author: BENTON, J. HAWKES, C.J.,

text:
    AFSCME FLORIDA COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS and Department of Management Services, Appellees.
    No. 1D08-1621.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.

      Tobe M. Lev of Egan, Lev & Siwica, P.A., Orlando, for Appellant.
    Alan R. Dakan, Assistant General Counsel and Mark Henderson, Assistant General Counsel, Tallahassee, for Appellee Department of Corrections, and Sonja P. Mathews, Assistant General Counsel, Tallahassee, for Appellee Department of Management Services.
   BENTON, J.

Appealing on behalf of John Parrish— formerly an employee of the Florida Department of Corrections (DOC)— AFSCME Florida Council 79 (AFSCME), a public employee union, seeks review of a circuit court judgment vacating and declining to enforce an arbitration award (itself a clarification of the arbitrator’s original award) that brought to an end arbitration to which the parties resorted after they failed to agree on how to resolve Mr. Parrish’s grievance. We reverse and remand with directions to confirm and enforce the arbitration award.

John Parrish began working for DOC in 1989. After various maladies led to extended medical leave, he applied for disability retirement. While this application was pending, he received a letter from DOC dismissing him from employment effective May 24, 2001, for inability to perform his job duties. With union assistance, he filed a grievance under the Master Agreement.

The grievance filed on Mr. Parrish’s behalf asserted that his discharge was “not for just cause,” and requested that he be “returned to work; given back pay; further, the grievant’s dismissal letter with all related documents be sealed and stamped ‘not valid.’ (Make whole).” While the grievance was pending, on July 13, 2001, his disability retirement application was approved; he was added to the roll of disabled state retirees in October of 2001, and monthly disability retirement benefits were paid retroactively to June 1, 2001. His retirement did not resolve all issues, however, and the parties ended up in arbitration after other approaches to resolving the grievance proved unavailing.

The arbitrator eventually ruled that DOC had lacked “just cause” to discharge Mr. Parrish because it had failed to comply with certain personnel rules. Noting that, on account of his disability retirement (effective retroactively to June 1, 2001), all that AFSCME had requested was “Parrish’s reinstatement from his May 24, 2001, termination date up to June 1, 2001, with ‘full make whole relief, including health insurance,’ ” the arbitration award ordered:

a) retroactively reinstate Parrish from his May 24, 2001, discharge date; and,
b) amend, change or reform its records pertaining to Parrish to reflect,
i) the setting aside of his discharge,
ii) his May 24, 2001 reinstatement, and
iii) that on and effective June 1, 2001, Parrish retired as an active employee (as opposed to a discharged employee) under the regular disability provisions of the Florida Retirement System Pension Plan, Chapter 121, Florida Statutes.
3. Agency shall further and retroactively make Parrish whole by promptly recomputing, crediting and/or paying to him any applicable back pay and health, life and group insurance benefits contractually and/or lawfully due and owing him [if] (as is the case) he disability retired on June 1, 2001, and had not been discharged on May 24, 2001.

The arbitrator’s original award reserved jurisdiction “only to resolve any back pay or benefit payment/computation dispute(s) which may arise.”

Asserting that this arbitration award was intended to enable Mr. Parrish to enroll in a state health insurance program, but that the state had taken the position that he was not eligible, AFSCME filed a complaint in circuit court on September 16, 2005, asking the circuit court to confirm and enforce the original arbitration award. As requested in AFSCME’s motion, the circuit court remanded to the arbitrator for “clarification of the Defendant’s obligations under the award with respect to Mr. Parrish’s health insurance.”

On remand, in the “clarification award” (which was vacated by the judgment now under review), the arbitrator set out the following:

The record is undisputed that as a retired State employee, Parrish was entitled to uninterrupted State health insurance coverage ... commencing on or about the effective date of his State approved disability retirement date with his portion of the monthly premiums deducted from his monthly disability benefit checks. The record also shows that an error by Corrections caused Parrish’s State health insurance coverage to lapse or terminate on July 1, 2001, and not until on or about February 14, 2002 (i.e., more than eight months after his June 1, 2001 disability retirement date), was Parrish again offered State health insurance coverage retroactive to July 1, 2001. Said coverage, however, was contingent upon his payment to the State of all retroactive premiums from July 1, 2001, which then totaled $2,148.62.
According to Parrish’s arbitration testimony, starting in or about July 2001, he made numerous calls to the State requesting that his health insurance coverage be restored. However, by mid-February 2002, and while he still desired coverage, he had no ability to pay for the retroactive premiums....
Being that the CBA [collective bargaining agreement] is between AFSCME and the State of Florida, the “Agency” as referenced in the Arbitration award is the State of Florida acting by and through its many agencies, departments and divisions including but not limited to its Department of Corrections, Department of Management Services and Division of State Group Insurance. The award, accordingly, requires the State of Florida (by and through its agencies, departments and divisions ...) to retroactively make Parrish whole....
In light of the above, ... the Defendant’s “obligations under the award with regard to Parrish’s health insurance” are as follows:
A. To Forthwith Offer Parrish Non Retroactive Health Insurance Coverage .... And should Parrish accept coverage under this Paragraph A, (1) the cost of all monthly premiums shall be deducted from Parrish’s monthly disability retirement check; (2) coverage shall not be denied, withheld, limited or otherwise reduced by the State for any preexisting medical conditions; and (3) coverage shall not be retroactive to any time period prior to its effective date. [Mr. Parrish has indicated he wants this option.]
B. To Forthwith Offer Parrish Health Insurance Coverage Retroactive to After July 1, 2001.... And should Parrish elect to receive retroactive coverage under this Paragraph B, ... Parrish’s payment to the State of all monthly retroactive premiums shall be made by reasonable deductions (not to exceed $50.00 per month, unless a greater amount is agreed to by Parrish), from each of his monthly disability retirement checks until all of said retroactive premiums are paid.

(Footnote omitted.) The parties then returned to circuit court, with DOC and DMS filing a motion to vacate, and AFSCME filing a motion to enforce, the new award.

The circuit court granted the motion to vacate the award and denied the motion to enforce the award, ruling:

4. The Clarification ... goes far beyond what Plaintiff requested when he filed his grievance and what was originally awarded.
5. In this case it is clear that the Clarification of the Arbitrator speaks to agencies that were never made a part of the arbitration.
6.Parrish never sought to address the issue of the State of Florida Insurance Health Care Plans through the administrative remedies available to him under Section 120.565, Florida Statutes.
7. The Clarification ... is contrary and inconsistent with the powers, duties and responsibilities of the State under applicable law or rules.

The trial court subsequently entered final judgment in favor of DOC and DMS and against AFSCME and Parrish, the judgment now before us.

AFSCME asks us to reverse, arguing that an “arbitration award can be vacated only upon the grounds stated in Section 682.13,” Harris v. Haught, 435 So.2d 926, 928 (Fla. 1st DCA 1983), and “cannot be set aside for mere errors of judgment either as to the law or as to the facts.” Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989) (quoting Cassara v. Wofford, 55 So.2d 102, 105 (Fla.1951)). AFSCME concedes that subsections 682.13(1)(c) and (d), Florida Statutes (2007), provide that the court shall vacate an award when the “arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers” or “otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.” But in Florida, they point out, “the standard of judicial review applicable to challenges of an arbitration award is very limited, with a high degree of conclusiveness attaching to an arbitration award.” Applewhite v. Sheen Fin. Res., Inc., 608 So.2d 80, 83 (Fla. 4th DCA 1992).

Specifically, AFSCME contends that the circuit court erred in concluding that the final arbitration award exceeded the scope of the grievance (and the scope of the initial award) and in concluding that the award contravened “powers, duties and responsibilities of the State under applicable law or rules”; in concluding that DMS suffered some procedural unfairness; and in concluding that AFSCME or Mr. Parrish had a duty to exhaust administrative remedies before pursuing the grievance. Examining each of these grounds (in reverse order), we agree that all are erroneous and that the circuit court’s judgment vacating and refusing to enforce the arbitration award must be reversed for that reason.

The Master Agreement contains no “exhaustion of administrative remedies” requirement. The Master Agreement created the grievance procedure, culminating in arbitration when necessary, as an alternative to judicial or administrative proceedings, at the grievant’s option. The Master Agreement obligated the state to comply with the State Employees Group Health Insurance Plan, and afforded the arbitrator authority to award relief to remedy “unjust” terminations. DOC’s failure — as found by the arbitrator — to provide Mr. Parrish notice and a pretermination conference, to notify him properly of his rights to continued health insurance, and to accept his (employee) contributions towards health insurance premiums were grievable actions. The Master Agreement defines “grievance” to mean “a dispute involving the interpretation or application of the specific provisions of this contract, except as exclusions are noted in this Contract.”

The grievance procedure is available in lieu of, not simultaneously with — or only after resort to — judicial or administrative procedures under section 120.569, Florida Statutes (2001). Although DMS indicated in a letter dated February 14, 2002 (addressed to the DOC Orlando Service Center) that Mr. Parrish would be permitted to re-enroll in the state health insurance program if he paid premiums from July 2001 through March 2002, this letter does not reflect that he was informed of any right to an administrative hearing or judicial review to contest the back premium payment condition available under sections 120.569, 120.57, or 120.68, Florida Statutes (2001), much less that he instituted any such proceedings. The Master Agreement provides, under the heading “Election of Remedy,” that the agreement may not be construed to permit the union or an employee to process a grievance when the subject of such grievance is at the same time the subject of an administrative action, or an appeal before a governmental board or agency, or court proceeding. But no such action, appeal or proceeding took place in the present case at any time.

The circuit court assigned as another reason for vacating the arbitration award the fact that the award “speaks to agencies that were never made a part of the arbitration,” meaning DMS and/or DMS’s Division of State Group Insurance (DSGI). On appeal, DMS argues similarly that the final arbitration award should not be confirmed because DMS/DSGI was not provided notice or an opportunity to participate in the arbitration proceedings, in purported violation of section 682.06(l)(a) Florida Statutes (2007), which requires service of “notification to the parties.” We reject these arguments.

DMS cites no statutory or rule authority mandating that an employee bring DMS/ DSGI into an employment grievance proceeding as an additional party. The Master Agreement and pertinent rules contemplate that an employee will deal primarily with the employing agency, including with regard to matters of insurance for retired and dismissed employees. See Fla. Admin. Code R. 60P-2.011, 60P-2.013. The arbitrator had to decide whether DOC wrongfully terminated Mr. Parrish and, if so, what remedy was appropriate. The arbitrator had full authority to determine an appropriate remedy when an employee was terminated in violation of the agreement.

Nothing in the Master Agreement or the rules regulating DMS or DSGI requires that DMS be included as a party before an arbitrator may award benefits either retrospectively or prospectively. (As the arbitrator noted, moreover, AFSCME raised the termination of Mr. Parrish’s health insurance at the Step 3 grievance appeal hearing conducted by DMS on July 1, 2001.) The parties do not dispute that all pertinent grievance procedures were followed, including arbitration procedures, or that an arbitrator has authority to award back pay with benefits, including health insurance, when an employee is entitled to such benefits.

The circuit court also erred in vacating the final arbitration award based on its belief that it exceeded the scope of the grievance and the initial award. The learned trial judge failed to give appropriate deference to the arbitrator’s findings. The initial award had ordered “full make whole relief, including health insurance,” and reserved jurisdiction if details could not be worked out. The arbitrator found that the initial award “addressed AFSCME’s request that the [arbitrator] remedy what it deemed as the State’s continuing failure to provide Parrish health insurance and other benefits due all State employees who[] disability retire.” This finding was entitled to deference.

The arbitration award violates no state law or rule. The arbitrator found that DOC’s error caused Mr. Parrish’s state health insurance coverage to lapse or terminate on July 1, 2001. State group health insurance Mr. Parrish had while employed apparently remained in effect until June 30, 2001. The arbitrator was entitled to conclude that, even though Mr. Parrish had tendered a check for the next premium due, DOC refused payment by mistake, canceled his coverage, and never advised him how coverage could be reinstated. No rule covered Mr. Parrish’s precise circumstances where he prevailed in the sense that reinstatement was ordered but, because by then he was already on disability retirement, he never actually resumed employment.

DMS invokes Rule 60P-2.011, Florida Administrative Code, which provides that an employee who applies for disability retirement and who has not been approved or rejected prior to his last day of employment, but was covered under the state health insurance program as of the last day of employment, has the option of continuing coverage pending approval or rejection of disability retirement by paying the full monthly premium or allowing coverage to terminate on the last day for which contributions have been paid, and applying for reenrollment in the health program by completing an application and paying all back premiums after disability retirement is approved. In the present case, however, the arbitrator had a basis for finding that Mr. Parrish sought to obtain continuing coverage when he tendered a check to DOC for the July premium, that DOC rejected the payment despite the rule, and that Mr. Parrish’s coverage terminated on June 30, 2001, as a result. The record also supports finding that Mr. Parrish was not advised of his health insurance options even when he was approved for disability retirement on July 13, 2001. On fact finding and legal conclusions alike, the arbitration award is owed great deference.

In Noriega, 542 So.2d at 1328, the court said:

[I]t is well settled that “the award of arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts; if the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment.” Cassava v. Wofford, 55 So.2d 102, 105 (Fla.1951). See also District School Bd. v. Timoney, 524 So.2d 1129 (Fla. 5th DCA 1988); Prudential-Bache Securities, Inc. v. Shuman, 483 So.2d 888 (Fla. 3d DCA 1986); McDonald v. Hardee County School Bd., 448 So.2d 593 (Fla. 2d DCA), review denied, 456 So.2d 1181 (Fla.1984); Newport Motel, Inc. v. Cobin Restaurant, Inc., 281 So.2d 234 (Fla. 3d DCA 1973).

Similarly, the award in the present case was well within the submission to the arbitrator, violated no law or rule, and should be given effect.

Accordingly, we reverse and remand with directions that the circuit court confirm and enforce the arbitrator’s award.

HANKINSON, JAMES C., Associate Judge, concurs; HAWKES, C.J., dissents with opinion.

HAWKES, C.J.,

Dissenting.

I respectfully dissent. I believe the trial court correctly concluded the 2007 “clarification” was invalid. In awarding the Petitioner the right to have his long expired health insurance reinstated, without requiring him to pay past premiums, the arbitrator exceeded his authority and entered an order beyond the scope of the arbitration. See § 682.13(l)(c) Fla. Stat. (2008)

The following facts are relevant: on May 5, 2001, the Petitioner was fired; on July 1, his health insurance coverage was terminated; and on July 13, he was officially classified as “disability retired.” Pursuant to Florida Administrative Code Rule 60P-2.011, Petitioner was entitled to reinstatement of his health insurance coverage upon obtaining “disability retired” status on July 13. However, in order to have his coverage reinstated, he was required to submit a reinstatement application to his former provider within 31 days after approval of the “disability retirement.”

Rule 60P-2.011 provides:

(b) The employee may elect not to continue coverage in the Health Program pending the determination of disability retirement and thereby allow such coverage to terminate on the last day for which contributions have been paid. If coverage is allowed to terminate and:
1. The disability retirement is subsequently approved, the employee may apply for reenrollment in the Health Program subject to the following requirements:
a. The employee shall complete an application in accordance with paragraph 60P-2.011(l)(a), F.A.C., indicating the disability retirement status and submit to the former agency personnel office who must forward such application to the Department no later than SI calendar days after the date of approval of the disability retirement;
b. The retiree shall pay all back premiums from the date of termination of coverage within 31 calendar days after the date of approval of the disability retirement since coverage must be continuous.

Fla. Admin. Code R. 60P-2.011. (emphasis added).

Petitioner did not apply for reinstatement of his health insurance within 31 days of receiving “disability retired status.” Because there may have been some confusion due to the particular facts of this case, DMS sent a letter to Petitioner, dated February 14, 2002, offering him the opportunity to be reinstated upon payment of applicable back premiums (as required by rule 60P-2.011). The back payments at that time totaled $2,148.62. Petitioner did not act on the invitation and made no effort to have his health insurance coverage reinstated.

Two years and nine months after DMS’ offer of reinstatement, the original arbitration award was issued. During the arbitration, the arbitrator was charged with determining how Petitioner being fired on May 5, 2001, impacted his disability retirement. The arbitrator ultimately decided to “retroactively make [Petitioner] whole by ... paying to him any applicable ... health, life and group insurance benefits ... due and owing him if he disability retired on June 1, 2001.” Of course, rule 60P-2.011 would still require the Petitioner to repay back premiums.

Nearly 6 years after the Petitioner obtained disability retired status, the arbitrator entered a clarification. In the clarification the arbitrator provided the Petitioner two insurance related options: (1) pay all back premiums and receive retroactive coverage; or (2) re-join prospectively (excusing his lack of participation in the insurance program for six years). Such an award was not part of the original grievance, nor is it a determination pertinent to the resolution of the original issue.

The stated goal of the arbitration was to make Petitioner whole for being improperly fired while his disability retirement approval was pending. Had Petitioner not been fired on May 5, he would have continued to pay his insurance premiums in exchange for coverage until the day his disability retirement took effect. Upon retirement, he would have had the option to continue coverage by having his monthly premium deducted from his disability retirement pension check.

Obviously, Petitioner was fired on May 5 and DMS terminated his health insurance coverage. However, upon learning of the Petitioner’s subsequent disability retirement, DMS offered him the opportunity to retroactively enroll in its insurance program by paying the back premiums. Had Petitioner never been fired and wished to continue his coverage, he would have had to pay these premiums when they were due. Thus, it was entirely reasonable for DMS to conclude that if Petitioner were to be awarded full back pay, he should be required to pay the premiums that would otherwise have been deducted from it.

As noted, the arbitrator determined Petitioner could opt to resume coverage without being subject to back premiums. Basically, the arbitrator “made Petitioner whole” by awarding him not only a free pass on the $2,148.62 that he owed in back premiums as of February 14, but also a free pass on several years of additional back premiums totaling roughly $16,700.00. This was far more than making Petitioner whole and is in direct conflict with rule 60P-2.011.

Petitioner was eligible to apply for reinstatement of his health insurance immediately after being classified as disability retired. He simply neglected to do so (even after the February 14, notice). As a result, his ability to restore coverage lapsed. There is no statutory authority entitling Petitioner to reinstatement -without cost, simply because he has come to regret his voluntary decision to decline to participate in the retirement health insurance program. Accordingly, I believe our obligation under the law is to affirm.

      .The Master Agreement, a collective bargaining agreement which binds AFSCME and the State of Florida alike, calls for the signatures of the Secretary of the Department of Management Services (DMS), as well as the Governor. Article 27 of the Master Agreement provides that the State must administer its Group Health Insurance Plan in accordance with statutory provisions affecting the plan or its operations. Article 7 provides that termination of an employee must be for "just cause.” Article 6, Section 3 confers upon a duly selected arbitrator authority to remedy violations of the Master Agreement, and provides that an arbitration award "shall be final and binding on the State.”

      . AFSCME contends Parrish is entitled to the group insurance benefits stated in Section 112.0801, Florida Statutes. The Agency's position on same is not known since the issue is not addressed in its brief.

      . Among other things, the Master Agreement provides that "Step 3” of the grievance process is an appeal to the Chief Negotiator of the Department of Management Services.

      . The complaint named "State of Florida (Department of Corrections) Department of Management Services” as defendant. The 2004 arbitration award named the "State of Florida, Department of Corrections, Marion Correctional Institution” as the agency/employer.

      . The complaint was initially filed in Orange County Circuit Court. After the parties stipulated to a change in venue, AFSCME re-filed the complaint in Leon County Circuit Court on May 15, 2006.

      . DOC filed a petition for writ of certiorari, asserting the circuit court did not have jurisdiction to remand the original award to the arbitrator. Another panel of this court denied the petition on March 27, 2007. Dep’t of Corr. v. AFSCME Fla. Council 79, 952 So.2d 1194 (Fla. 1st DCA 2007) (Table). We have not been asked to review the circuit court’s jurisdiction at that juncture and express no view on the question. The circuit court's jurisdiction to confirm and enforce the award now under consideration is clear.

      . We note that DMS was involved in negotiating the Master Agreement with AFSCME. The Master Agreement could have included a requirement that the employing agency involve DMS/DSGI in arbitration, but does not contain such a requirement.

      . There is no indication in the record on appeal that either DOC or DMS notified Mr. Parrish of his eligibility to re-enroll after the arbitrator's initial award. Rule 60P-2.013, Florida Administrative Code, provides that if an employee is dismissed, the employee may apply to DMS for continuation coverage within 60 calendar days after notification of eligibility by DMS or purchase a conversion plan offered by the servicing agent within 31 days. There is no indication in the record that Mr. Parrish was so notified.
      This rule also provides that if a dismissed employee successfully appeals the dismissal and is reinstated, the employee has several options including applying for reenrollment by completing and submitting an application to the agency personnel office within 31 calendar days after returning to work or during the open enrollment period (with no requirement of paying back premiums). In the present case, however, Mr. Parrish did not actually return to work.

      . To continue coverage, an application and a personal check or money order must be received by the employee’s former agency personnel office and timely forwarded to DMS.


source: Caselaw Access Project

author: KAHN, J.

license: Public Domain

text:
    COASTAL COMMUNITY BANK, Appellant, v. James D. JONES, Sutej Gill, and Deborah Gill, Appellees.
    No. 1D08-3649.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Rehearing Denied Dec. 22, 2009.

      Frank Alfred Baker, Marianna, for Appellant.
    Appellees James D. Jones, Sutej Gill, and Deborah Gill, pro se.
   KAHN, J.

Appellant Coastal Community Bank, the foreclosing mortgagee below, seeks review of a trial court ruling declining to enforce a contractual provision entitling appellant to attorney’s fees totaling ten percent of the principal sum due on a promissory note secured by the mortgage. For the reasons set out below, we affirm.

In the final judgment of foreclosure, entered after a default, the trial court rejected appellant’s claim for a ten percent attorney’s fee, “as unconscionable.” The final judgment observed that “plaintiff has offered no substantial competent evidence to prove its entitlement to the 10% attorney fee claimed, other than reliance on the terms of the notes.” Under the terms of the note and renewal note, “reasonable attorneys’ fees shall be construed to mean 10% of the principal sum named in this note....” On denial of appellant’s motion for rehearing on the fee matter, the trial court again observed that appellant had offered no evidence of the amount of attorney’s fees incurred, and concluded “that equity cannot tolerate a result of a requirement that a Defendant in a mortgage foreclosure be required to pay more for attorney’s fees than the mortgagee actually paid their attorney.”

On appeal, Coastal argues that section 687.06, Florida Statutes (2008), raises a presumption of reasonableness for an attorney’s fee amounting to ten percent or less of the remaining mortgage principal. Coastal argues that the trial court lacked discretion to reject the contractual provision.

We begin with an examination of the statute here at issue. Pursuant to section 687.06, “it shall not be necessary for the court to adjudge an attorney’s fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed 10 percent of the principal sum named in said note, or other instrument in writing.” Accordingly, assuming the contract contains the type of fee provision we deal with here, a court need not consider the reasonableness of the fee charged by the mortgagee. Such does not, however, prohibit a trial court from inquiring as to evidence showing an entitlement to the fee sought.

Notably, the statute removes, in certain cases, the step under which a court would adjudge whether a fee is “reasonable or just.” The statute does not, though, remove the need to determine a fee in the first instance. Under Florida law, a “contract to pay attorney’s fees is a contract for indemnity.” Sarasota Publ’g Co. v. E.C. Palmer, 102 Fla. 303, 135 So. 521, 521 (1931). Such provisions are meant to indemnify a party, such as the holder of a note and mortgage, for money spent to protect its interest. See Brett v. First Nat’l Bank of Marianna, 97 Fla. 284, 120 So. 554 (1929). Such a provision is not designed to allow the “mortgagee [to] recover from the mortgagor for solicitor’s fees a sum in excess of the amount which the former has paid ... to his solicitor.” Id. Accordingly, although section 687.06 limits a trial court’s discretion to review the reasonableness of certain attorney’s fees sought by the mortgagee, it does not prevent the court from inquiring after evidence that the fees allowed by the contract do not exceed those actually incurred by the beneficiary of the contractual provision or, at the least, do not exceed that amount in such magnitude as to render an automatic award inequitable.

We have not overlooked that a default was entered here against appellee, the mortgagor. Under Florida law, “un-conscionability is an affirmative defense which must be raised by proper pleading.” Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1194 (Fla. 4th DCA 2000). Therefore, and to the extent that the trial court viewed the fee as facially unconscionable, we cannot agree. Nevertheless, the obligation of the mortgagee to pay attorney’s fees has been characterized as not proven simply by reference to the fee provision in a promissory note. See Sarasota Publ’g Co., 135 So. at 521. The defendant, here the mortgagor, does not “have the burden of proving that the complainant has not paid, or obligated itself to pay [attorney’s] fees.... ” Brett, 120 So. at 555. Once the note holder has presented evidence of its obligation to pay fees, the court should refrain from inquiry “into the fee’s fairness or reasonableness absent some plea for equitable consideration, e.g., unconscionability, ...” Dean v. Coyne, 455 So.2d 576, 576 (Fla. 4th DCA 1984). In the present case, however, the bank declined an opportunity to provide any evidence concerning its obligation to pay fees to its lawyers. Under these circumstances, we do not reach the question whether the fee sought was reasonable or excessive, because no amount at all was demonstrated. See Brett, 120 So. at 554.

To summarize, we do not approve denial of the fee because the fee was unreasonable or unjust. Instead, we affirm because appellant declined to demonstrate at all the fee due from it to its lawyers.

AFFIRMED.

WOLF, and VAN NORTWICK, JJ„ concur.


author: HAWKES, C.J.

text:
    CHEMROCK CORPORATION, Appellant, v. TAMPA ELECTRIC COMPANY, a Florida Corporation, d/b/a Teco Peoples Gas Company, Appellee.
    No. 1D08-4895.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.

      Jamie P. Yadgaroff, Bala Cynwyd, and Norwood S. Wilner of Wilner Block, Jacksonville, for Appellant.
    Pedro F. Bajo, Jr., of Akerman Senter-fitt, Tampa, and Sarah G. Maroon of Aker-man Senterfitt, Jacksonville, for Appellee.
   HAWKES, C.J.

Chemrock appeals the dismissal of its lawsuit due to a lack of prosecution. Tampa Electric filed and served a notice of lack of prosecution on Chemrock under Florida Rule of Civil Procedure 1.420(e) (2008) following ten months of record inactivity. Chemrock responded within the sixty-day grace period created by the amended Rule by filing what it labeled a “motion in opposition.” In the filing, Chemrock admitted there had been a ten-month period of inactivity, but attributed the delay to Tampa Electric. Sixteen months after Chem-rock’s filing, Tampa Electric moved to dismiss the action due to a lack of prosecution. At the pre-dismissal hearing, the trial court granted Tampa Electric’s motion.

The question presented is whether any filing served during the 60-day grace period is sufficient to avoid dismissal under the amended version of Rule 1.420(e). We find the grace period requires more than just a filing, and affirm. To support our conclusion, we will describe the Rule’s history; discuss how this interpretation is the only one consistent with the purpose for creating the grace period; and explain how this interpretation is necessary to give effect to each provision of the amended Rule.

History of Rule 1.420(e)

Prior to January 1, 2006, Rule 1.420(e) allowed a case to be dismissed for lack of prosecution when there was no “record activity” during the preceding twelve months. Under this version of the Rule, the Supreme Court established a bright-line test for “record activity,” defining it as any document filed in the record. See Wilson v. Salamon, 928 So.2d 863, 368 (Fla.2005). In so doing, Wilson receded from precedent that attempted to differentiate between active “record activity” — activity designed to hasten the case to a conclusion on the merits — and passive “record activity” — activity which had no effect on the case’s progress. Id. at 369; see also Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006). Therefore, at the time of Wilson, the only relevant consideration before a case could be dismissed under the Rule was the passage of time.

Shortly after Wilson, the Supreme Court amended Rule 1.420(e) to its current version, incorporating two significant changes. First, it shortened the period of time that must elapse before the moving party can take action from twelve months to ten months. Second, it created a sixty-day grace period during which the non-moving party had various options to avoid dismissal. These changes widened the scope of the Rule, permitting a trial court to consider more than just the passage of time before dismissing a case for lack of prosecution.

The prior version of Rule 1.420(e) gave the nonmoving party no option to avoid dismissal if good cause for the lack of prosecution could not be shown. The non-moving party had to either satisfy the Wilson test by making a filing, either active or passive, at least once during each twelve-month period, or receive a dismissal. Under the current version of the Rule, the Wilson test still applies, but the relevant time period has been shortened from twelve months to ten. However, the non-moving party is given a grace period to recommence prosecution.

This appeal focuses only on the grace period. Under the amended version of the Rule, the nonmoving party may avert dismissal during the grace period in one of three ways: (1) move for and obtain a stay; (2) show “good cause” as to why the action should remain pending; or (3) recommence prosecution by taking action to move the case toward conclusion. Although the nonmoving party could have shown good cause under the prior version of the Rule, the amended version creates the right of the nonmoving party to move for a stay during the grace period and, in the Committee notes, for the first time allows an opportunity to recommence prosecution.

The Second and Third Districts have extended Wilson’s broad definition to any grace period filings. See Pagan v. Facilicorp, Inc., 989 So.2d 21, 23 (Fla. 2d DCA 2008); Padron v. Alonso, 970 So.2d 399, 401 (Fla. 3d DCA 2007); Edwards, 961 So.2d 1048, 1049-50 (Fla. 2d DCA 2007). According to this interpretation, which Chemrock urges us to adopt, any filing during the sixty-day period, regardless of merit, ipso facto averts dismissal. This interpretation renders any role the trial court may play, any equitable arguments the moving party may be able to raise, and the facts of the case irrelevant. It is contrary to the Committee’s intent and divests the Rule of all meaning.

Committee’s Intent

The Committee notes to the amended version of Rule 1.420(e) explain that the subdivision was amended “to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420(e), committee notes (2005 amend.) (emphasis added). The Committee’s clear intent that a sixty-day period be provided to “re-commence prosecution” is frustrated by allowing a party to file any document during this period, however meaningless and inconsequential to the case’s progression, to avoid dismissal.

Indeed, if the interpretation urged by Chemrock prevails, the only way a case would ever be dismissed under the Rule is by consent of the parties or because an extremely negligent attorney fails to take the simplest of steps. Since the parties already have the ability to dismiss by consent, this interpretation renders the Rule void of any impact on litigation and severely limits a trial court’s ability to control its docket.

Language of the Rule

The language of the amended Rule also defeats Chemrock’s argument. The Rule gives two examples of filings which may be made during the sixty-day period. Neither will automatically avoid dismissal.

First, the Rule precludes dismissal if a stay is “issued or approved” during the sixty-day period. A stay can be “approved” only if it is requested by one of the parties. A request can only be made by some kind of filing. Although there may be many reasons to request a stay, the language of the Rule contemplates that the request would be made; that it must be made during the sixty-day period; and it might or might not be “approved.” The Rule specifically requires that the stay be “issued or approved prior to the expiration of such 60-day period.” In fact, the Rule requires the trial court to dismiss the action if the motion for the stay is not approved prior to the expiration of the 60 days. The mere filing of a motion for a stay is not enough to avoid dismissal. This language in the Rule is rendered unnecessary by the simplistic interpretation urged by Chemrock. According to Chemrock, merely asking for the stay would be sufficient to avoid dismissal; the trial court’s approval, or indeed, even its denial, would be irrelevant.

Second, upon receipt of a notice of lack of prosecution, the Rule allows the non-moving party to submit a filing showing “good cause” as to “why the action should remain pending.” The Rule requires this filing be made in writing at least five days before the hearing on the motion for dismissal. Since the hearing may be held at any time after the sixty-day period has expired, the “notice of good cause” may, by necessity, be filed during the sixty-day period. Under the previous version of the Rule, “good cause” could be argued, but there was no grace period. Had the Supreme Court meant the amendment to merely insert a notice requirement, it would have been unnecessary, and indeed even foolish, to specifically identify a “good cause” filing. In fact, such a result could have been accomplished with significantly fewer words and much greater clarity. The requirement to show “good cause” is not necessary if any filing is sufficient. There is no reason to require an already over-burdened trial court to evaluate facts and circumstances that may frequently require evidentiary hearings if any filing will suffice.

Conclusion

In their filing during the grace period, Chemrock did not indicate it was attempting to re-commence prosecution. Nor did it request a stay. The filing simply acknowledged that Tampa Electric was correct in claiming the record had been inactive for ten months, but argued Chemrock was not at fault. Should Chemrock prevail, it will be able to continue the litigation perpetually by filing similar acknowledgments (“Yes — we still have not done anything”) whenever a notice of lack of prosecution is filed.

If the current version of Rule 1.420(e) is to have any role in civil litigation, Chem-rock’s filing during the grace period cannot be found sufficient to avoid dismissal. Accordingly, the trial court properly dismissed the ease for lack of prosecution. We find the Wilson definition of “record activity” applicable to the ten months before the notice of lack of prosecution may be filed, but inapplicable to the sixty-day grace period following service of the notice. To the extent that Pagan, Padrón, and Edwards hold differently, we certify conflict.

AFFIRMED.

CLARK and WETHERELL, JJ„ concur.

      . A motion, by definition, asks a court to take some action. Chemrock's "motion in opposition” is really more of a notice, an objection, or perhaps a memorandum of law. It would be difficult to find it is a "motion,” despite its label.

      . This filing could have been used by Chem-rock to show "good cause” for the lack of prosecution. Thus, Chemrock could have avoided dismissal under the amended Rule had the trial court been convinced.

      . Obviously, the only requirement under the Rule for filing the notice of "good cause" is that it be submitted at least five days before the pre-dismissal hearing. The hearing may occur any time after the grace period ends.

      . Importantly, this discussion does not involve whether Wilson continues to apply to the period of record inactivity which must transpire prior to initiating dismissal proceedings. The language of the current version of Rule 1.420(e) certainly implies that Wilson still applies to this ten-month period, (stating a notice of lack of prosecution may be served "[i]n all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months”). The only change in language in this section of the Rule was shortening the twelve-month period to ten months.

      . Chemrock's position also renders a hearing pointless. Why should the trial courL hold a hearing regarding a motion to dismiss for lack of prosecution if the outcome is readily apparent due to the fact that a "good cause” filing has been made?

      . Again, the Rule would allow this argument to be used in an effort to show good cause at the pre-dismissal hearing. But, of course, if Chemrock's position is accepted on appeal, the pre-dismissal hearing is unnecessary except perhaps for those negligent attorneys who fail to file any paper during the sixty-day period.

      . According to this interpretation, such, filings as a notice of unavailability submitted when counsel is going on vacation, a change of address, or even an acknowledgment of receipt of the notice of lack of prosecution would be sufficient to avoid dismissal.


author: PER CURIAM.

text:
    Willie James MUSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-657.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.

      Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Willie James Muse appeals the trial court’s denial of his presentencing motion to withdraw plea. He contends the trial court did not conduct a proper plea colloquy and did not formally accept his plea, as required by Florida Rule of Criminal Procedure 3.172(g). We review a trial court’s denial of a motion to withdraw plea for abuse of discretion. Davis v. State, 783 So.2d 288, 289 (Fla. 5th DCA 2001). We reverse.

The State charged appellant by information with aggravated battery with a deadly weapon (count I), aggravated assault by threat with a deadly weapon (count II), and false imprisonment (count III), the charges arising out of an incident with appellant’s ex-wife. Appellant pled straight up to counts I and II in the Circuit Court for Escambia County and signed a written plea agreement. The State agreed to nolle prosequi count III. The trial court explained to appellant the nature of a straight up plea and questioned him as to whether he signed and understood the plea agreement, reviewed it with his attorney, and gave his acquiescence voluntarily. Finally, the trial court asked appellant, “you understand ... as part of the plea agreement ... you are waiving 9 rights here?” To all of the foregoing questions appellant responded in the affirmative. The trial court proceeded to order a presentence investigation. Appellant sought to withdraw his plea five days later. After hearing, the trial court denied the motion, expressly finding the plea had been accepted.

Florida Rule of Criminal Procedure 3.172(g) provides for the withdrawal of a plea offer or negotiation by either party at any time before it is accepted formally by the trial judge. The rule requires “formal acceptance of [the] plea,” which occurs when the trial court “affirmatively states to the parties, in open court and for the record, that the court accepts the plea.” Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984). The fundamental defect in the proceedings above was the trial court’s failure to express its acceptance of appellant’s plea; the ordering of a presentence investigation is not sufficient in this respect. As the plea agreement is no longer binding on appellant, however, the State may reinstate the count of false imprisonment and proceed to trial on all of the original charges. See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).

The State having conceded the error, we note the professionalism and integrity with which the State has conducted itself in these proceedings. We also direct the court on remand to the requirements of Florida Rule of Criminal Procedure 3.172(c), which instructs the trial judge to determine that a pleading defendant understands the nature and consequences of waiving the specific rights enumerated therein.

REVERSED and REMANDED.

KAHN, BENTON, and CLARK, JJ., concur.


author: FULMER, Judge.

text:
    Allan Michael ROTH, Appellant, v. BANK OF AMERICA, N.A., successor by merger to Nations Bank, N.A. f/k/a Nations Bank, N.A. (South); Frontier Trust Company, F.S.B., successor by merger to Advest Bank; and Pamela Gertrude Roth, Appellees.
    No. 2D07-2250.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.
    Rehearing Denied Jan. 6, 2010.
    Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellant.
    Allan M. Roth, pro se.
    J. Todd Timmerman and Duane A. Daiker of Shumaker, Loop & Kendrick, LLP, Tampa, for Appellee, Frontier Trust Company, FSB.
    No appearance for Appellee, Bank of America, N.A.
    No appearance for Appellee, Pamela G. Roth.
   FULMER, Judge.

Allan M. Roth appeals from a final judgment of foreclosure. The judgment granted Pamela G. Roth’s motion for final summary judgment. Because there were disputed issues of material fact that precluded entry of a final summary judgment, we reverse.

The promissory note and mortgage at issue arose from the dissolution of the marriage of Allan and Pamela Roth. As part of the equitable distribution scheme, Allan was ordered to sign a promissory note for $295,379 in favor of Pamela and to secure the note with a mortgage on Allan’s nonmarital residence. Allan appealed the final judgment of dissolution of marriage and, on January 9, 2008, this court reversed the final judgment with respect to the equitable distribution and remanded for further proceedings. See Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008). This court stated that “there appears to be no basis upon which the trial court could impose an equitable lien on the Husband’s nonmarital homestead for the amount of the equitable distribution award in excess of the Wife’s marital interest in that homestead.” Id. at 587.

While the appeal from the dissolution action was pending, Bank of America filed a complaint to foreclose on the first mortgage on the residence. Pamela answered the Bank of America complaint and filed a cross-claim against Allan to foreclose the mortgage she obtained in the dissolution action. Pamela filed a motion for summary judgment on her cross-claim. The circuit court rendered its final summary judgment of foreclosure as to Pamela’s cross-claim in April 2007.

On appeal, Allan argues that because the equitable distribution award has been vacated, this court must reverse the final judgment of foreclosure with directions to the trial court to enter judgment on Pamela’s cross-claim in favor of Allan. His arguments are premised on grounds of res judicata or collateral estoppel. In the alternative, he argues that summary judgment was improperly granted where there were disputed issues of material fact presented to the trial court through the affidavits he filed before the hearing on the motion for summary judgment.

We review an order granting a motion for summary judgment de novo. Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218, 1219 (Fla. 2d DCA 2008). Summary judgment is improper if the record reflects any genuine issue of material fact. Id.

At the time of the hearing on Pamela’s motion for summary judgment, the fact that an appeal was pending in the dissolution case, in and of itself, did not create an issue of fact in the summary judgment proceeding as to the validity of the note and mortgage. However, the transcript of the summary judgment hearing reflects that the trial court overlooked the affidavits filed by Allan. In particular, the transcript does not reflect that the trial court considered the affidavit of Timothy W. Weber, which called into question the validity of the note and mortgage.

We therefore reverse the Uniform Final Judgment of Foreclosure because we find merit in Allan’s alternative argument that the trial court erroneously concluded that there were no disputed issues of material fact. Because the issues raised in the cross-claim have been mooted by the outcome of the appeal in the dissolution case, there is no need for the trial court to reconsider the cross-claim. On remand, the trial court is instructed to dismiss Pamela’s cross-claim.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., Concur.


text:
    Michelle BOWERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D08-3251.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.

      Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés and Sara Elizabeth Macks, Assistant Attorneys General, Tampa, for Respondent.
   FULMER, Judge.

In this second-tier certiorari proceeding, Michelle Bowers seeks review of the circuit court’s opinion reversing the county court’s order granting her motion to suppress. We grant Bowers’ petition for writ of certiorari and remand for the circuit court to affirm the county court’s order.

Following a traffic stop on March 27, 2007, Bowers was arrested and charged in county court with the misdemeanor offenses of possession of marijuana, possession of paraphernalia, and driving under the influence (DUI). She filed a motion to suppress all evidence obtained during a search of her vehicle following the stop. She argued that the stop was illegal because it was not founded upon probable cause that she had committed a traffic infraction and thus the warrantless search of her vehicle was also illegal.

The county court held an evidentiary hearing on Bowers’ motion. The officer who performed the stop of Bowers’ vehicle, Officer Suskovich, did not appear for the hearing, despite the fact that he had been subpoenaed by the State. The State called Officer Tracy, who performed the DUI investigation and arrested Bowers, but who was neither involved in nor present at the scene of the stop of Bowers’ vehicle. Officer Tracy arrived at the scene after Bowers’ vehicle was already stopped. Therefore, he never observed Bowers’ driving, and his understanding of the reason she was stopped was based solely on what Officer Suskovich told him.

Bowers’ counsel raised a hearsay objection to Officer Tracy testifying as to what Officer Suskovich told him. The State responded that Officer Tracy’s testimony was admissible under the fellow officer rule. Defense counsel disagreed. The county court overruled the objection and permitted Officer Tracy to testify as to what Officer Suskovich told him was the basis for the stop of Bowers’ vehicle. Bowers also testified and gave her account of the events leading up to the stop. At the conclusion of the hearing, the county judge made comments reflecting that he was troubled by the inability to get clarification about details of the stop from Officer Suskovich. The judge expressed difficulty in reaching a decision about whether the officer had a reasonable basis to believe that Bowers committed a traffic infraction. The county court concluded the hearing by stating that the evidence would be suppressed. A written order was entered granting Bowers’ motion without explanation.

The State appealed the suppression order to the circuit court. The circuit court issued an opinion reversing the county court’s order. The circuit court found that Officer Tracy’s testimony regarding Officer Suskovich’s statements was admissible under the fellow officer rule and concluded that the county court’s decision to grant the motion to suppress was not supported by competent, substantial evidence or the law.

In considering Bowers’ petition for writ of certiorari, we must determine whether the circuit court afforded the parties procedural due process and whether it departed from the essential requirements of law. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). Clearly established law may derive from various sources including recent controlling case law, rules of court, statutes, and constitutional law. Id. at 890.

Bowers argues that the circuit court departed from the essential requirements of law by concluding that Officer Tracy’s testimony was properly admitted under the fellow officer rule and by reweighing the evidence to reach a different conclusion than the county court with respect to the validity of the stop. We conclude that the circuit court applied the wrong law in determining that Officer Tracy’s testimony was admissible. Because the only evidence presented by the State to meet its burden of proving a valid stop was the erroneously admitted testimony of Officer Tracy, the county court’s order granting Bowers’ motion to suppress must be affirmed. Our quashal of the circuit court’s opinion on the admissibility issue of Officer Tracy’s testimony renders moot the arguments on the issue of reweighing the evidence.

Officer Tracy’s testimony as to what Officer Suskovich told him about Bowers’ driving was hearsay and as such was not admissible to prove that Officer Suskovich witnessed Bowers’ violating a traffic law. See §§ 90.801(l)(c), 90.802, Fla. Stat. (2008). The circuit court relied on Ferrer v. State, 785 So.2d 709 (Fla. 4th DCA 2001), to conclude that Officer Tracy’s hearsay testimony was admissible under the fellow officer rule. Ferrer was wrongly decided because it misapplies the fellow officer rule to circumvent the hearsay rule of evidence.

The fellow officer rule provides a mechanism by which officers can rely on their collective knowledge to act in the field. Under this rule, the collective knowledge of officers investigating a crime is imputed to each officer and one officer may rely on the knowledge and information possessed by another officer to establish probable cause. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Maynard, 783 So.2d 226, 229 (Fla.2001); Strickroth v. State, 963 So.2d 366, 368 n. 1 (Fla. 2d DCA 2007) (“ ‘[T]he collective knowledge of police investigating a crime is imputed to each member ....”’) (quoting Johnson v. State, 660 So.2d 648, 657 (Fla.1995)); State v. Boatman, 901 So.2d 222, 224 (Fla. 2d DCA 2005) (“[T]he rule operates to impute the knowledge of one officer in the chain of investigation to another.”). “It can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers of whom at least one possesses the required level of suspicion.” Strickroth, 963 So.2d at 368 n. 1.

Under the rule, one officer may rely on the knowledge and information possessed by another officer to establish probable cause for an arrest for a felony or misdemeanor offense, Boatman, 901 So.2d at 224, or to establish probable cause for a search, State v. Peterson, 739 So.2d 561, 567 (Fla.1999). See also Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32, 35 (Fla. 2d DCA 2001) (concluding that Deputy Watson had probable cause to believe that Porter had operated his vehicle while intoxicated based on his observations of Porter together with information from another deputy that Porter had been driving the vehicle); Dep’t of Highway Safety & Motor Vehicles v. Shonyo, 659 So.2d 352, 353 (Fla. 2d DCA 1995) (“The fellow officer[] rule allows the ar resting officer to assume that probable cause to arrest a suspect exists when he relies upon the representations of an officer who has firsthand knowledge of the events.”).

The fellow officer rule is not a rule of evidence. It does not change the rules of evidence. And, it is not one of the enumerated exceptions to the hearsay rule.

In its opinion, the circuit court states:

The fellow officer rule, which is sometimes referred to as the collective knowledge doctrine, is premised on the theory that the collective knowledge of police investigating a crime is imputed to each member of the investigation. Dewberry v. State, 905 So.2d 963, 967 (Fla. 5th DCA 2005). “An ‘arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. It is sufficient if the police officer initiating the chain of communication ... had firsthand knowledge.’ ” Ferrer v. State, 785 So.2d 709, 711 (Fla. 4th DCA 2001).

While these recitals are correct statements of law regarding the fellow officer rule, the circuit court, as did the Ferrer court, misapplied the rule. The issue raised in Bowers’ motion to suppress was not whether there was probable cause for Officer Tracy to conduct a DUI investigation and make an arrest but rather whether there was probable cause for Officer Suskovich to stop Bowers. At that point of the traffic stop, there was no “investigative chain” during which collective knowledge was imputed to Officer Suskovich to provide probable cause for the traffic stop. Officer Suskovich was the sole officer with any knowledge leading up to and culminating in the traffic stop. Officer Suskovich did not rely on any knowledge or information possessed by Officer Tracy or any other officer to establish probable cause to stop Bowers. The fact that Officer Tracy was called to the scene after the stop was completed for the purpose of performing a separate DUI investigation does not make him a fellow officer for purposes of determining whether there was probable cause to support the traffic stop.

In Ferrer, the Fourth District similarly misapplied the fellow officer rule. Ferrer was charged with DUI and filed a motion to suppress the evidence obtained as the result of an illegal traffic stop. 785 So.2d at 710. The State subpoenaed the officer who made the stop, Officer Claremont, to testify at the suppression hearing. When Officer Claremont failed to appear, over Ferrer’s hearsay objection, the trial court permitted Deputy Vila, who arrived after the stop, to testify as to Officer Clare-mont’s statements regarding the stop. Id. Officer Claremont told Deputy Vila that he stopped Ferrer after observing Ferrer driving with an expired tag. Id.

Ferrer argued that evidence of his intoxication should be suppressed because Officer Vila’s hearsay testimony was insufficient to establish a valid stop. Id. The trial court denied Ferrer’s motion, and the circuit court affirmed, finding that Officer Claremont’s knowledge was properly imputed to Deputy Vila under the fellow officer rule. Id. Again, the probable cause determination in dispute centered around Officer Claremont’s initial stop and not on any actions taken by Deputy Vila which were dependant on knowledge imputed to him.

We recognize that by relying on Ferrer the circuit court applied existing precedent from another district. Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected. See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So.3d 705 (Fla. 2d DCA 2009).

We therefore grant the petition for cer-tiorari, certify conflict with Ferrer v. State, 785 So.2d 709 (Fla. 4th DCA 2001), quash the circuit court’s opinion, and remand with directions to affirm the county court order granting the motion to suppress.

Petition granted, conflict certified, opinion quashed and remanded with directions.

SILBERMAN, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Ferrer's reliance on federal cases that allow hearsay evidence in suppression hearings is also misplaced. In United States v. Boyce, 797 F.2d 691, 693 (8th Cir.1986), .the court explained that Federal Rule of Evidence 104(a) authorizes the use of hearsay in suppression hearings. Rule 104(a) provides:

        (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
      The Ferrer opinion cites United States v. Maza, 93 F.3d 1390 (8th Cir.1996), which relies on Boyce. However, Boyce and Maza are not applicable here because ''[tjhere is no counterpart to rule 104(a) in the Florida Evidence Code.” Romani v. State, 542 So.2d 984, 986 (Fla.1989) (rejecting federal approach concerning what proof is required to establish a conspiracy where that approach relies on federal rule 104(a)). Section 90.105(1), Florida Statutes (2008), is similar to federal rule 104(a) but omits the one sentence that the court relies upon in Boyce. Section 90.105(1) provides that "[e]xcept as provided in subsection (2), the court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.” Thus, we conclude that the federal cases cited in Ferrer are governed by a different eviden-tiary rule and do not support the circuit court’s decision in this case.


text:
    Walter SILIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2405.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Rehearing Denied Jan. 7, 2010.
    Walter Silimon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, LOGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. Russell v. State, 982 So.2d 642 (Fla.2008).


author: TORPY, J.

text:
    HARPER MECHANICAL, LLC, Appellant, v. HUNT CONSTRUCTION GROUP, INC., et al., Appellees.
    No. 5D08-857.
    District Court of Appeal of Florida, Fifth District.
    Nov. 20, 2009.
    Jamie Billotte Moses and James M. Talley of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Charles J. Cacciabeve of Carlton Fields, P.A., Orlando, Jason A. Perkins, Sylvia H. Walbolt, E. Kelly Bittick, Jr., Wm. Cary Wright and Christine R. Davis of Carlton Fields, P.A., Tampa, for Appellees.
   TORPY, J.

In this construction payment dispute case, Appellant, a mechanical subcontractor, seeks review of the summary judgment entered in favor of Appellees, the contractor and its surety. Although the judgment is final as to the surety, it is not final as to the contractor because a counterclaim remains pending that arises from the same contract. Therefore, we cannot address the issues between Appellant and the joint venture or the individual corporations comprising the joint venture, including the propriety of the lower court’s order denying Appellant’s motion to amend its complaint against the joint venture.

As for the remaining issues, we affirm the summary judgment. We conclude that the document executed by Appellant, under oath, after it had concluded its work on the project, is an unambiguous acknowl-edgement of payment for all of the work that Appellant performed under the contract, including, by its express terms, changes and extras. The document also specifically released “any and all claims, rights, or causes of action whatsoever arising out of or in the course of the work performed” on the project. Appellant advanced no facts or theory to avoid the enforcement of this unambiguous document.

AFFIRMED in part; DISMISSED in part.

LAWSON, J., concurs.

GRIFFIN, J., dissents without opinion.

      . The contractor in this case was a joint venture consisting of Hunt Construction Group, Inc., The Clark Construction Group, Inc. and Construct Two Construction Managers, Inc.

      . Appellant’s proposed amendment to its reply to Appellees’ answer would have been futile and was properly denied.


author: NORTHCUTT, Judge.

text:
    MANOR CARE, INC.; Manor Care of America, Inc.; Manorcare Health Services, Inc.; Manor Care of Boynton Beach, Inc.; Pamela M. Cox; Linda Harker a/k/a Linda Rae Harker; Douglas Potts; Cathy Sprague a/k/a Cathy Ann Sprague; Jacqueline Pershing a/k/a Jacqueline Louise Pershing; Deborah Gowing a/k/a Deborah Kay Gowing; Brenda Hebden a/k/a Brenda Sue Hebden; and Margaret Thurston as to Manorcare Health Services, Appellants, v. The ESTATE OF Mary Lynn KUHN, by and through Douglas B. STALLEY, Personal Representative, Appellee.
    No. 2D08-267.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 2009.

      Sylvia H. Walbolt, Matthew J. Coniglia-ro, Edward W. Collins, and Annette Marie Lang of Carlton Fields, P.A., St. Peters-burg, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

Manor Care, Inc., and related entities and employees appeal a nonfinal order denying their motion to compel arbitration in this suit by the Estate of Mary Lynn Kuhn. The circuit court concluded that the arbitration agreement was unenforceable because its limits of liability violated public policy. However, this court has directed that arbitrators should, in the first instance, decide whether an arbitration agreement violates public policy. See Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86 (Fla. 2d DCA 2005); see also Jaylene, Inc. v. Steuer, 22 So.3d 711 (Fla. 2d DCA 2009). Accordingly, we reverse the order denying the motion to compel arbitration.

Reversed and remanded for further proceedings consistent with this opinion.

VILLANTI and CRENSHAW, JJ., Concur.


author: ROTHENBERG, J.

text:
    SUNTRUST BANK, Appellant, v. ELECTRONIC WIRELESS CORP. and Fabian Pesantes, Appellees.
    No. 09-1952.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.

      GrayRobinson and Jeffrey T. Kuntz, Fort Lauderdale, Roland E. Schwartz, Fort Lauderdale, and John M. Brennan, Orlando, for appellant.
    Ferdie and Lones and Ainslee R. Fer-die, Miami, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   ROTHENBERG, J.

SunTrust Bank seeks reversal of a non-final order quashing service of process on Electronic Wireless Corp. and Fabian Pes-antes, contending that they “concocted a hodgepodge of both actual and fictional requirements” for service of process and that “SunTrust duly complied” with each of the actual requirements. We agree and reverse and remand for proceedings consistent with this opinion.

SunTrust filed a complaint in February 2009, seeking to recover funds lent to Electronic Wireless pursuant to a commercial note guaranteed by Pesantes, the corporation’s registered agent. On February 23, 2009, a process server served Electronic Wireless by serving Andres Cardona, an employee, and he filed a verified return of service on March 2, 2009. The process server later served Pesantes individually through Pesantes’ wife, Juliana Pesantes. This summons contained the Spanish and French language information suggested by the Florida Rules of Civil Procedure. The process server filed a verified return of service for the second summons on March 9, 2009.

Electronic Wireless and Pesantes filed a joint motion to quash process and service of process. The trial court granted the motion and gave SunTrust 120 additional days to effectuate proper service. This appeal followed.

We review the trial court’s order quashing service of process de novo. Alvarado v. Cisneros, 919 So.2d 585, 587 (Fla. 8d DCA 2006). A return of service that is “regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). Further, “a defendant may not impeach the validity of the summons with a simple denial of service.” Id. at 819. Pesantes and Electronic Wireless failed to meet this burden and presented no evidence to invalidate the service on Pesantes individually or on Electronic Wireless.

Service on Pesantes

Pesantes claims: (1) the “required Spanish and Creole information” was not attached to his summons (emphasis added); (2) the summons failed to provide an address for the Clerk of Court; and (3) the process server did not properly complete the return of service. The record evidence, however, reflects that Pesantes’ summons, in addition to providing the requisite information in English, also provided information in Spanish and French, as suggested in Form 1.902, Florida Rules of Civil Procedure. Section 48.031, Florida Statutes, and Florida Rule of Civil Procedure 1.070, which govern service of process, contain no requirement that the summons contain any language other than English. Form 1.902, which accompanies Rule 1.070, however, suggests that the information be provided in Spanish and French, and Pesantes’ summons contained that language. We therefore find this argument of no merit.

The summons included the address to serve a responsive pleading (the lawyer’s offices), and because there is no requirement under Florida Statutes or the Florida Rules of Civil Procedure that the summons include the Clerk’s address, we reject Pesantes’ second argument. Lastly, the verified return of service filed by the process server avers that Pesantes was served (by Enrique Pintado, a certified process server in Miami-Dade County, with the identification number 1241) by serving Pesantes’ wife, Juliana Pesantes, and there was no evidence to the contrary. Based on the record evidence and because Pesantes presented nothing more than “a simple denial of service,” Telf Corp., 671 So.2d at 819, we find that Pesantes was properly served and the trial court erred in quashing the service.

Service on Electronic Wireless

Electronic Wireless claims: (1) Electronic Wireless’ employee, Cardona, was not authorized to accept service for its registered agent, Pesantes; (2) the employee was improperly served because the rule requires service between 10:00 a.m. and noon and the employee was served at 9:00 a.m.; (3) the summons failed to provide the Clerk of Court’s address; and (4) the process server did not properly complete the return of service.

Despite Electronic Wireless’ unsubstantiated claims regarding service on its employee, the record reflects that the verified return of service filed by the process server avers that he served Electronic Wireless at 11:40 a.m., not 9:00 a.m., on February 23, 2009, by serving Cardona, who was authorized to accept service for the corporation’s registered agent. Section 48.081(3)(a), Florida Statutes (2008), provides: “[P]rocess may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business.” Section 48.091(2) also provides: “Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day ... and shall keep one or more registered agents on whom process may be served at the office during these hours.”

Because Electronic Wireless presented no evidence to dispute that: service was made on Cardona; Cardona was authorized to accept service for the registered agent, Pesantes; and service was made at 11:40 a.m., as indicated on the process server’s return of service, we conclude that the service complied with Florida law. This finding is not in conflict, as Electronic Wireless suggests, with S.T.R. Industries, Inc. v. Hidalgo Corp., 832 So.2d 262 (Fla. 3d DCA 2002). In S.T.R, evidence was provided that the corporation’s sole officer and registered agent was present at the corporation at the time of the alleged service; the alleged service was on a woman who was not an employee of the corporation; and a delivery driver found the complaint and summons in the parking lot outside the business. Id. at 263.

As to Electronic Wireless’ third argument, which we have already addressed with regard to service on Pesantes, there is no requirement under Florida Statutes or the Florida Rules of Civil Procedure that the summons include the Clerk’s address, and the summons issued for Electronic Wireless included the address to serve a responsive pleading (the lawyer’s offices). Also, the process server properly completed the return of service as to Electronic Wireless. Accordingly, we conclude that service on Cardona for Electronic Wireless was valid on its face.

Finally, Pesantes and Electronic Wireless contend that the process was “ambiguous as an attempt to service two parties in a single process.” This contention is without merit as Pesantes was served individually and separate from Electronic Wireless. We also find Pesantes and Electronic Wireless’ estoppel argument meritless and decline to address it with more specificity. SunTrust neither appealed a final judgment nor accepted a benefit. The order granting Pesantes and Electronic Wireless’ motion to quash service of process is reversed, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.


author: COPE, J.

text:
    AA ACQUISITIONS, LLC, Appellant, v. OPA-LOCKA FLIGHTLINE, LLC, Appellee.
    No. 3D09-2059.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.

      Berger Singerman and Frank Scruggs, Fort Lauderdale; Broad and Cassel and George G. Mahfood and Michael A. Shafir, Miami, for appellant.
    Gary, Williams, Finney, Lewis, Watson & Sperando and Mark Miller, Stuart, for appellee.
    Before COPE, LAGOA and SALTER, JJ.
   On Motion for Clarification

COPE, J.

The question is whether a stay order entered by the appellate division of the circuit court is reviewable in this court by way of appeal. We conclude that the answer is no.

Landlord AA Acquisitions, LLC brought an eviction proceeding in county court against tenant Opa-Locka Flightline, LLC. The county court entered a summary judgment of eviction and denied the tenant’s motion for stay.

The tenant appealed to the appellate division of the circuit court. On application by the tenant, the appellate division granted a stay. See Fla. R.App. P. 9.310. The tenant’s appeal remains pending in the appellate division.

Unsure of the correct procedure, the landlord filed a petition for writ of certio-rari in this court, No. 3D09-2166, seeking to vacate the stay. The landlord also filed a notice of appeal of the stay order, which is the case now before us. Another panel of this court denied certiorari. This panel dismissed the appeal. The landlord requests clarification of the reason for dismissal of the appeal.

The underlying judgment was entered by the county court. The appellate division of the circuit court is conducting first-tier appellate review. When the circuit court entered its stay order, it entered that order while acting in an appellate capacity.

It is our view that this court’s review of a stay order entered by the appellate division is by certiorari, not by appeal. See USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc., 24 So.3d 588 (Fla. 4th DCA2009).

At the trial level and on first-tier appellate review, the Florida Rules of Appellate Procedure contemplate that as a general rule, stay orders will be entered and reviewed pursuant to rule 9.310. However, cases can also be found entertaining first-tier review of a stay order by way of certiorari or appeal. See Klein v. Royale Group, Ltd,., 524 So.2d 1061, 1063 n. 1 (Fla. 3d DCA 1988). See generally Philip J. Padovano, Florida Appellate Practice §§ 11:7, 23:5 (2009).

As already stated, this case involves second-tier review. At the second-tier level, review is by certiorari. See Haines City Comty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Philip J. Padovano, supra, § 28:5 at 725-26. The appellate division’s order granting a stay is not an appealable order.

For the stated reasons, the appeal has been dismissed.


text:
    Miguel RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2691.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 7, 2010.
    Miguel Rodriguez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Harris v. State, 12 So.3d 287 (Fla. 3d DCA 2009); Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).


text:
    AUTO-OWNERS INSURANCE COMPANY and Robert J. Lowe, Sr., individually, and as Personal Representative of the Estate of Hector M. Van Lennep, Appellants, v. The GOVERNOR OF FLORIDA, for the use and benefit of Elizabeth HALL and for all other interested parties, and Elizabeth Hall, individually, and Madeline K. Van Lennep, Hector T. Van Lennep, and Frederick L. Van Lennep, Appellees.
    No. 4D09-362.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.

      Iniv Gabay of Flanagan, Maniotis & Berger, P.A., West Palm Beach for Appellant-Auto Owners Insurance Company.
    E. Steven Lauer of E. Steven Lauer, P.A., Vero Beach, for appellant Robert J. Lowe, Sr., individually and as Personal Representative of the Estate of Hector M. Van Lennep.
    Chester Clem, Vero Beach, for Appel-lee-Elizabeth Hall, and for all other interested parties, and Elizabeth Hall individually.
    Peter Matwiczyk of Matwiczyk & Brown, LLP, West Palm Beach, for Appel-lees-Madeline K. Van Lennep, Hector T. Van Lennep, and Frederick L. Van Lenn-up.
   ON MOTION TO DISMISS

PER CURIAM.

Appellants, the personal representative of the estate and his surety bonding company, appeal an order denying their motions to dismiss appellees’ petitions for surcharge and to remove the personal representative. Appellees, the decedent’s children, are residuary beneficiaries of their father’s estate. According to appellants, these orders are appealable as final orders because they are a final decision on the question of whether willful misconduct must be proved at trial. Because the orders at issue are non-final and non-appeal-able, we dismiss this appeal for lack of jurisdiction.

According to the petitions in this case, the personal representative lost virtually all of the estate assets through inappropriate investments. The beneficiaries sued the personal representative and his bonding company, seeking removal of the personal representative and surcharge against him and the bonding company. Appellants moved to dismiss, relying on a provision of the will which stated that the personal representative would only be liable for willful misconduct. The trial court denied the motions to dismiss and appellants brought this appeal. Appellees moved to dismiss the appeal for lack of jurisdiction.

Florida Probate Rule 5.100 (2008) provides that the appeal of a probate order is governed by the Florida Rules of Appellate Procedure. Florida Rule of Appellate Procedure 9.030 governs our jurisdiction to decide appeals. We have limited jurisdiction to hear appeals from the non-final orders enumerated in Rule 9.130. Appellants concede that the subject order is not an appealable non-final order, but argue that it is a final order of the circuit court over which this court has plenary appellate jurisdiction under Rule 9.030(b)(1)(A).

Florida Rule of Appellate Procedure 9.110 states that it applies not just to orders over which this court has appeals jurisdiction, but also to proceedings that “seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” Although this rule operates to broaden the scope of “finality” as that concept generally applies in civil matters, “where the rights of the parties as relates to their interest in the estate are not finally determined, then the orders are not deemed final for purposes of appeal.” In re Estate of Bierman, 587 So.2d 1163, 1166 (Fla. 4th DCA 1991).

We do not believe that Rule 9.110(a)(2) was intended to alter the Florida Supreme Court’s holding in In Re Peterson’s Estate, 73 So.2d 225 (Fla.1954). In that case, the executor moved to dismiss a petition and the motion was denied. The Florida Supreme Court stated that it was “evident” that the order denying the motion to dismiss “was not an order finally determining the rights of either party to the proceeding....” We are bound by this decision. Moreover, we note that we dismissed an appeal from an order denying a motion to dismiss a petition in Somogyi v. Nevai, 920 So.2d 828 (Fla. 4th DCA 2006). The first district ruled similarly in Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003). In re Estate of Pavlick, 697 So.2d 157 (Fla. 2d DCA 1996), cited by appellants, is distinguishable and unpersuasive authority in this case.

The denial of the motions to dismiss in this case merely decided that appellees had stated a cause of action. This is not a final determination of appellants’ rights or obligations, even if it implicitly establishes the standard of proof appellants must meet if this case is actually tried. Appellants do not concede that the rulings they appeal necessarily render them liable. Although these orders may not portend well for their ultimate success, they do not finally decide the question of victory or defeat; thus they are not final appealable orders.

Dismissed.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    John Angus WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1809.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 12, 2010.

      John Angus Wright, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

John Angus Wright seeks review of the orders that summarily denied his rule 3.800(a) motion for postconviction relief and an order denying his motion for rehearing. We affirm the trial court’s denial of his claims.

In one of Wright’s claims, he alleges that the trial court’s sentencing was affected by an incorrectly tallied sentencing scoresheet. This claim has been repeatedly raised and re-visited through multiple postconviction motions and each time has been denied. To the extent that Wright seeks relief on this issue, as the trial court admonished, his claim is successive and abusive.

While res judicata does not apply to a rule 3.800 motion, collateral estoppel does. See State v. McBride, 848 So.2d 287, 290 (Fla.2003). It applies when the same issue has already been litigated and precludes a defendant from rearguing a successive issue that was argued in a prior motion. Id. at 290-91. The law of the case doctrine also applies to postconviction motions. See id. at 291. If a motion is successive and there is no manifest injustice, then it cannot be brought again. Id. at 291-92.

We echo the trial court’s warning to Wright that his repeated filing of successive claims will result in proceedings to determine appropriate sanctions. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

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