premiums collected by carriers ... are the basis for computing the amount to be assessed.”) (emphasis supplied); 440.51(5), Fla. Stat. (2008) (“Any amount so assessed against and paid by an insurance carrier ... shall be allowed as a deduction against the amount of any other tax levied by the state upon the premiums, assessments, or deposits for workers’ compensation insurance on contracts or policies of said insurance carrier....”) (emphasis supplied).

The insurance carrier does not act as an agent of the state to collect and remit assessments levied on the employers it insures in the way retailers collect sales taxes their customers owe. The carrier is itself liable for the assessments. Ameri-sure contends it has been “unjustly divested” of “over $400,000” that the state had “no legal right to claim,” and that the issuance of a legally enforceable “credit” is “necessary to make the carrier whole for having returned the assessment amounts that the carrier paid into the Trust Funds to policyholders.” But, even assuming Amerisure paid assessments based on premiums which were subsequently returned to policyholders, Amerisure has not demonstrated that it paid more in assessments than the law requires.

The applicable statutory provisions call for calculating assessments one year at a time. Section 624.5094 only authorizes deductions or offsets “against the current year’s net premium” for dividends or premium refunds “in the same calendar year” or “current year” in calculating “that year’s assessment” — “regardless of the policy year for which the dividends or premium refunds are being reimbursed.” There is no statutory authority for carrying one year’s negative net premium forward as an offset against a subsequent year’s positive net premium. There is no statutory authority for “credits” against future years’ assessments simply because no assessment was paid during a prior year in which net premium was negative. Absent statutory authority, the Department has no discretion to allow a reduction in the annual total subject to the assessments.

For all the same reasons, the Department did not err in rejecting the ALJ’s conclusion that the Department improperly applied unadopted rules to “eliminate” Amerisure’s 2009 “excess credits.” An “unadopted rule” is “an agency statement that meets the definition of the term ‘rule,’ but that has not been adopted pursuant to the requirements of’ section 120.54, Florida Statutes. § 120.52(20), Fla. Stat. (2014). “Rule” means “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.” § 120.52(16), Fla. Stat. (2014). The term “rule” does not include “[i]nternal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.” § 120.52(16), (16)(a). See State Bd. of Admin. v. Huberty, 46 So.3d 1144, 1147 (Fla. 1st DCA 2010) (“We have held that “ ‘[a]n agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.’ ” (quoting Fla. Dep’t of Fin. Servs. v. Capital Collateral Reg’l Counsel-Middle Region, 969 So.2d 527, 580 (Fla. 1st DCA 2007))).

“An agency ... may not base agency action that determines the substantial interests of a party on an unadopted rule.” § 120.57(1)(e)1., Fla. Stat. (2014). The Department did not do so here. The Department simply applied the governing statute to the information Amerisure reported. As the Department said in its final order, pursuant to section 624.5094, “annual assessments are, indeed, annual and are the product of a carrier’s premium experience for that year, and that year only. The ALJ fails to accord any meaning to the statutory phrase ‘against the current year’s net premium for that year’s assessment’_No action by the Department ‘eliminates’ a carrier’s ‘credits’ against its assessment liability for dividends paid and premiums returned when its annual assessment is finalized at zero. Section 624.5094, Florida Statutes, by operation of law, forecloses a carrier’s ability to apply its ‘excess credits’ ... to reduce a future year’s tax liability.”

Statements in the proposed draft rules and draft policy and procedures manual do not require compliance by anybody outside the agency, do not create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law, or add anything whatsoever to the plain meaning of section 624.5094. Similarly, the Division’s forms, which indicated increasing “credits” throughout the year 2009, also did not “adversely affect any ... substantive rights; [did] not constitute a denial or withdrawal of a right an [insurance carrier] might have; [did] not impose any new or additional requirements on an [insurance carrier]; and [did] not have ‘the direct and consistent effect of law.’ ” Huberty, 46 So.3d at 1147. “‘[A]n agency interpretation of a statute which simply reiterates the legislature’s statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.’ ” Id. (quoting St. Francis Hosp., Inc. v. Dep’t of Health & Rehabilitative Servs., 553 So.2d 1351, 1354 (Fla. 1st DCA 1989)).

The Department’s construction and application of section 624.5094 in the present case is consistent with and required by the statute. No unadopted rule need be conjured up to explain the Department’s denial of refunds to Amerisure, and the final order did not err in concluding as much.

Affirmed.

LEWIS, C.J. and RAY, J., concur.

      . On each quarterly form for 2009, the Division indicated increasing "credit” amounts for Amerisure’s SDTF assessment. On the form provided Amerisure for the first quarter of 2009, the Division indicated Amerisure had a credit of $99,119.66 (the combined credit for the third and fourth quarters, which equaled the actual amount overpaid during 2008). The form for the second quarter of 2009 indicated Amerisure had a credit for SDTF purposes of $163,401.20. The form for the third quarter of 2009 indicated Amerisure had a credit of $271,089.48. The form for the fourth quarter of 2009 indicated Amerisure had a credit of $379,235.27 (the sum of the $99,119.66 credit based on the 2008 overpayment and the total negative net premium reported for 2009 multiplied by the assessment rate of 0.0452). Amerisure reported negative net premium of $3,237,419 for the fourth quarter of 2009, and takes the position that its "credit” balance should be increased by $146,331, for a total "credit” of $525,566 in 2009, even though it paid no assessments that year.

      . Amerisure continued to report positive net premiums for purposes of the SDTF assessment through June 30, 2012.

      .On each quarterly form for 2009, the Division indicated increasing "credit” amounts. On the form provided for reporting the first quarter of 2009, the Division indicated Ameri-sure had a credit of $3,178.47 for WCATF purposes (the amount actually overpaid in 2008 based on annual net premium), and Amerisure reported negative net premium (<$1,321,194>). The Division's form for the second quarter of 2009 indicated Amerisure had a "credit” of $6,481.46. Amerisure re-potted negative net premium for the second quarter of 2009 (<$2,990,876>). The Division’s form for the third quarter of 2009 indicated Amerisure had a "credit” of $13,958.65. Amerisure reported negative net premium for the third quarter of 2009 (<$2,176,521>). The Division’s form for the fourth quarter of 2009 indicated Amerisure had a "credit” of $19,399.95 (the sum of the $3,178.47 2008 overpayment and the total negative net premium reported for the first three quarters of 2009 multiplied by the WCATF assessment rate). Amerisure again reported a negative net premium for the fourth quarter of 2009 (<$3,549,615>), and takes the position that its "credit” balance should be increased by $8,874, for a total "credit" balance of $28,273.95, even though Amerisure paid no WCATF assessments for the 2009 calendar year.

      . Amerisure continued to report positive net premiums for purposes of the WCATF assessments each quarter through June 30, 2012.

      . Amerisure asserted that as of December 31, 2009, it had $525,566 in "credits” due from the SDTF. Amerisure asserted it was only allowed to apply $99,119.66 of its “credit,” and had subsequently paid $236,663.25 "in assessments to the SDTF that the company should not have been required to pay since it had credits that should have been applied against its assessment liability.” Amerisure also asserted the "right to apply” $189,783.75 of remaining SDTF "credits” against future assessment liability.

      .Amerisure alleged it should not have been required to pay the assessments in light of the amount of "credit” it had accrued in 2008 and 2009. Amerisure asserted that as of December 3!, 2009, it had $28,273.95 in "credits” due from the WCATF, which "should have been applied against its assessment liability.”

      . The Department argues that the "credits” indicated on the quarterly forms for 2009 (in excess of the credits based on actual overpay-ments of assessments in 2008) were simply staff "notations, for bookkeeping purposes ... to recognize 'potential credits' that could be applied as tax assessment offsets in the event [Amerisure] resumed reporting taxable positive net premiums in 2009. Because, in 2009, Amerisure had no positive earnings and therefore no tax liability from which ‘potential credits’ could be deducted, the ‘potential credits' indicated on the forms had no purpose and were not applied.”

      . See, e.g., § 212.12(1)(a)1., Fla. Stat. (2014) ("[F]or the purpose of compensating remitters of any taxes or fees reported on the same documents utilized for the sales and use tax, as compensation for the keeping of prescribed records, filing timely tax returns, and the proper accounting and remitting of taxes by them, such seller, person, lessor, dealer, owner, and remitter ... shall be allowed 2.5 percent of the amount of the tax due.... ”).

      . Other statutory schemes take different approaches. See, for example, section 624.5105, Florida Statutes (2014):
      Community contribution tax credit ...
      (1) AUTHORIZATION TO GRANT TAX CREDITS; LIMITATIONS.—
      (a) There shall be allowed a credit of 50 percent of a community contribution against any tax due for a calendar year under s. 624.509 or s. 624.510.
      (b) No insurer shall receive more than $200,000 in annual tax credits for all approved community contributions made in any one year.

      (e) If the credit granted pursuant to this section is not fully used in any one year because of insufficient tax liability on the part of the insurer, the unused amount may be carried forward for a period not to exceed 5 years. The carryover credit may be used in a subsequent year when the tax imposed by s. 624.509 or s. 624.510 for such year exceeds the credit under this section for such year.
      (Boldface omitted.) See also § 212.17, Florida Statutes (2014):
      [Sales] Tax credits or refunds.—
      (l)(a) If purchases are returned to a dealer by the purchaser or consumer after the tax imposed by this chapter has been collected from or charged to the account of the consumer or user, the dealer is entitled to reimbursement of the amount of tax collected or charged by the dealer, in the manner prescribed by the department.

      te) If the tax has not been remitted by a dealer to the department, the dealer may deduct the same in submitting his or her return upon receipt of a signed statement by the dealer as to the gross amount of such refunds during the period covered by the signed statement, which may not be longer than 90 days. The department shall issue to the dealer an official credit memorandum equal to the net amount remitted by the dealer for such tax collected or paid. Such memorandum shall be accepted by the department at full face value from the dealer to whom it is issued upon the remittance of subsequent taxes accrued under this chapter. If a dealer has retired from business and filed a final return, a refund of tax may be made if it can be established to the satisfaction of the department that the tax was not due.
      (2) A dealer who has paid the tax imposed by this chapter on tangible personal property sold under a retained title, conditional sale, or similar contract, or under a contract in which the dealer retains a security interest in the property pursuant to chapter 679, may take credit or obtain a refund for the tax paid by the dealer on the unpaid balance due him or her when he or she repossesses the property, with or without judicial process, within 12 months after the month in which the property was repossessed. If such repossessed property is resold, the sale is subject in all respects to the tax imposed by this chapter.

        (Boldface omitted.)

      . We note, however, the Department’s subsequent adoption of Rule 69L-4.002, Florida Administrative Code, during the pendency of the appeal, which provides:
      (1) For purposes of its quarterly WCATF assessments under this rule, a carrier or self-insurance fund may offset from its total of premiums collected during the quarter all amounts actually paid or credited to policyholders for dividends and returned premiums during the quarter regardless of the calendar year the policies incepted for which the dividends or returned premiums apply. For purposes of its quarterly SDTF assessments under this rule, a carrier or self-insurance fund may offset from its total amount of premiums written during the quarter, all amounts actually paid or credited to policyholders for dividends and returned premiums during, the quarter regardless of the calendar year the policies incepted for which the dividends or premiums apply.
      (2) In the event a carrier or self-insurance fund is determined by the division to have overpaid its annual WCATF or SDTF assessment, the amount of any actual overpayment deposited into the State Treasury may, at the option of the carrier or fund, be carried forward as a dollar-for-dollar credit against future assessment liabilities: or be refunded by the division. No carrier or self-insurance fund shall be entitled to credits that exceed the assessment amounts actually paid for the specific calendar year to which the assessments apply.

      . The Department’s position is also consistent with the plain language of section 215.26, Florida Statutes (2008), regulating refunds. Section 215.26 provides, in part:
      (1) The Chief Financial Officer may refund ... any moneys paid into the State Treasury which constitute:
      (a) An overpayment of any tax, license, or account due;
      (b) A payment where no tax, license, or account is due; and
      (c) Any payment made into the State Treasury in error....
      (2) Application for refunds as provided by this section must be filed with the Chief Financial Officer, except as otherwise provided in this subsection, within 3 years after the right to the refund has accrued or else the right is barred....

      . A Division employee drafted proposed rules for the Division’s Assessment Unit, which addressed “excess credits” based on negative net premium. One draft of the proposed rules provided that if a carrier owes no assessment for a quarter as a result of offsets for dividends paid and premium refunds, the carrier will be able to apply the "unused premium offset to reduce assessments owed in any of the other three quarters of the same calendar year,” but after the last quarterly report is filed for a calendar year the Division would "adjust the Carrier’s records to remove any credits due to these premium offsets that were not used in that year” and the credit pre-printed on the quarterly report for the first quarter of the following year would "reflect only overpayment of assessment(s).” This draft of the proposed rules also provided that when an assessment for either the WCATF or SDTF was overpaid, the carrier could elect either to apply the overpayment against future assessments owed to the same fund or submit a refund request under section 215.26, Florida Statutes, within three years of the date the alleged overpaid amount was initially deposited into the State Treasury; after the end of the three-year window, any unused portion of an overpayment would no longer be available as an offset against future assessments or for the issuance of a refund.
      In explanation of the conclusion that these findings established statements of policy that constituted unadopted rules, the ALT stated only that the Department had held the stated position "at least since 2004” and "the Department's position is not a simple application of the law to the information provided, because no statute referenced by the Department makes any mention of excess credits and how they are to be treated.” The fundamental problem with the ALJ's conclusion is that section 624.5094 precludes carrying forward negative net premium from one calendar year to a subsequent calendar year, thereby precluding the "credits” at issue in the first place.
      The fact that "credit” calculations based on Amerisure's 2009 quarterly reports of negative net premium appeared on the quarterly assessment forms was not sufficient to establish that Amerisure had a statutorily authorized entitlement to such "credits” so that the Department was required to establish authority (by statute or rule) to "eliminate” the credits. The notation of credits (or debits) on the Division’s pre-printed forms appears to be a bookkeeping device to carry forward information from one quarter to the next, a result of the fact that the assessments at issue are actually annual assessments even though the statutes set forth quarterly reporting requirements. It is therefore both irrelevant and completely understandable that nothing in section 624.5094 "mandates that credits be eliminated under any circumstances.”