author: POLEN, J.

text:
    Cheryl WELLS, Appellant, v. Cia M. WELLS, Alan Belauskas, Steve Fishman, Morgan Stanley, Eugene Michael Kennedy, P.A., Eugene Michael Kennedy, John Knox Village of Florida, Inc., Bogutz & Gordon, PC, Brian C. Bjorndahl, Kevin Kinghorn, Esq., and Lynne Tomasa, Appellees.
    No. 4D08-1341.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 2009.

      Cheryl Wells, Ocala, pro se.
    Philip L. Schwartz of Law Offices of Philip L. Schwartz, P.A., Boca Raton, for appellees Cia M. Wells and Alan Belaus-kas.
    Eugene Michael Kennedy of Eugene Michael Kennedy, P.A., Pompano Beach, pro se.
    Jonathan J. Davis and Jonathan S. Wickham of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for appel-lees Bogutz and Gordon, P.C., and Brian C. Bjorndahl.
    John R. Gillespie, Jr., of The Gillespie Law Firm, Lighthouse Point, for appellee John Knox Village of Florida, Inc.
    Scott A. Cole and Alejandro Perez of Cole Scott & Kissane, P.A., Miami, for appellee Kevin Kinghorn.
    Jon A. Jacobson of Greenberg Traurig, P.A., West Palm Beach, for appellees Morgan Stanley <& Co., Inc., and Steve Fish-man.
   POLEN, J.

Appellant, Cheryl Wells, appeals the trial court’s final judgment entered after it dismissed her third amended complaint with prejudice. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).

In the underlying action, Cheryl filed a complaint against Appellees, Cia M. Wells (Cheryl’s sister), Alan Belauskas, Steve Fishman, Morgan Stanley, Eugene Michael Kennedy, P.A., Eugene Michael Kennedy, John Knox Village of Florida, Inc., Bogutz & Gordon, P.C., Brian C. Bjorn-dahl, Kevin Kinghorn, Esq., and Lynne Tomasa , alleging breach of fiduciary duty and other claims for their involvement in the mishandling of the Wells Family Irrevocable Trust and seeking an injunction, an accounting of the trust assets, money damages, and other relief. Cheryl has appeared pro se in all proceedings to date.

Cheryl summarized the defendants’ alleged involvement in the mismanagement of the Trust as follows:

• Cia M. Wells is the daughter, co-attorney, and co-trustee of Elaine Wells.
• Alan Belauskas is the husband of Cia Wells.
• Steve Fishman is an investment advis- or and broker at Morgan Stanley who has been involved in the actions of Cia Wells and the Wells family.
• Morgan Stanley is a large investment house that currently controls most of the assets of the Wells Family Trust.
• Eugene Michael Kennedy, P.A., is the corporate parent of Eugene Michael Kennedy, Esq., a licensed Florida attorney.
• John Knox Village of Florida, Inc., is the location where Elaine Wells resided for over a decade before she was removed from Florida by Cia Wells.
• Kevin Kinghorn is an attorney appointed by the State of Arizona to represent Elaine Wells.
• Lynne Tomasa is an investigator appointed by the State of Arizona to investigate for the guardianship proceedings involving Elaine Wells.

Bjorndahl is an attorney at Bogutz & Gordon, P.C., an Arizona law firm allegedly hired by Cia Wells to bring a frivolous lawsuit in Arizona and to hide Trust property.

On August 20, 2002, Cheryl and Cia Wells’ parents, Elaine and Carroll Wells, established the Wells Family Irrevocable Trust (the Trust). According to the terms of the Trust, Elaine Wells and Cia Wells were appointed as the original Co-Trustees, and in the event that Elaine Wells ceased to act as Trustee, Cheryl Wells was to be appointed as successor Co-Trustee. On October 6, 2005, Elaine Wells and Cia Wells established the Amended Wells Family Irrevocable Trust Agreement (the Amended Agreement), under which Cia Wells was appointed sole Trustee. The Amended Agreement also provided that upon the death of Elaine Wells, Cheryl Wells is to be appointed Co-Trustee. On October 6, 2005, Elaine Wells revoked a prior Durable Power of Attorney which had named Cheryl Wells as her attorney and executed a new Durable Power of Attorney appointing Cia Wells as her attorney to manage her affairs.

Cheryl’s first complaint pled counts for declaratory judgment, breach of fiduciary duty, conversion, and wrongful interference with testamentary/trust expectancy. Carroll Wells died in 2005, and Elaine Wells’ mental and physical health had deteriorated. Cheryl alleged that Cia and defendant Kennedy knew that Elaine Wells had Alzheimer’s and yet influenced Elaine Wells to remove Cheryl as co-trustee and to revoke Cheryl’s Durable Power of Attorney. In so doing, Cheryl alleged, Cia and Kennedy breached their fiduciary duty.

The complaint alleged that in 2006 while Cheryl was out of town, Cia surrendered Elaine’s home at John Knox and moved all of Elaine’s belongings to an assisted living facility in Arizona, Cia’s home state. Since moving Elaine to Arizona, Cheryl alleged Cia had sought to secretly control the Trust finances, was disbursing Trust funds to herself, and was “generally seeking to convert and appropriate the trust’s assets to the sole use and possession of Cia and her husband [defendant] Belauskas.” The other named defendants allegedly aided and abetted Cia in her scheme to control and misuse the Trust assets.

Based on the foregoing allegations, Cheryl sought a declaratory judgment holding: (1) the Wells Trust was created, remains in existence, and has assets of approximately $1 million; (2) Elaine Wells ceased to act and perform duties as trustee on or about October 2005; (3) pursuant to Article XI of the trust, Cheryl automatically succeeded as co-trustee upon Elaine’s ceasing to act as co-trustee; the provisions of the Wells Trust could not be modified or revoked by Elaine Wells, Cia Wells, or Kennedy. Cheryl also sought an accounting of all funds received and/or administered by the defendants since 2002 and the return to Florida of all funds removed from Florida by Cia in 2005. Cheryl’s complaint sought money damages from Cia, Kennedy, and John Knox Village and an injunction against all other named defendants. Finally, Cheryl sought an emergency injunction freezing all Trust assets.

Each of the named defendants filed a motion to dismiss arguing that the complaint was too vague to be answered and failed to state a cause of action. Cheryl filed three amended complaints, and after the filing of each one, the defendants moved to dismiss arguing the complaint was too vague and failed to state a cause of action. The trial court held an evidentiary hearing on the second amended complaint, and dismissed the complaint without prejudice directing Cheryl to file a third amended complaint.

Cheryl’s third amended complaint pled the following causes of action: declaratory judgment (Count 1), breach of fiduciary duty (Count 2), conversion (Count 8), wrongful interference with testamentary/trust expectancy (Count 4), civil conspiracy (Count 5), interference with jurisdiction (Count 6), civil remedy for criminal practices (Count 7).

Following the third amended complaint and defendants’ subsequent motions to dismiss, the trial court held a hearing and entered an order dismissing Cheryl’s complaint with prejudice. There is no transcript of this hearing. In its written order, the trial court found that Cheryl had no standing to bring the claims she filed against defendants, that she failed to state a cause of action, and that further leave to amend would be futile because it was obvious the complaint could not be amended to state a cause of action. The trial court also determined it had no personal jurisdiction over the Arizona defendants, Kevin Kinghorn, Lynne Tomasa, Bogutz & Gordon, P.C., and Brian Bjorndahl, because these defendants had no minimum contacts with the State of Florida. Cheryl now timely appeals. We hold that Cheryl has standing to bring an action for declaratory judgment, that she sufficiently pled that cause of action as against Cia Wells, and reverse for further proceedings. As to all named defendants other than Cia Wells, we affirm the trial court’s dismissal of Cheryl’s action.

“A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.” Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5th DCA 2001). A dismissal for failure to state a cause of action is reviewed de novo. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.2d 1157, 1158-59 (Fla. 3d DCA 2008).

Section 86.041, Florida Statutes (2007) provides, in part:

Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect thereto:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or
(2) To direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or
(3) To determine any question arising in the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings.

Id. In King v. Pinellas Central Bank & Trust Co., 339 So.2d 712 (Fla. 2d DCA 1976), the court interpreted section 86.041 as follows:

This statute is specific that any person ... may bring a suit for declaratory judgment to have his rights declared under the trust and to direct the trustee to refrain from doing any particular act in his fiduciary capacity. The trustee is presumed to protect the rights of all of the beneficiaries of a trust and, therefore, we hold that all antagonistic and adverse interests were before the court through the trustee.

Id. at 713. Furthermore, “[t]he declaratory judgment act is to be liberally administered and construed.” Dent v. Belin, 483 So.2d 61, 62 (Fla. 1st DCA 1986). Thus, we hold that pursuant to section 86.041, Fla. Stat., Cheryl, as a beneficiary and potentially wrongfully removed co-Trustee, has standing as an interested person to bring a cause of action for declaratory judgment in the present case.

The standard for determining the sufficiency of a complaint seeking declaratory judgment was established 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. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

Id. at 639. Further, “[t]he test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Dent, 483 So.2d at 61.

Cheryl pled extensive factual allegations regarding her sister, Cia’s, alleged wrongful amendment of the family Trust and mismanagement of the Trust res. Cheryl states that Elaine Wells was diagnosed with Alzheimer’s in 2004, and in 2005 the Trust was amended. The amendment to the Trust made Cia the sole Trustee until Elaine Wells’ death despite Elaine’s clear intention in the original Trust to always have two co-Trustees in place. Based on these allegations, Cheryl’s complaint states a cause of action for declaratory judgment because (1) there is a present controversy and need for the declaration, (2) Cia, as former co-Trustee and current sole Trustee, is a proper adverse party, and (3) Cheryl’s powers and privileges are dependent upon the facts or the application of law to the facts. See May, 59 So.2d at 639.

We also reverse the trial court’s dismissal with prejudice of Cheryl’s claims of breach of fiduciary duty and conversion. In the event that Cheryl successfully obtains declaratory relief on remand and is restored as co-Trustee, she may then bring these causes of action against defendants, Cia Wells and Eugene Kennedy. We affirm the trial court’s dismissal with prejudice as to all other named defendants for either lack of personal jurisdiction or failure to state a cause of action.

Affirmed in part, reversed in part, and remanded.

WARNER and TAYLOR, JJ., concur.

      . Appellees, Bogutz & Gordon, P.C., Bjorn-dahl, Kinghorn and Tomasa, were not named defendants in the first complaint but were added as defendants in Cheryl Wells' second amended complaint. These four defendants are also foreign defendants while the remaining named defendants are not.

      . Rosenstone v. Satchell, 560 So.2d 1229, 1229-30 (Fla. 4th DCA 1990) ("[A]n attorney may be held liable for breach of his duties to one who engages his services or to one who he knows is the intended beneficiary of his services.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy McTIGUE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-3391.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 2009.
    Lewis K. Hanna of Lewis K. Hanna, P.A., Boca Raton, for petitioner.
    No appearance required for respondent.
   PER CURIAM.

Denied. Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009). See also Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009); Govoni v. State, 17 So.3d 809 (Fla. 4th DCA 2009). We certify that this decision conflicts with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008).

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


text:
    William PICKETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-902.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 2009.
    Arthur Joel Berger and Peter S. Heller of The Cochran Firm, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Mitchell, 624 So.2d 859 (Fla. 5th DCA 1993); Method v. State, 920 So.2d 141 (Fla. 4th DCA 2006).

WARNER, FARMER and LEVINE, JJ., concur.


text:
    E.I. DuPONT DE NEMOURS AND COMPANY, INC., Petitioner, v. AQUAMAR S.A., Molinos del Ecuador S.A., and Desarrollo Industrial Bioacuatico S.A., Respondents.
    No. 4D09-2871.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 2009.
    Edward A. Moss of Shook, Hardy & Bacon, L.L.P., Miami, for petitioner.
    No appearance required for respondents.
   PER CURIAM.

We deny DuPont’s petition for writ of prohibition which sought review of its motion to disqualify the trial court judge, the fifth such motion DuPont has filed in this case. An attorney’s legal campaign contributions within the statutorily permitted amount are not a legally sufficient ground for disqualification. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990). None of the other allegations raised in the motion set forth an objectively reasonable basis for DuPont to fear the judge is biased.

The contributions from attorneys in the firms representing the plaintiffs in this case were all within the statutorily permitted amounts, and the cumulative total of $4650 which the attorneys in the firms contributed to the judge’s reelection campaign does not approach the $3 million contribution at issue in Caperton v. A.T. Massey Coal Co., — U.S. -, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). Contrary to DuPont’s argument, the circumstances of this case are not equivalent, or anywhere close, to those presented in Caper-ton.

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Alvaro E. AZANZA and Maria A. Cedeno Azanza, Petitioners, v. PRIVATE FUNDING GROUP, INC., a Florida corporation, Respondent.
    No. 4D09-3751.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 2009.
    Thomas A. Pila of Pila Law Group, L.L.C., Miami, for petitioners.
    No appearance for respondent.
   PER CURIAM.

Petitioners, Alvaro E. Azanza and Maria A. Cedeno Azanza, petition this court for issuance of a writ of certiorari. In their petition, they request that this court quash the orders of the lower tribunal dated September 10, 2009, and February 4, 2009. The September 10, 2009 order, for which review is sought, denied the petitioners’ motion to postpone the foreclosure sale of their home and to vacate the February 4, 2009, order. The February 4, 2009, order granted a summary judgment of foreclosure to respondent ten days after the motion for summary judgment was served on petitioners. We deny the petition, as the petitioners have not shown a departure from the essential requirements of law.

According to the petition, the underlying action was filed September 3, 2008. On January 20, 2009, respondent moved for summary judgment and served a notice of hearing. The hearing was held fifteen days later on February 4, 2009, and the court entered a final judgment of foreclosure. The petitioners did not timely appeal this judgment. Then, after retaining counsel, petitioners, a day before the scheduled foreclosure sale, filed a limited notice of appearance and an emergency motion to postpone the sale. As grounds, counsel argued the summary judgment of foreclosure was improper because it was granted in violation of the Florida Rules of Civil Procedure, as petitioners were not given twenty days notice prior to the summary judgment hearing. See Fla. R. Civ. P. 1.510(c) (stating that “[t]he movant shall serve the motion at least 20 days before the time fixed for the hearing”). The motion alleged, without explanation, that the petitioners did not waive compliance with rule 1.510(c), they had defenses to raise, and the court had no discretion regarding the time requirements of rule 1.510(e). The trial court denied the motion. This petition followed.

This court has held that any error in failing to give twenty days notice prior to a summary judgment hearing is waived if the party does not object to insufficient notice either before a summary judgment hearing, at the summary judgment hearing, or in a motion for rehearing. E & I, Inc. v. Excavators, Inc., 697 So.2d 545, 546 (Fla. 4th DCA 1997) (holding that “where, as in the present case, there was no objection to the insufficient notice prior to the [summary judgment] hearing, at the [summary judgment] hearing, nor in the motion for rehearing, the issue has been waived”). If this issue can be waived and, if unpre-served, is not grounds for reversal on direct appeal, it should not be grounds for an extraordinary writ filed months after the time for an appeal has run. Although petitioners’ motion filed in the trial court alleges that they did not waive compliance with the rule, there is no showing in this case that they did not have a sufficient opportunity to object to the insufficient notice either before the summary judgment hearing, at the summary judgment hearing, or in a timely motion for rehearing. Petitioners have, therefore, neither shown a departure from the essential requirements of law nor that there is any basis for granting certiorari review. We, accordingly, deny the petition.

WARNER, STEVENSON and HAZOURI, JJ., concur.


text:
    Anthony PROSSER, Petitioner, v. PROUDFOOT CONSULTING COMPANY, a Delaware corporation, and Proudfoot Consulting (Europe) Ltd., a corporation organized under the laws of England and Wales, Respondent.
    No. 4D09-2907.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 2009.
    Donna M. Greenspan and Grace M. Murillo of Schwarzberg & Associates, and Justus W. Reid and Tricia Duthiers of Reid & Zobel, P.A., West Palm Beach, for petitioner.
    Scott G. Hawkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, Christopher C. Marquardt of Alston & Bird, L.L.P., Atlanta, Georgia, and Mark Vasco of Alston & Bird, L.L.P., Charlotte, North Carolina, for respondents.
   PER CURIAM.

The only issue properly before this court is whether petitioner is entitled to certiora-ri relief from that part of the circuit court’s order of July 10, 2009 compelling discovery. Petitioner has failed to demonstrate that the order is a departure from the essential requirements of law or that complying with it will result in irreparable injury. We note that our review of this case was immensely complicated by the form of the trial court’s order, which is a one-page order that adopts a 194-page transcript of the hearing on the underlying motions. We understand the pressures on a trial judge in a busy civil division. Here, the judge made clear and precise rulings. Professionalism dictates that the lawyers for the parties should be able to cull out the rulings of a court from a hearing and present them to the court in a one or two page proposed order. Orders taking the form of the one in this case are difficult to review and enforce. An order in a lawsuit should be worth at least as much as the paper it is printed on.

GROSS, C.J., CIKLIN and LEVINE, JJ., concur.


text:
    USAA CASUALTY INSURANCE COMPANY, Petitioner, v. PEMBROKE PINES MRI, INC., a/a/o Brian Schoedinger, Respondent.
    No. 4D09-3832.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 2009.

      Douglas H. Stein of Seipp & Flick, LLP, Miami, for petitioner.
    No appearance required for respondent.
   PER CURIAM.

USAA Casualty Insurance Company has filed an “emergency” petition for writ of certiorari seeking review of an order from the circuit court acting in its appellate capacity. The circuit court’s order defers ruling on a motion for review of a county court order denying a stay. See Fla. R.App. P. 9.310(f). We dismiss this petition because USAA has not been denied due process, there is no showing of irreparable harm that warrants emergency review, and the circuit court’s order deferring a ruling is not a departure from the essential requirements of law.

USAA alleges that there is a premature bad faith claim pending in the trial court. It sought certiorari review in the circuit court to prevent the plaintiff from obtaining bad faith discovery before liability is decided. The petition remains pending in the circuit court. Meanwhile, in the trial court, the plaintiff has sought discovery related to the bad faith claim. USAA objected and moved for a protective order, which was denied. The plaintiff has filed a motion to compel discovery, but the trial court has not ordered USAA to produce any bad faith discovery. The trial court denied a motion for stay pending appellate review. USAA then filed an “emergency” motion for review in the circuit court essentially seeking review of the county court order denying a stay. The circuit court held a brief hearing, concluded there was no “emergency” and deferred ruling on the merits of the motion for review.

USAA seeks emergency second-tier cer-tiorari review from this court. We have also considered the exercise of mandamus jurisdiction, but we agree with the circuit court that there is no “emergency,” and the circuit court did not depart from the essential requirements of law in deferring ruling on a request for a stay.

The court system is overloaded. See In re Certification of Need for Additional Judges, 3 So.3d 1177 (Fla.2009). As a result of budget cuts in recent years, the courts have lost staff, which has increased the workload of judges and remaining personnel and slowed the disposition of pending cases. Meanwhile, civil and criminal filings have increased.

To safeguard the rights of litigants and assure meaningful review in time sensitive cases, certain types of cases, such as the termination of parental rights and the denial of pretrial bond, are reviewed on an expedited basis. To help identify other cases that need prompt review, this court requires litigants who seek emergency review to include a certificate certifying the existence and nature of the emergency. In Re: Emergency Filings, Fla. Admin. Order No. 4D02-08 (Feb. 11, 2008).

Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already pending. Consequently, an attorney who seeks “emergency” review immediately loses credibility if this court discovers there is no true emergency.

In this case, there is no irreparable harm caused by the delay in ruling on the request for stay pending appellate review. The trial court has not compelled any premature bad faith discovery. Even if USAA was ordered to produce discovery before the circuit court ruled on the motion for review, USAA has reasonable grounds to object to discovery and could appeal any sanction imposed. USAA can certainly notify the circuit court if the circumstances in the trial court change. USAA could also request that the circuit court rule on the motion for review without waiting for a hearing.

There is no need for expedited review in this case. This petition is dismissed.

POLEN, FARMER and MAY, JJ., concur.


author: LAWSON, J. TORPY, J.,

text:
    Martha SMITH as Plenary Guardian, etc., et al., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 5D08-1142.
    District Court of Appeal of Florida, Fifth District.
    Oct. 23, 2009.
    Rehearing Denied Jan. 4, 2010.
    Roy D. Wasson, of Wasson & Associates, Chartered, Miami, and W.M. Chan-frau, Sr., of Chanfrau & Chanfrau, P.A., Daytona Beach, for Appellants.
    Sarah Lahlou-Amine and Hala A. San-dridge of Fowler White Boggs, P.A., Tampa, and James H.K. Bruner, Sr., Tallahassee, for Appellee.
   LAWSON, J.

The personal injury case brought below by Martha Smith, as plenary guardian of Maurice Thomas, settled for $2,225,000.00. Smith appeals the final order denying her motion to reduce the State of Florida’s Medicaid lien from $122,783.87 to $40,927.96. We affirm.

Florida’s Medicaid Third-Party Liability Act, section 409.910, Florida Statutes (2007), authorizes the State to recover from a personal injury settlement or verdict money that the State paid for the plaintiffs medical care prior to the tort recovery. The statute limits the State’s recovery to half of the tort recovery, after deducting attorney’s fees and costs. According to the record before us, Medicaid could have recovered up to $707,778.00 in medical expenses using the formula in section 409.910. Because the State’s Medicaid lien in this case totaled far less than this statutory cap, section 409.910 allowed the State to fully recover from his settlement the $122,788.87 that it paid on Thomas’ behalf.

The only argument made below for reducing the State’s lien was that Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), mandates “a percentage reduction [in the Medicaid lien] in the same ratio as the settlement bears to actual damages.” According to Smith, the $2,225,000.00 recovery in this case represented only one third of Thomas’ total damages. Both Smith and the tortfeasor agreed below that there were significant challenges in proving liability which contributed to a settlement amount far lower than Thomas’ actual damages. Smith reasoned that because she settled Thomas’ claim for one-third of its value, Ahlbom required the trial court to also reduce the State’s Medicaid lien to one-third of the total lien amount — from $122,783.87 to $40,927.96.

Smith’s argument rests on a misreading of Ahlbom, and the trial court properly rejected it. Ahlbom simply held that under federal law a state’s Medicaid hen recovery is limited to the portion of a verdict or settlement representing amounts recovered by a plaintiff for medical expenses. The parties in Ahlbom had stipulated to a figure representing the total recovery for medical expenses in their case, and used the method now advanced in this case to calculate their stipulated figure. However, the court in Ahlbom simply accepted the stipulation, and in no way adopted the formula as a required or sanctioned method to determine the medical expense portion of an overall settlement amount.

Moreover, the formula used by the Ahl-bom parties is problematic in that it assumes the Medicaid lien amount to be the only medical expense included by the plaintiff as part of his or her overall damage claim, which is not a reasonable assumption. Stated another way, without knowing how much of a plaintiffs total damage claim is comprised of medical expenses, there is no way to calculate the medical expense portion of a settlement by simply comparing the damage claim to the ultimate settlement amount. For example, the recovery in this case ($2,225,000.00) is approximately one third of the total damages claimed by Smith for Thomas ($7,000,000.00). That information, alone, tells us nothing about the amount ultimately recovered for Thomas’ medical expenses — except that it is probably less than the amount he claimed for medical expenses. If we knew, for example, that the medical expense portion of the total damage claim was $600,000.00, we could reduce that figure by one third to approximate the settlement amount attributable to medical expenses. But, knowing only the total damages claimed and the ultimate settlement amount simply does not allow one to reasonably estimate the medical expense portion of a settlement.

Smith and the dissent are correct that under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. The problem here is that instead of making that showing, Smith presented her narrow legal argument premised upon her misreading of Ahlbom and provided only the total damage figure of $7,000,000.00. Smith proffered nothing from which the trial judge could determine how much of the $7,000,000.00 in damages represented Thomas’ medical expenses, and made no other showing to support her argument that the medical expense portion of the $2,225,000.00 settlement was less than $122,783.87. Without that showing, the trial court properly applied section 409.910, Florida Statutes, and allowed the State to recover the full $122,783.87.

AFFIRMED.

GRIFFIN, J., concurs.

TORPY, J., dissents, with opinion.

TORPY, J.,

dissenting.

Appellee and the majority acknowledge that Appellee’s lien rights attach only to that portion of the recovery that represents recovered expenses for medical goods and services. This is because federal law only permits the states to assert a lien to this extent. Ark. Dep’t of Health & Human Seros, v. Ahlborn, 547 U.S. 268, 292, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). Consistent with federal law, Florida’s statutes only permit the Agency for Health Care Administration to assert its lien rights to “third-party benefits,” a phrase of art defined by the statute as including the component of any recovery attributable only to medical expenses. § 409.910(1), (5), (6), Fla. Stat. (2007); see § 409.901(4), (27) (defining “Benefit” and “Third-party benefit”). Appellee also concedes that had the recovery here been the product of a special interrogatory verdict wherein the jury found that total medical expenses were $122,783.87, reduced by a percentage attributable to the ward’s comparative negligence, then Appellee’s lien necessarily would be reduced by the same percentage.

In a case like this one, where the parties settle the dispute short of trial, Appellee and the majority take divergent paths to the same ending place. Appellee takes the view that apportionment is unnecessary. The majority acknowledges that “a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses,” but holds that Appellant did not make that showing here. I disagree with both views but only address the view expressed by the majority-

Appellant contends that, due to comparative negligence or other potential defenses, she recovered one-half or less of the actual value of her case. Therefore, she contends, Appellee’s lien should be reduced by the same percentage, just as if the case had gone to trial with the same resulting recovery. The circuit judge refused to consider Appellant’s evidence or methodology. Instead, he denied Appellant’s request “finding that Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006) does not govern Section 409.910, Florida Statutes.... ”

The majority denies this appeal for two reasons, neither of which was argued by Appellee here or below. By doing so, the majority misapplies the “tipsy coachman” rule by justifying affirmance on grounds to which Appellant never had the opportunity to respond. E.K. v. Dep’t of Children & Family Servs., 948 So.2d 54, 57 (Fla. 3d DCA 2007).

The first reason is based on the majority’s assumption that Appellant’s actual medical expenses exceeded the amount expended by Appellee, which the majority concludes is the only reasonable assumption. This was not the reason relied upon by the trial judge and was not raised by Appellee here or below because, I assume, it has no basis in fact. Even when the suggestion was raised at oral argument, Appellee made no attempt to credit the assumption after it was flatly repudiated by counsel for Appellant. The fact is that, even had Appellant incurred bills for medical services in excess of the sums paid by Medicaid, Appellant’s recovery would have been limited to this amount because the medical service providers accept Medicaid reimbursement in full satisfaction of all claims. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547, 549 (Fla. 4th DCA 2003). Thus, there is no reason to assume that Appellant’s compensable expenses exceeded the amount paid by Medicaid. This illustrates a major problem with using the “tipsy coachman” rule to affirm a judgment on a basis not argued. Had Appellee argued this point, Appellant might have sought to supplement the record here with additional information, such as interrogatory answers or depositions not included in the limited record we have. Further, had Appellee argued the point below, Appellant might have sought to proffer additional evidence or continue the hearing until evidence could be obtained. Instead, we are left to speculate.

In denying the appeal on this basis, the majority has also misallocated the burden of proof. By statute, Appellee’s lien only attached to the “third-party benefits,” a defined phrase meaning the amount recovered for medical goods and services. There may be a difference between the amount of Appellee’s claim and the amount of its lien, because the amount of third-party benefits recovered for the claim may be smaller than the claim. It should have been Appellee’s burden to establish the amount of the lien just as any other lienor bears the burden to prove the validity and amount of its hen.

The second basis offered by the majority for rejecting this appeal is akin to a preservation argument. Without even a suggestion by Appellee that Appellant failed to preserve this issue, the majority opines that Appellant made too narrow a legal argument premised upon her “misreading of Ahlborn.” This conclusion is based solely on a statement made by Appellant in her motion wherein she asserts that, “pursuant to” Ahlborn, Appellee’s Medicaid “lien is subject to a percentage reduction in the same ratio as the settlement bears to actual damages.” The majority calls this a misreading of Ahlbom because, says the majority, Ahlborn does not “mandate” the use of this method, which, in Ahlbom, was the method agreed to by the parties. I do not read the motion to suggest that Ahlborn “mandates” (a word chosen by the majority, not Appellant) this method. Even if it did, the fact remains that this is a valid method of arriving at the answer— an answer that is compelled by federal law, Florida Statutes and Ahlbom. The statute does not provide, nor purport to provide, a method for determining the amount of “third-party benefits;” it only places a cap on the total lien amount. Appellee did not advance an alternative method below or on appeal, and the majority suggests no other method. Nor does the majority hold that the method proffered by Appellant is wrong.

There is no other method for solving this problem. That might be why the parties in Ahlbom used it there. This case was settled short of a jury trial. Appellant and the tortfeasors agreed in affidavits filed with the court that Appellant compromised her claim, the value of which would have been between $5,000,000 and $7,500,000, but for the application of comparative negligence or other defenses. Had the jury reached this same conclusion and reduced the award due to comparative negligence, it would have reduced all damage elements by the same percentage. The trial judge is no less equipped to make this determination than a jury, and should apply the same methodology. See Ahl-bom, 547 U.S. at 288, 126 S.Ct. 1752 (settlement manipulation to avoid lien can be avoided by “submitting the matter to a court for decision”). To have the trial judge make this determination is all that Appellant sought. Appellant advanced a valid method for doing it. Whether the method is mandated by Ahlbom or not does not seem to make much difference. The point is that the trial judge should have made the determination when asked. I do not think Appellant is precluded from seeking this relief from us simply because she might have overstated the holding in a case, and I know of no precedent that supports this view.

I would reverse.

      . Accepting this method and the hypothetical $600,000.00 (as the medical expense portion of the $7,000,000.00 damage claim) would mean that $200,000.00 of the $2,225,000.00 settlement would be available to satisfy a Medicaid lien under Ahlbom. In this case, the State would be entitled to recover the full lien amount, $122,783.87, since the lien would be less than the medical expense portion of the settlement. Although we believe that this method (reducing the medical expense portion of the damage claim in the same ratio as the settlement bears to the total damage claim) might produce a reasonable estimation of the medical expense portion of a settlement in some cases, it may not work in many cases. For example, a tortfeasor could agree, in settlement, to pay 100% of a plaintiff’s medical expense claim, but not all non-economic damages. If only the non-economic damage portion of a claim were compromised in settlement, the formula would not work at all. Rather, the full medical expense portion of the original damage claim would be available to satisfy the State’s lien, even though the claim settled for less than the damages originally alleged.

      . This is the agency tasked with enforcing the Medicaid Third-Party Liability Act, section 409.910, Florida Statutes.

      . Here, the majority relies upon a failure to negate a fact-that no compensable medical expenses were incurred beyond the $122,783.87. In a case such as this it is easy for me to see why a plaintiff would not offer this testimony. Medicaid had paid all the bills and had all the records. Discovery had been exchanged. If it was an issue, I assume someone would have raised it before today. This doctrine should not be applied unless the record is clear on a point one way or the other. See Porter v. Porter, 913 So.2d 691 (Fla. 3d DCA 2005).


text:
    Richard BISHOP, Jr., Appellant, v. FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY, Appellee.
    No. 5D08-1222.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 30, 2009.
    Joseph Morrell, Orlando, for Appellant.
    Monterey Campbell, III, Richard E. Mitchell, and Michael D. Porter, of Gray Robinson, P.A., Orlando, for Appellee.
   PER CURIAM.

Florida Agricultural and Mechanical University’s College of Law expelled Richard Bishop, Jr. as a student and invalidated the credits that he had received due to alleged fraudulent misconduct connected with his admission. Bishop appeals, arguing that he was not afforded proper notice and a hearing before such action was taken.

Our recent decision in Morris v. Florida Agricultural and Mechanical University, 23 So.3d 167 (Fla. 5th DCA 2009), governs the disposition of this appeal. For the reasons articulated in that decision, we reverse the final order and remand for a properly noticed hearing on the fraudulent misconduct charge.

REVERSED and REMANDED.

MONACO, C.J., ORFINGER and COHEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Steven GONZALEZ, Appellee.
    No. 5D09-374.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 18, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellee.
   PER CURIAM.

The State of Florida appeals a final order granting Steven Gonzalez’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court granted the motion relying on Meshell v. State, 980 So.2d 1169 (Fla. 5th DCA 2008), rev’d, State v. Meshell, 2 So.3d 132 (Fla.2009), cert. den., — U.S. -, 130 S.Ct. 110, 175 L.Ed.2d 73 (2009), and a finding that Gonzalez’s dual convictions for lewd and lascivious battery violated double jeopardy based upon an insufficient temporal break between the different acts of misconduct alleged in the information. Applying the supreme court’s later decision in Meshell, it is clear that there was no double jeopardy violation. Accordingly, we reverse the order on appeal, and remand with directions that Gonzalez’s motion be denied. Lockhart v. Fretwell, 506 U.S. 364, 371-72, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

REVERSED AND REMANDED.

ORFINGER, LAWSON, and JACOBUS, JJ., concur.


text:
    Roy ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5052.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.
    Rehearing Denied Dec. 22, 2009.

      Roy Anderson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.