source: Caselaw Access Project

author: PERRY, J. PARIENTE, J., CANADY, J.,

license: Public Domain

text:
    Donna FRANKS, etc., Petitioner, v. Gary John BOWERS, M.D., et al., Respondents.
    No. SC11-1258.
    Supreme Court of Florida.
    June 20, 2013.

      Thomas S. Edwards and Eric C. Ragatz of Edwards & Ragatz, P.A., Jacksonville, FL, for Petitioner.
    Kelly B. Mathis and Laurie M. Lee of Mathis & Murphy, P.A., Jacksonville, FL, for Respondents.
    Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, FL, for Amicus Curiae Florida Justice Association.
    Cynthia S. Tunniclif and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL, for Amici Curiae Florida Justice Reform Institute, Florida Medical Association, and Florida Osteopathic Medical Association.
   PERRY, J.

Joseph Franks sought medical treatment from Dr. Gary John Bowers and North Florida Surgeons, P.A. (NFS). Subsequently, Joseph suffered a large re-troperitoneal hematoma at the operative site due to the external iliac vein being lacerated during surgery. He remained hospitalized until his death. Joseph’s wife, Donna Franks, filed a complaint against Bowers and NFS for medical malpractice resulting in wrongful death. Bowers and NFS moved to compel arbitration based on the Financial Agreement signed by Joseph prior to his surgery. The trial court entered the order, compelling arbitration, “with substantial reservations,” and the First District Court of Appeal affirmed on appeal. Donna Franks, as personal representative of the Estate of Joseph Franks, seeks review of Franks v. Bowers, 62 So.3d 16 (Fla. 1st DCA 2011), on the ground that it expressly and directly conflicts with this Court’s decision in University of Miami v. Echarte, 618 So.2d 189 (Fla.1993). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Franks alleges that the Financial Agreement is void under the public policy enunciated in chapter 766, Florida Statutes (2008), because the agreement does not provide the same remedies as provided by the Legislature. Because we find that the damages clause of the arbitration provision of the Financial Agreement violates the public policy pronounced by the Legislature in the Medical Malpractice Act (MMA), and we further find that the offensive clause is not severable from the remainder of the arbitration provision, we quash the decision below compelling arbitration under the agreement with direction for the court to proceed under the guidelines provided in chapter 766, Florida Statutes.

STATEMENT OF THE CASE AND FACTS

On September 25, 2008, Joseph sought medical treatment from Dr. Bowers and NFS. Joseph signed the Financial Agreement prior to his visit. The Financial Agreement was four pages long and included a signature line on the first, third, and fourth pages. The second page included the following provision:

It is further understood, that in the event of any controversy or dispute, which might arise between the Doctor and the Patient, regardless of whether the dispute concerns the medical care rendered, including any negligence claim relating to the diagnosis, treatment, or care of the Patient, or payment of surgical fees, or any other matter whatsoever, then the parties agree that the dispute shall be resolved by arbitration as provided by the Florida Arbitration Code, Chapter 682 (Florida Statutes). This arbitration shall be in lieu and instead of any trial by Judge or Jury. Each party shall choose one arbitrator and the two arbitrators shall choose a third arbitrator. The panel of arbitrators shall hear and decide the controversy, and the decision shall be binding on all parties and may be enforced by a court of law if necessary.
In the event that either party to this Doctor-Patient Agreement refuses to go forward with arbitration, the party compelling arbitration reserves the right to proceed with arbitration, the appointment of the arbitrator, and hearing to resolve the dispute, despite the refusal to participate or the absence of the opposing party. The arbitrator shall go forward with the arbitration hearing and render a binding decision without the participation of the party opposing arbitration or despite his or her absence at the arbitration hearing.
Prior to commencing any action under this Doctor-Patient Agreement, Patient must comply with the presuit notice and investigation requirements of Chapter 766, Florida Statutes.
The Patient understands that the Patient has a constitutional right under Article I, Section 21 of the Florida Constitution of Access to Courts as follows: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The Patient understands and acknowledges that signing this Doctor-Patient Agreement waives this constitutional right.

Within the same section, this page contains a subheading titled “Limitation of Damages,” which provides:

Patient agrees that in the event of any dispute with Doctor, for any reason whatsoever, including any negligence claim relating to the diagnosis, treatment, or care of the Patient, Patient’s non-economic damages (including, but not limited to, damages for pain and suffering) shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, pursuant to the formula contained in Florida Statutes, Section 766.207. For example, if the Patient’s injuries resulted in a 50% reduction in his or her capacity to enjoy life, this would warrant an award of not more than $125,000 in non-economic damages. This limit applies regardless of the number of claimants or defendants in the arbitration proceeding.
This limitation of damages provision does not limit or restrict in any way the Patient’s right to seek all economic damages actually incurred by the Patient, including any medical expenses and lost wages.

On January 23, 2009, Dr. Bowers performed surgery on Joseph without reported complications. Joseph was discharged to his home. On January 25, 2009, Joseph developed pain and he and Donna went to the emergency room. A CT scan revealed a large retroperitoneal hematoma from the operative site due to the external iliac vein being lacerated during surgery. Joseph remained hospitalized until his death on February 3, 2009.

Donna Franks filed a complaint alleging medical malpractice and wrongful death. NFS filed a motion to compel arbitration, which was granted. Franks appealed the order compelling arbitration, arguing that the trial court misconstrued the agreement or that it was otherwise void as being contrary to public policy and unconscionable. Franks, 62 So.3d at 17. The First District Court of Appeal disagreed and held that “the court properly construed and applied the arbitration clause.” Id. Furthermore, the First District held,

The differences between the arbitration process in Chapter 766 and arbitration under the Financial Agreement in the present case do not countermand the public policy reflected in Chapter 766, as applied to the claims presented in this case. Unlike the nursing home cases, the Financial Agreement does not eliminate statutory rights which are essential in effectuating legislative intent, or policy. Instead, the arbitration clause, as applied in this instance, affords meaningful relief and is consistent with the legislative purpose and the public policy which led to the enactment of the medical negligence provisions in Chapter 766.

Id. at 18. Lastly, the First District found that Franks failed to demonstrate either procedural or substantive unconscionability. Id. We disagree with the district court’s conclusion that the agreement is consistent with the legislative purpose and public policy contained within chapter 766, and hold that the Limitation of Damages provision contravenes the public policy enunciated therein. We therefore quash the First District’s decision and remand for proceedings consistent with this decision.

DISCUSSION

The MMA provides, in relevant part:

(1) Voluntary binding arbitration pursuant to this section and ss.766.208-766.212 shall not apply to rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s.768.28.
(2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant. The eviden-tiary standards for voluntary binding arbitration of medical negligence claims shall be as provided in ss. 120.569(2)(g) and 120.57(l)(c).
(3) Upon receipt of a party’s request for such arbitration, the opposing party may accept the offer of voluntary binding arbitration within 30 days....
(7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act, subject to the following limitations:
(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-per-cent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s.766.202(9) and shall be offset by future collateral source payments.
(d) Punitive damages shall not be awarded.
(e) The defendant shall be responsible for the payment of interest on all accrued damages with respect to which interest would be awarded at trial.
(f) The defendant shall pay the claimant’s reasonable attorney’s fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value.
(g) The defendant shall pay all the costs of the arbitration proceeding and the fees of all the arbitrators other than the administrative law judge.
(h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section.
(i) The defendant’s obligation to pay the claimant’s damages shall be for the purpose of arbitration under this section only. A defendant’s or claimant’s offer to arbitrate shall not be used in evidence or in argument during any subsequent litigation of the claim following the rejection thereof.
(j) The fact of making or accepting an offer to arbitrate shall not be admissible as evidence of liability in any collateral or subsequent proceeding on the claim.
(k) Any offer by a claimant to arbitrate must be made to each defendant against whom the claimant has made a claim. Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s.766.106. A defendant who rejects a claimant’s offer to arbitrate shall be subject to the provisions of s.766.209(3). A claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of s.766.209(4).
(l) The hearing shall be conducted by all of the arbitrators, but a majority may determine any question of fact and render a final decision. The chief arbitrator shall decide all evidentiary matters.
The provisions of this subsection shall not preclude settlement at any time by mutual agreement of the parties.

§ 766.207(1)-(3), (7), Fla. Stat. (2008).

(1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.
(2) If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s.768.79 or offer of settlement under s. 45.061.
(8) If the defendant refuses a claimant’s offer of voluntary binding arbitration:
(a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s.766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value.
(b) The claimant’s award at trial shall be reduced by any damages recovered by the claimant from arbitrating code-fendants following arbitration.
(4) If the claimant rejects a defendant’s offer to enter voluntary binding arbitration:
(a) The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant’s refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence.
(b) Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s.766.202(9), and shall be offset by future collateral source payments.
(5) Jury trial shall proceed in accordance with existing principles of law.

§ 766.209, Fla. Stat. (2008). We previously discussed, in depth, the intent and purpose of these provisions, stating:

The Legislature enacted the statutory scheme at issue following the recommendations and study made by the Academic Task Force for Review of the Insurance and Tort Systems (Task Force). In studying medical malpractice insurance costs, the Task Force found that the
primary cause of increased malpractice premiums has been the substantial increase in loss payments to claimants and not excessive insurance company profits nor the insurance industry underwriting cycle. Further, the Task Force found that the dramatic increase in the size or amounts of paid claims was the major cause of the increase in total claims payments; the frequency of claims against physicians increased only slightly. In particular, the size and increasing frequency of the very large claims were found to be a problem. Finally, attorneys’ fees and other litigations costs were found to represent approximately 40 percent of the total costs of insurance companies, while claimants received 43.1 percent of the insurers’ total incurred costs. During the past eleven years, the average cost of defending a malpractice claim had increased at an annual compound rate of seventeen percent.
Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations at 10-11 (Nov. 6,1987) (footnotes omitted) (on file with ELR.Comm. on Ins., The Capitol). The Task Force recommended implementation of a medical malpractice plan designed to stabilize and reduce medical liability premiums. The recommended plan included that parties conduct a reasonable investigation preceding malpractice claims and defenses in order to eliminate frivolous claims and defenses, and incentives for parties to arbitrate medical malpractice claims in order to reduce litigation expenses. The Legislature adopted the Task Force’s recommendations and findings in chapter 88-1, Laws of Florida, and section 766.201, Florida Statutes (Supp.1988).

Echarte, 618 So.2d at 191-92 (footnotes omitted). We explained why the Legislature rejected a no-fault system similar to the one adopted by the Financial Agreement, stating:

[Mjedical malpractice arbitration statutes are less restrictive than the workers’ compensation statutes, and ... the Task Force specifically considered and rejected both a no-fault alternative system of compensation and a mandatory insurance pool as means to control increases in the medical malpractice insurance rates.

Echarte, 618 So.2d at 194.

Furthermore, in considering a no-fault system, the Task Force stated that for most medical injuries
the Task Force does not recommend a no-fault compensation alternative to the tort system. This negative conclusion is compelled by findings that a comprehensive no fault system for all medical injuries would be prohibitively expensive, many times more expensive than the existing medical malpractice systems. In order to develop a no-fault system at reasonable cost, it is necessary to establish a framework for distinguishing compensable events from noncompensable events. In most areas of medical injury, this is not economically feasible at the present time. For example, defining the compensable event for a no-fault plan to cover medical injuries in emergency rooms and trauma centers would require terms broad enough to include injuries of every degree to any part of the body resulting from an unlimited variety of medical interventions. Because of its expansive potential, such a broad definition of the compensable event would make no-fault insurance costs prohibitively expensive, at worst, and impossible to predict, at best.
Medical Malpractice Recommendations at 31-32. The Task Force also rejected a proposal which would require all physicians to buy into a state-operated insurance pool in order to provide a mandatory first layer of medical malpractice insurance. The Task Force explained that such a plan “could effectively destroy any existing vitality and competitiveness in the private market for medical malpractice insurance in the state of Florida.” Medical Malpractice Recommendations at 49. Further, the Task Force noted that placing all physicians in a state-operated insurance pool would have the effect of charging physicians who practice in low-risk areas of medicine higher premiums in order to subsidize the high cost of premiums for physicians who practice in high-risk areas. The Task Force specifically rejected such mandatory insurance plans as being overly intrusive into the insurance market and economically undesirable. Id.
The Task Force’s recommendations to the Legislature not to adopt a no-fault system or mandatory insurance program are based on an extensive study of the complex causes of the increases in medical malpractice insurance rates. According to the Task Force’s report the solutions the Legislature implemented to meet the workers’ compensation problem are not effective to answer the medical malpractice insurance liability crisis. The unique facts surrounding medical malpractice required the Legislature to tailor a different solution to solve the crisis.

Echarte, 618 So.2d at 194-95. Finally, relating to the purpose of the MMA, we accepted the Legislature’s statement of findings presented in the preamble of the chapter, stating:

[T]he Legislature set out its factual findings in the preamble of chapter 88-1, which initially enacted the Task Force’s recommendations. In fact, the preamble in chapter 88-1 states in part:
[I]t is the sense of the Legislature that if the present crisis is not abated, many persons who are subject to civil actions will be unable to purchase liability insurance, and many injured persons will therefore be unable to recover damages for either their economic losses or their non-economic losses....
Ch. 88-1. This preamble dearly states the Legislature’s conclusion that the current medical malpractice insurance crisis constitutes an “overpowering public necessity.” Moreover, the Legislature made a specific factual finding that “[m]edieal malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased unavailability of malpractice insurance for some physicians.” § 766.201(l)(a).
The Legislature’s factual and policy findings are supported by the Task Force’s findings in its report.

Echarte, 618 So.2d at 196 (emphasis added). Accordingly, we have clarified the stated policy and intent of the Act — to address the “overpowering public necessity” created by the medical malpractice insurance crisis. And, the MMA does “redress an existing grievance.” Specifically, the MMA presents the Legislature’s careful balancing of the rights of patients and the needs of doctors in order to address the medical malpractice crisis. Further, the MMA was enacted to limit the remedies available to patients, which represents a change to the remedy available to patients.

We have said that parties are free to contract around a state law so long as there is nothing void as to public policy or statutory law. See, e.g., Green v. Life & Health of America, 704 So.2d 1386, 1390 (Fla.1998). However, a contractual provision that contravenes legislative intent in a way that is clearly injurious to the public good violates public policy and is thus unenforceable. See generally Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971). We do not take lightly the freedom of contract, but we find that the Financial Agreement blatantly contravenes the intent provided by the Florida Legislature, discussed above.

We have previously stated that “[t]he arbitration provisions were enacted to provide ‘[Substantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorneys’ fees, litigation costs, and delay.’ ” Chester v. Doig, 842 So.2d 106, 107 (Fla.2003) (quoting § 766.201(2)(b), Fla. Stat. (1997)). The Financial Agreement requires the parties to submit to financial arbitration and therefore meets the first stated goal of the MMA. However, the “substantial incentives” for the claimants to submit to the arbitration have been removed under the agreement. We previously explained the incentives for claimants to voluntarily submit to such a process, stating:

The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability. The claimant also saves the costs of attorney and expert witness fees which would be required to prove liability. Further, a claimant who accepts a defendant’s offer to have damages determined by an arbitration panel receives the additional benefits of: 1) the relaxed evidentiary standard for arbitration proceedings as set out by section 120.58, Florida Statutes (1989); 2) joint and several liability of multiple defendants in arbitration; 3) prompt payment of damages after the determination by the arbitration panel; 4) interest penalties against the defendant for failure to promptly pay the arbitration award; and 5) limited appellate review of the arbitration award requiring a showing of “manifest injustice.”
On the other hand, the most significant incentive for defendants to concede liability and submit the issue of damages to arbitration is the $250,000 cap on noneconomic damages. This limitation provides liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes.

St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 970 (Fla.2000) (quoting Echarte, 618 So.2d at 194); see also N. Miami Med. Ctr. v. Prezeau, 793 So.2d 1142, 1144-45 (Fla. 3d DCA 2001) (“It is apparent from the clear and unambiguous language of the statute that the benefit of the statutory cap on non-eeonomic damages is solely reserved for a defendant who is conceding liability and participating in arbitration. This benefit is part of the statutory scheme to encourage the arbitration of medical negligence claims.”).

Under the statute, Franks would be entitled to receive a maximum of $1 million if the case proceeded to court without either party seeking arbitration, or if Dr. Bowers and NFS refused to proceed with arbitration under the conditions of section 766.207. See § 766.209, Fla. Stat. (2008) (providing that the caps under § 766.118, Fla. Stat. (2008), apply when voluntary arbitration is refused.); § 766.118(2)(a)-(b), Fla. Stat. (2008) (“With respect to a cause of action for ... wrongful death arising from medical negligence of practitioners, ... noneconomic damages shall not exceed $500,000 per claimant.... [I]f the negligence resulted in a ... death, the total noneconomic damages recoverable from all practitioners ... under this paragraph shall not exceed $1 million”). Under the Financial Agreement, Franks could only receive a maximum of $250,000. Further, the agreement dispenses with the inherent concession of liability provided by section 766.207. See § 766.207(2), Fla. Stat. (2008) (“[T]he parties may elect to have damages determined by an arbitration panel.”). This Court has previously stated that the concession of liability is one of the incentives provided by the chapter. See St. Mary’s Hospital, 769 So.2d at 970.

The incentive provided to claimants to encourage arbitration is a necessary provision of the MMA. We therefore find that the Financial Agreement’s avoidance of the incentive contravenes the intent of the statute and, accordingly, the public policy of this state. Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.

We now turn to whether the objectionable provision is severable. NFS argues that the arbitration provision of the financial agreement is valid and that the limitation of damages provision is a separate and severable provision. We disagree. A plain reading of the agreement and its provisions provides that the Limitation of Damages pro-vision is not severa-ble from the Arbitration provision, without which the trial court’s order compelling arbitration is void. Because we are reviewing the propriety of the order compelling arbitration, we do not address whether the arbitration provision is severable from the Financial Agreement.

We have previously set forth the following standard for determining whether a contractual provision is severable from the whole:

As to when an illegal portion of a bilateral contract may or may not be eliminated leaving the remainder of the contract in force and effect, the authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration. Stokes v. Baars, 18 Fla. 656 [ (1882) ]; 12 Am. Jur., Contracts, sec. 316. Stated differently, a contract is indivisible where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement. Hyde & Gleises v. Booraem & Co., 16 Pet. 169, 10 L.Ed. 925 [ (1842) ]. On the other hand, a bilateral contract is severable where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other. Williston on Contracts, rev. ed., Vol. 6, sec. 1782.
Whether a contract is entire or divisible depends upon the intention of the parties. Ireland v. Craggs, 5 Cir. [(1932)], 56 F.2d 785. And this is a matter which may be determined “by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.” 12 Am.Jur., Contracts, sec. 315.

Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 821-22 (Fla.1953). “To the extent this claim is based on written materials before this Court, the issue is a pure question of law, subject to de novo review.” Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 475 (Fla.2011) (citing Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010)).

The Financial Agreement is a four-page document containing twelve separate headings. Joseph’s signature appears on pages two, three, and four of the agreement. The Arbitration provision begins on page two and continues on page three. The Limitation of Damages clause appears as a subheading under the Arbitration provision on page two. Because of this format, it does not appear that either party intended for the Limitation of Damages provision to be separated from the Arbitration provision. A further indication of this intent is that the signature acknowledging the agreement appears on page three under “Arbitration, continued.” Additionally, the plain language of the Limitation of Damages provision supports this conclusion: “This limit applies regardless of the number of claimants or defendants in the arbitration proceeding.” Based on the foregoing, we find that the Limitation of Damages clause is not severable from the Arbitration provision of the Financial Agreement.

Lastly, we address whether the Federal Arbitration Act (FAA) precludes our finding expressed herein. Dr. Bowers argues that if the MMA is interpreted to restrict the enforcement of the arbitration clause in the financial agreement, then the FAA preempts state law. Because we find that the MMA does not preclude all arbitration — and, in fact encourages arbitration under the specified guidelines — and that our decision here is fact-specific per-taming only to the particular agreement before us and does not prohibit all arbitration agreements under the MMA, we likewise find that the FAA does not preempt state law or preclude our decision here. The FAA reflects a strong federal policy favoring enforcement of agreements to arbitrate and provides, in part, that a written agreement to arbitrate disputes arising from a contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2006). However, this policy does not preclude a state from enforcing its laws regarding arbitration procedures.

In Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989), the United States Supreme Court held that a state statute is not preempted by the FAA where the parties have agreed that their agreement will be governed by state law. Volt, 489 U.S. at 470, 109 S.Ct. 1248. After a dispute arose between the parties, Stanford University filed an action against Volt in California Superior Court and Volt moved to compel arbitration. The Superi- or Court denied Volt’s motion to compel arbitration and stayed the proceeding pending the outcome of tangential litigation. Volt appealed to the California Court of Appeal, which affirmed, reasoning “that the purpose of the FAA was not to mandate the arbitration of all claims, but merely the enforcement of privately negotiated arbitration agreements.” Volt, 489 U.S. at 472, 109 S.Ct. 1248 (internal quotation marks omitted). The United States Supreme Court affirmed, stating:

The [FAA] was designed to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate, and place such agreements upon the same footing as other contracts. Section 2 of the Act therefore declares that a written agreement to arbitrate in any contract involving interstate commerce or a maritime transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract, and § 4 allows a party to such an arbitration agreement to petition any United States district court for an order directing that such arbitration proceed in the manner provided for in such agreement.
But § 4 of the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that arbitration proceed in the manner provided for in the parties’ agreement.

Volt, 489 U.S. at 474-75, 109 S.Ct. 1248 (citations, internal quotation marks, brackets, emphasis, and ellipses omitted).

[T]he FAA does not require parties to arbitrate when they have not agreed to do so, nor does it prevent parties who do agree to arbitrate from excluding certain claims from the scope of their arbitration agreement. It simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.

Volt, 489 U.S. at 478, 109 S.Ct. 1248 (citations omitted).

But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. Indeed, such a result would be quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit.

Volt, 489 U.S. at 479, 109 S.Ct. 1248.

In short, “[t]here is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” Volt, 489 U.S. at 476, 109 S.Ct. 1248. Based on this reasoning, the FAA does not preempt this Court’s determination that the arbitration provision must follow the rules outlined in chapter 766 because our conclusion does not impede the general enforceability of agreements to arbitrate.

CONCLUSION

Based on our decision above, we decline to address whether the Financial Agreement was unconscionable. For the foregoing reasons, we find that the Financial Agreement is void as to public policy and quash the First District’s decision affirming the trial court’s order compelling arbitration. We remand with instructions to hold further proceedings consistent with our decision.

It is so ordered.

PARIENTE, LEWIS, QUINCE and LABARGA, JJ., concur.

PARIENTE, J., specially concurs with an opinion.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

PARIENTE, J.,

specially concurring.

I agree with the majority that the Financial Agreement that the patient was required to sign takes away the patient’s significant statutory rights without providing the commensurate benefit of requiring the defendant to admit liability, as specifically envisioned by the Medical Malpractice Statute. For this reason, the Financial Agreement violates the public policy of Florida, as embodied in the Medical Malpractice Statute.

Specifically, this Financial Agreement forces the patient to forego his or her right to pursue a claim in a court of law and limits the amount of recoverable damages — without requiring the defendant to admit liability or to give up any other rights in return. Conversely, the Financial Agreement under review relieves the defendant of the burden and expense of proceeding to a jury trial and still limits the amount of damages that must be paid — without providing any benefit to the patient in return. In other words, this Financial Agreement undermines the legislative balance of incentives in the comprehensive medical malpractice statutory scheme, and for that reason is void as against the public policy underpinning the Medical Malpractice Statute.

As set forth in chapter 766, if a defendant agrees to admit liability, a patient is required to give up the right to sue in a court of law and must arbitrate his or her claims, and the patient is also subject to limitations on recoverable damages. See § 766.207, Fla. Stat. (2008). In turn, the Legislature envisioned that with a defendant’s admission of liability, a patient’s risk of recovering nothing would be eliminated. The legislative scheme also envisioned that the admission of liability would reduce the expenses of litigation and expedite the process of resolving the dispute.

In contravention to the carefully crafted statutory scheme set forth in chapter 766, the Financial Agreement under review requires the patient to arbitrate his or her claims in exchange for absolutely nothing in return — no elimination of the risk of not recovering any damages through the defendant’s admission of liability, no guarantee of a reduction in the expenses inherent in proving a medical malpractice claim, and no assurance that the dispute will be resolved quickly — while still subjecting the patient to the cap on damages. This result is contrary to the public policy of Florida, as expressed in the Medical Malpractice Statute.

The Legislature expressly stated that its intent in enacting the Medical Malpractice Statute was to “provide a plan for prompt resolution of medical negligence claims.” § 766.201(2), Fla. Stat. (emphasis added). The Legislature provided that “[arbitration shall be voluntary and shall be available except as specified.” Id. As set forth in the legislative findings allowing for arbitration, the Legislature found that arbitration would provide incentives and benefits to both parties:

(b) Arbitration shall provide:
1. Substantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorney’s fees, litigation costs, and delay.
2. A conditional limitation on noneco-nomic damages where the defendant concedes willingness to pay economic damages and reasonable attorney’s fees.
3. Limitations on the noneconomic damages components of large awards to provide increased predictability of outcome of the claims resolution process for insurer anticipated losses planning, and to facilitate early resolution of medical negligence claims.

Id. Thus, the Legislature envisioned a plan in which there would be the following give- and-take in order to provide for the prompt resolution of claims and to reduce costs: (1) “[substantial incentives for both claimants and defendants ” to submit to arbitration, which would reduce attorney’s fees, litigation costs, and delay; (2) a conditional limitation on noneconomic damages in exchange for the defendant conceding to pay economic damages and reasonable attorney’s fees; and (3) limitations on the noneconomic damages “to provide increased predictability ” and “facilitate early resolution of medical negligence claims.” § 766.201(2)(b), Fla. Stat. (emphasis added).

Chapter 766 withstood constitutional scrutiny with respect to a patient’s right of access to the courts for the following reason: “[T]he statutes at issue provide a commensurate benefit to the plaintiff in exchange for the monetary cap.” Univ. of Miami v. Echarte, 618 So.2d 189, 190 (Fla.1993) (emphasis added). “Commensurate benefit” to the injured party is the linchpin of the constitutional analysis where the statutory scheme restricts the right of access to courts. See Smith v. Dep’t of Ins., 507 So.2d 1080, 1087-88 (Fla.1987); see also Kluger v. White, 281 So.2d 1, 3-4 (Fla.1973). The “commensurate benefit” of the monetary cap on noneconomic damages if both parties agree to arbitration under the statute was explained as follows in Echarte:

The initial question in the instant case is whether the arbitration statutes, which include the non-economic damage caps found in sections 766.207 and 766.209, provide claimants with a “commensurate benefit” for the loss of the right to fully recover non-economic damages. Sections 766.207 and 766.209 only limit a claimant’s right to recover non-economic damages after a defendant agrees to submit the claimant’s action to arbitration. The defendant’s offer to 'have damages determined by an arbitration panel provides the claimant with the opportunity to receive prompt recovery without the risk and uncertainty of litigation or having to prove fault in a civil trial. A defendant or the defendant’s insurer is required to conduct an investigation to determine the defendant’s liability within ninety days of receiving the claimant’s notice to initiate a malpractice claim. § 766.106(3)(a). Before the defendant may deny the claimant’s reasonable grounds for finding medical negligence, the defendant must provide a verified written medical expert opinion corroborating a lack of reasonable grounds to show a negligent injury. § 766.203(3)(b). The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability. The claimant also saves the costs of attorney and expert witness fees which would be required to prove liability. Further, a claimant who accepts a defendant’s offer to have damages determined by an arbitration panel receives the additional benefits of: 1) the relaxed evidentiary standard for arbitration proceedings as set out by section 120.58, Florida Statutes (1989); 2) joint and several liability of multiple defendants in arbitration; 3) prompt payment of damages after the determination by the arbitration panel; 4) interest penalties against the defendant for failure to promptly pay the arbitration award; and 5) limited appellate review of the arbitration award requiring a showing of “manifest injustice.”

Echarte, 618 So.2d at 194. In other words, the Legislature envisioned that arbitration under the statute would give injured parties the right to a prompt resolution of their disputes because the defendant would have to admit liability. This in turn would save the injured party costs in the form of increased attorney’s fees and the expenditure of expert witness fees that would otherwise be required in order to prove liability.

It is therefore clear from a full review of the Medical Malpractice Statute that the legislative quid pro quo for patients in exchange for both a substantial limitation on noneconomic damages to a maximum of $250,000 per incident and the right to a jury trial was that a defendant would be required to admit liability. This clearly expressed public policy in the statute, however, has been expressly contravened by the Financial Agreement in this case, which eviscerates statutory rights without providing the injured patient with any of the added benefits or incentives provided for by the Legislature. Further, by requiring arbitration without in turn requiring the counter-balance of the defendant admitting liability, the Financial Agreement undermines the public policy set forth in the statute of reducing attorney’s fees, litigation costs, and delay.

The Financial Agreement in this case destroys the essence of the legislative scheme providing for arbitration and limiting damages along with an admission of liability, as well as the Legislature’s stated goal of providing a uniform and efficient procedure for the “prompt resolution of medical negligence claims.” § 766.201(2), Fla. Stat. (emphasis added). Because this Financial Agreement eviscerates the major benefit provided by the Legislature of requiring an admission of liability from the defendant, while still limiting the patient’s noneconomic damages, this Financial Agreement is contrary to public policy and is in express contravention of the arbitration provisions of the Medical Malpractice Statute. For all those reasons, I concur in the majority.

CANADY, J.,

dissenting.

Because I conclude that the decision on review, Franks v. Bowers, 62 So.3d 16 (Fla. 1st DCA 2011), does not expressly and directly conflict with University of Miami v. Echarte, 618 So.2d 189 (Fla.1993), I would dismiss this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution. On the merits, I conclude that there is no statutory basis for determining that the provisions of the Financial Agreement limiting non-economic damages violate public policy. On the contrary, it is the judicial invalidation of the Financial Agreement that is at odds with the public policy established by the Legislature.

I. Jurisdiction

In Franks, the First District Court of Appeal considered whether a Financial Agreement between a patient and his doctor that provided for mandatory arbitration was contrary to public policy. After explaining that the voluntary arbitration provisions of chapter 766, Florida Statutes, “were enacted in response to a dramatic increase in the cost of medical malpractice insurance,” the First District concluded that the mandatory arbitration portion of the Financial Agreement did “not countermand the public policy reflected in Chapter 766, as applied to the claims presented in this case.” Franks, 62 So.3d at 18. The First District reasoned that the Financial Agreement could be enforced because it did “not eliminate statutory rights which are essential in effectuating legislative intent” but instead “affordfed] meaningful relief’ that was “consistent with the legislative purpose and the public policy which led to the enactment of the medical negligence provisions in Chapter 766.” Franks, 62 So.3d at 18.

Echarte involved a distinct legal issue. In Echarte, this Court rejected several challenges to sections 766.207 and 766.209, Florida Statutes (Supp.1988) — which provided for voluntary arbitration and a non-economic damages cap in medical malpractice claims — but “limit[ed][its] discussion to the validity of the statutes under the right of access to the courts.” 618 So.2d at 191. In its opinion, this Court considered only whether the voluntary arbitration and noneconomic damages provisions of sections 766.207 and 766.209 satisfied the access-to-courts test set out in Kluger v. White, 281 So.2d 1 (Fla.1973), and concluded that the statutes provided a commensurate benefit for the loss of the right to fully recover noneconomic damages and, alternatively, that the Legislature’s tort reform was justified by an “overpowering public necessity,” for which “no alternative method of meeting such public necessity [was] shown.” Echarte, 618 So.2d at 195 (quoting Kluger, 281 So.2d at 4).

The legal issue addressed in Echarte was whether the Legislature could constitutionally alter or abolish a preexisting right of redress for a particular injury— not whether an individual could contract out of the statutory procedures enacted in chapter 766. This Court reviewed the constitutionality of a legislative solution to a public problem. This Court was not asked, however, to consider the public policy implications of individual patients and doctors privately negotiating stricter arbitration agreements on a ease-by-case basis.

A discussion of how the majority believes that Franks and Echarte conflict— and its resolution of that “conflict” — is noticeably absent from the majority opinion. Because Franks and Echarte address different legal issues, this Court does not have jurisdiction, and the case should be discharged. Accordingly, I dissent.

II. Merits

On the merits, I disagree with the majority’s conclusion “that the Financial Agreement blatantly contravenes the intent provided by the Florida Legislature” in the Medical Malpractice Act (MMA). Majority op. at 1247. The Financial Agreement undeniably furthers the general purpose articulated by the Legislature in the text of the statute. It is the majority’s decision that “blatantly contravenes” the legislative purpose not only of the MMA but also of the Florida Arbitration Code, §§ 682.01-22, Fla. Stat. (2012).

The statute at issue here is expressly designed to limit the expense associated with medical malpractice litigation. In the statutory declaration of legislative findings and intent, the Legislature made the following salient findings:

(a) Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.
(b) The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.
(c) The average cost of a medical negligence claim has escalated in the past decade to the point where it has become imperative to control such cost in the interests of the public need for quality medical services.
(d) The high cost of medical negligence claims in the state can be substantially alleviated by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney’s fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.

§ 766.201(1)(a)-(d), Fla. Stat. (2012) (emphasis added).

By the enactment of the statute, the Legislature sought to address the mischief of the perceived excessive “loss payments to claimants caused by tremendous increases in the amounts of paid claims.” § 766.201(1)(b), Fla. Stat. (2012). To help remedy this mischief, the Legislature enacted measures to provide post-dispute incentives for arbitration and to prevent the filing of frivolous claims and defenses. Among the post-dispute incentives for arbitration was the provision for the conditional limitation on noneconomic damages whenever the defendant concedes liability. Nothing in the statute, however, prohibits voluntary pre-dispute agreements — outside the statutory framework — to arbitrate disputes or to impose limits on damages.

The majority reasons that “the concession of liability is one of the incentives provided by” the statute and that the “avoidance of the incentive contravenes the intent of the statute.” Majority op. at 1248. The majority thus concludes that the pre-dispute Financial Agreement contravenes the statute because the Financial Agreement does not contain a concession of liability. This is incongruous. A post-dispute concession of liability may be a very reasonable “incentive,” but a pre-dispute concession of liability would be absurd. It is wholly unjustified to extrapolate from the post-dispute context addressed by the statute to impose restrictions in the dissimilar context of voluntary pre-dispute agreements.

Nothing in the statute can be read to support the conclusion that the purpose of the statute is thwarted by voluntary pre-dispute agreements — such as the voluntary agreement invalidated by the majority here — designed to limit the cost of litigation and the amount of paid claims. Instead, such voluntary agreements are designed to cure the same mischief that the statute seeks to address. The Financial Agreement here unquestionably serves to advance the public policy embodied in the statute. The specific public policy of the MMA thus is antithetical to the majority’s decision. And the majority fails to cite any authority for a general public policy— either legislatively established or judicially recognized — prohibiting voluntary agreements limiting liability.

There is an astonishing irony in the line of judicial reasoning that condemns as invalid a voluntary agreement designed to limit the expense of medical malpractice litigation and grounds that condemnation on the purpose of a statute expressly designed to limit the expense of medical malpractice litigation. The public policy that animates the Court’s decision here is an unprecedented judicial policy that contravenes the declared objective of the Legislature set forth in section 766.201.

The majority’s decision also contravenes the public policy embodied in the Florida Arbitration Code, which provides as follows:

Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract with the failure or refusal to perform the whole or any part thereof.

§ 682.02, Fla. Stat. (2012) (emphasis added). This broadly framed statutory right to enter both pre-dispute and post-dispute arbitration agreements is set aside by the majority’s decision on grounds that cannot withstand analysis.

In the name of public policy, the majority thus strikes two blows against the public policy unambiguously established by the Florida Legislature. This decision validates the old observation that “public policy” is “a very unruly horse.” Story v. First Nat’l Bank & Trust Co., 115 Fla. 436, 156 So. 101, 103 (1934) (citing Richardson v. Mellish, [1824] 130 Eng. Rep. 294, 303, 2 Bing. 229, 252). Here, public policy has kicked over the traces.

POLSTON, C.J. concurs.

      . See Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999); Shearson/Lehman Brothers, Inc. v. Ordonez, 497 So.2d 703 (Fla. 4th DCA 1986).

      . For that matter' — although the point is not at issue here and may be of no practical importance — nothing in the statute prohibits parties from entering voluntary post-dispute agreements to arbitrate or limit damages.


author: PER CURIAM.

text:
    Bruce D. FULLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2316.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Adam H. Sudbury, of Sudbury Law, PL, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Bruce D. Fuller petitions this court for a writ of habeas corpus, alleging the trial court erred when it revoked his pretrial release without notice and the benefit of a hearing. Fuller seeks the following relief: (a) an order that the original conditions of release be immediately reinstated, or (b) that he be immediately brought before the trial court for an immediate hearing to determine conditions of pretrial release. Although we do not find that Fuller is entitled to immediate release or an order that the original conditions of release be reinstated, we grant relief, in part, and hold that petitioner is entitled to notice and an opportunity to be heard in the trial court.

Fuller was charged by indictment with first degree murder, a capital offense, and sexual battery. He was granted pretrial release on $50,000 bond with, among other conditions, GPS and SCRAM (alcohol) monitoring. He was also ordered not to consume or possess alcohol. Two months after being granted pretrial release, the trial court received a “SCRAM violation report” indicating a “confirmed consumption of alcohol.” After receiving the violation report, the trial court, sua sponte, entered an order revoking Fuller’s pretrial release and set no bond on the warrant ordering him into custody. When Fuller turned himself in on the warrant, his attorney filed an emergency motion to reinstate conditions of release. The motion was denied without a hearing.

At the outset, we note that Fuller is charged with a capital offense and thus, is not entitled to pretrial release if the proof of guilt is evident or the presumption is great. See Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131(a). However, the trial court may, in its discretion, grant pretrial release and did so here. Fuller claims that because he was initially granted pretrial release, he was entitled to notice and an opportunity to be heard before the trial court revoked his pretrial release and ordered him held without bond. We agree. Although breaching a condition of the bond originally set by the court forfeits a defendant’s right to continued release under the terms of that bond, it does not forfeit the constitutional right to bail altogether. State v. Paul, 783 So.2d 1042, 1050 (Fla.2001). A refusal to readmit a defendant to any bail at all must be subject to the limitations of section 907.041, the pretrial detention statute. Id. Accordingly, we grant the writ and quash the order denying Fuller’s motion to reinstate conditions of release, and remand for hearing on the motion, at which time the trial court shall consider whether pretrial detention is warranted under section 907.041, Florida Statutes. See Perrys v. State, 22 So.3d 740 (Fla. 1st DCA 2009).

PETITION GRANTED.

TORPY, C.J., LAWSON and BERGER, JJ., concur.

      . We decline to issue a blanket ruling requiring a hearing in every case where the trial court is presented with evidence that a defendant has violated a condition of pretrial release.


text:
    Siomarily BAEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0823.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Siomarily Baez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The Petitioner challenges the trial court’s striking of his motion for reduction of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court struck the motion on the ground that it was not filed within 60 days of imposition of the sentence. However, rule 3.800(c) allows for motions filed pursuant to that rule to be filed within 60 days of the date that mandate issued in the Petitioner’s direct appeal. Here, the Petitioner’s motion was timely filed within 60 days of the date mandate issued in Petitioner’s direct appeal, so the trial court had jurisdiction to rule on the motion. However, the trial court also denied the Petitioner’s motion on the merits. That merits determination is not reviewable by this Court. See, e.g., Mitchell v. State, 719 So.2d 1258 (Fla. 1st DCA 1998) (explaining that a rule 3.800(c) motion is addressed to the sound discretion of the trial court and that the appellate court has no jurisdiction to review the correctness of the decision). Accordingly, the petition for writ of certiorari is denied.

PETITION DENIED.

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


text:
    Willie SMITH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D12-4147.
    District Court of Appeal of Florida, First District.
    July 10, 2013.
    Willie Smith, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., BENTON and WETHERELL, JJ., concur.


text:
    Abdelaziz HAMZE, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-3702.
    District Court of Appeal of Florida, First District.
    July 10, 2013.
    Abdelaziz Hamze, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charles F. Rivenbark, II, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Dustin SANDIFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1635.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2013.

      Dustin Sandiford, Bristol, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence for violation of probation in Case Nos.2009-CF-905; 2009-CF-1096; 2010-CF-336; and 2010-CF-425, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141 (e)(6)(D).

PETITION GRANTED.

TORPY, CJ., SAWAYA and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Donald GODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-935.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2013.
    Donald Godwin, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller and Kaylee Danielle Tatman, Assistant Attorneys General, Daytona Beach, for Appellee.
   EVANDER, J.

Godwin appeals the denial of his motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The State properly concedes error.

Godwin was charged with twenty-three counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2011). A plea agreement was entered into between the State and God-win, whereby Godwin would plead nolo contendere to Counts I through X and be sentenced to ten years imprisonment. In return, the State would nolle prosequi the remaining thirteen counts. The trial court accepted Godwin’s plea and sentenced him to ten concurrent sentences of ten years imprisonment on each count.

On appeal, Godwin correctly argues that his sentence is illegal because a violation of section 827.071(5) is. a third-degree felony carrying a maximum penalty of five years’ imprisonment. Although Godwin is entitled to be relieved of this illegal sentence, the trial court may, on remand, restructure the defendant’s sentence by changing concurrent terms to consecutive terms, provided that the new sentence conforms to the plea agreement and is not found to be vindictive. See Sands v. State, 899 So.2d 1208, 1210-11 (Fla. 5th DCA 2005) (recognizing that illegal sentence “can be restructured in a manner that effectuates the plea agreement”) (citation omitted); Tilley v. State, 871 So.2d 294, 295 (Fla. 5th DCA 2004) (remanding for resentencing and noting that defendant “is entitled to the benefit of the plea agreement, but nothing more”); Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001).

REVERSED and REMANDED.

SAWAYA and COHEN, JJ., concur.


text:
    Charles WOIDE and Susannah Woide, Appellant, v. FANNIE MAE, etc., Appellee.
    No. 5D12-4276.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2013.
    Herbert S. Zischkau III, Deltona, for Appellant.
    Wm. David Newman, Jr., of Choice Legal Group, P.A., Fort Lauderdale, for Ap-pellee.
   PER CURIAM.

Appellants, Charles and Susannah Woide, timely appeal a non-final order denying their motion to quash service of process. They argue the summonses with which they were served were defective because neither contained the deputy clerk’s signature or the circuit court’s official seal as required by Florida Rule of Civil Procedure 1.070(a). Appellee, Fannie Mae, properly concedes error. See Fla. R. Civ. P. 1.070(a); § 48.031(1)(a), Fla. Stat. (2011); Ball v. Jones, 65 So.2d 3, 4 (Fla.1953) (“When the Rule mandatorily requires that the summons shall be ‘issued by the Clerk’, it requires that the Clerk, or his lawfully authorized deputy, sign such summons as a ‘testimonial by which the authenticity of the summons is made to appear.” ’); see also Schofield v. Wells Fargo Bank, N.A., 95 So.3d 1051, 1052 (Fla. 5th DCA 2012) (“Service of process must strictly comply with all relevant statutory provisions.”). Accordingly, because the summonses failed to strictly comply with Florida Rule of Civil Procedure 1.070(a), we reverse the order of the trial court.

REVERSED and REMANDED.

LAWSON, BERGER and WALLIS, JJ., concur.


text:
    Sima SASSEEN, Appellant, v. Brett SASSEEN, Appellee.
    No. 5D12-1449.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2013.
    Sima Sasseen, Philadelphia, Pennsylvania, pro se.
    Eric J. Friday, of Fletcher and Phillips, Jacksonville, for Appellee.
   EVANDER, J.

The former wife, Sima Sasseen, appeals a final judgment of dissolution of marriage. We conclude that the trial court erred in failing to award the former wife arrearag-es due from the former husband under a temporary support order, but . we otherwise affirm.

During the pendency of the dissolution action, the trial court entered a stipulated temporary order under which the former husband was required to pay, inter alia, mortgage payments and other specified obligations related to the marital home such as utilities, car payments and insur-anee for the former wife’s vehicle, private school tuition for the minor children, and unallocated support of $7,500 per month.

The uncontroverted testimony established that the former wife paid $21,-870.63 for expenses that were the former husband’s obligation under the temporary order. Despite demand from the former wife, the former husband failed to pay these due and owing monies. It appears from the record that the trial court was under the misapprehension that the monies claimed by the former wife had been reimbursed by the former husband. On remand, the trial court shall require the former husband to pay this arrearage amount.

AFFIRMED, in part; REVERSED, in part; REMANDED.

COHEN and LAWSON, JJ., concur.

      . This sum represents $12,260 for private school tuition, $3,024.28 for car-related expenses, and $6,086.35 for utilities and other expenses related to the marital home.

      . The record belies the former husband’s suggestion that the trial court's failure to require the former husband to pay these arrearages was based on an intent to “modify” the temporary order. Indeed, the Order on Motion for Rehearing erroneously states:
      The Husband testified at trial that he had brought current the expense items, e.g., mortgage, insurance, homeowners' association fees, utilities, private school tuition, etc.
      In fact, the former wife’s testimony as to the court-ordered expenses that the former husband had failed to pay was uncontroverted.


text:
    Karren Trappio PLAINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1768.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Karren Plaines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 6, 2011, judgment and sentence in the Duval County Circuit Court, case number 2010-CF-014348. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    JIBANG XI, Appellant, v. LI DING, Appellee.
    No. 1D13-2997.
    District Court of Appeal of Florida, First District.
    July 23, 2013.

      Hongling Han-Ralston, Tampa, for Appellant.
    S. Scott Walker, of Folds & Walker, LLC, Gainesville, for Appellee.
   PER CURIAM.

DISMISSED. Moore v. Moore, 50 So.3d 110 (Fla. 1st DCA 2010). Cf. Shepardson v. Shepardson, 820 So.2d 360 (Fla. 1st DCA 2002).

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


author: VAN NORTWICK, J.

text:
    David PEARSON, Appellant, v. PEOPLES NATIONAL BANK, Appellee.
    No. 1D13-0685.
    District Court of Appeal of Florida, First District.
    July 24, 2013.
    Bill R. Hutto of Hutto and Bodiford, Panama City, for Appellant.
    Richard S. Johnson, Niceville, for Appel-lee.
   VAN NORTWICK, J.

David Pearson appeals a non-final order which, on motion from Peoples National Bank, appellee, stays a declaratory action and directs the parties to arbitration. Because the Bank waived its right to compel arbitration, the non-final order under review is erroneous and must be reversed.

In April 2010, Pearson and the Bank entered into a real estate sales contract under which Pearson agreed to purchase a vacant lot in Walton County. The lot as described in the contract included beach access. The Bank, however, was not ultimately able to convey that access and, as a result, has since argued that the sales contract is null and void. Nevertheless, Pearson has demanded this access and does not agree that the contract is null and void.

In April 2012, the Bank filed a complaint for a declaratory judgment as to the respective rights of the parties under the contract and other unspecified “supplementary relief.” In his answer, Pearson raised breach of contract as an affirmative defense. He also counter-claimed for specific performance and damages for breach of contract. Upon motion of the Bank, the cause was submitted to mediation, but an impasse was declared. Thereafter, upon motion of the Bank, the trial court ordered arbitration, ruling that the sales contract required arbitration.

Paragraph 14 of the sales contract provides:

Controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled as follows: ... (b) All other disputes: 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. The contract further states that this clause shall survive closing.

On appeal, Pearson argues that the Bank forfeited its right to demand arbitration pursuant to the contract because it filed a complaint in the circuit court and a notice of lis pendens without simultaneously seeking the right to arbitrate the controversy. We agree.

While Florida law generally favors arbitration, see Roe v. Amica Mut. Ins. Co., 533 So.2d 279, 281 (Fla.1988), there is a long line of authority holding that arbitration can be waived. The general definition of waiver, namely “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right,” applies to the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005); Roger E. Freilich, D.M.D., P.A. v. Shochet, 96 So.3d 1135, 1138 (Fla. 4th DCA 2012). While actual participation in a lawsuit has generally been held to waive the right to arbitrate,

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.

Raymond James, 896 So.2d at 711 (quoting with approval Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)). In the case before us, the Bank did more than participate in a lawsuit; it initiated the lawsuit. “Initiating a lawsuit, or on the part of a defendant, participating in a lawsuit without first seeking arbitration, constitutes an affirmative selection of a course of action which runs counter to the purpose of arbitration.” Beverly Hills Dev. Corp. v. George Wimpey of Florida, Inc., 661 So.2d 969 (Fla. 5th DCA 1995) citing Rosen v. Shearson Lehman Bros., 534 So.2d 1185 (Fla. 3d DCA 1988), rev. denied, 544 So.2d 200 (Fla.1989).

Here, the Bank filed the complaint initiating the civil action even though the contract between the parties compelled arbitration of “[a]ll controversies, claims, and other matters in question,” except disputes related to entitlement to deposits. It did so without simultaneously moving to request a stay and an order compelling arbitration. See Frontage Road Partners, LLC v. McMullen, 934 So.2d 629 (Fla. 2d DCA 2006) (holding that action of filing a complaint and notice of lis pendens based on a contract without simultaneously requesting a stay and an order compelling arbitration waives that party’s contractual right to arbitrate); Bonner v. RCC Assoc., Inc., 679 So.2d 794 (Fla. 3d DCA 1996) (explaining that when contractor filed a complaint for breach of contract and quantum meruit, and filed a notice of lis pen-dens, without also moving to stay the proceedings pending arbitration until 21 days later, contractor waived right to demand arbitration); Hough v. JKP Dev., Inc., 654 So.2d 1241, 1241 (Fla. 3d DCA 1995) (holding plaintiff waived right to arbitration by not simultaneously requesting a stay and an order of arbitration at the time of the complaint). In fact, the Bank did not file motion to compel arbitration until approximately six months after the filing of the complaint; further, the Bank did not immediately seek mediation of the controversy. Given the undisputed facts before us, the Bank waived its right to demand arbitration and the trial court abused its discretion in staying the civil proceedings below and ordering arbitration.

REVERSED and REMANDED for further proceedings.

MARSTILLER and RAY, JJ., concur.


author: CLARK, J. OSTERHAUS, J.,

text:
    Kelli A. BURTON, R.N., Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 1D13-2009.
    District Court of Appeal of Florida, First District.
    July 24, 2013.

      Monica L. Rodriguez, Dresnick, Rodriguez & Perry, P.A., Miami, for Petitioner.
    Lucy Schneider and Therese A. Savona, Assistant General Counsels, Florida Department of Health, Tallahassee, for Respondent.
   CLARK, J.

Dr. Kelli A. Burton, R.N., petitions this Court for review of non-final agency action. She contends the Department of Health (the Department) exceeded its authority when it, by emergency order, suspended her license to practice nursing through summary proceedings and without a hearing. We have jurisdiction under sections 120.60(6) and 120.68(1), Florida Statutes, and Rule 9.100(c)(3), Florida Rules of Appellate Procedure. We agree with Dr. Burton and quash the Department’s emergency suspension order (ESO).

While the Department is entitled to emergently suspend a nursing license pending full proceedings, because it does so without a hearing it must meet strict requirements. See Nath v. State Dep’t of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012). Among those requirements, the Department must show the ESO to be necessary and narrowly tailored; i.e., “why less harsh remedies ... would have been insufficient to stop the harm alleged.” Id. (internal quotations omitted) (quoting Preferred RV, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So.2d 713, 714 (Fla. 1st DCA 2004)).

Here, instead, the Department chose suspension of Dr. Burton’s nursing license — without detailing why a host of other options at its disposal would be insufficient. By way of example, the Department could have ordered her to submit to drug testing if she desired to practice pending final resolution; or, it could have ordered her to have clearance from the Intervention Project for Nurses. The Department thus failed to provide for the least restrictive and narrow option available to it; the emergency suspension must therefore be quashed. See Nath, 100 So.3d at 1276 (quashing emergency suspension of acupuncturist accused of sexual misconduct with two patients; emergency order could have provided for supervised patient sessions); Machiela v. State, Dep’t of Health, Bd. of Optometry, 995 So.2d 1168, 1169 (Fla. 4th DCA 2008) (quashing emergency suspension of optometrist who pled guilty to indecent exposure, for exposing himself to minor patients during eye examinations, as optometrist entitled to “less restrictive, but equally effective, means to protect the public”; e.g., parental supervision of exams).

Ultimately, the Department may well be able to restrict, suspend, or revoke Dr. Burton’s license — after a full hearing, affording her an opportunity to be heard and defend herself against the Department’s contentions. We make no comment as to this subject. But, summary, emergency suspension pending this final resolution is different, and requires the Department meet a high burden. Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So.2d 669 (Fla. 1st DCA 2005). Here, the Department has not.

Accordingly, we GRANT the petition for review, and QUASH the Emergency Suspension Order.

VAN NORTWICK, J., concurs, and OSTERHAUS, J., dissents.

OSTERHAUS, J.,

dissenting.

I think the Department of Health has adequately stated the facts and reasons underlying its emergency suspension of Petitioner’s nursing license and its conclusion that she presents an immediate danger to public health, safety, and welfare. So I would deny her petition.

With respect for my colleagues’ views, I do not see “a host of other options” for the Department to deal with nurses who have a multi-year history of abusing painkilling opioids and will not accede to drug screening or intervention efforts. Petitioner has shunned accountability. In fact, both of the other options suggested by the majority opinion — conditioning Petitioner’s license on drug testing pending final resolution and ordering her to have clearance from the Intervention Project for Nurses (IPN) — resemble the Department’s basic conclusion to suspend her license, in part, because Petitioner has not cooperated with available testing or monitoring options. The Department concluded that Petitioner “is not monitored by IPN” and that it has no other restriction available to ensure that she is sober.

I think the Department has met the high factual burden for its emergency suspension order by finding specifically that Petitioner:

• abused an addictive opioid drug for many years;
• received the drug through a doctor with whom she once had a romantic relationship and who wrote her multiple prescriptions at a time for many years, often without an exam;
• filled prescriptions for the drug more than 130 times in the 22-month period leading up to a sheriffs department investigation in early 2012 (and admittedly filled these prescriptions at different pharmacies so that she could “avoid detection”);
• likely had the drug in her system while treating patients (along with another sedation-causing drug that Petitioner took twice daily);
• declined every opportunity to provide urine and hair samples to show that she no longer used opioid medications or illicit drugs; and
• has not contacted or availed herself of help from the IPN.

Based on these facts, the Department concluded that an immediate suspension of Petitioner’s nursing license was necessary because she could not practice nursing with reasonable skill, safety, mental alertness, and emotional stability. And that, in her condition, Petitioner was very likely to cause harm to the health, safety, and welfare of patients. Under these circumstances, I see no legal problem with the Department’s decision to suspend her license for the time being.

- It bears emphasizing that Petitioner ultimately retains the opportunity to keep her nursing license after a full proceeding in her case, which must “be promptly instituted and acted upon.” § 120.60(6)(c), Fla. Stat. Emergency suspension is meant only as an interim solution addressing immediate dangers until a full hearing can be completed. I would deny her petition.

      . Ms. Burton, while maintaining her license as a registered nurse, recently received her medical degree in osteopathic medicine.


author: LAGOA, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. JOHN S. VIRGA, D.C., P.A., a/a/o Martha Gaviria, Respondent.
    No. 3D13-558.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Thomas L. Hunker, Miami, for petitioner.
    Marlene S. Reiss, Miami, for respondent.
    Before LAGOA, SALTER and LOGUE, JJ.
   CONFESSION OF ERROR

LAGOA, J.

In this petition for certiorari, the Petitioner, United Automobile Insurance Company (“United”), argues that the circuit court, in its appellate capacity, departed from the essential requirements of the law in denying its motion for appellate attorney’s fees under the proposal for settlement statute, section 768.79, Florida Statutes (2012). Respondent concedes, and we agree, that the circuit court should have awarded United appellate attorney’s fees. Accordingly, we grant the petition.

In the appellate proceedings before the circuit court, the Respondent conceded that the motion should be granted. The appellate division, however, concluded that United was not entitled to recover its appellate attorney’s fees because it failed to demonstrate a substantive basis for the fees. In reaching this conclusion, the circuit court relied on Progressive Express Insurance Co. v. Med-Union Medical Center, Inc. a/a/o DeSouza, 18 Fla. L. Weekly Supp. 1113a (Fla. 11th Cir.Ct. Sept. 22, 2011), another opinion of the circuit court denying appellate attorney’s fees, which held that the words “pursuant to a policy of liability insurance” in section 768.79(1) require a defendant-insurer “to refer to the policy provision providing the substantive basis for fees.” The circuit court thus concluded, based on DeSouza, that United’s motion for appellate attorney’s fees was insufficient because it did not reference a provision of the insurance policy providing for an award of attorney’s fees. The instant petition ensued.

“[W]hen a district court considers a petition for second-tier certiorari review, the ‘inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,’ or, as otherwise stated, departed from the essential requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)).

In the petition before us, the Respondent concedes that the circuit court’s conclusion departed from the essential requirements of the law. We agree. The circuit court applied the incorrect law, namely an inapplicable clause of section 768.79(1). The statute provides, in pertinent part:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.

§ 768.79(1), Fla. Stat.

The circuit court held that the words “pursuant to a policy of liability insurance” in section 768.79(1) require a defendant-insurer to refer to the policy provision providing the substantive basis for fees. However, this language relied upon by the circuit court merely refers to third-party actions where the insurer seeks to recover attorney’s fees based on an insurance policy provision requiring the insurer to provide a legal defense for its insured. Section 768.79(1) does not require a policy provision regarding attorney’s fees in actions where, as here, the insurer is the defendant, incurring attorney’s fees on its own behalf. § 768.79(1), Fla. Stat. (“In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him ....”) (emphasis added). In such cases, “section 768.79 creates an independent, substantive, and statutory basis for the award of attorney’s fees when the requirements of the statute have been met.” DuPont Builders, Inc. v. Baker, 987 So.2d 146, 147 (Fla. 2d DCA 2008). Therefore, the circuit court, acting in its appellate capacity, should have awarded United appellate attorney’s fees, pursuant to section 768.79. The failure to do so was a departure from the essential requirements of law.

Accordingly, we grant the petition for writ of certiorari, issue the writ and quash the circuit court’s order denying United’s motion for appellate attorney’s fees under the proposal for settlement statute. If the proposal for settlement statute ultimately is satisfied, then United shall be entitled to recover its appellate costs and attorney’s fees. We remand the case to the circuit court with instructions to enter an order on United’s motion consistent with this opinion.

Petition for Writ of Certiorari granted; order quashed; and remanded with instructions.


text:
    O. T., Father of R. T., O.T. and S. T., minor children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-1234.
    District Court of Appeal of Florida, First District.
    July 24, 2013.
    Jeffrey L. Barrett, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children’s Legal Services, Department of Children and Families, Jacksonville; Kelley Schaeffer, Appellate Counsel Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

The Appellant did not preserve any issues for appeal of the order terminating his parental rights, because he did not move for a judgment of dismissal below, either at the close of the Department’s case or at the close of his own. See J.F.S. v. Dep’t of Children & Families, 100 So.3d 784 (Fla. 1st DCA 2012); J.M. v. Florida Dep’t of Children & Families, 38 So.3d 236 (Fla. 1st DCA 2010); K.J. v. Dep’t of Children & Families, 33 So.3d 88 (Fla. 1st DCA 2010); J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002).

Because the Fourth and Fifth District Courts of Appeal disagree that a parent must preserve issues for appellate review via motion for judgment of dismissal, we certify conflict with R.P. v. Dep’t of Children & Families, 49 So.3d 339 (Fla. 5th DCA 2010); and H.D. v. Dep’t of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007), review dismissed, 985 So.2d 1059 (Fla.2008).

AFFIRMED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.