text:
    Aaron MARSH, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-2520.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Roderick D. Vereen, for petitioner.
    Bill McCollum, Attorney General, and Rolando A. Soler and Magaly Rodriguez, Assistant Attorneys General, for respondent.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Aaron Marsh (“Marsh”) petitions this Court for writs of prohibition and habeas corpus and asserts that he was not in lawful custody under the terms of the Jimmy Ryce Act when the State initiated commitment proceedings against him. Because we conclude that Marsh was in lawful custody when the State initiated the commitment process on April 19, 1999, we deny the petitions.

As the Florida Supreme Court stated in Larimore v. State, 2 So.3d 101, 107-08 (Fla.2008):

[T]he Legislature appears to have specifically contemplated that an individual would be lawfully in the State’s custody when civil commitment proceedings are commenced under the Act. The Act provides that the commitment process is initiated by the “agency with jurisdiction.” This is done in one of two ways-either by giving notice to the multidisci-pliua'ry team and state attorney under section 394.913(1), Florida Statutes (2004), which, begins the detailed process under that section, see § 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that person’s “immediate release from total confinement” under section 394.9135(1), Florida Statutes (2004).

(Emphasis added; citations and footnote omitted).

Here, it is undisputed that the commitment process was initiated on April 19, 1999, when the Department of Corrections provided written notice to the Assistant Secretary for Mental Health, Department of Children and Family Services, and to the state attorney, stating that Marsh appeared to be a sexually violent predator, and that he was scheduled for release from incarceration. See § 916.33, Fla. Stat. (Supp. 1998) (renumbered as section 394.913, and amended by ch. 99-222, § 6 at 1377, Laws of Fla.). It is further undisputed that Marsh was in lawful custody on April 19, 1999 — the date the commitment process was initiated. See Larimore, 2 So.3d at 110-11 (concluding that “the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135”). Accordingly, Marsh is not entitled to the requested relief.

Petitions denied.

      . As Marsh was serving a sentence in the custody of the Department of Corrections ("DOC”), DOC was the "agency with jurisdiction” pursuant to section 394.912(1), Florida Statutes (2008).


source: Caselaw Access Project

author: LAGOA, Judge.

license: Public Domain

text:
    EASTERN ATLANTIC REALTY AND INVESTMENT INC., a Florida corporation, Appellant/Cross-Appellee, v. GSOMR LLC, and Biscayne Joint Venture, Ltd., Appellees/Cross-Appellants.
    Nos. 3D06-685, 3D06-1839.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Rehearing Denied Aug. 20, 2009.

      Heller & Chames; Jay M. Levy, for appellant/cross-appellee.
    Adorno & Yoss and Jack R. Reiter and Alan J. Perlman, for appellees/cross-appel-lants.
    Before RAMIREZ and LAGOA, JJ., and ROBERT J. PLEUS JR., Senior Associate Judge.
   LAGOA, Judge.

Eastern Atlantic Realty and Investment Inc. (“Eastern”) appeals from a final judgment determining it was not entitled to a real estate brokerage commission. Biscayne Joint Venture, Ltd. (“BJV”) appeals from a final order denying an award of attorneys’ fees and costs. The appeals have been consolidated. For the reasons set forth below, we affirm the trial court’s final judgment against Eastern, and we reverse the trial court’s denial of attorneys’ fees and costs.

I. FACTUAL AND PROCEDURAL HISTORY

BJV, the owner of property located in Miami-Dade County, listed its property for sale with a broker, Blue Estate Realty. The property, however, was subject to a right of first refusal provision contained in a lease agreement with the tenant, Biscayne Rehabilitation Institute (“BRI”)

Eastern, a commercial real estate broker, submitted a purchase and sale agreement on behalf of GRO Capital, LLC (“GRO”) for the property (hereafter the “GRO agreement”), which contained the following provision:

This agreement shall be subject to the right of first refusal to purchase the property provided for under that certain lease agreement dated April 7, 1995 between Biscayne Rehabilitation Institute [“BRI”] and United of Omaha Life Insurance Company, as subsequently amended (the “BRI Lease Agreement”).

Under the terms of the GRO agreement, the investigation period was to commence upon BRI’s waiver of the right of first refusal, and GRO was required to provide an additional $95,000.00 deposit upon BRI’s waiver. The GRO agreement further stated that Blue Estate Realty and Eastern were deemed the Seller’s agents and the Seller agreed to pay Blue Estate Realty and Eastern each a three percent commission of the purchase price.

As required by its lease, BJV informed BRI of the GRO agreement. BRI subsequently exercised its right of first refusal and delivered to BJV its own offer to purchase the property. BRI’s offer included the same purchase price, closing date, and deposit as set forth in the GRO agreement. BRI’s offer, however, did not include a commission to Eastern.

BJV rejected BRI’s offer, and BRI ultimately filed a declaratory action against both BJV and GRO, as well as a lis pen-dens on the property. The declaratory action sought a judicial determination as to whether BRI had complied with the lease’s right of first refusal provision and was therefore entitled to purchase the property. GRO filed a cross-claim against BJV seeking declaratory relief as to its rights under its agreement with BJV.

After approximately ten months of litigation, the parties exchanged releases and entered into a Global Settlement Agreement containing the following provisions: (1) BRI acquired the right to purchase the property; (2) all litigation between BRI and BJV ceased; (3) GRO received $50,000 in exchange for its release and extinguishment of any rights under the agreement between GRO and BJV; and (4) GRO received a recordable right of first refusal.

BRI subsequently assigned its right to purchase the property to GSOMR, LLC (“GSOMR”), an entity formed to purchase and manage the property. GSOMR purchased the property pursuant to a Purchase and Sale Agreement that contained terms different from those contained in either the GRO or the BRI agreement. Indeed, GSOMR paid more than $300,000 for the property. Moreover, unlike the GRO agreement, the new purchase and sale agreement required GSOMR to pay all the closing costs, did not allow retention of deposits, contained a $5,000.00 a day penalty to extend the closing, and did not provide for proration of real estate taxes.

At closing, BJV’s listing broker, Blue Estate Realty, was paid slightly less than the three percent commission required under the Listing Agreement. When Eastern demanded a commission payment from BJV relating to GSOMR’s purchase, BJV and GSOMR filed suit against Eastern for tortious interference with a business and contractual relationship and for declaratory relief. Eastern, in turn, sued BJV for breach of agreement and quantum meruit. The cases were consolidated.

Prior to trial, BJV made a Proposal for Settlement (the “proposal”) for $20,000 to resolve:

[A]ll claims asserted or that could have been asserted by Eastern against BJV and/or GSMOR [sic], LLC in these consolidated actions and all claims, if any, asserted or that could have been asserted by BJV and/or GSMOR [sic], LLC against Eastern in these consolidated actions.

The proposal required that “[u]pon acceptance of this proposal and payment of $20,000.00, Eastern will immediately dismiss its claims against BJV in this action and BJV and GSOMR, LLC will immediately dismiss their claims against Eastern in this action.” The proposal further required the parties to execute and exchange mutual general releases “in favor of the other, including their respective officers, director [sic], employees, affiliated companies, parents, subsidiaries, successors, predecessors, attorneys, accountants and agents, for any and all claims, including claims for attorney’s fees and costs, arising out of the matters which are the subject of this action.” The proposal identified BJV as the party making the offer to pay Eastern. $20,000. Eastern declined BJV’s offer.

Following a bench trial, the trial court ruled against Eastern, finding that it was not the procuring cause of the transaction with GSOMR and could not recover a commission. BJV and GSOMR moved for attorneys’ fees and costs, pursuant to Florida Rule of Civil Procedure 1.442 and sections 768.79 and 57.041, Florida Statutes (2005), based on the proposal. The trial court denied the motion for fees and costs. In its written order, the trial court concluded that the proposal was sufficiently ambiguous to preclude its enforceability and that the proposal, as drawn, constituted a joint proposal on behalf of BJV and GSOMR that failed to apportion the amount attributable to each party. These appeals ensued.

II. ANALYSIS

A. APPEAL

On appeal, Eastern contends that it was the procuring cause of the agreement between GSOMR and BJV. According to Eastern, BJV would not have sold the property to BRI but for the fact that GRO’s agreement triggered BRI’s exercise of its right of first refusal. We find Eastern’s argument without merit and conclude that competent, substantial evidence supports the trial court’s finding that Eastern was not the procuring cause of the sale of the property.

Paragraph 15 of the GRO agreement explicitly provided for a commission to Eastern only “with respect to the purchase and sale of the property as contemplated under the agreement.” Other than paragraph 15, no other contractual provision creates an entitlement to a commission payment to Eastern. This case is therefore distinguishable from City Nat'l Bank of Miami Beach v. Lundgren, 307 So.2d 870 (Fla. 3d DCA 1975), where the owner agreed to pay the broker a commission for finding any purchaser that was ready, willing and able. In Lundgren, this Court stated, in dicta, that the owner was required to pay a commission regardless of whether the buyer was a third party brought by the broker or the holder of the right of first refusal.

Here, the GRO agreement does not provide for payment of a commission in the event of BRI’s exercise of its right of first refusal or a default or an abandonment of the agreement by the parties. Where contractual provisions are clear and unambiguous, these terms control and must be given their plain and ordinary meaning. See Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So.2d 1159, 1161 (Fla. 3d DCA 2008). Given that paragraph 19 of the GRO agreement states that the agreement is “the entire agreement between the parties with respect to the transaction contemplated herein, and it supersedes all prior understandings or agreements between the parties,” Eastern cannot recover other than as contemplated by the GRO agreement. Indeed, no binding agreement was formed between GRO and BJV as the initial condition precedent — BRI’s waiver — never occurred. See Mitchell v. DiMare, 936 So.2d 1178 (Fla. 5th DCA 2006) (where a agreement for the sale of real property expressly states that it is subject to a right of first refusal, no binding agreement can be formed unless the right of first refusal is not exercised). Moreover, GRO relinquished its rights under the GRO agreement pursuant to a global settlement agreement. Because the “purchase and sale of the property as contemplated under the [GRO] agreement” did not occur, Eastern is not entitled to a commission.

Accordingly, because competent, substantial evidence supports the trial court’s finding that Eastern was not the procuring cause of the subsequent sale to GSOMR, we affirm the trial court’s entry of final judgment as to Eastern.

B. CROSS-APPEAL

We now turn to BJV’s cross-appeal in which it contends that the trial court erred in denying its motion for fees and costs.

1. APPLICATION OF SECTION 768.79 and RULE l.U%

Section 768.79, Florida Statutes (2007), provides for an award of attorneys’ fees and reasonable costs in any civil action for damages where a defendant files an offer of judgment that is not accepted by the plaintiff within thirty days. Of relevance to the cross-appeal, section 768.79(2) provides that an offer must: (1) be in writing and state that it is being made pursuant to the section; (2) name the party making it and the party to whom it is being made; (3) state with particularity the amount offered to settle a claim for punitive damages, if any; and (4) state its total amount.

Florida Rule of Civil Procedure 1.442 implements section 768.79. Pursuant to this Rule, a proposal for settlement must contain the following information:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether the attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).

Fla. R. Civ. P. 1.442(c)(2).

Moreover, subsection (c)(3) of the Rule states:

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.

On cross-appeal, BJV raises two issues. We find both issues meritorious and address each separately.

2. BJV’S PROPOSAL FOR SETTLEMENT WAS NOT AMBIGUOUS

BJV first asserts that the trial court erred in finding that the proposal was sufficiently ambiguous to preclude its enforceability. We agree with BJV. In concluding that the proposal was ambiguous, the trial court relied on State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006), and Sink v. Emerald Hill Owners Ass’n, Inc., 903 So.2d 1047 (Fla. 1st DCA 2005). Neither supports the trial court’s conclusion regarding the specific proposal at issue here.

In Nichols, two pending claims existed at the time the settlement proposal at issue in that case was made: a PIP claim against State Farm and an uninsured motorist claim arising out of the same accident. The Florida Supreme Court held that the proposal for settlement was ambiguous because the release was unclear as to whether or not it included the second claim.

In this case, no such ambiguity exists. The language of the proposed release was specifically limited to damages arising out of the underlying consolidated action. No other actions were pending between the parties. Moreover, the proposal clearly identified the parties to be released and the scope of that release.

While Rule 1.442 requires a proposal for settlement to state with particularity any relevant conditions and all non-monetary terms, the Rule “merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008), review denied, 5 So.3d 669 (Fla.2009) (quoting Nichols, 932 So.2d at 1079). Moreover, a proposal for settlement does not require more than “a summary of the proposed release.” Nichols, 932 So.2d at 1079.

Here, BJV’s proposal was clear and unambiguous. In exchange for Eastern’s dismissal of its claims against BJV, Eastern would receive $20,000 and BJV and GSOMR would dismiss their claims against Eastern related to the pending action. Further, BJV, GSOMR, and Eastern would execute mutual general releases in favor of the other for any and all claims, including claims for attorneys’ fees and costs that arose out of the subject of this action. Eastern was not required to release all rights to sue the defendants based on any causes of action accruing in the-future. We therefore find that the trial court erred in finding that the settlement proposal was ambiguous.

3. BJV’S PROPOSAL FOR SETTLEMENT WAS NOT JOINTLY MADE

With regard to the second issue raised in its cross-appeal, BJV contends that the trial court erred in concluding that the proposal was jointly made. In response, Eastern contends that a “joint” proposal was created by the identification of both BJV and GSOMR in the body of the proposal. We conclude, that the trial court erred in finding that the proposal constituted a joint proposal on behalf of BJV and GSOMR that failed to apportion or differentiate the amount offered between them. While both BJV and GSOMR are identified in the proposal, the proposal explicitly states that BJV was the party making the offer to pay Eastern $20,000. Indeed, as Eastern did not seek any affirmative relief against GSOMR, no reason existed for GSOMR to offer payment of any monies to Eastern.

Moreover, the trial court’s reliance on Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), is misplaced. In Willis Shaw, the proposal for settlement identified both plaintiffs as expressly extending the offer. Their joint proposal, however, did not specify the amounts and terms each plaintiff was requesting. In concluding that “[a] strict construction of the plain language of rule 1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion the amounts attributable to each offerer,” the Florida Supreme Court held that “under the plain language of rule 1.442(c)(3), an offer from multiple plaintiffs must apportion the offer among the plaintiffs.” Id. at 278-79. Where “two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party.” Allstate Ins. Co. v. Materiale, 787 So.2d 173, 175 (Fla. 2d DCA 2001). The plain language of Rule 1.442(c)(3) only requires apportionment if the proposal is made jointly by several parties. Because the proposal at issue here was made solely by BJV, no apportionment between BJV and GSOMR was required.

Accordingly, we affirm the trial court’s finding that Eastern was not the procuring cause of the sale and was not entitled to a broker’s commission. As to the cross-appeal, we reverse and remand for a determination of BJVs reasonable attorneys’ fees and costs.

Affirmed in part and reversed in part.

      . Pursuant to the Listing Agreement, Blue Estate Realty was to be paid a 3% commission.

      . Paragraph 7 of BRI's Lease required BRI to exercise its right of first refusal by providing BJV with written notice "at the same price and on the same terms” as the proposed sale.

      . The agreement defined BJV as "Seller” and GRO as "Buyer."

      . Specifically, paragraph 15 of the GRO agreement provided:
      Seller hereby warrants to the Buyer that Seller has not engaged or dealt with any broker or agent other than Blue Estate Realty and Eastern Atlantic Realty & Investments, Inc. with respect to the purchase and sale of the Property as contemplated by this Agreement. Seller shall indemnify and hold the Buyer harmless against any and all liability, cost, damage and expense (including, but not limited to, attorneys' fees and costs of litigation and appeals) Buyer shall ever suffer or incur because of any claim by any broker or agent claiming to have dealt with the Seller, whether or not meritorious, for any commission or other compensation with respect to this Agreement or to the purchase and sale of the Property in accordance with this Agreement. Seller acknowledges that Blue Estate Realty and Eastern Atlantic Realty & Investments are the agents of Seller, and Seller agrees to pay such agents each a commission of 3% of the Purchase Price.

      . Eastern did not file suit against GSOMR.

      . On cross-appeal, BJV admits that the trial court did not err in denying fees to GSOMR as the proposal was made only on behalf of BJV. Because the proposal was not made by both BJV and GSOMR to Eastern, GSOMR was not entitled to fees and is not appealing the trial court's denial.

      . A trial court’s determination as to whether a broker was the procuring cause of the sale will not be disturbed on appeal if supported by competent, substantial evidence. Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1189 (Fla.2005); Brickell Bayview Real Estate, Inc. v. Cooper, 691 So.2d 1094 (Fla. 3d DCA 1997).

      . Paragraph 1 of the GRO agreement states that "[sjubject to all of the terms and conditions of this Agreement, the Seller [BJV] will sell to the Buyer [GRO] and the Buyer [GRO] will purchase from the Seller [BJV] the Property, together with all appurtenances, rights, easements, and rights of way incident thereto.”

      . In determining whether a proposal for settlement comports with Rule 1.442 and section 768.79, appellate courts apply the de novo standard of review. Miami-Dade County v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006).

      . Because the Sink decision recites no facts that reveal how the proposal in that case was sufficiently ambiguous to preclude its enforceability, Sink offers no guidance as to the specific proposal at issue here.


author: CIKLIN, J.

text:
    Randy W. McLAUGHLIN, Appellant, v. Tina Rae DEBORD, Appellee.
    No. 4D08-2253.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.

      Steven R. Brenners, Coral Springs, for appellant.
    Jason A. Rosner, Miami, for appellee.
   CIKLIN, J.

Appellant, Randy McLaughlin (“father”), appeals a final judgment of paternity which he asserts, among other things, improperly denied his request for attorney’s fees and ordered child support based on incorrect income figures. Most of the issues he raises are premature and not ripe for appellate review.

The father and Appellee, Tina Rae Debord (“mother”), cohabited from December 2005 to May 2007 during which time a child was born to the couple. In May 2007, the father left the home and filed a petition for determination of paternity, asking for shared parental responsibility and that he be designated the primary residential parent. The mother filed a counterpetition and asked that the primary physical residence be with her. Following a final hearing, the trial court entered its (1) Final Judgment of Paternity and (2) Supplemental Findings on Final Judgment of Paternity and ordered shared parental responsibility for the parties’ minor child and required compliance with a “timesharing schedule.” The court’s order indicated that the primary residential parent was “undesignated.” During the final hearing the father orally requested rotating custody but the trial court acknowledged in its final judgment that there had been no claim for rotating custody pled by the father.

Additionally, the trial court ordered the parties to pay proportional child support and specifically ordered the father to pay retroactive child support from October 1, 2007, through the date of the final judgment. Based upon child support guidelines worksheets submitted by the parties, the court found the mother’s annual income to be $118,020 and the father’s annual income to be $89,265. However, the court further held, “Counsel for Mother/Respondent shall complete and provide to the Court within (7) days a child support guideline worksheet based on wage information in the party’s financial affidavits, health insurance and timesharing findings in this judgment.” Finally, the court granted the mother’s claim for attorney’s fees and denied the father’s attorney fee claim, but stated that the award of attorney’s fees to the mother was “subject to meeting criteria in Chapter 61.”

The father now appeals and argues that the trial court abused its discretion'when it “implicitly awarded primary custody of the minor child” to the mother “without making even minimum findings pursuant” to Florida law. We find this argument to be without merit and affirm.

The father further contends that the trial court erred when it denied his request for attorney’s fees and “improperly awarded attorney’s fees to the mother.” As to the father’s appeal of the attorney’s fee award to the mother, we believe that the father’s appeal is premature because the court stated that any award was “subject to meeting the criteria in Chapter 61.” Only after a further hearing will the parties be able to assess the legal sufficiency of such an award. We take this opportunity to caution the trial court that in determining an award of attorney’s fees, it should consider the provisions of section 742.045, Florida Statutes and the factors discussed in Rosen v. Rosen, 696 So.2d 697 (Fla.1997). It is also for this reason that the trial court’s outright denial of the father’s claim for attorney’s fees is premature. As such, that portion of the lower court’s order is reversed.

The father also argues on appeal that the trial court abused its discretion when it ordered child support amounts to be calculated based upon what the father claims are erroneous findings as to the gross incomes of the parties. The father points out that the court found the mother’s income to be $118,020 which, he contends, represented the mother’s 2007 income. He asserts that the court should have based its calculation on the income listed on the mother’s financial affidavit at the time of the final hearing, which reflected income of $10,765 per month or $129,180 annually. We believe this issue is also premature in that the trial court ordered “Counsel for the Mother/Respondent shall complete and provide to the Court within (7) days a child support guideline worksheet based on wage information in the party’s financial affidavits, health insurance and timesharing findings in this judgment.” Clearly the trial court intended for there to be further consideration of this matter and there is no indication that the trial court will accept the calculation that has yet to be presented by counsel for the mother.

We have considered the retroactive child support issue raised by the father and find that it has no merit.

Reversed in part and remanded for further proceedings consistent with this opinion.

GROSS, C.J., and WARNER, J., concur.

      . Section 744.301, Florida Statutes (2007), provides: "The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.” Section 61.046(3), Fla. Stat. (2007), defines “Custodial parent” or "primary residential parent” as "the parent with whom the child maintains his or her primary residence." Custodial parents have residential custody whereas noncustodial parents have visitation with the child. See generally Gumberg v. Gumberg, 755 So.2d 710 (Fla. 4th DCA 1999). Section 61.046 has since been amended to eliminate references to the "custodial” or "primary residential” parent. Ch. 2008-61, § 2, Laws of Fla., effective October 1, 2008.

      . Rotating custody is divided custody where each parent is alternately given an equal amount of custody of the child. See generally Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980).

      . While we affirm the trial court’s decision to order the father to pay past due child support from October 1, 2007, we note that a specific amount has yet to be determined because this too was subject to further consideration by the lower court judge based on documentation that has yet to be provided by the parties.


author: SAWAYA, J.

text:
    TRAVEL EXPRESS INVESTMENT INC., Appellant, v. AT & T CORP., Appellee.
    No. 5D08-2504.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2009.

      Philip K. Calandrino, of Hendry, Stoner, Calandrino & Brown, P.A., Orlando, for Appellant.
    Paul R. Franke, III and Tasha J. Power, of Franke Greenhouse List & Lippitt LLP, Denver, pro hac vice, and Robert Hoofman of Rush, Marshall, Jones & Kelly, P.A., Orlando, for Appellee.
   SAWAYA, J.

The issue we must resolve is whether a forum selection clause, which provides that “[t]he parties consent to the exclusive jurisdiction of the courts located in New York City, USA,” is mandatory or permissive. This issue comes to us via an order denying a motion to dismiss for improper venue filed by Travel Express Investment Inc. in a breach of contract action brought against it by AT & T in Seminole County, Florida. The trial court concluded that the clause is permissive, denied the motion, and allowed the litigation to proceed. We conclude, however, that the clause is mandatory and reverse the order under review.

The forum selection clause is an integral part of a contract prepared by AT & T for its customer, Travel Express. That clause is contained imparagraph 13.6 of the parties’ executed contract, which provides:

The construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of New York, excluding its choice of law rules, and applicable laws and regulations of the United States of America. The United Nations Convention on Contracts for International Sale of Goods shall not apply. The parties consent to the exclusive jurisdiction of the courts located in New York City, USA.

(Emphasis added). It is the emphasized portion of the forum selection clause that is the critical provision and it will, therefore, be the focus of our analysis. Because we interpret a contractual provision, our standard of review is de novo. Shelby Homes at Millstone, Inc. v. DaSilva, 983 So.2d 786 (Fla. 4th DCA 2008); Golden Palm Hospitality, Inc. v. Stearns Bank Nat. Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004).

In order to ‘“provide a degree of certainty to business contracts by obviating jurisdictional struggles’ ” and to give the parties to a contract the ability “ ‘to tailor the dispute resolution mechanism to their particular situation,’ ” the Florida courts recognize the right of contracting parties to select and agree on a forum in which to resolve future disputes. Golden Palm Hospitality, 874 So.2d at 1234 (quoting Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986)); see also Texas Auto Mart, Inc. v. Thrifty Rent-A-Car Sys. Inc., 979 So.2d 360, 362 (Fla. 5th DCA 2008) (“Florida law authorizes parties to stipulate in their contract to the venue that will be used to interpret and enforce their contract.”); Weisser v. PNC Bank, N.A., 967 So.2d 327 (Fla. 3d DCA 2007). Forum selection clauses generally fall into two categories: mandatory and permissive.

Mandatory forum selection clauses require that suit be filed in the forum named in the clause. Golden Palm Hospitality, 874 So.2d at 1236. “As a general principle, a trial court must honor a mandatory forum selection clause in a contract in the absence of a showing that the clause is unreasonable or unjust.” Aqua Sun Mgmt., Inc. v. Divi Time Ltd., 797 So.2d 24, 24-25 (Fla. 5th DCA 2001) (citing Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999)); see also Texas Auto Mart, 979 So.2d at 362 (“If a venue selection clause unambiguously mandates that litigation be subject to an agreed upon venue, then it is reversible error for the trial court to ignore the clause.”). On the other hand, permissive forum selection clauses are essentially a “consent” to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum. Shoppes Ltd. P’ship v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002); Mgmt. Computer Controls, Inc. v. Charles Perry Const., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999); see also Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273 (Fla.1987).

This court recently reiterated the test to be applied when determining whether a clause is permissive or mandatory:

The general test for determining whether a clause is mandatory or permissive is the use by the parties of language indicating “exclusivity.” Golden Palm Hospitality, 874 So.2d at 1236. “Absent such language, the clause will be considered permissive.” Id. If the forum selection clause “state[s] or clearly indicated] that any litigation must or shall be initiated in a specified forum,” then it is mandatory. Shoppes L.P. v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002). If, on the other hand, a venue clause is determined to be permissive, then it is “nothing more than a consent to jurisdiction and venue in the named forum and do[es] not exclude jurisdiction or venue in any other forum.” Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc, 894 So.2d 288, 289 (Fla. 3d DCA 2005); see Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274-75 (Fla.1987).

Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007); see also Shoppes Ltd.

The clause in the instant case specifically provides that the parties consent to “the exclusive jurisdiction” of the New York courts. This exclusivity provision clearly makes this clause unambiguous and mandatory. Moreover, we see nothing in the record to suggest that enforcement of this clause would be unfair or unjust. We are not alone in our conclusion. An almost identical clause was recently addressed in Weisser v. PNC Bank, N.A., 967 So.2d 327 (Fla. 3d DCA 2007). There, the clause under consideration stated, “The parties further consent to the exclusive jurisdiction of either the United States District Court for the District of Kansas or the District Court of Johnson County, Kansas, .... ” Id. at 329 (emphasis omitted). The Third District Court concluded that the clause was mandatory and explained:

In the instant case, the mere use of the word “consent” does not render the forum selection clause in the Application permissive where the forum selection clause includes words of exclusivity specifying the exclusive jurisdiction of specified courts in Kansas for the “judicial resolution of any disputes arising under, or in anyway related to, the Application and Commitment.”
We, therefore, find that the forum selection clause in the Application is unambiguous and contains words of exclusivity, and that the clause is mandatory, not permissive. See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) (holding that forum selection clause, which provides that “[t]he parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto,” was mandatory because the use of the word “the” refers to only one “proper venue,” to the exclusion of other venues) (emphasis added); see also Regal Kitchens, 894 So.2d at 291 (holding that where a forum selection clause lacks mandatory language or words of exclusivity to show that venue is proper in only the specified forum, the clause is permissive, not mandatory).

Id. at 331-32. We agree with this rationale.

Accordingly, we reverse the order denying the motion to dismiss for improper venue and remand for entry of an order dismissal.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . The relevant facts of the underlying litigation involving the contractual dispute between the parties are not relevant to our determination of the specific issue before us, and so we will not discuss them.


author: PER CURIAM.

text:
    James T. LEE, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-1405.
    District Court of Appeal of Florida, First District.
    June 29, 2009.
    Rehearing Denied Aug. 25, 2009.

      James T. Lee, pro se, Appellant.
    Bill McCollum, Attorney General, and Kathleen Von Hoene, General Counsel, for Appellee.
   PER CURIAM.

DISMISSED. Surratt v. Freeman, 924 So.2d 905 (Fla. 1st DCA 2006); Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999)

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Minerva MIESES, Appellant, v. APPLEBEE’S and Chubb Group of Insurance Companies, Appellees.
    No. 1D08-4690.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    David M. Cohen, Miami, and Bill McCabe, Longwood, for Appellant.
    Beth J. Leahy .of Walton Lantaff Schroeder & Carson, LLP, Fort Lauder-dale, for Appellees.
   PER CURIAM.

Claimant appeals, and the employer/carrier (E/C) cross-appeals, the Judge of Compensation Claims’ (JCC) order on temporary benefits, penalties, and interest. Claimant’s argument has merit, and the E/C’s argument has merit in part.

Claimant filed multiple petitions for benefits (PFBs). The relevant PFBs for this opinion were filed May 4, 2004; May 5, 2004; and August 19, 2004. Respectively, these PFBs sought temporary benefits, penalties, and interest, from April 2, 2004, and continuing; April 1, 2004, and continuing; and September 18, 2003 (the date of accident), and continuing. On June 19, 2006, Claimant filed a single piece of paper “dismissing] all pending Petitions for Benefits.” Thereafter, Claimant filed three more PFBs, two of which requested temporary benefits, penalties, and interest, from the date of accident and continuing.

The JCC ruled on penalties and interest for the following time periods, as follows: Awarded penalties and interest for April 2 through 20, 2004; awarded temporary benefits and penalties and interest for May 1, 2004; denied penalties and interest for August 13 through 26, 2004; denied penalties and interest for July 27 through November 16, 2005; and awarded penalties and interest for March 31 through July 14, 2006.

On appeal, Claimant argues penalties and interest should have been granted for July 27 through November 16, 2005. Her argument has merit.

The record shows Claimant was eligible for temporary benefits from July 27 through November 16, 2005: No payments were made during that time; Claimant was not MMI during that time; and Claimant could work only sedentary jobs during that time. See Xerographics & Claims Ctr. v. Bender, 558 So.2d 514, 515 (Fla. 1st DCA 1990). Moreover, during that time period, her entitlement to temporary benefits was not barred by the 104-week limit. § 440.15(2)(a), (4)(b), Fla. Stat. (2003). As of July 27, 2005, Claimant had not yet received 104 weeks of temporary benefits (and payment of such benefits through November 16, 2005, would not have exhausted the 104-week “bank”). The fact that Claimant was never awarded temporary benefits for that time does not bar penalties and interest, because temporary benefits aré payable without an award, and were due regardless of any ruling. Consequently, late payment entitles Claimant to penalties and interest. See § 440.20(6), (8), Fla. Stat. (2003).

On cross-appeal, the E/C argues the pri- or voluntary dismissals barred the awards. The E/C’s argument has merit in part.

“A claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice of voluntary dismissal .... [A] second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or [PFB] previously the subject of a voluntary dismissal.” Fla. Admin. Code R. 60Q-6.116(2). The JCC declined to apply this “two-dismissal” rule, finding, “only a single notice of voluntary dismissal was served on June 19, 2006.”

The JCC’s reading of this rule is overly literal. The rule provides that “a [single] claim or petition” may be dismissed without prejudice. Logic suggests the second dismissal of that claim or petition would operate as an adjudication of denial. No rule precludes dismissing multiple claims by filing a single piece of paper; thus, Claimant’s filing contains multiple notices of voluntary dismissal. Consequently, the JCC erred in concluding, from the fact that only one piece of paper was filed to dismiss multiple claims, that rule 60Q-6.116(2) could not apply.

The two-dismissal rule bars the awards for the time periods of April 2, 2004, through April 20, 2004, and May 1, 2004. The dismissed PFBs of May 4, May 5, and August 19, 2004, included claims for temporary benefits, penalties, and interest, for those periods. Under the rule, Claimant’s second dismissal of these claims operated as an adjudication of denial of these claims. Consequently, the JCC erred in granting an award as to these time periods.

In contrast, the two-dismissal rule does not bar awards of penalties and interest for July 27 through November 16, 2005, and March 31 through July 14, 2006. Claimant’s voluntary dismissals were of PFBs filed before these time periods. It is impossible for PFBs that predated these time periods to have included claims for penalties and interest based on late payment of benefits due during these time periods, because Claimant could not have known the payments would be late. In other words, Claimant cannot seek penalties and interest for future, and, therefore, speculative, late payments.

Consequently, we reverse the awards pertaining to April 2 through 20, 2004, and May 1, 2004; we reverse the denial of penalties and interest for July 27 through November 16, 2005; and we affirm the award of penalties and interest for March 31 through July 14, 2006. All other aspects of the order on review are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

DAVIS, BROWNING and THOMAS, JJ., concur.

       The denial of penalties and interest due for late payments between August 13 and 26, 2004, is not challenged by either party.


author: THOMAS, J.

text:
    ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. Ebby W. LEWIS, Appellee.
    No. 1D08-4258.
    District Court of Appeal of Florida, First District.
    June 30, 2009.

      Jane Anderson and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellant.
    Glenn Cohen and Rebecca Cozart of Barnes & Cohen, P.A., Jacksonville, for Appellee.
   THOMAS, J.

Appellant, Allstate Property & Casualty Insurance Company (Allstate), appeals the trial court’s order granting a motion for new trial, arguing that the trial court overlooked or misapplied the principles specified in Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), and Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999). We agree, and reverse.

Facts

On July 17, 2004, Appellee was involved in a car accident. She was eventually referred to a specialist for her alleged injuries, including an annular tear in the lumbar spine. In April 2006, Appellee filed a complaint seeking compensatory damages for pain and suffering, mental anguish, loss of capacity, inconvenience, aggravation of a pre-existing injury, and medical costs, all under the uninsured/un-derinsured motorist coverage provision of her automobile insurance policy.

A trial was held in March 2008, resulting in a jury verdict in favor of Allstate. Ap-pellee moved for a new trial based solely on the argument that the testimony of Allstate’s medical expert unfairly surprised and prejudiced Appellee and confused the jury.

Dr. Von Thron, Allstate’s medical expert, examined Appellee and issued a report stating his medical opinion, diagnosis, and recommendation as part of a compulsory medical examination pursuant to rule 1.360, Florida Rules of Civil Procedure. Dr. Von Thron’s report stated that Appel-lee had no evidence of impairment, there was no evidence to substantiate her complaints, and her medical records were inconsistent because some indicated she began experiencing pain the day after the accident, while others indicated she did not have pain immediately after the accident. Dr. Von Thron issued supplemental reports after reviewing magnetic resonance images (MRIs) of Appellee’s lumbar spine, but he did not diagnose an annular tear.

Before trial, Appellee filed a motion in limine seeking to limit Dr. Von Thron’s testimony to his reported opinions. Although the trial court did not explicitly rule on the motion, it is apparent from the discussion before and during trial that the trial court and the parties understood the motion had been granted. Citing Suarez-Burgos, the trial court stated on the record that Dr. Yon Thron should not be allowed to offer opinions outside those contained in his report.

On direct examination, Dr. Von Thron testified that he routinely reads MRIs and reaches his own conclusions as to the diagnosis, but he would defer to a radiologist’s differing opinion; however, he opined there was no evidence in Appellee’s MRIs indicating she had an annular tear. On cross-examination, Appellee’s counsel asked Dr. Von Thron whether annular tears have a poor capacity for healing; Dr. Von Thron agreed, and testified that it was possible Appellee had an annular tear with no objectively identifiable symptoms. When asked if he was changing his opinion by deferring to a radiologist, Dr. Von Thron replied he was not. When shown Appellee’s MRIs, Dr. Von Thron again stated he did not see an annular tear; however, he also testified that it was possible he missed such a tear. Finally, Dr. Von Thron agreed that an automobile accident, such as Appellee’s, could cause an annular tear in the lumbar spine. On redirect examination, Dr. Von Thron testified that any back strain, including lifting, yard work and housework, can cause an annular tear. He reaffirmed his opinion that if Appellee had an annular tear, she would have reported an immediate onset of pain following the accident.

In the order granting a new trial, the trial court found Dr. Von Thron’s testimony violated the order in limine because he testified as to matters beyond the scope of his report. The trial court also found that Dr. Von Thron’s testimony improperly introduced the idea that if Appellee had an annular tear, it could have predated the accident and have been caused by housework or yard work. The trial court determined that Dr. Von Thron’s testimony deprived Appellee of a fair trial.

Analysis

Trial courts ordinarily enjoy broad discretion when addressing motions for new trial; however, the closer the issue comes to being purely legal in nature, the less discretion a trial court has. See Office Depot, Inc. v. Miller, 584 So.2d 587, 589-91 (Fla. 4th DCA 1991).

In Binger, the Florida Supreme Court announced the test that trial courts should apply in determining whether undisclosed testimony should be excluded as prejudicial to the opposing party:

[A] trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether the use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case.... If after considering these factors, and any others that are relevant, the trial court concludes that the use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

401 So.2d at 1313-14 (footnotes omitted). The Binger analysis should be applied where a medical expert changes his or her opinion, resulting in surprise and prejudice to the opposing party and necessitating a new trial. See Perryman, M.D., v. Crawford, 968 So.2d 83 (Fla. 4th DCA 2007); Belmont v. N. Broward Hosp. Dist., 727 So.2d 992 (Fla. 4th DCA 1999); Suarez-Burgos, 745 So.2d at 371; Office Depot, 584 So.2d 587.

The supreme court’s opinion in Binger is clear that testimony should be excluded only after the trial court determines it is prejudicial to the opposing party. A review of the record here indicates that the trial court did not consider the factors set out in Binger, which should have been a part of its exercise of discretion. Cf. Lugo v. Fla. E. Coast Ry. Co., 487 So.2d 321, 324 (Fla. 3d DCA 1986) (applying the Binger factors after determining the trial court failed to do so). Nevertheless, the record indicates that Appellee was not prejudiced by Dr. Von Thron’s testimony; Allstate did comply with the trial court’s order in limine; and Dr. Von Thron’s testimony did not disrupt or delay the proceedings.

We note that Appellee extensively cross-examined Dr. Von Thron, and that his prejudicial testimony was first elicited on cross-examination when Appellee asked Dr. Von Thron whether an annular tear could be caused by an automobile accident. The cross-examination was followed by redirect examination, during which Dr. Von Thron discussed other causes of annular tears. In addition, Dr. Von Thron examined Appellee and reviewed her MRI films approximately one year before trial, yet the motion in limine was not filed until the morning of trial. Although Appellee was entitled to rely upon Dr. Von Thron’s report pursuant to Florida Rule of Civil Procedure 1.360(b), Appellee had ample time to depose Dr. Von Thron if she suspected a substantial change in his opinion. Regardless, any prejudice to Appellee was cured by the trial court’s order limiting Dr. Von Thron’s testimony to the ultimate conclusions stated within his report.

Besides the trial court’s failure to consider the factors set out in Binger in determining whether Dr. Von Thron’s testimony should have been excluded, the trial court also misapplied the Fourth District’s holding in Suarez-Burgos. Contrary to the trial court’s oral ruling, Suarez-Burgos does not limit medical experts to the exact wording of their reports. The Suarez-Burgos court explained:

There is no requirement or need for the opposing party to take the deposition of every expert where the party has been provided a report pursuant to the mandatory requirements of Rule 1.360(b). Nor is it necessary to exhaustively question the expert to discover whether the expert has come to other significant opinions not expressed in the report. Indeed, such requirements would fuel the ever increasing cost of litigation. Thus, a litigant who receives a report should be confident the report lists all of the major conclusions of the examining expert.

745 So.2d at 371. Appellee was therefore justified in relying upon the ultimate, major conclusions Dr. Von Thron reached in his report. Limiting an expert’s testimony to the exact wording of his or her written report, however, would create an absurd result. Such reports often contain complex medical terminology, which requires extensive explanation.

Nevertheless, the situation in this case is factually distinguishable from the cases relied upon by the trial court and Appellee. This is not a situation where a medical expert changed his opinion either immediately before or during trial, or where the parties failed to disclose an expert’s opinion. See Perryman, M.D., 968 So.2d at 85; Belmont, 727 So.2d at 994; Suarez-Burgos, 745 So.2d at 370; Office Depot, 584 So.2d at 588. Florida Rule of Civil Procedure 1.360(b) requires only the disclosure of a “substantial reversal of opinion” after a doctor has submitted a report. Office Depot, 584 So.2d at 590-91 (emphasis added). There was no substantial change between Dr. Von Thron’s opinion contained in his report and his trial testimony.

After considering the record in light of the analysis in Binger, and our detei*mination that the trial court misapplied the holding in Suarez-Burgos, we conclude that the trial court’s order granting a new trial was an abuse of discretion.

Attorneys’ Fees

Below, Appellant made an offer of judgment to Appellee pursuant to section 768.79, Florida Statutes. After Appellant prevailed in obtaining a defense verdict, Appellant served its motion to tax costs and award fees based on the offer of judgment. Because the trial court granted Appellee’s motion for new trial, it denied as moot Appellant’s motion to tax costs and award fees.

Appellant now moves for an award of appellate fees based on its offer of judgment below and on Frosti v. Creel, 979 So.2d 912, 916 (Fla.2008). Because the trial court did not rule on the merits of Appellant’s motion for fees below, we remand with directions to the trial court to rule on the motion. The determination of whether Appellant is entitled to fees under section 768.79, Florida Statutes, is a question of law. See BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366, 368 (Fla. 4th DCA 2001) (stating that neither party was prejudiced by opponent’s change in position regarding application of Offer of Judgment statute “which involved only a question of law”); see also Abram v. Dep’t of Health, 13 So.3d 85 (Fla. 4th DCA 2009) (“ ‘[t]he courts of this state have consistently held that judicial interpretation of statutes ... are pure questions of law subject to the de novo standard of review.’ ”) (quoting State v. Sigler, 967 So.2d 835, 841 (Fla.2007)). We further note the compelling policy foundation of section 768.79, as Judge Gross noted in his concurring opinion in British Car Auctions:

The purpose of Section 768.79 is to lead “litigants to settle by penalizing those who decline offers that satisfy the statutory requirements.” Encouraging settlement lowers litigation costs for the parties and reduces the fiscal impact of litigation on the court system.... Early settlement of a case frees court time for the many other cases waiting to be heard.

802 So.2d at 371-72 (citations omitted).

Contrary to Appellee’s assertion below and on appeal, Appellant’s offer of judgment was not so vague that it could be construed as requiring Appellee to relinquish her right to bring suit for future causes of action unrelated to the subject matter of the instant case. In Ambeca, Inc. v. Marina Cove Village Townhome Ass’n, Inc., this court held that a defendant’s offer of judgment that proposed to settle all claims asserted in the plaintiff’s cause of action against defendant, as well as “any other claims which [plaintiff] might otherwise have or assert against [defendant], including punitive damages,” was not so vague that it could be construed as improperly requiring plaintiff to relinquish its right to bring future, unrelated causes of action against defendant. 880 So.2d 811 (Fla. 1st DCA 2004).

Here, Appellant’s offer of judgment provided: “[Appellant], hereby allows judgment to be taken against [it] ... in settlement of all claims by [Appellee] ... which are the subject matter of the above captioned lawsuit.” As in Ambeca, nothing in this language suggests that Appellant’s offer of judgment was conditioned on Appel-lee forfeiting her right to sue Appellant for causes of action unrelated to the instant case. In fact, the express terms of the offer of judgment limit its scope to those claims that arise from the same subject matter as the instant case.

Conclusion

We therefore REVERSE the trial court’s order granting a new trial and REMAND for reinstatement of the jury’s verdict and consideration of Appellant’s motion for lower court attorneys’ fees pursuant to section 768.79, Florida Statutes. Further, we provisionally GRANT Appellant’s motion for appellate attorneys’ fees pursuant to its offer of judgment, with directions to the tidal court to determine the amount of appellate fees.

HAWKES, C.J., and LEWIS, J., concur.


text:
    Byron R. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2872.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Rehearing Denied Aug. 13, 2009.
    Byron R. Thomas, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Ronald George GAMACHE, Appellant, v. Clara L. GAMACHE, Appellee.
    No. 2D08-3941.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Clara L. Gamache, pro se.
   ALTENBERND, Judge.

Ronald George Gamache appeals an enforcement order entered in this postdisso-lution proceeding. The trial court’s order set aside an earlier civil contempt order and refused to consider a child visitation dispute on the ground that the trial court lacked subject matter jurisdiction. We affirm. The “child” in this case is now a legal adult residing in Kansas. Although the trial court properly awarded long-term child support in 1992 for this couple’s child pursuant to section 743.07(2), Florida Statutes (1992), it could not retain jurisdiction to resolve visitation issues concerning this child now that he is a legal adult and not a party to these proceedings.

Ronald and Clara Gamache obtained a final order of divorce in Pinellas County in 1992. The final judgment provided for shared parental responsibility and gave the former wife primary residential responsibility for the couple’s six minor children. One of the children, Jonathan Ronald Gamache, was described as a “special child” who would remain dependent beyond his eighteenth birthday. In 1995, the former wife moved to Kansas with Jonathan and the other children. In 2001, Jonathan turned eighteen.

In 2005, the parties entered into a stipulation for a modification of the final judgment. As a result, the circuit court entered an unopposed “Supplemental Final Judgment” that established a rotating custody arrangement. Under this arrangement, Jonathan, in each sixty-day period, would live in Kansas for thirty-two days and then in Florida for twenty-eight. The former wife apparently did not abide by these terms, and, in 2006, the circuit court entered an order of civil contempt against her.

This ease was thereafter assigned to Judge Walt Logan. When the former husband moved to enforce the order of civil contempt, Judge Logan recognized that Jonathan was an adult residing in Kansas and questioned his authority over these issues. He issued an order to show cause why the court had authority at any time after Jonathan became a legal adult to issue orders providing for his custody or visitation. After obtaining responses, he issued the order setting aside the contempt order entered in 2006 and declining to exercise continuing jurisdiction over these visitation or custody disputes.

The former husband appeals, arguing that the Florida court has jurisdiction indefinitely to enforce visitation between the couple as to this “special child” because it awarded long-term child support pursuant to section 743.07(2). We disagree.

Jonathan is not a child for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because he is over the age of eighteen. See § 61.503(2), Fla. Stat. (2008). The language used in the final judgment, “special child,” is not recognized in statutory or case law as a category by which a person remains a child indefinitely. From the content of the record and from discussion at oral argument, it is apparent that Jonathan has some level of mental incapacity. He has, however, never legally been declared to be incapacitated or incompetent in either Florida or Kansas. No one has established a guardianship for him. At this point, such a proceeding would appear to be a matter for the courts in Kansas under the applicable Kansas law.

For purposes of Florida law, Jonathan is currently a competent, legal adult. Neither parent can control his social visitation schedule because he has not been declared incapacitated as to those types of decisions. Legally, the judgment of dissolution has not been a basis for either parent to have “custody” of him since he became an adult. He continues to possess the right to receive child support from his parents under the Florida judgment, but that right belongs to him. See Fox v. Haislett, 388 So.2d 1261, 1266 (Fla. 2d DCA 1980) (quoting Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979)). In any proceeding addressing child support, he would now be an indispensable party. Compare Harper v. Harper, 608 So.2d 517, 519 (Fla. 2d DCA 1992) (holding that a competent adult, who is entitled to parental support as a chapter 743 dependent, is an indispensable party to any action to terminate such benefits).

Thus, the trial court was correct in ruling that it lacked subject matter jurisdiction over these visitation and custody issues. It is also appropriate to observe that it lacked personal jurisdiction over the adult child who was ordered to travel back and forth between Florida and Kansas in the supplemental final judgment entered in 2005. The trial court should be commended for discovering this jurisdictional deficiency. Hopefully, the parties can cooperate to solve the problems presented by their son’s unresolved legal status.

Affirmed.

VILLANTI and KHOUZAM, JJ., Concur.

      . Kansas Statute Annotated section 59-3058(a)(1) (2008) provides:
      Any person may file in the district court of the county of residence of the proposed ward or proposed conservatee or of any county wherein the proposed ward or proposed conservatee may be found, a verified petition requesting the appointment of a guardian or a conservator, or both, for an adult with an impairment in need of a guardian or conservator, or both. If the proposed conservatee is not a resident of or present within the state of Kansas, such petition may be filed in the district court of any county in which any property of the proposed conservatee is situated.

      . A circuit court is a court of general subject matter jurisdiction. If Jonathan still resided in Florida, it is possible that the circuit court could have subject matter jurisdiction over such a dispute, but as a proceeding in the guardianship/probate division and not in the family law division. See, e.g., Lewis v. Dep't of Soc. Servs., 61 S.W.3d 248, 252 (Mo.Ct.App. 2001) (explaining the division of jurisdiction within a Missouri court over child support and visitation for a similar adult incapacitated child).


text:
    DEALER TAG AGENCY, INC., and Hillsborough County Tax Collector’s Office, Appellants, v. FIRST HILLSBOROUGH COUNTY AUTO TAG AGENCY, INC., Appellee.
    Nos. 2D08-3538, 2D08-3539.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.

      Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., Tampa, and Michael D. Siegel of Dalan, Katz & Siegel, P.L., Clearwater, for Appellant Dealer Tag Agency, Inc.
    Brian T. Fitzgerald, Senior Assistant County Attorney, Tampa, for Appellant Hillsborough County Tax Collector’s Office.
    Jonathan Streisfeld and Davis Ferguson of The Kopelowitz Ostrow Firm, P.A., Fort Lauderdale, for Appellee.
    Kenza van Assenderp and Timothy R. Qualls of Young van Assenderp, P.A., Tallahassee, for Amicus Curiae Florida Tax Collectors, Inc.
   DAKAN, STEPHEN L., Associate Senior Judge.

This is a consolidation of the appeals by Dealer Tag Agency, Inc., from the final summary judgment entered by the trial court. That judgment declared void as a matter of law a contract awarded to Dealer Tag by the Hillsborough County Tax Collector’s Office. Because we find that the trial court incorrectly ruled that the process used by the Tax Collector to award the disputed contract was governed by the provisions of chapter 287, Florida Statutes (2007), and chapter 120, Florida Statutes (2007), we reverse.

Pursuant to the provisions of section 320.03, the Tax Collector is an agent of the State of Florida Department of Highway Safety and Motor Vehicles (DHSMV) authorized to issue motor vehicle license plates and the required registration. The Tax Collector decided to provide automobile dealers in the area with an alternative to dealing directly with that office and sent out a request for proposal which included a description of the project and the application and approval procedures. Dealer Tag and First Hillsborough County Auto Tag Agency, Inc., were among the applicants, and Dealer Tag was awarded the contract.

When First Hillsborough tried to protest the award, it was informed by the Hillsborough County Attorney that the Tax Collector had no bid protest procedures. First Hillsborough filed suit alleging several claims, but at the hearing on the parties’ motions for summary judgment, the only issue was First Hillsbor-ough’s claim that the Tax Collector’s request for proposal did not comply with the provisions of chapter 287 and, by extension, the provisions of chapter 120. Agreeing with First Hillsborough, the trial court entered the final summary judgment which is the subject of this appeal.

Although Dealer Tag’s role in these proceedings is that of a party to a contract voided by the trial court’s final summary judgment, the real issue is the trial court’s conclusion that the provisions of chapters 287 and 120 apply to the request for proposal sent out by the Tax Collector. The central reason for that conclusion seemed to be that because the Tax Collector is an agent of the DHSMV under the provisions of section 320.03, the Tax Collector is, therefore, a “state agency.”

We find, however, that the Tax Collector is a constitutional entity created by article VIII, section 1(d) of the Florida Constitution and is not a “state agency” that is part of the executive branch of the state government. The fact that the Tax Collector is described as an “authorized agent” of the DHSMV for the provisions of section 320.03 does not make it a state agency for the provisions of chapters 287 and 120.

The almost identical issue was considered by the Dunbar Electric Supply, Inc. v. School Board of Dade County, 690 So.2d 1339 (Fla. 3d DCA 1997). In that case, the appellant was the unsuccessful bidder for a school board contract for electrical supplies. The appellant argued that school boards are a part of the executive branch of the state government and, therefore, the provisions of chapter 287 applied to the Board’s purchase procedures. The Third District held that school boards are constitutional entities created by article IX, section 4 of the Florida Constitution and do not fall within the executive branch of the state government. Consequently, chapter 287 did not apply to the school board.

In a footnote, the Third District observed that while the school board conceded that a portion of chapter 287 applied to it, that portion had no application to the case on appeal, because that portion expressly covered the school board. The case on appeal was not covered by that section and, therefore, did not affect the court’s ruling.

In this case, neither the provisions of section 320.03 nor chapter 287 expressly apply to the Tax Collector. Because the Tax Collector is a constitutional entity and not a “state agency,” the provisions of chapter 287 and 120 do not apply to that office.

Reversed.

ALTENBERND and LaROSE, JJ., Concur.


author: FULMER, Judge.

text:
    In the Interest of A.W.P., JR., a child. A.W.P., Sr., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D09-312.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.

      A.W.P., Sr., pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kelley Schaeffer, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

A.W.P., Sr., the Father, appeals a circuit court order entered on November 19, 2008, denying his motion for relief from judgment and his motion for rehearing in a dependency proceeding involving his son. We conclude that this court does not have jurisdiction to review a portion of the order, and we affirm the remaining portion of the order.

In October 2007, the child’s mother died in a car accident. On November 2, 2007, a counselor at the child’s school filed an emergency verified petition for determination of dependency and for order granting temporary injunction. The petition alleged that the child had been declared dependent as to the Father in 1995 and that the Father — a convicted felon who was now living in New Orleans — planned on taking the child back to New Orleans with him. The petition requested the court to declare the child dependent and to appoint the counselor as the temporary custodian. On November 2, 2007, the circuit court entered an order reactivating protective services and sheltering the dependent child. The order set a status hearing for November 9, 2007.

At the November 9, 2007, hearing, the Father appeared by telephone. On the same date, the circuit court entered an order modifying temporary legal custody from the counselor to another nonrelative. The order permitted supervised visits by the Father. The order also stated that the child “shall continue to be dependent.”

The Father attempted to appeal the November 9, 2007, order, but his notice of appeal was untimely filed. He alleged that he had not received a copy of the order in time for him to file a timely notice of appeal; therefore, this court dismissed his appeal without prejudice to his right to seek relief in the circuit court under Florida Rule of Civil Procedure 1.540(b). See A.W.P., Sr. v. Dep’t of Children & Family Servs., 973 So.2d 1133 (Fla. 2d DCA 2008) (unpublished table decision). On February 12, 2008, the Father filed in the circuit court a motion for relief from judgment from the November 9, 2007, order, citing rule 1.540 and Florida Rule of Juvenile Procedure 8.270, the rule applicable to motions for relief from orders in dependency-cases.

In the meantime, the child’s school counselor filed a motion to modify physical custody. The circuit court held a hearing on the counselor’s motion on January 17, 2008, and the Father failed to appear at that hearing. On that same date, the circuit court entered an order modifying placement once again. The Father filed a motion for rehearing, claiming that he had not been given an opportunity to appear telephonically at the January 17, 2008, hearing.

On February 19, 2008, the circuit court held a hearing on the Father’s motion for relief from judgment and his motion for rehearing. The circuit court orally denied the motions and entered a written order-denying the motions on November 19, 2008, nunc pro tunc to February 19, 2008. The Father now seeks review of that November 19, 2008, order.

We note that as a result of the Father’s most recent related proceeding in this court, A.W.P., Sr. v. Department of Children & Family Services, 10 So.3d 134 (Fla. 2d DCA 2009), the circuit court entered an order on April 8, 2009, modifying the Father’s visitation. The order allows the Father unsupervised visits with the child at his present boarding school in Indiana, at the Father’s home in Louisiana upon an approved home study, and with the child’s current Hillsborough County placement.

The Father makes several arguments on appeal, and the Department of Children and Family Services concedes error on all of them. However, we do not have jurisdiction over a portion of the order being appealed. The notice of appeal of the January 17, 2008, order was not filed until December 14, 2008. The motion for rehearing of the January 17, 2008, order did not toll the time to file a notice of appeal of the January 17, 2008, order. See Fla. R. Juv. P. 8.265(b)(3) (“A motion for rehearing shall not toll the time for the taking of an appeal.”). In addition, in C.V. v. Department of Children & Family Services, - So.3d -, - (Fla. 2d DCA 2009), this court held “that the orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable pursuant to [Florida Rule of Appellate Procedure] 9.130(a)(4).” See also A.W.P., Sr., 10 So.3d at 135 (“The father seeks review of a nonfinal order entered after a dependency adjudication. This proceeding does not fall within the appeal of nonfinal orders authorized in [rule] 9.130(a).”). The January 17, 2008, order is a nonfinal order that is not appealable under rule 9.130(a). Furthermore, the issue of placement arising from the January 17, 2008, order is moot because the child’s temporary placement was modified by a subsequent order. Therefore, we decline to treat this proceeding as a petition for writ of certiorari. See C.V., - So.3d at -(noting that nonfmal orders in dependency cases may be reviewed by certiorari but declining to treat the proceeding as a petition for writ of certiorari).

As to the portion of the November 19, 2008, order denying the Father’s motion for relief from the November 9, 2007, order, this court has jurisdiction pursuant to rule 9.130(a)(5), which provides that “[o]rders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule.” Rule 8.270(a) provides for relief from “[clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.” Rule 8.270(b) also provides for relief from “an order, judgment, or proceeding” for several reasons, including “excusable neglect.” These provisions provide an avenue of relief for a party who was prevented from filing a timely notice of appeal of a judgment or order because the party did not receive notice of the judgment or order. See Gibson v. Buice, 381 So.2d 349, 350 (Fla. 5th DCA 1980).

We affirm the circuit court’s denial of the Father’s motion for relief from judgment because it was based on his alleged inability to file a timely notice of appeal of the November 9, 2007, order and that order is a nonfinal order that is not appeal-able. See C.V., - So.3d at -. Furthermore, the November 9, 2007, order dealt primarily with visitation and the child’s placement. These issues are now moot because the Father has been given unsupervised visitation and the child’s placement has since changed. The Father challenges the reactivation of supervision by the Department on the basis that he was not provided notice or an opportunity to be heard, but the reactivation of supervision was a result of the November 2, 2007, order, not the November 9, 2007, order.

Dismissed in part and affirmed in part.

DAVIS and SILBERMAN, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Robert Stephen PHILIP, Appellant, v. STATE of Florida, Appellee.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.
    Robert Stephen Philip, pro se.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Robert Philip appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised twelve grounds for relief. We affirm the postconviction court’s order on all grounds except on ground 3(a). Pursuant to Spera v. State, 971 So.2d 754, 761 (Fla.2007), we reverse and remand for further proceedings on ground 3(a) only.

In ground 3(a) of his motion Philip alleged that his counsel was ineffective for failing to depose the State’s witnesses in preparation for trial. The trial court denied this claim because it “failed to allege specific omissions due to counsel’s failure to depose State’s witnesses.” We find no error in the postconviction court’s summary denial of ground 3(a) because it was facially insufficient. However, under Spera the court should have given Philip an opportunity to amend his motion to state a facially sufficient claim. 971 So.2d at 761 (holding that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion” within a reasonable period of time not to exceed thirty days). Accordingly, we reverse the denial of ground 3(a) and remand for the court to strike the claim with leave to amend within a specific period of time not to exceed thirty days, if Philip can do so in good faith. If Philip files an amended motion on this ground, the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.

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

ALTENBERND and FULMER, JJ„ Concur.

      . We recognize that the postconviction court did not have the benefit of the Spera decision when it issued the order denying this claim on June 22, 2007.


author: DAMOORGIAN, J. HAZOURI, J., FARMER, J.,

text:
    AFFIRMATIVE INSURANCE COMPANY, Petitioner, v. Josianny Meza GOMEZ, Respondent.
    No. 4D08-2648.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Rehearing Denied Aug. 5, 2009.

      Thomas A. Paigo, Wendi M. Weiner, and Alicia Lyons Laufer of Rubinton & Laufer, LLC, Davie, for petitioner.
    David B. Pakula, Pembroke Pines, and Adolfo A. Podrecca, Fort Lauderdale, for respondent.
   DAMOORGIAN, J.

The parties are before this court for second tier review on a petition for writ of certiorari. In this petition, Affirmative Insurance Company (AIC) seeks to have this court quash the circuit court’s order dismissing AIC’s appeal. Because AIC was not provided with notice that dismissal of its appeal would result from its failure to file the initial brief and record on appeal by the deadline set by the circuit court, AIC was not provided with procedural due process. We therefore conclude that the petition is well taken and grant it.

This matter arises out of a civil action in which the respondent, Josianny Meza Gomez (Gomez), sued AIC in county court for breach of an insurance policy. The county court entered summary judgment in favor of Gomez and against AIC on the issue of whether there was insurance coverage. AIC appealed the summary judgment to the circuit court in its appellate capacity (“the coverage appeal”). While the coverage appeal was pending, Gomez also obtained a judgment for attorney’s fees and costs as the prevailing party in the action. AIC filed a separate appeal from the attorney’s fee judgment (“the fee appeal”).

In a previous order, which is not the subject of this petition, the circuit court dismissed the coverage appeal. This court quashed the order of dismissal and remanded the coverage appeal to the circuit court for further proceedings. Affirmative Ins. Co. v. Gomez, 971 So.2d 227 (Fla. 4th DCA 2008). In the period of time between the order of dismissal and remand, the Broward County clerk completed the record for the coverage appeal, but because that appeal had been dismissed, the clerk filed the record with the fee appeal in August, 2007.

The petition that is the subject of this appeal arose from a subsequent order of dismissal in the coverage appeal. In response to Gomez’s several motions to dismiss AIC’s appeal or strike its brief, the circuit court initially entered an order threatening to dismiss the coverage appeal if AIC did not file the record on appeal within ten days. After AIC filed its initial brief and index to the record on appeal, the circuit court then granted Gomez’s motion to strike AIC’s initial brief and the index to the record because the index corresponded to the fee appeal, not the coverage appeal. The court ruled that, since no record actually was filed in the coverage appeal, the record citations in AIC’s brief were not valid. Without expressly threatening dismissal, it gave AIC ten days to file a separate record in the coverage appeal and an initial brief with proper citations. This time the court failed to notify AIC of the potential consequence of a failure to comply. The court then granted AIC another five days in which to file the record.

Nevertheless, AIC did not file a separate record in the coverage appeal within the time allotted by the circuit court. As a result, in the challenged order dated April 10, 2008, the circuit court dismissed the coverage appeal, stating that it had granted numerous motions to dismiss the appeal and then vacated them on AIC’s emergency motions for relief. The court found that AIC had engaged in a pattern of failing to timely comply with the court’s orders, and determined that the sanction of dismissal was appropriate. After the circuit coui't denied AIC’s motion for rehearing, AIC petitioned this court for a writ of certiorari.

On a petition for writ of certiorari filed from a decision of the circuit court rendered in its appellate capacity, this court must determine whether the “circuit court afforded procedural due process and whether it applied the correct law.” See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995). AIC complains that it was denied procedural due process and that the circuit court departed from the essential requirements of law in dismissing its appeal contrary to clearly established law.

Florida Rule of Appellate Procedure 9.410 provides as follows:

After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.

While the rule provides that the sanctions for violating the rules may include the dismissal of the case,

[a] sanction imposed under rule 9.410 of the Florida Rules of Appellate Procedure must be commensurate with the violation. Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules. See Swicegood v. Department of Transportation, 394 So.2d 1111 (Fla. 1st DCA 1981) (holding that dismissal was proper because counsel had failed to file a brief, failed to request an extension of time, and failed to explain his conduct in response to an order of the court); McClain v. Florida Power & Light Co., 523 So.2d 1245 (Fla. 1st DCA 1988) (holding that dismissal was proper because counsel had continually failed to timely prosecute his client’s appeals, despite reprimands by the court and the imposition of monetary sanctions).

Irvin v. Williams, 736 So.2d 705, 706 (Fla. 1st DCA 1999). “[Dismissal of an appellate proceeding should be employed sparingly and only after repeated violations or contumacious disregard of a court’s orders.” Craig v. Preston, 593 So.2d 578, 578 (Fla. 3d DCA 1992) (quoting Krebs v. State, 588 So.2d 38 (Fla. 5th DCA 1991)) (quashing order dismissing appeal for failure to timely file initial brief, where briefing schedule was ambiguous); see also Mathis v. Fla. Dep’t of Corr., 726 So.2d 389, 393 (Fla. 1st DCA 1999) (holding that findings of willful noncompliance are almost always a prerequisite for dismissing a claim for disobedience of a prior order).

We conclude that the circuit court denied AIC procedural due process by failing to provide notice of its intent to dismiss the coverage appeal, as required by rule 9.410. The circuit court’s first order requiring the filing of the record did threaten dismissal if the record were not filed within ten days from February 5, 2008. Instead of following through with that threat, however, the circuit court entered subsequent orders granting AIC additional time to file the initial brief and record on appeal. Neither the order requiring the filing of the record within ten days after the striking of the initial brief, nor the order granting AIC a five-day extension to file the proper record, included language giving AIC notice of the court’s intent to dismiss if the initial brief and record were not filed within the time allowed. The court’s failure to include such notice in these orders denied AIC procedural due process. See Fla. R.App. P. 9.410; Gillespie v. City of Destin, 946 So.2d 1195 (Fla. 1st DCA 2006) (quashing order dismissing appeal, inter alia pointing out that rule 9.410 requires the giving of ten days notice before imposing sanctions for the violation of the rules); Lindsey v. King, 894 So.2d 1058 (Fla. 1st DCA 2005) (“ ‘[T]he great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fair warning, in advance, that this consequence may flow from a late filing.’ ”) (quoting United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004)).

The circuit court in its appellate capacity has considerable discretion in the control and management of its docket. However, the coverage appeal should not have been dismissed because the circuit court failed to provide the warning required by Florida Rule of Appellate Procedure 9.410. Accordingly, we grant the petition and issue the writ. The April 10, 2008 order dismissing the appeal is quashed.

HAZOURI, J., concurs specially with opinion.

FARMER, J., dissents with opinion.

HAZOURI, J.,

concurring specially.

I concur and write to note that all the judicial labor could have been avoided had the lower court merely granted AIC’s motion to consolidate the two appeals.

FARMER, J.,

dissenting.

By petition for common law certiorari an Insurance Company asks us to grant extraordinary review of a decision of the Circuit Court acting in its appellate capacity. That court dismissed the Company’s appeal of a coverage decision by the County Court as a sanction for several violations of the appellate court’s orders. By the time of the dismissal, the Company had evaded presenting an initial brief on its own appeal for nearly two years. Strikingly, the Company failed to perfect its appeal in spite of a prior order warning of dismissal if it failed to file its brief.

We are thus asked to second-guess another court’s decision in the handling of an appeal. Our discretion in the matter should therefore be the most limited imaginable. I’m afraid the majority’s decision to grant this second-guess falls well outside any range of discretion we may claim.

Let me begin by observing that Circuit Courts are supposed to be the end of the line for cases begun in the County Courts. Also, because of their very nature, conflicts over insurance coverage are required to be given expedited treatment and handling on appeal. Yet, contrary to expedited treatment, this Company’s record of conduct in failing to prosecute its appeal seems designed to delay any resolution of coverage until the Insured simply gives up. And so the Insured’s characterization of the Company’s tactics in the appeal looks fair and apt to me:

“[it] reflects that [the Company] has been unwilling to move the appeal forward and has steadfastly resisted efforts by [the Insured] and the circuit appellate court to compel [the Company’s] compliance with its obligations under the rules of appellate procedure and court orders.”

That is certainly implicit in the Circuit Court’s findings in dismissing the appeal. The Company repeatedly filed motions for extensions of time after a period prescribed by Order had already expired. It repeatedly failed to serve the Insured with copies of purported filings. It repeatedly failed to consult counsel before filing motions for extensions of time. On several occasions it did not even bother to file the original of a motion for days or weeks after service. It never bothered to assist the Clerk by supplying copies of missing documents for inclusion in the Record. The Company never once seems to have filed anything on or before the date on which it was due by reason of an order of the court.

Legal issues of coverage are not difficult. Nothing suggests the coverage case in the County Court was anything but routine. Did the insurance contract cover the claim? Appeals of these decisions are usually simple and basic. If an Insurance Company cannot readily explain why its contract did not cover a specific claim, perhaps that inability betrays something wrong with denying coverage.

Coverage appeals are regular fare on our own docket. They rarely present difficulties in reaching a decision. Actually from time to time we too find it necessary to dismiss appeals because of similar misconduct in handling an appeal. Nothing filed by the Company — here or in the Circuit Court — begins to adequately explain why a compliant initial brief was not laid before the court within a few months of the filing of the appeal. And nothing comes close to explaining a lapse of 20 months! before it attempted to file even a brief lacking proper record citations.

But today this court holds that the Circuit Court’s dismissal of the appeal — one that went unperfected for twenty months despite several orders granting new opportunities to file a brief — is somehow a departure from the essential requirements of law! I must say, the only “departure from the essential requirements of law” in this case appears to lie in the conduct of the Company on its own appeal.

In Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000), the court made clear that:

“we clarified and narrowed the scope of common law certiorari jurisdiction [holding] that ‘a decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiora-ri.’ ”

774 So.2d at 682 (quoting Haines City Community Development v. Heggs, 658 So.2d 523, 525 (Fla.1995)). Ivey emphasized that the only inquiry under this highly restricted form of additional review is “whether the circuit court afforded procedural due process and whether it applied the correct law.” 774 So.2d at 682. And, to be sure, applying apt law incorrectly is no basis to open up this rare form of second review. See Housing Authority of City of Tampa v. Burton, 874 So.2d 6 (Fla. 2d DCA 2004) (unlike application of incorrect law, misapplication of correct law by a circuit court sitting in its appellate capacity generally does constitute a violation of clearly established law resulting in a miscarriage of justice, which would warrant certiorari relief).

By today’s decision, we make it pointlessly burdensome for the Circuit Court to manage its appellate docket. We hereby invite litigants like this one to delay an appeal to the Circuit Court without fear of the only useful sanction. Consequently, we deny their adversaries — appellees in such cases — the speedy, just and inexpensive determination to which they are entitled by law of the important coverage decision.

Simply put, there is no miscarriage of justice here. There is no basis to conclude that in dismissing the appeal the Circuit Court failed to apply the correct law. As for the Circuit Court’s process and procedures, this case has already been drowned in over-processing — nearly two years of it without an acceptable brief ever quite surfacing. So elementary are the many procedural neglects and mistakes committed by Company in the handling of this coverage appeal, that I am unable fully to suppress the impression that it has all been purposeful and calculated on its part. I could not bear to know how much more process is due for such an obstinate, unwilling appellant.

I dissent.

      . The dissent suggests that AIC delayed the appeal for two years, but fails to acknowledge that the coverage issue was previously appealed to this court during that time.

      . See Fla. R.App. P. 9.030(b)(2)(B) (certiorari jurisdiction of district courts may be sought to review final orders of circuit courts acting in their review capacity).

      .Its appeal sought review of a County Court decision declaring coverage in favor of the Insured. Another appeal by the Company sought review of a related award of attorneys fees in favor of the Insured.

      .The court had ordered that if the Company failed to file the record by the date specified, along with its initial brief, or instead show good cause for failing to do so, the Court would impose the sanction of dismissal. The court later extended its deadline at the request of the Company who still failed to succeed even with the additional time. The majority seem to fancy a Dickensian procedure requiring an appellate court to renew its warning each time a party fails to comply with a required deadline. The Company’s appellate lawyers in the Circuit Court are presumably not lay persons ignorant of appellate procedures. I think one warning ought to be enough for appellate lawyers.

      . See § 26.012(1), Fla. Stat. (2008) (Circuit Court has appellate jurisdiction of appeals from final orders of the County Court [exceptions do not apply here]).

      . See Canal Ins. Co. v. Reed, 666 So.2d 888, 892 (Fla. 1996) ("it would be in the best interests of all the parties for coverage issues to be resolved as soon as possible. We therefore suggest that the district courts expedite review of appeals involving the sole issue of coverage”).

      . Cf. Fla. R. Civ. P. 1.010 (“These rules shall be construed to secure the just, speedy, and inexpensive determination of every action”).

      . In addition to rewarding the Company's obstruction of the appellate process with even more opportunities to obstruct the final decision, the majority’s unwarranted further postponement of the resolution of this coverage appeal expressly conflicts with the policy prescribed by the supreme court in Canal Ins. Co. v. Reed, 666 So.2d 888, 892 (Fla.1996).


author: SHEPHERD, J.

text:
    Lourdes Rosario GUTIERREZ, Appellant, v. Raul Juan GUTIERREZ, Appellee.
    No. 3D08-1963.
    District Court of Appeal of Florida, Third District.
    July 1, 2009.
    Rehearing Denied Aug. 6, 2009.
    Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, Joseph P. Klock, Jr., and Juan Carlos Antorcha, for appellant.
    Astigarraga Davis Mullins & Grossman, Edward M. Mullins, Edward H. Davis, Jr., Gregory S. Grossman, Annette C. Escobar, and Amoldo B. Lacayo, Miami, for appel-lee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

A former wife, Lourdes Rosario Gutierrez, appeals a trial court order denying her motion to set aside and modify a settlement agreement on the ground that her now incarcerated former husband failed to disclose a piece of real property allegedly purchased by him during the pendency of the dissolution proceedings. We find no error in the thorough and well-reasoned order crafted by the trial court. We affirm this portion of the order of the trial court.

The trial court, however, inadvertently failed to rule on the former wife’s separate claim under Count Two of her motion for past-due alimony. We reverse and remand for additional proceedings on this count of the motion.

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