text:
    Errol O. BOOTHE, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Appellee.
    No. 4D17-3273
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Catherine A. Riggins, Miami, for appellant.
    Chase A. Berger of Berger Firm, P.A., Miami, for appellee.
   Per Curiam.

The Borrower appeals from a September 19, 2017 order denying his September 5, 2017 "Emergency Motion to Vacate Sale Entered on September 28, 2016, Vacate Certificate of Title and to Stay and Vacate Writ of Possession."

The trial court lacked jurisdiction to enter the order because the borrower's appeal (4D17-2697) from an earlier motion to vacate writ of possession was still pending. See Fla. R. App. P. 9.130(f). We therefore do not reach the merits of this appeal and instead quash the September 19 order as void. See Rivas v. Bank of New York Mellon , 233 So.3d 1155 (Fla. 4th DCA 2018) (quashing order denying motion to vacate foreclosure judgment as void without reaching merits of the order where the order was entered while appeal from foreclosure judgment was pending). In so doing we express no comment on the merits of the court's denial of the September 5 motion.

In light of our disposition, we deny the Bank's motion to dismiss appeal as moot.

Appellant is reminded that this court has already affirmed the trial court's order denying appellant's motion to vacate the sale in case number 4D16-4313.

Order quashed.

Levine, Conner and Forst, JJ., concur.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    ICMFG & ASSOCIATES, INC., Tom Coghlan, Bonnie Del Grosso, Michael Doyle, Appellants, v. The BARE BOARD GROUP, INC., Appellee.
    Case No. 2D15-3557 2D15-4588
    District Court of Appeal of Florida, Second District.
    Opinion filed March 17, 2017
    Ceci Culpepper Berman and Thomas J. Seider of Brannock & Humphries, Tampa; Robert W. Hitchens of Hitchens & Hitchens, P.A., St. Petersburg, for Appellants.
    Kelly J. Ruoff and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill, & Mullis, P.A., St. Petersburg, for Appellee.
   WALLACE, Judge.

The Appellants, ICMfg and Associates, Inc. (ICM); Tom Coghlan; Bonnie del Grosso; and Michael Doyle, appeal an Order on Trial and a final judgment entered in favor of The Bare Board Group, Inc. (BBG), following a bench trial limited to the issue of damages. We hold that the trial court did not abuse its discretion in striking the Appellants' pleadings and in entering a default against them as a sanction. However, we conclude that the trial court erred in ruling that the default previously entered against the Appellants made it unnecessary for BBG to prove a connection between the Appellants' tortious conduct and BBG's claimed lost profits. Accordingly, we reverse the awards for lost profits, including the prejudgment interest thereon, and remand for a new trial limited to the issue of BBG's claim for lost profits. We affirm the other damages awards and the awards of attorney's fees and costs.

I. THE FACTS AND PROCEDURAL BACKGROUND

A. Introduction

BBG is a Florida corporation that was formed in 2002. It is a supplier of printed computer circuit boards. At the time of the events pertinent to the underlying litigation, Mr. Coghlan and Ms. del Grosso were both officers, directors, and highly compensated employees of BBG. Each of them also owned shares of BBG.

Both Mr. Coghlan and Ms. del Grosso were previously acquainted with Mr. Doyle because all three of them were involved in the printed computer circuit board industry. Mr. Doyle planned to establish a printed computer circuit board business. Lacking the funds to do so, he approached Mr. Coghlan and Ms. del Grosso for financing. They both advanced money to Mr. Doyle with knowledge of his plans. Mr. Doyle incorporated ICM as a Florida corporation in March 2010.

B. The Parties' Claims

The litigation in the underlying case began in March 2012 with the filing of a complaint for declaratory judgment by ICM, Mr. Coghlan, and Ms. del Grosso against BBG. Mr. Coghlan and Ms. del Grosso had resigned as officers, directors, and employees of BBG on January 13, 2012. At the time of their resignations, Mr. Coghlan and Ms. del Grosso each held 11.087% of the outstanding shares of BBG. A shareholder agreement granted BBG the first right of redemption of those shares upon the termination of the employment of Mr. Coghlan and Ms. del Grosso with BBG. In their complaint, ICM, Mr. Coghlan, and Ms. del Grosso alleged that the parties had a dispute regarding the proper value of the shares of stock and that they were in doubt about their rights under the shareholder agreement. They asked the trial court for declaratory relief to resolve the dispute.

BBG answered the complaint and raised various affirmative defenses. In an amended counterclaim, BBG added Mr. Doyle as a counter-defendant and made the following pertinent allegations:

1. BBG is a Florida corporation, in good standing, with its principal place of business in Pinellas County, Florida.
2. ICM is a Florida corporation first established on March 22, 2010[,] with its principal place of business in Pinellas County, Florida.
3. Coghlan and B. del Grosso are each long-time employees and minority shareholders, and officers of BBG, and held positions as directors of BBG for several years.
4. On January 13, 2012, Coghlan and B. del Grosso each unexpectedly announced to BBG his and her resignation as employees of BBG.
5. While holding the position of officer and director of BBG, Coghlan and B. del Grosso each owed fiduciary duties to BBG, to include performing its duties in and for the best interest of the corporation [and] to present all business opportunities which came to their attention to BBG if it involved the present corporate activity of BBG.
6. Coghlan and B. del Grosso, while serving as officers of BBG and as members of its four-person board of directors, knowingly and deliberately undertook a course of conduct, undisclosed to BBG, to divert BBG customers and other BBG customer opportunities to ICM, which is a competitor of BBG and [for] which Coghlan and B. del Grosso were initially named as ICM's officers and directors.
7. Only upon an investigation by BBG after the sudden resignations of Coghlan and B. del Grosso on January 13, 2012[,] were these surreptitious activities of diverted corporate business and opportunities and the existence of ICM discovered by BBG.
8. Doyle is a resident of Pinellas County, Florida, was the initial Vice President of ICM, and has been involved in the same industry as BBG for several years with other entities in Pinellas County, Florida.
....
11. BBG has retained the law firm of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A.[,] to bring suit on their behalf and have agreed to pay a reasonable fee for their services.
12. All conditions precedent to the maintenance and institution of this lawsuit have been performed, have been waived, or have otherwise been satisfied.

In addition, BBG alleged that Mr. Coghlan and Ms. del Grosso had violated their fiduciary duties to BBG by diverting its customers and business opportunities to ICM and by generally interfering with BBG's business. BBG alleged further that Mr. Doyle and Ms. del Grosso and others had aided and abetted the breach of fiduciary duties by Mr. Coghlan and Ms. del Grosso for the purpose of benefitting ICM's business. BBG alleged that these activities had caused damages to it, including the loss of its rightful business and profits.

BBG alleged six causes of action in its amended counterclaim as follows: Count I, breach of fiduciary duty (Coghlan and B. del Grosso); Count II, aiding and abetting breach of fiduciary duty (ICM and Doyle); Count III, civil conspiracy to defraud (ICM, Coghlan, B. del Grosso, and Doyle); Count IV, fraud (Coghlan and B. del Grosso); Count V, violation of the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-.213, Florida Statutes (2011) (FDUTPA) (ICM, Coghlan, B. del Grosso, and Doyle); and Count VI, tortious interference with business relationships (ICM, Coghlan, B. del Grosso, and Doyle). The Appellants answered the amended counterclaim and raised various affirmative defenses.

C. Discovery Abuse, Fraud, and Sanctions

With regard to the claims asserted by BBG in its amended counterclaim, the timing, nature, and extent of the involvement of Mr. Coghlan and Ms. del Grosso with ICM were critical issues. The record supports the conclusion that the Appellants engaged in a concerted effort to interfere with BBG's attempts to discover evidence favorable to BBG on these issues. This effort included the repeated disregard of discovery obligations, noncompliance with court orders to make discovery, false deposition testimony, and the failure to disclose that two of ICM's tax returns had been amended after BBG had requested copies of the returns. The amendments to the two tax returns deleted the names of Mr. Coghlan and Ms. del Grosso from the original returns as two of the shareholders of ICM and listed Mr. Doyle instead as the sole shareholder. Nevertheless, BBG was persistent, and it ultimately obtained copies of the tell-tale original tax returns through a subpoena duces tecum for deposition directed to ICM's accountant.

After BBG finally obtained copies of the original tax returns, it moved for sanctions against the Appellants. The trial court conducted a hearing on the motion. After the hearing, the trial court entered a lengthy order that outlined the Appellants' derelictions in detail. The trial court then set forth its conclusions of law as follows:

18. The Court, having heard argument from counsel and considering its findings of fact under the totality of the circumstances, hereby GRANTS BBG's Motion for Sanctions for Counter-Defendants' Destruction of Evidence and Commission of Fraud on the Court.
19. A deliberate and contumacious disregard of the court's authority will justify the striking of pleadings as will bad faith, willful disregard or gross indifference to an order of the court, or conduct that evinces deliberate callousness. Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) ; Bailey v. Woodlands Co., Inc., 696 So.2d 459 (Fla. 1st DCA 1997) (affirming dismissal of party's pleading based on finding a pattern of willful noncompliance or disregard of the rules of civil procedure.)
20. [Recitation of pertinent factors under Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993) omitted.]
21. Here, Counter-Defendants ICM and Doyle, based on the above findings of fact, have personally engaged in and are responsible for a pattern of willful noncompliance and contumacious disregard of the rules of civil procedure that has prejudiced BBG through undue expense and delay in this litigation. The Court has reviewed the deposition testimony of Doyle and finds him not to be credible in his responses, not complete in his responses, and to have made numerous attempts to mislead the parties in responding to discovery.
22. A court has a duty and an obligation to strike a party's pleadings if the party commits a fraud during discovery. Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001).
23. Counter-Defendants have committed fraud in the discovery process by intentionally concealing and then ultimately altering evidence, namely the 2010 and 2011 tax returns, central to the issues in this litigation-Coghlan's and del Grosso's involvement with ICM while officers and directors of BBG. In addition, the Court finds Coghlan's and del Grosso's [deposition] testimony that they were not shareholders in ICM to be untruthful and belied by both the Ownership Email and the original 2010 and 2011 tax returns of ICM that were subsequently altered in order to mislead BBG and this Court as to Coghlan's and del Grosso's ownership interest in ICM. This fraud warrants striking Coghlan's and del Grosso's pleadings.

Based on its findings of fact and conclusions of law, the trial court struck the Appellants' pleadings and entered a default against them on liability with regard to BBG's amended counterclaim.

D. The Trial Court's Ruling on Causation and Damages

The entry of the order striking the Appellants' pleadings and the entry of a default on liability against them on BBG's amended counterclaim made it unnecessary for BBG to prove liability. But BBG's claims were unliquidated in amount; accordingly, the parties still faced a trial on damages. As the trial on damages approached, the parties had a dispute about whether and to what extent BBG was required to prove a connection between the Appellants' conduct and BBG's claimed lost profits.

At a pretrial hearing, the trial court heard the parties' arguments about the nature of the proof required on BBG's claim for lost profits. BBG argued that causation was an element of liability that had been established by the default. Therefore, BBG reasoned, it need only prove the amount of its damages at trial. In response, the Appellants contended that-despite the entry of the default-BBG was still required to prove a connection between the Appellant's conduct and the claimed lost profits. The trial court agreed with BBG's arguments and ruled as follows:

THE COURT: So at this point the Court is finding that the element of causation has already been established. So we're here for the trial on damages.
[COUNSEL FOR THE APPELLANTS]: Is counter-plaintiff [the Appellee] required to show a connection between the alleged damages and the bad act?
THE COURT: I would say that is causation, that nexus is causation. I think that's been established.
....
But I believe at this point in time, the nexus and the causation are already established. I think that's my ruling.

This ruling guided the presentation of the evidence at the trial on damages that followed.

E. The Evidence at Trial on Damages

At trial, some of BBG's claims for damages were essentially undisputed. These claims included the salary and bonuses paid to Mr. Coghlan and Ms. del Grosso and miscellaneous expenses incurred in connection with BBG's investigation into the Appellants' conduct. Here, we are concerned not with these damages but with the awards for lost profits.

BBG presented its primary evidence on lost profits through the testimony of its damages expert, a certified public accountant with a specialty in forensic accounting. BBG's expert divided the customers for which BBG claimed to have sustained lost profits into two groups. The first group included former BBG customers who had been "diverted" to ICM and to whom ICM had made sales. This first group was referred to as the "diverted" group. The second group consisted of BBG customers who were claimed to have had "contact" with Mr. Coghlan, Ms. del Grosso, and a certain salesperson. BBG's expert referred to this group as the "tainted" or "tampered"

group. The expert assigned BBG customers to the tampered group even though ICM had not made any sales to them. BBG's expert claimed that sales to customers in the tampered group had declined relative to BBG's remaining customers assigned to a so-called "control" group. The supposed deleterious effect of contact by Mr. Coghlan, Ms. del Grosso, and the designated salesperson on customers assigned to the tampered group was never adequately explained. BBG's expert calculated the lost profits for customers assigned to the diverted group and the tampered group by applying BBG's average profit percentage to sales allegedly lost to BBG. In addition, for each of these two groups, the expert calculated an estimate for BBG's future lost profit on sales for five years into the future.

Notably, BBG's expert freely admitted on cross-examination that he had done nothing to investigate the question of a causal link between the Appellants' conduct and the claimed lost profits. For customers assigned to the tampered group, the question of a connective link was particularly problematic. In this regard, Appellants' counsel asked BBG's expert if he had any information about specific communications purportedly made by Mr. Coghlan, Ms. del Grosso, or the salesperson to these customers. The expert's response is telling: "No. I assumed the causation because that's what I was told to assume. I had heard that there were issues. I was told that there were issues, but it was my understanding that the Court had already made a ruling on the causation."

In other words, BBG's expert testified to the damages claimed for lost profits based on an assumption about causation that he had been asked to make by BBG's counsel. The expert did no more than analyze BBG's financial information in light of the assumptions about a connection between the Appellants' conduct and the claimed lost profits that he had been instructed to make.

At trial, the Appellants offered the testimony of their own expert who questioned the methodology employed by BBG's expert. The Appellants also contended that many of the BBG customers did not belong on either the diverted list or the tampered list for a variety of reasons. Generally speaking, the trial court refused to consider the Appellants' evidence and arguments along these lines based on its prior ruling that causation had been established by the entry of the default on liability.

F. The Trial Court's Ruling

After the trial on damages, the trial court entered an Order on Trial containing a detailed statement of its findings. Although the trial court had previously entered a default on liability against the Appellants, it specifically found that BBG had proven the elements of each cause of action alleged in its counterclaim. The trial court also accepted the calculation of past and future lost profits offered by BBG's expert on damages.

On Counts I-III and VI of the amended counterclaim, the trial court ruled that BBG was entitled to recover lost profits for customers diverted from BBG to ICM of $1,594,927, plus prejudgment interest of $80,440.34. In addition, the trial court ruled that BBG was entitled to future lost profits for customers in the diverted group of $2,311,133.

On Counts I-III and VI of the amended counterclaim, the trial court ruled that BBG was entitled to recover lost profits for customers in the tampered group against the Appellants of $1,734,038, plus prejudgment interest of $200,821.13. In addition, the trial court ruled that BBG was entitled to future lost profits for customers in the tampered group of $3,269,611.

On Counts I, III, IV, and V, the trial court found that BBG was entitled to disgorgement of Mr. Coghlan's salary and bonuses of $721,124, plus prejudgment interest of $122,048.92. Recovery of these amounts was against Mr. Coghlan only.

On Counts I, III, IV, and V, the trial court found that BBG was entitled to disgorgement of Ms. del Grosso's salary and bonuses of $729,550, plus prejudgment interest of $122,864.60. Recovery of these amounts was against Ms. del Grosso only.

On Count V, the trial court found that BBG was entitled to recover additional actual damages from the Appellants of $6374.45, plus prejudgment interest of $605.57. These damages were for miscellaneous expenditures made by BBG to investigate the Appellants' conduct.

Finally, the trial court ruled that BBG was entitled to recover punitive damages against each of the Appellants in an amount to be determined. The trial court also ruled that BBG was entitled to recover its attorney's fees from the Appellants on Count V, its FDUTPA claim, in accordance with section 501.2105. The trial court reserved jurisdiction to determine the amount of the punitive damages and BBG's reasonable attorney's fees.

G. The Final Judgment

After the entry of the Order on Trial, the parties stipulated to an award of $275,000 to BBG for its attorney's fees and costs. In addition, the parties stipulated that BBG would recover punitive damages of $100,000 against each of the Appellants. On September 28, 2015, the trial court entered a final judgment in accordance with the Order on Trial and the parties' stipulation concerning attorney's fees and costs and punitive damages. The total of the judgment against all of the Appellants for damages, prejudgment interest, and attorney's fees and costs is $9,472,950.49. The trial court entered separate judgments against Mr. Coghlan and Ms. del Grosso for the disgorgement of their salary and bonuses and the $100,000 punitive damages awards. The trial court also entered judgments against ICM and Mr. Doyle for the $100,000 punitive damages awards against them. The Appellants filed notices of appeal with regard to the Order on Trial and the final judgment. This court subsequently consolidated the two cases.

II. THE APPELLANTS' ARGUMENTS

On appeal, the Appellants argue that the trial court abused its discretion in striking their pleadings and in entering a default judgment on liability against them on BBG's amended counterclaim. Alternatively, the Appellants argue that multiple errors in the trial court's rulings regarding damages require a new trial on that issue. Finally, the Appellants argue that a reversal of the final judgment requires a reversal of the award for attorney's fees and costs. We will consider these arguments separately below.

III. DISCUSSION

A. The Entry of the Default as a Sanction

The conduct for which the trial court sanctioned the Appellants involved repeated and willful violations of discovery obligations and the trial court's orders compelling discovery. However, a reading of the trial court's sanctions order discloses that the trial court determined to impose the ultimate sanction on the Appellants because they had attempted to perpetrate a fraud on BBG and the trial court. The subject of the fraud was pertinent to a critical issue for trial-the involvement of Mr. Coghlan and Ms. del Grosso in the business affairs of ICM. The trial court found that this attempted fraud included but was not limited to discovery abuses. In addition, the trial court found that the Appellants had intentionally concealed and ultimately altered evidence that was central to the issues in the litigation, i.e., ICM's 2010 and 2011 federal income tax returns. The trial court also found that the deposition testimony of Mr. Coghlan and Ms. del Grosso about these issues was contradicted by the contemporaneous documentary evidence of their involvement in the business affairs of ICM. Competent, substantial evidence in the record supports the trial court's findings in this regard.

Our review of a trial court's imposition of sanctions is for abuse of discretion. Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574 (Fla. 1st DCA 2003). When, as here, the trial court has imposed the ultimate sanction based on fraud, we employ a narrowed abuse of discretion standard of review. See Jacob v. Henderson, 840 So.2d 1167, 1168-69 (Fla. 2d DCA 2003). "A trial court has a duty and an obligation to dismiss a cause of action based upon fraud." Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001). Fraud arises when

it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.

Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) ). We hold that the trial court properly concluded that the Appellants' conduct in this case amounted to such a scheme.

In an attempt to minimize their conduct, the Appellants argue that they must have been poor schemers indeed-they provided BBG with the name of their accountant from whom BBG's attorney obtained the tell-tale documents. Granted, BBG's attorneys refused to be stymied by the Appellants' evasions and pursued the investigation of the pertinent facts to a successful conclusion. But the persistence and resourcefulness of BBG's attorneys does not excuse the Appellants' conduct or diminish its seriousness. We are not persuaded by the Appellants' argument based on the unsuccessful nature of their attempted fraud on the trial court.

Granted, some trial judges might have imposed the lesser sanction of an award of attorney's fees and costs against the Appellants for their conduct. Nevertheless, even under our narrowed standard of review that is applicable here, we cannot say that no reasonable trial judge would have imposed the ultimate sanction on the Appellants for their egregious conduct. Accordingly, we find no abuse of discretion here and uphold the trial court's order imposing the ultimate sanction on the Appellants. See Ramey v. Haverty Furniture Cos., Inc., 993 So.2d 1014, 1020-21 (Fla. 2d DCA 2008) (affirming an order dismissing an action for fraud on the court where the evidence supported the trial court's determination that the plaintiff had provided intentionally false deposition testimony and interrogatory answers concerning his prior medical treatment that were directly related to central issues in the case); Perrine v. Henderson, 85 So.3d 1210, 1211 (Fla. 5th DCA 2012) (affirming an order dismissing an action for fraud on the court where the plaintiff made numerous material misrepresentations regarding his medical history and current injuries, which were central issues in the case); Babe Elias Builders, Inc. v. Pernick, 765 So.2d 119, 120-21 (Fla. 3d DCA 2000) (affirming an order striking the defendant's pleadings where the defendant created false invoices to justify amounts charged to the plaintiffs and arranged for the presentation of false deposition testimony that the invoices were accurate).

B. The Impact of the Default on the Proof of Lost Profits

The trial court's ruling on the impact of the entry of the default against the Appellants on the necessity for BBG to establish a connecting link between the Appellants' conduct and the damages for lost profits claimed by BBG is a pure question of law. Accordingly, our review of this issue is de novo. See Kaaa v. Kaaa, 58 So.3d 867, 869 (Fla. 2010). The question of the methodology employed in calculating damages also involves a question of law that we review de novo. Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So.3d 374, 380 (Fla. 3d DCA 2013) ; Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667, 673 (Fla. 3d DCA 2011).

Based on the sanctions order entered against the Appellants for the claims asserted by BBG, liability was not an issue at trial. Thus, for example, the Appellants could not dispute the allegations of paragraphs 5 and 6 of BBG's amended counterclaim regarding the breach of their fiduciary duties to BBG and their conduct directed at BBG's customers. They could not raise multiple other defenses that might otherwise have been available to them before the sanctions order was entered. Nevertheless, because BBG's claims for damages were unliquidated in amount, the Appellants had the right to a hearing on damages to contest the amount of damages claimed by BBG. " Florida Rule of Civil Procedure 1.440(c) requires a hearing on claims for unliquidated damages, even if a party has been defaulted." Medcom USA, Inc. v. Ryder Homes & Groves Co., 847 So.2d 594, 596 (Fla. 2d DCA 2003). "[A] defaulted defendant has the right to contest the amount of unliquidated damages and may offer evidence in mitigation thereof." Talucci v. Matthews, 960 So.2d 9, 10 (Fla. 4th DCA 2007). Therefore, the entry of the default on liability did not make the Appellants liable as a matter of law for all of the damages claimed by BBG. See id.

Even where, as in this case, the trial is on the issue of damages only and liability is not in question, the claimant remains "obligated to prove some connexity between the damages claimed and [the defendant's tortious conduct]." Rucker v. Garlock, Inc., 672 So.2d 100, 102 (Fla. 3d DCA 1996) ; see also Talucci, 960 So.2d at 10 ("The right to contest unliquidated damages in any negligence action encompasses the right to challenge the causal relationship between the damages claimed and the liability established by the default."); Leal v. Waterproofing Sys. of Miami, Inc., 812 So.2d 473, 473 (Fla. 3d DCA 2002) (holding that a defendant against whom a directed verdict on liability had been entered had the right to contest the issue of recovery for diagnostic bills).

The requirement to show some "connexity" between the defendant's conduct and the claimant's damages is consistent with the law of damages. In this regard, the Florida Supreme Court has said:

The fundamental principle of the law of damages is that the person injured by breach of contract or by wrongful or negligent act or omission shall have fair and just compensation commensurate with the loss sustained in consequence of the defendant's act which [gave] rise to the action. In other words, the damages awarded should be equal to and precisely commensurate with the injury sustained.

Hanna v. Martin, 49 So.2d 585, 587 (Fla. 1950) (emphasis added); see also Glades Oil Co. v. R.A.I. Mgmt., Inc., 510 So.2d 1193, 1195 (Fla. 4th DCA 1987) ("In a tort action, the measure of damages is that which is necessary to restore the injured party to the position he would have been in had the wrong not been committed."). Obviously, the limitation of damages awards to those sustained in consequence of the defendant's act precludes awards for losses attributable to other causes.

BBG had the burden of proving its claim for lost profits. See PhysicianReference Lab., Inc. v. Daniel Seckinger, M.D. & Assocs., P.A., 501 So. 2d 107, 109 n.1 (Fla. 3d DCA 1987). "[L]ost profits 'must be proven with a reasonable degree of certainty before [the loss] is recoverable.' " Paul Gottlieb & Co. v. Alps S. Corp., 985 So.2d 1, 9 (Fla. 2d DCA 2007) (second alteration in original) (quoting Shadow Lakes, Inc. v. Cudlipp Constr. & Dev. Co., 658 So.2d 116, 117 (Fla. 2d DCA 1995) ). "The mind of a prudent impartial person should be satisfied that the damages are not the result of speculation or conjecture." Id. (quoting Shadow Lakes, 658 So.2d at 117 ). "It is fundamental that a lost profit award must be commensurate with what is fair and just and limited to the actual damages sustained." Pahokee Hous. Auth., Inc. v. S. Fla. Sanitation Co., 478 So.2d 1107, 1108 (Fla. 4th DCA 1985) (citing Hanna, 49 So.2d at 587 ). Where an award of lost profits amounts to an unmerited windfall, it will be set aside. See id.

In light of these principles, we hold that the trial court's pretrial ruling that the default on liability was sufficient to establish "the nexus and causation" between the Appellants' tortious acts and BBG's claim for lost profits was in error. This error prejudiced the Appellants throughout the trial on damages that followed. The trial court accepted the testimony about BBG's claimed lost profits given by its expert. The trial court based its award of damages for lost profits entirely on the expert's testimony. But the expert disclaimed any effort to investigate or to consider a link between the Appellants' conduct and its effect on BBG's business. The expert based his methodology on his "understanding that the Court had already made a ruling on causation." In addition, the trial court's pretrial ruling had a pervasive effect on the rest of the trial because the Appellants were prevented from demonstrating that BBG's claimed business losses were not as great as it claimed or were attributable-in whole or in part-to other causes.

Without conceding that the trial court erred in deciding the "connexity" issue, BBG defends the methodology employed by its expert in determining its claim for lost profits. According to BBG, the methodology employed by its expert ensured that the lost profits calculated for both the diverted group and the tampered group were connected to and the result of the Appellants' tortious conduct. In particular, BBG asserts that its expert's "method of calculating lost profits from the Tampered Group inherently accounted for other possible lost profits." BBG argues for affirmance of the damages awards for lost profits because-without regard to the trial court's ruling on causation-the methodology employed by its expert was sound.

We reject this argument for three reasons. First, BBG's expert conceded that-in reliance on counsel's instructions-he made no investigation of the facts to determine the existence of a link between the Appellants' conduct and the claimed lost profits. At the very least, the expert's disregard of the issue of causation renders his conclusions about BBG's claimed lost profits suspect.

Second, the expert's methodology with regard to the tampered group is-at the least-questionable. It is unexplained in our record how unspecified "contact" between Mr. Coghlan, Ms. del Grosso, or a salesperson and BBG customers with whom ICM did no business could possibly be linked to sales lost to BBG. Here, the conclusions of BBG's expert about millions of dollars in lost profits appear to be based on nothing more than conjecture and surmise. In this regard, we note that the lost profits claimed for the tampered group are substantially greater than the lost profits claimed for customers to whom ICM actually made sales.

Third, even if one accepts that the testimony of BBG's expert properly linked the Appellants' conduct to the lost profits claimed, a reversal and remand for a new trial on lost profits would still be required. A new trial is necessary because the rulings at trial effectively prevented the Appellants from presenting their defenses that BBG's losses were not as great as they claimed and that most of the lost profits claimed by BBG were attributable to causes other than their conduct. The trial court's rulings at the trial stymied the Appellants from raising these issues through cross-examination of BBG's witnesses and from the presentation of their own evidence. The trial court also declined to consider the Appellants' arguments about other possible causes of the claimed lost profits.

The entry of the default against the Appellants on the amended counterclaim should not have granted BBG a blank check on which it could insert the numbers it chose untethered to any link to the effects of the Appellants' conduct. On the contrary, BBG's lost profits claim was limited to those damages that it could establish were incurred as a consequence of the Appellants' conduct with reasonable specificity and certainty. The trial court's pretrial ruling and rulings at the trial on causation raised the very real possibility that BBG received an undeserved windfall on its lost profits claim. Because these rulings were in error, we must reverse the awards for lost profits and remand for a new trial limited to that issue.

C. BBG's Entitlement to Attorney's Fees

The parties stipulated to the reasonable amount of BBG's attorney's fees and costs as $275,000. On appeal, the Appellants argue that a reversal of the judgment for damages necessarily requires reversal of the portion of the judgment representing attorney's fees and costs. See Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 19 So.3d 347, 347 (Fla. 2d DCA 2009) ; Wagner v. Uthoff, 868 So.2d 617, 618-19 (Fla. 2d DCA 2004).

Under the law applicable to the award of attorney's fees in this case, we disagree.

The trial court made its award of attorney's fees to BBG under Count V of its amended counterclaim, the FDUTPA claim. BBG's recovery of its FDUTPA claim is not affected by the reversal of the recovery of lost profits. On the contrary, BBG's recovery on the FDUTPA claim included disgorgement of Mr. Coghlan's salary and bonuses, disgorgement of Ms. del Grosso's salary and bonuses, and the recovery of miscellaneous expenses incurred. There was no recovery for lost profits on the FDUTPA claim. The award of attorney's fees on the FDUTPA claim need not be allocated to services specific to that claim:

[I]n actions containing a deceptive trade practices count and one or more alternative theories of recovery, all based on the same transaction, no allocation of attorney's services need be made except to the extent counsel admits that a portion of the services was totally unrelated to the 501 claim or it is shown that the services related to issues, such as punitive damages, which were clearly beyond the scope of a 501 proceeding.

Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 272 (Fla. 1st DCA 1985) ; see also Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 370-71 (Fla. 2013) (quoting Heindel with approval); Mandel v. Decorator's Mart, Inc. of Deerfield Beach, 965 So.2d 311, 314 (Fla. 4th DCA 2007) (same). Here, the Appellants have made no claim that the services rendered by BBG's attorneys on the other counts of the amended counterclaim were unrelated to the services rendered on the FDUTPA claim. Because the award of attorney's fees on the FDUTPA claim remains unaffected by the reversal of the damages award for lost profits and no allocation of the attorney's fee award is required, we must affirm the award of attorney's fees and costs.

IV. CONCLUSION

In summary, we affirm the sanctions order that struck the Appellants' pleadings and entered a default against them on BBG's amended counterclaim. We reverse the Order on Trial and the final judgment to the extent that they awarded lost profits and prejudgment interest thereon to BBG. We remand this case to the trial court for a new trial limited to the issue of BBG's lost profits. We affirm the other damages awards, including those for disgorgement of salaries and bonuses against Mr. Coghlan and Ms. del Grosso and the awards for additional expenses and punitive damages against all of the Appellants. We also affirm the award of attorney's fees and costs.

Affirmed in part, reversed in part, and remanded.

MORRIS and SLEET, JJ., Concur.

      BBG added two additional counter-defendants to the litigation who were subsequently dropped as parties. For the purposes of this opinion, we need not address the allegations of the amended counterclaim or the course of the litigation pertaining to these parties who were eventually dropped.

      We commend the trial court for the care that it put into the preparation of the Order on Trial. The detail contained in this order has rendered this court's task of appellate review much easier than it might otherwise have been.

      The amount of prejudgment interest for this award is stated in the final judgment as $122,864.61 instead of $122,864.60.

      The amount of the judgment against Mr. Coghlan for disgorgement of salary and bonuses is $721,124, plus prejudgment interest of $122,048.92. The amount of the judgment against Ms. del Grosso for disgorgement of salary and bonuses is $729,550, plus prejudgment interest of $122,864.61.

      The discussion of the methodology pertinent to the tampered group is by way of example only. A detailed examination of the methodology employed by BBG's expert is beyond the scope of this opinion. Because the issue of BBG's lost profits must be tried again under a correct rule of proof, we will not discuss the testimony of BBG's expert in its entirety.


author: KELLY, Judge.

text:
    TREASURE CHEST POKER, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    Case No. 2D15-3508
    District Court of Appeal of Florida, Second District.
    Opinion filed June 30, 2017
    William A. Van Nortwick, Jr., of Akerman LLP, Jacksonville; Diane G. DeWolf of Akerman LLP, Tallahassee; and G. Andrew Gracy of Peebles & Gracy, P.A., Dunedin, for Appellant.
    William N. Spicola, Magdalena Ozarowski, Megan Kachur, and Dwight O. Slater, Tallahassee, for Appellee.
   KELLY, Judge.

Treasure Chest Poker, LLC, filed this action for declaratory judgment against the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, seeking a declaration that the Department had improperly given notices of noncompliance to establishments that were Treasure Chest's customers. The trial court entered a final declaratory judgment adverse to Treasure Chest, and it appeals. We do not reach the merits of this appeal because we conclude the trial court lacked jurisdiction to enter a declaratory judgment. Accordingly, we reverse the judgment and remand with directions to dismiss the complaint with prejudice.

Treasure Chest operates free poker games in businesses regulated by the Department's Division of Alcoholic Beverages. The Department issued notices to Treasure Chest's customers stating it had received a complaint that Treasure Chest was conducting "games of chance" on their premises. It further advised that "it is a violation of Chapter 849, Florida Statutes, to allow or permit gambling implements or gambling activities on your licensed premises." The notices also state "[n]o administrative or criminal charges are being filed at this time." Treasure Chest alleges by issuing these notices the Department "has placed [Treasure Chest] and its customers in fear that they will be criminally or administratively prosecuted for engaging in activities that are, in fact, legal." The complaint asked the court to declare that Treasure Chest's poker games did not violate chapter 849 "or any other law" and accordingly, the Department had no authority to issue the notices of noncompliance. We conclude Treasure Chest's complaint was insufficient to invoke the jurisdiction of the circuit court to enter a declaratory judgment.

The standard for determining the sufficiency of a declaratory judgment complaint is set forth in May v. Holley, 59 So.2d 636 (Fla. 1952) :

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Id. at 639. "Thus, absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief." Santa Rosa County v. Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla. 1995) ; see also Bryant v. Gray, 70 So.2d 581, 584-85 (Fla. 1954) ; Grable v. Hillsborough Cty. Port Auth., 132 So.2d 423, 425-26 (Fla. 2d DCA 1961) ; Colby v. Colby, 120 So.2d 797, 799-800 (Fla. 2d DCA 1960). Courts will not determine the construction or validity of a statute or ordinance in the absence of a justiciable controversy. Ervin v. City of North Miami Beach, 66 So.2d 235, 236-37 (Fla. 1953). Where the statute or ordinance at issue is criminal, this court has held that generally, unless someone is charged with violating the statute or prosecution is imminent, a declaratory judgment action to determine the construction or validity of a criminal statute lacks a justiciable controversy. El Faison Dorado, Inc. v. Hillsborough County, 483 So.2d 518, 519 (Fla. 2d DCA 1986) ; Duran v. Wells, 307 So.2d 259, 261-62 (Fla. 2d DCA 1975).

Our decision in El Faison is instructive. The appellant was a club that brought an action for declaratory relief as to the constitutionality of a county ordinance prohibiting the exhibition of animals fighting. 483 So.2d at 519. Explaining why the case did not present a justiciable controversy we stated:

The complaint merely says that "[the Club] and its members could perhaps be subject to future arrests and convictions if they continue to engage in the sport of cockfighting." There is no allegation and no evidence in the record that the Club, a corporation, has ever been threatened with prosecution under the ordinance in question. It is apparent from a reading of the complaint ... that the Club is really concerned about the activities of its individual members and is seeking an advisory decree for their benefit.

Id. We concluded that because the Club had failed to allege or demonstrate that it faced an imminent threat of prosecution for violating the ordinance it was not entitled to declaratory relief. Id. at 520.

With these principles in mind, we conclude that Treasure Chest's allegations were insufficient to entitle it to declaratory relief. Treasure Chest did not allege that it faces an imminent threat of administrative action or criminal prosecution. Its complaint alleges only that the notices have "placed it in fear" that it will be criminally or administratively prosecuted. At best, Treasure Chest has asserted a "speculative fear of harm that may possibly occur at some time in the indefinite future." State v. Fla. Consumer Action Network, 830 So.2d 148, 152 (Fla. 1st DCA 2002). Further, even if the Department's action in issuing these notices could somehow be construed to have created a justiciable controversy, the controversy would have been between Treasure Chest's customers and the Department. See Bryant, 70 So.2d at 584-85 ; Grable, 132 So.2d at 425-26. Treasure Chest's complaint acknowledges that only its customers are regulated by the Department. Thus, it does not face even the possibility of "administrative prosecution" from the Department. As to the possibility of criminal prosecution, the Department is not the entity charged with enforcing chapter 849. So, to the extent Treasure Chest alleges it fears the possibility of prosecution, it has sought relief against the wrong entity.

Treasure Chest's complaint did not establish it was entitled to a declaratory judgment. Accordingly, the trial court did not have jurisdiction, and it should have dismissed the action without addressing the merits. We reverse the judgment and remand with directions to the trial court to dismiss Treasure Chest's complaint with prejudice.

Judgment reversed; remanded with directions.

BLACK and BADALAMENTI, JJ., Concur.

      Chapter 86, Florida Statutes, authorizes courts to enter declaratory judgments. See §§ 86.011-111, Fla. Stat. (2014).

      The Department moved to dismiss Treasure Chest's complaint for failure to state a cause of action for declaratory relief. The trial court denied the motion. The Department did not raise the denial of its motion as an issue on appeal. However, failure to state a proper claim for declaratory relief is jurisdictional. Santa Rosa County v. Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla. 1995) ; Bryant v. Gray, 70 So.2d 581, 584-85 (Fla. 1954) ; Colby v. Colby, 120 So.2d 797, 799-800 (Fla. 2d DCA 1960). Even though the Department did not question the trial court's jurisdiction, we are nevertheless required to address the issue. See Polk County v. Sofka, 702 So.2d 1243, 1245 (Fla. 1997) ; 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1299 (Fla. 2d DCA 1994).


author: SUAREZ, J.

text:
    Ishsha SHALEM, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D17-2312
    District Court of Appeal of Florida, Third District.
    Opinion filed October 27, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for respondent State of Florida.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   SUAREZ, J.

Petitioner Ishsha Shalem petitions this Court for a writ of habeas corpus claiming her pretrial detention without bond is unlawful. We grant the petition for writ of habeas corpus and remand this cause to the trial court.

A review of the record shows that the Petitioner was ordered detained without any condition for pretrial release pending trial. She was originally arrested on February 5, 2016 and a bond was set. The information charged the Petitioner with one count of child neglect with no harm. Petitioner was to appear for arraignment on March 16, 2016 and failed to appear. She was arrested on capias warrant on October 18, 2017 and her case was heard twice, on October 18 and 19, 2017. Bond was requested but denied. The record and transcripts from the hearings show that the requirements of section 907.041, Florida Statutes (2017) and Florida Rules of Criminal Procedure 3.131 and 3.132 were not followed, and the trial court failed to make the proper findings before ordering pretrial detention.

Therefore, we grant the petition for habeas corpus and remand this cause to the trial court. The State shall have until 5:00 p.m. Friday October 27, 2017, to file a legally sufficient motion for pretrial detention if it chooses to do so. The trial court shall, no later than Monday, October 30, 2017, conduct a hearing pursuant to Florida Rules of Criminal Procedure 3.131 and 3.132, to determine appropriate conditions of release or detention, and any pretrial detention order shall comport with the requirements of section 907.041, Florida Statutes (2017). The defendant shall remain in custody pending the determination of pretrial release or detention.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


author: PER CURIAM.

text:
    Barry l. MOORE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3468
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017.
    Barry L. Moore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    Christopher SANTIAGO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2044
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Christopher Santiago, in proper person.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   PER CURIAM.

On March 4, 2015, after petitioner Christopher Santiago's probation was revoked, the trial court sentenced him to fifteen years imprisonment. Santiago filed a petition with this court, pursuant to Florida Rule of Appellate Procedure 9.141(c), seeking a belated appeal of this sentence.

In his petition, Santiago contends that he requested his trial counsel to file an appeal of the sentence, and that, despite agreeing to the request, trial counsel failed to do so. We ordered the state to respond to the petition, and in its response, the state wrote that it spoke with trial counsel, who gave his version of the post-sentence conversation with Santiago. When an appeal of the probation sentence came up, trial counsel said, Santiago was told that he could appeal but trial counsel (who was privately retained) would not handle it and Santiago would have to find another attorney.

The state's response raises a good faith basis to dispute Santiago's assertion that he requested his trial counsel to file an appeal on his behalf, and his trial counsel agreed to do it. See Brownlee v. State, 223 So.3d 1064, 1065 (Fla. 3d DCA 2017) (finding the state "had raised a good faith basis to dispute" the defendant's belated appeal petition where the state's response "informed this Court that it contacted Brownlee's defense counsel who recalled that he advised Brownlee about his appellate rights in light of his plea bargain"); Parrish v. State, 201 So.3d 145, 145-46 (Fla. 3d DCA 2016) (finding the state "raised a good faith basis to dispute" the defendant's belated appeal petition where the state "appended an e-mail to its Response ... in which trial counsel disputes Parrish's assertion that counsel was requested to file a notice of appeal"). We, therefore, appoint the judge presiding in criminal division ten of the Miami-Dade circuit court as a commissioner to hold an evidentiary hearing and determine the limited, disputed issues of fact upon which Santiago's petition turns: whether Santiago instructed his trial counsel to file a notice of appeal and trial counsel agreed to file one. See Fla. R. App. P. 9.140 cmt. n. (1996 amend.) ("In the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate courts may appoint a commissioner to make a report and recommendation."). In order to allow the division judge the opportunity to conduct an evidentiary hearing, make the required determination, and transmit the report of such determination to this court, the proceedings on Santiago's petition shall be held in abeyance for sixty days from the date of this order.

Commissioner appointed; petition held in abeyance.


author: Per Curiam.

text:
    SCHOOL BOARD OF ST. LUCIE COUNTY, Appellant, v. SOMERSET ACADEMY, INC. and Somerset College Prep Middle School, Appellees.
    No. 4D16-1081
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017
    Johnathan A. Ferguson, Fort Pierce, for appellant.
    Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.
   Per Curiam.

The School Board of St. Lucie County ("School Board") appeals from an order of the State Board of Education, which allows Somerset Academy, Inc. ("Somerset") to establish and operate a new charter school. The order overturned the School Board's denial of Somerset's application to replicate a high-performing charter school. The School Board had denied Somerset's charter school application after determining that the application failed to comply with the statutory requirements for replication of a high-performing charter school. Because clear and convincing evidence supported the School Board's denial of Somerset's charter school application, we reverse.

In August 2015, Somerset filed an application with the St. Lucie County School Board to establish a middle school that would replicate a high-performing charter school that it was currently operating in Broward County. The application was made pursuant to section 1002.331, Florida Statutes (2015), which allows "[a] high-performing charter school [to] submit an application pursuant to s. 1002.33(6) in any school district in the state to establish and operate a new charter school that will substantially replicate its educational program." § 1002.331(3)(a), Fla. Stat. (2015). The proposed school, Somerset College Prep Academy Middle School ("Somerset Prep") was to be modeled after Somerset Academy Middle School, Chapel Trail ("Chapel Trail"), and serve grades 6-8.

A School Board evaluation team reviewed Somerset's application and accompanying materials, interviewed Somerset's board members, and utilized the Florida Charter School Application Evaluation Instrument for high-performing replications during the evaluation process. The Evaluation Instrument, which was adopted by the Florida Department of Education under Florida Administrative Code Rule 6A-6.0786, sets out twenty standards that a school board must use as part of its review of a charter school replication application. See § 1002.33(6)(b), Fla. Stat. (2015).

After completing its review of Somerset's application, the evaluation team determined that Somerset failed to demonstrate by clear and convincing evidence that it was replicating its existing high-performing middle school in Broward County pursuant to statutory criteria. Among other things, the application failed to show any significant involvement in the establishment and operation of the proposed charter school by those involved in establishing and operating the Chapel Trail School. In addition, the application failed to meet statutory requirements for demonstrating, among other things, adequate financing and staff support for its proposed educational programs and operational plan, an acceptable reading curriculum and differentiated strategies, equal opportunities for students with moderate to severe disabilities, effective governance and management, and methods for encouraging the use of innovative learning methods.

Based on the Evaluation Instrument prepared by the evaluation team, the Superintendent recommended that the School Board deny the application.

On September 22, 2015, the School Board held a public meeting at which it considered Somerset's application. After reviewing all the materials submitted to the School Board, hearing testimony from Somerset and community representatives, and considering the evaluation team's recommendation, the School Board unanimously voted to deny Somerset's application. On October 1, 2015, the School Board sent Somerset a Notice of Denial letter, with supporting documents and transcripts detailing numerous deficiencies in the application and outlining the reasons for denial of the application.

Somerset appealed the School Board's denial of its charter application to the State Board of Education. In support of its denial, the School Board provided the State Board of Education with a record of the materials it considered at the hearing on the charter school application. In February 2016, after hearing oral argument from both parties, but without further discussion or questions, the State Board of Education voted to grant Somerset's appeal and overturn the School Board's denial. In March 2016, the Commissioner of Education, Pam Stewart, acting on behalf of the State Board of Education, issued a three-page final order cursorily stating the State Board's reasons for granting the appeal. The School Board appealed.

Our review of the State Board's reversal of the School Board's decision requires us to determine whether the School Board's denial of the high-performing replication charter application is supported by clear and convincing evidence. Sch. Bd. of Seminole Cty. v. Renaissance Charter Sch., Inc. , 113 So.3d 72, 76-77 (Fla. 5th DCA 2013) ; Sch. Bd. of Polk Cty. Fla. v. Renaissance Charter Sch., Inc. , 147 So.3d 1026, 1029 (Fla. 2d DCA 2014).

On appeal, the School Board argues that it demonstrated by clear and convincing evidence a valid basis for denying Somerset's application: the application did not materially comply with the requirements of section 1002.33 (6(b)3.b., Florida Statutes (2015). As such, the School Board contends that its denial of the application should be upheld.

Section 1002.33(6)(b) 3.b., Florida Statutes (2015), provides that the School Board may deny the charter application if the application fails to meet any one of the five listed criteria. For example, the School Board may deny an application if "[t]he proposed charter school's educational program does not substantially replicate that of the applicant or one of the applicant's high-performing charter schools." § 1002.33(6)(b) 3.b.(III), Fla. Stat. (2015).

Here, Somerset's application alleged that the proposed school would use the same education program and educational concept "as does # 5151," the Chapel Trail school, but included vague, boilerplate statements in an attempt to support those assertions. Furthermore, the application included some educational staff it deemed vital to its educational program, but failed to appropriately account for those staff in its budget, which would also violate sections 1002.33(6)(b)3.b.(V) and 1002.33(6)(a), Florida Statutes (2015).

However, despite the School Board's specific, detailed, and well-founded objections to the deficiencies in Somerset's application and clear and convincing evidence that Somerset's application did not materially comply with the requirements of section 1002.33(6)(b) 3.b., Florida Statutes (2015), the State Board of Education issued an order overturning the School Board's decision and granted Somerset's application to open the charter school in St. Lucie County. Because clear and convincing evidence supported the School Board's denial of Somerset's charter school application, we reverse the order of the State Board rejecting the School Board's decision and approving Somerset's application. See Sch. Bd. of Indian River Cty. v. Somerset Acad., Inc. , Nos. 4D16-1227 & 4D16-1228, 2017 WL 4417733 (Fla. 4th DCA Oct. 4, 2017) ; Sch. Bd. of Polk Cty. Fla. , 147 So.3d at 1029 ; Sch. Bd. of Seminole Cty. , 113 So.3d at 77.

Reversed.

May and Ciklin, JJ., concur.


author: LOGUE, J.

text:
    PEREZ-GURRI CORPORATION, etc., Appellant, v. Don MCLEOD, et al., Appellees.
    Nos. 3D15-2590 & 3D17-1478
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017.
    GPG Law, and Christopher J. Perez-Gurri (Fort Lauderdale); Samson Appellate Law, and Daniel M. Samson, for appellant.
    Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez and Karen M. Shimonsky (Tampa), for appellee M2G2 Architects, LLC.
    Before LOGUE, SCALES, and LUCK, JJ.
   LOGUE, J.

Perez-Gurri Corporation (the General Contractor) appeals a trial court order dismissing its professional malpractice action and entering summary judgment in favor of M2G2 Architects, LLC. Because an issue of material fact remains as to whether M2G2 Architects provided services for a construction project the General Contractor undertook with the City of Miami, and because the General Contractor's claim against M2G2 Architects was not contractually barred, we reverse.

The General Contractor is a Florida construction company that successfully bid on, and became the general contractor for, a City of Miami renovation project for the Caribbean Marketplace in Little Haiti. The City's prime consultant on the project subcontracted with Don McLeod and McLeod Architectural Group to prepare design documents for the renovation. In May 2013, Don McLeod established a new firm, M2G2 Architects, LLC. When construction on the renovation project was delayed, the General Contractor brought an action against multiple architects, engineers, and consultants, including M2G2 Architects.

The General Contractor alleged in its fourth amended complaint that M2G2 Architects committed professional malpractice that delayed the construction. M2G2 Architects moved for summary judgment on the basis that it played no role in the project. It also argued that the General Contractor's claim against it was contractually barred by a "No Damages for Delay" clause in the contract between the General Contractor and the City of Miami.

The trial court granted M2G2 Architects' motion for summary judgment. It found that "the record evidence conclusively establishes that no services were rendered by M2G2 in conjunction with the project." And it further concluded that even if M2G2 Architects played a role in the project, its principal, Don McLeod, was the architect of record and a representative of the City, and the no delay damages clause precluded any claim for delay damages against the City and its representatives. This appeal followed.

We reverse the trial court's entry of summary judgment entered in favor of M2G2 Architects for two reasons. First, an issue of material fact remains as to whether M2G2 Architects was involved in the renovation project. And second, the contract between the General Contractor and the City does not insulate M2G2 Architects from liability.

Summary judgment "is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). "A party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict." Perez-Rios v. Graham Companies, 183 So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1108 (Fla. 4th DCA 2000) ). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015). "At both the trial and appellate level, all evidence and inferences from the evidence must be taken in the light most favorable to the non-moving party." Id. at 334. This court reviews de novo a trial court's ruling on a motion for summary judgment. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

Here there remains a genuine issue of material fact as to whether M2G2 Architects rendered services on the renovation project. While there may be evidence that M2G2 Architects did not provide services on the project, there is also ample record evidence that it did. Among this evidence is a January 23, 2014 email from Don McLeod, advising that his company McLeod Architectural Group was no longer in business, and stating, "[a]ll services provided related to the Caribbean Marketplace since mid-summer have been through M2G2 Architects LLC." M2G2 Architects also demanded payment for services rendered on the project from July 15, 2013, through December 30, 2013. And a January 29, 2014 email from another principal of M2G2 Architects to the City demanded payment and stated that M2G2 Architects had been providing services on the project since July 2013. Further, M2G2 Architects' website indicated that it was "honored to have played a role in ensuring that this iconic community venue [the Caribbean Marketplace] is functioning again." A jury or factfinder could reasonably infer from these statements by M2G2 Architects or its principals that services to the project were provided by M2G2 Architects.

M2G2 Architects, however, contends the deposition testimony of its principals-who provided an explanation for those communications-is so persuasive as to conclusively establish that M2G2 Architects was not involved in the project at issue. But a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact. Here, the documentary evidence, viewed in the light most favorable to the General Contractor, indicates at a minimum that there remains a disputed issue of material fact as to whether M2G2 Architects rendered services on the project.

Turning to the question of whether the no delay damages provision bars the General Contractor's claim against M2G2 Architects, we review the trial court's interpretation of the contract de novo. Charbonier Food Servs., LLC v. 121 Alhambra Tower, LLC, 206 So.3d 755, 758 (Fla. 3d DCA 2016). "When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties' intent." Murley v. Wiedamann, 25 So.3d 27, 29 (Fla. 2d DCA 2009). A single term or group of words must not be read in isolation. American K-9 Detection Servs., Inc. v. Cicero, 100 So.3d 236, 238-39 (Fla. 5th DCA 2012). "Rather, 'the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.' " Id. (quoting Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1081 (Fla. 5th DCA 2005) ). "[W]e are constrained by law to construe a contract as a whole so as to give effect, as here, to all provisions of the agreement if it can be reasonably done." McArthur v. A.A. Green & Co. of Fla., 637 So.2d 311, 312 (Fla. 3d DCA 1994).

We agree with the trial court that the contract between the City and the General Contractor expressly provides that the General Contractor waived its right to seek delay damages. But the question is whether the parties contracted to have this waiver extend only to the City or to other parties such as M2G2 Architects. We conclude that the contract, read in its entirety, waives delay damages only against the City and not against other parties like M2G2 Architects.

The clause at issue reads:

71. Contractor-No Damages for Delay
No claim for damages or any claim, other than for an extension of time, shall be made or asserted against City by reason of any delays except as provided herein. Contractor shall not be entitled to an increase in the Contract price or payment or compensation of any kind from City for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable; provided however, that this provision shall not preclude recovery of damages by Contractor for actual delays due solely to fraud, bad faith or active interference on the part of City or its Consultant. Otherwise, Contractor shall be entitled only to extensions of the Contract Time for completion of the Work as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.
Except as may be otherwise specifically provided for in the Contract Documents, the Contractor agrees to make no claim for damages for delay of any kind in the performance of the Contract Documents whether occasioned by any act or omission of the City or any of its representatives (whether it is an Excusable Delay or otherwise) and the Contractor agrees that any such claim shall be completed solely by an extension of time to complete performance of the Work. In this regard, the Contractor alone hereby specifically assumes the risk of such delays, including without limitation: delays in processing or approving shop drawings, samples or other submittals or the failure to render determinations, approvals, replies, inspections or tests of the Work, in a timely manner. Contractor shall not receive monetary compensation for the City delay. Time extensions may be authorized by the City in certain situations. Contractor agrees to this section by submitting a bid response and shall have no recourse from this Section.

(Emphasis added.)

The first paragraph of the "No Damages for Delay" clause contains two separate sentences that expressly state that the City is protected from the General Contractor's claims arising from delay damages: "[n]o claim ... shall be made or asserted against City by reason of any delays except as provided herein" and "[c]ontractor shall not be entitled to an increase in the Contract price or payment or compensation of any kind from City... arising because of delay." While these sentences expressly state the City is protected, we could find no sentences that expressly extend the protections of the no delay damages clause to other entities. M2G2 Architects' interpretation of the contract provides no persuasive explanation of why the contract includes these two sentences that refer to the City, but no one else, as being protected by the no delay damages provision.

Instead, M2G2 Architects contends that a sentence in the second paragraph overrides these sentences by providing that the delay damages clause protects the City and its "representatives": "the Contractor agrees to make no claim for damages for delay of any kind in the performance of the Contract Documents whether occasioned by any act or omission of the City or any of its representatives." But this sentence does no more than define the extent of the waiver: the delay damages clause applies to delays whether caused by the City or its representatives. The sentence does not state who the beneficiary of the waiver is.

Standing alone, the sentence may well support an inference, which M2G2 Architects ask us to draw, that inclusion in the waiver of delays caused by the City's representatives means the General Contractor forgoes delay damages against both the City and its representatives. But an equally plausible inference can be drawn that the General Contractor forgoes delay damages against the City whether caused by the City or its representatives for whose actions the City might be liable. And this later inference is the only one that can be reconciled with the two sentences from the first paragraph quoted above that expressly name only the City as the beneficiary of the no delay damages provision.

Moreover, the "Third Party Beneficiaries" clause in the contract between the General Contractor and the City expressly states that no third party may benefit from the contract. It reads:

97. Third Party Beneficiaries
Neither Contractor nor City intends to directly or substantially benefit a third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this Contract and that no third party shall be entitled to assert a claim against either of them based upon this Contract. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Contract.

If M2G2 Architects were intended to be protected by the no delay damages provision, one would expect some reference to that idea in this provision which otherwise precludes any third party beneficiaries to the contract. The absence of any such language undermines M2G2 Architects' proposed interpretation.

In short, the contract between the General Contractor and the City contains express language naming the City as the beneficiary of the delay damages clause. No express language extends those protections to any other party like M2G2 Architects. Reading the contract in its entirety as we must, and maintaining the meaning of every provision to the extent we can, we conclude that the protections established by the delay damages clause extends only to the City.

We reverse the summary judgment entered in favor of M2G2 Architects because an issue of material fact remains as to whether it was involved in the Caribbean Marketplace renovation project, and because the trial court erred by extending the delay damages clause of the General Contractor-City contract to a third party. Accordingly, we also reverse the trial court's final judgment awarding attorney's fees from the General Contractor to M2G2 Architects.

Reversed and remanded.


text:
    Leslie HOWARD, Appellant, v. GREEN TREE SERVICING LLC, Appellee.
    No. 3D17-1761
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Mark H. Klein (Miramar), for appellant.
    Shapiro, Fishman & Gaché, LLP, and Kimberly N. Hopkins and Ronald M. Gaché (Tampa); Ileen J. Cantor (Boca Raton), for appellee.
    Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. French v. Dep't of Children & Families, 920 So.2d 671, 676-677 (Fla. 5th DCA 2006) ("In order to preserve an argument for appellate review, it must be made in the lower tribunal with sufficient specificity to apprise the judicial officer of the alleged error and the aggrieved party must also obtain a ruling on the argument from the lower tribunal.").


text:
    Moise HARVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 3D17-2506
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Carlos J. Martinez, Public Defender and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General and Kayla H. McNab, Assistant Attorney General, for respondent.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   SUAREZ, J.

Petitioner Moise Harvey petitions this Court for a writ of habeas corpus, claiming the trial court's grant of the state's motion for pretrial detention and revocation of bond is unlawful. We grant the petition for habeas corpus.

The record shows that Petitioner Moise Harvey is charged with a non-violent, third-degree felony and a misdemeanor after he allegedly attempted to cash a couple of forged checks. He was initially released on bond pending trial, set for September 11, 2017. Petitioner was given oral notice of that hearing date at his arraignment on July 3, 2017. Due to Hurricane Irma, the Eleventh Judicial Circuit was closed beginning September 7, reopening for normal operations on September 18, 2017. As the courthouse was shuttered for the storm on the scheduled date of Petitioner's trial, at a subsequent hearing on September 20 the trial judge took a court continuance and set the case for trial on October 2. Petitioner was not present in the courtroom on September 20, having never been notified-either orally or in writing-that his case would be called that day for any purpose. When he failed to appear for the hearing on October 2, 2017, a warrant was issued for his arrest. The Petitioner's bondsman moved to quash the warrant, and the Petitioner voluntarily appeared at the subsequent hearing on November 9, 2017. He explained to the trial court that he did not come to court on September 11 because "it was like, after the hurricane, like, the day after," and he had no electricity or cell phone charge.

A review of the transcript from the hearing on November 9, 2017 shows that the trial court revoked the Petitioner's existing bond and, rather than set a higher bond or impose additional conditions of pretrial release, invited the State to move for pretrial detention. After hearing defense counsel strenuously argue against pretrial detention, the trial court found the Petitioner's failure to appear at the last scheduled hearing to be willful, and found that there were no conditions of release that could "reasonably protect the community from physical harm to persons or assure the presence of the accused at trial." The trial court revoked the Petitioner's bond, granted the state's motion for pretrial detention and incarcerated the Petitioner to await his January 16, 2018 trial date.

Section 907.041, Florida Statutes (2017), provides that it is the intent of the Legislature to create a presumption in favor of pretrial release, whether on non-monetary or monetary conditions. Florida Rule of Criminal Procedure 3.131, states in relevant portion:

(a) Right to Pretrial Release. Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions .... If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Fla. R. Crim. P. 3.131(a). Further, it is the State's burden to show the need for pretrial detention. Fla. R. Crim. P. 3.132(c)(1). Not only did the State in this case fail to show that the Petitioner's failure to appear at his last court date was willful, it also failed to show that there were less onerous conditions that could be imposed to assure the Petitioner's appearance at future court dates. See, e.g., State v. Blair, 39 So.3d 1190, 1191-92 (Fla. 2010) ("Pretrial detention may not be ordered based on a failure to appear unless the court finds that the failure to appear was willful."); Williams v. State, 68 So.3d 1010, 1011 (Fla. 4th DCA 2011). "[E]ven where a defendant has violated pretrial release conditions, such as through a failure to appear," there is a "presumption in favor of release" that the State may overcome only by showing that other available measures will be insufficient to guarantee the defendant's presence at future hearings. Blair, 39 So.3d at 1194-95 ; see also Mendoza v. Cross, 143 So.3d 1155, 1157 (Fla. 3d DCA 2014) (holding that, despite defendant's two prior failures to appear in the same case, that trial court erred in detaining defendant pretrial without making a finding that no conditions of release could assure his presence). A pretrial detention order must contain findings of fact and conclusions of law showing that the constitutional and statutory criteria for pretrial detention are met. See Fla. R. Crim. P. 3.132(c)(2) ; § 907.041(4)(i), Fla. Stat. (2017) ; State v. Paul, 783 So.2d 1042 (Fla. 2001).

We find insufficient evidence of willfulness in this record. The Petitioner's failure to attend his last hearing was not willful; South Florida was still recovering from Hurricane Irma a few days earlier and the Petitioner had no power, no generator, and no way to charge his phone. He lives with an aunt but received mail at a different address and was not notified by his bondsman of the new hearing date. He testified that he attempted to contact the court but could not verify that it was open. We therefore grant the writ of habeas corpus. The trial court shall, no later than 5:00 p.m. Wednesday, November 22, 2017, conduct a hearing pursuant to Florida Rules of Criminal Procedure 3.131 and 3.132, and section 907.041, Florida Statutes (2017). The Defendant shall remain in custody pending the determination of pretrial release.

The opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


text:
    Cleveland WEAVER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5341
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017.
    Cleveland Weaver, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This Court issued an order on October 10, 2017, directing Appellant to show cause why sanctions should not be imposed against him in light of his having instituted repetitive, meritless proceedings in this Court. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

We have reviewed Appellant's response and determined that it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his convictions and sentences imposed in Gadsden County case number 88-CF-564. The clerk of this court is directed to not accept any filing in this case unless it is signed by a member in good standing of the Florida Bar. Appellant is warned that any filings that violate the terms of this order may result in a referral to the appropriate correctional institution for disciplinary proceedings.

AFFIRMED.

RAY and OSTERHAUS, JJ., and PATTERSON, CHRISTOPHER N., ASSOCIATE JUDGE, CONCUR.


author: MORRIS, Judge.

text:
    LEXON INSURANCE COMPANY, Appellant, v. CITY OF CAPE CORAL, Florida ; and Coco of Cape Coral, LLC, Appellees.
    Case No. 2D16-1533
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017 Rehearing Denied February 15, 2018
    John H. Pelzer of Greenspoon Marder, P.A., Fort Lauderdale; Victor Kline of Greenspoon Marder, Orlando; Robert E. Ferencik, Jr. and Laura A. Baker of Ferencik Libanoff Brandt Bustamante and Goldstein, P.A., Fort Lauderdale; and Bruce L. Maas of Harris Beach PLLC, Pittsford, New York, for Appellant.
    Edmond E. Koester and Alex R. Figares of Coleman, Yovanovich & Koester, P.A., Naples, for Appellee Coco of Cape Coral, LLC.
    E.A. "Seth" Mills, Jr. and S. Jordan Miller of Mills Paskert Divers P.A., Tampa, for Amicus Curiae The Surety and Fidelity Association of America.
    Debbie Sines Crockett of Cheffy Passidomo, P.A., Tampa; and Lisha Bowen of Lisha Bowen, P.A., Tampa, for Amicus Curiae United Policyholders.
    No appearance for remaining Appellee.
   MORRIS, Judge.

Lexon Insurance Company appeals a final judgment entered in favor of Coco of Cape Coral, LLC (Coco), in Coco's action for breach of $7.7 million surety bond contracts in connection with the development of a subdivision in Cape Coral, Florida, by Priority Developers, Inc. (Priority). On appeal, Lexon argues, among other things, that Coco's claims are barred by the five-year statute of limitations, which Lexon argues began to run in 2007 when Priority abandoned the project and thus breached the surety bonds. We agree, and because this issue is dispositive of the action, we decline to further comment on the other issues raised in this appeal. Accordingly, we reverse the decision of the trial court.

I. Facts

On January 31, 2005, the City of Cape Coral adopted Ordinance 14-05, a development order that governs the commercial and residential development of 446.09 acres. The project at issue in this appeal consists of the development of a single-family subdivision called the Village at Entrada. Priority hired contractors who began work on the subdivision improvements in 2005. The site plan permit authorizing the development of the subdivision was scheduled to expire on September 8, 2007.

Ordinance 14-05 required Priority, as the developer, to "provide a surety bond or certified check in an amount of the estimated cost to complete all required site improvements, as determined by the City." In June 2006, Lexon issued two subdivision bonds totaling $7.7 million. This amount represented the cost to complete the remaining work on the subdivision at the time the bonds were issued. The bonds provided as follows:

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal [Priority] shall construct, or have constructed, the improvements herein described, and shall save the Obligee [the City] harmless from any loss, cost or damage by reason of its failure to complete said work, then this obligation shall be null and void, otherwise to remain in full force and effect, and the Surety, upon receipt of a resolution of the Obligee indicating that the improvements have not been installed or completed, will complete the improvements or pay to the Obligee such amount up to the Principal amount of this bond which will allow the Obligee to complete the improvements.

The City stopped completing inspections on the project in late 2006 and the contractor stopped work on the project in March 2007, both due to nonpayment by Priority. Photographs taken by the City's inspector on June 13, 2007, confirmed that the contractor was no longer working on the project, and the City's computer system indicated "that the site plan was closed" on that date. BankAtlantic, the lender on the project, obtained a foreclosure judgment against Priority in 2009.

On October 27, 2010, the City contacted Lexon, representing that the City "would like to place a claim to have the outstanding work on this project completed" and asking Lexon to notify the City "on the next step in this procedure." Lexon responded by letter on November 8, 2010, requesting information from the City in order for Lexon to review the request. The City did not provide the requested information to Lexon or move forward on the claim because, by this time, the City was receiving interest from potential buyers of the project. In March 2012, Coco purchased the project for $6.2 million. On July 23, 2012, the City adopted Resolution No. 21-12 demanding that Lexon fulfill its obligations under the bonds.

On October 23, 2012, the City filed this action against Lexon for breach of contract and for declaratory relief. The City then assigned its claims to Coco, which was substituted as plaintiff in the action on January 23, 2014. After a bench trial in November 2015, the court memorialized its findings in a letter to the parties and entered judgment on the bonds for Coco and against Lexon on March 1, 2016. The trial court rejected Lexon's claim that the statute of limitations had expired before the City filed its complaint in October 2012. The court found that the lawsuit was timely filed and that

surety bonds are a type of insurance contract[ ] and are breached once wrongful denial of a claim occurs.... The bonds contain no deadline by which claims must be made. Under Cape Coral Ordinance 14-05, the bond principal's obligations were not due for ten years from the adoption of the Ordinance, January 31, 2005.

The trial court also made additional rulings which we do not address because they are not relevant to the dispositive issue on which we reverse.

II. Analysis

On appeal, Lexon contends that the trial court erred in concluding that the statute of limitations did not bar Coco's claim because, Lexon argues, "the time to sue on a bond commences when the principal breaches its underlying obligation." Lexon argues that the five-year statute of limitations applicable to a claim for breach of contract began to run in March 2007 because that is the date Priority abandoned the project and the City's cause of action under the bonds accrued.

A legal action on a contract must be commenced within five years, and the cause of action accrues when the last element constituting the cause of action occurs. §§ 95.11(2)(b), 95.031(1), Fla. Stat. (2012). "Florida case law consistently holds that a cause of action for breach of contract accrues and the limitations period commences at the time of the breach." Tech. Packaging, Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008). "Generally, 'the issue of whether [a] claim is barred by the statute of limitations is a question of law subject to de novo review.' " Access Ins. Planners, Inc. v. Gee, 175 So.3d 921, 924 (Fla. 4th DCA 2015) (alteration in original) (quoting Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859 (Fla. 4th DCA 2013) ). But "[t]he occurrence of a breach ... is question of fact." Id. The question in this case centers on when the City's, now Coco's, cause of action accrued against Lexon on the surety bonds.

"[S]uretyship has been described as 'a contractual tripartite relationship in which one party (the surety) guarantees to another party (the obligee) that a third party (the principal) will perform a contract in accordance with its terms and conditions. The surety promises the obligee to answer the debt, default, or miscarriage of the principal.' " Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1226 (Fla. 2006) (quoting Edward Etcheverry, Rights and Liabilities of Sureties, in Florida Construction Law and Practice at 8-7 (5th ed. 2006)). Thus, the surety's liability to the obligee is based on the liability of the principal. Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So.2d 195, 198 (Fla. 1992) ; see 72 C.J.S. Principal and Surety § 86 (2017) ("On a breach by the principal of the contract or condition secured, the surety is liable.").

In Federal Insurance Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119, 1121-22 (Fla. 1998), the court held that the statute of limitations for an action on a surety bond began to run when the contractor defaulted, which under the facts of the case was when the work was accepted by the obligee, not when the obligee discovered latent defects in the work nine years later. The court noted that it was the principal's "default" that "constituted a breach," rejecting the obligee's argument that "the statute of limitations did not begin to run against [the surety] until" the surety was "called upon to cure the default." Id. at 1121 n.5.

"With respect to a claim arising from a bond, it is ... well settled that the date of accrual occurs at the time of the breach of the bond." U.S. v. Cocoa Berkau, Inc., 990 F.2d 610, 613 (Fed. Cir. 1993). In Cocoa Berkau, the "critical issue on appeal [was] which event, the default ... by the bond principal or the default of payment of ... damages by the bond surety, constituted the breach of the bond which fixed liability for purposes of triggering the statute of limitations." Id. The government argued that the breach occurred when the surety refused payment under the bond after the government demanded payment, but the appellate court disagreed.

The court looked to the language of the bond "stipulating the relevant obligations of the bond principal and its surety." Id. Specifically, the bond provided that upon default of the principal, the principal or surety shall pay damages to the obligee "as may be demanded." Id. The court stated that the bond "placed an obligation on the bond principal to" perform a certain action and that the "bond was breached, and thus the government's right of action accrued, when the principal failed to" perform that action, "not when the surety failed to pay liquidated damages." Id."[The surety's] duty as bond surety to pay liquidated damages arose as a consequence of the default ... by the principal, not on a demand for the damages by the government." Id.

The court went on to hold that a demand by the government for payment "was merely a procedural step for obtaining the damages and did not in itself create the liability." Id.; cf. U.S. v. Ins. Co. of N. Am., 83 F.3d 1507, 1510 (D.C. Cir. 1996) (holding that demand for payment was a prerequisite to commencement of statute of limitations where bond expressly stated that obligee "shall make a written demand" as a condition precedent to surety's liability). The court in Cocoa Berkau further noted that the

government's interpretation that its right of action accrues only when demand for liquidated damages is made on the surety would subvert the purpose of the statute of limitations, which is intended to ensure that actions are brought in a timely fashion, before they become stale.... The accrual of a right of action should occur upon default by a liable party, not when a creditor takes steps to procure performance.

990 F.2d at 614 (citations omitted).

We find the reasoning of Cocoa Berkau persuasive. The surety bond in this case placed an obligation on the principal, Priority, to construct improvements on the project. When Priority failed in its obligation to construct those improvements, the City's right of action on the bond accrued. See id.; see also N.J. Div. of Taxation v. Selective Ins. Co. of Am., 399 N.J.Super. 315, 944 A.2d 667, 674 (N.J. Super. Ct. App. Div. 2008) ("[A] claim against a surety arises upon the principal's default." (quoting Ark. State Highway Comm'n v. Union Indem. Ins. Co., 295 Ark. 273, 748 S.W.2d 338, 339 (1988) )); 72 C.J.S. Principal and Surety § 85 ("[T]he liability of a surety accrues on the breach of the contract."). Lexon's duty to pay under the bond arose as a consequence of Priority's failure to construct the improvements, not as a result of the City's demand for damages. The language in the bond referring to Lexon's "receipt of a resolution" by the City sets forth the procedure by which the City is to seek payment under the bond, but it is not the fact that created Lexon's liability. Under the facts of this case, Lexon became liable when Priority failed to construct the improvements. To hold that the statute of limitations commenced when the City passed a resolution demanding payment in 2012 would be contrary to the purpose of the statute of limitations and would allow the City to wait to bring a claim against Priority as late as 2017, ten years after Priority failed in its obligation under the bonds. See Major League Baseball v. Morsani, 790 So.2d 1071, 1078 (Fla. 2001) ("[A] main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims.").

We disagree with the trial court's conclusion that because "surety bonds are a type of insurance contract," they "are breached once wrongful denial of a claim occurs." While a surety contract is a type of insurance contract, "the surety relationship possesses characteristics that are unique and distinct from the traditional liability insurance relationship." Dadeland Depot, Inc., 945 So.2d at 1226. Because the unique nature of the surety contract bases the surety's liability to the obligee on the liability of the principal, the default of Priority, the principal, was the act that breached the bonds and started the running of the statute of limitations for purposes of Lexon's liability to the City or Coco.

By noting that that the "principal's obligations were not due for ten years from the adoption of the Ordinance, January 31, 2005," the trial court suggested that Priority would not be in breach of the bond until January 2015. The trial court relied on language in the ordinance that provides in pertinent part that "[t]he physical development authorized under this Development Order shall terminate in ten years ..., unless an extension is approved by" the city council. However, it is clear that Priority stopped its work in March 2007 and there is no indication that Priority ever resumed its obligations. Further, the trial court's interpretation that Priority had until 2015 to complete its obligation would allow the City to bring a claim against Lexon as late as 2020, when the evidence is clear that Priority breached the bond in 2007. This language does nothing more than address when the City's authorization of the project expires; it has no bearing on when Priority breached the bonds.

In sum, the City's or Coco's cause of action accrued at the earliest in March 2007, when Priority stopped development of the project, or at the latest in September 2007. The City's action filed in October 2012 was filed beyond the five-year statute of limitations and was therefore time-barred. Accordingly, we reverse and remand for the trial court to enter judgment in favor of Lexon.

Reversed and remanded.

LUCAS, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      The Surety and Fidelity Association of America filed an amicus brief in support of Lexon, and United Policyholders filed an amicus brief in support of Coco.

      The date that a contractor abandons a project commences the statute of limitations for a breach of contract claim against the contractor. See Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1058-59 (Fla. 3d DCA 2002).