author: PER CURIAM. POLSTON, J.,

text:
    ATTORNEYS’ TITLE INSURANCE FUND, INC., Petitioner, v. Joseph W. GORKA, et al., Respondents.
    No. SC08-1899.
    Supreme Court of Florida.
    April 1, 2010.
    Rehearing Denied May 24, 2010.

      John H. Pelzer and David L. Boyette of Ruden, McClosky, Smith, Schuster and Russell, P.A., Fort Lauderdale, FL, for Petitioner.
    Robert C. Widman of Morris and Wid-man, P.A., Venice, FL, for Respondent.
   PER CURIAM.

This case is before the Court to review the decision of the Second District Court of Appeal in Attorneys’ Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008). The district court certified its decision to be in conflict with the decision of the First District Court of Appeal in Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), with regard to the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. Accordingly, we approve the well reasoned decision of the Second District and disapprove the decision of the First District to the extent it holds otherwise.

BACKGROUND

Joseph W. Gorka and Laurel Lee Larson (respondents) own property insured under a title insurance policy issued by Attorneys’ Title Insurance Fund, Inc. (Attorneys’ Title). See Attorneys’ Title, 989 So.2d at 1211-12. When Attorneys’ Title allegedly refused to defend the respondents in a dispute with regard to the property, the respondents filed an action against the company seeking declaratory relief and damages for breach of contract. See id. at 1212. Before trial, Attorneys’ Title served a proposal for settlement on the respondents pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442, which offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys’ fees, and costs. See id. However, the proposal stated:

This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.

(Emphasis supplied.) Neither respondent accepted the proposal. See id.

Following a bench trial, the court rendered a final judgment in favor of Attorneys’ Title. See id. Subsequently, Attorneys’ Title filed a motion to tax fees and costs against the respondents pursuant to the unaccepted proposal for settlement. See id. While the respondents sought review of the final judgment in the Second District Court of Appeal, Attorneys’ Title filed a motion with the Second District for appellate attorneys’ fees pursuant to the unaccepted proposal for settlement. See 989 So.2d at 1212. The Second District remanded the fee issue to the trial court for a determination of whether Attorneys’ Title was entitled to fees. See id.

The trial court concluded that the proposal was invalid and unenforceable based on the authority of Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), because neither party was able to independently evaluate or accept the offer since the proposal demanded the mutual acceptance of both parties. Accordingly, the trial court entered orders denying the motions for attorneys’ fees. The Second District affirmed the orders and held that the proposal for settlement was invalid and unenforceable because it was

conditioned upon both of them accepting the amounts offered and specifies that neither of them may independently accept the amount offered. By so conditioning the proposal, neither Gorka nor Larson could independently settle his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal.

Id. at 1214. In so holding, the Second District certified conflict with Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), to the extent that Clements held that joint offers conditioned on the mutual acceptance of all of the joint offerees are valid and enforceable. In Clements, the First District held that a settlement offer to a husband and wife was not ambiguous as to whether the settlement offer was conditioned on both parties’ agreement. See id. at 732.

ANALYSIS

The issue presented by the conflicting decisions is whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable. We approve the decision of the Second District Court of Appeal and hold that this type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable.

As background to this analysis, section 768.79 generally creates a right to recover reasonable costs and attorney fees when a party has satisfied the terms of the statute and rule. See MGR Equipment Corp. v. Wilson Ice Enters., Inc., 731 So.2d 1262, 1263 (Fla.1999). It provides a sanction against a party who unreasonably rejects a settlement offer. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). Florida Rule of Civil Procedure 1.442 provides the method and means of implementing this right by outlining the required form and content of a proposal for settlement. See TGI Friday’s Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995). An award of attorneys’ fees is in derogation of the common law principle that each party pays its own attorneys’ fees. This Court strictly construes the language of the statute and rule when reviewing the several requirements. See Willis Shaw, 849 So.2d at 278.

The expected result of the attorneys’ fee sanction was to reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions. See Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 (Fla.2003). The effect, however, has been in sharp contrast to the intended outcome because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers. See, e.g., Security Professionals, Inc. v. Segall, 685 So.2d 1381, 1384 (Fla. 4th DCA 1997) (“We regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to ‘terminate all claims, end disputes, and obviate the need for further intervention of the judicial process.’ ”) (quoting Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989)). For instance, since the implementation of the statute and rule, our courts have frequently been called upon to sort through creative proposals to establish definitive rules with regard to the validity of offers made to or from multiple parties. In these cases, we have drawn from the plain language of rule 1.442 the principle that to be valid and enforceable a joint offer must (1) state the amount and terms attributable to each party, and (2) state with particularity any relevant conditions. See Fla. R. Civ. P. 1.442(c)(3). A review of our precedent reveals that this principle inherently requires that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties’ decisions. Otherwise, a party’s exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees.

First, in Allstate Indemnity Co. v. Hingson, 808 So.2d 197 (Fla.2002), we considered whether a former version of rule 1.442 — which did not use the specific language found in the current rule with regard to apportionment of terms to each party — required an offer of settlement made by a defendant to multiple plaintiffs to state the amount and terms attributable to each plaintiff. We held that the former rule also required differentiation based on the plain language and goals of the statute: “Each party who receive[s] an offer of settlement is entitled ... to evaluate the offer as it pertains to him or her.” Id. at 199 (quoting C & S Chemicals, Inc. v. McDougald, 754 So.2d 795, 797-98 (Fla. 2d DCA 2000)). Reading the plain language of the statute, we recognized that the reference to “party” in the singular in section 768.79(2)(b) indicated the intent of the Legislature that an offer must specify the amount attributable to each party. See id. Moreover, we evaluated the practical necessity of differentiating between parties in an offer to provide the trial court a basis to correctly determine the amount attributable to each party when evaluating the amount of the final judgment against the settlement offer to apply the statute and rule. See id.

Next, in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), two plaintiffs served a joint proposal to one defendant. In considering the undifferentiated joint proposal, we held that a strict construction of the plain language of rule 1.442(c)(3) required offers of judgment made by multiple offerors to apportion the amounts attributable to each offer- or. See id. at 278-79. Thereafter, in Lamb v. Matetzschk, 906 So.2d 1037, 1041 (Fla.2005), this Court again reiterated that a joint proposal must state the amount and terms attributable to each party when the proposal is made to multiple parties. We held that an offer of settlement from one plaintiff to multiple defendants must differentiate between the parties, even when one of the defendants is alleged to be only vicariously liable. See id. at 1040. We established that “[e]ach defendant should be able to settle the suit knowing the extent of his or her financial responsibility.” Id. Lamb instructs that an offer must be differentiated such that each party can unilaterally settle the action. Therefore, it is inherent that the offer of settlement cannot be conditioned on joint acceptance, which is the antithesis of a differentiated offer. Accordingly, Lamb directly contradicts the dissent’s position that the plain language of rule 1.442 allows an offer of settlement conditioned on joint acceptance. Further, the dissent considers the language of rule 1.442 in a vacuum that completely disregards this Court’s precedent interpreting the rule and statute.

We decline to ignore this precedent. The principles articulated in these decisions compel the result we reach today. As correctly summarized by the Second District, these cases demonstrate that “when a plaintiff serves a proposal of settlement to multiple defendants, each defendant is entitled to evaluate the proposal and ‘should be able to settle the suit knowing the extent of his or her financial responsibility.’ ” Attorneys’ Title, 989 So.2d at 1213 (quoting Lamb, 906 So.2d at 1040). Conversely, a defendant must differentiate an offer of judgment or a proposal of settlement to multiple plaintiffs such that each party can independently evaluate and act upon the offer or proposal. See id. (quoting United Servs. Auto. Ass’n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000)). Therefore, a proposal that conditions acceptance upon the mutual agreement of both parties and prohibits either party from independently evaluating and accepting the amount offered violates these principles.

To illustrate this tension, an offeree who desires to avoid exposure to the fee sanction is restrained from doing so without the agreement of the other party and is therefore forced to participate in litigation that could have been settled. Consequently, the offeree lacks independent control over the decision to settle and conclude the litigation. The dissent asserts that this lack of control is not a concern based on the flawed logic and false premise that a party could protect itself from future sanctions by filing a notice of acceptance of the offer that would never result in settlement. Under this flawed interpretation, an offer- or could offer a substantial amount of money that is conditioned on an event entirely outside the independent control of the of-ferees that would never occur. In this way, the dissent would eliminate the aspect of independent control necessary to a proper interpretation of the rule and statute. Further, the dissent would alter the rule and statute such that a defendant could receive fees in every case with an impossible conditioned offer. The dissenting view is really a phantom offer that would never produce a settlement.

We decline to adopt this inconsistent and unsound interpretation of the rule and statute. A party wishing to accept an offer should not be prohibited from doing so and then subjected to costly litigation and possible sanctions under rule 1.442 merely because a condition cannot occur or another party chooses to not accept the offer. An offer that cannot be unilaterally accepted to create a binding settlement is an illusory offer.

Moreover, although the current case involves only two plaintiffs with a personal relationship, the rule equally applies to scenarios with multiple parties absent a close personal or financial relationship. Conditioning an offer on the mutual acceptance of a large number of parties who may legitimately evaluate and value their claims differently from each other allows an offeror to abuse this situation and subject all parties to the threat of the sanction. See Tocwish v. Jablon, 183 F.R.D. 289, 241 (N.D.Ill.1998). The offeror can utilize the offer as a means to divide the offerees, thereby producing more litigation. These circumstances directly contradict the policy rationale underpinning the statute and rule as well as the principles outlined in our prior decisions.

Accordingly, we approve the decision of the Second District in Attorneys’ Title Insurance Fund v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008), and disapprove the decision of the First District in Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), to the extent it holds otherwise.

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

POLSTON, J., dissents with an opinion, in which QUINCE, C.J., and CANADY, J., concur.

POLSTON, J.,

dissenting.

The plain language of Florida Rule of Civil Procedure 1.442 allows an offer of settlement conditioned on joint acceptance. Accordingly, I would approve the First District Court of Appeal’s decision in Clements v. Rose, 982 So.2d 731 (Fla. 1st DCA 2008), and quash the Second District Court of Appeal’s decision in Attorneys’ Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008). I respectfully dissent.

Rule 1.442(c)(3) specifically provides: “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” There is no prohibition against offers to multiple parties conditioned on joint acceptance within rule 1.442 or section 768.79, Florida Statutes. Rule 1.442 implements section 768.79, which was enacted by the Legislature for the purpose of encouraging settlements. See United Servs. Auto Ass’n v. Behar, 752 So.2d 663, 664 (Fla. 2d DCA 2000); see also MGR Equip. Corp. v. Wilson Ice Enters., 731 So.2d 1262, 1264 n. 2 (Fla.1999).

Here, the relevant portion of Fund’s proposal to Gorka and Larson provided:

The total amount of the proposal, the relevant conditions of the proposal and the non-monetary terms of the proposal are as follows: Within 20 days of Plaintiffs John W. Gorka and Laurel Lee Larson, serving a notice of accepting this Proposal for Settlement, Defendant shall make a payment of $12,500.00 to Plaintiff, John W. Gorka, and a payment of $12,500.00 to Plaintiff, Laurel Lee Larson. Within 10 days of receiving the $12,500.00 payments, Plaintiffs John W. Gorka and Laurel Lee Larson shall file a Notice of Voluntary Dismissal with Prejudice of the above-captioned action. This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.

Both Gorka and Larson are identified in the proposal, and there is no ambiguity as to the terms and amount applicable to Gorka and Larson. The terms are clear and addressed to Gorka and Larson individually. Therefore, the plain language of rule 1.442 is satisfied.

In Clements, 982 So.2d at 732, the First District properly relied upon the plain language of rule 1.442 to determine that Fund’s settlement offer satisfied the rule:

In the instant case, Appellant’s settlement offer apportioned the amount each Appellee was responsible to pay, as required by rule 1.442(c)(3) and explained in Lamb, 906 So.2d at 1042 (“[T]he plain language of rule 1.442(c)(3) mandates that a joint proposal for settlement differentiate between the parties.”). The settlement proposal is conditional upon both Appellees — who are, after all, husband and wife — accepting it and paying their respective portions. The offer is not ambiguous. Although it is conditional, the offer is as definite as it is within Appellant’s power to make, because the condition depends not on Appellant’s election, but on each Appellee’s election. Rule 1.442 is designed to facilitate settlements, not to render settlement of a case impossible where there are multiple defendants.

In contrast to relying on the plain language of rule 1.442, the Second District in Gorka relied on cases that are not applicable. Neither Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), nor Behar addressed an offer that contained a condition requiring mutual acceptance by both the offerees. Rather, both Lamb and Behar addressed offers that failed to properly apportion amounts among the parties. See Lamb, 906 So.2d at 1038; Behar, 752 So.2d at 664. In Gorka, there is no argument that Fund’s offer did not clearly state the amounts and terms applicable to each party. Fund’s offer clearly apportions the amount among Gorka and Larson and specifies the terms. Each individual may evaluate the offer made to them, unlike Lamb and Behar.

Additionally, the Second District and the majority conclude that the offer conditioned on joint acceptance is invalid and unenforceable by reasoning that if one of the offerees wishes to settle, but the other does not, then the willing offeree could be forced to pay the opposing side’s costs and fees. See Gorka, 989 So.2d at 1213; majority op. at 651. But a proper interpretation of how the rule and statute function demonstrates that this concern is misplaced.

Section 768.79(4) provides: “An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.” Rule 1.442(f)(1) also states that a proposal may be “accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.” So, in this instance, the joint offeree who wished to settle would indicate his acceptance pursuant to the statute and rule by filing a written notice of acceptance. Because under the terms of the offer, both acceptances must be filed to constitute an enforceable agreement, the court would not have jurisdiction to enforce a settlement agreement under the statute. However, how the co-plaintiffs are treated for costs recovery is controlled by the statute.

Section 768.79(6)(a) provides for an award of reasonable costs “[i]f a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer.” In the event a plaintiff accepts by filing the requisite notice of acceptance with the court, then there could be no recovery under the statute from that plaintiff. On the other hand, if a plaintiff does not file the requisite notice of acceptance, then the plaintiff who has not accepted is subject to the terms of the costs recovery statute.

To interpret these provisions any other way effectively eliminates the ability to make joint offers. In many instances, a party is motivated to settle an entire case with all parties because the litigation is expensive, distracting, and unpleasant. But if the case is going to continue, then there may be little incentive to partially settle. The only way then to settle these cases is to make joint offers conditioned on all accepting, as Fund did in this instance. This encourages settlement, consistent with the intent of the statute, and should be enforced by the Court as a valid condition of settlement.

I would approve the First District’s decision in Clements and quash the Second District’s decision in Gorlca. Accordingly, I respectfully dissent.

QUINCE, C.J., and CANADY, J., concur.

      . The 2004 version of the statutes and rules of procedure are applicable to this decision. However, there has been no significant amendment to the statutes or the rules since 2004 with regard to the issue presented. Therefore, the law in this respect remains substantively unchanged.

      . Gorka v. Attorneys’ Title Ins. Fund, Inc., 944 So.2d 991 (Fla. 2d DCA 2006) (table decision) (affirming final judgment in favor of Attorneys’ Title).

      . Specifically, section 768.79 provides in part as follows:
      (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer....
      (2) ... An offer must:
      (a) Be in writing and state that it is being made pursuant to this section.
      (b) Name the party making it and the party to whom it is being made.
      (c) State with particularity the amount offered to settle a claim for punitive damages, if any.
      (d) State its total amount.
      § 768.79(l)-(2), Fla. Stat. (2004).

      . Rule 1.442(c) provides in part:
      (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
      (2) A proposal shall:
      (A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
      (B) identify the claim or claims the proposal is attempting to resolve;
      (C) state with particularity any relevant conditions;
      (D) state the total amount of the proposal and state with particularity all non-monetary terms of the proposal;
      (E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
      (F) state whether the proposal includes attorneys’ fees and whether attorneys' fees are part of the legal claim; and
      (G) include a certificate of service in the form required by rule 1.080(f).
      (3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party-

      . The dissent erroneously fashions its interpretation of the rule without consideration of the circumstance where a plaintiff makes an offer of judgment to the defendants. See dissenting op. at 653-54. Rule 1.442(b) definitively states that proposals for settlement may be made by either a plaintiff or a defendant, and our precedent has applied the rule of differentiated offers equally to all parties. See Willis Shaw, 849 So.2d at 278-79.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Jairon Jamaar DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2820.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 11, 2010.
    Jairon Jamaar Dorsey, pro se.
   VILLANTI, Judge.

This appeal from the summary denial of Jairon Dorsey’s motion pursuant to Florida Rule of Criminal Procedure 3.800(a) is dismissed for lack of jurisdiction and remanded for further proceedings.

Dorsey filed a motion to correct scrivener’s error pursuant to rule 3.800(a) to which the circuit court clerk’s office affixed its stamp reflecting an April 15, 2009, filing date. The circuit court judge denied Dorsey’s motion by writing “Denied,” his signature, and the date April 16, 2009, on the face of the motion. This perfunctory notation produced the kind of order that this court has frowned upon many times in the past. See Suleiman v. State, 861 So.2d 1175, 1176 (Fla. 2d DCA 2003) (Fulmer, J., concurring and citing “numerous” cases). Moreover, because the only filing date on the order in our summary record refers to the date the motion was filed, it appears that the order itself has not been rendered; consequently, the order is insufficient to invoke this court’s appellate jurisdiction. See Fla. R.App. P. 9.110(b); 9.020(h); State v. Sullivan, 640 So.2d 77, 78 (Fla. 2d DCA 1994); State v. Moore, 563 So.2d 115, 116 (Fla. 2d DCA 1990); Smith v. State, 582 So.2d 796, 797 (Fla. 5th DCA 1991). In spite of being directed to supply this court with a copy of an appropriately rendered order, the circuit court judge and clerk have failed to do so.

Furthermore, even if the order had been rendered by forwarding a copy of the motion to the clerk for filing, see Suleiman, 861 So.2d at 1176 (Fulmer, J., concurring), this court would be constrained to reverse because the order contains no explanation of the court’s rationale or record attachments to refute Dorsey’s claims, nor does it inform Dorsey of his right to appeal within thirty days of rendition as required by rule 3.800(a). See Walters v. State, 994 So.2d 1230, 1230 (Fla. 2d DCA 2008); Gassaway v. State, 993 So.2d 1186, 1186 (Fla. 2d DCA 2008).

Accordingly, we dismiss this appeal and remand for entry of a final order capable of rendition and appellate review within thirty days from the date of this opinion.

KELLY and WALLACE, JJ., Concur.


author: RAMIREZ, C.J.

text:
    Mohammed ABU-GHAZALEH, et al., Appellants, v. Gerardo Martin Demerutis CHAUL, et al., Appellees.
    Nos. 3D07-3128, 3D07-3130.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.

      Cleary Gottlieb Steen & Hamilton and Boaz S. Morag; Bois Schiller & Flexner and Carlos M. Sires, Fort Lauderdale, for appellants.
    Rafferty, Stolzenberg, Gelles, Tenen-holtz & Flynn and Roger S. Robert and Christopher T. McKay, Miami, for appel-lees.
    Before RAMIREZ, C.J., and COPE, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Mohammed Abu-Ghazaleh, IAT Group, Inc., Fresh Del Monte Produce, Inc., Eduardo R. Bours, and Grupo Empresarial Agrícola Mexicano S.A. de C.V. (collectively referred to as “Abu-Ghazaleh”) appeal the trial court’s denial of their motion for attorney’s fees and costs against appel-lees William A. Van Diepen and CSI Financial Investments Company, Inc. We reverse the trial court’s denial of the motion for attorney’s fees because we conclude that Van Diepen and CSI are liable for attorney’s fees and costs, and remand to the trial court to determine the amount.

I. Factual Background

The underlying case arose from a transaction in which a Mexican corporation, Grupo Empresarial Agrícola Mexicano, sold its shares of two subsidiary companies, Fresh Del Monte Produce N.V. and Global Reefer Carriers Ltd., to Abu-Gha-zaleh. The shareholders in the Mexican corporation, plaintiffs below, claimed a de facto interest in the parent company’s ownership of the shares. They alleged that Abu-Ghazaleh committed civil theft and conspiracy to commit civil theft. Around September of 2002, prior to the start of litigation, the plaintiffs entered into an agreement with Van Diepen and CSI. Neither Van Diepen nor CSI were named parties to the litigation. Van Diepen, however, financed and controlled the litigation. He was to receive 18.33% of any award the plaintiffs received plus reimbursement for the expenses of the case. Additionally, Van Diepen had to approve the filing of the lawsuit; controlled the selection of the plaintiffs’ attorneys; recruited fact and expert witnesses; received, reviewed and approved counsel’s bills; and had the ability to veto any settlement agreements. Van Diepen even paid $13,000 for the medical expenses of plaintiffs’ main witness.

After the jury returned a verdict in favor of Abu-Ghazaleh, defendants motioned for attorney’s fees and costs under sections 57.041, 768.79, and 772.11, Florida Statutes (2007). Abu-Ghazaleh argued that they were entitled to attorney’s fees and costs because the plaintiffs’ civil theft claims lacked substantial legal support. Abu-Ghazaleh also filed a similar motion against Van Diepen and CSI. The trial court entered judgment consistent with the jury’s verdict. The plaintiffs thereafter appealed the final judgment to this Court, and the trial court stayed the motion for attorney’s fees and costs pending the outcome of the appeal. See Chaul v. Abu-Ghazaleh, 994 So.2d 465 (Fla. 3d DCA 2008).

Abu-Ghazaleh also filed a motion for discovery against Van Diepen and CSI to determine the level of their involvement in the litigation. After holding argument on Abu-Ghazaleh’s motions, the trial court denied all three motions. The denial of these motions forms the basis of this appeal.

II. Legal Analysis

A. Attorney’s Fees Issue

Abu-Ghazaleh appeals the denial of their motion for attorney’s fees against Van Diepen and CSI. To recover fees, Abu-Ghazaleh must prove that the non-named plaintiffs, Van Diepen and CSI, were “parties” within the meaning of sections 57.041, 768.79, and 772.11 of Florida Statutes (2007) for attorney’s fees. Van Diepen and CSI argue that because they were not parties to the litigation, they cannot be liable for attorney’s fees to Abu-Ghazaleh. Abu-Ghazaleh argues that under the terms of the financial agreement, Van Diepen inserted himself into the litigation.

To prove their entitlement to attorney’s fees under the civil theft statute, Abu-Ghazaleh must show that the civil theft suit “was without substantial fact or legal support.” § 772.11, Fla. Stat. (2007). We agree with Abu-Ghazaleh’s argument that this Court’s holding in Chaul that the shareholders lacked standing meets this burden. See Chaul, 994 So.2d at 466. Van Diepen and CSI contend that they cannot be liable because they did not file the suit.

Abu-Ghazaleh must also show that they presented Van Diepen and CSI with an offer of judgment to recover under section 768.79, Florida Statutes (2007). Van Diepen and CSI argue that the statute is inapplicable because Abu-Ghazaleh never presented them with such an offer.

1. The Party Status Issue

We disagree that Van Diepen’s and CSI’s involvement in the litigation does not rise to the level of “party” status. This Court has previously stated that a “party” “is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.” Visoly v. Security Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000).

“[T]he word party includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or not. Fong Sik Leung v. Dulles, 226 F.2d 74, 81 (9th Cir.1955). ‘Parties include, not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of the proceedings ... ’ Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal.1898).” Lage v. Blanco, 521 So.2d 299, 300 (Fla. 3d DCA 1988) (emphasis in original) (also cited by Visoly, 768 So.2d at 489).

Van Diepen and CSI clearly have risen to level of a party. The agreement stated that Van Diepen and CSI had to approve counsel for the plaintiffs. The litigation costs were paid for pursuant to the agreement. They had veto power over whether the litigation was filed, who would file it and how it would be pursue. Van Diepen even paid $13,000 worth of expenses for one of plaintiffs main witnesses. Further, the agreement allowed for Van Diepen and CSI to have the final say over any settlement agreements proposed to the plaintiffs. In return for funding the suit, Van Diepen was to receive 18.33% of any sum awarded to the plaintiffs. All of these facts point to the fact that Van Diepen indeed had “such control thereof as to be entitled to direct the course of the proceedings” and was a party to the suit. Id.

Despite Van Diepen’s arguments to the contrary, Visoly and Lage are not distinguishable from the present facts. In both cases, this Court had to determine at the onset whether or not the non-named plaintiffs were parties for purposes of recovering attorney’s fees under section 57.105, Florida Statutes. Lage, 521 So.2d at 300; Visoly, 768 So.2d at 489. Van Diepen argues that the cases are distinct to section 57.105 motions. However, this Court first ruled that the non-named plaintiffs were indeed parties. Only then did we address the issue of attorney’s fees. We find no difference between section 57.105 attorney’s fees and those Abu-Ghazaleh requested in this case. Thus, we conclude that Van Diepen and CSI were indeed “parties” in the underlying litigation.

2. The Civil Theft Issue

We further conclude that Abu-Gha-zaleh has shown that they are entitled to attorney’s fees under the civil theft statute. The civil theft statute states that the defendant “is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support.” § 772.11, Fla. Stat. (2007). To recover under this section, the defendants must show that the plaintiffs, and through them Van Diepen and CSI, filed a civil theft claim that was without “substantial legal support.” § 772.11, Fla. Stat. (2007).

When the Mexican plaintiffs appealed to this Court, we reversed the trial court’s denial of the motion for summary judgment as the plaintiffs did not have standing to bring the case. See Chaul, 994 So.2d at 466. The defendants argue, and we agree, that because the plaintiffs never had standing to bring the civil theft case, they “raised a claim that was without substantial legal support.” As such, the Mexican plaintiffs are liable under the civil theft statute for attorney’s fees and costs.

Van Diepen and CSI are likewise liable for the attorney’s fees incurred when they filed a civil theft suit that lacked substantial legal support. As we have already discussed, Van Diepen and CSI are also parties to the litigation.

3. The Offer of Judgment

We agree with Van Diepen and CSI that section 768.79, Florida Statutes (2007), upon which Abu-Ghazaleh also sought fees, does not apply in this case. That section involves the issue of attorney’s fees after the defendant makes an offer of judgment and the plaintiff rejects the offer.

The statute provides that “the offer shall be served upon the party to whom it is made.” § 768.79, Fla. Stat. (2007). Here, Abu-Ghazaleh made an offer to the named plaintiffs, but never served Van Diepen or CSI with the offer. Neither Van Diepen nor CSI were named or apportioned an amount in the offer of settlement as the statute prescribes.

For these reasons, we find that Abu-Ghazaleh did not comply with the requirements of section 768.79 and cannot collect attorney’s fees under this section. Abu-Ghazaleh can still recover attorney’s fees, however, under the civil theft statute as we have addressed above.

B. Discovery Issue

We now turn to the issue of whether the trial court should have granted Abu-Ghazaleh’s motion for discovery. We conclude that there is no need for additional discovery because the financial agreement between Van Diepen and the named plaintiffs sufficiently established that Van Diepen was a party under Florida law for the purposes of attorney’s fees and costs incurred in the litigation.

III. Conclusion

For the above stated reasons, we reverse the trial court’s denial of the defendants’ motion for attorneys’ fees and costs and remand for a determination as to the amount of fees. Because we believe that there was enough evidence in the record, we do not believe additional discovery is necessary.

Reversed and remanded.

      . This Court ruled that the trial court should have granted Abu-Ghazaleh's motion for summary judgment. We also granted the defendants' cross-appeal of the trial court’s dismissal of its motion for summary judgment and determined that the plaintiffs lacked standing to bring the suit in the first place, and that the trial judge should have granted summary judgment for the defendants.


author: PER CURIAM.

text:
    Johnny WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5288.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Johnny Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

HAWKES, C.J., BENTON and THOMAS, JJ„ concur.


text:
    Sandra MASON, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2917.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Amanda E. Heystek of Advocacy Center for Persons With Disabilities, Inc., Tampa, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


author: FARMER, J.

text:
    Drew C. HARTLEY, Appellant, v. Walter A. McNEIL, Appellee.
    No. 4D09-1299.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Drew C. Hartley, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for appel-lee.
   FARMER, J.

Defendant is serving a prison sentence at a Department of Corrections (DOC) facility in Martin County. He was charged with a disciplinary violation, found guilty, and suffered the loss of BO days of accrued gain time. In a petition for mandamus filed in the Nineteenth Circuit, he challenged the DOC action, asserting that the hearing investigator did not follow DOC procedures during the interview and investigation, resulting in the absence of required witness testimony during the disciplinary proceeding. ' He alleged he had exhausted administrative remedies and did not claim entitlement to immediate release.

On his own motion and without prior notice or hearing, the trial judge assigned to the action ordered that the case be transferred to the Second Circuit, Leon County, where DOC has its headquarters. The court did not provide him with notice of its intention to transfer the case or give him an opportunity to be heard. He appeals the order.

Initially, we note that a DOC disciplinary order taking away gain time has been reviewed by petition for mandamus in the circuit where the prison is located. See Smiley v. State, 948 So.2d 964 (Fla. 5th DCA 2007) (mandamus is the accepted remedy for circuit court review of Department of Corrections disciplinary actions).

In Smith v. McDonough, 955 So.2d 644 (Fla. 4th DCA 2007), involving the same kind of proceeding, we reversed the identical judicial action sending the case to Leon County without prior notice or hearing. We required the trial court to hold a hearing as to whether the “sword-wielder” venue doctrine even applied to this kind of proceeding. We did so upon the concession of DOC that the prisoner was entitled to such notice and hearing before his case was taken from his choice of available venue. As the court in Fish & Wildlife Conservation Commission v. Wilkinson, 799 So.2d 258, 260-61 (Fla. 2d DCA 2001), reasoned:

“pursuant to established case law, the burdens shift back and forth between the parties. When an agency wishes to challenge a plaintiffs venue selection, it must first raise the issue in a motion to dismiss or an answer. It has the burden to prove its right to the governmental home venue rule. Typically the headquarters of the agency is established by law or is otherwise an admitted fact, and no additional evidence is required to prove the general application of the home venue privilege. The burden then shifts to the plaintiff to plead and prove facts establishing an exception to the general rule. If the plaintiff pleads these allegations and presents evidence to establish the sword-wielder exception, then the agency must respond with conflicting evidence or the plaintiff prevails on its venue selection. Finally, if the agency responds with conflicting evidence, then the burden of persuasion returns to the plaintiff, and the trial court must resolve the factual dispute.” [C.O.]

799 So.2d at 260-61. We agree. Because the burden is initially on the agency to object and prove improper venue, it is ordinarily error for the trial judge to raise the issue and then decide it without notice or hearing.

We call the attention of the parties to the Fifth District’s decision in Smiley, above, where there was no issue raised by DOC with venue placed where the DOC facility was located and where the disciplinary hearing itself was conducted and concluded.

Reversed.

WARNER and LEVINE, JJ., concur.

      . See Fla. R.App. P. 9.130(a)(3)(A) (party may seek non-final review of trial court orders concerning venue).


author: WETHERELL, J.

text:
    Lottie M. MULDROW, Marcia M. Sanders, Philip R. Sanders, and Victoria Homeowners Association, Inc., Appellants, v. James JONES and Catherine Jones, Jim Walter Homes, Inc., and Blue Sky Development, Inc., Appellees.
    No. 1D09-3443.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Rehearing Denied May 21, 2010.

      Robert Woolfork, of the Woolfork Law Firm, Tallahassee, for Appellants.
    Stephen Marc Slepin, of Maddox Horne, PLLC, Tallahassee, for Appellees, James Jones and Catherine Jones.
   WETHERELL, J.

This is the fifth time that the dispute between these same parties over the ownership of the same parcel of land has been before this court, including a prior appeal and three original writ proceedings. In the prior appeal, Jones v. Muldrow, 921 So.2d 762 (Fla. 1st DCA 2006), we affirmed the final judgment in favor of the Mul-drows in a quiet title action filed by the Joneses concerning a disputed strip of land allegedly lying between the parties’ property, and remanded the case for additional fact-finding on the boundary-by-acquiescence defense raised by the Muldrows. In this appeal, the Muldrows seek review of the final summary judgment in favor of the Joneses on their subsequent complaint for ejectment and trespass of title. We reverse for the reasons that follow.

The Joneses own a 12.497-acre parcel of land in unincorporated Leon County. The Muldrows own a 7.95-acre parcel immediately to the south of the Joneses land. In 1995, the Muldrows surveyed their property and subdivided it into six lots. They conveyed one of the lots to the Sanders.

The Muldrows previously owned the parcel now owned by the Joneses. The Muldrows purchased the parcel from the Joneses’ predecessor-in-title, the Shaws, in 1979. However, the Muldrows transferred the parcel back to the Shaws in 1981 pursuant to a final judgment of cancellation and rescission. The Joneses thereafter acquired the parcel from the Shaws in 1982.

The Joneses contend that the Muldrows failed to deed the entire 12.497-acre parcel back to the Shaws in 1981 as required. The part allegedly withheld was a 90- to 100-foot wide strip of land between the parties’ properties. The Joneses argue that, in creating the subdivision, the Mul-drows wrongfully encroached on this strip of land that properly belonged to the Joneses.

The dispute between the parties appears to stem from the fact that the “root of title” deed for the Joneses’ parcel described the parcel in chains and alternatively in feet based upon a 1973 survey. Although the deed explains that these descriptions are intended to refer to the same parcel of land, the Joneses contend that the 1981 deed from the Muldrows to the Shaws did not transfer the entire parcel because it only described the parcel in feet. The 1982 deed from the Shaws to the Joneses also described the parcel only in feet, but the Shaws later issued a quit claim deed to the Joneses which included the description in chains.

The dispute is further aggravated by the fact that the deed for the Muldrows’ parcel describes the land using only chains. The parcel was professionally surveyed in 1995 using the chains description, and the survey shows the northern boundary of the Muldrows’ property abutting the southern boundary of the Joneses’ parcel, as surveyed in 1973, with no overlap. The 1995 survey provided a description in feet for Muldrows’ property, which does not exactly correspond to the chains description but does correspond to the acreage stated in the Muldrows’ deed. The survey was recorded when Muldrows subdivided their property.

The trial court accepted the Joneses’ argument, finding that “[w]hether by mistake, inadvertence, artifice, or legerdemain, the deed re-conveying the property to the Shaws contained a property description which failed to convey the entire 12.497 acres to the Shaws” and that the Muldrows’ subsequent conveyance of the subdivided lots containing the improperly retained portions of the Joneses’ parcel was “not legally effective.” The trial court rejected the Muldrows’ affirmative defense that the Joneses’ claims were barred by res judicata, stating that although the parties in this case were the same as the parties in the prior litigation, “the same legal issues were not decided.” The trial court granted the Joneses’ motion for summary judgment and entered judgment against the Muldrows.

We review the trial court’s grant of summary judgment de novo. Volusia County v. Aberdeen, 760 So.2d 126, 130 (Fla.2000). We conclude that the trial court erred in granting summary judgment in favor of the Joneses; the trial court should have entered judgment in favor of the Mul-drows.

First, the trial court erred in concluding that the 1981 deed from the Mul-drows to the Shaws conveyed something less than the entire 12.497-acre parcel that is now owned by the Joneses. The property was described in the 1981 deed by the same feet description that was contained in the 1979 deed through which the Mul-drows obtained title from the Shaws. The fact that the 1981 deed did not also include the chains description that was in the 1973 deed is immaterial because it is undisputed that the chains description and the feet description were describing the same parcel of land.

Second, the trial court erred in concluding that the Muldrows conveyed or subdivided any portion of the Joneses’ parcel. The undisputed evidence of record shows that the Muldrows’ parcel does not overlap any portion of the Joneses’ parcel because the northern boundary of the Mul-drows’ property, as surveyed in 1995, abuts the southern boundary of the Joneses’ property, as surveyed in 1973.

Third, the trial court erred in determining that the Joneses’ claims were not barred based upon the prior litigation between the parties. The two actions involved the same parties and the same issue. Both cases involved the possession and ownership of the same disputed strip of land.

In the prior case, the parties fully litigated the issue as to whether the Mul-drows’ parcel, as depicted in the 1995 survey, encroached into the Joneses’ parcel. The trial court in that case made detailed findings based upon a review of the deeds, the surveys, and a view of the property where the court walked the parcels with the parties and observed the markers from the 1973 survey. The trial court ultimately found that “the Muldrow’s 1995 survey is accurate and valid so that its recordation does not amount to a cloud on the Joneses title.” We affirmed that finding on appeal. Jones, 921 So.2d at 762.

In the present case, the Joneses claimed that the Muldrows trespassed, wrongfully occupied, and wrongfully claimed title to a portion of the Joneses’ parcel. These claims were premised on the same material allegations that the quiet title action was based, namely that the Muldrows improperly retained a portion of what is now the Joneses’ parcel in 1981 when they transferred the parcel back to the Shaws. The trial court in the prior action determined the claim of title to the disputed strip of land, and concluded that the Joneses were not the legal title owners of the disputed property. This court affirmed that ruling, which is conclusive as to the issue raised in this case and thus precludes the Joneses from seeking possession of the property under right of title in this case. See Johnson v. Young, 964 So.2d 719, 721 (Fla. 3d DCA 2007).

For these reasons, we reverse the final summary judgment in favor of the Joneses and remand for entry of judgment in favor of the Muldrows.

REVERSED and REMANDED with directions.

HAWKES, C.J., and ROWE, J., concur.

      . Muldrow v. Jones, 995 So.2d 958 (Fla. 1st DCA 2008) (table); Jones v. Muldrow, 921 So.2d 762 (Fla. 1st DCA 2006); Muldrow v. Jones, 866 So.2d 1215 (Fla. 1st DCA 2004) (table); Muldrow v. Jones, 865 So.2d 486 (Fla. 1st DCA 2004) (table).

      . The notice of appeal in this case was filed on behalf of Mr. and Mrs. Muldrow, Mr. and Mrs. Sanders, and Victoria Park Flomeowners Association, Inc. The Joneses filed a motion to dismiss Mr. Muldrow's appeal as untimely because, unlike the other appellants, he did not seek rehearing of the order on appeal. We granted the motion and dismissed Mr. Muldrow’s appeal in an unpublished order. However, for ease of reference, we will continue to refer to the appellants collectively as "the Muldrows.”

      . The Marketable Record Titles Act declares that a person has a marketable record title when the public records disclose a "root of title” transaction, which is a transaction that has been recorded for at least 30 years. §§ 712.01(2), 712.02, Fla. Stat.

      . In older deeds, distances were measured in chains with links of a known length, such as a Gunter's Chain. The Gunter’s Chain was designed and introduced in the early 1600's by English clergyman and mathematician Edmund Gunter to enable plots of land to be accurately surveyed and plotted. One chain equals 66 feet.


text:
    Esterve LOUIS, Appellant, v. HOOTERS OF WEST PALM BEACH/United Self Insured Services, Appellees.
    No. 1D10-0263.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Rehearing Denied May 21, 2010.
    Marcos R. Gonzalez of Gonzalez <& Garcia, West Palm Beach, for Appellant.
    Katherine A. Mockler, West Palm Beach, for Appellees.
   PER CURIAM.

Pursuant to Rule 9.315, Florida Rules of Appellate Procedure (2008), we find the Claimant failed to demonstrate a preliminary basis for reversal and summarily affirm the JCC’s order denying Claimant’s motion for a final merits hearing on his 2007 petition for benefits (PFB). Fla. RApp. P. 9.315 (2008).

In 2007, the Claimant filed a PFB requesting various compensation benefits from the Employer/Carrier (E/C). Shortly thereafter, the Claimant filed a “Notice of Resolution of Issues,” advising the JCC that the parties had resolved the claim and requesting that the JCC cancel a previously scheduled final hearing. The JCC canceled the final hearing and no further action was taken regarding the 2007 PFB.

In 2008, Claimant filed a second PFB renewing the request for benefits made in the 2007 PFB. The E/C responded by filing a “Motion For Summary Final Order,” alleging (1) Claimant’s Notice of Resolution of Issues acted as a dismissal of the 2007 PFB, thus ceasing the tolling of the statute of limitations on the claim; and (2) the statute of limitations expired before the Claimant filed the 2008 PFB.

Following an evidentiary hearing, the JCC granted the E/C’s motion and dismissed the 2008 PFB with prejudice. The JCC did not specifically reference the 2007 PFB in the final order; however, based on the arguments presented at the hearing and in the E/C’s “Motion For Summary Final Order,” it is reasonable to infer the JCC determined the Claimant’s 2007 “Notice of Resolution of Issues” was tantamount to a notice of voluntary dismissal and that the statute of limitations on Claimant’s 2008 PFB had expired. See Airey v. Wal-Mart, 24 So.3d 1264 (Fla. 1st DCA 2009).

Moreover, Claimant’s opportunity to have the JCC expressly rule on whether the “Notice of Resolution of Issues” operated as a voluntary dismissal of the 2007 PFB passed when he failed to bring this issue to the JCC’s attention following the order dismissing the 2008 PFB. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (holding failure to rule “on a fully tried issue” will be considered a denial of claim for jurisdictional reasons); see also Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234-35 (Fla. 1st DCA 2008) (holding error appearing for first time in final order must be brought to JCC’s attention to preserve issue for appellate review).

Accordingly, we find Claimant has failed to demonstrate a basis for reversal and summarily affirm the JCC’s order.

AFFIRMED.

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


text:
    Michael FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0135.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Rehearing Denied June 2, 2010.
    W. Charles Fletcher of the Law Office of Charles Fletcher, Jacksonville, for Appellant.

      Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant prevailed on a claim of ineffective assistance of appellate counsel in a previous appearance before this court, see Flowers v. State, 965 So.2d 1233 (Fla. 1st DCA 2007), and he was granted a new direct appeal on two issues: whether the trial court failed to conduct a proper hearing under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and whether his sentence was illegal. He is now before the court on the new direct appeal. We affirm as to the Nelson issue but grant him a new direct appeal, once again, on the sentencing issue.

In our previous opinion, we concluded that the defendant would have had a reasonable probability of success in his original direct appeal on a sentencing issue, but that he did not receive effective assistance of counsel, because the lawyer appointed to represent him on appeal failed to preserve the issue by filing a motion under rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. We explained that we could not decide the sentencing issue on the merits, because it had not yet been presented to the trial court.

The appellate lawyer representing the defendant in the present appeal argued that the previous appellate lawyer was ineffective. However, that issue was determined in the prior opinion of this court. Evidently, the lawyer representing the defendant in the present appeal misunderstood our previous opinion. He did not preserve the sentencing issue for review on the merits by filing a rule 3.800(b)(2) motion in the trial court. As a consequence of this apparent misunderstanding, appellate counsel failed to cure the deficiency identified in the opinion. The posture of the case remains the same: the defendant still has a reasonable possibility of success on a sentencing issue that has not yet been preserved for review on appeal.

The procedural error cannot be corrected in this review proceeding, because the defendant has already filed an initial brief. Additionally, the lawyer appointed to represent the defendant in this proceeding has now moved to withdraw as counsel. In these circumstances, we conclude that we must grant the defendant a new direct appeal on the sentencing issue. A copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a timely notice of appeal. If the defendant qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

We emphasize that the new appellate lawyer will be required to file a rule 3.800(b)(2) motion in the trial court prior to filing the initial brief, in order to cure the deficiency we have identified. Then, assuming counsel can make a good faith argument on the merits of the sentencing issue, that argument should be made in the defendant’s initial brief. Because this proceeding has been concluded, we deny the motion to withdraw filed by the defendant’s present appellate counsel. The defendant is entitled to a new direct appeal only as to the sentencing issue, and he will begin the appeal again with a different appellate lawyer.

Affirmed in part and remanded.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: ROBERTS, J.

text:
    AMERICAN CAPITAL ASSURANCE CORP., Appellant/Cross-Appellee, v. COURTNEY MEADOWS APARTMENT, L.L.P., a Florida Corporation, Appellee/Cross-Appellant.
    No. 1D09-2940.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Rehearing Denied June 2, 2010.
    Guy E. Burnette, Jr. and A. Dean Johnson of Guy E. Burnette, Jr., P.A., Tallahassee, for Appellant/Cross-Appellee.
    Diane H. Tutt, of Diane H. Tutt, P.A.; P. Campbell Ford of Ford, Miller & Warner, P.A., Jacksonville Beach, for Appel-lee/Cross-Appellant.
   ROBERTS, J.

In this interlocutory appeal, the appellant, American Capital Assurance Corporation (the insurer), and the appellee, Courtney Meadows Apartment, L.L.P. (the insured), both challenge the trial court’s non-final order denying in part and granting in part the insurer’s motion to compel appraisal. The insurer raises two issues on appeal, only one of which merits discussion. Specifically, the insurer argues the trial court erred in denying a portion of its motion to compel appraisal because its demand was untimely. The insured argues on cross-appeal that the trial court erred in granting appraisal of four items that had not been adjusted. We agree with both parties and reverse and remand.

The dispute underlying this appeal began when the insurer issued a policy of insurance to the insured covering the Courtney Meadows apartment complex (the complex). The policy contained the following provisions relevant to this appeal. Regarding appraisal, section E.2. of the policy provided, in part:

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss.

Regarding loss payment, section E.4. of the policy provided:

a. In the event of loss or damage covered by this Coverage Form, at our option, we will either:
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or damaged property ... [;]
(B) Take all or any part of the property at an agreed or appraised value; or (4) Repair, rebuild or replace the property with other property of like kind and quality ...[.]
c. We will give notice of our intentions within 30 days after we receive the sworn proof of loss.
g. We will pay for covered loss or damage within 30 days after we receive the sworn proof of loss, if you have complied with all of the terms of this Coverage Part and:
(1) We have reached agreement with you on the amount of loss; or
(2) An appraisal award has been made.

On June 1, 2008, a microburst hail storm caused damage to the complex, after which the insured filed a claim. In July 2008, the parties met to discuss the extent of damage to the complex. The insurer believed a majority of the complex’s damaged roofs could be repaired, but the insured believed the same needed replacing. On October 3, 2008, the insurer sent the insured a final estimate, which indicated that only the office roof needed to be replaced and that the remaining roofs in the complex could be repaired. The final estimate also included other items of loss and estimated the total amount of damage at $168,285.98. On October 22, 2008, the insurer tendered a check to the insured for said amount and asked the insured to file a sworn proof of loss. The accompanying correspondence also stated that if the parties were unable to resolve the dispute the insurer may wish to proceed with appraisal.

In a November 11, 2008, correspondence from its attorney, the insured completely rejected the insurer’s check as a gross under-evaluation of the claim and refused to provide the sworn proof of loss. The insured noted it was in agreement with the portion of the final estimate regarding the following items of loss: heat, vent, and air conditioning; window reglazing; and painting the gazebo. The insured also informed the insurer of additional items of loss that were not included in the final estimate, specifically: the trash compactor area, interior building work, the garage fascia, and pillar damage.

In a November 18, 2008, letter to the insured, the insurer demanded appraisal. On December 23, 2008, the insured filed a complaint, which was subsequently amended, seeking declaratory relief and alleging numerous breaches of contract. The insurer in turn moved to dismiss and/or abate the action and to compel appraisal, arguing that it had properly invoked the appraisal process under the terms of the policy.

A hearing was held on the insurer’s motion. The insured argued that the insurer’s pre-suit and post-suit conduct demonstrated a waiver of the appraisal clause of the policy and that, under the terms of the policy, the insurer’s invocation of appraisal was untimely. The trial court agreed that the appraisal demand was untimely, finding that, when an insurer admits liability and coverage for loss, formal proof of loss is waived and the time in which the insurer is required to demand appraisal under the terms of the policy begins to run from its admittance of liability and coverage. The trial court cited Bear v. New Jersey Insurance Co., 138 Fla. 298, 189 So. 252 (1939); American Bankers Insurance Co. of Florida v. Terry, 277 So.2d 563 (Fla. 3d DCA 1973); Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); and Llerena v. Lumbermens Mutual Casualty Co., 379 So.2d 166 (Fla. 3d DCA 1980), to support its ruling. The trial court found that, by sending the final estimate and subsequently tendering the $168,285.98 check, the insurer admitted liability and thus waived its right to sworn proof of loss on October 3, 2008. The trial court further found sections E.4.a.(3) and E.4.c. of the policy required the insurer to notify the insured of its intention to seek appraisal within 30 days after this date, such that the insurer’s November 18, 2008, demand for appraisal was untimely. Accordingly, the trial court denied the motion to compel appraisal of the items included the final estimate, but granted the motion to compel appraisal of the additional items of loss in the insured’s November 11, 2008, correspondence (the trash compactor area, the garage fascia, pillar damage, and interior apartment damage).

The underlying insurance policy does not set forth a time limit for demanding appraisal. The policy’s appraisal language is optional in that either party “may” demand appraisal and makes no mention of a time limit in which to do so. The portion of the policy that mandates a 30-day time limit for the insurer to provide its “notice of intentions” refers to the manner in which the claim will be evaluated. In other words, within 30 days of receiving the sworn proof of loss, the insurer will either: (1) pay the value of lost or damaged property; (2) pay the cost of repairing or replacing the lost or damaged property; (3) take all or any part of the property at an agreed or appraised value; or (4) repair, rebuild, or replace the property with other property of like kind and quality. There is no indication that this provision extends to the time in which the insurer must demand appraisal.

The trial court’s reliance on the aforementioned cases to support its position is equally misplaced. In the cited cases, the policies either mandated appraisal or mandated a specific time in which to seek appraisal. For example, the policy language in Bear, stated:

In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by competent and disinterested appraisers ... the loss shall not become payable until 60 days after the notice, ascertainment, estimate and satisfactory proof of loss herein required to have been received by this company, including an award by appraisers when appraisal has been required.

(Emphasis added.) Bear, 189 So. at 253. The Bear court specifically found that the insurer had 60 days from the waiver of proof of loss to demand appraisal. Id. at 299, 189 So. 252. In Terry, the policy language is not quoted, but the court referred to a 60-day time limit in which to demand arbitration. Terry, 277 So.2d at 564. Likewise, in Llerena, the policy provided that either the insurer or the insured may demand an appraisal within 60 days following the filing of proof of loss. Llerena, 879 So.2d at 167. The court went on to find the demand for appraisal was untimely as it was outside the 60-day time limit. Id. at 167-68. The court stated:

The law is well established that when an insurer admits liability in an unagreed amount, formal proof of loss is thereby waived and the time in which the insurer is required to demand appraisal under the terms of the subject policy begins to run from the time the insurer admits liability.

(Emphasis added.) Id. at 167.

The instant case is distinguishable because there is no language in the policy that requires appraisal to be invoked, if at all, within any set time from receiving or waiving the sworn proof of loss. Thus, under the terms of the instant policy, the insurer’s demand for appraisal was not untimely. Furthermore, the insurer has not waived its right to appraisal as it has not acted inconsistently with that right from the time of demand. See Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000).

Accordingly, because the insurance contract provided for appraisal, the insurer’s demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal. See Preferred Mut. Ins. Co. v. Martinez, 643 So.2d 1101, 1102 (Fla. 3d DCA 1994); Fla. Ins. Guar. Ass’n, Inc. v. Castilla, 18 So.3d 703, 705 (Fla. 4th DCA 2009). Furthermore, granting appraisal of the items of loss in the insured’s cross-appeal was premature as those items had yet to be adjusted. Without adjustment, it is impossible to know whether the parties disputed the amount of loss to warrant appraisal. See United States Fidelity & Guar. Co. v. Romay, 744 So.2d 467, 469-70 (Fla. 3d DCA 1999).

REVERSED and REMANDED to the trial court to compel appraisal of the items of loss in the insurer’s motion that are appropriately in dispute.

WOLF and VAN NORTWICK, JJ., concur.

      . These items of loss are the subject of the insured’s cross-appeal.


author: HAWKES, C.J.

text:
    Joshua Raja CROOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1605.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Rehearing Denied May 28, 2010.

      Nancy A. Daniels, Public Defender, Tallahassee for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee for Appellee.
   HAWKES, C.J.

Appellant (the Defendant) was convicted of Aggravated Assault By Threat With Firearm. In this appeal, he challenges his conviction claiming (1) the trial court committed fundamental error when it charged the jury using an instruction that contained the language “and/or”; (2) the trial court abused its discretion by admitting unauthenticated evidence; and (3) the trial court abused its discretion in determining the State’s witnesses did not violate the rule of sequestration. We affirm the conviction and write only to address the trial court’s use of the “and/or” language in its jury instruction.

Facts

During the Defendant’s trial, State’s witnesses Ebony McCants, Ferlonda Gaines, and Quentin McCants testified to the following:

On May 24, 2008, the Defendant entered the apartment that Ms. McCants, Ms. Gaines, and Mr. McCants were sleeping in and attacked Ms. McCants. He then brandished a handgun, pointed it at Ms. McCants and threatened to shoot her. The incident caused Ms. Gaines, Mr. McCants, and Ms. McCants’ two young children to gather in the front room of the apartment. The Defendant proceeded to waive the handgun around the room, pointing it at each witness. When Ms. Gaines reached for the phone to call the police, the Defendant fired a shot at the phone. He then fired a second shot into the wall near where Ms. McCants was standing. Immediately after the Defendant left the apartment, the three victims called the police and reported the incident. All three witnesses testified they were afraid for their lives.

At the close of trial, the court read the following instruction:

3.3 AGGRAVATED ASSAULT BY THREAT WITH FIREARM
To prove the crime of Aggravated Assault By Threat With Firearm, the State must, prove the following four elements beyond a reasonable doubt.
1. JOSHUA RAJA CROOM intentionally and unlawfully threatened, either by word or act, to do violence to Ferlonda Latorrus Gaines and/or Ebony Anttionette McCants and/or Quentin Jones ...
2. At the time, JOSHUA RAJA CROOM appeared to have the ability to carry out the threat.
3. The act of JOSHUA RAJA CROOM created in the mind of Ferlonda La-torrus Gaines and/or Ebony Anttion-ette McCants and/or Quentin Jones ... a well-founded fear that the violence was about to take place.
4. The assault was made with a deadly weapon; to wit, a firearm.

Standard of Review

This Court reviews a defendant’s unpreserved claim that a trial court committed fundamental error de novo. See Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008) (holding courts are required to exercise their discretion “very guardedly,” finding fundamental error only in “rare cases” where the interest of justice compels them to do so); see also Housing Auth. of City of Tampa v. Burton, 874 So.2d 6, 8-9 (Fla. 2d DCA 2004).

Preservation

Jury instructions are subject to the contemporaneous objection rule. See State v. Delva, 575 So.2d 643, 644 (Fla.1991) (holding a trial court’s un-objected to decision regarding the reading of a jury instruction will be upheld on appeal provided it did not constitute fundamental error); see also Farina v. State, 937 So.2d 612, 629 (Fla.2006) (holding “the sole exception to the contemporaneous objection requirement is fundamental error”). In the proceedings below, Defendant did not object to the court reading a jury instruction that included the “and/or” language. Thus, to prevail, he must demonstrate the instruction resulted in fundamental error.

Fundamental Error Analysis

For a jury instruction error to be considered fundamental, it must have “reach[ed] down into the validity of the trial” to the extent that a guilty verdict “could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 644. To determine whether an instruction error vitiated the “validity of the trial,” courts conduct a totality of the circumstances analysis. See Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008) (holding “the Fourth District was correct in examining the totality of the record to determine if the “and/or” instruction met the exacting requirements of fundamental instruction error”); see also Hunter v. State, 8 So.3d 1052 (Fla.2008); and see Victorino v. State, 23 So.3d 87 (Fla.2009). Accordingly, if the totality of the circumstances indicates there is no reasonable possibility an alleged jury instruction error contributed to the verdict, the error is not fundamental. See id.; see also Farina v. State, 937 So.2d 612, 629 (Fla.2006).

Use of “and/or” Language in Jury Instructions

Prior to 2008, the Florida Supreme Court had not applied the above fundamental error analysis in a case where an un-objeeted to jury instruction was challenged for containing the phrase “and/or.” In the 2008 case of Garzon v. State, the Court entered an opinion holding: (1) the issue of whether use of the conjunction “and/or” in a jury instruction constitutes fundamental error differs in scope from Delva/Reed issues; therefore, (2) courts must conduct a totality of the circumstances analysis to determine whether it was fundamental error for a court to charge a jury with an instruction containing “and/or” language. 980 So.2d 1038, 1043 (Fla.2008).

In reaching this conclusion, the Court stated:

Though we do not find fundamental error in this ease, we do conclude that the use of the “and/or” instructions was error. We condemned the use of the phrase “and/or” over seventy years ago, and we reiterate that condemnation today. Cf. Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431, 145 So. 217, 218 (1932) (“In the matter of the use of the alternative, conjunctive phrase ‘and/ or,’ it is sufficient to say that we do not hold this to be reversible error, but we take our position with that distinguished company of lawyers who have condemned its use.”).

Id. at 1045 (quoting Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431, 145 So. 217, 218 (1932)).

Although, pursuant to Ga/rzon and its progeny, courts must analyze the specific facts of a case to determine if the totality of the circumstances demonstrate fundamental error, it is worth noting that a majority of the courts charged with deciding the specific issue of whether it is fundamental error to include the “and/or” conjunction between the names of victims in a jury instruction have ruled it is not. See e.g., Wilson v. State, 933 So.2d 598, 600 (Fla. 3d DCA 2006) (holding because the court placed the “and/or” conjunction between the names of the two victims rather than co-defendants it “in no way prejudiced [the defendant]” and did not result in fundamental error); and see Provow v. State, 14 So.3d 1134 (Fla. 4th DCA 2009) (holding “[t]he phrase ‘and/or’ may be used in a jury instruction when the law prescribes or permits the conjunctive/disjunctive logical possibility, but it may not be used when the only legal choice is disjunctive, with one negating the other, or when the selection of both creates a legally intolerable ambiguity”).

The Instant Case

As the Supreme Court made clear, it is the totality of the circumstances that dictate whether an errant instruction is fundamental error. Here, based on the totality of the circumstances, there was overwhelming evidence that the Defendant committed an assault on all three of the victims named in the instruction. Each victim testified that they were in the same room as the Defendant when he brandished a handgun, that the Defendant proceeded to point the handgun at each one of the victims while threatening to kill them, that the Defendant fired the handgun twice (once at the phone when a victim attempted to call the police, a second time into the room’s wall), and that they were each terrified that the Defendant was going to kill them.

Accordingly, we find the totality of the circumstances indicates the trial court’s use of the “and/or” language did not reach into the validity of the trial to the extent that a guilty verdict could not have been obtained without it. The trial court’s ruling is hereby affirmed.

ROBERTS and CLARK, JJ., concur.

      . In both Delva and Reed, the Supreme Court found fundamental error where a trial court failed to instruct the jury on an element of the crime. See State v. Delva, 575 So.2d 643, 644 (Fla.1991); Reed v. State, 837 So.2d 366, 370 (Fla.2002).

      . Hunter v. State, 8 So.3d 1052; Victorino, 23 So.3d 87 (determining that, based on the totality of the circumstances, the instructional error of using "and/or” in the felony murder instruction was not fundamental).


author: CLARK, J.

text:
    DELTA HEALTH GROUP, INC., d/b/a Rosewood Manor, Petitioner, v. The ESTATE OF William G. COLLINS, Deceased, by and through William T. Collins, Personal Representative, Respondent.
    No. 1D09-5263.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Rehearing Denied June 4, 2010.
    James B. Morrison, Mancuso & Dias, P.A., Palm Beach Gardens, for Petitioner.
    Louis K. Rosenbloum, Louis K. Rosenbl-oum, P.A., Pensacola, and Clay Mitchell, Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A., Pensacola, for Respondent.
   CLARK, J.

Delta Health Group, Inc., d/b/a Rosewood Manor, seeks certiorari review of a pre-trial discovery order compelling Delta to provide the plaintiff in the underlying civil action with the name, birth date, social security number, and forwarding address and contact persons, if any, of a former nursing home resident. The plaintiff seeks to locate the individual as a potential material witness to support allegations in the complaint of violations of the decedent’s rights, under chapter 400, Florida Statutes, which resulted in injury and ultimately his death. The individual has been identified by other witnesses as the roommate of the decedent and the person who alerted decedent’s family member of specific nursing home staff interactions with the decedent.

Delta asserts in its petition that the trial court’s order departs from the essential requirements of section 400.022, Florida Statutes, which provides that nursing home residents’ “personal and medical records” are confidential. § 400.022(l)(m), Fla. Stat. Because the trial court’s order does not violate any law, certiorari is denied.

The order presented for review is narrowly tailored, limiting the disclosure required to a single potential witness, allowing redaction of any medical information about that former nursing home resident, and acknowledging the former resident’s interest in privacy and confidentiality in any medical information. The record reflects that the former resident could possess information directly relevant to the allegations of the complaint. The trial court duly considered the discovery sought, the petitioner’s arguments for withholding the contact information, and the relevance and purpose of the information in the context of the pending lawsuit. The trial court properly balanced the individual former resident’s privacy considerations against the plaintiffs need for the information already possessed by the nursing home.

WRIT OF CERTIORARI DENIED.

BENTON and VAN NORTWICK, JJ., concur.


text:
    Davan DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2829.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Rehearing Denied May 24, 2010.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence. However, due to a scrivener’s error, the written judgment and sentence does not reflect the oral pronouncement of sentence. According to the record of the oral pronouncement of sentence, the appellant was sentenced to a term of 15 years’ imprisonment. Accordingly, we remand to the trial court to correct the written judgment and sentence to reflect the oral pronouncement of sentence.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: WEBSTER, J.

text:
    Joseph P. TESTA and his wife, Angela Testa, Appellants, v. SOUTHERN ESCROW AND TITLE, LLC, Commonwealth Land Title Insurance Co., and Landamerica Financial Group, Inc., Appellees.
    No. 1D09-4521.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Rehearing Denied May 24, 2010.
    Richard W. Reno, Crawfordville, for Appellants.
    Mark A. Brown, Joseph Hagedorn Lang, Jr., and Marty J. Solomon of Carlton Fields, P.A., Tampa, for Appellee Commonwealth Land Title Insurance Co.
   WEBSTER, J.

Appellants seek review of a final judgment dismissing with prejudice their multi-count complaint filed in an action arising out of a dispute regarding coverage pursuant to a policy of title insurance issued by appellee. Because we conclude that appellants could conceivably amend three of the counts to state causes of action, we reverse the dismissal of those three counts, and remand with directions that the trial court permit appellants to file an amended complaint as to those counts within a reasonable time, should appellants elect to do so. We affirm the dismissal with prejudice of the remaining counts.

Not content merely to allege a breach of the insurance contract, appellants filed a 34-count 77-page complaint against appel-lee and two related entities attempting to assert causes of action for negligence, fraud, breach of fiduciary duty, equitable and promissory estoppel, intentional infliction of emotional distress, violations of the Florida Deceptive and Unfair Trade Practices Act and the federal Racketeer and Corrupt Organizations Act, and a claim for loss of consortium by appellant Angela Testa. See Gordon v. Green, 602 F.2d 743, 747 n. 13 (5th Cir.1979) (where, chastising a plaintiffs attorneys for their utter disregard for the Federal Rules of Civil Procedure in drafting a complaint, the court said that “[cjounsel as scrivener would have been fair game for the discipline meted out by” an English Chancellor in 1596 — ordering a hole cut through the center of a particularly prolix document, and then ordering that the drafter’s head be stuffed through the hole and the drafter led around to be exhibited to all attending court at Westminster). During a hearing on the defendants’ motions to dismiss, the trial court said that it appeared that all appellants had was a breach of contract claim against appellee and a breach of fiduciary duty claim against the defendant escrow agent. The court said that, therefore, it intended to dismiss the remaining counts with prejudice, as barred by the economic loss doctrine, and entered an order to that effect. Subsequently, apparently so that they might appeal that non-final order, appellants filed a notice voluntarily dismissing their breach of contract claim against appellee. The trial court then entered a final judgment dismissing all of the counts against appellee with prejudice. As to the breach of contract claim which appellants had voluntarily dismissed, the trial court noted that, because that was their second voluntary dismissal as to appellee, the dismissal would constitute an adjudication on the merits. See Fla. R. Civ. P. 1.420(a)(1) (stating that a notice of voluntary dismissal “operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim”). This appeal follows. Our standard of review is, of course, de novo, and we are required to accept all material factual allegations as true and draw all reasonable inferences in favor of the pleader. See, e.g., Hernandez v. Tallahassee Med. Ctr., Inc., 896 So.2d 839, 841 (Fla. 1st DCA 2005).

As an initial matter, we note that, in their brief, appellants have made substantive arguments directed only to counts 11, 12, 14, 18, 19, 20, 27, 28, 33 and 34. Accordingly, they have abandoned or waived any challenge to dismissal of the remaining counts. See White v. White, 627 So.2d 1237, 1239 (Fla. 1st DCA 1993) (quoting from Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983)). As to the counts appellants have addressed substantively, we conclude that the trial court correctly dismissed with prejudice counts 11, 19, 20, 27, 28, and 33 as barred by the economic loss doctrine. See, e.g., AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So.2d 180, 181-82 (Fla.1987) (holding that, “without some conduct resulting in personal injury or property damage, there can be no independent tort flowing from a contractual breach which would justify a tort claim solely for economic losses”); Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 542 (Fla.2004) (“reiterat[ing] that when the parties have negotiated remedies for nonperformance pursuant to a contract, one party may not seek to obtain a better bargain than it made by turning a breach of contract into a tort for economic loss”). While appellants did allege personal injuries, any such claim would clearly be barred by the impact doctrine. See, e.g., R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (“[i]n essence, the impact rule requires that ‘before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact,’ ” quoting from Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). Here, the personal injuries claimed were all alleged to have been the result of “emotional distress” resulting from appellee’s actions— there were no “physical injuries ... sustained in an impact.” Because appellant Joseph Testa’s personal injury claims fail to state causes of action, appellant Angela Testa’s derivative loss of consortium claim (count 34) also fails to state a cause of action. See, e.g., Gates v. Foley, 247 So.2d 40, 45 (Fla.1971) (stating that a wife’s right of action for loss of consortium “is a derivative right and she may recover only if her husband has a cause of action against the same defendant”).

We conclude further, however, that, although they have not yet stated a cause of action because they have failed to plead “ultimate facts” showing entitlement to relief, see Fla. R. Civ. P. 1.110(b), appellants might conceivably be able to state one with regard to counts 12, 14 and 18. Count 12 appears to be a claim for vicarious liability because of a breach of fiduciary duty by appellee’s agent. While we think it unlikely that appellants will be able to plead ultimate facts sufficient to demonstrate the existence of a fiduciary duty toward them on the part of appellee’s agent, it is not inconceivable that they might. If they can, they may have a viable cause of action. See Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 542 (Fla.2004) (noting, without approval or disapproval, that some courts in Florida had refused to apply the economic loss rule to bar recovery on a claim for breach of fiduciary duty, “even if there was an underlying oral or written contract”). Count 14 is a claim seeking to hold appellee responsible for breach of an oral contract between appellant Joseph Testa and appel-lee’s agent to procure specific coverage. While that count fails to plead ultimate facts sufficient to identify the terms of the alleged oral contract, appellants may be able to amend to do so. Finally, count 18 attempts to allege a claim for promissory estoppel. While, again, ultimate facts are lacking, appellants may be able to supply them by amendment. See AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 n. 1 (Fla.1989) (where the court noted that, in Croton Life Ins. Co. v. McBride, 517 So.2d 660 (Fla.1987), it had “held that the doctrine of promissory estoppel may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice”).

Appellants asked the trial court for leave to file an amended complaint. The trial court denied that request because it was of the opinion that amendment would be futile as to all claims. Because we conclude that amendment might not be futile as to the claims sought to be asserted in counts 12, 14 and 18, and because appellants have not previously amended their complaint, see Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991), we reverse the dismissal with prejudice of counts 12, 14 and 18, and remand with directions that the trial court permit appellants to file an amended complaint as to those counts within a reasonable time, should appellants elect to do so. We affirm the dismissal with prejudice of all remaining counts against appellee.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

LEWIS and ROBERTS, JJ., concur.