author: WETHERELL, J.

text:
    Ivan A. BOLANOS, Appellant, v. WORKFORCE ALLIANCE and Am-Comp/Pinnacle and Arbor Education & Training/Rescare and Specialty Risk Services, Appellees.
    No. 1D09-0183.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2009.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., West Palm Beach, and Ethan Wayne of Gonzalez & Garcia, West Palm Beach, for Appellant.
    Marissa M. Hoffman of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellees Workforce Alliance and Am-Comp/Pinnacle; Marybell Rajo of Pyszka, Blackmon, Levy Mowers & Kelley, Ft. Lauderdale, for Appellees Arbor Education & Training/Rescare and Specialty Risk Services.
   WETHERELL, J.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in dismissing his petition for benefits on the ground that Appellees were not his “employer.” For the following reasons, we affirm.

On July 26, 2006, Claimant went to the Workforce Alliance Career Center (the Center) for help in finding a job. The Center was operated by Workforce Alliance (Workforce), a non-profit organization created pursuant to the Workforce Investment Act of 1998. Arbor Education & Training/Rescare (Arbor) was the direct service provider responsible for administering the job assistance services provided at the Center. The Center is federally funded; there are no fees charged to the employees and employers that use its services.

Claimant, who had 12 years of prior experience as a tree-trimmer, spoke to “a lady” at the Center who told him, “I have a job for you.” The lady called a phone number and spoke to someone identified in the record only as “Lewis.” Claimant then spoke with Lewis and agreed to meet him at a local gas station later that day. Claimant met with Lewis at the gas station and discussed a tree-trimming job for which Lewis was to pay him $16.00 per hour. Claimant started working for Lewis that same day, and after about four hours on the job, Claimant was injured when he fell from a tree that he was trimming.

Claimant concedes that he does not have a traditional employer/employee relationship with either Workforce or Arbor. Instead, he argues that section 440.02(16)(a) defines “employer” to include “employment agencies, employee leasing companies, and similar agents who provide employees to other persons,” and that Ap-pellees are his “employer” because they are “similar agents” under the statute.

The language Claimant relies on was added to the statute in 2003. See Ch. 2003^112, § 2, at 3871, Laws of Fla. It has not been construed; thus, this case presents an issue of first impression. Review of the JCC’s interpretation of this statute is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004).

Chapter 440 does not define “similar agents,” but its meaning can be gleaned from the terms that precede it — “employment agency” and “employee leasing company” — under the statutory construction doctrines of noscitur a sociis and ejusdem generis. Thus, to determine whether Workforce and Arbor are “similar agents,” we first must interpret the terms “employment agency” and “employee leasing company.”

Chapter 440 does not define “employment agency” or “employee leasing company.” Absent a statutory definition, it is appropriate to resort to dictionaries to interpret these terms in accordance with their plain and ordinary meanings. See Morris v. C.A. Meyer Paving & Constr., 516 So.2d 302, 304 (Fla. 1st DCA 1987) (adopting dictionary definitions of “amputation” where term not defined in statute).

Webster’s Dictionary defines “employment agency” as “an agency whose business it is to find jobs for those seeking them or people to fill jobs that are open.” Webster’s Third New Int’l Dictionary 743 (1967), available at www.merriam-webster. com/dictionary/employment% 20agency. Black’s Law Dictionary defines “employment agency” as a “[bjusiness that procures, for a fee, employment for others and employees for employers. Whether the employer or the employee pays the fee depends on the terms of the agreement.” Black’s Law Dictionary 525 (8th ed. 1999). These definitions contemplate a financial arrangement between either the agency and the employer or the agency and the employee.

We have been unable to find a dictionary definition of “employee leasing company.” However, employee leasing companies are regulated in sections 468.520-.535, Florida Statutes, which define such a company as being “engaged in” an arrangement “whereby a leasing company assigns its employees to a client and allocates the direction of and control over the leased employees between the leasing company and the client.” §§ 468.520(4), (5), Fla. Stat. (2006) (emphasis added). This definition contemplates the assignment of the company’s own employees to another employer.

It follows from these definitions that the key features needed to be a “similar agent” under section 440.02(16)(a) include a financial arrangement between the agency and either the end employer/client or the employee, as seen in employment agencies, or the use of the entity’s own employees by the end employer/client, as seen in employee leasing companies. Here, neither Workforce nor Arbor has the requisite features to be considered a “similar agent.”

First, it is undisputed that neither Workforce nor Arbor is paid by the people for whom it helps to find jobs or the entities with which they place jobseekers. Second, it is undisputed that Claimant was not an employee of either Workforce or Arbor in that he was not paid by either entity, and neither Workforce nor Arbor had any control over the terms and conditions of the ultimate employment relationship between the Claimant and Lewis, nor did they receive any direct benefits from the work that Claimant was doing for Lewis.

Claimant argues that “similar agent” should include any labor exchange program that plays a role in matching employers and employees. However, this broad conception would likely impose workers’ compensation Lability on organizations that oversee job fairs, universities that assist businesses with on-campus interviews, and public websites that provide access to job postings. Surely this was not the legislature’s intent. See Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007) (refusing to interpret a provision of chapter 440 in a manner that would lead to an absurd result not intended by the legislature).

For these reasons, we affirm the JCC’s order.

AFFIRMED.

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

      . The term "employment agency" is defined elsewhere in the Florida Statutes. Chapter 112 defines the term as "any person ... regularly undertaking, with or without compensation, to procure employees for an employer, including state and local employment services receiving federal assistance,” and chapter 760 defines the term as "any person regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer, and includes an agent of such a person.” §§ 112.044(2)(b), 760.02(8), Fla. Stat. (2006). The legislative goals of those chapters, however, differ so much from the legislative goals of chapter 440 that we cannot import these definitions into chapter 440. Compare § 112.044(1), Fla. Stat. (2006) (stating the legislative intent is “to promote employment of older persons based on ability rather than age and to prohibit arbitrary age discrimination in employment”) and § 760.01(2), Fla. Stat. (2006) (stating the legislative intent is "to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status”) with § 440.015, Fla. Stat. (2006) (stating the legislative intent is "to ensure the prompt delivery of benefits to the injured worker,” and "not [to construe workers' compensation laws] liberally in favor of either employee or employer”).

      . We recognize that a report prepared by Senate staff shortly after the 2003 amendments were enacted recommended that the legislature "delete the amendments to s. 440.02(16)(a), F.S.” because of concerns that the inclusion of employment agencies and "similar agents” within the definition of employer "may have a broader sweep than intended.” See Review of the 2003 Workers’ Compensation Act, Senate Interim Project Report No. 2004-110 (Dec. 2003). The fact that the legislature apparently failed to act on this recommendation is not, as Claimant argues, an indication that the legislature intended the phrase “similar agents who provide employees to other persons” to broadly apply to entities such as Workforce and Arbor. While legislative inaction can be viewed as an acceptance of a prior judicial construction of a statute, see B & L Services, Inc. v. Coach USA, 791 So.2d 1138, 1142 (Fla. 1st DCA 2001), the statutory language at issue in this case has not been judicially construed, and "[legislative] inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction.” Central Bank of Denver N.A. v. First Interstate Bank of Denver N.A., 511 U.S. 164, 187, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sidney MARTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4974.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2009.
    Sidney Marts, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as premature. See Johnson v. State, 871 So.2d 294 (Fla. 1st DCA 2004).

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


text:
    Aqeel Waleed BARUTI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3765.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2009.
    Rehearing Denied Dec. 16, 2009.
    Aqeel Waleed Baruti, pro se, Petitioner.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: COPE, J.

text:
    SKYLAKE INSURANCE AGENCY, INC., Appellant, v. NMB PLAZA, LLC, Appellee.
    No. 3D07-454.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Rehearing Denied Dec. 28, 2009.

      Scott Alan Orth, Miami Shores, for appellant.
    Bennett G. Feldman, Miami, for appel-lee.
    Brigham Moore and John W. Little, III, West Palm Beach; Goldman, Felcoski & Stone and Robert W. Goldman, Naples, for amicus curiae, The Real Property, Probate & Trust Law Section of The Florida Bar.
    Before RAMIREZ, C.J. and COPE and SALTER, JJ.
   On Rehearing

COPE, J.

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

This is an appeal of a summary final judgment in a commercial landlord-tenant dispute. The question is whether the commercial ten-year lease in this case is enforceable by specific performance, and if not, whether the tenant has a cause of action for damages.

I.

The landlord, NMB Plaza, LLC, is the developer of an office building in North Miami Beach, Florida. While the building was under construction, the landlord signed a ten-year lease with the tenant, Skylake Insurance Agency, Inc. The tenant’s occupancy was to begin ninety days after completion of the building.

There was a written lease which was signed on behalf of the landlord by a member of NMB Plaza, LLC, and on behalf of the tenant by the president and vice president of Skylake Insurance Agency, Inc. There were no witnesses to any of the signatures.

As the building neared completion, the landlord repudiated the lease because there were no witnesses to the signatures. The tenant brought an action for specific performance of the lease and made an alternative claim for damages for fraud. The trial court entered summary judgment for the landlord, and the tenant has appealed.

II.

The first question to be addressed is whether the trial court erred by holding the lease to be unenforceable because of the lack of witness signatures on the lease. The tenant maintains that the lease satisfies the statute of frauds, see § 725.01, Fla. Stat. (2003), because the landlord signed it. The tenant argues that since the statute of frauds has been satisfied, the lease is enforceable.

The landlord counters that for a lease of more than one year, there must be a “writing, signed in the presence of two subscribing witnesses by the party ... granting ... such ... term of more than 1 year....” § 689.01, Fla. Stat. (2003).

689.01 How real estate conveyed. — No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party's agent thereunto lawfully authorized, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to or out of any messuages, lands, tenements or heredita-ments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s agent thereunto lawfully authorized, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may convey in accordance with the provisions of this section or in accordance with the provisions of ss. 692.01 and 692.02.

Under its plain language, section 689.01 is applicable to a conveyance of real estate, including a lease of more than a year. See Fla. Women’s Med. Clinic, Inc. v. Sultan, 656 So.2d 931, 938 (Fla. 4th DCA 1995); Burch v. Brinkley, 382 So.2d 440, 441 (Fla. 1st DCA 1980); Tino v. Outdoor Media, Inc., 242 So.2d 196 (Fla. 3d DCA 1970); 34 Fla. Jur. 2d Landlord and Tenant § 32 (2007).

The tenant points out, however, that there is an exception. The last sentence of section 689.01 states, “Corporations may convey in accordance with the provisions of this section or in accordance with the provisions of ss. 692.01 and 692.02.” Sections 692.01 and 692.02 govern conveyances by corporations. The tenant’s reliance on those statutory provisions is misplaced, because the landlord is not a corporation but is instead a limited liability company under the Florida Limited Liability Company Act, chapter 608, Florida Statutes (2003) (“the Act,” or “chapter 608”).

The next question we consider is whether the lease is exempt from the two-witness requirement of section 689.01 because the lease was executed in accordance with requirements of the Act. The Act contains its own provisions regarding the disposition of limited liability company property, including real estate. “Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company, if they are executed in accordance with this chapter [608].” § 608.425(3), Fla. Stat. (2003). A lease qualifies as a “disposition” of property of the limited liability company.

Section 608.4235 addresses the authority of limited liability company members, managing members, and managers. Subsection (3) provides;

(3) Unless the articles of organization or operating agreement limit the authority of a member, any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the limited liability company’s interest in real property. The instrument is conclusive in favor of a person who gives value without knowledge of the lack of the authority of the person signing and delivering the instrument.

(Emphasis added). Chapter 608 does not require that the signature be witnessed.

The lease bears the signature of Eli Hadad on behalf of NMB Plaza, LLC as lessor. The lessor’s answer admits that the lease was signed and raises no claim that the lessor’s signature was unauthorized. The lease was therefore executed in compliance with chapter 608.

The question, then, is whether the lease must also comply with the two-witness requirement of section 689.01. In accordance with the views of the Real Property, Probate & Trust Law Section of The Florida Bar as amicus curiae, we hold that the answer is yes.

It is amicus’ view that section 608.4235 spells out who may execute an instrument conveying real property on behalf of a limited liability company. This part of chapter 608 explains which signatures third parties can rely on to convey a limited liability company’s interest in real estate.

Section 689.01, by contrast, governs conveyancing of real estate and imposes the two-witness requirement. The only express exception to section 689.01 is for corporate conveyances made in accordance with sections 692.01 and 692.02, Florida Statutes. There is no exception for limited liability companies. Section 689.01 was therefore applicable here. See DGG Dev. Corp. v. Estate of Capponi, 983 So.2d 1232, 1233-34 (Fla. 5th DCA 2008).

III.

The next question we address is whether the landlord should be estopped from relying on the two-witness rule of section 689.01 because the landlord drafted the lease, failed to provide signature lines for the landlord’s signature, and failed to have Mr. Hadad’s signature witnessed when Mr. Hadad signed the document. Amicus explains that under some circumstances, estoppel will be applied to preclude a party from invoking section 689.01. In the decided estoppel cases involving leases, the tenant took possession and the landlord accepted the rent. The Florida Supreme Court said in one such case that the lessors were

estopped from contending that the lease here involved is invalid for the reason that it was executed in the presence of only one subscribing witness.... [The lessors] have accepted benefits under the lease, have placed the lessee in possession, have negotiated to convey the lands subject to the lease, and in an all respects have recognized it as being an effective conveyance, and in equity they ought not to be permitted to disavow it now.

Gill v. Livingston, 158 Fla. 577, 29 So.2d 631, 632 (1947); Taylor v. Rosman, 312 So.2d 239, 241 (Fla. 3d DCA 1975); Arvan-etes v. Gilbert, 143 So.2d 825, 826 (Fla. 3d DCA 1962); Lipkin v. Bonita Garden Apartments, Inc., 122 So.2d 623, 624 (Fla. 3d DCA 1960).

Amicus argues, and we agree, that the bare failure of the landlord to have his signature witnessed does not give rise to an estoppel, because to so hold would in effect render section 689.01 unenforceable. For an estoppel to operate, the tenant must have changed position in more than an insubstantial way. No such facts have been shown here.

Accordingly, we affirm that part of the trial court’s order which denied specific performance because of the lack of two-witness signatures under section 689.01.

IV.

The tenant pled alternative claims for damages for breach of contract and fraud. The trial court entered summary judgment dismissing those claims on the theory that they were barred as a matter of law. We reverse this part of the summary judgment.

Turning first to the breach of contract claim, the parties entered into a fifteen-page lease which (a) spelled out the terms of the parties’ agreement and (b) was intended to operate as a conveyance of an interest in the leased premises for ten years. The lease complies with the requirements of the statute of frauds. See § 725.01, Fla. Stat. (2003). However, it fails as a conveyance of an interest in real estate because of the lack of witness signatures as required by section 689.01.

Amicus states that “under certain circumstances, courts have allowed a party to pursue a claim involving a lease or deed that was defective under section 689.01, if the document otherwise complied with the requirements of section 725.01.” That is the situation here.

The Florida Supreme Court considered a comparable case in which a lease did not comply with the two-witness requirement. The Court said, “While the lease attested by only one witness was not effectual as an executed conveyance of the term, it was effectual as a contract to lease....” Reed v. Moore, 91 Fla. 900, 109 So. 86, 88 (1926).

Under the logic of Reed, the tenant may pursue its breach of contract claim against the landlord. The landlord drafted the lease and signed it, but failed to have his signature witnessed by two witnesses. He could have cured this deficiency at any time, but failed to do so, instead relying on the absence of witness signatures to disavow the contract. The landlord will not be allowed to profit from its own wrong. See Cabrerizo v. Fortune Int’l Realty, 760 So.2d 228, 229 (Fla. 3d DCA 2000). Stated differently, the landlord breached the implied covenant of good faith and fair dealing. See Speedway SuperAmerica, LLC v. Tropic Enter., Inc., 966 So.2d 1, 5 (Fla. 2d DCA 2007).

The landlord argued, and the trial court agreed, that the tenant’s breach of contract claim (as well as the tenant’s fraud claim) were barred as a matter of law. The landlord relied on Khawly v. Reboul, 488 So.2d 856 (Fla. 3d DCA 1986). That case is not on point, because it involves a contract barred by the statute of frauds. Id. at 857. In that case the parties entered into an oral agreement to go into a business together, an agreement which was to extend well beyond one year. That being so, the agreement was barred by the statute of frauds. Id. at 858. This court concluded that the plaintiffs claims for breach of contract and fraud were both barred by the statute of frauds. Id. at 857 n. 1, 859. That case has no application here, because in this case there is no violation of the statute of frauds.

The landlord also relied on Hertz v. Salman, 718 So.2d 942 (Fla. 3d DCA 1998). That case likewise was decided under the statute of frauds and is inapplicable here.

The landlord argues alternatively that we should affirm the summary judgment on the fraud claim because as pled, the fraud count fails to state a cause of action. That claim should be ruled on in the first instance by the trial court on remand.

For the stated reasons, we affirm the summary judgment insofar as it denied specific performance of the lease. We reverse the summary judgment insofar as it denied the claims for damages.

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

      . The statute states, in its entirely:

      . The Court expresses its appreciation to the Section for submission of its amicus brief.


text:
    Timothy W. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0585.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2009.
    Timothy W. Campbell, pro se, Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. McFadden v. State, 711 So.2d 1350 (Fla. 1st DCA 1998).

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


author: WALLACE, Judge.

text:
    ON TARGET, INC., Appellant, v. ALLSTATE FLORIDIAN INSURANCE COMPANY, as Subrogee of Anthony and Nancy Podorski; and Anthony Podorski, Appellees.
    No. 2D08-4887.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 2009.

      William H. Drumm and Mark C. Dun-gan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
    Eddy R. Resnick of Resnick & Serrano, P.A., Wesley Chapel, for Appellees.
   WALLACE, Judge.

In a third-party action for contractual indemnity against its former customer, a leak detection service sought the recovery of the attorney’s fees and costs that it incurred in defending the underlying lawsuit brought by the customer’s homeowner’s insurance carrier. The circuit court refused to award the requested attorney’s fees and costs, ruling that the language in the indemnification provision contained in the parties’ contract was so vague and ambiguous that it was unenforceable. The leak detection service appeals. Because we find the pertinent language of the indemnification provision to be clear and unequivocal, we reverse.

I. THE FACTS

On Target, Inc., operates a leak detection service. Technicians employed by On Target use specialized equipment and techniques to detect water leaks with a high degree of accuracy. As part of their service, On Target technicians may also expose a leaking pipe and make a temporary repair. A plumber makes the permanent repair to the pipe.

In April 2005, Anthony Podorski and Nancy Podorski, his wife, experienced a leak under the floor of their residence in Sarasota County. Mr. Podorski contacted On Target to address the problem. An On Target technician responded and presented Mr. Podorski with a two-page form titled “Customer Information Card and authorization to proceed with the work.” In addition to authorizing On Target to proceed with the job, the Customer Information Card provided general information about the nature and extent of the services provided by On Target. The Customer Information Card also included the following pertinent paragraph, which contains the indemnification provision at issue in this case:

In the process of locating your leak, furniture may need to be moved; carpet may need to be cut and rolled back; tiles or linoleum may need to be lifted and/or other non-tech tasks performed including excavations. If requested and attempted, On Target Technicians will use due care to accomplish these chores, HOWEVER On Target Inc and On Target Technicians shall not be responsible for any damage whatsoever, actual or perceived, which may result from any locating procedures. If the first locate is incorrect, the Technician will return for a relocate. Property owner, tenant and/or guardian hereby agrees to hold harmless On Target Inc and On Target Technicians absolutely in this regard and to defend same in any action which may develop pursuant to any of these activities.

(Bolding in original.)

Mr. Podorski signed the Customer Information Card to authorize the work, and he left the residence. The On Target technician located the leak, made a hole through a single floor tile and into the slab, and performed a temporary repair of the leaking pipe. Upon the completion of On Target’s work and the permanent repair by a plumber, Mr. and Mrs. Podorski were unable to locate a matching tile to replace the single tile that On Target had damaged in the course of its work. The damaged tile was located in the residence’s foyer.

Mr. and Mrs. Podorski filed a claim with their homeowner’s insurance carrier, Allstate Floridian Insurance Company, for the damaged floor. Instead of insisting on more limited repairs to the flooring, Allstate approved the replacement of all of the tile in the Podorski residence at a cost of $17,290. Allstate subsequently demanded reimbursement of this sum from On Target, and On Target denied liability.

II.THE PROCEEDINGS IN THE CIRCUIT COURT

Allstate, as subrogee of Mr. and Mrs. Podorski, filed an action against On Target for breach of contract. On Target answered Allstate’s complaint and filed a third-party complaint against Mr. Podorski for indemnification. Mr. Podorski moved to dismiss On Target’s third-party complaint for failure to state a cause of action. When the circuit court denied Mr. Podor-ski’s motion to dismiss the third-party complaint, Allstate filed a notice dismissing its action against On Target.

Next, On Target sought the recovery from Mr. Podorski of its fees and costs for defending Allstate’s subrogation action. On Target based its request for fees on the indemnification provision in the Customer Information Card. After a hearing, the circuit court refused to award On Target its attorney’s fees and costs. The circuit court reasoned that “the vague and ambiguous language on the Customer Information Card renders any intended indemnification unenforceable.” In support of its ruling, the circuit court relied on the decision in Cox Cable Corp. v. Gulf Power Co., 591 So.2d 627 (Fla.1992).

III. THE STANDARD OF REVIEW

On Target does not address the question of the applicable standard of review. Allstate suggests that the circuit court’s decision is a discretionary one that should be reviewed for abuse of discretion. We disagree with Allstate. The circuit court’s ruling turns on its interpretation of the contract between On Target and Mr. Podorski. “[A] decision interpreting a contract presents an issue of law that is reviewable by the de novo standard of review.” Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999) (citing Inter-Active Servs., Inc. v. Heathrow Master Ass’n, 721 So.2d 433 (Fla. 5th DCA 1998)).

IV. THE PERTINENT CASE LAW

The circuit court ruled that the indemnification provision contained in the Customer Information Card was unenforceable against Mr. Podorski because it was vague and ambiguous. The circuit court relied on the Cox Cable Corp. decision in support of its ruling. In the Cox Cable Corp. case, the contractual language under review was as follows:

Licensee [Cox] shall indemnify, protect and save the Licensor [Gulf] forever harmless from and against any and all claims and demands for damages to property and injury or death to any persons including, but not restricted to, employees of Licensee and employees of any contractor or sub-contractor performing work for Licensee ... which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments....

591 So.2d at 629 (alterations in original). The Supreme Court of Florida held that this language was insufficient to require Cox Cable to provide indemnity to Gulf Power against the consequences of its own negligence even if Cox Cable and Gulf Power were found to be joint tortfeasors. Id. The court explained “that indemnity contracts which -attempt to indemnify a party against its own wrongful conduct will be enforced ‘only if they express an intent to indemnify against the indemnitee’s own wrongful acts in clear and unequivocal terms.’ ” Id. (quoting Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487, 489 (Fla.1979)).

Several reported Florida decisions analyze comparable indemnification clauses and find them insufficient to require the indemnitor to indemnify the indemnitee against the consequences of its own wrongful conduct. A brief review of a few examples of these cases will help place this case in perspective.

In University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507, 508-09 (Fla.1973), the indemnification clause provided:

Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life in and about the demised premises.

In Steiuart, the Supreme Court of Florida held that the general language of the tenant’s agreement to indemnify the landlord “against any and all claims” was insufficient to require the tenant to indemnify the landlord against the consequences of its sole negligence. Id. at 511. The court explained that “the use of the general terms ‘indemnify ... against any and all claims’ does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee.” Id. (alteration in original).

In Florida Power & Light Co. v. Elmore, 189 So.2d 522, 523 (Fla. 3d DCA 1966), the pertinent provision for indemnification said:

Contractor ... agrees to hold the Company free and unharmed against any liabilities whatsoever resulting in connection with performance of the described work by Contractor or its employees.

Affirming the trial court’s judgment in favor of the defendant indemnitor, the Third District concluded that “[t]he trial court was eminently correct in holding that the contract did not indemnify the indemnitee against losses resulting from its own negligence.” Id.

Finally, in Gulf Oil Corp. v. Atlantic Coast Line Railroad Co., 196 So.2d 456, 457 (Fla. 2d DCA 1967), the indemnity clause read:

That Licensee (plaintiff) shall and will at all times indemnify and save harmless the Licensors, their successors and assigns, from, and will pay and discharge all loss, costs, expense and damage to persons or property resulting from or in any manner connected with the laying, maintenance, operation or presence of said pipe lines or contents thereof on the premises of the Licensors or the removal of said pipe lines therefrom.

After reviewing the case law, this court concluded “that in order for an indemnity clause or contract to indemnify against an indemnitee’s own negligence, the clause or contract must expressly state that such liability is undertaken by the indemnitor.” Id. at 459. Because the language in the indemnification clause at issue in Gulf Oil Corp. did not contain any reference to indemnifying against the indemnitee’s negligence, this court held that the trial court erred in finding that the clause was sufficient to require the indemnitor to indemnify the indemnitees against the consequences of their own negligence. Id.

V. TWO PRELIMINARY MATTERS

Before proceeding to a discussion of the merits, we note two preliminary matters. First, Cox Cable Corp. and the other cases discussed above involved actions against indemnitors by indemnitees seeking to be indemnified against the consequences of their own negligence. Here, Allstate sued On Target for an alleged breach of contract, not negligence. Allstate claimed that On Target had breached its contract with Mr. Podorski by not obtaining his consent before drilling through the tile and into the slab. In its defense, On Target alleged that Mr. Podorski had expressly authorized it to perform the work necessary to detect and patch the leaky pipe.

The parties do not address the distinction between this case and Cox Cable Corp. and the other cases they discuss in their briefs. However, Allstate’s complaint could be interpreted as an attempt to plead an intentional tort based on On Target’s alleged failure to obtain the homeowners’ consent before employing destructive measures to detect and repair the leaky pipe. Viewed in this light, Allstate’s complaint does portray On Target’s conduct as “wrongful.”

Second, the question of whether Mr. Po-dorski actually authorized On Target to drill through the tile and into the slab has never been resolved. Of course, Allstate’s dismissal of its complaint made the resolution of that issue in the main action unnecessary. After Allstate had dismissed its complaint, On Target’s claims in the third-party action against Mr. Podorski became limited to the recovery of attorney’s fees and costs. Perhaps for this reason, the circuit court appears to have treated the hearing on On Target’s request for its reasonable attorney’s fees and costs as a final hearing on the third-party complaint as a whole.

Neither of the parties presented any evidence at the hearing which resulted in the order under review. The circuit court’s reliance in its order on the Cox Cable Corp. case suggests that it viewed On Target’s conduct as in some sense “wrongful.” However, the circuit did not make any finding on the question of whether Mr. Podorski authorized On Target to employ destructive measures to detect and repair the leaky pipe. Because we conclude that the indemnification provision in the Customer Information Card was sufficient to require Mr. Podorski to indemnify On Target against the loss arising from Allstate’s lawsuit, we may dispose of this case without addressing this unresolved issue any further.

VI. DISCUSSION

The indemnification language from the pertinent paragraph contained in the Customer Information Card states:

On Target Inc and On Target Technicians shall not be responsible for any damage whatsoever, actual or perceived, which may result from any locating procedures. ... Property owner, tenant and/or guardian hereby agrees to hold harmless On Target Inc and On Target Technicians absolutely in this regard and to defend same in any action which may develop pursuant to any of these activities.

This language immediately follows a general description of the types of activities that may be undertaken on the premises by On Target to detect and repair a leaky pipe.

There is a significant difference between the indemnification provision that appears in On Target’s Customer Information Card and the indemnification provisions at issue in Cox Cable Corp. and the other cases discussed above. In Cox Cable Corp. and the other cases, the courts found the indemnification provisions insufficient to require the indemnitor to indemnify the in-demnitee against its negligent acts because of the lack of “language specifically designating indemnification against one’s own negligence.” Gulf Oil Corp., 196 So.2d at 459. Here, the final sentence of the indemnification provision includes the phrase “in this regard” and identifies On Target and its technicians as the indemnitees. Thus the owner agrees to hold harmless On Target and its technicians only to the extent that “any locating procedures” undertaken by them cause damage to the owner’s property. This language is much more specific than the phrase “any liabilities whatsoever resulting in connection with performance of the described work” at issue in Elmore or the extremely broad indemnification against loss of property or life regardless of cause considered in Stewart or the similarly broad language under review in Cox Cable Corp.

To state the point differently, the indemnification provision in On Target’s Customer Information Card puts the owner of the residence or other structure on notice that the locating procedure may cause limited damage to the property and that On Target cannot be held liable for damage caused by it in performing the work that it was hired to do. The owner’s agreement to hold On Target harmless relates solely to the scope of the work and, within that parameter, requires the owner to indemnify against On Target’s “own wrongful acts,” i.e., damage caused by the locating procedure, “in clear and unequivocal terms.” See Cox Cable Corp., 591 So.2d at 629.

Because Allstate’s complaint sought damages caused by the locating procedures, the indemnity clause was applicable to On Target’s defense of the lawsuit. Accordingly, On Target “is entitled to recover, as part of [its] damages, reasonable attorney’s fees, and reasonable and proper legal costs and expenses, which [it] is compelled to pay as the result of suits by or against [it] in reference to the matter against which [it] is indemnified.” Ins. Co. of N. Am. v. King, 340 So.2d 1175, 1176 (Fla. 4th DCA 1976) (citing Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962)); see also Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So.2d 836, 839 (Fla. 2d DCA 1969); Am. & Foreign Ins. Co. v. Avis Rent-A-Car Sys., Inc., 401 So.2d 855, 858 (Fla. 1st DCA 1981).

VII. CONCLUSION

For the foregoing reasons, the circuit court erred in failing to award On Target its attorney’s fees and costs. Accordingly, we reverse the circuit court’s order and remand this case for the circuit court to determine and award On Target its reasonable attorney’s fees and costs incurred in defending Allstate’s action against it.

Reversed and remanded with directions.

LaROSE and CRENSHAW, JJ., Concur.

      . There has never been an evidentiary hearing in this case. The facts are taken from the circuit court's order and the pleadings and motions filed by the parties in the court below.

      . The parties have not provided us with a transcript of this hearing.

      . This language appears in bold print on the Customer Information Card.


author: THOMAS, J.

text:
    Adrian MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2786.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Adrian Mills, pro se, Appellant.

      Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we affirm.

In 2005, Appellant was convicted of aggravated assault and possession of a firearm by a convicted felon. Appellant was sentenced to consecutive terms of 10 years’ imprisonment as an habitual felony offender (HFO) on the charge of aggravated assault and 15 years’ imprisonment (non-HFO) on the charge of possession of a firearm by a convicted felon. Appellant alleges that his consecutive HFO and non-HFO sentences are illegal because the crimes occurred during a single criminal episode. See Hale v. State, 630 So.2d 521 (Fla.1993) (holding that the trial court lacked discretion to impose consecutive enhanced maximum sentences under the HVFO statute for offenses arising out of the same criminal episode).

The trial court properly denied Appellant’s motion. Although there is no ban on filing successive 3.800(a) motions, collateral estoppel prohibits a defendant from raising the same illegal sentencing claim which has already been raised in a prior postconviction motion and decided on the merits. See State v. McBride, 848 So.2d 287, 290 (Fla.2003). Here, the record attachments indicate that Appellant previously raised this identical issue in a postconviction motion and the claim was denied on the merits. Thus, the trial court properly denied the motion on the ground of collateral estoppel.

Additionally, Appellant’s motion fails on the merits. Appellant relies on Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004), where the defendant was convicted of two third-degree felonies arising from the same episode. The trial court imposed a sentence of 10 years’ imprisonment as an HFO on one count and a non-HFO sentence of 2 years’ imprisonment on the second count, but imposed both sentences consecutively. The issue presented was whether imposition of a non-HFO sentence following an HFO sentence, which had been enhanced to the statutory maximum, where both counts arose out of a single episode, violated the dictates of Hale. Id. at 693. This court noted that the total sentence of 12 years’ imprisonment was greater than that which could have been imposed if both sentences had been enhanced and ordered to run concurrently and was also greater than the sentence that could have been imposed if neither count was enhanced but the sentences had been ordered to run consecutively. Id. at 694. Thus, this court concluded that the sentences were illegal, holding that “the fact that appellant’s sentence exceeds the 10-year total sentence he could have received as an habitual felony offender violates the reasoning and the spirit of Hale.” Id. at 694-95.

Later, in Hamilton v. State, 996 So.2d 964, 966 (Fla. 1st DCA 2008), this court held:

The Kiedrowski decision acknowledged that a non-habitual felony offender sentence could be made to run consecutively to a habitual felony offender sentence for felony offenses arising out of the same criminal episode, but held that such sentences violate Hale where, when combined, their length exceeds the maximum the defendant could have received under the habitual offender statute.

The Hamilton court went on to hold that an HFO sentence imposed consecutively to two non-HFO misdemeanor sentences was legal because the aggregate sentence did not exceed the maximum the defendant could receive if he was sentenced as an HFO but all sentences were to run concurrently, and because his aggregate sentence did not exceed the maximum he could have received if none of his sentences had been enhanced but all had been ordered to run consecutively. Id.

Here, Appellant was convicted of aggravated assault, a third-degree felony punishable by up to 10 years’ imprisonment as an HFO, and possession of a firearm by a convicted felon, a second-degree felony punishable by up to 30 years’ imprisonment as an HFO. See §§ 775.084(4)(a); 784.021(2); 790.23(3), Fla. Stat. (2005). Appellant’s aggregate sentence of 25 years was less than he could have received if both his sentences had been enhanced and ordered to run concurrently (30 years’ imprisonment). Appellant’s aggregate sentence, however, does exceed the total he could have received if neither conviction had been enhanced and ordered to run consecutively (20 years’ imprisonment).

We hold that the sentences in this case are legal, as they do not violate Hale. Pursuant to the reasoning of Kiedrowslci and Hamilton, consecutive HFO and non-HFO sentences imposed for crimes committed during a single criminal episode are legal if the aggregate sentence is less than that which could have been imposed if all HFO eligible convictions had been enhanced and ordered to run concurrently. But see Fuller v. State, 867 So.2d 469, 470 (Fla. 5th DCA 2004) (holding that “[t]he whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence”).

AFFIRMED.

HAWKES, C.J., and BENTON, J„ concur.


text:
    Lazaro ROJAS, Appellant, v. MEDLEY HARDWOODS, INC., and Comp Options Insurance Company, Appellees.
    No. 1D08-6359.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2009.

      Toni L. Villaverde of Toni L. Villaverde, PLLC, South Miami, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant raises six points on appeal. Four lack merit (compensability of a “back condition,” exclusion of hospital records and bills, compensability of the second date of accident, and date of maximum medical improvement) and will not be addressed further. The other two, however, warrant reversal.

First, no competent substantial evidence supports the Judge of Compensation Claims’ (JCC’s) finding that Claimant had an eleven percent permanent impairment rating (PIR). The record supports the JCC’s findings that Claimant had a five percent psychiatric PIR and a seven percent physical PIR. The combined total of these PIRs, under the 1996 Florida Uniform Permanent Impairment Rating Schedule, is not eleven; rather, according to the schedule, it is twelve percent. See 1996 Fla. Unif. Permanent Impairment Rating Schedule, § 15, at 116. Accordingly, we reverse this portion of the JCC’s order. See Atlas Van Lines v. Jackson, 642 So.2d 603, 605 (Fla. 1st DCA 1994) (reversing finding of PIR where not supported by CSE).

Second, the JCC found a gastroen-terologist was authorized but denied further gastroenterologist treatment because the JCC found Claimant’s accident is no longer the major contributing cause of his gastric condition. No competent substantial evidence supports the JCC’s finding that, after August 16, 2002, Claimant was no longer taking any authorized medicine for compensable injuries that could have caused his gastric symptoms. The JCC found that Drs. Ballweg and Amadeo provided authorized care. The record shows they prescribed certain medications after that date. The gastroenterologist testified that Claimant advised him of at least two of those medications; that if, hypothetically, those medications were related to the work accident, the gastric symptoms would not be related to the work accident; and that if, hypothetically, Claimant were no longer taking medication or were taking medication prescribed by unauthorized doctors, the gastric symptoms would not be related to the work accident. It appears the JCC overlooked, rather than rejected, this uncontradicted evidence. Accordingly, we reverse this point and remand for the JCC to authorize a gastroen-terologist.

We note the Employer/Carrier has moved to stay these proceedings on the ground that, in subsequent proceedings below (on the same injury), Claimant was found to have committed fraud with respect to those (different) benefits, in violation of sections 440.09 and 440.105, Florida Statutes. We deny the motion because to do otherwise would defeat the interest in finality shared by the parties and the courts. The purpose of an appeal is solely to review an order of the lower tribunal based on the record made before that tribunal. See Altchiler v. State, Dep’t of Prof'l Regulation, 442 So.2d 349, 350 (Fla. 1st DCA 1983). Accordingly, we need not make a decision at this time whether the fraud defense divests Claimant of the potential benefits awarded herein.

Consequently, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

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


author: BENTON, J.

text:
    A.L.B., a minor child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2036.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2009.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On this direct appeal in a juvenile case, we affirm the disposition order committing A.L.B. to a moderate-risk facility despite a recommendation by the Department of Juvenile Justice that adjudication be withheld and that she be placed on probation. We do not affirm, however, without “misgivings and concerns,” Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002), regarding whether the trial court complied with the strict standard set forth in E.A.R. v. State, 4 So.3d 614 (Fla.2009). See id. at 638 (requiring juvenile courts, in departure dispositions, to “[ajrticulate an understanding” and “[t]hen logically and persuasively explain why” departure is appropriate). These misgivings arise from uncertainty about the interplay of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), State v. Causey, 503 So.2d 321 (Fla.1987), and Florida Rule of Juvenile Procedure 8.135(b)(2).

Like the Washington court, we conclude that the absence of any objection at the time of sentencing, followed by the failure to file a motion to correct sentencing error before the initial brief was filed, precludes correction even of “fundamental” sentencing errors on direct appeal. See 814 So.2d at 1189-90. See also Maddox v. State, 760 So.2d 89, 102, 110 (Fla.2000) (holding “improper habitualization” to be fundamental error, although not susceptible to correction on direct appeal after the “window period [following] the enactment of the Criminal Appeal Reform Act” had closed); Colon v. State, 869 So.2d 1290, 1290 (Fla. 4th DCA 2004) (affirming convictions and sentences because “unpre-served sentencing error cannot be corrected in an Anders case”). But a motion to correct sentencing error “may be filed by appellate counsel.” Fla. R.Crim. P. 3.800(b)(2). Similarly, as to motions for correction of disposition or commitment orders, Florida Rule of Juvenile Procedure 8.135(b)(2) provides that the “motion may be filed by appellate counsel and must be served before the party’s first brief is served.”

No such motion was filed in the present case. In a juvenile case that is closely analogous to the present case, we certified as questions of great public importance the following:

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY W SUCH A CASE?

A.F.E. v. State, 853 So.2d 1091, 1095 (Fla. 1st DCA 2003) (affirming departure disposition in Anders case despite error because appellant failed to preserve the issue for review on direct appeal). We certify the same questions in the present case.

Today’s affirmance is without prejudice to appellant’s right to seek relief collaterally, see Wilson v. State, 898 So.2d 191, 193 (Fla. 1st DCA 2005); Colon, 869 So.2d at 1290, although such relief may be of little practical use to appellant. See A.F.E., 853 So.2d at 1093 (“That a party may seek collateral relief ... is of little practical assistance in juvenile cases, where the sentence imposed may be completed before any relief is granted.”).

Affirmed. Questions certified.

KAHN and CLARK, JJ., concur.


text:
    Christopher M. RICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4606.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2009.
    Christopher Rice, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


text:
    Robert BRUNER and Katherine S. Bruner, husband and wife, Deborah E. Plitnick, and Stanley C. Chamberlin, individually and as representatives of similarly situated persons, Appellants/Cross-Appellees, v. Bert HARTSFIELD, in his official capacity as Property Appraiser of Leon County, Florida; Doris Maloy, in her official capacity as Tax Collector of Leon County, Florida; Leon County, a political subdivision of the State of Florida; the Leon County School Board; Frank Desguin, in his official capacity as Property Appraiser of Charlotte County, Florida; Vickie L. Potts, in her official capacity as Tax Collector of Charlotte County, Florida; Charlotte county, a political subdivision of the State of Florida; Charlotte County School Board; Gary Nikolits, in his official capacity as Property Appraiser of Palm Beach County, Florida; Anne M. Gannon, in her official capacity as Tax Collector for Palm Beach County, Florida; Palm Beach County, a political subdivision of the State of Florida; City of North Palm Beach, a political subdivision of the State of Florida; Palm Beach County School Board, and Lisa Echeverri, in her official capacity as Executive Director of the Florida Department of Revenue; and all named Defendants, individually and as representatives of similarly situated persons or entities, Appellees/Cross-Appellants.
    No. 1D08-5524.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Talbot D’Alemberte of D’Alemberte & Palmer, PLLC, Tallahassee; Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee; William C. Owen of William C. Owen, LLC, Tallahassee; James G. Feiber, Jr., of Salter, Feiber, Murphy, Hutson & Menet, P.A., Gainesville; and William Slaughter of Has-kell, Slaughter, Young & Rediker, LLC, Birmingham, AL, for Appellants/Cross-Appellees.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Timothy D. Osterhaus, Deputy Solicitor General, Joseph C. Mellichamp, III, Special Counsel, and Jarrell L. Murchison, Assistant Attorney General, Tallahassee; and C.B. Upton of Arnstein & Lehr, LLP, Tampa, for Ap-pellee/Cross-Appellant Lisa Echeverri, in her individual and official capacities.
    Gregory T. Stewart, Harry F. Chiles, and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellees Leon County, Leon County School Board, and Charlotte County School Board.
    E. Bruce Johnson and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for Appellee Village of North Palm Beach.

      Daniel E. Gallagher, Charlotte County Attorney’s Office, for Appellee Charlotte County.
    James D. Gordon III and Brian M. Bea-son of Wilkins Frohlich, P.A., Port Charlotte, for Appellee Vicki L. Potts, Charlotte County Tax Collector.
    John L. Polk, Punta Gorda, for Appellee Frank Desguin in his official capacity as Property Appraiser of Charlotte County.
    Michael R. McKinley and John L. Wi-deikis of McKinley, Ittersagen, Gunderson, Berntsson & Wideikis, P.A., Port Charlotte, for Appellee Charlotte County School Board.
    J. Jeffry Wahlen, Ausley & McMullen, Tallahassee, for Appellee Leon County School Board.
    Alice A. Hardy for Appellee Doris Ma-loy, Leon County Tax Collector.
    Robert J. Sniffen, Todd D. Engelhardt and J. David Marsey of The Sniffen Law Firm, P.A., Tallahassee, for Appellee Bert Hartsfield, Property Appraiser of Leon County.
    James M. Brako, Office of the Tax Collector, West Palm Beach, for Appellee Anne M. Gannon, Palm Beach County Tax Collector.
    Jay R. Jacknin and Jeffrey M. Clyman for Appellee Gary R. Nikolits, Property Appraiser for Palm Beach County.
    Andrew M. Pelino, Assistant County Attorney, for Appellee Palm Beach County.
    Gerald A. Williams, Chief Counsel, Robert Glassman, and Randall D. Burks, Office of the Chief Counsel, for Appellee School Board of Palm Beach County.
   PER CURIAM.

Appellants seek reversal of the final order which dismissed with prejudice their second amended complaint challenging the constitutionality of certain portions of section 4, Article VII of the Florida Constitution. More particularly, appellants have challenged the constitutionality of (i) the “Save Our Homes Amendment” (SOHA) which placed a cap on the amount the assessed value of homestead property could be increased annually, and (ii) Amendment 1, adopted by popular referendum in 2008, which, among other things, made a portion of a homesteader’s existing exemption portable to newly-purchased homestead property. Art. VII, § 4(c)(1) and (8), Fla. Const. Appellants argue that these amendments violate several federal constitutional provisions.

This court has already considered and rejected virtually identical constitutional challenges to SOHA in Reinish v. Clark, 765 So.2d 197 (Fla. 1st DCA 2000), and Lanning v. Pilcher, 16 So.3d 294 (Fla. 1st DCA 2009). The holdings in Reinish and Lanning that section 4, Article VII is not unconstitutional for the reasons claimed are not changed by the passage of Amendment 1. Accordingly, we affirm the final order of dismissal.

As for the issue raised on cross-appeal, that the trial court erred in concluding it had subject matter jurisdiction despite appellants/cross-appellees’ failure to comply with section 194.171(1), Florida Statutes, this issue is governed by Lanning, 16 So.3d at 296-97. Pursuant to that decision, we affirm the issue raised on cross-appeal.

The appeal and cross-appeal are AFFIRMED.

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


text:
    DEPAWIX HEALTH RESOURCES, INC., Peck & Peck, Inc., a/k/a, Green Cross Managed Health System and Smart Services, Inc., et al., Appellants, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D09-4915.
    District Court of Appeal of Florida, First District.
    Nov. 18, 2009.
    Michael A. O’Brien of Michael A. O’Brien, P.A., Orlando, for Appellants.
    Benjamin F. Diamond, General Counsel, and Robert Alan Fox, Assistant General Counsel, Florida Department of Financial Services, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


author: MAY, J.

text:
    Fred CARSWELL III, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-1814.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Fred Carswell III, Coleman, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, J.

The defendant appeals an order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. To prevent manifest injustice, we treat this appeal as a petition for writ of habeas corpus and grant a belated direct appeal on a limited issue. See Lago v. State, 975 So.2d 613 (Fla. 3d DCA 2008) (treating appeal as petition for habeas corpus and granting relief in order to correct a manifest injustice).

The State charged the defendant with attempted second degree murder with a firearm for a fight that resulted in a shooting. The defendant claimed that he did not possess a gun and that the victim accidentally shot himself during the fight. At trial, the defendant objected to the State’s request for instructions on the permissive lesser included offenses, particularly, the aggravated battery instruction. The defense argued that the Information failed to allege all the essential elements, notably that the defendant “intentionally and knowingly” inflicted great bodily harm. The trial court overruled the objection and read the instruction on aggravated battery because the Information alleged that the defendant discharged a firearm and inflicted great bodily harm.

The jury found the defendant not guilty of attempted second degree murder with a firearm, but found him guilty of aggravated battery. The jury specifically found that the defendant did NOT possess, use, or discharge a firearm in its answer to a special interrogatory. After hearing argument, the trial court found that the only theory of aggravated battery of which the defendant could have been guilty was through the use of a deadly weapon, to wit: the firearm. Because the jury specifically found the defendant did not have a firearm, the trial court granted the defense motion for judgment of acquittal on the aggravated battery charge and entered a conviction for simple battery. The court sentenced the defendant to B64 days in jail. The State appealed.

In the State’s direct appeal, we concluded that the trial court had erred in granting the judgment of acquittal due to an inconsistency in the verdict “because the jury was lawfully exercising its pardon power.” State v. Carswell, 914 So.2d 9, 11 (Fla. 4th DCA 2005). We specifically declined to address the defendant’s argument that the jury could not have relied on the theory of aggravated battery for intentionally and knowingly causing great bodily harm because the Information did not allege that essential element. We did so under the mistaken belief that the defendant had to timely file a notice of cross-appeal, which he had not done. Id. at 12 (citing Fla. R.App. P. 9.110(g)); A-1 Racing Specialties, Inc. v. K & S Imports of Broward County, Inc., 576 So.2d 421, 422 (Fla. 4th DCA 1991)). We then reversed and remanded the case for reinstatement of the conviction for aggravated battery, and imposition of sentence. Our opinion advised that the reversal was without prejudice to the defendant filing an ineffective assistance of appellate counsel claim.

On remand, the trial court reinstated the conviction and sentenced the defendant to fifteen years incarceration. The defendant appealed the new sentence, which we affirmed. See Carswell v. State, 947 So.2d 692 (Fla. 4th DCA 2007).

The defendant then filed a petition arguing that appellate counsel was deficient in failing to file a notice of cross-appeal. We denied the petition finding no deficiency in counsel’s performance because the notice of cross-appeal was not jurisdictional and unnecessary to allow the defendant to make his argument in response to the State’s appeal. Carswell v. State, 4D06-212 (Fla. 4th DCA Oct. 16, 2006). See Lopez v. State, 638 So.2d 931, 932 (Fla. 1994). Next, the defendant filed a Rule 3.800 motion alleging trial counsel was ineffective in failing to file the notice of cross-appeal. The trial court denied the motion. We re-designated the motion as an appeal from a Rule 3.850 summary denial. Again we affirmed because the error was not of defense counsel’s making, but rather our own. Carswell v. State, 962 So.2d 915 (Fla. 4th DCA 2007). The defendant then petitioned for a belated appeal, which we denied. Carswell v. State, 4D07-5043 (Fla. 4th DCA Feb. 15, 2008).

This brings us to the present appeal. Here, the defendant is appealing the summary denial of his second Rule 3.850 motion. In fairness to the petitioner, and after having received a response from the State, we treat this appeal as a petition for writ of habeas corpus and grant a new limited direct appeal. We limit our review to the single argument we previously declined to consider — the trial court properly vacated the conviction for aggravated battery because the court had erred in giving the instruction on the lesser included offense, which allowed the jury to convict the defendant of a crime for which the essential element of intentionally and knowingly causing great bodily harm was not alleged in the Information. See Lane v. State, 861 So.2d 451 (Fla. 4th DCA 2003).

“[D]ue process prohibits a defendant from being convicted of a crime not charged in the information or indictment.” Crain v. State, 894 So.2d 59, 69 (Fla.2004); see also N.H.M. v. State, 974 So.2d 484, 485-86 (Fla. 2d DCA 2008) (citing Jaramillo v. State, 659 So.2d 1238, 1239 (Fla. 2d DCA 1995)). Defense counsel properly objected to the jury instruction on the aggravated battery charge because the Information failed to allege the “intentional and knowing” infliction of great bodily harm. It was error for the trial court to have given the charge as the trial court properly recognized. See Lane v. State, 861 So.2d 451 (Fla. 4th DCA 2003). Yet, the defendant’s request for a new trial on the simple battery charge in his answer brief led this court astray from the true issue. Instead of relying on this argument solely to defend the State’s appeal, the defendant requested affirmative relief — -relief that required the filing of a notice of cross-appeal. See, e.g., Padilla v. State, 905 So.2d 217, 219 (Fla. 3d DCA 2005); see also Pope v. State, 884 So.2d 328, 330 (Fla. 2d DCA 2004); Guerra v. State, 546 So.2d 133 (Fla. 4th DCA 1989).

We now hold that the trial court was correct to have entered the judgment of acquittal on the aggravated battery charge. This does not end the inquiry, however. A new trial may be required if the trial court erred in instructing the jury on an uncharged, alternate theory of aggravated battery. See, e.g., Sanders v. State, 959 So.2d 1232, 1234 (Fla. 2d DCA 2007); see also Negron v. State, 938 So.2d 650, 652 (Fla. 4th DCA 2006); K.H. v. State, 763 So.2d 1187, 1188 n. 1 (Fla. 4th DCA 2000). Yet, Sanders, Negron, and K.H. all resulted from the defendant appealing a conviction and arguing the error in the jury instructions leading to a conviction. In that instance, the proper remedy is a new trial for the defendant. When the State appeals a judgment of acquittal, however, the protection against double jeopardy prevents the retrial of the defendant on the aggravated battery charge. See Ramos v. State, 457 So.2d 492, 494 (Fla. 3d DCA 1984); Watson v. State, 410 So.2d 207, 208-09 (Fla. 1st DCA 1982).

Under the unique facts of this case, because the defendant preserved and raised the jury instruction issue on appeal, and we specifically refused to consider the argument, we grant extraordinary relief. In the extremely unusual circumstances presented in this case, the only appropriate remedy is to vacate the aggravated battery conviction and sentence and reinstate the battery conviction, which should be conducted expeditiously.

We therefore reverse and remand the case for proceedings consistent with this opinion.

POLEN and DAMOORGIAN, JJ., concur.

      . See also Johnson v. State, 9 So.3d 640, 642 (Fla. 4th DCA 2009) (granting habeas corpus to correct a fundamental sentencing error although relief had previously been denied on numerous occasions); Ross v. State, 901 So.2d 252, 254 (Fla. 4th DCA 2005) (granting habeas corpus, even though an issue had been repeatedly raised and rejected, to correct manifest injustice where defendant did not receive the benefit of the same law as similarly-situated defendants).

      . The notice of cross-appeal was needed for the defendant to obtain the requested affirmative relief of a new trial on the battery charge. However, a notice of cross-appeal was unnecessary to allow us to consider the argument in defense of the State’s appeal.

      . The Florida Supreme Court has repeatedly held that procedural bars, such as the law of the case doctrine, must give way “where reliance on the prior decision would result in manifest injustice.” State v. Sigler, 967 So.2d 835, 840 (Fla.2007) (emphasis added) (citing Henry v. State, 649 So.2d 1361, 1364 (Fla.1994) (citing Preston v. State, 444 So.2d 939, 942 (Fla.1984)); Greene v. Massey, 384 So.2d 24, 28 (Fla.1980); Steele v. Pendarvis Chevrolet, Inc., 220 So.2d 372, 376 (Fla.1969)); see Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965).

      . Because this issue has been briefed by both sides numerous times, we see no need to ask for additional briefs.


text:
    Michael SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5229.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2009.
    Michael Simmons, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.


author: POLEN, J.

text:
    Joseph L. WORRELL, Appellant, v. Marcella M. WORRELL, Appellee.
    No. 4D09-208.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Joseph L. Worrell, Palm Beach Gardens, pro se.
    No brief filed for appellee.
   POLEN, J.

Appellant, Joseph L. Worrell, appeals the trial court’s denial of his Florida Family Law Rule of Procedure 12.540 motion for relief from the child support award he was ordered to pay his ex-wife, as part of a dissolution of marriage decree entered by the court. Worrell presents three claims on appeal: (1) the child support hearing officer lacked the authority to adjudicate the matter; (2) the trial court erred by refusing to enforce Florida Family Law Rule of Procedure 12.285; (3) the trial court erred by denying appellant’s motion for relief pursuant to Florida Family Law Rule of Procedure 12.540. We affirm without comment as to the second and third issues; however, we affirm with brief discussion as to the first.

The Final Judgment of Dissolution of Marriage with Minor Child named Wor-rell’s ex-wife primary residential custodian of their minor child. It also ordered that Mr. Worrell pay $500.00 per month in child support and an additional $100.00 per month toward agreed upon arrears. He appealed the judgment to this court which subsequently affirmed.

Mr. Worrell filed a motion pursuant to Florida Family Law Rule of Procedure 12.540, alleging 1) that the child support award was predicated on his ex-wife’s fraudulently filed financial affidavit, which was used and relied on to calculate the amount of child support, and 2) the hearing officer presiding over the child support hearing lacked the authority to do so.

A hearing on the motion was held by a general magistrate and the motion was subsequently denied by the trial court. In regard to Mr. Worrell’s allegations of fraudulent filing, the court found that no evidence was presented to establish such an assertion. The court also found that the hearing officer had the authority to preside over the child support matter under Florida Family Law Rule of Procedure 12.491(b).

On appeal, Worrell argues that his right to “full and fair jury or judicial hearing of grievances” was infringed because the child support hearing officer who presided over his rule 12.540 motion hearing was a “non-judicial official.” Although he acknowledges that rule 12.491 provides that hearing officers may hear certain limited family law matters without the consent of both parties, he claims that the “many serious issues” raised in his 12.540 petition regarding fraud and deceit are “well outside the restricted scope” of rule 12.491.

Rule 12.491(b) confers subject matter jurisdiction to child support hearing officers for proceedings concerning “the establishment, enforcement, or modification of child support.” Fla. Fam. L.R.P. 12.491(b)(1). This narrow grant is limited further by the caveat that a support enforcement hearing officer does not have the authority to hear contested paternity cases. Fla. Fam. L.R.P. 12.491(e).

Mr. Worrell’s rule 12.540 motion prayed for relief from a child support judgment which was predicated on his ex-wife’s allegedly fraudulent financial affidavit. This request for a modification to the child support award appears on its face to fall within the grant of jurisdiction outlined in rule 12.491(b)(1). Such a plain reading of the rule is illustrative. However, the question before the court is whether, given the unique nature of allegations of fraud, the appellant’s 12.540 motion actually fell outside the contemplation of this rule.

Claims of fraud generally require a full explanation and exploration of the facts and circumstances of the alleged wrong. Robinson v. Kalmanson, 882 So.2d 1086, 1088 (Fla. 5th DCA 2004). A court can seldom determine the presence or absence of fraud without a trial or evidentiary proceeding. Id. (citing Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959), cert. denied, 117 So.2d 842 (Fla.1960)). Allegations of fraud involve the intent or state of mind of the alleged perpetrator and thus require that the fact-finder evaluate the credibility of witnesses and other evidentiary matters. See Webb v. Kirkland, 899 So.2d 344, 346-47 (Fla. 2d DCA 2005). However, child support hearing officers are fully able to conduct such examination, as rule 12.491 empowers them with the ability to “issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence.” Fla. Fam. L.R.P. 12.491(e).

We find no case law that would serve to abrogate the jurisdiction plainly granted in the rule. In Oliveri v. Oliveri, 541 So.2d 174, 175 (Fla. 4th DCA 1989), this court held that it was beyond the authority of a hearing officer to make determinations with regard to attorney’s fees and temporary alimony. We find this interpretation of rule 12.491 distinguishable, as the issue of fees and alimony cannot be construed as falling into one of either “the establishment, enforcement, or modification of child support,” Fla. Fam. L.R.P. 12.491(b)(1). Whereas fees were clearly collateral to the issues which fell within the scope of jurisdiction in Oliveri, in the instant case, an allegation of fraud was the basis of the request for a modification of child support, a request for which the rule provides jurisdiction to hearing officers.

Further, while addressing the merits of lower court findings, the district courts have previously had the opportunity to admonish the practice of allowing hearing officers to deal with issues involving fraud, but have failed to do so. See State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157 (Fla. 1st DCA 2007) (holding that appellant failed to show good cause for a court order for paternity testing by failing to make an allegation of fraud, duress, material mistake of fact, or newly discovered evidence in the child support proceedings pending before the support enforcement hearing officer); State, Dep’t of Health and Rehab. Servs. v. Day, 615 So.2d 176, 177 (Fla. 2d DCA 1993) (criticizing a child support hearing officer’s conclusion that there “may” have been a fraud upon the court).

Given the plain reading of Florida Family Law Rule of Procedure 12.491, and the lack of case law abrogating the grant of jurisdiction, we find that the child support hearing officer in this case did not lack the authority to preside over the hearing on the appellant’s motion to modify child support.

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . In Oliveri, this court interpreted the grant of jurisdiction under Florida Rule of Civil Procedure 1.491, the predecessor to Florida Family Law Rule of Procedure 12.491.


text:
    Mandy MORGAN, Appellant, v. Brian C. DECKER, Florence Chapman and Travis Danford, Appellees.
    No. 1D08-5610.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.

      Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, and James R. Barnes of Michles & Booth, P.A., Pensacola, for Appellant.
    John P. Joy of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for Appellee Travis Danford.
   PER CURIAM.

Appellant asserts that the trial court committed reversible error during the trial by admitting evidence of appellant’s settlement agreement with another defendant and by denying appellant’s motions for mistrial and new trial after defense counsel mischaracterized the settlement agreement during opening statement. We agree that reversal is required by the recent decision in Saleeby v. Rocky Elson Construction, Inc., 3 So.3d 1078 (Fla.2009), which was issued after the appeal was taken in this case. Accordingly, we reverse the final judgment and remand for a new trial.

REVERSED and REMANDED with directions.

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


text:
    MEDPARTNERS/DIAGNOSTIC CLINIC MEDICAL GROUP, P.A., and Specialty Risk Services, Appellants, v. ZENITH INSURANCE COMPANY, Appellee.
    No. 1D09-1358.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.

      Michael G. Rabinowitz of Banker Lopez Gassier, P.A., Tampa, for Appellants.
    Robert B. Bennett and Kevin M. Hammer of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellee.
   PER CURIAM.

Specialty Risk Services (SRS) challenges an order of the Judge of Compensation Claims (JCC) that requires it to pay $615,630.96 in contribution for a claim administered and adjusted by Zenith Insurance Company (Zenith). SRS argues the JCC erred in ordering contribution because the statute of limitations had run on the injured employee’s claim with SRS and, thus, there is no legal basis for its liability to Zenith for contribution. We agree and reverse.

Background

Claimant (not a party to this appeal or the proceedings below) suffered two com-pensable workplace injuries to her lumbar spine during the course of her employment with the Employer. The first accident occurred on March 19, 1999. SRS was the Employer’s workers’ compensation carrier for this date of accident. As a result of the 1999 accident, Claimant treated with various authorized physicians and, ultimately, underwent a discectomy and fusion at L5-S1. Claimant was placed at maximum medical improvement on December 9, 1999 with a 12% permanent impairment rating. Claimant last received benefits from SRS on August 11, 2000. Claimant did not file a petition for benefits (PFB) against SRS. Although Claimant’s back was never “pain free” after the 1999 accident, she was able to return to work for the Employer.

After returning to work, Claimant suffered a second accident on October 3, 2001. Claimant, who perceived she had suffered a new injury, reported the incident to the Employer and requested treatment. Claimant was informed that her “time had lapsed” on her 1999 claim. Claimant was instructed to fill out a new incident report. Zenith, the Employer’s workers’ compensation carrier for the 2001 accident, authorized various doctors. Pursuant to Zenith’s authorization, Claimant underwent a sacroiliac fusion on May 23, 2005, and a left sacroiliac facet joint fusion on April 13, 2006. On January 12, 2007, Zenith accepted Claimant as permanently and totally disabled, and ultimately entered into a lump-sum settlement with Claimant for $335,000.00. In all, Zenith expended $618,006.79 in medical and indemnity benefits following the 2001 accident.

Zenith filed a claim for contribution against SRS seeking reimbursement in the amount of $615,630.96. SRS denied the claim for contribution maintaining that, because the statute of limitations had run on Claimant’s 1999 claim, it was not liable to Claimant, and therefore, it was not liable for the reimbursement/contribution claim.

Zenith introduced medical testimony from an orthopedist (elicited on March 13, 2008, more than six years after Zenith began paying benefits pursuant to the Notice of Injury on the 2001 accident) establishing, although the care and benefits provided by Zenith for the first three months after the 2001 accident was 90% related to the injuries suffered in 2001, all (100%) of the care, treatment, and benefits provided to Claimant by Zenith after January 3, 2002, was wholly related to the 1999 accident, not the 2001 accident. The JCC accepted this testimony, and based on this court’s decisions in Bell v. Commercial Carriers, 603 So.2d 683 (Fla. 1st DCA 1992), and Ellis v. Galloway’s, Inc., 794 So.2d 710 (Fla. 1st DCA 2001), concluded that Zenith, by providing treatment to Claimant after the 2001 accident, “revived” the statute of limitations on the 1999 claim administered by SRS.

Analysis

We begin our analysis by recognizing that section 440.42(4), Florida Statutes (2001), allows a carrier that has voluntarily provided benefits to file a claim for contribution against another carrier who is liable for the discharge of the obligations of one or more employers with respect to a claim for compensation, treatment, or other benefits. See § 440.42(4), Fla. Stat. (2001). We have held, however, a carrier can obtain contribution pursuant to section 440.42(4) only if the carrier from which contribution is sought is liable to the claimant for payment of benefits. See Jeffrey’s Steel v. Conibear Equip., Inc., 854 So.2d 268, 271 (Fla. 1st DCA 2003). If the statute of limitations has run on a claim, the carrier for that claim is not liable for contribution because it has no liability to the claimant. See id.

Thus, the issue presented here is whether Claimant’s statute of limitations ran on the 1999 workplace accident. As a general rule, a claim is governed by the statute of limitations in effect on the date of accident. See generally Sanchez v. Acapulco Plasters & Stucco, 668 So.2d 298, 300 (Fla. 1st DCA 1996) (stating statute of limitations is to be applied prospectively unless legislative intent to the contrary is express, clear, and manifest). The statute of limitations in effect on the date of both of Claimant’s accidents provided:

Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.

§ 440.19(1), Fla. Stat. (1997 and 2001). The next subsection of the statute allows for a one-year extension of this period based on the payment of any indemnity benefit or the furnishing of treatment pursuant to a notice of injury or petition for benefits (PFB). See § 440.19(2), Fla. Stat. (1997).

SRS last paid benefits pursuant to the 1999 notice of injury on August 11, 2000, which extended, for one year, the time within which Claimant could file a PFB or obtain benefits pursuant to that notice of injury. See Orange County Sch. Bd. v. Best, 728 So.2d 1186, 1188 (Fla. 1st DCA 1999) (explaining section 440.19(2) extends rather than shortens limitation period described in section 440.19(1), and if PFB is timely under section 440.19(1) or section 440.19(2) there is no bar to compensation). Because Claimant did not file a PFB or otherwise obtain additional benefits pursuant to the notice of injury for the 1999 accident on or before August 11, 2001, the statute of limitations on the 1999 injury expired, extinguishing SRS’s liability to Claimant.

Under the facts of this case, the statute of limitations ran on the 1999 claim before the occurrence of the second accident of October 3, 2001. When Claimant reported the second accident in October 2001, she was appropriately advised by the Employer that the “time had lapsed” on her 1999 claim. The claim was then reported to Zenith as a new accident, and Zenith paid full benefits for the better part of seven years, pursuant to the 2001 notice of injury. It was only after the fact that Zenith developed testimony establishing that it was not in any way responsible for payment of any benefits after January 3, 2002.

In ordering SRS to pay $615,630.96 in contribution to Zenith, the JCC relied our decisions in Bell, 603 So.2d 683, and Ellis, 794 So.2d 710, and concluded that Zenith, by providing benefits that it should not have, “revived” the statute of limitations on the 1999 claim administered by SRS. The JCC’s reliance on Bell and Ellis was in error.

Neither Bell nor Ellis present issues of contribution between carriers. The holdings in both cases are premised on this court’s interpretation of now-repealed statutory language which allowed for the creation of a new statute of limitations upon each provision of benefits from the employer. See § 440.19(l)(a)-(b) Fla. Stat. (1990) (providing “a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention or rehabilitative services furnished by the employer ... ”). On January 1, 1994, the Legislature repealed the provisions interpreted in Bell and Ellis, and implemented significant substantive changes to the statute of limitations in workers’ compensation cases. See § 440.19(l)-(2), Fla. Stat. (1994). Because the holdings in Bell and Ellis are predicated on a reading of the “clear language” of statutes no longer in effect, the court is not bound by these decisions. See Bell, 603 So.2d at 685 (interpreting “clear language” of section 440.19(l)(a), Florida Statutes (1991)).

The post-1994 law creates a two-year statute of limitations (which begins to run on the date of injury). And the provision of benefits pursuant to a PFB or notice of injury, rather than creating an independent point of reference from whence a claim may be filed, only operates to “toll” or extend the initial statute of limitations. See § 440.19(1)-(2), Fla. Stat. (1994). Nothing in the 1994 statute suggests that, once the statute of limitations has expired (by operation of time or a failure to timely toll), it can be “revived” by the subsequent provision of benefits. Rather, the statute envisions a potentially continuous extension (tolling) of the original statute of limitations predicated on the timely receipt of benefits pursuant to a PFB or notice of injury, or the filing of a PFB. The Legislature’s use of the word “toll” (to extend or suspend) in section 440.19(2), Florida Statutes (1994) requires that there must be some viable period which is to be extended or prolonged. Thus, a tolling event occurring after the extinguishment of the right to file a PFB (by operation of time or a failure to timely extend) renders the tolling moot, because there is nothing viable to extend or suspend. Because here, the statute of limitations on Claimant’s 1999 claim expired by the time of the occurrence of the 2001 accident, Zenith could not revive the statute of limitations by merely providing benefits.

For the foregoing reasons, we REVERSE the order on appeal requiring SRS to pay contribution to Zenith.

BARFIELD and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.

       We are mindful that section 440.19(4), Florida Statutes (1997), allows for waiver and equitable tolling of the post-1994 statute of limitations. These provisions are not at issue in this case.


author: FARMER, J.

text:
    Linda Diane JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3425.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

This appeal deals with evidence about the value of stolen goods. The issue is whether the evidence supports a verdict of grand theft. We conclude that it is insufficient to support the threshold value and reverse.

The charges involved shoplifting — a euphemism for stealing — at Bealls Department Store. We pass by the evidence of defendant’s involvement in the taking, which was substantial and essentially un-contradicted.

On the issue of value of the stolen goods, the State introduced a “receipt” generated by the store after the offense showing that the actual retail price of the goods stolen was $230. The State also offered the testimony of the then store manager, now a loss prevention specialist for the company. His testimony was this. Bealls offers goods at reduced prices. These goods are booked in inventory at the “manufacturer’s suggested retail price” (MSRP), but are actually sold at reduced prices as shown on a receipt given at the time of sale. He testified that Bealls considers the value of stolen goods to be the MSRP rather than the actual sale price because the sale price is intended only for customers who purchase at that price, not for those who take the goods "without paying.

The statute defines value as “the market value of the property at the time and place of the offense.” § 812.012(10)(a)l, Fla. Stat. (2007). Evidence of value is essential to a conviction for grand theft; the State must prove value beyond any reasonable doubt. Camley v. State, 82 Fla. 282, 89 So. 808 (1921).

We take the statutory term market value to mean the price actually charged and received by the merchant in usual, customary sale of the goods stolen. The cases hold that when the theft is from a department store and salability at a specific price is established, the retail price is deemed the market value. Emshwiller v. State, 462 So.2d 457 (Fla.1985) (jury instruction that retail price establishes market value); Negron v. State, 306 So.2d 104, 108-09 (Fla.1975) (evidence should have shown retail prices of all stolen items and salability at that price near the time of the alleged theft to demonstrate their market value). We repeat: a cash register “receipt” generated by Bealls shortly after the theft showed the usual, customary retail price of the stolen goods to be $230.

It follows that the only competent evidence of value is the retail price actually charged customers at the time of the offense. The internal policy of the department store may book the value of stolen goods at the MSRP, even though they are actually sold below that value, but that does not affect the statute’s requirement that stolen goods be given market value. Defendant’s conviction for grand theft must be reduced to petit theft.

Reversed for consistent proceedings.

WARNER and LEVINE, JJ., concur.

      . The Court has receded from Negron on other grounds in Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), and F.B. v. State, 852 So.2d 226 (Fla.2003), but not as to the basis for determining the market value of goods stolen from department stores.


author: STEVENSON, J.

text:
    Kenneth RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-687.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Kenneth Ruiz failed to immediately leave the parking lot of a nightclub when asked to do so by an off-duty police officer, was charged with and convicted of trespass in a structure, and was sentenced to forty days in jail. Because the parking lot was not a part of the “curtilage” of the nightclub, we reverse.

Ruiz was charged with second-degree attempted murder of a law enforcement officer, resisting with violence, and trespass in a structure or conveyance. These charges arose from an altercation in the parking lot of Giorgio’s nightclub where Ruiz celebrated his birthday with friends. A police officer, who worked an off-duty detail at the club, told Ruiz and his friends, several times, to leave because the club was closing. In response, Ruiz and his friends engaged in some name calling, and, though they left the club, they remained in the parking lot partaking in disruptive behavior. Ultimately, when the officer attempted to arrest Ruiz, a struggle ensued, and, as others joined the fray, it escalated. A jury acquitted Ruiz of the first two charges, but convicted him of trespass in a structure or conveyance. Defense counsel renewed the motion for judgment of acquittal he made during trial, arguing that Ruiz was in an open-air parking lot, and thus, no reasonable jury should have found him guilty of trespass in a structure or conveyance. The trial court denied the motion. Ruiz appeals, and the State concedes error.

Ruiz was charged with and convicted of violating section 810.08(1), Florida Statutes (2006), entitled “Trespass in structure or conveyance,” which provides in pertinent part that “[wjhoever, ... having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.” Nearby section 810.011(1), Florida Statutes (2006), defines a structure as “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” This statutory scheme neglects to define curtilage, but in State v. Hamilton, 660 So.2d 1038 (Fla.1995), our supreme court held that “some form of an enclosure [is required] in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” Id. at 1044. L.K.B. v. State, 677 So.2d 925 (Fla. 5th DCA 1996), extended Hamilton to the trespass statute. Id. at 926 (holding that because both burglary and trespass rely on the definition of “structure” found in section 810.011(1), there is no basis to limit Hamilton to burglary cases); see also B.W. v. State, 973 So.2d 657, 658 (Fla. 3d DCA 2008); Freeman v. State, 743 So.2d 603, 603 (Fla. 4th DCA 1999).

In the instant case, it is undisputed that neither party contended the parking lot was enclosed. Therefore, we reverse Ruiz’s judgment of conviction for trespass in a structure or conveyance and sentence.

Reversed and remanded.

POLEN and GERBER, JJ., concur.