author: ROTHENBERG, Judge.

text:
    Rances GONZALEZ-CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-925.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Rehearing Denied Aug. 25, 2009.
    Carlos J. Martinez, Public Defender, and Jessica Zagier Wallace and Shannon McKenna, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

The defendant, Ranees Gonzalez-Castro, entered a guilty plea to the charge of failing to properly register as a sex offender, and thereafter, the trial court sentenced him to thirty months in state prison. Under Florida Rule of Criminal Procedure 3.170(i), the defendant filed a timely motion to withdraw his plea, asserting that he was under the “misim-pression” that he would receive a sentence of 19.05 months in prison, and but for this “misimpression,” he would not have entered into the plea. The defendant also filed a motion to appoint conflict-free counsel to assist him in his motion to withdraw his plea. Following a non-evidentiary hearing, the trial court denied both motions based on the record. This appeal ensued.

The defendant contends that the trial court erred in denying his motion to appoint conflict-free counsel where his motion to withdraw his plea asserted a facially valid claim that a conflict existed between him and his counsel. We disagree.

Although the defendant alleges in his motion to withdraw his plea that he was under the “misimpression” that he would receive a sentence of 19.05 months in prison, he does not directly or indirectly assert that his counsel was the source of his “misimpression.” Moreover, he does not claim that he was coerced by counsel or that counsel misadvised him. Cf. Searcy v. State, 971 So.2d 1008, 1012 (Fla. 3d DCA 2008) (reversing the trial court’s summary denial of a motion to withdraw plea and remanding for appointment of conflict-free counsel where defendant’s motion to withdraw plea “indirectly” alleged that “his plea was involuntary because it was based in part on counsel’s representation that he would be able to get him a longer furlough if he took the plea”). Because the defendant’s motion to withdraw his plea fails to allege any conflict between him and his attorney, we find that the trial court correctly denied the defendant’s motion to appoint conflict-free counsel.

The defendant also challenges the trial court’s summary denial of his motion to withdraw his plea. As the record conclusively refutes the defendant’s claim, we affirm.

In the instant case, the defendant entered into a written plea agreement acknowledging, in part, that: he was not pressured into accepting the plea; he was not promised anything except that his sentence would not exceed thirty-six months in state prison and he would be required to pay certain costs; the statutory maximum for the offense is five years; and he was entering into the plea with his own free will.

Although the plea transcript indicates that the defendant initially stated that it was his understanding that he would be sentenced to approximately nineteen months, the transcript also reflects that trial court corrected the defendant and explained that under the plea agreement, the trial court could sentence him up to thirty-six months. After the trial court explained the clear terms of the plea agreement to the defendant, the defendant acknowledged that he understood that the trial court could sentence him up to thirty-six months in prison, he had not been promised anything by anyone, and he was not threatened to enter into the plea. The plea transcript also demonstrates that pri- or to accepting the defendant’s plea, the trial court once again confirmed that the defendant understood that he could be sentenced up to thirty-six months, no one had promised him that he would serve less than thirty-six months, and he was not forced to enter the plea.

THE COURT: And again, do you understand by the terms of the plea that you could be sentenced to 36 months in prison?
THE DEFENDANT: I understand.
THE COURT: And again, has anybody promised you that you would serve anything less than that or forced you in any way to enter a plea today?
THE DEFENDANT: No.

Therefore, as the plea transcript conclusively refutes the defendant’s claim that he was under the “misimpression” that he would be sentenced to approximately nineteen months in prison and that he would not have entered into the plea absent the “misimpression,” we affirm the trial court’s summary denial of the motion to withdraw plea. See State v. Leroux, 689 So.2d 235, 236 (Fla.1996) (holding that in cases where the record does not conclusively rebut a cognizable claim, a hearing is necessary to determine the merits of the defendant’s claim).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Walter L. CHANEY, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-5226.
    District Court of Appeal of Florida, First District.
    July 15, 2009.
    Rehearing Denied Sept. 29, 2009.
    Walter L. Chaney, pro se, Appellant.
    Bill McCollum, Attorney General; Joe Belitzky, Assistant Attorney General; and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Hinote v. Ford Motor Co., 958 So.2d 1009 (Fla. 1st DCA 2007).

BARFIELD, DAVIS, and ROBERTS, JJ., CONCUR.


author: PER CURIAM. ALTENBERND, Judge,

text:
    MANORCARE HEALTH SERVICES, INC.; Manor Care of America, Inc.; Manor Care, Inc.; Russell Ward; Douglas Webb; and Michelle Wicks, Appellants, v. Catherine STIEHL, as Personal Representative of the Estate of Florence C. Halloran, Deceased, Appellee.
    No. 2D08-2351.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2009.

      Sylvia H. Walbolt, Matthew J. Coniglia-ro, and Annette Marie Lang of Carlton Fields, P.A., St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus and Donna K. Hanes of Wilkes & McHugh, P.A., Tampa, and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Ap-pellee.
   PER CURIAM.

ManorCare Health Services, Inc. (Man- or Care), challenges the trial court’s nonfi-nal order denying its motion to compel arbitration of Catherine Stiehl’s action as personal representative of the Estate of Florence Halloran against Manor Care for negligence, wrongful death, and breach of fiduciary duties.

This case requires us to decide the enforceability of an arbitration agreement that contains remedial limitations which, Ms. Stiehl argues, violate public policy. To the extent the arbitration agreement contains remedial limitations that may be unenforceable, we conclude that the arbitrator is empowered to sever those provisions from the agreement. We accordingly reverse the trial court’s order and remand for further proceedings.

I.

In December 2005, Florence Halloran was admitted as a resident to Manor Care of Palm Harbor. On the day of Ms. Hallo-ran’s admission, her daughter, Catherine Stiehl, signed various admission papers as attorney-in-fact on Ms. Halloran’s behalf. One of these documents was titled “Voluntary Arbitration and Limitation of Liability Agreement” (the Agreement).

Five months after her admission, Ms. Halloran died. Eleven months later, her estate filed a lawsuit against Manor Care, alleging violations of the Nursing Home Residents Act. See §§ 400.022, .023, Fla. Stat. (2005). Manor Care moved to compel arbitration, relying on the provisions of the Agreement.

The Agreement is five pages long and consists of five sections. Appendix A of this opinion reproduces the Agreement in full. The Agreement provides, in pertinent part, as follows:

A. Arbitration Provisions
1.1 Any and all claims or controversies between the Facility and the Resident arising out of or in any way relating to the Resident’s stay at the Facility, including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429, or a claim for unpaid nursing home or related charges), shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Florida Arbitration Code, Florida Statu[t]es § 682.01 et seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement.
D. Nonseverability
In the event any provision of this agreement is determined by a court of competent jurisdiction, an arbitrator or arbitrator panel to be unenforceable for any reason, either party may thereafter cancel this agreement by giving written notice to such effect within 10 days after such determination. Upon such cancellation, any award, ruling or order under this agreement shall be considered null and void and unenforceable.

Other provisions of the Agreement cap non-economic damages at $250,000 and eliminate punitive damages. Under the Agreement, Manor Care agrees to pay the arbitrator’s fees and costs, and the parties to the agreement waive any right to recover attorney’s fees.

The Agreement places limitations on the discovery process. Any arbitration under the Agreement would occur in Pinellas County before a single arbitrator, who must be a retired judge or member of the Florida Bar with ten years’ experience as an attorney. The Agreement additionally states that any arbitration award must be in accordance with Florida law and provides for entry of a binding arbitration award without any appeal, except as provided by Florida law. See § 682.13(l)(a)-(e), Fla. Stat. (2005); Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328-29 (Fla.1989).

In the trial court, Ms. Stiehl argued that the remedial limitations within the arbitration agreement were void as against public policy and not severable from the Agreement. Ms. Stiehl asked that the trial court provide the option to cancel the Agreement. The trial court agreed with Ms. Stiehl’s argument, found the remedial limitations invalid, and entered an order denying Manor Care’s motion to compel arbitration. Manor Care now challenges that ruling on appeal.

II.

On appeal, Manor Care argues that the trial court should have compelled arbitration because the remedial limitations are not void as against public policy and, assuming that they are, an arbitrator may sever them from the Agreement. While we do not address the enforceability of the remedial limitations, we agree that such limitations may be severed from the arbitration agreement. We accordingly conclude that the trial court erred in declining to compel arbitration, and we reverse and remand for further proceedings.

The right to compel arbitration arises from an agreement of the parties. As a result, the trial court’s role in deciding whether to compel arbitration is limited to three “gateway” issues: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The sole consideration in this case relates to the first issue — that is, whether the arbitration agreement is valid despite remedial limitations that, Ms. Stiehl argues, defeat the public policy expressed under the Nursing Home Residents Act.

In challenging the validity of an arbitration agreement, a party must assert defenses applicable to all contracts — defenses such as fraud, duress, or uncon-scionability. Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 397 (Fla.2005); see also Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003) (observing that both the Federal Arbitration Act and the Florida Arbitration Code permit a challenge to the validity of an arbitration provision based upon state-law contract defenses). A trial court is to review those defenses which go to the validity of the arbitration agreement itself, rather than to the enforceability of the contract as a whole. See Seifert, 750 So.2d at 636; see also John B. Goodman Ltd. P’ship v. THF Constr., Inc., 321 F.3d 1094, 1095 (11th Cir.2003).

We recognize that courts have, on public policy grounds, invalidated arbitration agreements found to defeat the remedial purpose of a statute on which the suit is based. See, e.g., Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999); see also Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1059 (11th Cir.1998). Additionally, courts in this state have specifically found arbitration agreements containing remedial limitations similar to those presented here to render an agreement to arbitrate void and unenforceable. See Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005); Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333 (Fla. 4th DCA 2005).

Nonetheless, this district has treated the validity of such remedial limitations to be beyond the initial gateway determination of an arbitration agreement’s enforceability where the limitations are sev-erable from the agreement to arbitrate. See, e.g., Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 258 (Fla. 2d DCA 2006) (observing that there is “no reason why the arbitrator, in the first instance, cannot decide whether to enforce the remedial limitations”); Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86, 89 (Fla. 2d DCA 2005) (concluding plaintiffs claims “should be arbitrated and that the arbitrator should in the first instance decide the validity of the remedial restrictions in the arbitration provision”). In this circumstance, the enforceability of the remedial limitations may be considered by the arbitrator “in the context of a fully developed factual record.” Bland, 927 So.2d at 258. If the arbitrator determines the remedial limitations to be unenforceable, the limitations may be severed from the remainder of the agreement. See also Orkin Exterminating Co., Inc. v. Petsch, 872 So.2d 259, 266 (Fla. 2d DCA 2004).

Significant in our decisions has been that the arbitration agreement permit severance of any provisions challenged on grounds of public policy. For instance, in Gessa ex rel. Falatek v. Manor Care of Fla., Inc., 4 So.3d 679, 682 (Fla. 2d DCA 2009), we concluded that although the arbitration agreement lacked a severability clause, the trial court properly compelled arbitration because the remedial limitations could be severed by the arbitrator. Likewise, in Shotts v. OP Winter Haven, Inc., 988 So.2d 639, 643-44 (Fla. 2d DCA 2008), we observed that, to the extent an arbitration agreement contained remedial limitations that may be violative of public policy, the agreement was enforceable where those provisions could be severed by the arbitrators. Similarly, the Eleventh Circuit has concluded that where an arbitration agreement contains remedial limitations, but also a severability clause, the validity of the remedial limitations is a question for the arbitrator to decide. Anders v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1032 (11th Cir.2003).

The trial court here expressly concluded that the remedial limitations provision could not be severed from the agreement to arbitrate. This conclusion is understandable, given that the Agreement contains a subsection titled “Mon-severability.” However, we cannot ignore the language of the nonseverability clause. Under Florida law, to determine whether the Agreement permits severance of the remedial limitations provision, we apply the test set out in Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 821-22 (Fla.1953). As the Florida Supreme Court explained there, “[w]hether a contract is ... divisible depends upon the intention of the parties,” which “may be determined by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.” Id. at 822 (citations and internal quotation marks omitted).

The nonseverability clause states that upon a finding that any provisions of the Agreement are deemed unenforceable by a court or an arbitrator, the parties shall have the option to cancel the Agreement. Nothing within the clause purports to render the Agreement null and void upon a finding by a court or an arbitrator that any provisions of the Agreement are unenforceable. Instead, the nonseverability clause expressly contemplates that provisions of the Agreement may be found invalid by either the court or an arbitrator.

Thus, language contained within the nonseverability clause anticipates that certain provisions of the Agreement may be deemed invalid and severed, in which case the parties would have the option of either proceeding with arbitration or withdrawing from the Agreement. Additionally, we do not find that the remedial limitation is so interrelated and interdependent that it cannot be severed by the arbitrator if necessary: the essence of the contract is an agreement to submit disputes to binding arbitration. We therefore conclude that the validity of the remedial limitations may be considered by the arbitrator and, if the limitations are found invalid, severed from the Agreement.

III.

We have decided the single gateway issue presented on appeal: whether a valid agreement to arbitrate exists between Ms. Halloran and Manor Care. Because the validity of the remedial limitations may be determined by the arbitrator, we do not proceed any further. Given the presence of a clause providing the parties with the option of withdrawing from the Agreement upon any finding that the remedial limitations are unenforceable, it was unnecessary for the trial court to find the agreement to arbitrate invalid on public policy grounds. Accordingly, we reverse the trial court’s order denying Manor Care’s motion to compel arbitration and to stay proceedings, and we remand for further proceedings consistent with this opinion.

KHOUZAM and CRENSHAW, JJ., Concur.

ALTENBERND, J., Concurs specially with opinion.

ALTENBERND, Judge,

Specially concurring.

I concur in this decision because it is consistent with the existing precedent from this district. I have come to the conclusion, however, that it is both bad policy and bad law to allow an arbitrator to make case-specific, non-precedential, confidential decisions about the enforceability of clauses in an arbitration agreement when those clauses limit or eliminate rights specially created by the legislature to protect nursing home residents. Accordingly, I would prefer to follow the approach of the other districts and permit trial courts to make decisions about these restrictive clauses prior to arbitration. See, e.g., Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So.2d 574 (Fla. 1st DCA 2007); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006); Lacey, 918 So.2d at 335.

The language of this specific arbitration agreement heightens my concerns. I do not question the value of arbitration as an alternate dispute mechanism for use in nursing home cases, but I believe the time has come for the legislature to regulate the content of such agreements — which should primarily provide dispute resolution procedures — because they are actually being used to eliminate substantive rights and remedies created by the Legislature in sections 400.022 and 400.023, Florida Statutes, for the protection of some of our most vulnerable citizens. If the legislature could establish a method by which approved, standard arbitration agreements, fair to both sides, were available for use by nursing homes and their residents in Florida, we could largely eliminate the seemingly endless supply of lawsuits and appeals addressing the language of arbitration agreements that ironically were intended to eliminate lawsuits and appeals.

I. A Brief Review of the Contents of this Arbitration Agreement

The arbitration agreement in this case, which is attached as an appendix to this opinion, is well written. It is further explained in a short information pamphlet provided by Manor Care. There is nothing to suggest that this agreement or the methods by which the resident is bound by this agreement are procedurally unconscionable. On the other hand, the drafters of this agreement do not disclose the very limited benefit of this agreement to the resident and the considerable benefit received by Manor Care. A careful review of the agreement causes one to wonder why any resident who actually understood the agreement, assuming it is voluntary and does not affect the price of care at the facility, would ever sign such a one-sided arrangement. There is a good argument that the agreement is substantively unconscionable, but that is irrelevant in this district so long as it is not procedurally unconscionable.

The agreement is repeatedly described as “voluntary,” and the resident or resident’s agent is assured that the “signing” of this agreement is not “mandatory.” However, if voluntarily signed, it creates mandatory, binding arbitration subject to extremely limited rights of appeal. It is not a voluntary agreement in the sense that the parties decide whether to use the program only after a claim has arisen; it applies mandatorily to all future disputes.

The benefit of this agreement is described in the first paragraph as helping the parties “avoid crowded court dockets and lengthy appellate procedures.” Not only has that benefit not been achieved in this case and the many cases in which the parties fight over the content of the arbitration agreement, but also the first paragraph does not really explain the detriments of signing the agreement. The resident is told in bold print that it does contain a waiver of statutory rights and that it should be read carefully, but a brief description of the rights waived and the consideration for that waiver, which easily could be recited, is not recited.

The benefits for the parties and the primary substantive consideration for this agreement appear to be provided in section 1.2 of the Limitation of Liability. The benefit for the resident appears to be that, if a dispute arises over unpaid nursing home charges, Manor Care agrees not to make a claim for pre-judgment interest on those charges. The benefit for Manor Care is that non-economic damages are capped at $250,000, and punitive damages can never be awarded no matter how egregious the violation of the nursing home resident’s rights. Intuitively, this does not appear to be an agreement in which both sides are receiving equivalent economic benefit.

The imbalance, however, is perhaps more pronounced within the arbitration procedures. The procedures require an extensive document production prior to arbitration, but only a designated expert may be deposed. Thus, if Manor Care brings a claim for unpaid nursing home charges, the resident has no ability to depose anyone in the billing department. It seems highly unlikely that employees of Manor Care will be willing to give voluntary statements against the interest of their employers to the attorneys representing a resident. Of even greater concern, if a resident has an accident in the facility, he or she will be unable to depose employees and other witnesses prior to arbitration. As a result, it may be impossible even to obtain sufficient information to provide to an expert so that the expert can reach an opinion. Given that residents tend to be elderly, frail, and forgetful, there is a real risk that a resident making a claim in arbitration will never be able to obtain useful statements from other residents for use in these proceedings, and compelling such resident witnesses to attend arbitration may not be feasible. The arbitration agreement does not explain that the resident is avoiding crowded court dockets and lengthy appeals by agreeing to procedures that significantly reduce the resident’s ability to prevail in the dispute.

II. The Effect of a Procedural Rule of Law Permitting Arbitrators to Determine the Enforceability of Standardized Limitations in Form Contracts Is to Eliminate the Rule of Law Governing the Substantive Rights of the Nursing Home Residents.

In this district, we have decided that arbitrators in nursing home cases should decide on the validity of remedial limitations. In the context of a dispute between two large corporations that have agreed to use arbitration to resolve disputes arising out of a unique contract, that approach seems workable. However, in the context of a dispute between a corporation that essentially has physical custody of an elderly person and that person’s guardian, when the dispute arises not from contract law, but from special rights created by the legislature for the protection of the elderly, and when the contract is not a unique contract negotiated on a level playing field, but a form contract applicable to a large group of senior citizens, I think it is a mistake to delegate these legal decisions to the arbitrator.

If a trial judge decides that a clause of the arbitration agreement is enforceable or unenforceable, the order is a public order and an aggrieved party can appeal that ruling. The district court can review the order, and whether the district court affirms or reverses, it can create precedent that resolves the matter for future similar claims. If the agreement needs to be refined for future residents, the drafters have guidance, and if the legislature concludes that the court has misinterpreted the rights it created, the statute can be amended.

If an arbitrator makes a similar decision, the parties have agreed to maintain the confidentiality of the arbitrator’s “conclusions of law.” The agreement prevents an appeal, and the limited judicial review in circuit court permitted by section 682.13 will not permit a judicial review of such a ruling. Not only does this procedure prevent the creation of binding precedent, it creates nothing approaching the rule of law.

For example, hypothetically, if a fire breaks out in a care facility due to the extraordinary negligence of the corporate owner under circumstances that would warrant punitive damages in circuit court and that fire kills five residents, they are likely to present their cases to five different arbitrators. In this hypothetical, two arbitrators decide to override the agreement and permit punitive damages to be awarded. Three do not. Two arbitrators enforce all of the limitations, and one eliminates the cap on non-monetary damages but maintains the prohibition on punitive damages. Only the nursing home corporation will know that the results were so different and resulted in vastly different awards. None of the rulings will bind any future claims. No one will have a right to appeal or challenge the different rules of law applied to the same circumstances under the same statutory and contractual law. In passing the bill of rights for nursing home residents, the Legislature cannot conceivably have envisioned such a result.

If anything, the “nonseverability” clause in this agreement makes this court’s approach to this issue more troublesome. The “nonseverability” clause provides that either party may cancel the agreement— even after an arbitrator has announced his or her ruling — if the arbitrator determines that any provision of the agreement is unenforceable. It is not obvious to me that Manor Care would ever argue that a portion of the arbitration agreement that it drafted was unenforceable. Thus, only when a resident prevails before the arbitrator on the enforceability of some clause will the agreement become voidable. Thus, in the above examples, in the two cases where the arbitrators awarded punitive damages, the nursing home will undoubtedly choose to cancel the agreement. At that point, the resident must file a lawsuit. In the two cases where all of the limiting provisions were enforced, in light of confidentiality, the corporation will pay the claims and the residents will never have a right to know that the other residents’ cases were referred to the courts. For the residents, on first examination, the “nonseverability” clause might appear bilateral, but in application it appears to benefit Manor Care exclusively.

III. The Need for Legislation.

There are now over thirty-five written appellate opinions in Florida addressing arbitration agreements between nursing home operators and their residents. Unquestionably there are many appeals involving these agreements that have not resulted in written opinions and even more challenges at the trial court level that did not result in appeals. Arbitration was intended to create a speedy and economically efficient dispute resolution process for the residents of nursing homes. Instead, it has tended to create a round of time-consuming, expensive litigation prior to whatever dispute resolution method ultimately resolves the case. It is only human that the nursing home facilities have tended to create arbitration agreements that favor the nursing homes. In the case of the relationship between insurance companies and their insured Florida families, we have created regulations to level the playing field and protect the property rights of our families while recognizing the legitimate needs of the insurance companies. It seems to me that we have reached a point where the human rights of our senior citizens deserve no less. The judiciary is ill-equipped to provide that protection, but the Legislature could do so with ease.

APPENDIX A

VOLUNTARY ARBITRATION AND LIMITATION OF LIABILITY AGREEMENT

This agreement sets forth a dispute resolution procedure by which the parties intend to resolve all disputes which may arise between them concerning the Resident’s stay in the Facility. The procedure is intended to be a speedy and economic alternative to court litigation which is often slow, time-consuming and expensive. By using private arbitration without the right to appeal, the parties are able to avoid crowded court dockets and lengthy appellate procedures. Further, the streamlined discovery procedures enable the parties to reduce overall costs and expenses while maintaining the opportunity to develop all pertinent facts.

The Resident acknowledges that he/she voluntarily enters into this agreement and agrees to be bound by the terms and conditions stated herein.

THIS AGREEMENT CONTAINS A WAIVER OF STATUTORY RIGHTS. PLEASE READ CAREFULLY

THE SIGNING OF THIS AGREEMENT IS NOT MANDATORY. ARBITRATION IS A COMPLETELY VOLUNTARY PROGRAM.

IF YOU ELECT NOT TO SIGN THIS AGREEMENT THE RESIDENT’S ADMISSION TO THIS FACILITY WILL NOT BE AFFECTED IN ANYWAY

A. ARBITRATION PROVISIONS

1.1 Any and all claims or controversies between the Facility and the Resident arising out of or in any way relating to the Resident’s stay at the Facility, including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429, or a claim for unpaid nursing home or related charges), shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Florida Arbitration Code, Florida Statutes § 682.01, et seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement.
1.2 Demand for Arbitration shall be made in writing and be submitted to the other party to this Agreement via certified mail, return receipt requested; the party submitting the Demand for Arbitration is referred to as the “Submitting Party”; the party opposing the Demand for Arbitration is referred to as the “Opposing Party”. The term “Facility” refers to ManorCare of Palm Harbor, its corporate owners, agents, employees, administrators and licensees, and all affiliates thereof. The term “Resident” means FLORENCE HALLORAN and includes any legal representative, family member, agent, executor, guardian, power of attorney or any other person acting for, on behalf of or through FLORENCE HALLORAN
1.3 The arbitration proceedings shall take place in Pinellas County, Florida.
1.4 The arbitration panel shall be composed of one (1) arbitrator. Subject to the requirements of Section 1.5 herein, the parties shall agree upon an arbitrator who must either be a retired Florida civil circuit court or federal judge or a member of the Florida Bar with at least ten 10 years of experience as an attorney. If the parties cannot reach an agreement on an arbitrator within 30 days of receipt of the demand for arbitration, then the selection of an arbitrator shall be submitted to the American Arbitration Association (“AAA”) for selection of an arbitrator from its Commercial Panel of Arbitrators, or from some other agreed upon arbitration service. If the parties are unable to agree upon an arbitrator, then either party may apply to an appropriate court for appointment of an arbitrator.
1.5 The arbitrator shall be independent of all parties, witnesses, and legal counsel, and no officer, director, affiliate, subsidiary, or employee of a party, witness, or legal counsel may serve as an arbitrator in the proceeding.
1.6 Discovery in the arbitration proceeding shall be governed by the Florida Rules of Civil Procedure. However, discovery shall be limited to the following methods:
(1) if the Submitting Party is a Resident, the Resident shall provide the Facility with all of the following documents within 30 days after Demand for Arbitration is submitted (and Facility shall reimburse Resident ,25<t per copy):
(a) all nursing home, assisted living facility, hospital, physician, psychiatric, psychological and/or Department of Children and Families or Ombudsmen records regarding the Resident and within Resident’s possession or control, and concerning the time period of the Resident’s stay at the Facility and the ten (10) years prior and after.
(b) a list of all nursing homes, assisted living facilities, hospitals, clinics, and physicians or other health care providers that have provided care or treatment to the Resident including an executed Medical Authorization allowing Facility to obtain copies of all such records, at Facility’s expense (Facility shall provide Resident with copies of all such records upon receipt of written request from resident, but Resident must reimburse Facility .25<t per page);
(c) resident’s birth certificate;
(d) resident’s death certificate;
(e) resident’s autopsy report;
(f) documentation regarding any and all medical expenses which the Resident claims were incurred due to the legal fault of the Facility;
(g) all photographs and/or video tapes regarding the Resident which were taken or recorded during the Resident’s stay at the Facility;
(h) all records, memos, outlines, diaries, letters, etc. drafted by the Resident during the Resident’s stay at the Facility or drafted by the Resident’s family or friends if such document concerns in any fashion the Resident’s stay at the Facility;
(i) any sworn recorded statements to be relied upon at the arbitration hearing and including the full name, title, address and phone number of the person making the sworn statement; and
(j) proof of authority to act on behalf of the Resident.
(2) Facility shall provide the following to the Resident within 30 days after the Demand for Arbitration is received (and Resident shall reimburse Facility 25<j per copy):
(a) the Facility’s chart regarding the Resident;
(b) the Facility’s business office file regarding the Resident;
(c) any 24 Hour Reports/ “Supervisors Daily Reports” regarding the Resident;
(d) any photographs taken of the Resident while at the Facility;
(e) any sworn recorded statements to be relied upon at the arbitration hearing and including the full name, title, address and phone number of the person making the sworn statement;
(3) The Submitting Party shall designate expert witnesses, if any, within 65 days after Demand for Arbitration is submitted;
(4) The Opposing Party shall have thirty (30) days after expert designation is received in which to depose such expert;
(5) The Opposing Party shall designate experts, if any, within 105 days after Demand for Arbitration is submitted;
(6) The Submitting Party shall have thirty (30) days after the Opposing Party’s expert designation is received in which to depose such experts;
(7) any report or affidavit of an expert, and a list of all records contained in the expert’s file, must be exchanged no later than ten (10) working days before the date of the expert’s deposition;
(8) The only depositions allowed shall be of experts and any treating physicians. No other individuals may be deposed. Each deposition shall be limited to six hours per witness;
(9) the following shall be exchanged no later than fourteen (14) working days before the arbitration hearing:
(a) list of witnesses to be called at the hearing (full name, title, address and phone number if known) and an outline of each witnesses’ intended testimony;
(b) list of documents to be relied upon at hearing;
(c) any sworn recorded statements to be relied upon at hearing including the full name, title, address and phone number of the statement’s declarant;
(10) The arbitration hearing shall be held no later than 180 days after Demand for Arbitration is submitted.
1.7 The arbitrator shall designate a time and place within Pinellas County, Florida for the final arbitration hearing and shall provide 30 days’ notice to the parties of the final hearing.
1.8 The arbitrator shall apply the Florida Rules of Evidence and Florida Rules of Civil Procedure in the arbitration proceeding except where otherwise stated in this Agreement. Also, the arbitrator shall apply, and the arbitration award shall be consistent with, Florida law except as otherwise stated in this Agreement.
1.9 The arbitration award shall be made and delivered in accordance with Section 682.09 of the Florida Arbitration Code, and shall be delivered to the parties and their counsel no later than thirty (30) days following the conclusion of the arbitration. The award shall set forth in detail the arbitrator’s findings of fact and conclusions of law.
2.0 The arbitrator’s award shall be final and binding without the right of appeal except as may be provided under Florida law.
2.1 The arbitrator’s fees and costs associated with the arbitration shall be paid by the Facility except in the case of a dispute involving non-payment of Facility charges. If the dispute involves non-payment of charges, the arbitrator’s fees and costs associated with the arbitration will be divided equally between the parties. The parties shall bear their own attorney’s fees and costs and hereby expressly waive any statutory right to recover attorney fees or costs, including under Florida Statutes § 400.023 § 400.029 and § 57.105 and Proposals for Settlement.
2.2 The parties agree to maintain the confidentiality of the arbitration proceeding in all respects, including all arbitration filings, depositions, deposition transcripts, documents produced or obtained in discovery, or other materials provided by and exchanged between the parties and the arbitrator’s award, findings of fact and conclusions of law. In addition, following receipt of the arbitrator’s award, each party agrees to return to the producing party within 30 days the original documents exchanged in discovery and at the arbitration hearing.
2.3The Limitation of Liability Provision below is incorporated by reference into this Arbitration Agreement.

B. LIMITATION OF LIABILITY PROVISION: Read Carefully Before Signing.

1.1 The parties to this Agreement understand that the purpose of this “Limitation of Liability Provision” is to limit, in advance, each party’s liability in relation to this Agreement.
1.2 Liability for any claim brought by a party to this Agreement against the other party, including but not limited to a claim by the Facility for unpaid nursing home charges, or a claim by a Resident, arising out of the care or treatment received by the Resident at the Facility, including, without limitation, claims for medical negligence or violation(s) of Florida Statutes § 400.022, et seq., arising from simple or gross negligence, shall be limited as follows:
1. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded.
2. Non-economic damages shall be limited to a maximum of $250,000.
3. Interest on unpaid nursing home charges shall not be awarded.
4. Punitive damages shall not be awarded.

The parties hereto each acknowledge that these limitations of liability are fair and reasonable under the circumstances.

C. WITHDRAWAL PERIOD

Each party shall have three (3) business days from the execution of this agreement to cancel the agreement by notifying the other party in writing, by certified mail return receipt requested, of its desire to cancel.

D. NONSEVERABILITY

In the event any provision of this agreement is determined by a court of competent jurisdiction, an arbitrator or arbitrator panel to be unenforceable for any reason, either party may thereafter cancel this agreement by giving-written notice to such effect within 10 days after such determination. Upon such cancellation, any award, ruling or order under this agreement shall be considered null and void and unenforceable.

E. FULL AGREEMENT

This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter of this agreement and supersedes any prior understandings, agreements, or representations by or among the parties, written or oral.

_I have received a copy of the brochure entitled Voluntary Arbitration Program (Initials) Information publication NCR-MC-22.

Facility Representative /Date

Resident or Guardian /Date

      . In the proceeding below, the parties disputed Ms. Stiehl's authority to execute an arbitration agreement on Ms. Halloran's behalf. The nature of Ms. Stiehl’s authority to execute the agreement was not raised in this appeal.

        . The agreement in this case is expressly governed by the Florida Arbitration Code. To the extent that the federal arbitration code may sometimes apply, a state solution would likely need to address the concerns created by both codes.

      . See, e.g., Shotts, 988 So.2d at 641 (citing Bland, 927 So.2d at 256). As noted in Bland, this district "eschews the 'sliding scale’ approach” employed in the First and Fourth Districts, as well as in other states, and instead assesses procedural unconscionability and substantive unconscionability separately. Bland, 927 So.2d at 257 (citing Petsch, 872 So.2d at 265); see also Romano v. Manor Care, Inc., 861 So.2d 59, 62 (Fla. 4th DCA 2003).

      . Section 1.4 creates a list of arbitration forums, some of which are not actually available. Despite references to AAA arbitration as a possibility in the agreement, that forum is apparently unavailable at this time. See New Port Richey Med. Investors, LLC v. Stern ex rel. Petscher, 14 So.3d 1084 (Fla. 2d DCA 2009). Likewise, given the lifetime tenure of federal judges, the use of a retired federal judge in Pinellas County is illusory.

      . Even when residents are given ample time and opportunity to review these form contracts, the reality is that the resident is often significantly incapacitated and may not be competent to sign the agreement. A spouse, son, or daughter, relying on a power of attorney to sign for the resident, is often under time constraints to find a safe facility for a loved one during a very emotional time. Thus, in an unregulated market, these circumstances do not lend themselves to the natural creation of a level playing field.

      . Hopefully, Manor Care will not raise the statute of limitations as a defense.

      . See Carrington Place of St. Pete, LLC v. Estate of Milo ex rel. Brito, 19 So.3d 340 (Fla. 2d DCA 2009); Gessa, 4 So.3d at 682; Jaylene, Inc. v. Moots, 995 So.2d 566 (Fla. 2d DCA 2008); Shotts, 988 So.2d at 642; Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630 (Fla. 2d DCA 2008); Bland, 927 So.2d at 254; Estate of Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615 (Fla. 2d DCA 2006); Ace Am. Ins. Co. v. HCP III of Bradenton, Inc., 913 So.2d 1280 (Fla. 2d DCA 2005); MN MedInvest Co. v. Estate of Nichols ex rel. Nichols, 908 So.2d 1178 (Fla. 2d DCA 2005); Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531 (Fla. 2d DCA 2005); Germann v. Age Inst. of Fla., Inc., 912 So.2d 590 (Fla. 2d DCA 2005); Eldridge v. Integrated Health Servs., Inc., 805 So.2d 982 (Fla. 2d DCA 2001); Estate of Blanchard v. Cent. Park Lodges (Tarpon Springs), Inc., 805 So.2d 6 (Fla. 2d DCA 2001); Five Points Health Care, Ltd. v. Mallory, 998 So.2d 1180 (Fla. 1st DCA 2008); Slusser v. Life Care Ctrs. of Am., Inc., 977 So.2d 662 (Fla. 4th DCA 2008); Estate of Orlanis v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811 (Fla. 3d DCA 2007); Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773 (Fla. 4th DCA 2007); Fletcher v. Huntington Place Ltd. P'ship, 952 So.2d 1225 (Fla. 5th DCA 2007); Linton, 953 So.2d at 577; Alterra Healthcare Corp. v. Bryant, 937 So.2d 263 (Fla. 4th DCA 2006); Stokes, 935 So.2d at 1242; Prieto v. Healthcare & Ret. Corp. of Am., 919 So.2d 531 (Fla. 3d DCA 2005); Lacey, 918 So.2d at 334; Estate of Agee v. Age Inst. of Fla., Inc., 913 So.2d 1248 (Fla. 1st DCA 2005); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA 2005); Extendicare Health Servs., Inc. v. Estate of Patterson, 898 So.2d 989 (Fla. 5th DCA 2005); Estate of Etting v. Regents Park at Aventura, Inc., 891 So.2d 558 (Fla. 3d DCA 2004); Richmond Healthcare, Inc. v. Digati, 878 So.2d 388 (Fla. 4th DCA 2004); Five Points Health Care Ltd. v. Alberts, 867 So.2d 520 (Fla. 1st DCA 2004); Algayer v. Health Ctr. of Panama City, Inc., 866 So.2d 75 (Fla. 1st DCA 2003); Romano, 861 So.2d at 61; Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003); Consol. Res. Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th DCA 2003); Northport Health Servs. v. Estate of Raidoja, 851 So.2d 234 (Fla. 5th DCA 2003); Integrated Health

        Servs. of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002).


author: MORRIS, Judge.

text:
    Scott Alan FAST, Appellant, v. Tammy Lynn NELSON, Appellee.
    No. 2D09-71.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2009.

      Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellant.
    Tammy Lynn Nelson, pro se.
   MORRIS, Judge.

Scott Alan Fast appeals a nonfinal order which transferred a child custody modification proceeding from Collier County to Suwannee County. Because there is no indication in the record that the trial court made the necessary findings for the change in venue, we reverse.

In this case, venue was proper in both Collier County and Suwannee County. However, Nelson sought to have the case transferred to Suwannee County on the basis of the forum non conveniens statute. Section 47.122, Florida Statutes (2008), provides that “[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” Prior to granting a change in venue pursuant to section 47.122, a trial court must make a finding of substantial inconvenience or undue expense. See Kirchhoff v. Scott, 736 So.2d 786, 788 (Fla. 2d DCA 1999).

Unfortunately, the trial court’s written order does not contain any findings as to the basis for the change in venue and the record on appeal does not contain a transcript of the hearing or an acceptable substitute. Typically, where a trial court’s order is devoid of required findings and the appellant has failed to provide this court with a transcript or stipulated statement of the facts, we would be constrained to affirm because it would ordinarily be impossible for the appellant to establish that an asserted error is harmful. Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007), review denied, 981 So.2d 1199 (Fla.2008) (table); see also Guntner v. Jennings, 980 So.2d 1185, 1188 (Fla. 5th DCA 2008) (holding that without a transcript or stipulated statement of facts, the court “cannot second-guess the factual basis for a forum non conveniens transfer”).

Yet, in this case, both Fast and Nelson confirmed that at the hearing, the trial court reserved ruling on the motion to change venue. Thus it is undisputed that the trial court did not orally pronounce the required findings of substantial inconvenience or undue expense. Accordingly, because the trial court failed to either orally pronounce the required findings or to include them in its written order, we must reverse and remand for the trial court to make such findings if supported by the evidence. See Kirchhoff, 736 So.2d at 788.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . Venue was proper in Collier County because the original judgment of dissolution of marriage was entered there and Fast resided there with the parties’ then-minor son. See § 61.13(2)(d), Fla. Stat. (2008). Venue was also proper in Suwannee County because Nelson resided there with the parties’ minor daughter. See id.

      . See also § 61.13(2)(d) (providing that in modification proceedings, "[tjhe court may change the venue in accordance with s. 47.122”).


author: HAZOURI, J.

text:
    Margaret LIEBEL f/k/a Margaret Kennedy, Appellant, v. NATIONWIDE INSURANCE COMPANY OF FLORIDA, Appellee.
    No. 4D08-3356.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 2009.
    Rehearing Denied Dec. 22, 2009.

      Timothy H. Crutchfield, Miami, for appellant.
    Carlos D. Cabrera and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   HAZOURI, J.

The Appellant, Margaret Liebel, f/k/a Margaret Kennedy, appeals a final judgment whereby the trial court found, by way of summary judgment, that an all-risk insurance policy of the Appellee, Nationwide Insurance Company of Florida (hereinafter commonly referred to as “the Policy”), covered a loss to Liebel’s home caused by a ruptured water line beneath it, but that the loss was excepted from coverage by the policy’s earth movement exclusion. On appeal, Liebel contests the propriety of that finding, alleging that: (1) the Policy covers her loss, (2) the loss is not excepted from coverage under the earth movement exception, and (3) the trial court erred by not finding that the cost of repairing the water line, i.e., a plumbing system, was covered by the Policy. Although we agree that if the loss were only related to earth movement, it would be excluded by the earth movement exception, we find that the trial court erred in concluding the earth movement exception specifically excluded coverage for the cost of tearing out and replacing any part of the house necessary to repair the ruptured water line.

On or about February 14, 2003, Liebel, while moving a couch in her living room, discovered a wide gap between the floor and the wall. Between February 14, 2003 and March 4, 2003, Liebel’s living room floor began to intensely sag and bend. Then, every room of the home became separated from the walls. A wide crack also formed in the middle of the living room. This crack was caused by the rupturing of a water line beneath Liebel’s home. The escaping water caused the soil beneath the home to erode, which in turn caused the foundation to settle, which in turn caused the damage to Liebel’s home.

Prior to this incident, Liebel purchased homeowner’s insurance from Nationwide. The Policy was an “all-risk” policy. This means that “[u]nless the policy expressly excludes the loss from coverage, this type of policy provides coverage for all fortuitous loss or damage other than that resulting from willful misconduct or fraudulent acts.” Fayad v. Clarendon Nat. Ins. Co., 899 So.2d 1082, 1085 (Fla.2005).

Liebel notified Nationwide and sought coverage under the Policy. On March 25, 2003, and April 1, 2003, Nationwide had Liebel’s home inspected by an engineer. Based on the information obtained from the inspections, Nationwide denied coverage for the loss to Liebel’s home. It stated that the loss to Liebel’s home was specifically excluded under the Policy. The applicable exclusions are as follows:

1. We do not cover loss to any property resulting directly or indirectly from any of the following. Such a loss is excluded even if another cause or event contributed concurrently or in any sequence to cause the loss,
a) Earth Movement and Volcanic Eruption. Earth movement means: earth movement due to natural or unnatural causes, including mine subsidence; earthquake; landslide; mudslide; earth shifting, rising or sinking (other than sinkhole collapse). Volcanic eruption means: eruption; or discharge from a volcano.
3. We do not cover loss to property described in Coverages A and B resulting directly from any of the following:
e) Continuous or repeated seepage or leakage of water or steam over a period of time from a heating, air conditioning or automatic fire protective sprinkler system; household appliance; or plumbing system that results in deterioration, rust, mold, or wet or dry rote [sic]. Seepage or leakage from, within, or around any shower stall, shower tub, tub installation or other plumbing fixture, including their walls, ceilings or floors, is also excluded.
If loss caused by water or steam is not otherwise excluded, we will cover the cost of tearing out and replacing any part of the building necessary to repair or replace the system or appliance. We do not cover loss to the system or appliance from which the water or steam escaped.
f) (1) wear and tear, marring, deterioration;
(2) inherent vice, latent defect, mechanical breakdown;
(3) smog, rust, mold, wet or dry rot;
(4) smoke from agricultural smudging or industrial operations;
(5) release, discharge, or dispersal of contaminants or pollutants;
(6) settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; or
(7) birds, vermin, rodents, insects or domestic animals. Resulting breakage of glass constituting part of a covered building is covered.
If any items f)(l) through (7) cause water to escape from a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance, we cover loss caused by the water not otherwise excluded. We also cover the cost of tearing out and replacing any pari of a building necessary to repair the system or appliance. We do not cover loss to the system or appliance from which the water escaped.
Under exclusions 3.a) through 3.f), any loss that follows is covered unless it is specifically excluded.

(emphasis added).

Liebel filed suit for breach of insurance contract, alleging that Nationwide failed to pay her for all of the losses she sustained as provided for in the Policy. Nationwide answered, citing as affirmative defenses the exclusion provisions stated above. This was followed by Liebel’s Motion for Summary Judgment, where she alleged that the facts were undisputed and, as a matter of law, she was entitled to judgment in her favor because the loss to her home fell within an area that the Policy covers and it was not otherwise exempt from coverage via one of the Policy’s exclusions. Nationwide filed a cross-motion for summary judgment. In it, Nationwide conceded that the facts are undisputed and argued that, as a matter of law, it was entitled to judgment because the loss sustained by Liebel was excluded from coverage by way of the Policy’s exclusions. Lie-bel filed a second motion for summary judgment. In that motion, she argued that her loss was covered by the Policy because the Policy states: “We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance.” Liebel contended that this statement encompassed coverage for repairs to plumbing systems, such as her water line.

After a hearing on these motions, the trial court rendered an order whereby it denied Liebel’s Motion for Summary Judgment, granted Nationwide’s Cross-Motion for Summary Judgment, and denied Lie-bel’s Second Motion for Summary Judgment. It then entered a final judgment in favor of Nationwide, finding that the Policy’s earth movement exclusion operated to deny coverage for Liebel’s loss because it specifically includes natural and unnatural causes and defined earth movement to include “earth shifting” and “rising and sinking.” The trial court reasoned that the damage to Liebel’s home fit within this exclusion because it was caused by earth shifting that was generated from an unnatural cause, i.e., the rupturing of the water line beneath Liebel’s home. The trial court considered whether section (3)(f) of the policy covered the cost of repairing the ruptured water line underneath Liebel’s home, as that section of the Policy covered those costs of repairing a plumbing system that has deteriorated from wear and tear. However, it held that this provision does not cover the cost of repairing the plumbing system because, in accordance with section (3)(f)’s language, such coverage is available if “not otherwise excluded,” the loss was otherwise excluded via the earth movement exclusion.

We review this appeal under the de novo standard of review, as “[a]n appellate court reviews de novo the propriety of the grant of summary judgment.” State Farm Mut. Auto. Ins. Co. v. Colon, 880 So.2d 782, 783 (Fla. 2d DCA 2004). De novo review is also proper because “[t]he construction of an insurance policy is a question of law for the court and is subject to de novo review.” Flaxman v. Gov’t Employees Ins. Co., 993 So.2d 597, 599 (Fla. 4th DCA 2008).

The type of policy at issue here is an all-risk policy. “Unless the policy expressly excludes the loss from coverage, this type of policy provides coverage for all fortuitous loss or damage other than that resulting from willful misconduct or fraudulent acts.” See Fayad, 899 So.2d at 1085. However, “[although the term ‘all-risk’ is afforded a broad, comprehensive meaning, an ‘all-risk’ policy is not an ‘all loss’ policy, and thus does not extend coverage for every conceivable loss.” Id. at 1086 (citing Wallach v. Rosenberg, 527 So.2d 1386, 1388 (Fla. 3d DCA 1988)). But, under an all-risk policy, an exclusion applies if the loss clearly and unambiguously fits within its provisions. See id. at 1090 (stating that “[i]f [the insurer] intended to exclude damage from earth movement caused by man-made events from coverage as it now contends, it could have done so clearly and unambiguously”).

In order to decide “whether an all-risk policy excludes coverage for an insured’s claimed damages,” courts are “guided by well-established principles of insurance contract interpretation.” Id. at 1086. The “guiding principle” of insurance contract interpretation is “that insurance contracts are construed in accordance with ‘the plain language of the policfy] as bargained for by the parties.’ ” Id. (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 33 (Fla.2000)). Yet,

if the salient policy language is susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous. Ambiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured. Further, ambiguous “exclusionary clauses are construed even more strictly against the insurer than coverage clauses.” Thus, the insurer is held responsible for clearly setting forth what damages are excluded from coverage under the terms of the policy.

Id. (quoting Anderson, 756 So.2d at 34) (citations omitted). However, “ ‘the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction,’ and the fact that a policy fails to define an operative term does not, by itself, create an ambiguity.” State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028 (Fla. 2d DCA 2009) (quoting Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 30 (Fla. 2d DCA 2004)). And “ ‘[w]hen the insurer has not defined a term, the common definition of the term should prevail.’ ” Id. (quoting Auto-Owners Ins. Co. v. Above All Roofing, LLC, 924 So.2d 842, 847 (Fla. 2d DCA 2006)).

In this case, the trial court was correct in holding that the Policy’s earth movement exclusion included the loss to Liebel’s home, as the plain and unambiguous meaning of the Policy and its earth movement exclusion warrant that result. In particular, the Policy’s earth movement exclusion excepts from coverage “loss to any property resulting directly or indirectly” from “earth movement due to natural or unnatural causes,” (emphasis added), with earth movement including “earth shifting, rising, or sinking.” The loss to Liebel’s home was caused by the shifting of earth under the home that was, in turn, caused by earth shifting from unnatural causes, i.e., the water line rupturing. The loss was, therefore, specifically excluded from the Policy’s coverage by the earth movement exclusion, even though it was caused by an unnatural force, as the exclusion clearly and unambiguously stated that the loss sustained at Liebel’s home fell within it. Because this interpretation is clear on the face of the Policy, the court need not use the other principles of contract interpretation because there is not an ambiguity warranting their application. See State Farm Fire & Gas. Co. v. Metro. Dade County, 639 So.2d 63, 65 (Fla. 3d DCA 1994) (stating that “‘[a] court may resort to construction of a contract of insurance only when the language of the policy in its ordinary meaning is indefinite, ambiguous or equivocal,’ ” and that “ ‘[i]f the language employed in the policy is clear and unambiguous, there is no occasion for construction or the exercise of a choice of interpretations’ ” (quoting U.S. Fire Ins. Co. v. Morejon, 338 So.2d 223, 225 (Fla. 3d DCA 1976))).

Liebel’s next contention is that the cost of repairing the water line is covered by the Policy’s provision that says: “We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance.” If the cost of repair does not fall within this provision’s plain meaning, Liebel contends that an ambiguity in the Policy exists regarding her loss because after the Policy’s statement that it does not cover a loss that is “otherwise excluded,” it goes on to give the previously stated cost of repair provision. Liebel argues that this creates an ambiguity because the statement that immediately precedes the cost of repair provision possibly excepts her loss from coverage, while the cost of repair provision may include coverage for the “cost of tearing out and replacing any part of a building necessary to repair [a] system or appliance,” without specifically excluding a plumbing system. Liebel further contends that an ambiguity exists by pointing to the Policy’s subsequent paragraph, which states that “[u]n-der exclusions 3.a) through 3.f), any loss that follows is covered unless it is specifically excluded,” (emphasis added), and to the fact that the cost of repair provision does not specifically exclude repair costs caused by damage from earth movement.

In support of her argument, Liebel cites Hartford Accident & Indemnity Co. v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974). There, the insured’s home suffered damage resulting from an underground leak in a water line under the house and beneath its concrete slab. The all-risk policy of the insured covered “ ‘accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning system,’ ” and it provided that “ ‘[i]f loss by water not otherwise excluded ensues, this policy shall also cover the cost of tearing out and replacing any part of the building covered required to effect repairs to the plumbing, heating, or air conditioning system.’ ” Id. at 363. The policy at issue in Phelps, however, excluded from coverage damage caused from “ ‘water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through windows, driveways, foundations, walls, basement or other floors or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls, or floors.’ ” Id. Although the insurer argued that the exclusion applied to the loss, the First District held that it did not, stating:

From the previously quoted wording of the policy, we consider that the underground water exclusion does not have reference to leaks within the plumbing system of the house. Having specifically covered plumbing system leaks, the insurer, if it had intended to exclude underground leaks in the plumbing system, would or should have specifically said so....
When we consider the terminology used in the exclusion clause in pari materia with the affirmative statement of coverage from leaks in the plumbing system, we conclude that the exclusion was intended to relate only to damage from water not emanating from the plumbing system.

Id.

In the instant case, the trial court erred by not holding that the Policy covered the cost of repairing the plumbing system. This is because the Policy, by providing that it does not cover damage caused by water from a plumbing system that is otherwise excluded, but then stating that it covers the cost of repairing a system that caused water damage, has created an ambiguity, as two or more reasonable interpretations of these two intersecting provisions are feasible. Specifically, one may interpret the “otherwise excluded” language to preclude coverage for all damages caused by a matter otherwise excluded, including the cost of tearing out and replacing any part of Liebel’s home necessary to repair the ruptured water line. In contrast, a reasonable person could interpret the Policy to exclude from coverage the damage caused by earth movement, but include the cost of repairing the water line that caused the loss, as it is a plumbing system that caused water damage due to its deterioration from wear and tear. As such, there is an ambiguity. In following the principle that ambiguities in insurance contracts favor the insured and are strictly construed against the insurer, we hold that the cost of repairing the water line was covered by the Policy and reverse the trial court’s order to the extent that it held to the contrary. Such an interpretation is also in accord with the principle that an all-risk policy will cover a loss falling within its coverage unless that loss is specifically excluded, as the Policy did not specifically exclude the cost of repairing a plumbing system from its coverage. Rather, it only specifically excluded damage caused by earth movement.

We, therefore, reverse and remand with directions to enter judgment in favor of Liebel for the cost of tearing out and replacing any part of the house necessary to repair the water line.

Reversed, and Remanded with Directions.

TAYLOR, J., and BEACH, MARCIA, Associate Judge, concur.


author: KHOUZAM, Judge.

text:
    Della M. BISHOP, as Trustee of the Della M. Bishop Trust, Appellant, v. Walter W. COURTNEY, Appellee.
    No. 2D08-1573.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2009.
    Rehearing Denied Dec. 9, 2009.

      Monterey Campbell and Kristie Hatch-er-Bolin of GrayRobinson, P.A., Lakeland, for Appellant.
    Thomas J. Wohl of Swaine & Harris, P.A., Sebring, for Appellee.
   KHOUZAM, Judge.

Della M. Bishop, as trustee of the Della M. Bishop Trust, appeals a final summary judgment granting Walter W. Courtney an implied easement over property owned by Ms. Bishop. Because the circuit court erred as a matter of law in granting summary judgment in favor of Mr. Courtney, we reverse.

The issue on appeal is whether the representations in a recorded plat created an implied easement in favor of Mr. Courtney. In 1957, developers Paul M. Collier and Beulah D. Collier platted a parcel of land in Highlands County, Florida, as “Lake Ridge Estates.” The plat included forty residential lots — lots 1 through 20 of block 1 and lots 1 through 20 of block 2— and four tracts of land. The tracts were designated A, B, C, and D. A boat basin and a parcel known as the “Parking Area” were located between tracts C and D. The slips in the boat basin were labeled boat slips 1 through 20 of block 1 and boat slips 1 through 20 of block 2.

The land was sold to Lake Ridge Estates, Inc. in 1959. In 1971, Ms. Bishop and her husband, Luther C. Bishop, purchased lots 19 and 20 of block 2, tracts A, B, C, and D, and the parcel of land located between tracts C and D. The Bishops’ title described the property as follows:

Lots 19 and 20 of Block 2 and Tracts A and B, as set out on that certain plat of Lake Ridge Estates and Tracts C and D, together with that parcel lying between said Tracts and being bounded on the North by the South line of Tract C and on the South by the North line of Tract D and on the West by the East boundary of Lot 20, Block 1, Lot 20, Block 2, and the Easterly terminus of Lake Ridge Drive and on the East by the Westerly shoreline of Lake Grassy, according to the plat thereof as recorded in Plat Book 5, at Page 26 of the Public Records of Highlands County, Florida. Said Tracts A, B, C and D are marked, “not a part of this subdivision” but as shown on said plat.

After her husband’s death, Ms. Bishop transferred title of the property to the Della M. Bishop Trust. In 2003, Mr. Courtney purchased lots 19 and 20 of block 2 and began docking his boat in boat slips 19 and 20 of block 2. Ms. Bishop filed a suit for ejectment alleging that Mr. Courtney was docking his boat on her property. Mr. Courtney filed a counterclaim to quiet title to boat slips 19 and 20 and sought a declaration that he had an implied easement over the “Parking Area.” Mr. Courtney then moved for summary judgment, contending that the labeling of the boat slips and lots in the plat gave rise to the inference that the lot owners could dock their boats in the corresponding boat slips. He also argued that it was reasonable to infer from the plat that the “Parking Area” was created for the use and enjoyment of the lot owners.

At the summary judgment hearing, both parties agreed that the only issue before the court was whether the representations in the plat created an implied easement over Ms. Bishop’s property. The circuit court entered a final summary judgment in favor of Mr. Courtney, finding that he held an implied easement for ingress, egress, and use of the “Parking Area” and an implied easement for use and possession as to boat slips 19 and 20.

A trial court should grant a summary judgment only when there is no genuine issue of material fact and when the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). We review an order granting summary judgment de novo. Id.

Our review of the plat reveals no representations in the plat that would lead us to infer that the rights to the boat slips were based on ownership of the lots. We also find no indication that the developers intended to dedicate any portion of the property as a common area, other than the express dedication of Lake Ridge Drive to the public. Lake Ridge Drive terminates at the west end of the “Parking Area” and no other dedication is set forth on the plat. Further, McCorquodale v. Keyton, 63 So.2d 906 (Fla.1953), which was relied on by Mr. Courtney, does not mandate the result reached by the circuit court in this case. Unlike the plat in McCorquodale, id. at 907, which contained a dedication of property as a park, here, the plat merely designated a “Parking Area” adjacent to the boat basin. As suggested by Ms. Bishop, a number of reasonable inferences other than the inferences raised by Mr. Courtney can be drawn from the face of the plat. It is possible, for example, that the original developers intended to build a private marina that included the boat basin and the “Parking Area.” Mr. Courtney did not provide any evidence, other than mere speculation, as to the intentions of the original developers in labeling the plat. As such, the summary judgment was based on the impermissible stacking of inferences. See Green House, Inc. v. Thiermann, 288 So.2d 566, 568 (Fla. 2d DCA 1974) (finding that a second inference cannot be superimposed upon a prior inference where the prior inference “was not established to the exclusion of all other reasonable inferences”); see also Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 407 (Fla.1954) (observing that the rule providing that an inference may not be drawn from another inference is designed to protect litigants from verdicts or judgments based on speculation).

For the foregoing reasons, we conclude that the circuit court erred in entering a final summary judgment in favor of Mr. Courtney. Accordingly, we reverse the final summary judgment and remand this case to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

NORTHCUTT and CRENSHAW, JJ„ Concur.

      . The original property description did not include the parcel of land located between tracts C and D. The description was later corrected by a warranty deed.


text:
    Patrick STOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4429.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Rehearing Denied Dec. 2, 2009.
    Patrick Stom, 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.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


author: COPE, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. EDUARDO J. GARRIDO, D.C., P.A., as assignee of Maria Garcia, Respondent.
    No. 3D09-1418.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.

      Thomas L. Hunker, for petitioner.
    Panter, Panter, & Sampedro and Christian Carrazana, Miami, for respondent.
    Before RAMIREZ, C.J., and COPE and WELLS, JJ.
   COPE, J.

This is a petition for second-tier writ of certiorari in a personal injury protection (“PIP”) case. We grant the petition.

Maria Garcia was insured by United Automobile Insurance Co. (“United Auto”). She was injured in an automobile accident and was treated by Dr. Eduardo J. Garri-do. Ms. Garcia assigned her PIP benefits to Dr. Garrido.

Dr. Garrido submitted his bills to United Auto, who did not pay them. Dr. Garrido brought suit.

Prior to trial, Dr. Garrido filed a motion in limine to bar the admission of the opinion of United Auto’s reviewing physician, Dr. Neil Fleisher. The motion explained that Dr. Fleisher had prepared a written report based on his review of Ms. Garcia’s treatment records. According to the motion, Dr. Fleisher opined that some, but not all, of the care was not medically necessary or related to the automobile accident. Dr. Garrido requested an order excluding Dr. Fleisher’s report because Dr. Fleisher did not perform an independent medical examination (“IME”) of the insured.

At argument on the motion in limine, both sides agreed that there was an internal conflict of decisions on this issue within the appellate division of the circuit court. Both sides agreed that the county court judge was free to choose the precedent she regarded as better reasoned. The county court judge granted the motion in limine. In subsequent proceedings, the court entered summary judgment in favor of Dr. Garrido, and United Auto appealed. The appellate division of the circuit court affirmed without opinion, and United Auto has filed a petition for second-tier writ of certiorari with this court.

Dr. Gañido argues that this case is not worthy of consideration on second-tier cer-tiorari. We disagree. This case is one of a number of petitions this court has entertained, including one proceeding en banc, in an effort to clarify the procedural aspects of the PIP statute. See United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) (en banc); see also Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So.3d 897 (Fla 3d DCA 2009). The parties acknowledged at the time of the county court hearing that there was an internal conflict of decisions in the appellate division of the circuit court. Under the circumstances, certiorari review is appropriate. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003).

Dr. Garrido argues that United Auto’s issue is not sufficiently preserved for appellate review because it failed to have Dr. Fleisher’s report marked and made part of the record. In this case, however, the substance of the report was sufficiently communicated in the text of the motion in limine and in the statements by counsel to the county court judge in argument on the motion in limine. See § 90.104(l)(b), Fla. Stat. (2008). The point is adequately preserved.

Turning to the merits, the parties litigated the case on the assumption that paragraph 627.736(7)(a), Florida Statutes, was applicable. Assuming for purposes of discussion that is so, the appellate division departed from the essential requirements of law. In a ease governed by paragraph 627.736(7)(a), the report can be issued by “a physician who reviews the examination and treatment records of the insured.” United Automobile Ins. Co. v. Metro Injury and Rehab Center, 16 So.3d at 900.

In the meantime, this court has issued its en banc decision in United Automobile Insurance Company v. Santa Fe Medical Center. That decision clarified that in the case of a complete denial of payment, paragraph 627.736(4)(b) is controlling, not paragraph 627.736(7)(a). Slip op. at 5. The case must be returned to the county court for further proceedings consistent with United Automobile Ins. Co. v. Metro Injury and United Automobile Ins. Co. v. Santa Fe Medical Center.

Petition granted.


author: WALLACE, Judge.

text:
    Julio MERCADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1967.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 9, 2009.

      Julio Mercado, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Julio Mercado challenges a final order that denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his postconviction motion, Mr. Mercado asserted eight grounds for relief based on ineffective assistance of counsel and one ground claiming that his sentence was illegal. The postconviction court summarily denied some of the grounds raised and denied others after an evidentiary hearing. Except for three of the claims, we affirm without comment the postconviction court’s denial of Mr. Mercado’s motion in all respects.

In ground seven, Mr. Mercado alleged that his trial counsel provided ineffective assistance because counsel did not renew all previous objections and did not move for a new trial. But Mr. Mercado failed to allege specific facts to support this claim. In particular, Mr. Mercado did not explain what objections should have been renewed or what grounds would have supported a motion for a new trial. Consequently, the postconviction court summarily denied this claim as legally insufficient. We agree that the claim was legally insufficient. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) (“A defendant may not simply file a motion for postcon-viction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.”). However, in light of the recent opinion in Spera v. State, 971 So.2d 754 (Fla.2007), we reverse the summary denial of ground seven and remand with instructions to strike that claim with leave to amend within a specific period of time in accordance with Spera. See Jimenez v. State, 993 So.2d 553, 556 (Fla. 2d DCA 2008).

In ground three, Mr. Mercado claimed that his sentence was illegal because (1) the jury did not make a specific finding to support a sentence enhancement, (2) the trial court did not consider several mitigating factors, and (3) one of his charges was improperly classified. The postconviction court denied this claim as it relates to the jury’s failure to make a specific finding to support a sentence enhancement, but it did not rule on the remaining portions of the claim. The post-conviction court also did not rule on ground nine, where Mr. Mercado alleged that his trial counsel was ineffective for failing to object during voir dire. We find no error in the postconviction court’s denial of Mr. Mercado’s motion as it relates to his claim that the jury did not make a specific finding to support a sentence enhancement. Nevertheless, we remand this case to allow the postconviction court to address the remaining issues raised in grounds three and nine that were not the subject of a ruling. See Kafus v. State, 933 So.2d 1267, 1267 (Fla. 2d DCA 2006); Calzada v. State, 934 So.2d 541, 542 (Fla. 3d DCA 2006).

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

KHOUZAM and MORRIS, JJ., Concur.


text:
    Rutilio Santos PADILLA, Appellant, v. COLLINS CONTRACTING, Appellee.
    No. 1D09-1906.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 2, 2009.

      David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    Thomas Hodas of Law Office of Thomas Hodas, P.A., Palm City, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, Claimant raises two points: 1) the Judge of Compensation Claims (JCC) erred by issuing a summary final order finding that his amended petition for benefits was barred by the statute of limitations; 2) and the deputy chief judge erred by dismissing his original petition for benefits for reasons not enumerated in section 440.192(2), Florida Statutes (2006). We do not reach Claimant’s first point because the second point requires reversal.

In a petition for benefits filed August 5, 2008, Claimant alleged he was injured in a compensable accident on August 5, 2006. The deputy chief judge of the Office of Judges of Compensation Claims (OJCC) dismissed Claimant’s first petition without prejudice on August 27, 2008. The order cited, as reasons for the dismissal, Claimant’s failure to include a signed fraud statement and either an OJCC case number or a verified motion for assignment of substitute identification number. On September 9, 2008, Claimant filed an amended petition requesting the same benefits, which included a motion for substitute identification number. On March 13, 2009, the E/C filed a motion for a summary final order arguing the statute of limitations barred Claimant’s amended petition. Claimant responded and argued the original petition was timely and the second petition related back to the date the original petition was filed. On March 20, 2009, the JCC entered an order granting the E/C’s motion and finding that Claimant’s dismissed petition did not toll the statute of limitations.

A JCC’s ruling in a summary final order is evaluated using the summary judgment standard; thus, the ruling is reviewed de novo and all reasonable inferences must be drawn in favor of the party opposing summary judgment. Thomas v. Eckerd Drugs, 987 So.2d 1262, 1263 (Fla. 1st DCA 2008). We disagree with the JCC’s reliance on the deputy chief judge’s dismissal of Claimant’s original petition for benefits when finding that the Claimant did not comply with the statute of limitations.

Claimant correctly argues section 440.192(2)(a)-(j), Florida Statutes, does not require the signing of a fraud statement, an OJCC number, or a verified motion for assignment of a substitute identification number, which were the reasons his first petition for benefits was dismissed without prejudice by the deputy chief judge.

The deputy chief judge cited section 440.105(7), Florida Statutes, as authority for requiring a signed fraud statement. Section 440.105(7), Florida Statutes (2006), does not allow for dismissal when a claimant fails to sign a fraud statement. Instead, subsection (7) provides that “payments under this chapter shall be suspended until such signature is obtained.” A prior version of subsection (7) arguably permitted petitions for benefits to be dismissed on such grounds, but the statute was amended in 2003 with the current language. See § 440.105(7), Fla. Stat. (2002); Ch. 2003-412, § 11, at 27, Laws of Fla. Because the applicable version of the statute does not require dismissal for failure to personally sign a fraud statement, the dismissal was in error to the extent it relied upon section 440.105(7).

The deputy chief judge’s dismissal also cited Florida Administrative Code Rules 60Q-6.103(l)(d) and 6.105(4) as authority for dismissing Claimant’s first petition for failure to provide an OJCC number or verified motion for substitute identification number. A review of the Rules of Procedure for Workers’ Compensation Adjudications reveals that all documents filed with the OJCC “shall” include a case number, if any; and, when commencing a new case, an employee who cannot or will not provide a social security number “shall” file a verified motion for assignment of a substitute number. Fla. Admin. Code R. 60Q-6.1G3(l)(d), 6.105(4). Claimant does not contest that his original petition did not comply with either rule 60Q-6.103(l)(d) or rule 60Q-6.105(4). Claimant argues, however, that petitions for benefits may only be dismissed for lack of specificity under section 440.192, Florida Statutes; thus, the deputy chief judge erred by dismissing his first petition. We agree.

Section 440.192(1), Florida Statutes (2006), provides that a petition for benefits must meet “the requirements of this section and the definition of specificity in section 440.02” before being filed with the OJCC. Accord Fla. Admin. Code R. 60Q-6.105(1) (providing that a claimant commences a new case by filing a petition pursuant to section 440.192). Section 440.192(1) is silent as to whether rules 60Q-6.103(l)(d) and 60Q-6.105(4) must be complied with when filing a petition for benefits. In fact, Florida Administrative Code Rule 60Q-6.107(1), entitled “Amendment and Dismissal of Petitions for Benefits,” indicates petitions will be dismissed only for failure to comply with section 440.192(2)-(4), Florida Statutes.

Section 440.192(2), Florida Statutes (2006), provides:

the [OJCC] shall review each petition and shall dismiss each petition or any portion of such a petition that does not on its face specifically identify or itemize the following:
(a) Name, address, telephone number, and social security number of the employee.
(b) Name, address, and telephone number of the employer.
(c) A detailed description of the injury and cause of the injury, including the location of the occurrence and the date or dates of the accident.
(d) A detailed description of the employee’s job, work responsibilities, and work the employee was performing when the injury occurred.
(e) The time period for which compensation and the specific classification of compensation were not timely provided.
(f) Date of maximum medical improvement, character of disability, and specific statement of all benefits or compensation that the employee is seeking.
(g) All specific travel costs to which the employee believes she or he is entitled, including dates of travel and purpose of travel, means of transportation, and mileage and including the date the request for mileage was filed with the carrier and a copy of the request filed with the carrier.
(h) Specific listing of all medical charges alleged unpaid, including the name and address of the medical provider, the amounts due, and the specific dates of treatment.
(i) The type or nature of treatment care or attendance sought and the justification for such treatment. If the employee is under the care of a physician for an injury identified under paragraph (c), a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition.
(j) Specific explanation of any other disputed issue that a judge of compensation claims will be called to rule upon.

Once again, the above-quoted section does not require a petition for benefits to include an OJCC number or a verified motion for a substitute identification number.

Therefore, we hold that the deputy chief judge erred by dismissing Claimant’s original petition for benefits for failure to include a signed fraud statement and an OJCC case number or verified motion for substitute identification number. Accordingly, we direct that the claim be reinstated. Claimant’s first petition for benefits was filed within the two-year statute of limitations period. See § 440.19(1), Fla. Stat. (2006).

REVERSED and REMANDED.

HAWKES, C.J., WOLF and WETHERELL, JJ., concur.


text:
    Peter Jerome CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-397.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.
    Rehearing Denied Dec. 23, 2009.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Peter Cunningham, appeals his convictions for second degree murder with a firearm (count I) and two counts of attempted manslaughter with a firearm (counts II and III). We affirm without discussion Cunningham’s convictions but remand for correction of the sentencing order.

Cunningham was convicted of second degree murder with a firearm pursuant to section 782.04(2), Florida Statutes (2002). He was convicted of attempted manslaughter pursuant to sections 777.04 and 782.087, Florida Statutes (2002). The trial court sentenced Cunningham to life in prison on count I with a twenty-five-year mandatory minimum pursuant to section 775.087(2), Florida Statutes (2002). On counts II and III, Cunningham was sentenced to twenty years with a twenty-year minimum mandatory on each count, both to run concurrently with count I but consecutively with each other.

After this appeal was filed, Cunningham filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). He argued that the trial court erred in imposing a minimum mandatory sentence under section 775.087(2) in counts II and III because that section provides for a minimum mandatory sentence only if the defendant is convicted of any one of the crimes listed in the statute. Neither manslaughter nor attempted manslaughter appears on the list. He also asserted that attempted manslaughter was a second degree felony punishable by no more than fifteen years in prison. See § 775.082(3)(c), Fla. Stat. (2002).

At the hearing on the motion to correct sentencing error, the state conceded that section 775.087(2) did not apply to Cunningham’s convictions for attempted manslaughter. The trial court then orally vacated the sentences on counts II and III and sentenced Cunningham to twenty years on each count to run concurrently with each other and to run consecutively to count I.

The trial court subsequently entered a written order denying Cunningham’s motion to correct sentence. The trial court did not mention its correction of the minimum mandatory sentences imposed. It did address Cunningham’s argument that the trial court erred when it imposed a consecutive sentence pursuant to section 775.087(2)(d). The trial court held: “The Court imposed the sentences for counts [II] and [III] pursuant to this provision of the statute, therefore, the Court, pursuant to statute, had to impose these sentences consecutive to the sentence imposed in Count [I] of this case.”

Cunningham argues that the trial court erred in sentencing him to twenty years each on counts II and III because the maximum sentence for attempted manslaughter with a firearm, a second degree felony, is fifteen years. See § 775.082(3)(c), Florida Statutes (2002). Section 921.0024(2), Florida Statutes (2002), provides for an exception to the fifteen-year maximum. It states in pertinent part:

(2) The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.... The total sentence points shall be calculated only as a means of determining the lowest permissible sentence. The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively.... If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed. If the total sentence points are greater than or equal to 363, the court may sentence the offender to life imprisonment.

(emphasis added.) Thus, according to section 921.0024(2), the fifteen-year maximum under section 775.082 is inapplicable and, at the motion hearing, the trial court properly resentenced Cunningham to twenty years in prison on counts I and II without a minimum mandatory.

Cunningham further argues that the trial court erred when it altered the sentence in count I to run consecutively to counts II and III based upon its belief that section 775.087(2)(d) so required. In its oral sentence at the motion hearing, in addition to finding section 775.087(2) inapplicable to counts II and III, the trial court ordered that the concurrent sentences in counts II and III were to run consecutively to count I. When correcting a sentence, the trial court is free to run the corrected sentence concurrently or consecutively to any of the other counts in a single prosecution. James v. State, 868 So.2d 1242, 1246 (Fla. 4th DCA 2004). However, the trial court’s written order states that it “imposed the sentences for counts [II] and [III] pursuant to [section 775.087(2)(d)].” As a result of this contradiction between the oral and the written sentence, we remand for correction of the sentencing order consistent with this opinion.

Affirmed; Remanded for correction of sentencing order.

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.

      . It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.


text:
    Steven D. HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5776.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2009.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Simmons v. State, 790 So.2d 1177, 1180 (Fla. 3d DCA 2001); Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007); Zeigler v. State, No. 2D07-5300, 2009 WL 3232684, at *6 (Fla. 2d DCA Oct. 9, 2009). But see Montgomery v. State, — So.3d — (Fla. 1st DCA), review granted, 11 So.3d 943 (Fla.2009).

SILBERMAN, KELLY, and WALLACE, JJ., Concur.


text:
    Roy Chester TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3270.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2009.
    Roy Chester Taylor, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Roy Chester Taylor is hereby afforded a belated appeal from judgment and sentence in case number 16-2007-CF-016504 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

The trial court is directed to appoint counsel to represent Taylor in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

BARFIELD, DAVIS, and ROBERTS, JJ., concur.


text:
    R.J.L, a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3846.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.
    M. Diane Checchio, Winter Springs, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and, Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

R.J.L., a juvenile, petitioned this court for habeas corpus relief. Petitioner asserted, and the State agreed, that the petitioner was entitled to release from secure detention. In light of the parties’ factual assertions, this court agreed and granted the writ by earlier order, with this opinion to follow.

Although no transcript of the proceeding below was provided, it was unrefuted that the juvenile petitioner was first placed in “home detention” in case nos. CJ001722A and CJ001443A, on Oct. 10, 2009. Subsequently, Petitioner was charged with a new law violation in case no. CJ001905A for disorderly conduct, and a detention hearing was held in all three cases on Oct. 22nd. That hearing resulted in secure detention being ordered by the trial court, without any explanation for such detention. The child scored “zero” on the detention risk assessment instrument prepared by the Department of Juvenile Justice. Florida Statute Section 985.255(3)(b) states, “[i]f the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state, in writing, clear and convincing reasons for such placement.” No such findings were made in this case, in violation of the statute.

Accordingly, the writ of habeas corpus is granted, with the Petitioner ordered to be immediately released from secure detention and returned to “home detention.” The trial court shall be permitted an opportunity to revisit the issue of detention if there is a basis for doing so. See T.D.S. v. State, 922 So.2d 346, 347 (Fla. 5th DCA 2006).

PETITION GRANTED.

J. GRIFFIN, LAWSON and JACOBUS, JJ. concur.