author: COPE, J. COPE, J.

text:
    HIALEAH AUTOMOTIVE, LLC, d/b/a Potamkin Dodge, Appellant, v. Roberto BASULTO and Raquel Gonzalez, Appellees.
    No. 3D07-855.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2009.
    Opinion Denying Rehearing and Granting Clarification Dec. 2, 2009.

      Wolfe & Goldstein and Mark Goldstein, for appellant.

      Timothy Carl Blake, Miami, for appel-lees.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   Revised Opinion

COPE, J.

On consideration of the appellant’s motion for rehearing, the court withdraws its previous opinion and substitutes the following opinion.

This is an appeal of an order denying a motion to compel arbitration of claims brought against an automobile dealer. We affirm in part and reverse in part.

I.

In 2004, Roberto Basulto and Raquel Gonzalez, who are husband and wife (“the buyers”), purchased a new 2005 Dodge Caravan from Hialeah Automotive, LLC, which does business as Potamkin Dodge (“the dealer”). The buyers alleged that while at the dealership, the dealer had the buyers sign the contract in blank, with the representation that the agreed-upon numbers would be filled in. The buyers alleged that when the dealership completed the sales contract, it allowed them a lower trade-in allowance than the amount agreed upon. The dealer refused to correct the situation. After negotiations proved unsuccessful, the buyers returned the van to the dealership (having driven a total of seven miles) and demanded the return of their trade-in. The trade-in had been sold.

The buyers brought suit alleging fraud in the inducement and violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). See Ch. 501, pt. II, Fla. Stat. (2004). The buyers also sought rescission of the arbitration agreements they had signed, and rescission of the loan agreement.

The dealer moved to compel arbitration. The trial court held an evidentiary hearing at which the buyers and representatives of the dealer testified. The trial court ruled that: (a) the arbitration agreements were unconscionable; (b) the agreements were written so as to defeat the remedial purpose of the FDUTPA; and (c) the request for public injunctive relief under the FDUTPA was not a remedy an arbitrator could enforce and oversee. The dealer has appealed.

II.

An arbitration agreement is, very simply, one in which the parties have agreed to submit them dispute to an arbitrator (or panel of arbitrators) instead of a judge. 1 Larry E. Edmonson, Domke on Commercial Arbitration, § 1:1, at 1-1, 1-2 (2007) [ (hereinafter Domke) ]. It is the substitution of one decision-maker in place of another.

By agreeing to arbitrate, a party does not give up substantive rights afforded by statute or common law. The party only agrees to submit the dispute to “resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3846, 87 L.Ed.2d 444 (1985) (statutory claim); 1 Domke, supra, § 23:10, at 23-23.

A.

We turn first to the parties’ “Agreement to Arbitrate Disputes” (the “Agreement”). This one-page, stand-alone Agreement called for the arbitration of any dispute concerning the sale of the vehicle, regardless of the theory of liability asserted. It contained a Florida choice of law provision.

Where, as here, the parties execute an arbitration agreement in a transaction involving interstate commerce, the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, is implicated. See Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 474-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); see also Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999).

Parties are allowed to choose state law for “the rules under which ... arbitration will be conducted.” Volt, 489 U.S. at 479, 109 S.Ct. 1248. By their Florida choice of law, the parties have specified the procedures of the Florida Arbitration Code as being applicable to this transaction. See Ch. 682, Fla. Stat. (2004). While this is permissible, the arbitration agreements in this case must still be enforced in a way which is consistent with the substantive provisions of the FAA.

Under the FAA, an arbitration agreement in a transaction involving interstate commerce “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “Section 2 prohibits the states from placing greater restrictions on arbitration clauses than those that apply to other contract prowsions.” Powertel, 743 So.2d at 573. “A court must enforce an arbitration agreement according to its terms, absent an established ground for setting aside the contractual provision, such as fraud, duress, coercion, or unconscionability.” 1 Domke, supra, § 1:2, at 1-6.

The First District has explained:

Although the states may not impose special limitations on the use of arbitration clauses, the validity of an arbitration clause is nevertheless an issue of state contract law. Section 2 states that an arbitration clause can be invalidated on such grounds as exist “at law or in equity for the revocation of a contract.” Thus, an arbitration clause can be defeated by any defense existing under the state law of contracts. As the Court explained in [Doctor’s Associates, Inc. v.] Casarotto, [517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) ], “generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening [the Federal Arbitration Act].” 517 U.S. at 687, 116 S.Ct. 1652[.]

Powertel, 743 So.2d at 574.

Although by no means an exclusive list, the Fourth District has identified two analytical frameworks that have been used by courts “when confronted with this issue [a challenge to the validity of an arbitration agreement]: (1) whether the arbitration clause is void as a matter of law because it defeats the remedial purpose of the applicable statute, or (2) whether the arbitration clause is unconscionable.” Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 297-99 (Fla. 4th DCA 2005) (en banc). By the phrase “defeats the remedial purpose of the applicable statute,” the Fonte court referred to an arbitration clause that eliminates substantive rights guaranteed by a remedial statute. 903 So.2d at 1024. The trial court applied both approaches in this case.

B.

The buyers attacked the Agreement in part on the ground that it was unconscionable. Our court has said that, to invalidate a contract for unconscionability “under Florida law, a court must find that the contract is both procedurally and substantively unconscionable.” Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1134 (Fla. 3d DCA 2006). For procedural unconscionability, “a court must look to the manner in which the contract was entered into and consider factors such as whether the complaining party had a meaningful choice at the time the contract was entered into.” Id. “Courts consider ‘whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract or whether the terms were merely presented on a ‘take-it-or leave-it’ basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.’ ” Id.

In this case, the buyers responded to the dealer’s advertisement on Spanish-language television. The dealer’s sales staff understood that the buyers did not speak or read English and conducted the entire transaction in Spanish. The dealer’s personnel testified that although the contracts were written in English, they reviewed the content of the contracts with the buyers in Spanish. The buyers testified that in their conversations with the dealer’s personnel, arbitration was never mentioned. The trial court found the buyers to be credible and concluded that either arbitration was not mentioned, or if mentioned, was not explained in an understandable way.

The dealer argues that a party to a contract is bound to the agreement, even if he or she did not read it. See Estate of Etting v. Regents Park at Aventura, Inc., 891 So.2d 558 (Fla. 3d DCA 2004). While that is true as a general proposition, in this case the dealer’s personnel undertook to explain the contracts to the buyers in Spanish. Having done so, they were obliged to do so accurately. Cf. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1186 (Fla.2003) (in the context of tort law, “[w]henever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service ... thereby assumes a duty to act carefully and to not put others at an undue risk of harm”).

As the trial court order states, “It has long been recognized in this state that if one is induced not to read a contract — or, as here, not to obtain outside assistance in reading the contract — and he signs an entirely different paper from what the opposing party has represented that paper to be, the party so signing is entitled to be relieved of the obligations which he has unknowingly assumed.” Order at 7 (citing Pepple v. Rogers, 104 Fla. 462, 140 So. 205, 208 (1932)). Alternatively, if arbitration was mention, it was not mentioned in an understandable way. Under either analysis, procedural unconscionability was established.

The trial court found that the Agreement was substantively unconscionable because it contained a waiver of the right to seek punitive damages. The complaint contains a claim for fraud, and punitive damages are available in judicial proceedings where there is a fraud claim. See § 768.72, Fla. Stat. (2004); First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536, 537-38 (Fla.1987). We agree with the trial court that it is unconscionable to employ an arbitration agreement to obtain a waiver of rights to which the signatory would otherwise be entitled under common law or statutory law. See Romano v. Manor Care, Inc., 861 So.2d 59, 61-64 (Fla. 4th DCA 2003) (punitive damages); see also Powertel, 743 So.2d at 576 (“One indicator of substantive unconscionability is that the agreement requires the customer to give up other legal remedies.”).

The dealer contends that the ban on punitive damages is not a basis to refuse enforcement of the entire Agreement. The dealer points out that the Agreement contains a severability clause and that the ban on punitive damages can be severed. The dealer raised this issue in the trial court, and it is true that the waiver of punitive damages could be severed.

The buyers counter that the Agreement should not be enforced because it is imper-missibly one-sided. By way of background, the Agreement contains an exemption from arbitration which allows either party to file a small claims action. The small claims limit is $5000. Fla. Sm. Cl. R. 7.010(b). This provision is even-handed and unobjectionable.

The Agreement contains an additional exemption, however, for an action by the dealer “to obtain a deficiency judgment after repossession.” The Agreement provides, in other words, that the dealer may resort to court action to obtain monetary relief against the customer in excess of the $5000 small claims limit, while the customer has no corresponding right to go to court to obtain monetary relief over $5000 against the dealer. “Where one party is bound to arbitration of its claims but the other is not, there can be substantive un-conscionability.” Palm Beach Motor Cars Ltd. v. Jeffries, 885 So.2d 990, 992 (Fla. 4th DCA 2004); see also Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002).

The one-sided nature of the exception is not subject to correction by use of the severability clause. The severability clause states, “If any part of this agreement to arbitrate is deemed invalid under applicable law, all other parts will nevertheless remain enforceable.” The dealer has reserved to itself the right to seek certain money damages in court, while allowing the buyers the right to seek money damages in court for no more than $5000. The dealer’s self-exemption appears to be valid and enforceable. That being so, the severability clause does not apply here, and the Agreement operates in a substantively unconscionable way. We therefore affirm the order denying enforcement of the Agreement.

III.

The parties also executed a Retail Installment Contract which contains an Arbitration Clause (the “Clause”). The Retail Installment Contract sets forth the financing terms for the van being purchased. The Clause provided that any dispute would be arbitrated and that the person first demanding arbitration could choose the American Arbitration Association, or JAMS, or the National Arbitration Forum. The Clause states that it is governed by the FAA.

The trial court invalidated the Clause, saying that an arbitrator is not suited to enforce and oversee injunctive relief. In Count IV of the buyers’ complaint, the buyers sought to enjoin the dealer from committing alleged deceptive and unfair trade practices. The buyers requested the injunction under FDUTPA, which states that anyone aggrieved by violation of FDUTPA “may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.” § 501.211(1), Fla. Stat. (2004). The buyers also requested declaratory relief, which is available under the statute. Id.

On the court’s own motion, this court directed the parties to address the question whether a claim for declaratory or injunctive relief was arbitrable under the Clause. The question arises because the Clause states, “The arbitration award shall be issued without a written opinion.”

In their responses, the parties agree that an award for injunctive and declaratory relief cannot be accomplished without a written opinion. The dealer argues that the correct remedy is for this court to sever the ban on a written opinion. The buyers maintain that there is no need to modify the contractual provision and that, as written, the claims for declaratory and injunctive relief are not arbitrable.

The severability clause states, “If any provision of the agreement is found to be unenforceable or invalid, that provision shall be severed and the remaining provisions shall be given full effect as if the severed provision had not been included.” The parties do not say that the ban on a written opinion is unenforceable or invalid. Given the existence of that provision, however, the claims for declaratory and in-junctive relief are not arbitrable. We, therefore, conclude that the claims for declaratory and injunctive relief are not included within the scope of the Clause, and those claims are to be resolved by the trial court.

The buyers also maintain that the Clause is unconscionable because it contains a waiver of the right to bring a class action or class arbitration. However, in his testimony Roberto Basulto disclaimed any intention to bring a class action, and the complaint is not a class action complaint, so we need not reach the class action issue under the circumstances of this case.

For the stated reasons, we affirm the trial court’s ruling holding that the Agreement is unenforceable. With regard to the Clause, we affirm the trial court’s order insofar as it declined to enforce arbitration of the claims for declaratory and injunctive relief. We reverse the trial court’s order insofar as it declined to enforce the Clause with respect to the buyers’ claims for monetary relief.

Affirmed in part, reversed in part and remanded for further proceedings herewith.

On Motion for Rehearing

COPE, J.

The buyers have moved for rehearing. They point out that if the conflicts in testimony were resolved in favor of the buyers, then it means that there was no agreement to arbitrate. That is so because the buyers testified that when the contracts were verbally translated, arbitration was not mentioned. See Gustavsson v. Washington Mut. Bank, F.A., 850 So.2d 570 (Fla. 4th DCA 2003). The dealer’s employees, on the other hand, testified that they did mention arbitration to the buyers. After listening to their testimony, however, the trial court concluded that either arbitration was not mentioned at all, or if mentioned, was not explained in an understandable way. Under either analysis, the evidence supported a finding of procedural unconscionability. That being so, it was not necessary for purposes of an analysis of procedural unconscionability for the trial court to resolve the conflict in testimony between the buyers and the dealers’ employees. While the trial court stated that it found the buyers to be very credible, the court did not explicitly resolve the conflict in testimony in favor of the buyers.

As stated, the trial court found the un-conscionability issue to be dispositive and found it unnecessary to resolve the testimonial conflict. Because we have reversed in part on the issue of unconscionability, the testimonial conflict is now ripe for trial court consideration. The buyers are free on remand to request a ruling on the claim that the arbitration clause was never mentioned when the contracts were translated, and that there was no agreement to arbitrate.

If the original trial judge is available, then the judge may resolve the conflict in testimony on the basis of the existing record. If not, the buyers may raise the issue by any appropriate procedure.

Rehearing denied, clarification granted.

      . The parties signed the form but did not fill in the blank designating the state. It is clear from the context that the contract is properly viewed as referring to the State of Florida.

      . See infra n. 4.

      . In view of this ruling, we do not need to reach the question whether an injunction under FDUTPA to benefit the general public is beyond the power of an arbitrator to grant. See Broughton v. Cigna Healthplans of Cal., 21 Cal.4th 1066, 90 Cal.Rptr.2d 334, 988 P.2d 67 (1999); see also Cruz v. PacifiCare Health Sys., Inc., 30 Cal.4th 303, 133 Cal.Rptr.2d 58, 66 P.3d 1157, 1159 (2003) (applying Broughton to claim for injunction against unfair competition under California's Business and Professions Code); but see Arriaga v. Cross Country Bank, 163 F.Supp.2d 1189 (S.D.Cal.2001); Brasington v. EMC Corp., 855 So.2d 1212, 1217 (Fla. 1st DCA 2003); Stewart Agency, Inc. v. Robinson, 855 So.2d 726, 728 (Fla. 4th DCA 2003).

      . Speaking for himself, the writer of this opinion suggests that in an appropriate future case, this court should reconsider Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131 (Fla. 3d DCA 2006).
      In Murphy, this court said, “To invalidate a contract under Florida law, a court must find that the contract is both procedurally and substantively unconscionable.” Id. at 1134 (citing Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999)) (emphasis added). Although the requirement for both procedural and substantive unconscionability has been repeated in a number of arbitration cases in recent years, I respectfully suggest that holding is (a) illogical, and (b) inconsistent with this court’s decision in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982).
      In Steinhardt, Judge Hubbart explained;
      The law in Florida is clear that an unconscionable contract or an unconscionable term therein will not be enforced by a court of equity. "It seems to be established by the authorities that where it is perfectly plain to the court that one party [to a contract] has overreached the other and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce, that a court of equity will not hesitate to interfere, even though the victimized parties owe their predicament largely to their own stupidity and carelessness.”

        Id. at 889 (citing Peacock Hotel, Inc. v. Shipman, 103 Fla. 633, 138 So. 44, 46 (1931)).
      Judge Hubbart explained that the Restatement (Second) of Contracts does not attempt to define unconscionability in procedural-substantive terms, and "the Florida decisions concerning unconscionability as applied to a mortgage foreclosure case are entirely devoid of this (procedural-substantive] analysis.” 422 So.2d at 889. The Steinhardt panel held: "This procedural-substantive analysis is ... only a general approach to the unconsciona-bility question and is not a rule of law.” Id. (emphasis added). Instead, procedural un-conscionability is merely one factor to be considered — not a required element. Clearly, if a contract is sufficiently inequitable to meet the test of substantive unconscionability, then it should not be enforced.
      I do not fault the panel in Murphy because there is no indication that anyone made the argument advanced here, or pointed out this court’s analysis in Steinhardt. This is, however, an issue which should be addressed in an appropriate case in the future. It need not be addressed in this case because in this case the Murphy test was satisfied.
      Assuming arguendo that procedural uncon-scionability is required, that condition should be deemed to be satisfied where, as here, the arbitration clause is a non-negotiated provision contained in a pre-printed form. See Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 544 (Fla. 3d DCA 1995) (adhesion contract means "a standardized contract, which, imposed and drafted by the party of superior bargaining strength ... relegates to the subscribing party ... only the opportunity to adhere to the contract or reject it.”); Black’s Law Dictionary 342 (8th ed. 2004) (adhesion contract is a "standard-form contract prepared by one party, to be signed by the party in a weaker position, usu. a consumer, who adheres to the contract with little choice about the terms”)


source: Caselaw Access Project

author: LAGOA, Judge.

license: Public Domain

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Oscar SALGADO, Respondent.
    No. 3D07-461.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 17, 2009.

      Michael J. Neimand, Office of the General Counsel, for petitioner.
    Panter, Panter & Sampedro and Christian Carrazana, Miami, for respondent.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Petitioner, United Automobile Insurance Company (“United”), seeks certiorari review of the circuit court appellate division’s opinion affirming a final declaratory decree entered by the county court in favor of the Respondent, Oscar Salgado, Jr. (“Salgado”). Because we find that, absent an express exclusion by the legislature, the right of rescission contained in section 627.409, Florida Statutes (2003), applies to PIP insurance contracts issued pursuant to the Florida Motor Vehicle No-Fault Law, we conclude that the circuit court sitting in its appellate capacity departed from the essential requirements of the law. Accordingly, we grant the petition for certio-rari and quash the opinion of the circuit court appellate division.

I. FACTUAL AND PROCEDURAL HISTORY

The Florida Motor Vehicle No-Fault Law, sections 627.730-627.7405, Florida Statutes (2003), mandates certain types of no-fault insurance coverage for drivers. Here, United issued to Salgado a no-fault motor vehicle policy to be in effect from December 18, 2003, until December 18, 2004. The insurance application contained two separate provisions that relate to a misrepresentation of material fact. In the section entitled “Driver and Resident Information,” the application states:

All persons 14 years or older, licensed or not, who reside with the applicant(s) must be listed below whether or not they are operators of the vehicles listed. Failure to provide this information shall constitute a material misrepresentation, which shall result in all insurance coverages being void.

(emphasis added).

Additionally, above the applicant’s signature, the application provides:

The undersigned by signature hereto, represents the statements and answers made herein to be true, complete and correct and agrees that any policy may be issued or renewed in reliance upon the truth, completeness and correctness of such statements and answers and understands that falsity, incompleteness, or incorrectness may jeopardize the coverage under such policy so issued or renewed Fla. St. 627-409. It is also hereby agreed and understood that misrepresentation of a material fact on this application may cause this coverage to be declared null and void as of the effective date Fla. St. 627-409.

(emphasis added).

During the policy’s effective period, Sal-gado was injured in a car accident. After receiving treatment, Salgado submitted his medical expenses to United for reimbursement. After conducting an investigation, United determined that Salgado had failed to list his brother as a member of his household on his insurance application, and notified Salgado that, as a result of this material misrepresentation, his policy was cancelled as of its effective date.

Upon receipt of the cancellation notice, Salgado filed a complaint for declaratory relief to determine if coverage existed notwithstanding the misrepresentation made in his insurance application. In its answer and affirmative defenses, United asserted that Salgado’s failure to list all residents of his household as required in his insurance application constituted a material misrepresentation pursuant to section 627.409, Florida Statutes (2003).

Subsequently, Salgado filed a motion for summary judgment contending that United failed to cancel the policy in accordance with section 627.728, Florida Statutes (2003). At the summary judgment hearing, Salgado asserted that United could not deny coverage on the basis that the policy did not exist at the time of the loss because Florida’s Motor Vehicle No-Fault Law provides that an insurer’s remedy for a material misrepresentation is to cancel the policy pursuant to section 627.728(3)(a), Florida Statutes (2003), which requires a forty-five day prospective cancellation notice, rather than to cancel the policy as void ab initio.

In granting Salgado’s motion for summary judgment, the trial court found that “[sjections 627.730-7405, Florida Statutes (2003), when viewed in pari materia with § 627.728, Florida Statutes (2003), are in derogation of Defendant’s common law right to unilaterally rescind personal injury protection coverage for material misrepresentation; [and] as such, Defendant’s common law right to rescind personal injury protection coverage is abrogated by the Florida Statutes.” The trial court further reasoned that, because section 627.736(9)(a), Florida Statutes (2003), mandated United to report cancellation or non-renewal of PIP coverage to the Department of Highway Safety Motor Vehicles within forty-five days from the effective date of cancellation or non-renewal, United did not comply with the statute when it cancelled Salgado’s policy retroactively to the date of inception. The trial court further concluded that the notice of cancellation did not comply with section 627.728, which required that notice of cancellation be given to the insured forty-five days prior to the effective date of cancellation. The trial court, therefore, found that Sal-gado’s policy was valid at the time of the accident on January 31, 2004. United appealed the decision to the circuit court sitting in its appellate capacity, and the circuit court affirmed without opinion. This petition followed.

II. STANDARD OF REVIEW ON SECOND-TIER CERTIORARI

Our standard of review for a decision rendered by the circuit court in its appellate capacity is whether the circuit court’s decision is either a departure from the essential requirements of the law or did not afford procedural due process. See Williams v. Miami-Dade County, 969 So.2d 389 (Fla. 3d DCA 2007) (“[W]e are confined to determining whether the lower court provided due process and followed the correct law.”); Loguercio v. Dep’t of Highway Safety & Motor Vehicles, 907 So.2d 1267 (Fla. 3d DCA 2005). Certiorari review should only be granted 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 “legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certio-rari review.” Id. at 890.

Additionally, because the appellate division’s ruling potentially affects a large number of PIP claims processed by insurers, exercise of certiorari jurisdiction is also appropriate. See Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1286 (Fla. 2d DCA 2005) (“In measuring the seriousness of an error to determine whether second-tier certiora-ri is available, one consideration is whether the error is isolated in its effect or whether it is pervasive or widespread in its application to numerous other proceedings.”). We further note that the circuit court appellate division’s per curiam decision in this case was followed by another trial court in another case involving the same issue.

Accordingly, because we find that the there has been a violation of a clearly established principle of law resulting in a miscarriage of justice with the potential to impact a significant number of other cases, we conclude that the exercise of second-tier certiorari is appropriate.

III. RESCISSION OF INSURANCE CONTRACTS UNDER CHAPTER 627

We begin our analysis by discussing the general rule of rescission and its application to insurance contracts under Florida law. Chapter 627, Florida Statutes, governs insurance rates and contracts in the State of Florida. Part II of Chapter 627, sections 627.401-627.442, is entitled “The Insurance Contract” and lays out the rules governing insurance contracts except those expressly excluded from its scope. The statutory right to rescission is set forth in section 627.409.

Section 627.409, Florida Statutes (2003), provides that misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under a policy unless they are: (1) fraudulent; (2) material to the risk assumed by the insurer; or (3) the insurer in good faith would not have issued the policy or would have done so only on different terms if the insurer had known the true facts.

As explained by the Supreme Court in Continental Assurance Co. v. Carroll, 485 So.2d 406, 409 (Fla.1986), this section is an unambiguous codification of the principle of law that “a contract issued on a mutual mistake of fact is subject to being voided and defines the circumstances for the application of this principle. This Court cannot grant an exception to a statute nor can we construe an unambiguous statute different from its plain meaning.” Id. (footnote omitted). Accordingly, where a misstatement or omission materially affects the insurer’s risk, or would have changed the insurer’s decision whether to issue the policy and its terms, the statute may preclude recovery. See § 627.409(l)(a), Fla. Stat. (2003); Carroll, 485 So.2d at 409; see also Gonzalez v. Eagle Ins. Co., 948 So.2d 1, 2 (Fla. 3d DCA 2006) (“Florida law indeed gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application of insurance.”); Union Am. Ins. Co. v. Fernandez, 603 So.2d 653, 653 (Fla. 3d DCA 1992) (reversing and remanding for trial on issue of material misrepresentation in insurance application; stating that “[i]f such a material misrepresentation is established at trial, the subject insurance policy would be void ab initio and, accordingly, there would be no liability insurance coverage for the subject accident”).

IV. DOES THE FLORIDA MOTOR VEHICLE NO-FAULT LAW ABROGATE THE RIGHT OF RESCISSION

We now turn to the question of whether the Florida Motor Vehicle No-Fault Law abrogates United’s statutory right of rescission. In considering this question, we are guided by the rule of statutory construction that “all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

Although both the Florida Motor Vehicle No-Fault Law and the statutory right of rescission are found in Chapter 627, Salgado argues that section 627.409 does not apply to the Florida Motor Vehicle No-Fault Law. We disagree. The only categories of insurance specifically excluded from Part II of Chapter 627 are:

(1) Reinsurance.
(2) Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code.
(3) Wet marine and transportation insurance, except ss. 627.409, 627.420, and 627.428.
(4) Title insurance, except ss. 627.406, 627.415, 627.416, 627.419, 627.427, and 627.428.
(5) Credit life or credit disability insurance, except ss. 627.419(5) and 627.428.

§ 627.401, Fla. Stat. (2003).

“It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another; expression unius est exclusion al-terius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.” Thayer v. State, 335 So.2d 815, 817 (Fla.1976); see also Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla.2000) (“Under the principle of statutory construction, expression unius est exclusio alterius, the mention of one thing implies the exclusion of another.”).

Following that principle, we must conclude that if the Legislature had intended to exclude no-fault insurance from Part II, Chapter 627, it would have included that type of insurance in the list enumerated in section 627.401. See Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) (“ ‘The starting point for [the] interpretation of a statute is always its language,’ so that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821, 829-30 (M.D.Fla.2007), aff'd, 540 F.3d at 1242 (11th Cir.2008))); Haskins v. City of Ft. Lauderdale, 898 So.2d 1120, 1123 (Fla. 4th DCA 2005) (“A basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))).

As such, “[w]here, as here, the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain and obvious meaning.” City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003). In this case, the express language of section 627.401 directly refutes Saiga-do’s position that United’s right of rescission under 627.409 is abrogated by the Florida Motor Vehicle No-Fault Law. For this Court to conclude otherwise would be a usurpation of the legislative function. Because Florida Motor Vehicle No-Fault Law policies are not expressly excluded from Part II of Chapter 627, they are, therefore, governed by that part, including section 627.409.

V. AN INSURER’S FAILURE TO COMPLY WITH SECTION 627.728 DOES NOT ABROGATE AN INSURER’S ABILITY TO VOID THE POLICY AB INITIO PURSUANT TO SECTION 627.m

We now address the trial court’s finding that because United’s notice did not comply with section 627.728, which required that notice of cancellation be given to the insured forty-five days prior to the effective date of cancellation, the policy was valid at the time of the accident. The trial court’s finding in practice, would require that an insurer undertake a forty-five day investigation period after the effective date of such a policy in order to ascertain if the application contained any material misrepresentations. That finding, however, is contrary to well established law that “an insurance company has the right to rely on an applicant’s representations in an application for insurance and is under no duty to further investigate.” See N. Miami Gen. Hosp. v. Cent. Nat’l Life Ins. Co., 419 So.2d 800, 802 (Fla. 3d DCA 1982); see also Indep. Fire Ins. Co. v. Arvidson, 604 So.2d 854, 856 (Fla. 4th DCA 1992) (“An insurer is entitled, as a matter of law, to rely upon the accuracy of the information contained in the application and has no duty to make additional inquiry.”). While it may be better public policy to require such a practice, it is not the province of this Court to effectuate such a policy change by way of case law.

Additionally, this Court, along with others, has stated that an insurer’s denial of coverage under section 627.409 is “a viable defense even in the absence of effective cancellation.” Motors Ins. Corp. v. Woodcock, 394 So.2d 485, 488 (Fla. 3d DCA 1981). In Motors Insurance Corp. v. Marino, 623 So.2d 814 (Fla. 3d DCA 1993), this Court held that an insurer’s failure to comply with section 627.728’s cancellation procedure did not waive the insurer’s right to rescind the policy under section 627.409. This Court found that the summary judgment entered in the plaintiffs’ favor was reversible error because the insurer had pled a “conclusively established affirmative defense of misrepresentation in the insurance application.” Id. at 815. Specifically, this Court reasoned that “[a] material misrepresentation in an application for insurance, whether or not made with knowledge of its correctness or untruth, will nullify any policy issued and is an absolute defense to enforcement of the policy. Fla. Stat., Section 627.409; Continental Insurance [Assurance] Company v. Carroll, 485 So.2d 406, 409 (Fla.1986).” Id. at 815 (emphasis added).

Similarly, in Sauvageot v. Hanover Insurance Co., 308 So.2d 583 (Fla. 2d DCA 1975), the Second District concluded that section 627.409’s predecessor applied to all policies and therefore could be raised by an insurer to deny PIP insurance even where the insurer had not cancelled the policy pursuant to section 627.728’s predecessor. In affirming the trial court, the Second District reasoned, “[t]here is nothing in s 627.0852 [the predecessor to section 627.728] ... that indicates the legislature intended to preclude an insurer from defending a suit upon the policy on the statutory grounds prescribed in s 627.01081 [the predecessor to section 627.409], which are applicable to all policies.” Id. at 585 (emphasis added).

Moreover, the Second District in Progressive American Insurance Co. v. Papasodero, 587 So.2d 500 (Fla. 2d DCA 1991), addressed a similar situation in the context of the Claims Administration Statute. In that case, the insurer sought a declaration that the automobile policy issued to the insured was void ab initio because the insured had made a material misrepresentation as to who would operate her automobile and also failed to list a person who resided in her household. The insured argued that the insurer could not deny her coverage because it had failed to comply with the requirements of the Claims Administrative Statute, section 627.426, Florida Statutes (1989). The trial court agreed that the insured had made a material misrepresentation on the policy application but held that the insurer had to provide coverage for the claims made because it had failed to comply with the Claims Administration Statute. The Second District reversed, concluding that because the material misrepresentation voided the policy, any failure by the insurer in carrying out the requirements of the Claims Administration Statute was a nullity. The Second District held that the finding by the trial court that there had been a material misrepresentation rendered the “policy null and void from the date of inception.” Papasodero, 587 So.2d at 502. Therefore, adherence to the Claims Administration Statute was irrelevant. “The Claims Administration Statute was not intended to create coverage under a liability insurance policy that never provided coverage.” Id. Although the effect of the Claims Administration Statute is to bar an insurance company from denying coverage, in this case, “there was no coverage in the first instance.” Id.See also Independent Fire Ins. Co. v. Arvidson, 604 So.2d 854 (Fla. 4th DCA 1992) (adherence to Claims Administration Statute was irrelevant as policy was null and void from date of inception due to material misrepresentation).

As such, we conclude that an insurer’s failure to rescind a policy in accordance with statutory cancellation procedures does not preclude or abrogate an insurer’s ability to void the policy ab initio pursuant to section 627.409.

VI. APPLICATION OF SECTION 627.736(9) (a)

We turn now to Salgado’s argument that section 627.736(9)(a) abrogates an insurer’s right to rescission. This section states in pertinent part: Based on the plain and unambiguous language of this section, we find Salgado’s argument unpersuasive. First, we find that section 627.736(9)(a) applies only to “renewals], cancellation^] or nonrenewal[s].” While section 627.728(l)(b) defines the term “renewal,” which is not applicable in this case, the term “cancellation” is undefined by chapter 627. “When a term is undefined by statute, ‘[o]ne of the most fundamental tenets of statutory construction’ requires that we give a statutory term ‘its plain and ordinary meaning.’ When necessary, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.’ Further, it is well-settled rule of statutory construction that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law.” Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 961 (Fla.2005) (quoting Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (citations omitted)).

Each insurer which has issued a policy providing personal injury protection benefits shall report the renewal, cancellation, or nonrenewal thereof to the Department of Highway Safety and Motor Vehicles within 45 days from the effective date of the renewal, cancellation, or nonrenewal.

The term “cancellation” has been defined to mean “the termination by the insured or by the insurer or both of insurance in accordance with the specific terms of a policy.” Webster’s Third New International Dictionary 325 (1986); see also Black’s Law Dictionary 259 (4th ed. 1968) (defining “cancellation” to mean “abandonment of contract”). The term “rescission,” however, has been defined to mean “[annulling or abrogation or unmaking of [a] contract and the placing of the parties to it in status quo.” Black’s Law Dictionary 1472 (4th ed. 1968); see also Borck v. Holewinski, 459 So.2d 405, 405 (Fla. 4th DCA 1984) (“The effect of rescission is to render the contract abrogated and of no force and effect from the beginning.”); Webster’s Third New International Dictionary 1930 (1986) (term “rescind” defined to mean “to abrogate (a contract) by tendering back or restoring to the opposite party what one has received from him (as in cases of fraud, duress, mistake or minority”)).

As such, the terms “cancellation” and “rescission” refer to two separate and distinct actions that operate to create different legal consequences.

A rescission avoids the contract ab initio whereas a cancellation merely terminates the policy as of the time when the cancellation becomes effective. In other words, cancellation of a policy operates prospectively, while rescission, in effect, operates retroactively to the very time that the policy came into existence; the distinction is similar to that between divorce and annulment.

2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 30:3 (3d ed. 1995).

Because “the effect of a rescission is to render the contract abrogated and of no force and effect from the beginning,” we conclude that section 627.736(9)(a) does not apply where — as here — the policy was rescinded as opposed to cancelled. When a contract is rescinded, it is as if the contract never existed in the first place. Accordingly, as the policy never came into existence, there was no contract for United to cancel.

VII. CONCLUSION

In concluding that United’s only remedy was to cancel the policy prospectively under section 627.728, the trial court and the circuit court appellate division in its affirmance departed from the essential requirements of the law. First, rescission under section 627.409 for a material misrepresentation has been previously applied to statutorily mandated PIP policies. See Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla.2002). Moreover, the “law is well settled that if the misrepresentation of the insured were material to the acceptance of the risk by the insurer or, if the insurer in good faith would not have issued the policy under the same terms and premium, then rescission of the policy by the insurer is proper.” New York Life Ins. Co. v. Nespereira, 366 So.2d 859, 861 (Fla. 3d DCA 1979). Here, the record establishes that Salgado provided United with grounds to rescind the policy.

Moreover, because the Florida legislature has chosen not to exempt the Florida Motor Vehicle No-Fault Law from section 627.409, we further conclude that the trial court applied the incorrect law when it determined that the Florida Motor Vehicle No-Fault Law is in derogation of United’s right to unilaterally rescind the policy ab initio based on the undisputed material misrepresentations contained in Salgado’s application.

Accordingly, we grant the writ, quash the opinion of the circuit court appellate division affirming the final declaratory decree entered in Salgado’s favor, and remand with directions to enter judgment in favor of United.

Petition granted.

      . In their respective depositions, United’s Underwriting Supervisor and PIP Litigation Adjuster testified that Salgado's failure to list his brother as a member of his household on his insurance application constituted a material misrepresentation as the unknown risk would have resulted in a higher premium.

        . Salgado argues that certiorari review is inappropriate as the appellate court’s decision was per curiam This Court, however, has previously granted relief from the circuit court appellate division's per curiam affirmances. See Auerbach v. City of Miami, 929 So.2d 693, 694 (Fla. 3d DCA 2006) (granting relief from a per curiam affirmance of circuit court appellate division); State v. Bock, 659 So.2d 1196 (Fla. 3d DCA 1995) (granting petition for writ of certiorari from circuit court appellate division per curiam affirmance); State v. Richard, 610 So.2d 107, 107-08 (Fla. 3d DCA 1992) (holding the trial court applied the wrong version of Florida Rule of Criminal Procedure 3.191 and granting relief from a per curiam affirmance); Kneale v. Jay Ben Inc., 527 So.2d 917 (Fla. 3d DCA 1988) (granting certiorari from per curiam affir-mance of circuit court appellate division).

      . Specifically, section 627.409, Florida Statutes (2003), states:
      627.409. Representations in applications; warranties
      (1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
      (a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
      (b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss. (2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefor does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.

      . Specifically, section 627.728(3)(a), Florida Statutes (2003) states:
      No notice of cancellation of a policy to which this section applies shall be effective unless mailed or delivered by the insurer to the named insured and to the named insured's insurance agent at least 45 days prior to the effective date of cancellation, except that, when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefore shall be given. No notice of cancellation of a policy to which this section applies shall be effective unless the reason or reasons for cancellation accompany the notice of cancellation.

      . Section 627.736(9) was amended in 2007 and moved to section 324.0221, Florida Stal-ules (2008). Chapter 324 is entitled "Financial Responsibility."

      . Specifically, section 627.728(l)(b), Florida Statutes (2003) provides:
      ''Renewal” or "to renew” means the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term. Any policy with a policy period or term less than 6 months or any policy with no fixed expiration date shall for the purpose of this section be considered as if written for successive policy periods or terms of 6 months.


author: WALLACE, Judge.

text:
    REDINGTON GRAND, LLP, a Florida limited liability partnership, Appellant, v. LEVEL 10 PROPERTIES, LLC, a Florida limited liability company; Dennis Markley; Carl B. White; and Crystal White Montgomery, Appellees.
    No. 2D08-4738.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2009.
    Rehearing Denied Oct. 2, 2009.

      Michael D. Allweiss, St. Petersburg, for Appellant.
    Timothy W. Weber and Sean K. McQuaid of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellees.
   WALLACE, Judge.

Redington Grand, LLP, a Florida limited liability partnership (the Developer), challenges a final summary judgment in favor of Level 10 Properties, LLC, a Florida limited liability company; Dennis Markley; Carl B. White; and Crystal White Montgomery (collectively, the Buyers). Because the circuit court erred as a matter of law in concluding that a remedial limitation in the separate contracts between the Developer and the Buyers rendered the contracts illusory and unenforceable, we reverse the final summary judgment and remand for further proceedings.

THE FACTS

On June 15, 2005, each of the Buyers entered into separate but substantially identical preconstruction contracts with the Developer for the purchase and sale of a unit in a condominium project in North Redington Beach to be known as “The Redington Grand.” The project was relatively small; it had only twelve units. Level 10 Properties and Ms. Montgomery agreed to a purchase price of $2,200,000 each for their units. Mr. Markley and Mr. White agreed to a purchase price of $2,600,000 each for their units. Level 10 Properties and Ms. Montgomery each paid an initial deposit of $225,000, with a second deposit of $215,000 for each unit due upon completion of the roof. Mr. Markley and Mr. White each paid an initial deposit of $265,000, with a second deposit of $255,000 for each unit due upon completion of the roof.

The contracts called for the Developer to complete the project and obtain certificates of occupancy for the units on or before June 15, 2007. If the Developer failed to meet this deadline, the Buyers had the option to terminate the contracts and to receive the return of their deposits or to allow the Developer additional time to complete the project and close the sale of the units.

The default provisions of the contracts are of particular interest in this case. These provisions were as follows:

4. DEFAULT BY SELLER: If the Seller defaults under this Contract by a material (substantial) breach which shall not be cured and corrected by Seller within ten (10) days following receipt of written notice of such default from Buyer, then Buyer may either: 1) terminate this Contract in its entirety and receive a full refund of the First Deposit and the Second Deposit paid by Buyer; or 2) bring an action in a Court of competent jurisdiction to seek specific performance of this Contract by Seller.
5. DEFAULT BY BUYER: If the Buyer defaults under this Contract by a material (substantial) breach which shall not be cured and corrected by Buyer within ten (10) days following receipt of written notice of such default from Seller, then Seller may either: 1) terminate this Contract in its entirety and receive and retain the First Deposit and the Second Deposit paid by Buyer as liquidated and agreed upon damages since the amount of actual damages is incapable of ascertainment; or 2) bring an action in a Court of competent jurisdiction to seek specific performance of this Contract by Buyer.

Thus the contract limited the Buyers’ remedy to the return of all deposits or specific performance. The Developer’s remedy was limited to the retention of the Buyers’ deposits or specific performance.

In January 2007, the Developer notified the Buyers that the roof was complete and that the second deposits were due and payable. When the Buyers did not pay the second deposits, the Developer’s attorney notified the Buyers that they were in default under the contract for failure to pay the second deposits and gave them ten days to cure the claimed defaults. In response, the Buyers’ attorney asserted that the roof was not complete and, accordingly, that the second deposits were not due. The Buyers’ attorney also made multiple requests for assurances from the Developer that it would be able to complete the project and obtain the certificates of occupancy by June 15, 2007. On March 8, 2007, having not received the assurances that they had demanded from the Developer, the Buyers declared that the Developer was in default under the contracts and demanded the return of their deposits.

Meanwhile, the Developer proceeded with construction and obtained the necessary certificates of occupancy for the units on May 9, 2007. The Developer scheduled closings for the four units with the Buyers for June 15, 2007, but the Buyers declined to close.

THE COURSE OF THE PROCEEDINGS

On March 30, 2007, the Buyers filed a single action against the Developer seeking the return of their initial deposits with interest. The Buyers’ theory was that the Developer had breached the contracts by failing to comply with the Buyers’ demands for adequate assurance of the Developer’s ability to complete the project by June 15, 2007. Later, the Buyers amended them complaint to assert a claim that the remedial limitations in the contracts rendered them illusory and unenforceable. The Developer counterclaimed for specific performance or, in the alternative, for damages.

After conducting a substantial amount of discovery, the parties filed cross-motions for summary judgment. The Developer and the Buyers both sought summary judgment on the Buyers’ claim that the remedial limitations in the contracts rendered the contracts illusory and unenforceable. The Developer also moved for partial summary judgment on other issues.

THE CIRCUIT COURT’S ORDER

In an order on the cross-motions for summary judgment, the circuit court addressed only the issue of whether the remedial limitations in the contracts rendered the contracts illusory and unenforceable. The circuit court framed the issue before it as whether the remedial limitation that the contracts imposed on the Buyers “lacks mutuality and, if so, whether that lack of mutuality defeats the essential requirements to the formation of a bilateral contract.” Relying on two cases involving claims under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720 (ILSA), the circuit court concluded that “the default provisions in the contract[s are] illusory and mutually unenforceable, as the [Developer] has no real obligation.” Based on this conclusion, the circuit court granted the Buyers’ motion for summary judgment and denied the Developer’s motion for summary judgment. Afterward, the circuit court entered a final judgment awarding each of the Buyers the return of their initial deposit plus interest from the contract date and providing that the Developer would take nothing on its counterclaim.

THE STANDARD OF REVIEW

A summary judgment is proper only when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Accordingly, we apply a de novo standard to the review of a summary judgment. Id. Our review of the summary judgment in this case requires us to determine whether the circuit court correctly ruled as a matter of law that the remedial limitations in the contracts rendered the contracts illusory and unenforceable.

DISCUSSION

The contracts under review in this case impose limitations on both parties relating to the recovery of damages. In the event of a default by the Buyers, the Developer may retain their deposits as liquidated damages or bring an action for specific performance. On the other hand, in the event of a default by the Developer, the Buyers may either obtain the return of their deposits or bring an action for specific performance. Thus both parties may seek specific performance of the contract. But if the Developer elects not to pursue the remedy of specific performance, it may recover damages by retaining the Buyers’ deposits. But unlike the Developer, the Buyers are effectively barred from seeking damages. “A return of one’s own money hardly constitutes damages in any meaningful sense.” Ocean Dunes of Hutchinson Island Dev. Corp. v. Colangelo, 463 So.2d 437, 439 (Fla. 4th DCA 1985).

The Buyers correctly note that the contracts’ remedial limitations favor the Developer. However, the Buyers led the circuit court into error by approaching the difference in the remedies available to the contracting parties as an issue relating to mutuality of obligation instead of mutuality of remedy. As this court has previously observed, “[m]utuality of obligation is sometimes confused with mutuality of remedy. Obligation pertains to the consideration while remedy pertains to the means of enforcement. Mutual obligation is essential, but the means of enforcement may differ without necessarily affecting the reciprocal obligations of the parties.” Bacon v. Karr, 139 So.2d 166, 169 (Fla. 2d DCA 1962).

Here, the parties’ contracts do not present any issue relating to mutuality of obligation. Under the contracts, the Developer agreed to sell the condominium units in question to the Buyers. In exchange, the Buyers agreed to pay the stated purchase prices for the units. Unquestionably, this exchange of promises created an enforceable and binding contract. See Vance v. Roberts, 96 Fla. 379, 118 So. 205, 206-07 (1928); Ocean Dunes, 463 So.2d at 440.

It is well settled “that parties to a contract may agree to limit their respective remedies and that those remedies need not be the same.” Ocean Dunes, 463 So.2d at 439 (citing Jay Vee Realty Corp. v. Jaymar Acres, Inc., 436 So.2d 1053 (Fla. 4th DCA 1983)). “[A]n absence of mutuality of remedies will not destroy an agreement’s validity.” Blue Paper, Inc. v. Provost, 914 So.2d 1048, 1052 (Fla. 4th DCA 2005) (citing LaBonte Precision, Inc. v. DPI Indus. Corp., 507 So.2d 1202, 1203 (Fla. 4th DCA 1987)); see also Hackett v. J.R.L. Dev., Inc., 566 So.2d 601, 603 (Fla. 2d DCA 1990) (holding that the default provisions of a real estate purchase agreement were void for lack of mutuality of remedy, but holding that the seller was not entitled to the recovery of any damages for breach of the agreement because it had failed to plead actual damages).

Even if the contracts lacked mutuality of obligation at their inception, the entry of a summary judgment for the Buyers on this basis still would have constituted error. The Developer raised the affirmative defense of performance of its obligations under the contracts. In support of this defense, the Developer made a record showing that it had completed construction of the condominium project, obtained the requisite certificates of occupancy, and scheduled closings for the units. Performance by the Developer would have been a complete defense to any claim by the Buyers arising from want of mutuality of obligation, rendering summary judgment for the Buyers on that basis inappropriate. See Ponce Dev. Co. v. Espino, 449 So.2d 317, 319 (Fla. 3d DCA 1984) (holding that when a contract for the construction and conveyance of a condominium unit “became executed by the [builder’s] full performance according to the terms of the contract — except as to transfer of title at a closing, which final act was impeded by the [purchaser] — the defect of lack of mutuality of [the builder’s] obligation was cured and could not be a defense to enforcement of the contract”); Wright & Seaton, Inc. v. Prescott, 420 So.2d 623, 627 (Fla. 4th DCA 1982).

The circuit court found support for its ruling in Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla.1990), and Hardwick Properties, Inc. v. Newbern, 711 So.2d 35 (Fla. 1st DCA 1998). Both Samara and Hardwick involved a question about whether the remedial limitations in the real estate purchase agreements under review in those cases were adequate to bring the transactions within the “two-year completion” exemption available under ILSA. See generally William P. Sklar & Jennifer L. Dolce, The Interstate Land Sales Full Disclosure Act’s Two-Year Completion Exemption, 73 Fla. B.J. 56 (Feb. 1999) (discussing ILSA and its impact on condominium developers, with particular attention to the two-year completion exemption). These cases are inapposite for two reasons. First, this case does not involve a claim under ILSA or any question about the applicability of the two-year completion exemption. Second, neither the Samara nor the Hardwick case constitutes authority for concluding that the contracts under review in this case are illusory and unenforceable. A recent response by a federal district court to a similar argument urging reliance on decisions interpreting ILSA to support contract rescission is apt:

The [condominium contract purchasers] offer various ILSA case law to support contract rescission. See Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla.1990); Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323 (M.D.Fla.2008). In such cases, however, the courts merely interpreted 15 U.S.C. § 1702, which exempts developers from ILSA compliance so long as the purchase agreement obligates such developer to complete construction within two years. Within this context, those courts narrowly held that a developer may not qualify for the § 1702 exemption by promising construction within two years, yet simultaneously limiting the purchaser’s right to damages or specific performance. Thus, the cases [the purchasers] cited engage the [discrete] issue of ILSA exemption, and in no way support or authorize rescission of the Agreements. See Samara, 556 So.2d at 1101 (“we hold that [developer] is not exempted from the provisions of the [ILSA]”); Stein, 551 F.Supp.2d [at] 1331 (contract not exempt from ILSA given limitation on buyer’s right to special damages).

Weaver v. Opera Tower, LLC, No. 07-23332-CIV, 2008 WL 4145520, at *4 n. 14 (S.D.Fla. Aug. 1, 2008). Thus the circuit court’s reliance on Samara and Hardwick was misplaced.

CONCLUSION

For these reasons, we reverse the final summary judgment in favor of the Buyers and remand this case to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

VILLANTI and KHOUZAM, JJ., concur.

      . The facts are drawn from the pleadings, depositions, affidavits, and documentary evidence in the record.

      . The Developer was not contractually obligated to complete the project by June 15, 2007. However, its failure to do so would trigger the Buyers' right to terminate the contracts and to obtain the return of their deposits.

      . The Developer did not object to the joinder of the four separate claims in one action.

      . The Buyers claimed dial the Developer had not completed performance of its obligations under the contracts. Thus there may have been a disputed issue of material fact relating to the Developer’s defense of performance.


author: RAMIREZ, C.J. SCHWARTZ, Senior Judge

text:
    Iris PROBKEVITZ, as Personal Representative of the Estate of Denise Probkevitz, a minor, deceased, Appellant, v. VELDA FARMS, LLC, a foreign corporation, and Joseph Anthony Dixon, Appellees.
    No. 3D07-1052.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 18, 2009.

      Mitrani, Rynor & Adamsky and Pamela A. Chamberlin, Miami, for appellant.
    Hinshaw & Culbertson and James H. Wyman, Ft. Lauderdale; Katten Muchin Rosenman and Ugo Colella, for appellees.
    Before RAMIREZ, C.J., and COPE, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Iris Probkevitz, as Personal Representative of the Estate of Denise Probkevitz, appeals the denial of her motion for new trial and the entry of an adverse final judgment in this wrongful death action. We reverse and remand for a new trial because the trial court impermissibly allowed the introduction of evidence of negligence and allowed the jury to consider such evidence. Furthermore, the trial court incorrectly disallowed the testimony of an expert witness whose testimony was not cumulative in nature.

This case arises from an automobile accident that occurred at 2:25 a.m. on February 9, 2002, when a vehicle driven by Denise Probkevitz collided with a Velda Farms commercial truck. At the time of the accident, Joseph Anthony Dixon was the dxiver of the commercial truck. Denise was fifteen years old and had a driver learner’s permit. After the impact, Dixon’s truck pushed Denise’s vehicle one hundred sixty-eight feet before her vehicle came to a stop. Denise died at the scene.

Denise’s mother and personal representative, Iris Probkevitz, filed a wrongful death action against Dixon and Velda Farms. After a seven-day jury trial, a defense verdict, and adverse rulings on her post-trial motions, Probkevitz appeals a number of trial court rulings.

I. Factual Background

Probkevitz first assigns error to the trial court’s ruling that allowed her negligence to be introduced at trial and appear on the jury verdict form. Dixon asserted as an affirmative defense that Probkevitz’s action was barred, or that his percentage of fault should be reduced, because of Prob-kevitz’s negligence. Dixon had moved for leave to file a third-party complaint against Probkevitz, in her capacity as a survivor, for vicarious liability, negligent supervision, and negligent entrustment. The trial court initially granted Dixon’s motion, but eventually ruled in Probkev-itz’s favor as to the negligent supervision and negligent entrustment counts. As to the vicarious liability count, the trial court granted the motion as to any negligence of Probkevitz, and it denied the motion as to Probkevitz’s vicarious liability. Dixon moved for reconsideration. The trial court denied the motion.

At the start of trial, Probkevitz moved to dismiss the remaining vicarious liability claim. The trial court denied the motion. Probkevitz also moved to exclude evidence of any prior instances of Denise’s driving in violation of her license restriction. The trial court denied the motion. The trial court allowed the jury to consider Prob-kevitz’s negligence. The jury verdict form contained a question asking the jury to determine whether there was negligence on the part of Probkevitz which was a legal cause of injury to Denise.

The evidence at trial established that Probkevitz was the owner of the Ford Taurus that Denise drove and that Prob-kevitz had signed for Denise’s learner’s permit. On the night of the accident, Denise and a friend, Laelani Day, had been driven by Laelani’s mother and dropped them off at Probkevitz’s house, where Lae-lani was to spend the night. Probkevitz testified that after eating a late dinner, she went to bed. Denise and Laelani, who were planning to visit another girl in the same apartment complex stayed up. Probkevitz was awakened by a loud boom, which turned out to be her daughter’s fatal accident. Laelani, who was a passenger in the vehicle driven by Denise, survived the accident, but she had no memory of that night or the accident. Probkevitz denied that she allowed Denise to drive on the night of her death, or that she was aware that Denise had taken the car, until after the accident.

There was no direct evidence presented as to why Denise and Laelani were out that night. Probkevitz’s theory at trial was that, if Dixon had been driving at a safe speed and with reasonable caution as he approached a flashing yellow signal, he would have seen Denise’s vehicle in ample time to avoid the accident. Dixon’s theory was that he did not see Denise’s vehicle in time to stop, and that Denise had ran through a flashing red light without slowing down, and he was unable to stop in time to avoid the accident.

The facts presented at trial established that Dixon was driving on his way to work when Denise’s Ford Taurus sped through a flashing red light into an intersection. Dixon testified that this made it impossible for him to stop and avoid the collision; that there was no way for him to avoid the accident because Denise’s vehicle shot into the intersection; and that Denise’s car did not stop at the red light in the intersection. Dixon further testified that he attempted to apply both his foot and hand brake when he saw Denise’s car, However, he did not have enough time to fully brake before the car slammed into his truck. Finally, Dixon admitted that, had he been going slower, he would have had more time to apply his brakes, slow down, or stop.

The defense introduced the testimony of three expert witnesses: G. Bryant Bu-chner, Marisela Fernandez, and Harry Snyder. Buchner, an accident reconstruction expert, arrived at certain conclusions based upon a crash analysis regarding the speed of both vehicles; the bumper’s displacement; and the truck’s headlights. Buchner opined that Dixon could not have stopped in time to avoid the accident, although he was driving about thirty to forty miles per hour, which was at or below the speed limit. Fernandez, an officer with the Florida Highway Patrol, testified over Probkevitz’s objection. She stated that she investigated the accident and concluded that Dixon was not speeding. Both Buchner and Fernandez agreed that Denise did not yield at the red light. Snyder likewise testified as to reconstruction issues.

In support of Probkevitz’s theory of the case that Dixon was driving at an excessive speed, she attempted to discredit Dixon’s memory to establish that he was speeding and that he had enough time to stop when he saw Denise’s car. She claimed that Dixon changed his testimony after he spoke to Buchner, and she emphasized other inconsistencies in Dixon’s testimony.

Probkevitz likewise attacked Buchner’s testimony on cross-examination. She pointed out errors or inconsistencies in Dixon’s testimony regarding speed and distance. She attempted to show that Bu-chner’s speed calculations were not exactly the same as those of Fernandez. Probkev-itz also attempted to exclude Fernandez’s testimony, arguing that she was unqualified to give expert testimony.

Probkevitz presented the testimony of two accident reconstruction expert witnesses whose testimony she intended to introduce at trial: James Dobbs and David Brill. Dobbs testified that Dixon must have driven much faster than the speed he claimed, and based upon a lack of skid marks on the street, Dixon only hit his brakes at or immediately before the point of impact.

The trial court limited the testimony of Probkevitz’s other accident reconstruction expert, Brill, to matters related to the operation of Dixon’s truck. The trial court later disallowed Probkevitz’s proffer of Brill’s testimony in rebuttal.

Probkevitz testified that she did not allow Denise to drive on the night of her death, and that she did not know that Denise had taken her car until after the accident occurred. Probkevitz also testified that she was unaware that Denise had ever driven without an adult in the car, or at night, in violation of the license restrictions. Laelani, the passenger in Denise’s car on the day of the accident, however, testified that she had driven with Denise on two prior occasions, and on one of those occasions, Denise drove her and a friend to the beach without an adult in the car.

At the conclusion of the defense’s case, Dixon again moved to include the issue of Probkevitz’s negligence on the verdict form. The trial court denied the request, stating that it would stand by its previous ruling which only allowed the vicarious negligence of Probkevitz to be considered by the jury. Probkevitz subsequently moved for a directed verdict on the contribution claim. The trial court denied the motion.

On the last day of the trial, the trial court reversed its previous ruling which disallowed Probkevitz’s negligence to be considered. The trial court thereafter instructed the jury to consider the issue of Probkevitz’s negligence separate and apart from the negligence of Denise and Dixon. The court also instructed the jury on the contribution claim based on Probkevitz’s negligence and on the ordinary standard of negligence. The verdict form, however, permitted a three-way apportionment of fault on the main negligence claim, among Dixon, Denise, and Probkevitz.

The jury returned a defense verdict of no negligence against Dixon. Probkevitz filed a motion for new trial, arguing that the trial court committed reversible error when it allowed the jury to consider the issue of her negligence on the verdict form in contradiction of the court’s previous ruling. She argued that the trial court’s ruling allowed Dixon to portray Probkevitz as a bad, uncaring mother, responsible for her own daughter’s death. The trial court denied Probkevitz’s motion and entered judgment consistent with the jury’s verdict.

II. Legal Analysis

The two main issues involved in this appeal are: (1) whether the trial court committed error when it permitted the introduction of evidence of Probkevitz’s negligence, and when it permitted the jury to apportion Probkevitz’s fault for the accident; and (2) whether the trial court abused its discretion when it refused to permit Probkevitz to introduce the deposition testimony of her expert witness Brill. We will address the merits of each of these issues.

We review the denial of a motion for new trial “de novo” when, as here, the basis for the denial of the motion involves an error of law. See State Farm Mut. Auto. Ins. Co. v. Williams, 943 So.2d 997, 999-1000 (Fla. 1st DCA 2006); Krolick v. Monroe, 909 So.2d 910, 913-14 (Fla. 2d DCA 2005).

a. The Defendants ’ Negligence Claim

Notwithstanding the issue of Prob-kevitz’s vicarious liability for her daughter’s negligence, there is no basis in this record to support a contribution claim against Probkevitz. The submission of Probkevitz’s negligence to the jury was therefore baseless.

On appeal, the defense argues that Probkevitz’s negligence argument is either a red herring, or that the submission of Probkevitz’s negligence claim to the jury was harmless error because the jury found no negligence on the part of Dixon on the verdict form, and the jury never reached the issue of Probkevitz’s negligence in another question. We disagree.

First, the record before us is devoid of any evidence of negligence on the part of Probkevitz. The uncontroverted testimony at trial established that: Prob-kevitz was asleep when Denise left the apartment; on the night of the accident, Probkevitz went to bed after dinner, and Denise and Laelani were still up; and Probkevitz discovered that Denise had left the apartment after a loud boom woke her. In addition, any evidence of previous instances of Denise’s driving with a restricted license in violation of the license restrictions, and Probkevitz’s knowledge of those driving instances, is irrelevant to show any negligence of Probkevitz on the night of the fatal crash. There is thus no negligence that could be attributed to Probkev-itz so as to establish that her failure to supervise Denise caused the accident or Denise’s death.

Furthermore, the negligence of Probkevitz, if any, was not so closely intertwined with any negligence of Dixon so as to provide a basis for the admission of Probkevitz’s negligence into evidence. “A remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.” See D'Amario v. Ford Motor Co., 806 So.2d 424, 436 (Fla.2001). See also Whitehead v. Linkous, 404 So.2d 377, 379 (Fla. 1st DCA 1981).

We believe that D’Amario, where the Florida Supreme Court ultimately decided that a “remote condition” was unduly emphasized at trial, is indistinguishable from the facts of this case. In D’Amario, a passenger filed suit against the automobile manufacturer whose automobile caused the passenger’s injuries. Id. at 428. The trial court in that case made several conflictive rulings.

The trial court in D’Amario ruled pretrial that it would exclude evidence of the alcohol consumption level of the driver on the day of the subject accident because the acts that led up to the collision were “not at issue.” The trial court, however, thereafter granted leave to assert a defense that a third party had caused the driver’s injuries. The parties subsequently stipulated to the jury the driver’s level of intoxication. The trial court permitted the driver’s name to appear on the verdict form for purposes of apportionment of fault. The jury returned a verdict of no fault on the part of the manufacturer. The plaintiff moved for a new trial. The trial court granted the motion, holding that the driver’s alcohol use was a “remote condition” that was unduly emphasized to the prejudice of the plaintiff. Id. at 429. The Second District reversed on appeal, but the Florida Supreme Court quashed the district court’s decision. Id. at 442.

Here, like in D’Amario, the trial court granted Probkevitz’s pre-trial motion that effectively removed the issue of Prob-kevitz’s negligence from the case. The trial court, however, permitted the introduction of Probkevitz’s negligence during the trial, and allowed the jury to consider the evidence. Specifically, the trial court allowed the introduction into evidence of Probkevitz’s knowledge of her daughter’s driving ability, and of Probkevitz’s daughter’s prior driving history without the presence of Probkevitz. The trial court thus, as in D’Amario, impermissibly allowed the introduction of Probkevitz’s negligence to prove causation. See Id. at 429; Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); Riedel v. Sheraton Bal Harbour Assoc., 806 So.2d 530 (Fla. 3d DCA 2001).

We cannot say, as Yelda Farms and Dixon suggest, that the trial court’s error was harmless because the jury never reached the question of Probkevitz’s negligence. Inadmissible evidence constitutes grounds for a new trial where the evidence likely results in jury confusion as to the issues and evidence considered. See Goldman v. Bernstein, 906 So.2d 1240, 1241 (Fla. 4th DCA 2005). A new trial is warranted whenever irrelevant, prejudicial evidence is improperly introduced. See Shaw v. Jain, 914 So.2d 458, 460-61 (Fla. 1st DCA 2005). The evidence of Probkev-itz’s negligence, as well as a question of her negligence on the verdict form, allowed the jury to base their determination of Dixon’s negligence on facts and circumstances irrelevant to his fault as a driver. This may have improperly confused the jury, influenced their thought process, and prejudiced Probkevitz.

b. Exclusion of Expert Testimony

We next turn to the issue of whether the trial court abused its discretion when it did not allow Probkevitz to introduce the deposition testimony of her expert witness Brill. We find no support for the trial court’s evidentiary ruling that disallowed the deposition testimony of this expert.

The law is clear that that the trial court has broad discretion when it allows a witness to testify as an expert. See Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla.1984). Under the circumstances of this case, however, the trial court’s decision to disallow the testimony of Brill is not entitled to the deference we normally afford a trial court’s evidentiary rulings.

Velda Farms and Dixon argue that it was entirely appropriate for the trial court to preclude the testimony of Brill because the testimony was cumulative in nature. It is permissible for the trial court to preclude a party from introducing cumulative testimony. See Rhodes v. Asplundh Tree Expert Co., 528 So.2d 459, 460 (Fla. 8d DCA 1988) (stating that there is no reversible error in the exclusion of rebuttal evidence that is cumulative in nature).

We disagree that the testimony of Brill was cumulative in nature. Brill’s testimony represented rebuttal testimony. Brill’s testimony would have directly contradicted the defense’s main case at the heart of which involved the crush analysis. Brill would have testified about: the appropriateness of the crush analysis the defense used, the displacement of the truck’s bumper, and the truck’s headlights. The crush analysis (of the decedent’s car) and the displacement of the truck’s bumper were the basis on which the defense argued that the truck was not speeding, and that the decedent ran the light at thirty miles per hour. Brill would have testified that the defense crush analysis was incorrect, and that the truck’s bumper deflection was not caused by the speed of the decedent’s car (as the defense argued). The question of whether the truck’s headlights were on (instead of the automatic daytime running lights) related to the question whether the truck was visible to the decedent before she pulled into the intersection. This evidence, as Probkevitz correctly argues, would have rebutted the testimony of the three defense experts. In fact, Velda Farms and Dixon do not dispute that Brill’s testimony would have rebutted their expert testimony. “[A] trial court abuses its discretion when it forbids the presentation of rebuttal evidence that negates the theory of defense.” See Gerber v. Iyengar, 725 So.2d 1181, 1185 (Fla. 3d DCA 1998).

Additionally, the trial court improperly allowed defense counsel to elicit the opinion testimony of Officer Fernandez that Denise failed to obey the flashing red signal. Officer Fernandez was the traffic homicide officer who investigated the accident. She properly testified as a fact witness regarding her observations, measurements, and the test results from her investigation. However, Officer Fernandez’s opinion that Denise violated the traffic signal, given over objection, was prejudicial error. See Spanagel v. Love, 585 So.2d 317 (Fla. 5th DCA 1991); Rosenfeld v. Johnson, 161 So.2d 703, 705 (Fla. 3d DCA 1964); see also Town of Palm Beach v. Palm Beach County, 460 So.2d at 882. “It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error which, in appropriate circumstances, will warrant a new trial.” Spanagel, 585 So.2d at 318. The officer’s testimony informed the jury in substance that, had Denise survived the accident, she would have been charged with a traffic violation. The objection to the question should have been sustained.

III. Conclusion

For these reasons, we conclude that the trial court erred when it allowed Dixon to introduce evidence of Probkevitz’s negligence and when it ultimately allowed the jury to consider her negligence. Furthermore, the trial court abused its discretion when it disallowed the introduction of the deposition testimony of expert witness Brill. Therefore, we reverse the denial of Probkevitz’s motion for new trial and remand the case for a new trial.

Reversed and remanded.

COPE, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

Under the circumstances of this case, in which I believe the evidence overwhelmingly supports the jury verdict that the defendant-driver was not negligent and that the only cause of the accident was the negligence of the decedent-driver, I disagree that there was either error or harm in the rulings criticized by the majority. I would affirm.


author: PER CURIAM.

text:
    Max FENELON, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-2982.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2009.
    Max Fenelon, pro se, Appellant.
    Bill McCollum, Attorney General, Kathleen Von Hoene, General Counsel, for Ap-pellee.
   PER CURIAM.

DISMISSED. Fla. R. Civ. P. 1.090(b) (providing that court may not extend the time for making a motion for rehearing); Surratt v. Freeman, 924 So.2d 905 (Fla. 1st DCA 2006) (distinguishing Newell v. Moore, 826 So.2d 1033 (Fla. 1st DCA 2002)); Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999) (rejecting argument for additional time to serve motion for rehearing when underlying order is served by mail).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    David PEREIRA, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1589.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2009.
    Rehearing Denied Oct. 27, 2009.

      David Pereira, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003).

TORPY, EVANDER and COHEN, JJ., concur.


text:
    Stephen H. GLAGOLA, et al., Appellants, v. STATE of Florida, CONSTRUCTION INDUSTRY LICENSING BOARD, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, et al., Appellees.
    No. 1D07-2868.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2009.
    Rehearing Denied Nov. 17, 2009.
    Stephen H. Glagola, pro se, Appellant.
    Bill McCollum, Attorney General; Gar-nett W. Chisenhall, Assistant Attorney General; and Ned Luczynski, General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    Lemuel L. COLE, Appellant, v. Walter McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-1469.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2009.
    Rehearing Denied Nov. 17, 2009.
    Lemuel L. Cole, pro se, Appellant.
    Bill McCollum, Attorney General and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Mobley v. McNeil, 989 So.2d 1215 (Fla. 1st DCA 2008).

KAHN, BROWNING and THOMAS, JJ., concur.


author: POLEN, J.

text:
    Frank ALSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1701.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 2009.
    Rehearing Denied Sept. 30, 2009.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

POLEN, J.

We deny appellee’s motion for rehearing, but correct some factual misstatements in our prior opinion and substitute the following for our slip opinion of July 8, 2009.

Appellant Frank Alsfield was charged by information with one count of sexual battery upon VH, a person older than twelve years of age, when she was physically helpless to resist. The State filed its notice of intent to offer evidence of other crimes, wrongs, or acts — namely, that Als-field had committed sexual battery upon another alleged victim, AM, in a similar manner. Upon that notice, the trial court held a Williams Rule hearing.

VH and Alsfield were in a pool league together at a local bar. On the night of the alleged sexual battery, Alsfield brought VH back to his house after VH became highly intoxicated. Because VH got sick from drinking, Alsfield placed VH in his bed, put a bucket next to her, and changed her shorts. When VH awoke, Alsfield was on top of her, penetrating her vagina with his penis. VH screamed, and Alsfield stopped. VH grabbed Alsfield’s cell phone from the nightstand and called a friend, then 911. Nothing further happened between Alsfield and VH that night.

AM testified she met Alsfield at the same bar where VH and Alsfield hung out. After Alsfield bought AM a few drinks, he invited her to his house for a movie and some Roxicodone. Once at his house, Als-field exposed himself to AM and tried to make her perform oral sex. AM blacked out at that point, but when she woke up, she was naked, and Alsfield was on top of her having intercourse with her. AM pushed him off, put on her clothes, and left the house. She eventually went to the hospital to have a rape kit done, and there, AM told the police that when she woke up at Alsfield’s house, he was lying next to her, not on top of her. She also did not make any allegations of unconsented oral sex or intercourse. Instead, AM signed a waiver of prosecution after the police determined that there were major inconsistencies in her story and that no basis for further investigation existed.

Detective Brent Black, who investigated both VH’s and AM’s cases, testified as to the similarities between the two cases. Both victims met Alsfield at the same local bar where he bought them the same alcoholic drinks. Both victims knew Alsfield before the night of the alleged sexual battery and were heavily intoxicated by the time they got to his house. They “passed out” for periods of time during the night and woke up to find Alsfield on top of them, engaged in sexual intercourse.

At the conclusion of the Williams Rule hearing, the trial court granted the State’s motion to introduce AM’s testimony at trial. The court found that the two episodes were sufficiently similar to rebut Alsfield’s defense of consent.

The trial testimony of VH and AM was substantially the same as their pretrial testimony. The jury found Alsfield guilty of sexual battery, but did not find that VH was physically helpless. The court adjudicated Alsfield and sentenced him to sixty months in the Department of Corrections, followed by ten years of sex offender probation.

“On the Williams Rule issue, the standard of review applicable to the consideration of whether evidence was properly admitted is abuse of discretion.” Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003) (citing Geldreich v. State, 763 So.2d 1114, 1116 (Fla. 4th DCA 1999)). The codification of the Williams Rule provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a) Fla. Stat. (2007); see also Williams v. State, 110 So.2d 654 (Fla.1959). And before admitting AM’s testimony against Alsfield, the trial court had to make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2)whether the probative value is substantially outweighed by any prejudice. See §§ 90.402, 90.408, 90.404(2), Fla. Stat. (2007).

In order to show materiality, the State must prove by clear and convincing evidence that the collateral act was actually committed by the defendant. Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994). In Audano, where an alleged victim of the defendant’s collateral offense told inconsistent stories, the court found that the clear and convincing standard had not been met. Id. at 1359. The authorities did not believe the alleged victim’s stories; the investigation ended without an arrest; and, thus, the alleged victim’s testimony was inadmissible. Id. The court reasoned that “[the alleged victim’s] stories do not yield the ‘firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’ ” Id. (quoting Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)).

Similarly, here, when AM was first interviewed by the police, she did not make an allegation of sexual battery against Alsfield. She told the police that when she woke up in Alsfield’s bed, he was lying next to her, not on top of her, and she never mentioned that they engaged in sexual intercourse. She also could not remember whether Alsfield forced her to perform oral sex and never mentioned that to the police. Later, AM told the police that Alsfield was on top of her and acknowledged that there were inconsistencies in her story. Although Alsfield was arrested and charged for the allegations made by AM, AM wished to “move on” and signed a waiver of prosecution. The case was ultimately disposed.

Based on those facts, AM’s altered accusations of sexual battery failed to “yield the ‘firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’ ” Audano, 641 So.2d at 1359 (citing Slomowitz, 429 So.2d at 800). The State, in other words, did not prove by clear and convincing evidence that Alsfield committed sexual battery against AM. Thus, it was error for the trial court to admit AM’s testimony as relevant to prove Alsfield’s guilt in this case.

We reverse and remand for a new trial.

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

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Eric M. PRESSLEY, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and James Witt, Warden, Mayo Correctional Institution, Lafayette County, Florida, Appellees.
    No. 1D09-2679.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2009.
    Rehearing Denied Nov. 17, 2009.
    Eric M. Pressley, pro se, Appellant.

      Kathleen Von Hoene, General Counsel, Bill McCollum, Attorney General, and Giselle D. Lylen and Brooke Poland, Assistant Attorneys General, for Appellees.
   PER CURIAM.

DISMISSED. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999) (rejecting argument for additional time to serve motion for rehearing when underlying order is served by mail).

BROWNING, ROBERTS and CLARK, JJ., concur.


text:
    A. DUDA AND SONS, INC., Appellant, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellee.
    No. 5D08-2269.
    District Court of Appeal of Florida, Fifth District.
    Oct. 2, 2009.
    Rehearing Denied Dec. 1, 2009.
    Kenneth G. Oertel and M. Christopher Bryant, of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant.
    William H. Congdon, Deputy General Counsel, Palatka, for Appellee.
   PER CURIAM.

A. Duda and Sons, Inc., (“Duda”), appeals from a final order of the St. Johns River Water Management District, (“District”), adopting the recommended order of an administrative law judge, (“ALJ”), of the Division of Administrative Hearings, who agreed with the District’s staff position that Duda should be required to apply for necessary after-the-fact permits for certain enforcement ditches. We affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion, and with our opinion in A. Duda, and Sons, Inc. v. St. Johns River Water Management District, 17 So.3d 738 (Fla. 5th DCA 2009) (“Duda I”).

The relevant factual history is explained in Duda I. In that case, Duda challenged the District’s rules and policies interpreting the agricultural exemption contained in section 373.406(2), Florida Statutes. The panel in Duda I agreed, in part, that the District had incorrectly interpreted the statute. In this case, the ALJ applied the now-invalidated statutory interpretation to determine that Duda did not qualify for the agricultural exemption. Accordingly, this matter must be remanded for additional fact-finding so that the agricultural exemption can be applied consistently with the statute as explained in Duda I.

However, Duda I did not address the interplay between section 373.406(2) and language from the Warren S. Henderson Wetlands Protection Act, chapter 84-79, Laws of Florida, now codified at sections 403.927(2) & (4)(a), Florida Statutes. Those provisions virtually eliminate the agricultural exemption as it applies to alterations impacting wetlands. Under section 403.927, agricultural activities that impede or divert the flow of surface waters even incidentally are not exempt from regulation if they impact wetlands. Id. In the order on appeal, the District found that Duda’s enforcement ditches impacted at least 500 acres of wetlands, a finding clearly supported by competent, substantial evidence. Accordingly, it appears that the District’s ultimate conclusion that Duda must either restore the impacted wetlands or apply for after-the-fact permits is correct at least with respect to that portion of the ditch system impacting wetlands.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR ADDITIONAL PROCEEDINGS.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Duda reads a portion of the final order as determining that the "predominant purpose” of the enforcement ditches is to control groundwater (as the term "predominant” is defined in Duda I). If true, this would preclude application of the agricultural exemption with respect to any ditch not impacting wetlands. However, the findings referenced by Duda in support of this argument appear to us to be discussing Duda's subjective reason for digging the ditches, which is irrelevant to the statutory analysis, as explained in Duda I.

      . To aid the parties on remand, we note that we find no merit to Duda's arguments that the ALJ applied an incorrect evidentiary standard or improperly shifted the burden of proof. We also reject Duda’s arguments relating to various legal defenses raised as a bar to the District's enforcement action.