author: MAASS, ELIZABETH T., Associate Judge. FARMER, J.,

text:
    Julian BLAND, Appellant, v. GREEN ACRES GROUP, L.L.C., a Florida Corporation, Appellee.
    No. 4D08-3632.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.
    Rehearing Denied Aug. 5, 2009.

      Wesley R. Harvin, II of Harvin, Harvin & Pinnock, LLP, Stuart, for appellant.
    Clifford A. Kornfield of Clifford A. Kornfield, P.A., Miami, for appellee.
   MAASS, ELIZABETH T., Associate Judge.

Julian Bland, the defendant below, filed an interlocutory appeal from the trial court’s denial of his request to compel arbitration. We conclude that there was competent, substantial evidence that Bland’s actions before and during suit waived the contract’s arbitration clause, and affirm.

On March 19, 2005, Bland contracted to sell raw land to Green Acres Corp., LLC’s predecessor in interest. Green Acres sued Bland for breach of contract in 2005. In March of 2006, Bland, a British citizen, filed a limited appearance and motion to dismiss when Green Acres was unable to timely effect service. Green Acres filed a notice of lis pendens against the property August 10, 2005, of which Bland became aware not later than May 26, 2006. Green Acres voluntarily dismissed the 2005 case on August 21, 2007.

That same day, Green Acres again sued Bland for breach of contract. A week later, Green Acres’s counsel wrote Bland’s counsel, told him that Green Acres had refiled the case, and asked whether he could accept service. Instead, Bland was purportedly served by constructive process in the 2007 suit. The court entered a default October 22, 2007. Four days later, Bland’s counsel reinstigated settlement negotiations, demanding “the dismissal without prejudice of the action in question” as part of the settlement. On December 6, 2007, Green Acres filed a motion for default final judgment. Bland served a Notice of Limited Appearance and unsworn motion on December 14, 2007. The motion alleged that service was improper; that he did not know he had been constructively served; that his failure to timely respond was excusable; and that he had “Contractual Defenses to bringing of this action in the Circuit Court,” without stating what they were. Hearing on Bland’s motion was set for January 23, 2008, but canceled by Bland so that the parties could further pursue settlement.

On May 8, 2008, Green Acres served a motion to enforce settlement. That motion was set for hearing in August of 2008. On July 29, 2008, Bland served a Motion to Stay and to Compel Arbitration asking, for the first time, that the dispute be resolved in arbitration. Hearing on Bland’s motion to set aside the default was set for August 8, 2008.

Bland piggybacked his motion to compel arbitration onto the August 8, 2008 hearing. The trial court refused to vacate the default. Since no final judgment has been entered, that order is not yet subject to review. See Fla. R.App. P. 9.130(a)(3). Consequently, we do not comment on the propriety of that order but assume for the purpose of this opinion that it was correct. The trial court denied the motion to compel arbitration, finding that Bland had waived the contract’s arbitration clause.

The parties’ contract provided, in pertinent part, that:

Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the county where the property is located ....

In ruling on a motion to compel arbitration, the court must consider whether a valid written agreement to arbitrate exists; whether an arbitrable issue exists; and whether the right to arbitration has been waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The parties agree that there is an arbitration clause and that the issue raised in Green Acres’s complaint is arbitrable. Green Acres waived its right to seek arbitration, at a minimum, when it filed suit. See Lapidus v. Arlen Beach Condo. Ass’n, Inc., 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). Bland denies that he had waived the clause, though.

Determining whether a party has waived an arbitration clause involves the same fact sensitive analysis as finding waiver of any other contractual provision. See Raymond James Fin. Serv., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). Thus, a party may waive a right to arbitrate after suit has been filed by actively participating in the suit. See Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002). Filing an answer without claiming the action should be referred to arbitration waives the right to arbitrate. King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235, 1235 (Fla. 4th DCA 1977); Lapidus, 394 So.2d at 1103.

Here, a default was entered against Bland, the effect of which was to admit the complaint’s well pled allegations. See Donohue v. Brightman, 939 So.2d 1162, 1164-65 (Fla. 4th DCA 2006). Assuming proper service of process and actual knowledge of the case, it is difficult to imagine a more emphatic repudiation of the right to arbitrate than an admission that a court is a proper forum to determine the claim.

Even when Bland moved to vacate the default and thus was required to apprise the court of his meritorious defenses, he did not directly raise the arbitration clause. See Global Constr. Servs., Inc., 890 So.2d 445, 446 (Fla. 4th DCA 2004); Perry v. Univ. Cabs, Inc., 344 So.2d 914, 915 (Fla. 8d DCA 1977). Arguably, his failure to specifically raise the arbitration clause at that point waived his right to assert it. See Transamerica Ins. Co. v. Weed, 420 So.2d 370, 372 (Fla. 1st DCA 1982). An arbitration clause is not a “Contractual Defense” to the action’s merits. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (agreeing to arbitrate a claim does not forgo substantive rights but merely submits their resolution to arbitral, not judicial, forum); Global Travel Markg., Inc. v. Shea, 908 So.2d 392, 403 (Fla.2005) (arbitration clause does not extinguish the underlying claim). Bland did not move to compel arbitration until over seven months after appearing in the 2007 suit, and almost eleven months after he knew about it.

Bland’s post-filing actions alone support the trial court’s finding of waiver. Like any other contract provision, though, arbitration may be waived before suit is even filed if “under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Raymond James Fin. Servs., Inc., 896 So.2d at 711 (citation omitted). It follows, then, that a finding of waiver may be predicated on both pre- and post-suit actions in tandem. Here, the trial court heard evidence that Bland knew of the 2005 suit no later than March of 2006; actively avoided service; never sought to trigger the mediation pre-condition to arbitration; never made a demand to arbitrate under Fla. Stat. § 684.22(1); waited eleven months after learning suit had been refiled and over seven months after appearing to seek to compel arbitration; and engaged in settlement negotiations for years without raising the arbitration clause. These actions are sufficient to waive arbitration. See O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 358-59 (6th Cir.2003). We find competent, substantial evidence to support the trial judge’s conclusion, and affirm.

GROSS, C.J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

I certainly agree that a contract right to arbitrate can be waived. But if I am no fan of arbitration — at least not as it is sometimes imposed in consumer transactions — I am concerned that the majority’s decision waiving arbitration marks a serious and substantial departure from the statutory policy of enforcing arbitration agreements in the same way contracts are generally enforced. In my opinion, it is most casual in its unprecedented extension of the grounds on which contract rights to arbitrate may be deemed waived. And the grounds said to support the waiver conflict with clear precedent in this district. The majority opinion demands a detailed response, the length of which impels me to beg the reader’s leave.

The principal contentions of Green Acres begin with its legal argument that a default operated to waive arbitration. Then it argues Bland’s various conduct before and after the filing of its second try at suing him also waived his right to arbitrate. I think Green Acres fails in all these contentions.

A. Default as a waiver of arbitration

How did Bland waive arbitration by suffering a default in the second lawsuit filed during the long settlement discussions of the parties? The majority claim Bland’s default admitted the “well-pleaded” allegations and liability stated in the complaint filed by Green Acres. But what does the law actually regard as admitted by this particular default?

The rules require that any contract on which action is brought be attached and made a part of the pleading. A contract then becomes part of the pleading for all purposes. The statute’s term for all purposes undoubtedly includes any issues raised by a default. We must therefore look to the Complaint and its well-pleaded allegations and assay the default’s effect on the contract provision for arbitration.

The March 15, 2005, Sales and Purchase Contract was attached to the Complaint. Its arbitration provision says this:

14. DISPUTE RESOLUTION: This Contract will be construed under Florida law. All controversies, claims or other matters in question arising out of or relating to this transaction or this Contract or for breach will be settled as follows:
(a) Disputes concerning entitlement to deposits made and agreed to be made: ...
(b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the County where the property is located.... This clause will survive closing, [e.o.]

The parties agreed that arbitration replaced litigation. We must judge their agreement under Florida law, not the law of another State or federal law. The contract’s mediation provision first requires an attempt to settle a dispute before resorting to arbitration. Nothing in their Contract says they must demand arbitration while they are trying to settle.

Nothing in the Complaint says anything about waiving arbitration. There are no allegations about any waiver, no demand for such relief. Our decision on this identical issue in Opti Inc. v. Sales Engineering Concepts Inc., 701 So.2d 1234 (Fla. 4th DCA 1997), is therefore controlling. In deciding that under a default a similar Contract actually required arbitration and did not admit liability in the lawsuit, we said:

“In this case the complaint alleged a contract between the parties, a copy of which was attached to the pleading, and a breach. The attached contract contained a provision that the sole remedy for breach would be by arbitration in California. The complaint did not allege that the breaching party had waived or refused to arbitrate, but instead sought a judicial remedy by money judgment. Plaintiffs prayer for a money judgment was thus repugnant to the specific allegations of the contractual provisions, and therefore the pleading was a nullity. Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA), cert. den., 252 So.2d 797 (Fla.1971); Harry P. Trawick, Jr., Florida Pleading and Practice, § 6-7, at 84-85 (1996 ed.). The complaint failed on its face to state a cause of action for any judicial relief, other than to compel arbitration.”

701 So.2d at 1235. We could copy that text for this case. Here, neither the Contract nor the procedural facts around the default can be distinguished from those in Opti. The Green Acres pleading makes no claim of waiver. So, under clearly applicable precedent from this court, the proper legal response to the default was to require arbitration, not find it waived by the default. Reliance on the default as a waiver of arbitration is therefore a non sequi-tur in conflict with that precedent.

B. Conduct deemed by law as waiving arbitration

Passing on from the default issue, we confront another problem. Assuming proof, what kind of conduct does the law generally recognize as waiving arbitration? In Raymond James Financial Services Inc. v. Saldukas, 896 So.2d 707 (Fla.2005), the court said:

“The right to arbitration, like any contract right, can be waived. The [U.S.] Supreme Court has made clear that the ‘strong federal policy in favor of enforcing arbitration agreements’ is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism. Thus, the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” [e.s., c.o.]

896 So.2d at 711. The supreme court’s holding is that a party may waive a contract right to arbitration by the kind of participation in litigation that conflicts with the right to arbitrate.

C. What participation in litigation conflicts with arbitration?

Knowledge of the pendency of the suit by itself tells us nothing about any waiver of arbitration. The real question is: under the total circumstances how did a party’s participation in a lawsuit conflict with a right to arbitrate? This court addressed that issue in Miller & Solomon General Contractors Inc. v. Brennan’s Glass Inc., 824 So.2d 288 (Fla. 4th DCA 2002). Our inquiry concerned the nature of conduct properly deemed to conflict with the right to arbitrate. We explained:

“Whether there is a ‘[w]aiver of the right does not necessarily depend on the timing of the motion to compel arbitration, but rather on the prior taking of an inconsistent position by the party moving therefor.’ ‘[WJaiver may occur as the result of active participation in a lawsuit.’ This is true because such action is generally presumed to be inconsistent with the intent to arbitrate. ...
“All questions about waivers [of arbitration] should be construed in favor of arbitration rather than against it.
... “Courts have found active participation in cases in which the party seeking arbitration has defended by attacking the merits of the case as opposed to initially challenging the plaintiffs right to judicial remedy in the first place.
Based upon these cases, it is clear that the prevailing view looks at the defendant’s intention in responding. Is the defendant’s response to attack the merits? If so, then waiver is acknowledged. If the defendant’s response is not directed at the merits of the actual underlying claim, then waiver should not be inferred.” [e.s., c.o.]

824 So.2d at 290, 291. Our holding in Miller & Solomon is that if the defendant’s conduct in litigation is not directed at the merits of the underlying claim, then waiver should not be inferred. An attempt to dismiss a lawsuit only on procedural grounds thus does not constitute a waiver in our controlling precedent. That is the law in this district, and we have since followed it. See Marine Environ. Partners Inc. v. Johnson, 863 So.2d 423, 427 (Fla. 4th DCA 2003) (party’s filing Answer on merits waived ai'bitration).

To avoid a waiver, the majority would require Bland to demand arbitration in his first appearance in court. Truth is, his motion to set aside the default did assert a defense of arbitration. He also demanded arbitration in his motion to compel. But Miller & Solomon makes clear that only participation on the merits results in a waiver of arbitration. Thus, the absence of a demand for arbitration in Bland’s first appearance in litigation does not affect his right to arbitration so long as he did not seek a judicial outcome on the merits of the dispute. Nothing shows him even inferentially asserting the merits at any time.

The majority implies that the party must “directly raise the arbitration clause” to avoid a waiver by participation in litigation. Again Miller & Solomon does not require that he directly — or, for that matter, even indirectly — raise the right to arbitrate in his first response to a lawsuit, but only that he refrain from addressing the merits. Again, in truth Bland’s motion to vacate the default did expressly assert that he had a valid contract defense of arbitration, and we know from Opti that the default actually had the result of establishing his right to arbitration.

D. No evidence to suppori waiver

When an issue must be determined on the basis of the “totality of the circumstances” the circumstances in question are historical facts, which can be established only by evidence. As the court said in Jacksonville Sheriff’s Office v, Cowen, 973 So.2d 503, 507 (Fla. 1st DCA 2007), “[generally a determination of whether a party has waived the right to arbitrate a dispute involves findings of fact that would be reviewed in this court for support by competent substantial evidence.”

So what did the evidence in the trial court show about waiver? Absolutely nothing. There was no proof, only jawing. The hearing in this case is striking for its utter absence of any evidence. It consisted entirely of two lawyers arguing before a judge, answering his questions with mere unsworn assertions as to their understanding of facts. Neither lawyer produced any testimony or affidavits directly addressing waiver (or anything else at issue, for that matter). The lawyer for Green Acres never authenticated the two letters on which he relied to establish a waiver or sought them admission into evidence. In fact he could not even produce the critical October letter. Both counsel simply rely on their assertions in place of evidence.

And what is the effect of lawyers attempting to prove necessary facts by their own unsworn assertions? In Leon Shaffer Golnick Advertising Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982), we rejected the use of unsworn assertions by lawyers as evidence and explained:

“the practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.” [e.s.]

Golnick Advertising, 423 So.2d at 1016-17. The Golnick Advertising holding is now well established in this district and elsewhere.'

Judge Gross has made clear in Brown v. School Board of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003), why this policy must be followed in this court:

“I concur in the majority opinion, because the rule of Leon Shaffer Golnick Advertising Inc. v. Cedar is firmly entrenched; in the absence of a stipulation, unsworn statements by the attorneys cannot be the basis for factual findings by the trial court. Stare deci-sis compels reversal.
“It seems to me that the law should require an objection to preserve the issue for appellate review. At brief hearings on attorney’s fees or sanctions like the one in this case, it is not uncommon for each attorney to present one side of the case without any objection or request for cross-examination from the other. If I were writing on a blank slate, I would hold that such silence waived the objection to the court relying on unsworn testimony. To do otherwise is to allow an attorney to blindside an opponent by springing a ‘gotcha’ argument on appeal. A timely objection would allow the deficiency in proof to be cured without requiring the time and expense of an appeal and a second hearing.
“My reading of the law in this district is that no timely objection is required to preserve the Leon Shaffer objection on appeal. In Leon Shaffer, it does not appear that there was any objection to the attorneys’ unsworn testimony in the trial court; ‘both attorneys made un-sworn representations about the nonappearance of appellant’s attorney’ at a hearing.
“Similarly, in Ladoff v. Ladoff [496 So.2d 989 (Fla. 4th DCA 1986) ], we did not require an objection in the trial court to reverse based on the Leon Shaffer rule. We treated the issue as one of a failure of proof.” [c.o.]

855 So.2d at 1270 (Gross, J., specially concurring).

This case is identical to Golnick Advertising and Brown. No testimony was taken; no documents were authenticated or admitted into evidence; no objections were made about the absence of these formalities.

E. Legal insufficiency of conduct claimed to waive arbitration

In addition to the lack of actual evidence on the waiver issue, the totality of conduct relied upon by the majority is legally insufficient to constitute a waiver of arbitration. Each of the separate contentions is also independently inadequate, so six zeros add up to zero.

1. Bland knew of the 2005 suit no later than March of2006

No proof establishes that Bland knew Green Acres had refiled the lawsuit before he received its motion for judgment on the default. While the lawyer for Green Acres argued that by inference from letters he had written to Bland’s lawyer Bland must have known of the refiling, he produced no evidence to support this contention. The letters he read to the trial judge do not say that the lawsuit has been refiled. The trial judge certainly sided with the position of Green Acres in denying Bland’s motion to compel arbitration — but not because of some evidence. Any description of the trial judge making a “finding” is therefore inaccurate.

2. Bland “actively avoided service” of process

The majority asserts that Bland waived arbitration by “actively avoiding service” of process but declines to explain how such avoidance would amount to a waiver of arbitration. If the test for waiver is participating in the litigation, the legal question posed by this part of the holding becomes simple. Because avoiding service stops litigation from ever getting started, how would avoidance of service of process ever amount to a waiver of arbitration?

The parties had agreed to arbitration in their contract. Green Acres wanted to breach this provision and instead litigate in court. Bland was privileged to insist on arbitration. So why is he required to assist Green Acres in getting a lawsuit underway by facilitating service of process? It passes all reason to conclude that avoiding service waives arbitration.

For that matter, when did the law begin requiring defendants to assist in effecting service of initial process in order to preserve their contract rights? Actively avoiding service of process (without criminal conduct) is not only legally protected, it’s an American custom. The majority’s reliance on Bland’s failure to assist in service of process is not only legally incoherent, it’s downright un-American.

3. Failure to comply with the mediation pre-condition to arbitration

Paragraph 14B of the contract provided that the parties would resort first to mediation before arbitration. The majority argues that Bland failed to comply with the mediation provision. The Contract does use the term mediation. But mediation was used by the parties in its commonly defined sense: “intervention to promote settlement or compromise;” “an attempt to bring about peaceful settlement or compromise between disputants.” Thus the real purpose of the mediation provision was simply to require the parties to make an honest effort to settle the case first.

Because they were themselves negotiating through counsel, neither party demanded a formal mediator. Why isn’t mutual participation in settlement discussions for two years more than enough compliance with a contract provision whose essential purpose is simply to require them to try to settle a dispute before resorting to arbitration? With such a long effort to settle, failing to try mediation could hardly be material when the purpose is to try settlement before arbitration.

Ip. Bland failed to make demand under § 684-22(1) and waited 11 months after learning suit had been refiled and over seven months after appearing to seek to com,pel arbitration

The statute on which the majority rely says:

“A person may apply to a circuit court of this state for an order compelling arbitration if that person claims that another party to a dispute has entered into a written undertaking to arbitrate that dispute and after notice has refused or otherwise failed to arbitrate in accordance with the undertaking.”

The majority is really saying here that Bland should have made his motion to compel arbitration at some point during the long negotiations of the parties to settle their dispute before Green Acres procured the entry of a default in the second lawsuit it commenced during those discussions. The statute, however, states no time limit and imposes no condition of any kind as to when a party must invoke the assistance of the court to require arbitration. Nothing in this statute empowers judges to refuse to compel compliance with written arbitration agreements on the basis of the timing or sequencing of a motion to compel.

Even more important, if there is a valid written agreement to arbitrate, as is indisputably true in this case, this statute makes any waiver issue a decision for the arbitrators, not for judges. So the majority has now created a judicial pre-con-dition contrary to the statute and the contract of these parties — and also one that conflicts with the jurisdiction of the arbi-tral tribunal, at that! The very invocation of this new judge-made rule suggests a return to the former hostility of judges to contracts to arbitrate as attempts to oust courts of their jurisdiction.

5. Engaged in settlement negotiations for years without raising the arbitration clause

Finally, the majority argue that arbitration may be waived simply by taking part in settlement discussions. This may be the most insidious part of the majority’s decision on a waiver of arbitration. Allowing mere attempts to settle to have the effect of waiving arbitration is a very pernicious holding. It is also incoherent with essential law and policy.

So preferred is settlement of commercial disputes that the supreme court has forcefully articulated a strong public policy encouraging it. See Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985) (holding “settlements are highly favored and will be enforced whenever possible”). And when parties attempt to effect a private resolution of disputes, they are responding not only to primal vestiges among social animals but also to immensely vital public policy.

For a waiver, the majority rely on O.J. Distributing Inc. v. Hornell Brewing Company Inc., 340 F.3d 345 (6th Cir.2003), a federal decision applying unspecified law other than Florida’s. The contract here requires application of Florida law.

In truth, this federal case does not even support their holding. There a party was held to have waived arbitration by engaging in 15 months of negotiations after terminating a distributorship relationship. But during this protracted period of bargaining, the party continually denied the existence of the contract to arbitrate, disclaiming any such duty. Because the party persistently denied arbitration during the settlement discussions, the court found that the party had waived arbitration. The appellate court agreed this conduct of renouncing arbitration amounted to a waiver. In sum, it was not because the party negotiated settlement that arbitration was waived. It was instead the party’s repeated disavowals of any agreement to arbitrate that waived arbitration.

There are many reasons not to regard settlement discussions alone as waiving arbitration unless there is an express disavowal. As one writer said: “Pre-litigation negotiations often involve acts or statements that amount to nothing more than posturing (where one party attempts to ‘stare down’ the other party in the hope of a capitulation).” Thomas H. Oehmke, 3 COMMERCIAL Arbitration § 50:20 (database updated March 2009).

Avoiding litigation is the purpose of settlement negotiations. Avoiding litigation is the sole purpose for contracts to arbitrate. The essential nature of such agreements therefore cuts strongly against finding waivers of arbitration by simply engaging in settlement discussions.

Moreover, what is the theoretical basis to treat any failed settlement attempt as abandoning a contract right? The law has long indulged an unspoken custom or presumption that all settlement discussions are without prejudice to any claim or defense. Today’s decision directly undermines that policy. Private settlement efforts should almost never be used by judges to deny disputed contract rights. Finding waiver in attempts to settle degrades the significance placed on peaceful settlement over both litigation and arbitration.

F. Service of Initial Process

There is one final difficulty with any waiver from taking part in the lawsuit. It has to do with an obvious, irrefutable defect in service of initial process. Counsel’s predicate affidavit for constructive service reveals he knew Bland’s local counsel— with whom he was in contact throughout the settlement discussions — and where to reach him. In spite of that he sent the required notice of service by publication only to Bland’s old address which he knew would never reach him. When asked by the trial Judge if he had also sent a copy of the notice to Bland’s lawyer, he responded: “I felt that sending him a letter ... was above and beyond the call.” [sic! ]

To the contrary, his failure to do so violated the essential notice required by due process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and Tulsa Prof. Collection Serv. Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (holding that if person’s identity is known, under Mullane due process requires notice by such means as is certain to ensure actual notice). We are left with notice to Bland only in the form of a wink and a nod, a blank sign. This failure in service of initial process renders the default and any consequent judgment void.

In assessing whether Bland’s conduct was a voluntary and intentional waiver, and resolving doubts about the effect of a default in favor of arbitration, I am therefore led to accord no legal significance to this impotent incident of attempted process. If he were not properly served initially, it cannot possibly be said Bland’s attempts to quash service and compel arbitration constitute the kind of participation as would waive his contract right to arbitrate.

I would reverse and require arbitration.

      . Though, given Bland's non-resident status, enforcement of the arbitration clause is subject to the Florida International Arbitration Act, Fla. Stat. Ch. 684.01, et seq., neither the motion to compel nor the record on appeal shows that Bland made a prior demand for arbitration. See § 684.22(1), Fla. Stat. Bland’s failure to comply with this statutory condition precedent arguably waived his right to seek to compel arbitration. See Hubbard Constr. Co. v. Jacobs Civil, Inc., 969 So.2d 1069 (Fla. 5th DCA 2007).

      . The hearing on the motion to vacate the default and motion to compel arbitration was informal. Most of Bland’s motion to vacate the default (which was not co-titled as a motion to quash service) assumed proper service and sought to vacate the default based on due diligence, excusable neglect, and the existence of a meritorious defense. Both the trial judge and opposing counsel pointed out that Bland submitted nothing under oath to support his motion. Bland claimed constructive service was improper only because paragraph 3 of the Sworn Statement of Constructive Service, which averred that the sheriff had been told by the occupants of Bland's former Okeechobee County address that Bland had moved to England and left no forwarding address, contained double hearsay. Paragraph 6 of the sworn statement, though, averred that Bland’s counsel “had been advised of this case but refused to provide [Bland's] address.” Bland’s counsel acknowledged having received a letter from Green Acres's counsel telling him the case had been refiled and asking him to accept service. He did not challenge the factual accuracy of the sworn statement or argue that any of the causes of action raised would not permit published service. We recite this background only to make clear that, based on the record in ¡his interlocutory appeal, the legal adequacy of Bland's motion to vacate is disputable, not to resolve that dispute, an issue not before us.

      . An arbitration clause does not deprive a court of subject matter jurisdiction. See Gen. Star Nat'l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir.2002). Instead, much like a judicial forum selection clause, an arbitration clause "constitutes a prospective choice of forum.” Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 403 (Fla. 2005). Forum selection clauses may be waived. See, e.g., Three Seas Corp. v. FFE Transp. Servs., Inc., 913 So.2d 72, 75 (Fla. 3d DCA 2005) (Texas forum selection clause waived by failure to raise in defensive motion or answer, though contract containing selection clause an exhibit to complaint). As the Fifth District Court of Appeal noted, this court’s decision in Opti, Inc. v. Sales Eng’g Concepts, Inc., 701 So.2d 1234 (Fla. 4th DCA 1997), predated the Florida Supreme Court's opinion in Seifert, 750 So.2d 633, which held that a party seeking to enforce an arbitration clause must do so affirmatively. See Bojadzijev v. Roanoke Tech. Corp., 997 So.2d 1251, 1253 (Fla. 5th DCA 2009). See also Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290 (11th Cir.1998) (otherwise proper motion to dismiss based on forum selection clause properly brought under Fed.R.Civ.P. 12(b)(3) (improper venue), not 12(b)(1) (lack of subject matter jurisdiction)). The logical extension of the dissent’s argument that the complaint must affirmatively plead facts supporting a waiver of the arbitration clause is that a defaulted defendant could successfully appeal an otherwise proper final judgment based solely on the trial court's failure to refer the dispute to arbitration, though no demand for arbitration had been made.

      . A verbal nugget lies buried in the verbal harvest of this case: a lawyer named Kom-field argues on behalf of a party named Green Acres before a judge named Farmer. Maybe it’s just fertilizer for the Farmer.

      . See Board of Regents v. Stinson-Head Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987) ("A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law.”) [e.s.] (quoting Henry Trawick, Florida Practice and Procedure § 25-4 (1986)).

      . Fla. R. Civ. P. 1.130(a) (“All ... contracts ... upon which action may be brought or defense made, or a copy thereof ... shall be incorporated in or attached to the pleading”).

      . Fla. R. Civ. P. 1.130(b) ("Any exhibit attached to a pleading shall be considered a part thereof for all purposes”).

      . Citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218-24, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); see also Roe v. Amica Mut. Ins. Co., 533 So.2d 279 (Fla. 1988) (arbitration is favored means of dispute resolution and courts indulge every reasonable presumption to uphold arbitration awards); Miele v. Prudential-Bache Securities, 656 So.2d 470 (Fla. 1995) (same); Tumberry Assoc, v. Service Station Aid Inc., 651 So.2d 1173 (Fla. 1995) (contracts to arbitrate favored but parties may waive right to have judge determine attorneys fees).

      .One indication of the majority’s casualness about waiving arbitration is its gratuitous observation that Green Acres itself did so simply by commencing litigation over the dispute. Actually, for any other kind of contractual undertaking, this would be seen as a breach of a material provision to arbitrate disputes, not as a waiver. When one contracting party unilaterally breaches a contract, the question may then become whether the other party has made that breach bilateral by conduct acquiescing in it. But the majority's readiness to see the Green Acres breach of the agreement to arbitrate as simply just another waiver is merely the first sign that this right of avoiding courts is really a lesser kind of undertaking — something either side can easily walk away from.

      . See also Christopher B. Hopkins, The Perils Of Enforcing "Favored" Arbitration, 24 Trial Advocate Q. 30, 34 (2005) (“The Fourth District Court of Appeal held that 'attacking the merits' was the test for waiver ...").

      . His motion said: “[Bland] has meritorious defenses to the Petition which include: Invalidity of Service and Contractual Defenses to

        the bringing of this action in the Circuit Court." [e.s.] The Green Acres claim that Bland did not move to compel arbitration until almost 11 months after he knew about the suit is an unsworn assertion by its lawyer lacking any evidence to support it.

      . Nor have the letters been furnished in any Appendix filed in this court.

      . See Faircloth v. Bliss, 917 So.2d 1005, 1006-07 (Fla. 4th DCA 2006) (“Unsworn statements by attorneys are usually not considered as evidence by trial courts unless stipulated to by both parties”); Hitt v. Homes & Land Brokers Inc., 993 So.2d 1162, 1166 (Fla. 2d DCA 2008) (unsworn statements of counsel do not establish facts); Ramunno v. Terranova, 963 So.2d 945 (Fla. 4th DCA 2007) (arguments of counsel and unsworn pleadings from another case do not constitute evidence to support factual finding); Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005) (unauthenticated documents and arguments of counsel were not evidentiary support for factual findings); Reddick v. Reddick, 728 So.2d 374 (Fla. 5th DCA 1999) ("In the absence of a stipulation, and subject to the contemporaneous objection rule, an unsworn statement of fact cannot form the basis for making a factual determination”); Procter & Gamble Co. v. Swilley, 462 So.2d 1188, 1193 (Fla. 1st DCA 1985) (principle is well established in Florida that the unsworn analysis of a party’s attorney is insufficient to satisfy as proof of fact).

      . The statement that the "court heard evidence that Bland knew of the 2005 suit no later than March of 2006” is not supported by the transcript. In fact both parties had a burden at the hearing to prove a critical fact for their positions: Green Acres to prove conduct waiving the right to arbitration; Bland to prove a claim of excusable neglect to vacate the default.

      . The majority opinion describes the conduct thus: [1] "Bland knew of the 2005 suit no later than March of 2006; [2] actively avoided service; [3] never sought to trigger the mediation pre-condition to arbitration; [4] never made a demand to arbitrate under Fla. Stat. § 684.22(1); [5] waited 11 months after learning suit had been refiled and over seven months after appearing to seek to compel arbitration; and [6] engaged in settlement negotiations for years without raising the arbitration clause.”

      . See Kent Sinclair, Service Of Process: Rethinking the Theory and Procedure of Serving Process under Federal Rule 4(c), 73 Va. L. Rev. 1183, 1187 (1987) ("For at least four thousand years, claimants have been required to take concrete steps to bring a putative defendant before the governing tribunal. In the Code of Eshnunna, one of the earliest known legal codes ... plaintiff could not have the action heard ... unless the defendant joined in submitting it to the power of the court.”).

        .See Cound Friedenthal Miller and Sexton, Civil Procedure Cases and Materials 172-74 (4th ed. 1980):
      "Mrs. Schnible stayed in her room on the third floor and refused to open the door, no matter who knocked. Came a day when she heard a heavy footfall on the first landing, heard somebody running frantically up the first flight of stairs, heard a man’s voice shouting something. ... [R]ight outside her door she heard yelled the word 'Fire!' Mrs. Schnible opened her door. ... ‘Hello, Mrs. Schnible,’ said a man standing there. ‘Here's a summons for you.'... Harry Grossman, who was the man in the hall, is regarded by those who employ him as the champion process-server of the day. ...
      “Grossman ... simply places the papers in the hands of the defendant and leaves them there. On innumerable occasions he has had to use ingenuity in order to get close enough to the defendant to do this, and only once has he been forced to depart from a literal interpretation of the legal phrase [referring to the term 'place and leave with’]. That was in the case of an elderly lady, who, like Mrs. Schnible, was trying to hide from him. This lady ... refused to leave her apartment .... [Grossman] began to practice throwing the summons. He put rubber bands around the paper to make it compact, placed a salad bowl on the dining-room table, and practiced ... throwing the subpoena into the bowl from the middle of the living-room. ... [When the lady] sat down at [her] table with a bowl of potatoes in front of her and began placidly to peel them[,] Grossman leaned out of [a nearby] window and tossed the subpoena. The papers landed in the bowl just as the old lady reached into it.’’).
      As this article colorfully illustrates, defendant has no duty to assist service of process. To the contrary, plaintiff has the burden of finding some way to effect service without his cooperation.

      . Merriam-Webster’s Unabridged Dict. (CD ed.); American Heritage Dict. (3d ed.) 1120. See also § 44.1011, Fla, Stat. (2008) (providing that mediation is an informal, non-adversarial process for disputing parties to reach a voluntary settlement).

      . § 684.22(1), Fla. Stat. (2008).

        . § 684.22(1), Fla. Stat. (2008) (‘‘All other questions, including ... whether the written undertaking to arbitrate is subject to defenses ... shall be for the arbitral tribunal to decide").

      . See, e.g., Damora v. Stresscon Int’l Inc., 324 So.2d 80 (Fla. 1975) (such an agreement is invalid as constituting an attempt to oust the legally constituted courts of their jurisdiction); Pacific Mills v. Hillman Garment Inc., 87 So.2d 599 (Fla. 1956) (contract to arbitrate not enforceable by injunction). Generally, this view was based on the notion that such agreements constituted an attempt to oust courts of their lawful jurisdiction.

        . See § 90.408 Fla. Stat. (2008) ("Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise [e.s.], is inadmissible to prove liability or absence of liability for the claim or its value.”); and Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (provision excluding evidence of efforts to settle is to encourage settlement discussions).

      . The nonfinal appeal rule allows review of orders determining jurisdiction over the person. Fla. R.App. P. 9.130(a)(3)(C)(i). A default is void without proper service. I think the failure to cancel the default should be reviewable now, but Bland has not yet invoked our jurisdiction to do so.

      . In an old Irish saying: "A wink is as good as a nod to a blind horse.” But not — I daresay — when the horse is losing his green, green acres of pasture.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Bryan Keith HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3196.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    Rehearing Denied July 6, 2009.
    Bryan Keith Hogan, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Bryan Keith Hogan appeals an order granting the State’s Motion to Clarify Previous Court Ruling Dated December 31, 2002. The clarification order rendered on March 30, 2006, corrects factual assertions in two prior orders, entered in 2000 and 2002, that disposed of Hogan’s motions to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue relevant to this appeal regarding the rule 3.800(a) motions was the retention of jurisdiction on a 1979 sentence for involuntary sexual battery. Because there was no legal authority for the State to file in 2006 its motion to clarify, and no jurisdictional basis for the postcon-viction court to consider the motion to clarify, we vacate the order rendered on March 30, 2006, along with the order rendered on April 21, 2006, that denies Hogan’s motion for rehearing and the order rendered on May 10, 2006, that denies Hogan’s motion to clarify.

In 1979, Hogan was convicted and sentenced for attempted second-degree murder and involuntary sexual battery. Judge Bergstrom imposed consecutive sentences of fifteen years and ninety-nine years, respectively, and retained jurisdiction over the defendant on one-third of the sentences, pursuant to section 947.16(3), Florida Statutes (Supp.1978). Hogan filed a motion to reduce sentence, and our record indicates that Judge Bergstrom set aside the retention of jurisdiction on only the sentence for attempted second-degree murder.

In 2000, Hogan filed a pro se motion to correct illegal sentence pursuant to rule 3.800(a). The motion asserted that Judge Bergstrom set aside the reservation of jurisdiction on case number 79-00328, the attempted murder case. In the order ruling on the motion, Judge Villanti stated in pertinent part as follows:

Defendant’s second ground is that the Court improperly retained jurisdiction over his sentence. Defendant also acknowledges in his motion that, during a hearing on Defendant’s Motion to Reduce Sentence held one week after sentencing, the Court vacated and set aside the previously ordered reservation of jurisdiction. Therefore, this claim is moot.

Hogan did not appeal this order.

In 2002, Hogan filed a second pro se motion to correct illegal sentence. He asserted that Judge Bergstrom had set aside the reservation of jurisdiction, referenced Judge Villanti’s prior order, and asserted that the Department of Corrections refused to acknowledge that the reservation of jurisdiction had been set aside. In the order denying the motion, Judge Bray stated in pertinent part as follows:

First, Defendant again raises the issue of the retention of jurisdiction which he raised in his previous motion. That claim was previously denied as moot because the Court vacated and set aside the reservation of jurisdiction during a hearing on a motion to modify sentence. Defendant acknowledges that the Court vacated and set aside the retention of jurisdiction, but alleges that the Department of Corrections refuses to acknowledge same. If the Department of Corrections has failed to follow an order of the Court, Defendant must seek relief through administrative channels within the Department of Corrections and, if necessary, by filing a petition for writ of mandamus in the circuit court of the county in which he is incarcerated.

Hogan appealed this order, and this court issued a per curiam affirmance. See Hogan v. State, 958 So.2d 931 (Fla. 2d DCA 2003) (table decision).

In 2006, the State filed its motion to clarify and asserted that in 1979 Judge Bergstrom set aside the retention of jurisdiction only in the attempted murder case and that the orders entered in 2000 and 2002 were inaccurate in that regard. It appears that the retention issue arose when Hogan had come before the Florida Parole Commission. Judge Bulone entered the March 2006 order now on appeal and stated that “the Court Orders that Judge Villanti’s Order dated October 31, 2000, and Judge Bray’s Order dated December 31, 2002, be corrected to reflect that Judge Bergstrom’s sentence, dated December 3, 1979, retaining one third jurisdiction of defendant’s ninety-nine year sentence, is in effect.” Judge Bulone denied Hogan’s motion for rehearing and his motion for clarification. Hogan now appeals the three orders Judge Bulone entered in 2006.

Hogan contends that the State was proeedurally barred from seeking clarification when it did not file a timely motion for clarification or timely exercise its right to appeal either Judge Villanti’s order or Judge Bray’s order. We conclude that Judge Bulone was without jurisdiction to consider the State’s motion to clarify the previous rulings made in 2000 and 2002.

Hogan correctly asserts that the State failed to appeal the 2000 and 2002 orders. Section 924.066(2), Florida Statutes (2000, 2002), provides, “Either the state or a prisoner in custody may obtain review in the next higher state court of a trial court’s adverse ruling granting or denying collateral relief.”

As to the timeliness of the motion to clarify, Hogan refers to Florida Rule of Appellate Procedure 9.330(a) in arguing that motions to clarify must be filed within fifteen days of the decision. Of course, rule 9.330 applies to motions to clarify decisions of the appellate court, not post-conviction orders in the circuit court. Rule 3.800 does not provide for a “motion for clarification.” Rule 3.800(b) provides, “A party may file a motion for rehearing of any order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.” However, when the orders were entered in 2000 and 2002, rule 3.800 did not provide for a motion for rehearing. See Amendments to the Fla. Rules of Criminal Procedure, 886 So.2d 197, 199-200 (Fla.2004). Thus, even if the State had not filed the motions years late, nothing in rule 3.800 authorized a motion for rehearing or a motion for clarification when the judges entered their orders in 2000 and 2002.

In Ruiz v. State, 927 So.2d 162 (Fla. 3d DCA 2006), the defendant appealed from an order denying his motion for clarification. The motion requested an amendment of his sentencing orders to reflect credit for prison time served before the revocation of his probation. The Third District recognized that in denying the motion the trial court stated “that it was ‘not aware of a Motion for Clarification in the Rules of Criminal Procedure.’ ” Id. at 163. There, the State conceded that the motion should have been treated as a rule 3.800(a) motion to correct illegal sentence to award credit for time served.

In the present case, the State’s motion to clarify was not authorized by the Florida Rules of Criminal Procedure, and the motion was not seeking the correction of an illegal sentence as in Ruiz. The State was seeking in 2006 to correct a factual assertion regarding the retention of jurisdiction in a prior order denying a rule 3.800(a) motion. There was no jurisdictional basis for the State to file the motion to clarify, and the postconviction court was without jurisdiction to rule on the motion and to enter the March 2006 order, along with the orders denying Hogan’s motions for rehearing and clarification. Thus, we vacate those 2006 orders.

We recognize that Judge Bulone’s March 2006 order accurately states, based on our record, “that Judge Bergstrom’s sentence, dated December 3, 1979, retaining one third jurisdiction of defendant’s ninety-nine year sentence, is in effect.” Our vacating Judge Bulone’s order does not change that the retention of jurisdiction is in effect, because neither the 2000 order nor the 2002 order vacated the retention of jurisdiction. As Judge Bulone recognized in the motion denying rehearing, the 2000 order contained “a statement, albeit erroneous, as to what had taken place over 20 years earlier, but did not substantively affect the retention of jurisdiction.”

We note that in denying Hogan’s motion for rehearing, Judge Bulone stated that Hogan “was specifically advised during the hearing that, because his prior claims that the retention of jurisdiction was illegal were denied procedurally due to an error, he may refile that claim to be considered substantively.” Hogan alleged in his original rule 3.800(a) motion in 2000 that the four reasons used to justify the retention of jurisdiction were invalid. However, the failure to state reasons for the retention of jurisdiction does not constitute an illegal sentence and is not a cognizable claim under rule 3.800(a). See Wright v. State, 911 So.2d 81, 82 (Fla. 2005). The supreme court explained that a defendant “is entitled to challenge on appeal the sentencing court’s technical error of not fully complying with the conditions of the retention statute by failing to provide written reasons for retaining jurisdiction.” Id. at 84. In Wright, the Florida Supreme Court approved this court’s decision and explained that this court “reasoned that ‘a challenge to the sufficiency of the i’easons for a trial court’s retention of jurisdiction over a sentence is analogous to a challenge to a trial court’s failure to provide departure reasons for a sentence.’ ” 911 So.2d at 82 (quoting Wright v. State, 864 So.2d 1153, 1155 (Fla. 2d DCA 2003) (en banc)); see also Blount v. State, 627 So.2d 576 (Fla. 2d DCA 1993) (determining that the validity of reasons for departure could not be raised in a motion to correct sentence); Delgado v. State, 973 So.2d 644, 645 (Fla. 3d DCA 2008) (holding that the validity of departure reasons “cannot be attacked by a 3.800(a) motion”). Thus, it appears that Hogan does not have a cognizable rule 3.800(a) claim regarding the sufficiency of the reasons for the retention of jurisdiction.

In summary, we vacate the clarification order rendered on March 30, 2006, along with the order rendered on April 21, 2006, that denies Hogan’s motion for rehearing and the order rendered on May 10, 2006, that denies Hogan’s motion to clarify.

Orders vacated.

CASANUEVA and LaROSE, JJ., Concur.

      . Hogan raised sixteen issues on appeal. Our decision to vacate the clarification order moots eleven of Hogan's other issues. Four remaining issues concern prior proceedings, such as the original sentencing and parole hearings, which are not properly before this court for review, and we do not address those issues.

      . This provision is now contained in subsection (4). See § 947.16(4), Fla. Stat. (2008).


author: SAWAYA, J.

text:
    WESTMINSTER COMMUNITY CARE SERVICES, INC., ETC., Appellant, v. Shirley MIKESELL, as Personal Representative of the Estate of Walter Mikesell, Appellee.
    No. 5D08-1326.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.

      Brooke C. Madonna and Amy L. Chris-tiansen of Spector Gadon and Rosen, P.C., St. Petersburg, for Appellant.
    Michael J. Carter of Morgan & Morgan, P.A., Orlando, for Appellee.
   SAWAYA, J.

We are here concerned with the provision of section 768.74(4), Florida Statutes (2005), which provides that “[i]f the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” The issue we must resolve is whether the trial court, in granting the plaintiffs motion for additur and a new trial on damages, erred in not also granting a new trial on the issue of liability. We hold that under the particular facts and circumstances of this case, a new trial on liability and damages should have been ordered.

In the underlying action, Shirley Mike-sell, as personal representative of the estate of her deceased husband, Walter Mikesell, brought a negligence action founded on various allegations of negligence against Westminster Community Care Services, Inc., which operates the nursing home facility where Mr. Mikesell resided prior to his death. In addition to general allegations regarding numerous physical injuries suffered by Mr. Mikesell while a resident at Westminster, Count I was framed as a survival action and alleged that Mr. Mikesell’s injuries and, ultimately, his death were a direct and proximate result of Westminster’s failure to provide adequate and appropriate care as required by Mr. Mikesell’s nursing home resident rights set forth in section 400.022, Florida Statutes (2001). This count sought recovery for Mr. Mikesell’s medical expenses, as well as his physical and mental pain and suffering resulting from his injuries. Count II was a wrongful death action, which alleged that Westminster and its employees were negligent in caring for Mr. Mikesell and that such negligence caused his injuries and ultimate death. Based on the allegations in Count II, Mrs. Mikesell sought to recover damages for Mr. Mikesell’s medical and funeral expenses, as well as for her own mental pain and suffering.

The case proceeded to trial and, after several hours of deliberations, the jury informed the trial court that it was deadlocked. The record reveals that when discussing the matter of how to further proceed, the parties and the trial court indicated that the deliberations up to that point had been very heated. The parties agreed to have the trial court instruct the jury to continue their deliberations and, less than an hour later, the following verdict was returned to the trial court:

We, the jury, return the following verdict:
1. Was there negligence on the part of Westminster Community Care Services, Inc. d/b/a Westminster Care of Clermont which was the legal cause of Walter Mikesell’s injuries?
YES X NO_
If your answer to question 1 is NO, your verdict is for the Defendant, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.
2. What is the amount of damages sustained by the Estate of Walter Mike-sell for Walter Mikesell’s pain and suffering, and medical expenses?
Medical Expenses: $ 0
Pain and Suffering: $ 0

Sensing that this verdict was a harbinger of difficulties to follow, the trial judge momentarily excused the jury and stated to the parties: “There is going to be an issue with this verdict, so I’m telling you in advance, I probably am just going to bring them back in and let her read the verdict and probably have to excuse them again to talk about what we want to do, if anything. ...” The jury was brought back into the courtroom, the verdict was read, and the jury was polled and subsequently discharged. The court then proceeded to advise counsel that because the verdict had been rendered and the jury discharged, it would be left to counsel to decide whether to file any post-trial motions within an appropriate time. In his closing remarks to counsel, the trial judge concluded:

I think the difficulty in the jury reaching a verdict shows how difficult this case is, and you know, that may also lend some credibility to the concept that maybe ya’ll ought to put your heads together and see if you can resolve this because six people sitting here six or eight hours worth of deliberations, and as you indicated earlier, some pretty furious deliberations, so not so straightforward. So you may, in the ultimate analysis, want to see if ya’ll can resolve it yourselves; that would be my advice to your respective clients because I thought it was a well-tried case, and I thought that the evidence was in front of the jury, and I thought they had reasonable opportunity to consider it, and so ya’ll sat here the whole time. I think you do have to agree with me, there wasn’t anything excluded. They heard the whole thing in eight hours [sic], and we’re at head-scratching time, so I think that’s a good indicator of the case that should be looked at again by ya’ll.

(Emphasis added).

Needless to say, a settlement was not reached. Mikesell filed a motion for addi-tur, which prompted a response from Westminster alleging that an additur was inappropriate. Westminster further requested a new trial on the issues of liability and damages in the event the motion was granted, contending that the issue of liability was hotly contested throughout the trial and a new trial in its entirety was necessary to ensure a proper verdict in the case. The trial court ultimately entered an order granting Mikesell’s motion for additur, finding that the jury verdict rendered in this case was inadequate. The trial court further found that a new trial was necessary to determine the amount of damages only. In this appeal of that order, Westminster argues that the trial court erred in not ordering a new trial on both liability and damages.

Section 768.74 authorizes the trial court to grant an additur where the court determines that the award of damages is “inadequate in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1), Fla. Stat. (2005). The statute further provides, “If the party adversely affected by such remittitur or addi-tur does not agree, the court shall order a new trial in the cause on the issue of damages only.” § 768.74(4), Fla. Stat. (2005). Here, Westminster expressed that it did not and would not agree to the requested additur. Therefore, a new trial on the issue of damages is clearly appropriate. Westminster contends that despite the provision allowing a new trial on “damages only,” the trial court should have ordered a new trial on both liability and damages. Hence, it is the statutory provision that authorizes a new trial “on the issue of damages only” that lies at the heart of the issue we must resolve.

Westminster is correct that the trial court should have granted its request for a new trial on both liability and damages. A line of decisions rendered by the district courts, including this court, hold that despite the limiting provision in section 768.74(4), when a jury award is inadequate and an additur is necessary to correct the inadequacy, a new trial on the issues of liability and damages is appropriate when the liability issue was hotly contested by the parties. Frasher v. White-hurst Family, Inc., 948 So.2d 36, 38 (Fla. 3d DCA 2006); Scott v. Sims, 874 So.2d 21, 22 (Fla. 1st DCA 2004) (“[B]efore new trial should be allowed on damages alone, a defendant’s liability must be unequivocally established and not substantially disputed at trial; nor can it be the result of the jury’s compromise on the liability issue .... ”); Food Lion v. Jackson, 712 So.2d 800, 803 (Fla. 5th DCA 1998) (noting the provision in section 768.74(2) that instructs that the adverse party be given the choice of accepting the amount of additur or a new trial on damages only, and holding that a new trial on the issue of liability should also be ordered if liability was hotly contested); Newalk v. Florida Supermarkets, Inc., 610 So.2d 528, 529-30 (Fla. 3d DCA 1992) (holding new trial on all issues required where damage award was inadequate and liability was hotly contested); Broward County Sch. Bd. v. Dombrosky, 579 So.2d 748, 49-50 (Fla. 4th DCA 1991); Watson v. Builders Square, Inc., 563 So.2d 721, 722 (Fla. 4th DCA 1990) (“[W]hen a damage award is clearly inadequate and the issue of liability is hotly contested, such circumstances give rise to a suggestion that the jury may have compromised its verdict.”). These decisions are premised on the generally accepted notion that in such cases the jury may have returned a compromised verdict that does not reflect a true and just decision based on the evidence and the pertinent law.

In conjunction with its request for a new trial on the issues of liability and damages in the event the additur was rejected, Westminster demonstrated that a compromise verdict was likely returned by the jury. As Westminster contends, and as the record clearly reveals, the issue of liability was hotly contested throughout the trial proceedings. The record further reveals that given the jury’s verdict finding that Westminster’s negligence was the legal cause of Mr. Mikesell’s injuries, the damage award of zero dollars was clearly inadequate in light of the substantial evidence at trial of economic and noneconomic damages. Westminster even conceded at the hearing on the motion for additur that there was evidence at trial of actual economic damages in the amount of $62,719.95. These circumstances suggest that the jury’s verdict finding Westminster liable but awarding zero dollars in damages may have been a compromise on the issue of liability. That the jury may have compromised its verdict in this case is further indicated by the course of the jury’s deliberations. For example, after deliberating for several hours, the jury informed the court that it was deadlocked. The deliberations up to that point had been heated and “furious.” Nevertheless, the parties agreed to give the jurors an additional charge, and the court instructed the jury to continue deliberating and reach a decision if at all possible. Less than one hour later, the jury returned with a verdict. By the time the jury reached its verdict, it had been deliberating for approximately eight hours. We also note that during the hearing on the motion for additur, the rather long deliberation prompted the trial judge to refer to the jury as “a mad jury.”

Based on the facts and circumstances of the instant case, we conclude that the trial court should have ordered a new trial on both liability and damages as specifically requested by Westminster. Therefore, to the extent that the order on appeal grants a new trial on damages only, it is reversed, and this case is remanded for a new trial on both liability and damages.

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . The order we review is an appealable non-final order granting a new trial under Florida Rules of Appellate Procedure 9.110(a)(4) and 9.130(a)(4). See Stanberry v. Escambia County, 813 So.2d 278 (Fla. 1st DCA 2002).

      . Westminster also argues that: 1) in granting an additur, the trial court improperly sat as a seventh juror and interfered with the jury's function in our judicial system; 2) if the verdict is inconsistent, Mikesell did not properly preserve her right to seek a new trial; and 3) under the plain language of section 768.74, Florida Statutes, the trial court lacked the authority to award an additur. We affirm as to these issues without further discussion, except to note that we believe the trial court was correct in finding that the verdict is inadequate and not inconsistent.


author: BENTON, J.

text:
    Runner O. SANTANA, Appellant, v. Mark HENRY, Warden, Florida Department of Corrections, Appellee.
    No. 1D08-3852.
    District Court of Appeal of Florida, First District.
    May 29, 2009.

      Runner 0. Santana, pro se, Appellant.
    Bill McCollum, Attorney General, Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Tallahassee, for Appellee.
   BENTON, J.

Runner 0. Santana appeals the dismissal of his petition for writ of habeas corpus alleging “that he is entitled to immediate release when properly credited with time served” and requesting “issuance of an Order com[m]anding the Florida Department of Corrections ... to immediately release” him. Without prior notice to the parties or input from them, the trial court summarily dismissed the petition. It reasoned, in part, that Mr. Santana failed to exhaust administrative remedies, although the Department of Corrections (DOC) never raised this below. Mindful that the “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), we reverse and remand with directions that the trial court issue an order to show cause to the Department of Corrections before proceeding further.

The petition below alleges that, after his probation (in three separate cases) was revoked, Mr. Santana was sentenced anew on October 4, 2007, receiving three concurrent prison sentences. In case No. 95-CF-4926, the petition alleges, he was sentenced to six years in prison with credit for 2,023 days, to be followed by two years’ probation; in case No. 96-CF-9601 to 60.75 months with credit for 831 days; and in case No. 96-CF-10668 to six years with credit for 1682 days. In addition, against each sentence, the petition alleges, he was awarded “credit for time served at the State Hospital,” and a separate credit for 142 days for time spent in jail before the revocation hearing. See generally Bar-nishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) (stating that, following arrest for probation violations, too, “when a defendant is entitled to presentence jail-time credit against concurrent sentences, jail time must be credited against each concurrent sentence” (citing Daniels v. State, 491 So.2d 543, 545 (Fla.1986))).

Attached to the petition are the sentencing documents, as well as a transcript of the sentencing hearing. See Williams v. State, 957 So.2d 600, 603 (Fla.2007) (citing Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003)) (holding that the sentencing court’s oral pronouncement controls in the event of a discrepancy between oral pronouncement and written sentence); Shands Teaching Hasp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1224 (Fla. 1st DCA 2005) (quoting City of Gainesville v. State, Dep’t of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001)); Abele v. Sawyer, 750 So.2d 70, 74 (Fla. 4th DCA 1999) (“While the court must confíne its review to the four corners of the complaint ..., the exhibits are encompassed within the four corners of the complaint and must be considered therewith. See Fla. R. Civ. P. 1.130(b).” (internal citation omitted)).

At issue is whether the habeas court properly dismissed the petition on its own motion without hearing from the authorities alleged to hold the petitioner unlawfully. We are not concerned here with mere conditions of confinement, cf. Harvard v. Singletary, 733 So.2d 1020, 1021 (Fla.1999) (alleged misassignment to close management status); Sykes v. State, 974 So.2d 1133, 1134 (Fla. 1st DCA 2008) (al leged misassignment to particular correctional institution); Moore v. Dugger, 613 So.2d 571, 572 (Fla. 1st DCA 1993) (alleged misclassification); Van Poyck v. Dugger, 579 So.2d 346, 347 (Fla. 1st DCA 1991) (alleged poor ventilation), or gain-time calculations not affecting DOC’s current right to hold the petitioner, see Williams v. State, 519 So.2d 723, 724 (Fla. 5th DCA 1988); Sutton v. Strickland, 485 So.2d 25, 25 (Fla. 1st DCA 1986), or anything less than a state prisoner’s alleged right to immediate release from custody.

“The writ of habeas corpus is a high prerogative writ of ancient origin designed to obtain immediate relief from unlawful imprisonment without sufficient legal reasons. Essentially, it is a writ of inquiry and is issued to test the reasons or grounds of restraint and detention. The writ is venerated by all free and liberty loving people and recognized as a fundamental guaranty and protection of their right of liberty.” Allison v. Baker, 152 Fla. 274, 275, 11 So.2d 578, 579 (1943). “The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by constitutional mandate; it is a writ of ancient right.” Jamason v. State, 447 So.2d 892, 894 (Fla. 4th DCA 1983), decisión approved, 455 So.2d 380 (Fla. 1984). “[Historically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process.” Anglin v. Mayo, 88 So.2d 918, 919 (Fla.1956).

By comparison, judicial abstention in favor of exhaustion of administrative remedies is a relatively recent invention. The doctrine of exhaustion of remedies counsels against judicial intervention in the decision-making function of the executive branch in certain circumstances. See Art. V, 5(b) & 20(c)(3), Fla. Const.; Key Haven Associated Enters., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982); State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So.2d 580, 589 (Fla. 1st DCA 1977). Whether to require exhaustion of administrative remedies is a question of judicial “policy rather than power.” Gulf Pines Mem’l Park, Inc. v. Oaklaum Mem’l Park, Inc., 361 So.2d 695, 699 (Fla.1978). See also State, Dep’t of Revenue v. Brock, 576 So.2d 848, 850 (Fla. 1st DCA 1991) (“[T]he doctrine requiring the exhaustion of administrative remedies is not jurisdictional. The exhaustion requirement is a court-created prudential doctrine; it is a matter of policy, not of power.” (citations omitted)).

Notions of administrative autonomy have been thought to require that agencies be given the opportunity to discover and correct their own errors, even after a case has reached the courts for judicial review of agency action. See Rice v. Dep’t of Health & Rehabilitative Servs., 386 So.2d 844, 847 (Fla. 1st DCA 1980). In some contexts, judicial restraint may be necessary “to support the integrity of the administrative process and to allow the executive branch to carry out its responsibilities as a co-equal branch of government.” Key Haven, 427 So.2d at 157. When an agency has discretion to exercise, it should of course be allowed to make discretionary decisions. If a party succeeds in vindicating its rights in the administrative process, thus obviating the need for judicial intervention, judicial resources are conserved; and immediate judicial access can weaken the effectiveness of an agency by encouraging people to ignore its procedures. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).

But the rationales for requiring exhaustion of administrative remedies diminish and disappear where an executive branch agency has little or no discretion to exercise and little or no expertise to bring to bear. The Department of Corrections does have discretion in deciding, for exam-pie, the conditions of confinement, and does have its own procedures on this subject deserving of judicial deference. On the other hand, the DOC has no discretion about which prisoners to release upon expiration of their sentences. Sentencing is a power, obligation, and prerogative of the courts, not the DOC. See Pearson v. Moore, 767 So.2d 1235, 1289 (Fla. 1st DCA 2000), approved, sub now,. Moore v. Pearson, 789 So.2d 316 (Fla.2001).

In State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787, 796 (Fla. 1st DCA 1982), we recognized an important exception to the exhaustion doctrine:

When an agency acts without colorable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief.

(Footnote omitted.) See generally St. Joe Paper Co. v. Fla. Dep’t of Natural Res., 536 So.2d 1119, 1124 (Fla. 1st DCA 1988); Dep’t of Prof l Regulation, Fla. State Bd. of Med. v. Marrero, 536 So.2d 1094, 1095-96 (Fla. 1st DCA 1988).

Mr. Santana’s claim that the DOC has no lawful authority to hold him is analogous to a “challenge to agency jurisdiction,” which, when made “on persuasive grounds,” constitutes “a widely recognized exception to the exhaustion doctrine.” Falls Chase, 424 So.2d at 794 (footnote omitted). An exception available when the Department of Environmental Regulation’s jurisdiction to regulate dredge and fill activities is challenged, see id. at 793, ought arguably apply to a challenge to the jurisdiction of the DOC to hold a citizen prisoner. An exception to the exhaustion doctrine for petitioners alleging entitlement in plausible detail to immediate release from custody would not do violence to the contours of the exhaustion doctrine as understood in other settings.

We need not decide whether such an exception exists here, however, and assume for purposes of decision that it does not. See Bush v. State, 945 So.2d 1207, 1210 (Fla.2006). While the general rule is that exhaustion of administrative remedies is an affirmative defense, see Sylvia H. Walbolt, Matthew J. Conigliaro & J. Andrew Meyer, Florida Civil Practice Before Trial, § 25.34 at 25-30 (7th ed. 2004) (“Affirmative defenses to extraordinary writs include impossibility or lack of power to perform, laches, unclean hands, absence of parties whose substantial rights would be affected, illegality of purpose, detriment to the public interest, mootness, and failure to exhaust administrative remedies. See FLORIDA APPELLATE PRACTICE § 20.38 (Fla. Bar CLE 5th ed.2003)”), moreover, in the prisoner habeas context, it has been held that certain petitions must allege exhaustion of administrative remedies in order to be facially sufficient. But none of the cases to which our attention has been drawn has laid down such a pleading requirement for petitions for writ, of habeas corpus alleging entitlement to immediate release. The petitioners in Harvard v. Singletary, Moore v. Dugger, and Sutton v. Strickland sought relief from conditions of confinement or restoration of forfeited gain time, not immediate release from the DOC’s custody. See Harvard, 733 So.2d at 1021; Moore, 613 So.2d at 572; Sutton, 485 So.2d at 25.

In any event, we hold the trial court erred by dismissing Mr. Santana’s petition for writ of habeas corpus on the basis of a technicality — an assumed pleading defect — that was not raised by the parties. It is not clear DOC would have defended in this fashion, left to its own devices. “A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings.” Liton Lighting v. Platinum Televi sion Group, Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (citing Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998)). See Lenoir v. Jones, 979 So.2d 1129, 1130 (Fla. 1st DCA 2008) (trial court’s sua sponte dismissal reversed because plaintiff was not given notice or an opportunity to be heard); Mumma v. Mumma, 734 So.2d 571, 571 (Fla. 4th DCA 1999) (trial court did not have inherent power to dismiss causes as not being prosecuted with reasonable diligence); Lambrix v. Dugger, 547 So.2d 1265, 1266 (Fla. 1st DCA 1989) (trial court erred in dismissing prisoner’s complaint against prison officials who did not move to dismiss).

The general rule that pleadings ought not be dismissed on grounds no party urges has special force when the pleading is a petition for writ of habeas corpus. “The scope and flexibility of the writ — its capacity to reach all manner of illegal detention — its ability to cut through barriers of form and procedural mazes— have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). When a petition for writ of habeas corpus alleging that the petitioner is entitled to immediate release sets out plausible reasons and a specific factual basis in some detail, the custodian should be required to respond to the petition. To the extent Pope v. State, 898 So.2d 253 (Fla. 3d DCA 2005), holds to the contrary, we certify conflict.

If in this case the petition had not been summarily denied and the trial court had instead ordered the DOC to show cause why Mr. Santana’s petition should not be granted, the DOC might have resisted by moving to dismiss on exhaustion of administrative remedies grounds or for failure to allege exhaustion but it might also have decided that the petition was meritorious and released the petitioner. “The procedure for the granting of this particular writ [ie., habeas corpus] is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.” Anglin, 88 So.2d at 919-20.

Reversed and remanded.

WEBSTER and ROBERTS, JJ., concur.

      . The order on review dismissing the habeas petition provides in part:
      To the extent [Mr. Santana] seeks an order directing the Department to award proper credit for time served, he should have sought relief through the inmate grievance procedure. In the instant case, Petitioner failed to demonstrate the exhaustion of his administrative remedies with the Department.
      (Internal citations omitted.)

      . Thus credit was not, according to the petition, simply ‘‘to be calculated by the Department of .Corrections” as was the situation in Hardenbrook v. State, 953 So.2d 717, 719 n. 2 (Fla. 1st DCA 2007).

      . At the sentencing hearing, testimony that he had spent six months at a state hospital in connection with an evaluation of his competency to stand trial was uncontroverted. It is by no means clear that DOC’s records document the length of appellant's stay at the state hospital, which is presumably operated not by the Department of Corrections but by the Department of Children and Family Services.


author: PER CURIAM.

text:
    Stephen P. VITIELLO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Broward County Board of County Commissioners, Appellee.
    No. 1D08-3465.
    District Court of Appeal of Florida, First District.
    June 2, 2009.
    Rehearing Denied July 16, 2009.

      Stephen P. Vitello, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979); Contrera v. Fla. Unemployment Appeals Comm’n, 893 So.2d 609 (Fla. 1st DCA 2005).

WEBSTER, BENTON and ROBERTS, JJ., concur.


text:
    Jorge Luis LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1007.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Mavel Ruiz, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jorge Luis Lopez appeals an order denying, without an evidentiary hearing, his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm.

In 1991, Lopez entered pleas of nolo contendere to one count of sexual battery by a person in a position of familial or custodial authority over a child, and one count of lewd assault. The plea colloquy reveals that the immigration warning required under Florida Rule of Criminal Procedure 3.172(c)(8) was not given. Lopez was adjudicated guilty and sentenced to probation, which he later violated. While serving prison time for the probation violation, Lopez received notice in October 2002 that the federal government had begun removal proceedings against him based, in part, on his 1991 conviction. Lopez’s postconviction motion below sought to withdraw his plea because he claims he would not have entered it had he been aware of the immigration consequences that would arise.

Under Peart v. State, 756 So.2d 42, 46 (Fla.2000), any defendant “who gained knowledge of the threat of deportation pri- or to the filing date of [Pearf]” had two years from the decision’s filing date — -April 13, 2000 — to seek withdrawal of his plea. (Emphasis added.) For those defendants, the Peart window closed on April 18, 2002. See Morales v. State, 988 So.2d 705 (Fla. 3d DCA 2008) (holding that defendant who had notice of removal proceedings in 1997 was time-barred to seek withdrawal of his plea after April 2002). A defendant who discovered a threat of deportation after April 13, 2000, had “two years from the date of such discovery to file their claims for relief.” Peart, 756 So.2d at 46.

Here, Lopez did not discover a threat of deportation until October 2002. According to Peart, the law in effect at the time, he could have moved to withdraw his plea until October 2004. Because he did not, his present Rule 3.850 motion was already time-barred when a new two-year window was created by the supreme court in State v. Green, 944 So.2d 208 (Fla.2006). See State v. Freijo, 987 So.2d 190, 194 (Fla. 3d DCA 2008). The order denying Lopez’s motion is therefore affirmed.

      . The notice of removal proceedings also informed Lopez that he faced deportation because he did not have a valid immigration document, such as a visa, permitting him to remain in the United States. Because Lopez’s postconviction motion is untimely, there is no need for an evidentiary hearing regarding other potential reasons for deportation. See Orozco v. State, 987 So.2d 816, 817 (Fla. 3d DCA 2008).