author: HANKINSON, JAMES C, Associate Judge. BENTON, J.,

text:
    Marty CARMACK, Appellant, v. STATE of Florida, DEPARTMENT OF AGRICULTURE and Corvel Corporation, Appellees.
    No. 1D09-0813.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Rehearing Denied March 17, 2010.

      Laurie Thrower Miles of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    John E. DuBose, Jr., of Keough <& Du-Bose, P.A., Orlando, for Appellees.
   HANKINSON, JAMES C, Associate Judge.

This workers’ compensation appeal arises out of Claimant’s injuries suffered while working for the Division of Forestry. Claimant requested treatment for injuries to his right leg and lower back and for mental and emotional difficulties. The Employer/Carrier (E/C) accepted the com-pensability of only the leg and back conditions. Claimant requested a referral for psychiatric treatment from the Carrier and, receiving no authorization, sought treatment on his own with a psychiatrist, Dr. Walker. At the hearing, the JCC ruled that the E/C was responsible for reimbursing Claimant the cost of Dr. Walker’s treatment provided through the date of the final hearing, but the E/C was not required to provide Claimant with continued treatment by Dr. Walker. Rather, the E/C was entitled to select and authorize a psychiatrist of its choosing to provide ongoing psychiatric care.

Claimant raises two issues in this workers’ compensation appeal: (1) whether the Judge of Compensation Claims (JCC) erred in raising an issue that was not litigated by the parties; and (2) whether the JCC erred in denying authorization for ongoing care with Dr. Walker. We affirm both issues.

In support of his first issue, Claimant argues the JCC erred because he relied on a case not cited by either party. The Employer/Carrier (E/C) responds that, while it did not cite the particular case relied upon by the JCC, the case supported the specific relief sought by the E/C.

The JCC is authorized to “do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.” § 440.33(1), Fla. Stat. (2008). Florida’s appellate courts have repeatedly approved a trial judge’s ability to conduct independent legal research. See Castella v. State, 959 So.2d 1285, 1288 (Fla. 4th DCA 2007) (taking no issue with trial judge’s statement she conducted research and found two cases on point); Tarrant v. Jacoboni, 780 So.2d 344, 345 (Fla. 3d DCA 2001) (noting that “trial court may take a disqualification motion under advisement in order to perform legal research”); Mayer v. State, 523 So.2d 1171, 1173 (Fla. 2d DCA 1988) (taking no issue with trial judge’s statement that she intended to conduct further research before issuing ruling). Accordingly, the JCC did not err in relying on case law identified by his own independent research.

The second issue raised by Claimant has been touched upon by this court in the recent decisions in Butler v. Bay Center, 947 So.2d 570 (Fla. 1st DCA 2006), the case relied upon by the JCC, and Parodi v. Florida, Contracting Co., 16 So.3d 958 (Fla. 1st DCA 2009). Simply put, does the E/C retain the right to control the selection of the future treating physician after the JCC determines the E/C wrongfully denied entitlement to treatment previously requested by the claimant?

Claimant argues this court’s interpretation of section 440.13(2)(c), Florida Statutes (2005), in Butler that “the E/C is not required to authorize that physician [the one claimant obtained treatment with when the E/C failed to authorize the requested treatment] for the claimant [for future treatment]” is dicta and conflicts with other decisions of this court. 947 So.2d at 572. Claimant’s argument fails to address the 2003 amendment to section 440.13(2)(c) whereby the Legislature inserted the term “initial” before the phrase “treatment and care.” Rules of statutory construction require that when interpreting a statute, terms should be given their plain meaning. See Closet Maid v. Sykes, 763 So.2d 377, 381 (Fla. 1st DCA 2000). “[T]he primary and overriding consideration in statutory interpretation is that a statute should be construed and applied so as to give effect to the evident intent of the legislature.” Deason v. Fla. Dep’t of Com., 705 So.2d 1374, 1375 (Fla.1998) (quoting State v. Nunez, 368 So.2d 422, 423-24 (Fla. 3d DCA 1979)).

Section 440.13(2)(c) addresses only the situation whereby the employer fails “to provide initial treatment or care” (emphasis added). In such instances, an employee is entitled to obtain that “initial treatment at the, expense of the employer.” Id. (emphasis added). “Initial” is defined as “of or relating to the beginning; marking the commencement.” Webster’s Third New Int’l Dictionary 1163 (Unabridged 1967). The insertion of the word “initial” evinces the intent of the Legislature to restrict the application of this subsection to only the circumstances described therein — the “beginning” treatment for a particular condition.

Nothing in this subsection requires the employer to accept the employee’s selection for future care. Reference should instead be made to section 440.13 generally, which has long been interpreted to make clear that the employer controls the selection of the treating physicians. See TW Servs., Inc. v. Aldrich, 659 So.2d 318, 322 (Fla. 1st DCA 1994) (reversing JCC’s authorization of a specific doctor for future medical treatment because section 440.13 gives the employer the right to select treating physicians).

In Parodi, we made clear that “the JCC has the statutory authority [pursuant to section 440.13(2)(c)] to authorize a doctor for care provided during the period of wrongful denial.” 16 So.3d at 962. The “period of wrongful denial” is that time period during which the employer fails to furnish the employee medical treatment and care which a JCC finds to be medically necessary. We now make equally clear that “the period of wrongful denial” ends when the JCC finds the employee entitled to the previously denied medical treatment. The JCC did not err in denying future authorization of Dr. Walker and directing the E/C to select a phj^sician to provide Claimant with psychiatric treatment and care.

AFFIRMED.

HAWKES, C.J., concurs; BENTON,'J., dissents with opinion.

BENTON, J.,

dissenting.

The majority opinion states the issue on which I respectfully dissent from today's affirmance by asking this question:

[D]oes the E/C retain the right to control the selection of the future treating physician after the JCC determines the E/C wrongfully denied entitlement to treatment previously requested by the claimant?

Ante p. 800. Absent circumstances not present here, my answer is that the “future treating physician” should be the same as the past treating physician.

At issue is whether the employer or carrier should be allowed to disrupt an existing patient-physician relationship — of a kind deemed medically necessary on account of an industrial accident — when the injured employee wants to continue treatment with the same physician. Whether initially authorized by the employer, the carrier, or — left to his or her own devices upon the employer’s and carrier’s failure to meet their statutory obligations — the injured employee, the “incumbent” physician should be allowed to continue to treat the injured employee.

When the employer accepts an injury as compensable and recognizes the treatment a claimant seeks for a compensable injury as medically necessary, it is for the employer or its insurance carrier to choose which certified health care provider to authorize. In those circumstances, “a certified health care provider ... must receive authorization from the carrier before providing treatment.” § 440.13(3)(a), Fla. Stat. (2008). See City of Bartow v. Brewer, 896 So.2d 931, 933 (Fla. 1st DCA 2005) (“Section 440.13(2)(c), Florida Statutes, does not authorize the JCC to order treatment with a specific physician, where the E/C promptly offers qualified alternatives.”); TW Servs., Inc. v. Aldrich, 659 So.2d 318, 320 (Fla. 1st DCA 1994) (“We agree with the E/SA that it should not have been ordered to pay Dr. Hafling’s medical bills because he was never authorized and because the E/SA offered psychological treatment [by another provider] as soon as it was aware that it was needed.”).

But the right to select which medical provider to authorize initially can be forfeited. That is why the judge of compensation claims in the present case ordered Dr. Walker’s treatment reimbursed even though appellees never authorized the treatment. As we recently explained in Parodi v. Florida Contracting Co., 16 So.3d 958, 961 (Fla. 1st DCA 2009), the “employer’s right to select and/or ‘authorize’ doctors from whom an employee may receive treatment is concomitant with its affirmative duty to provide appropriate care at the appropriate time.”

Thus, so long as the employer fulfills its duty, it retains the right to select and authorize the physicians to treat the injured worker. See Butler v. Bay Ctr., 947 So.2d 570, 572 (Fla. 1st DCA 2006). When an employer abandons its obligation to provide appropriate care, however, it likewise surrenders to the injured employee the right to select a physician and obtain treatment, provided the care is “compensable and medically necessary.” § 440.13(2)(c), Fla. Stat. (2003).

Id. at 961-62. The employer in the present case did not fulfill its duty. It abandoned its statutory obligation to provide Mr. Carmack appropriate care when it refused to authorize a psychiatrist to evaluate or treat him. Because the employer and carrier failed to furnish medically necessary remedial treatment, Mr. Carmack, as the injured employee, had to select a physician on his own in order to obtain treatment, treatment which — at this juncture — no party disputes was medically necessary.

Like the judge of compensation claims, however, the majority opinion relies heavily on obiter dicta in Butler v. Bay Center/Chubb Insurance Co., 947 So.2d 570 (Fla. 1st DCA 2006), even though Butler differs dramatically from the present case: Butler filed a petition for benefits, requesting authorization for treatment with a specific pain management physician, even though the employer (or carrier on its behalf) had authorized an appointment with a different pain management physician. The Butler court held that because the employer or carrier there — in stark contrast to appellees here — had timely offered medical care in response to the petition for benefits, the judge of compensation claims could not award authorization of the specific physician sought by Butler. Id. at 572. See also Aldrich, 659 So.2d at 322. Although not pertinent here, the Butler court also ruled that section 440.13(2)(f), Florida Statutes, did not authorize the employee to make a one-time “change” where the employee never even saw the initially authorized physician. Butler, 947 So.2d at 572-73.

Whether or when an employer or carrier could require a change of physicians over the injured employee’s objection were not issues in Butler. On this question, we have said: “ ‘[OJnce an injured employee establishes a satisfactory physician-patient relationship with an authorized physician, the e/c may not deauthorize that physician without the employee’s prior agreement or without approval of a [JCC].... In this situation the focus should be on the question of why an authorized physician should no longer provide care, thereby severing an established physician-patient relationship.^ ] (emphasis supplied).” City of Bartow, 896 So.2d at 933-34 (quoting Stuckey v. Eagle Pest Control Co., 531 So.2d 350, 351 (Fla. 1st DCA 1988)). In interpreting section 440.13, Florida Statutes, as it existed after July 1, 1990, but before the 1994 amendments took effect, we acknowledged that “an E/C had the statutory right to unilaterally deauthorize a health care provider based on overutilization without prior JCC approval, but noted that the JCC still retained the authority to determine after the fact whether deauthorization had been in the claimant’s best interests in terms of the claimant’s continuing need for medical services.” Terners of Miami Corp. v. Busot, 764 So.2d 701, 703 (Fla. 1st DCA 2000).

The current statutory basis for “de-au-thorization” appears in subsection 440.13(2)(d), which provides: “The carrier has the right to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation.” See Ch. 93-415, § 17, at 101, Laws of Fla. No such independent medical examination took place here.

Subsection 440.13(2)(d) applies without regard to who initially selects the medical provider. Dr. Walker was “the attending health care provider” once he was chosen in conformity with subsection 440.13(2)(c). No statute authorizes disrupting the medically necessary therapy Mr. Carmack has been receiving from Dr. Walker. In this respect, the order under review is in error, and should be reversed.

      . In rendering this opinion we do not reach the issue of whether the JCC may order continued treatment with a particular physician when such care is found to be medically necessary based on the particular facts of the case; for example, the treatment provided is so specialized that few, if any, other physicians are qualified in that specialty area.

      . Until July 1, 1990, section 440.13(2)(a) provided in pertinent part: "The carrier shall not deauthorize a health care provider furnished by the employer to provide remedial treatment, care, and attendance, without the agreement of the employer, unless a deputy commissioner determines that the deauthori-zation of the health care provider is in the best interests of the injured employee.” § 440.13(2)(a), Fla. Stat. (1987). In 1989, the Legislature added language to this provision which specifically allowed the employer or its carrier to deauthorize a health care provider without prior approval from a judge of compensation claims based on a unilateral determination that the health care provider's services were being overutilized. See Ch. 89-289, § 10, at 1751, Laws of Fla. But the Legislature retained the language requiring the employer and carrier to obtain prior approval from a judge of compensation claims before deauthorizing one health care provider and transferring care to another provider in all other circumstances. See id.

      . Even when an independent medical examination does support a change in providers, the judge of compensation claims has the final say. "While the statute at issue here may give the E/C the unilateral right to deau-thorize and transfer care without prior JCC approval based solely on the opinion of a single IME physician, ... the JCC still has a role in determining, after a seemingly statutorily authorized unilateral deauthorization, whether the deauthorization was, in fact, in the claimant's best interests.” Terriers of Miami Corp. v. Busot, 764 So.2d 701, 703-04 (Fla. 1st DCA 2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis ROBENSON, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-2834.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.
    Rehearing Denied March 10, 2010.
    Louis Robenson, pro se, Appellant.
    Bill McCollum, Attorney General, and Ladawna Murphy, Assistant Attorney General, and Kathleen Von Hoene, General Counsel, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b); Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999) (dismissing appeal as untimely where mandamus proceedings below were civil in nature and appellate rights may be preserved by filing motion for relief in trial court); Mobley v. McNeil, 989 So.2d 1215, 1217 (Fla. 1st DCA 2008) (dismissing appeal because an order on motion for rehearing is not independently reviewable).

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


author: LAGOA, Judge. COPE, J.

text:
    Michael L. WEATHERLY and Carla Weatherly, Appellants, v. Joseph G. LOUIS and Jeanne Durellan, Appellees.
    No. 3D07-2079.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Rehearing Denied April 21, 2010.

      Ginsberg & Schwartz and Arnold R. Ginsberg; Pape & Chandler and Marc A. Chandler, Ft. Lauderdale, for appellants.
    Clark Robb Mason Coulombe, Busch-man & Cecere and James K. Clark; Elizabeth K. Russo, Miami, for appellees.
    Before RAMIREZ, C.J., and COPE and LAGOA, JJ.
   LAGOA, Judge.

Appellants Michael L. Weatherly (“Weatherly”) and Carla Weatherly appeal from an adverse final judgment and from an order denying their motion for a new trial. On appeal, the Weatherlys argue that the verdict was against the manifest weight of the evidence. Because we conclude that the evidence adduced at trial was conflicting, we find that the trial court did not abuse its discretion in denying the motion, and affirm the adverse final judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On November 19, 2003, a motorcycle driven by Weatherly, and an SUV driven by appellee, Joseph Louis (“Louis”), collided on Krome Avenue in Homestead, Florida. Weatherly sued Louis and the owner of the vehicle, Jeanne Durellan (“Durel-lan”). Following a trial, the jury returned a verdict finding that Louis was not negligent.

At trial, Weatherly testified that, just before the accident, he was travelling on the left-hand side of the southbound lane of Krome Avenue when he saw Louis’s SUV exiting a parking lot and making a left-hand turn across Krome’s southbound lane onto the northbound lane. Weatherly testified that he flashed his headlights and honked his horn at Louis but ran into the left side of Louis’s SUV.

Louis testified that he pulled out of the parking lot to turn left and that when he was in the middle of the street, he heard a boom when Weatherly’s motorcycle hit his SUV. Louis further testified that prior to pulling out into the street, he looked left and no vehicles were approaching. Moreover, Louis testified that the light was red when he pulled out into the street. Weatherly testified that he did not run any red lights while driving home on the day of the accident.

A disinterested witness, Randy Fitzsim-mons, testified that, before the accident, Weatherly passed him on the left and that he then saw Weatherly run two red lights. As a result of what he observed of Weath-erly’s driving, Fitzsimmons testified that he thought Weatherly was going to “kill himself.” Fitzsimmons further testified that, while he did not see the impact, he came upon the accident just after it happened.

The jury returned a verdict finding that Louis was not negligent and was not the legal cause of damages to Weatherly. Weatherly filed a motion to set aside the verdict or, in the alternative, for a new trial, arguing that the verdict was against the manifest weight of the evidence. The trial court denied the motion and entered a final judgment in favor of Louis and Durel-lan. This appeal ensued.

II. STANDARD OF REVIEW

We review a trial court’s denial of a motion for a new trial for abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). In Brown, the Supreme Court articulated the following test for determining whether the trial court abused its discretion:

[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Id. at 497-98.

Accordingly, “[t]he question for an appellate court is not whether or not the [verdict] was contrary to the manifest weight of the evidence presented below. ... Rather, the appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial. In order for [the appellate court] to reach that conclusion, the evidence must be clear and obvious, and not conflicting....” Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000).

III. ANALYSIS

On appeal, Weatherly argues that the trial court abused its discretion in denying the motion for a new trial. Weath-erly contends that the verdict was against the manifest weight of the evidence, and the trial court, therefore, failed to apply the correct legal standard in denying his motion for a new trial.

Because a review of the record establishes that there was conflicting evidence presented at trial, we cannot conclude that the trial court abused its discretion. See Dewitt, 770 So.2d at 711 (finding that “evidence must be clear and obvious, and not conflicting” in order for appellate court to determine that trial court abused its discretion in denying a new trial). Indeed, when, as here, the evidence is in conflict, the weight to be given that evidence is within the province of the jury. See K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998). “Reversal of a jury verdict is appropriate only in the absence of conflicting evidence, when there is no rational basis in the evidence to support the verdict.” Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 1205, 1207 (Fla. 5th DCA) review denied, 990 So.2d 1059 (Fla.2008). Here, Weatherly’s testimony that he did not run any red lights while driving home on the day of the accident was contradicted by a disinterested witness who testified otherwise. Moreover, Louis testified that prior to pulling out into the street from the parking lot, he looked left and no vehicles were approaching. Louis also testified that the light was red when he pulled out into the street.

Notwithstanding the conflicting evidence present in this case, the dissent contends that the trial court abused its discretion because the trial court failed to articulate specifically, either orally or in its written order, that the jury’s finding was not “contrary to the manifest weight of the evidence.” We respectfully disagree. First, there is nothing in the record that remotely suggests that the trial court misunderstood the test applied to a motion for new trial. Not only is the trial judge an experienced jurist, but Weatherly’s own motion below articulated the standard he asked the trial court to apply. Weatherly merely disagrees with the outcome of the trial court’s ruling.

Second, there are no magic words a trial court must recite in denying or granting a motion for a new trial. Indeed, such a requirement would elevate form over substance.

Finally, much of the dissent focuses on the fact that part of Louis’s SUV was still in the southbound lane of Krome when Weatherly hit the SUV. The dissent implies that this must be an indicia of some measure of negligence on Louis’s part. Respectfully, the dissent ignores the conflicting evidence from both Louis and Fitz-simmons. It is not for this Court to decide which side’s evidence is more persuasive or whether the trial court reached the result this Court would have reached. Our role is limited to determining whether conflicting evidence was presented at trial — if so, we cannot find an abuse of discretion. Because the evidence was not clear and obvious but was, in fact, conflicting, we are compelled to affirm the final judgment.

Affirmed.

RAMIREZ, J., concurs.

COPE, J.

(dissenting).

Respectfully, the majority opinion misapprehends the legal issue which is presented here. The question is whether the trial court employed an incorrect legal standard in considering the motion for new trial. The court’s oral pronouncement indicates that the trial court did, in fact, apply an incorrect standard. That being so, we are obliged to remand for a new hearing on the motion for new trial.

This is a personal injury lawsuit arising out of a collision between a motorcycle driven by plaintiff Michael L. Weatherly and a sports utility vehicle (SUV) driven by defendant Joseph G. Louis. The plaintiff was traveling southbound on Krome Avenue in a business district. The defendant was in a parking lot waiting to pull out across the southbound lane and turn left into the northbound lane. The defendant testified that he looked to the left, then to the right then back to the left and did not see any vehicle coming, including the plaintiff on his motorcycle. The defendant pulled out. The plaintiff struck the SUV in the driver’s door and slid along the side of the SUV. When the vehicles came to rest, the rear wheels of the SUV were still in the plaintiffs (southbound) lane of Krome Avenue. The plaintiffs left foot was crushed and a portion of it was amputated.

The plaintiff sued the defendant for negligence and the defendant maintained that the plaintiff was guilty of comparative negligence. As stated in the majority opinion, there was conflicting evidence over whether the plaintiff was speeding or ran a red light before entering the block in which the accident occurred. The jury returned a defense verdict, finding no negligence at all on the part of the defendant driver.

The plaintiff filed post-verdict motions, including an amended motion for new trial. The amended motion contended that the verdict was against the manifest weight of the evidence. In this argument the plaintiff acknowledged that the verdict may be supported by some evidence, but that it is against the manifest weight of the evidence. The plaintiff maintained that, given the respective positions of the vehicles, the idea that the defendant was completely free of negligence was against the manifest weight of the evidence.

The trial court entertained argument and denied motion, stating in part:

I think there is evidence from which the jury could have found that either Mr. Louis was not negligent, that he didn’t breach his duty of care not to create an unreasonable risk of harm or that if that did happen and he was negligent that his negligence was not the proximate cause of the accident. On either one of those two bases, I guess the jury could have found that there should not be a verdict against Mr. Louis.
I know that it is tough, but I invite you to take it up on appeal. Okay?

(Emphasis added).

Respectfully, the trial court’s oral pronouncement indicates that the court applied an incorrect legal standard. There is a clear distinction between (1) determining that the evidence is legally sufficient to support the verdict, and (2) determining that the verdict is contrary to the manifest weight of the evidence. See Brown v. Estate of Stuckey, 749 So.2d 490, 495 (Fla.1999).

The problem here is that the trial court’s oral pronouncement revealed the court proceeded only under concept (1), and determined that the verdict was supported by competent substantial evidence. The difficulty is that this part of the plaintiffs amended motion was not based on concept (1), but was instead based on concept (2): an argument that the verdict was against the manifest weight of the evidence. See id.

In moving for a new trial on the theory that the verdict was contrary to the manifest weight of the evidence, the plaintiff was necessarily conceding that there was competent substantial evidence to support the jury’s verdict. The plaintiffs actual argument was that while .the evidence may have been technically legally sufficient, the verdict was against the manifest weight of the evidence. Such a motion is unique because in deciding manifest weight, “the trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence.” Id. at 497.

The Florida Supreme Court has said:

The trial judge’s discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts. This discretionary power emanates from the common law principle that it is the duty of the trial judge to prevent what he or she considers to be a miscarriage of justice. The role of the trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict.

Id. at 495 (citation omitted).

The Brown court went on to explain that the trial judge is in a unique position to decide a “manifest weight” motion:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.
When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.

Id. at 496 (quoting Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959)). Once the trial court has ruled on a “manifest weight” motion, this court’s standard of review is abuse of discretion. 749 So.2d at 497.

Here, the plaintiffs argument was that the jury’s verdict (which found zero negligence on the part of the defendant) was contrary to the manifest weight of the evidence. The plaintiff contends that the verdict simply cannot be squared with the physical evidence in the case, because the impact occurred when the defendant’s SUV was in the plaintiffs southbound lane.

Contrary to the position of the majority opinion, this is not an issue of “magic words” nor is it a mere quibble. Where the trial court has employed an incorrect legal standard, the remedy is to reverse the order and remand for a new hearing in accordance with the Brown decision.

      . Indeed, at the hearing before the trial court, the plaintiffs made the following arguments:
      this verdict finding no negligence on the part of the defendant is against the manifest weight of the evidence.

      The grant of authority to a trial judge to order a new trial when the court concludes that a verdict is contrary to the manifest weight of the evidence simply constitutes a judicial policy decision.

      The court has the discretion here, even if what counsel argues is true that there is some evidence to say on the facts here the court cannot rationalize or reconcile he was in the plaintiff’s lane of traffic, he did not yield, this verdict with a finding of one hundred percent negligence on the part of the plaintiff, .... given the undisputed testimony that he was impeding, we are not asking for a directed verdict. We are saying there should be a new trial on manifest weight of the evidence.


author: LEWIS, J.

text:
    Meigo BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3267.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

LEWIS, J.

We grant the State’s Motion for Clarification, withdraw our previous opinion, and substitute the following opinion in its place.

Meigo Bailey, Appellant, was convicted of first-degree murder, second-degree murder, attempted second-degree murder, burglary of a dwelling, and two counts of attempted robbery. He appeals these convictions, arguing that the trial court erred in admitting an audio-recorded statement, which he contends was taken in violation of his right against self-incrimination. For the reasons that follow, we affirm.

On December 2, 2004, Appellant was shot during an alleged home-invasion robbery attempt, and as a result, he was hospitalized. On December 6, 2004, Detectives Padgett and Parrales went to the hospital to interview Appellant about the alleged robbery attempt. There is no recording of this interview. According to Detective Padgett, he read Appellant his Miranda rights and ascertained that he understood them before proceeding with substantive questioning. Detective Pad-gett testified that Appellant began to talk with him about various robberies Detective Padgett had already been investigating. This conversation led to information regarding a murder that had been the result of a home-invasion robbery on Phillips Highway on November 9, 2004. Detective Padgett recalled that Appellant admitted to being involved in this crime and was able to give details about the crime, including which firearms were used. According to the information Appellant provided Detective Padgett, Appellant remained outside the home while his companions went inside. While Appellant was outside, he heard shots fired. When Appellant’s companions emerged from the home, one of them informed Appellant that “it had gone wrong.” At the end of the interview, Detective Padgett told Appellant he would return the next day with a homicide detective.

The next day, Detective Padgett returned, as promised, with three other detectives: Parrales, Gupton, and Meacham. Detectives Gupton and Meacham both carried digital audio recorders, and the majority of Appellant’s interaction with the officers was recorded. The pertinent portions of the recording were played for the trial court at the suppression hearing, and we have listened to those portions as well.

When the officers arrived at the hospital on December 7, 2004, Detective Gupton reviewed a constitutional rights form with Appellant, which Appellant referred to as a “Waiver of Rights Form” in the proceedings below. The audio recording reflects that Detective Gupton read each right aloud and asked Appellant if he understood each one. Not all of Appellant’s responses are audible, but each audible response is “Yes.” At the suppression hearing, Detective Gupton testified that Appellant appeared to understand the form, did not have any questions about it, and did not ask for a lawyer. The form itself reflects that Appellant placed his initials next to each right and signed at the bottom.

After reading Appellant’s rights and ascertaining that Appellant understood them, Detective Gupton asked Appellant some preliminary questions regarding his background and his gunshot wound before proceeding to substantive questioning. The substantive questioning began with the following exchange:

DET GUPTON: Meigo, in speaking with Detective Padgett, as he had said, there was an incident that occurred on Phillips Highway.
MR. BAILEY: Uh huh.
DET GUPTON: Are you aware of that incident? I ...
MR. BAILEY: Yes sir.
DET GUPTON: I’m sorry. Could you do me a favor, Meigo, and try to talk a little louder.
MR. BAILEY: Yes, sir.
DET GUPTON: Okay. I know it’s hard but it helps me understand things clearer. What can you tell me about that incident?
MR. BAILEY: Man, I don’t really want to talk about that (inaudible).
DET PADGETT: Why is that?
MR. BAILEY: Huh?
DET PADGETT: Why is that?
MR. BAILEY: Cause I don’t want no record of it on tape[.]
DET PADGETT: Cause what?
MR. BAILEY: Cause I don’t want to record on tape or nothing like that.
DET GUPTON: Okay, well, I’ll tell you what. I’ll turn mine off, okay? I’ll turn it off. How about that?
MR. BAILEY: You sure you (inaudible)?
DET GUPTON: What?
MR. BAILEY: (Inaudible)
DET GUPTON: Yeah.
MR. BAILEY: Let me see it. Is it turned off? Let me see it. Is it turned off?
DET PADGETT: Yep. Ain’t no tape in it is there?
DET MEACHAM: Naw, it’s just a little digital thing. It’s shut off.
DET PADGETT: Digital recorder, that’s all.
MR. BAILEY: Okay.

After this exchange, the interview continued. Appellant repeated the information he had given to Detective Padgett the day before, named the other perpetrators, and described the home where the November 9, 2004, robbery and murder occurred.

In his motion to suppress the interview, Appellant argued that he was attempting to invoke his right to remain silent when he stated, “Man, I don’t really want to talk about that.” He contended that, based on this statement, the officers should have ended the interrogation and were not permitted even to ask clarifying questions. Instead, he argued, the officers should have honored his right “to cut off questioning.” After a hearing, the trial court denied the motion, opining that “what the officers did was appropriate under the circumstances.” The recording was played at trial, and the jury ultimately convicted Appellant of several crimes based on the incident that occurred on Phillips Highway on November 9, 2004.

On appeal, Appellant contends that the trial court erred in failing to deem his statement, “Man, I don’t really want to talk about that,” an unequivocal invocation of his right to remain silent. He relies primarily on Cuervo v. State, 967 So.2d 155 (Fla.2007), for his contention that the admission of his incriminating statements was erroneous. The State contends that the instant case is indistinguishable from Owen v. State, 862 So.2d 687 (Fla.2003), and that, as a result, we must affirm. We, however, find key factual distinctions between the instant case and each of the cases the parties cite.

The factual distinctions between the instant case and the cases the parties cite illustrate the following point, made by the Florida Supreme Court in State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001):

Suppression issues are extraordinaiity rich in diversity and run the gamut from (1) pure questions of fact, to (2) mixed questions of law and fact, to (3) pure questions of law. Reviewing courts must exercise care when examining such issues, for while the issues themselves may be posed in broad legal terms ..., the actual ruling is often discrete and factual....

(footnotes omitted). After noting the marked diversity in suppression issues, the Glatzmayer court emphasized, “As with all trial court rulings, a suppression ruling comes to the reviewing court clad in a presumption of correctness as to all fact-based issues, and the proper standard of review depends on the nature of the ruling-in each case.” Id. (footnotes omitted).

An appellate court reviewing a ruling on motion to suppress is required to “interpret the evidence and all reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court’s ruling.” See Connor v. State, 803 So.2d 598, 605 (Fla.2001); Alvarez v. State, 890 So.2d 389, 392 (Fla. 1st DCA 2004) (noting that a trial court’s inferences regarding the findings of historical fact are entitled to “appropriate weight”). It has also been observed, however, that to the extent a ruling is based on an audio recording, “the trial court is in no better position to evaluate such evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court’s ruling.” Dooley v. State, 743 So.2d 65, 68 (Fla. 4th DCA 1999) (citing Almeida v. State, 737 So.2d 520, 524 (Fla.1999)). In any event, the constitutional issues involved in a ruling on a motion to suppress, i.e. the trial court’s application of the law to the facts, should be reviewed de novo. Connor, 803 So.2d at 605; Cuervo, 967 So.2d at 160.

Our decision in this case results from the interplay of all of these standards, as well as the general notion that, as an appellate court, we always presume that a trial court’s decision is correct until the appellant has met the burden of showing error. See Philip J. Padovano, Florida Appellate Practice § 18:2 at 336 (2009 ed.). In the absence of such a showing, affir-mance is required. Id.

With these principles in mind, we turn to the substantive law, beginning with the well-settled rule that, to protect a suspect’s rights under the constitutions of the United States and Florida, an officer must give Miranda warnings before conducting a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Traylor v. State, 596 So.2d 957, 961 (Fla.1992). Protection of the rights recognized in both constitutions requires that if the suspect “indicates in any manner” that he or she does not want to be interrogated, the interrogation must not begin or, if it has already begun, must stop. Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; Traylor, 596 So.2d at 961. Once a suspect has validly waived his or her Miranda rights, officers are not required to stop an interrogation unless the suspect unequivocally invokes those rights. State v. Owen, 696 So.2d 715, 717 (Fla.1997); accord Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that officers are not required to terminate an interrogation upon a suspect’s reference to an attorney unless the reference is an unequivocal assertion of the right to counsel). If the suspect makes an equivocal or ambiguous reference to the right to remain silent after having validly waived that right, officers may continue the interrogation without attempting to clarify the meaning behind the reference. Owen, 696 So.2d at 717.

In Alvarez v. State, 15 So.3d 738, 743-45 (Fla. 4th DCA 2009), the Fourth Distinct explained the distinction between the standards applicable to a suspect’s initial waiver of his or her constitutional rights and a subsequent invocation of those rights as follows:

Invocation and waiver of constitutional rights are distinct inquiries, though, and should not be merged. See Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). The state must prove by a preponderance of the evidence that a suspect has voluntarily, knowingly, and intelligently waived his Miranda rights before a statement may be used against him. See Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Ramirez v. Stale, 739 So.2d 568, 575 (Fla.1999). Thus, an ambiguous waiver must be clarified before initial questioning. See [U.S. v.] Rodriguez, 518 F.3d [1072] at 1080 [ (9th Cir.2008) ]. However, once a suspect has waived his rights, an attempt to revoke the waiver must be unambiguous. See Owen, 696 So.2d at 717-718; Collins v. State, 4 So.3d 1249, 1250 (Fla. 4th DCA 2009). Unlike the pre-waiver context, an ambiguity need not be clarified before proceeding with questioning. See Davis, 512 U.S. at 459, 114 S.Ct. 2350; Given, 696 So.2d at 717; Collins, 4 So.3d at 1250. This rule regulates the tension recognized in Miranda between, on the one hand, the preservation of the right against self-incrimination and, on the other, the need for clear rules for law enforcement in the field. See Davis, 512 U.S. at 461, 114 S.Ct. 2350.

Id. at 745. The Fourth District’s discussion of pre-waiver and post-waiver analysis is consistent with case law from the Florida Supreme Court, such as Almeida v. State, 737 So.2d 520, 524 (Fla.1999), where the court noted that an equivocal or ambiguous invocation of the right to remain silent would be insufficient to “trump a [prior] clear waiver” of that right. The instant case requires a post-waiver analysis. More specifically, it requires us to decide whether Appellant’s statement, “Man, I don’t really want to talk about that,” was unequivocal. If it was, then the officers should have cut off questioning.

In arguing that the statement was equivocal, the State notes the similarity between the phrasing of Appellant’s statement and the phrasing of some statements deemed equivocal in Owen v. State, 862 So.2d 687 (Fla.2003). The statements at issue in Owen were “I don’t want to talk about it” and “I’d rather not talk about it.” Id. at 696-97. In deeming these utterances equivocal, the Florida Supreme Court provided the following information about them context:

Owen’s ambiguous responses came ... when he was being interrogated by Officers Lincoln and Wood about the Slattery homicide. Owen had not yet confessed at the time he made the statements. Lincoln asked Owen, “There’s a few things that I have to know, Duane. A couple pieces don’t fit. How did it come down? Were you looking at the particular house or just going through the neighborhood?” Owen’s response was, “I’d rather not talk about it.” A short time later, following additional questions and answers, Lincoln asked, “Now, did you have a bicycle? Of course you did. Now, where did you put it?” Owen answered, “I don’t want to talk about it.”

Id. at 697 n. 6. The Owen court held that the interrogating officers had no duty to either terminate questioning or ask questions to clarify the defendant’s responses “in the context presented.” Id. at 697-98. In one of the Owen defendant’s prior appeals, the supreme court had characterized the questions that elicited the equivocal responses as concerning “relatively insignificant details of the crime.” State v. Owen, 696 So.2d 715, 717 (Fla.1997).

Essentially contending that the context of a challenged statement is more important than the exact wording, Appellant directs our attention to Cuervo v. State, 967 So.2d 155 (Fla.2007). The interrogation in Cuervo was conducted through a translator because the suspect spoke only Spanish and the lead officer spoke only English. 967 So.2d at 162. A Spanish-speaking officer read the defendant each of the Miranda rights from a pre-printed form prepared in Spanish by the Sheriffs Office. Id. at 157. The Spanish-speaking officer then asked the defendant whether he understood each of the rights that had just been read. Id. The defendant answered, “[Yjes,” and the Spanish-speaking officer then asked, “Do you wish to talk about the matter and make a statement, yes or no?” Id. The defendant answered, “No quiero declarar nada,” which is literally translated as, “I don’t want to declare anything.” Id. After confirming this statement with the defendant, the Spanish-speaking officer told the lead officer, “He does not wish to talk with us.” Id. The lead officer instructed the Spanish-speaking officer to have the defendant initial the rights form line-by-line and sign it at the bottom. Id. After the defendant complied, the lead officer instructed the Spanish-speaking officer to tell the defendant that he could give “his side of the story” if he wanted to. Id. The Florida Supreme Court held that the Cuervo defendant’s statement that he did not want to “declare anything” was a “clear invocation of the right to remain silent” and that no further questioning should have ensued. Id. at 164.

In explaining its holding, the Cuervo court emphasized that the defendant’s invocation of the right to silence “came solely in response to the inquiry concerning his Miranda rights, before any questions specific to the crime were asked.” 967 So.2d at 163. The Cuervo court distinguished Owen because the statements deemed equivocal there were made “during the course of an interrogation.” Id. Based on the context of the statements at issue in Owen, the Cuervo court noted that they “could have been referring [either] to specific questions about the crime or to the underlying right to cut off all questioning.” Id. The Cuervo court also found it significant that the defendant had already invoked his rights by saying, “No quiero declarar nada,” by the time the officers asked him to sign the rights form. See id. at 164.

Although we do not agree with Appellant that the ruling in the instant case was erroneous, we do agree that context is generally as important, if not more important, than the exact words a suspect uses in a statement that is alleged to be an invocation of the right to remain silent. We also note the Fourth District’s observation in Alvarez that “courts have been more apt to find a revocation of a waiver of the right to remain silent unambiguous and unequivocal if made before substantive questioning.” 15 So.3d at 744. We believe this trend is logical, for the reasons expressed by the Alvarez court:

[I]f a suspect has not answered any questions and fails to clearly waive his right to remain silent, or has waived his right but then answered only “mundane” questions before any substantive questioning, announcing he does not want to answer anymore, it is reasonable to conclude that he has decided not to speak. However, where a suspect has heard, understood, and waived his Miranda rights, and has been answering substantive questions without incident and continues to do so, a statement which may have been unambiguous if uttered initially may be objectively ambiguous when considered in context.

Id. at 745. Despite these general principles, we believe that, on the record before us, Appellant has not met his burden to show that the trial court erred in concluding that the officers’ response to Appellant’s statement was reasonable under the circumstances.

As noted above, the parties have not cited any case with facts so similar to those presented here that we are compelled to agree with either side. We agree ■with the State that the words Appellant used in the instant ease were similar to the words used in Owen. We also acknowledge that here, as in Owen, the statement at issue came in response to a question about the crime, rather than a question concerning whether Appellant wanted to waive his rights. However, these observations do not settle the matter. One key distinction between the instant case and Owen is that the statement at issue was made at the beginning of the substantive questioning, rather than after hours of questioning. Similarly, this case is not resolved simply by an acknowledgement that, as in Cuervo, the statement in question was made at the beginning of the interview before the officers began to ask difficult, specific questions about the crime. Cuervo is distinguishable because the statement at issue here came after a valid waiver of Miranda rights and was not made in response to an inquiry as to whether Appellant wished to waive those rights. These critical distinctions illustrate that the instant case cannot be resolved merely by analogy to Owen or Cuervo.

Because we have found no case that is more closely analogous than either Owen or Cuervo, we are left to draw our own conclusions regarding the specific statement Appellant uttered. In most appeals, courts have only the cold record to consider. In this case, we had the relatively unique opportunity to listen to the statement as it was uttered at the time of the interview. If we had only the cold record to consider here, we might be persuaded that the Alvarez court’s reasoning requires reversal, as Appellant did make the statement at issue at the inception of the substantive questioning. Because, like the trial court, we were able to listen to the interview, we were able to consider the manner in which the words at issue were expressed and determine whether the officers responded reasonably.

Having listened to the pertinent portions of the recording, we can understand why the trial court reached the result it did. At first blush, the transcribed words “Man, I don’t really want to talk about that” may appear rather emphatic. However, the State has noted, and we agree, that the word “really” is not always used to express emphasis, but is sometimes used in a hedging manner. This point led us to consider the words in their audible context. From the recording, we know that Appellant essentially mumbled the words in question and followed them with additional, indecipherable language. The words on the recording simply do not come across as a clear assertion of a right. Therefore, we cannot say that the trial court erred in concluding that Appellant’s words were insufficient to trump his prior waiver of his right to remain silent. Accordingly, Appellant’s judgments and sentences are AFFIRMED.

WEBSTER and DAVIS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . As the supreme court noted in Almeida v. State, 737 So.2d 520, 524 n. 5 (Fla.1999), "[t]he trial court had no special vantage point in reviewing this tape.”

      . In his arguments to this Court, Appellant notes that after having him sign the rights form, the officers never asked whether he wished to waive those rights, arguably implying that a pre-waiver analysis applies. However, Appellant failed to argue to the trial court that he did not waive his rights before stating that he "really [didn’t] want to talk about that.” Instead, in his motion to suppress, Appellant referred to the rights form as a "Waiver of Rights Form” and argued that Appellant was asserting his right to cut off questioning (rather than to avoid being interrogated altogether) when he made that statement.


author: MORRIS, Judge.

text:
    Scottie Lee WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-1495.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2010.
    Rehearing Denied April 13, 2010.

      Scottie Lee White, pro se.
    Bill McCollum, Attorney General, Tallahassee and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.
   MORRIS, Judge.

In his petition alleging ineffective assistance of appellate counsel, Scottie Lee White contends that appellate counsel was ineffective by failing to argue that the trial court committed per se reversible error in responding to the jury’s requests to read back trial testimony without providing notice to defense counsel or providing the defense the opportunity to be heard and participate in the proceedings. We agree, and we grant the petition.

White was convicted after a jury trial of second-degree murder with a firearm. The judgment and sentence were affirmed on direct appeal. White v. State, 953 So.2d 535 (Fla. 2d DCA 2007) (table decision). During deliberations, the jury requested a readback of the testimony of White’s alibi witness. The trial court complied with the jury’s request. Subsequently, the trial court, again at the request of the jury, read back the testimony of two of the State’s witnesses. Unfortunately, there is no indication in the trial transcript that defense counsel was notified, nor is there any indication that defense counsel or the prosecutor was present at either of the readbacks. Furthermore, the transcript does not establish that the trial court at any time during the deliberations informed counsel that it had read back the testimony.

Florida Rule of Criminal Procedure 3.410 states:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

Rule 3.410 does not require that the defendant be present in addition to counsel when the trial court responds to a question formulated by the jury during its deliberations. Meek v. State, 487 So.2d 1058, 1059 (Fla.1986). However, the supreme court holds that rule 3.410 requires more than the mere presence of counsel. Bradley v. State, 513 So.2d 112, 114 (Fla.1987) (citing Ivory v. State, 351 So.2d 26, 28 (Fla.1977)). When the trial court responds to a jury request, the defendant has a right, through defense counsel, to participate in the proceedings, and this includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored. Id. Moreover, the supreme court in Bradley, in response to the State’s argument that defense counsel was in fact present during the trial court’s consideration of the jury’s question, held: “ ‘Notice is not dispositive. The failure to respond in open court is alone sufficient to find error.’ ” Id. (quoting Curtis v. State, 480 So.2d 1277, 1278 n. 2 (Fla.1985)). As the supreme court has concluded, “[wjithout this participation process, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.” Colbert v. State, 569 So.2d 433, 435 (Fla.1990). A rule 3.410 violation constitutes per se reversible error. Bradley, 513 So.2d at 112-13.

Regrettably, in the present case, there is no indication that defense counsel was notified of the jury’s requests for the readbacks of the witnesses’ testimony and the transcript establishes that counsel did not participate in the proceedings when the trial court responded to the jury’s requests. Had appellate counsel argued on appeal that this constituted per se reversible error, we would have been compelled to reverse White’s conviction. The failure to so argue constitutes ineffective assistance of counsel. Because a new appeal would be redundant in this instance, we reverse White’s conviction for second-degree murder with a firearm, vacate his sentence, and remand for a new trial. See Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005); Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004).

Petition granted.

WHATLEY and DAVIS, JJ., Concur.

      . The transcript contains the court reporter's notation that the jury was present but is silent regarding defense counsel and the prosecutor.

      . Where the record shows that defense counsel was informed prior to the jury verdict that the trial court did not follow the strictures of Florida Rule of Criminal Procedure 3.410, defense counsel must object to preserve the error for appellate review. See Francis v. State, 808 So.2d 110, 130 (Fla.2001); Thomas v. State, 730 So.2d 667, 668-69 (Fla.1998).


author: SHEPHERD, J.

text:
    Marcos ESPINAL, Petitioner, v. Timothy RYAN, Director of Miami-Dade County Department of Corrections, Respondent.
    No. 3D10-139.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2010.
    Rehearing Denied March 29, 2010.

      Michael D. Walsh and Matthew Troccoli, Miami, for petitioner.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

The Petitioner in this case seeks habeas relief from a trial court order denying his motion to set aside an alias capias issued and reinstate bond, which had been revoked because petitioner was fifteen minutes late for a court appearance. We find the Petitioner’s claim meritorious, and grant the petition.

Marcos Espinal was scheduled for a docket sounding at 8:30 a.m. on January 7, 2010, for his pending criminal ease. Neither he nor his counsel were present when his case was called. The trial court sua sponte issued an alias capias and estreated his bond. When Espinal’s case was recalled approximately an hour into that morning docket, both the defendant and his counsel were present. Espinal explained he started a new job that night, and he had arrived to court fifteen minutes late due to his need to travel to court from his new job.

The record indicates this is the first time Espinal has been late to court for the present infraction. His only other known brush with the law is an arrest and pretrial diversion placement for an unascer-tainable misdemeanor in 2002, which was not fully resolved until 2007. The apparent reason the misdemeanor file was not closed was that Espinal moved to Rhode Island before his last court date in the case, for which his only remaining obligation was a requirement that he pay a small fee. Upon his return to Florida in 2007, he paid the fee. On these facts, the court ordered Espinal into custody.

It is clear that the defendant’s failure to appear timely before the court in this case was unintentional and de minimus in length. It was defendant’s “first offense.” Although the court was justly annoyed by the defendant’s tardiness, it was minimally inconvenienced. A court should be very cautious about depriving a person of his liberty in such a circumstance. See Eulo v. State, 786 So.2d 43, 44 (Fla. 4th DCA 2001) (holding defendant’s fifteen minute delay to court was de minimus, and did not warrant a sentence above that which was bargained for); Prior v. State, 562 So.2d 864 (Fla. 5th DCA 1990) (concluding defendant could not be held accountable for criminal contempt where the record established negligence at best in failing to appear at the proper time for trial); Johnson v. State, 501 So.2d 158, 160 (Fla. 3rd DCA 1987) (reasoning where defendant was arrested on his way to court, and thus failed to appear on time, there was no willful failure to appear, and the original, bargained-for sentence should be imposed); Lee v. State, 471 So.2d 195 (Fla. 4th DCA 1985) (holding there was no evidence to support a finding that the defendant willfully failed to appear for sentencing, or that he committed another crime while on release; thus, the defendant was entitled to a reversal of his enhanced sentence). We also find the fact that the defendant failed to appear in court on one prior occasion between some five and eight years ago insufficient to support the incarceration.

For the foregoing reasons, we grant the petition. The petitioner is entitled to immediate release. The trial court shall reinstate the petitioner’s original bond.

This opinion shall take effect immediately, notwithstanding any motions for rehearing.

Petition granted.

      . The court file for the misdemeanor case has been destroyed.


text:
    Jerome WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0190.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2010.
    Rehearing Denied April 8, 2010.
    Jerome Walker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    Joseph W. MINES, Jr., et al., Petitioners, v. COUNTRYWIDE HOME LOAN, INC., Respondent.
    No. 1D09-5669.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.
    Rehearing Denied April 7, 2010.
    Joseph W. Mines, Jr., pro se, for Petitioners.
    Erin N. Prete of Butler & Hosch, P.A., Orlando, for Respondent.
   PER CURIAM.

By petition for writ of prohibition, petitioner challenges denial of his motion to disqualify the trial judge based upon an alleged financial interest in the form of favorable interest rates not available to the public in the judge’s own dealings with a lender with a close corporate affiliation to the plaintiff in the instant cause. This court finds that these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she will not obtain a fair and impartial hearing. We therefore grant the petition and direct the trial judge to enter an order of recusal, requesting that the chief circuit judge appoint a new judge to preside over the cause.

PETITION GRANTED.

KAHN, BENTON, and ROBERTS, JJ., concur.


author: TAYLOR, J.

text:
    JPG ENTERPRISES, INC., Appellant, v. Sean McLELLAN and Jacqueline McLellan, Appellee.
    No. 4D08-962.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Rehearing Denied April 28, 2010.

      Bradford J. Beilly and John Strohsahl of Bradford J. Beilly, P.A., Fort Lauderdale, for appellant.
    Peter Ticktin, Jessica Ticktin and Josh Bleil of The Ticktin Law Group, P.A., Deerfield Beach, for appellee.
    John W. Little, III, P.A. of Brigham Moore, LLP, West Palm Beach, Robert W. Goldman of Goldman Felcoski & Stone, P.A., Naples, and Kenneth B. Bell of Clark Parington Hart, Pensacola, for Amicus Curiae The Real Property Probate & Trust Law Section of The Florida Bar.
    Janet R. Varnell of Varnell & Warwick, P.A., The Villages, and Julia A. Harris, Tampa, for Amicus Curiae the Consumer Protection Law Committee of The Florida Bar.
   TAYLOR, J.

In this appeal and cross-appeal involving the construction of a home upon land owned by the buyer, the trial court certified a question to our court as one of great public importance. We restate the certified question as follows:

WHETHER THE ESCROW DEPOSIT REQUIREMENT OF SECTION 501.1375, FLORIDA STATUTES, APPLIES TO GENERAL CONTRACTORS WHO CONTRACT TO BUILD A SINGLE-FAMILY RESIDENCE UPON LAND OWNED BY THE CONSUMER AT THE TIME THE CONTRACT IS SIGNED.

For the reasons discussed below, we answer the certified question in the negative.

Factual Background

Sean and Jacqueline McLellan entered into a written contract with JPG Enterprises, Inc. (“JPG”) for the construction of a single-family house on real property already owned by the McLellans. They deposited $15,384.70 towards the purchase price. Ultimately, the McLellans can-celled the contract due to a delay that was neither party’s fault. JPG asserted that it was entitled to keep the deposit based on the wording of the contract.

The McLellans sued JPG in county court seeking a return of their deposit. Their third amended complaint contained three counts: (I) Breach of Contract, (II) Violation of the Florida Deceptive and Unfair Trade Practices Act, and (III) Violation of Florida Statute § 501.1375. In Count III, the McLellans alleged that JPG was a “building contractor” and “developer” who, pursuant to the statute, had to deposit monies in an escrow account on their behalf so that the money could be returned if the McLellans properly terminated the contract.

After a trial in county court, a jury found that JPG breached the contract by not returning the remainder of the deposit (Count I). As to Count II, the trial court directed a verdict, rejecting the Deceptive and Unfair Trade Practices claim as a matter of law. The court tried Count III non-jury and found that JPG violated section 501.1375, Florida Statutes (2008). Accordingly, the court entered final judgment in favor of the McLellans on both counts. JPG moved for a rehearing as to the statutory violation finding. The court denied the motion but noted that this was a case of first impression and requested review and guidance from our court on interpreting section 501.1375, Florida Statutes.

JPG argues that the trial court erred in finding that it violated section 501.1375, Florida Statutes, because the statute does not apply to contracts entered into between a building contractor and a party for the construction of a house upon real property already owned by the party at the time the contract is signed. JPG thus urges us to answer “No” to the question certified by the trial court.

“[T]he central purpose of statutory interpretation is deciphering and giving effect to legislative intent.” Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 213 (Fla.2009) (citing State v. J.M., 824 So.2d 105, 109 (Fla.2002) (“It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.”)). Legislative intent is chiefly derived from the language of the statute. Id. A court can resort to statutory construction only when a statute’s language is not plain and unambiguous. Id. (citing Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454-55 (Fla.1992)). “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole,” and “[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe, 604 So.2d at 455.

Section 501.1375, Florida Statutes, is titled “Deposits received for purchase of residential dwelling units; placement in escrow; waiver; exceptions.” The statute requires a “building contractor” or a “developer” to hold certain deposits of a prospective buyer of a one- or two-family residential dwelling unit in an escrow account unless the buyer waives the escrow requirements in writing. § 501.1375, Fla. Stat. The statutory definition of a “building contractor” is “any person who, for compensation, constructs and sells one-family or two-family residential dwelling units, except for a person who sells or constructs less than 10 units per year statewide.” § 501.1375(l)(a) (emphasis added). The definition of a “developer” is “either a building contractor who offers new residential units for sale or any person who offers a new one-family or two-family residential dwelling unit for sale, except for a person who sells or constructs less than 10 units per year statewide.” § 501.1375(l)(b) (emphasis added).

When considering the meaning of terms used in a statute, courts look first to the terms’ ordinary definitions. Tepper, 2 So.3d at 213. Critical terms used throughout section 501.1375 are “purchase,” “purchaser,” “purchase price,” “sale,” and “seller.” These terms, in them plain and ordinary sense, refer to the purchase and sale of real property, in addition to whatever structure may be built upon the propei'ty. They are not ordinarily used to describe agreements solely for the performance of construction services.

In addition, the statute makes numerous references to the term “closing,” which is defined as follows: “the point in time at which legal title to the real property shall transfer from grantor thereof to grantee.” § 501.1375(l)(c), Fla. Stat. The statute’s definition of “closing” and its use of that term throughout the statute suggest that section 501.1375 was intended to apply to the sale of single-family residences at a “closing.”

The statute specifically provides that “the building contractor or developer shall be entitled to any interest accrued by the account, payable at closing.” § 501.1375(4) (emphasis added). Similarly, it states that if the building contractor or developer borrows money equal to the deposit for construction purposes, the interest may be recovered from the buyer “at the time of closing.” § 501.1375(4) (emphasis added). Moreover, it provides that if the funds of the buyer have not been previously disbursed in accordance with the statute, “they shall be disbursed to the building contractor or developer at the closing of the transaction.” § 501.1375(7)(e)(empha-sis added).

The McLellans argue that the plain language of section 501.1375 demonstrates that the legislature intended the statute to apply to all building contractors who contract to build a single-family residence, regardless of who owns the land on which the residential dwelling unit is to be built. They argue that the statute is a remedial statute, whose primary purpose is to protect the deposits consumers pay to contractors and developers, and that the statute does not expressly limit this protection to a consumer who is buying both the real property and the residential dwelling unit from the building contractor.

Indeed, the preamble to the section 501.1375, Florida Statutes, which was enacted in 1980, reveals its remedial purposes. The preamble to Chapter 80-386 summarizes the purposes of the statute as follows:

WHEREAS, as a condition precedent to the formation of a contract for the construction and sale of a residential dwelling, building contractors and developers generally require an advance deposit from the purchaser in the form of cash, and
WHEREAS, the Florida Statutes contain no provisions requiring building contractors or developers who create homes or residences other than condominiums, or who offer noncondominium property for sale or lease, to pay into an escrow account any portion of advance deposits received, and
WHEREAS, the financial collapse of a number of developers and building contractors doing business in the state has recently resulted in the loss of purchasers’ advance deposits not required by Florida Statutes to be paid into and maintained in escrow accounts ...

Remedial statutes are entitled to a liberal construction so as to advance the remedy provided where it is consistent with the legislative purpose. Raymar Constr. Co. v. Lopez-Soto, 547 So.2d 282, 284 (Fla. 2d DCA 1989). Although the McLellans make a reasonable argument that the legislature intended to provide broad protection to new home builders, including those who build on their own lots, the plain and unambiguous language of the statute demonstrates otherwise. As discussed above, the statute, by its very terms, applies to transactions involving a “closing” between a “developer” or a “building contractor” and a buyer, where legal title to both the dwelling unit and the underlying land is conveyed to the buyer. No closing occurs when a consumer contracts with a general contractor to construct a single-family residence on the consumer’s land because the consumer already owns the land.

We further note that section 501.1375(8), Florida Statutes, which prohibits a construction lien on escrow deposits, evinces a legislative intent for section 501.1375 to apply to transactions involving a closing where the seller owns the land and the residence. As explained in the brief submitted by The Real Property Probate & Trust Law Section of the Florida Bar:

In short, section 501.1375(8) protects buyers by requiring purchase deposits to be held in escrow and preventing lienors from making any claim against the deposit. This makes sense only when the owner of the property is also the seller. If the buyer owns the property, then the property is subject to construction liens by all lienors including the contractor. The contractor should be using the deposit to pay construction costs thereby reducing the owner’s exposure to construction liens against the property. In fact, sections 713.345 and 713.346 arguably require the contractor to spend the deposit to pay for labor, services, and materials used for the improvements.
Stated another way, if the owner of the property is the buyer of construction services, the buyer’s concern is not that the deposit be put in an escrow account and held until the project is completed. Instead, the buyer’s concern is that the deposit is spent on the project and its exposure to construction liens is reduced. This concern is addressed in sections 713.345 and 713.346 and, arguably, by the entire process established by Chapter 713. In contrast, if the buyer does not own the property, then the buyer’s concern is the deposit.

In sum, we conclude that, under the facts of this case, JPG is not a “building contractor” or a “developer,” as contemplated by the statute, because in merely constructing a residence upon property owned by the McLellans, it was not engaged in the sale of a dwelling unit and the underlying land. There was no “closing” because title to the land already resided in the owners and JPG did not convey to them legal title to the dwelling unit or underlying land. Accordingly, JPG was not required to comply with the escrow • deposit requirements of section 501.1375.

We therefore reverse the final judgment entered against JPG as to the trial court’s finding that JPG violated section 501.1375 (Count III). Further, we answer the certified question presented by the trial court in the negative: Section 501.1375, Florida Statutes, does not apply to a general contractor who contracts to build a single-family residence upon land owned by the consumer at the time the contract is signed.

Reversed and Remanded.

WARNER, and POLEN, JJ., concur.

      . Following oral argument in this appeal, we requested and received amicus briefs on the certified question from The Real Property Probate & Trust Law Section of the Florida Bar and tire Florida Bar Consumer Protection Law Committee. We acknowledge their expertise and experience in this area of the law and express our gratitude for their assistance.

      . This is also the position taken and argued by The Real Property Probate & Trust Law Section of the Florida Bar in its amicus brief.

      . This is the position taken and argued by the Florida Bar Consumer Protection Law Committee in its amicus curiae brief.


author: VILLANTI, Judge.

text:
    Herman CLIFTON, Appellant, v. UNITED CASUALTY INSURANCE COMPANY OF AMERICA, Appellee.
    No. 2D09-971.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Rehearing Denied April 16, 2010.

      Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa; and David J. Petti-nato of Merlin Law Group, P.A., Tampa, for Appellant.
    William R. Lewis, Scott J. Frank, and Thomas A. Keller of Butler Pappas Weih-muller Katz Craig LLP, Tampa, for Appel-lee.
   VILLANTI, Judge.

Herman Clifton appeals the final summary judgment entered in favor of his homeowner’s insurance company, United Casualty Insurance Co., in this breach of contract action arising out of damage that Clifton’s home suffered during Hurricane Charley. Because there were disputed issues of material fact as to whether Clifton was forced to file suit to resolve his dispute with United Casualty, United Casualty was not entitled to summary judgment in its favor. Accordingly, we reverse and remand for further proceedings.

Clifton’s residence was damaged by Hurricane Charley on August 13, 2004, and Clifton promptly filed a claim with United Casualty for the damage. United Casualty sent an adjuster, who inspected the damage and adjusted the claim. After applying the deductible and possibly some depreciation, United Casualty paid Clifton $3054.22 for the damage it determined was the result of Hurricane Charley.

According to Clifton, after receiving this payment, he notified United Casualty that the payment was insufficient to pay for the necessary repairs to his residence. He asserted that he had repeatedly disputed the amount of the loss with both United Casualty and its local agent and had requested that someone from United Casualty reinspect his residence and consider paying additional policy proceeds. According to Clifton, United Casualty ignored his requests, and only after he received no response to his requests for over three years did he file suit on November 15, 2007. The complaint alleged that United Casualty had breached the insurance contract by failing to pay the full amount necessary to repair the damage to Clifton’s residence caused by Hurricane Charley.

United Casualty answered Clifton’s complaint and raised affirmative defenses, including that Clifton had failed to comply with the conditions precedent to bringing the suit and that his claim was barred by accord and satisfaction. United Casualty also alleged that it had paid Clifton all of the proceeds to which he was entitled under the policy. Along with its answer and affirmative defenses, United Casualty filed a motion seeking to invoke the appraisal clause of its policy with Clifton. The court granted the motion seeking appraisal, and Clifton and United Casualty engaged in the appraisal process provided for by the policy. The appraisal process resulted in an award in favor of Clifton of $18,744.24.

Clifton subsequently filed a motion to confirm the appraisal award and for entry of judgment, and he sought an award of attorney’s fees. After paying the appraisal award, United Casualty filed a motion to dismiss Clifton’s complaint, contending that the dispute between the parties had been resolved by the appraisal process and that no triable issues remained to be litigated. In support of that motion, United Casualty filed the affidavit of its,assistant vice president of property claims, Greg Warnock, in which he asserted that United Casualty had no notice whatsoever that Clifton was dissatisfied with his claim payment until United Casualty was served with the complaint.

Shortly thereafter, and before the trial court had ruled on either pending motion, United Casualty withdrew its motion to dismiss and the accompanying affidavit. In their place, United Casualty filed a motion for summary judgment and a separate response to Clifton’s motion for attorney’s fees. Concerning the motion for attorney’s fees, United Casualty argued that it was not responsible for those fees because it had not wrongfully withheld any insurance benefits. It reiterated its assertions that it had no knowledge that Clifton was dissatisfied with the initial claim payment until suit was filed, although it no longer supported those assertions with any record evidence.

In the motion for summary judgment, United Casualty alleged that it was entitled to judgment in its favor because it had paid the amounts due in accordance with the terms of the policy and thus Clifton could not prove that it breached the policy. United Casualty also alleged that Clifton could not prove that he had suffered any damages because United Casualty had now paid Clifton all of the amounts due under the policy.

In response to United Casualty’s motion for summary judgment, Clifton filed an affidavit asserting that he had repeatedly notified both United Casualty and its local agent that the original claim payment was insufficient to cover all of his damages. Clifton asserted that United Casualty “refused to respond” to his pleas for additional policy proceeds until after Clifton filed suit.

At the hearing on United Casualty’s motion for summary judgment, the trial court was faced with Clifton’s unrebutted affidavit asserting that he had expressed dissatisfaction with the settlement of his claim in a timely manner and that United Casualty had ignored his requests for further action on his claim until after he filed suit. United Casualty disputed these facts, but the only evidence supporting its position had been withdrawn. Further, the record clearly showed that United Casualty had paid significant sums to Clifton in settlement of his claim after suit was filed. Despite this record evidence, the trial court granted summary judgment in favor of United Casualty, finding that because United Casualty had complied with the payment terms in the policy, it had not breached the policy and was entitled to judgment in its favor. This appeal is the result of that ruling.

As a general proposition, “[a] movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). The moving party bears the burden of proving the nonexistence of issues of material fact, and every possible inference must be viewed in favor of the party opposing summary judgment. Id. Even the slightest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000).

Here, the record reflects that there are genuine issues of material fact that preclude the entry of summary judgment in favor of United Casualty. Florida courts have repeatedly held that when an insurer pays additional policy proceeds after suit is filed, “it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983); see also Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla.2000) (“[W]here an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured.... ”); Stewart v. Midland Life Ins. Co., 899 So.2d 331, 333 (Fla. 2d DCA 2005); Scott v. Progressive Express Ins. Co., 932 So.2d 475, 479 (Fla. 4th DCA 2006). Under this general rule, summary judgment in favor of United Casualty was improper because its post-suit payment of additional policy proceeds to Clifton operated as a confession of judgment against it and as a verdict in favor of Clifton. Simple logic dictates that a party who confesses to judgment against it by virtue of the post-suit payment of additional damages cannot use that same payment to argue that it is then entitled to judgment in its favor.

However, the confession of judgment rule is not absolute. Instead, “[w]hile Florida law does hold that payments are treated as confessions of judgment where an insurer first disputes the claim and then settles, the existence of a bona fide dispute and not the mere possibility of a dispute, is a crucial condition precedent to such a holding.” Tristar Lodging, Inc. v. Arch Speciality Ins. Co., 434 F.Supp.2d 1286, 1298 (M.D.Fla.2006), aff'd, 215 Fed.Appx. 879 (11th Cir.2007); see also Wollard, 439 So.2d at 219 n. 2 (noting that the requirement that the insurance company “unreasonably withhold payment under the policy” is a condition precedent to an award of attorney’s fees under the confession of judgment rule and requiring that the trial court consider the “necessity of the legal services rendered as well as their reasonable value” (first emphasis added)); State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007)(holding that the confession of judgment doctrine did not support an award of attorney’s fees to an insured who first filed suit after State Farm had fully paid all the amounts due pursuant to a pre-suit appraisal). Thus, the confession of judgment rule will operate only “ ‘to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.’ ” First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007) (quoting Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001)) (emphasis added). Accordingly, the question of whether an insurer’s post-suit payment of additional policy proceeds constitutes a confession of judgment will be determined based on whether “the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.” Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1081 (Fla. 4th DCA 2009) (emphasis added).

For example, in Myrick, the insured filed a claim for sinkhole damage to her residence. 969 So.2d at 1123. First Floridian admitted coverage, inspected the damage, and proposed a remediation plan at a cost of $49,706. Id. However, Myr-ick questioned certain aspects of the remediation plan and filed a proof of loss for $104,000. Id. When First Floridian refused to pay any additional amounts and did not respond to Myrick’s questions about the remediation plan, Myrick filed suit. Id.

In response to the suit, First Floridian invoked the appraisal provision of the policy. Id. The parties went through the appraisal process, and First Floridian ultimately paid Myrick a total of $102,000 pursuant to the appraisal. Id. Myrick then sought an award of attorney’s fees, which the trial court granted. Id.

On appeal, First Floridian argued that Myrick should not be awarded attorney’s fees under the confession of judgment rule because her suit was unnecessary. Id. at 1124. It argued that she could have made further inquiries of First Floridian or invoked the appraisal process herself rather than filing suit. Id. This court disagreed, noting that First Floridian was aware that Myrick did not agree with its initial estimate and that First Floridian did nothing to resolve the dispute. Id. It did not respond to her questions and did not invoke the appraisal clause at that time. Id. Thus, because Myrick’s action was not filed for an improper purpose but rather to resolve a bona fide dispute with First Floridian, Myrick was entitled to an award of attorney’s fees under the confession of judgment rule.

Similarly, in Lewis, the Lewises filed a claim with their homeowner’s insurance carrier for damage to their home due to Hurricane Wilma. 13 So.3d at 1080. The Lewises sought to have Universal cover the cost of a new roof, and Universal refused, offering only to pay for a portion of the roof and a portion of the roof ridge. Id. When mediation did not resolve the dispute, the Lewises retained counsel. Id. at 1081. Universal then invoked the appraisal clause of the policy but also “reserved the right to ‘deny the claim.’ ” Id. The Lewises subsequently filed suit. Despite the suit, the appraisal went forward, and the appraisal award resulted in payment to the Lewises of over $51,000. Id. The Lewises then sought attorney’s fees based on the additional payment, but the trial court denied the motion.

On appeal, the Fourth District rejected Universal’s argument that the suit was not necessary and thus that the Lewises were not entitled to fees under the confession of judgment rule. Id. In doing so, the court noted that “whether suit is filed before or after the invocation of the appraisal process is not determinative of the insured’s right to fees.” Id. at 1082. Instead, the question is whether the suit was filed following a dispute with the insurer for the legitimate purpose of resolving that dispute. Id. If so, an award of fees was proper regardless of whether the insurer timely paid the appraisal award. See also Goff v. State Farm Fla. Ins. Co., 999 So.2d 684 (Fla. 2d DCA 2008) (reversing the denial of the insured’s motion for attorney’s fees when State Farm was aware that the Goffs disputed the settlement offered but did not invoke the appraisal clause until after the Goffs filed suit), review denied, 21 So.3d 813 (Fla.2009); Wilson v. Federated Nat’l Ins. Co., 969 So.2d 1133 (Fla. 2d DCA 2007) (finding that the insurer’s post-suit payment of the amount owed pursuant to the appraisal process constituted a confession of judgment when the insurer knew that the insured disputed the insurer’s valuation of the loss prior to suit being filed); Travelers Indem. Ins. Co. v. Meadows MRI, LLP, 900 So.2d 676 (Fla. 4th DCA 2005) (finding that insurer’s payment of amount due pursuant to appraisal constituted a confession of judgment even though the appraisal clause was invoked before suit was filed because Meadows had been forced to retain counsel to compel Travelers to accept coverage and to compel Travelers to participate in the appraisal process).

What can be gleaned from these cases is that an insurer that is aware of a dispute with its insured cannot simply ignore that dispute, wait until the insured files suit to demand appraisal, pay any subsequent appraisal award, and then maintain that the payment does not constitute a confession of judgment as a matter of law. On the other hand, if an insurer is not on notice that the claim or payment is disputed, the insured generally will be unable to show that he or she was “forced” to file suit, and a subsequent post-suit payment by the insurer may not constitute a confession of judgment. While this does not mean that the insured is required to invoke the appraisal clause prior to suit, it does mean that the insured must, at a minimum, clearly notify his or her insurer in a timely fashion of his or her dissatisfaction with the amounts paid.

In light of this controlling case law, it is clear that summary judgment in favor of United Casualty was inappropriate. Clifton’s affidavit asserts that he told United Casualty repeatedly that he was dissatisfied with the claim payment and that United Casualty repeatedly ignored his requests for further payment. On the other hand, United Casualty asserts, without any supporting evidence, that it was wholly unaware of any dispute with Clifton until after suit was actually filed. United Casualty also asserts, again without any supporting evidence, that Clifton’s suit was filed for an improper purpose because he was aware that other similar cases had been referred to appraisal. If Clifton’s version of the facts is correct, United Casualty’s payment operates as a confession of judgment, and it is not entitled to summary judgment in its favor. If United Casualty’s version of the facts is correct, then it may be entitled to summary judgment. In either case, genuine issues of material fact precluded entry of summary judgment in favor of either party at the time of the summary judgment hearing.

We note that our resolution of this case in this manner is wholly consistent with this court’s decision in Goff, upon which both parties rely in this appeal. In Goff, State Farm initially paid the Goffs $4522.81 for the actual cash value of the hurricane damage to their residence. 999 So.2d at 686. The Goffs notified State Farm of their disagreement with this settlement amount, and State Farm reinspected the property but denied the claim for further policy proceeds. Id. The Goffs then retained a public adjuster, who estimated the loss at $66,708. Id. State Farm subsequently paid the Goffs an additional $3108.76, but it refused to pay any further amounts. Id. The Goffs then sued State Farm for breach of contract, after which State Farm moved to compel an appraisal. Id. The appraisal valued the loss at $43,059.83, which State Farm subsequently paid. Id. at 687. Both the Goffs and State Farm then moved for summary judgment. Id. The trial court entered summary judgment in favor of State Farm, finding that it did not breach the contract, and the Goffs appealed. Id.

On appeal, this court reversed, finding that State Farm’s post-suit payment operated as a confession of judgment. Given that State Farm was aware of the Goffs’ disagreement with State Farm’s payments but failed to invoke the appraisal process to resolve the dispute, this court found that the Goffs’ suit was “necessary” to resolve the dispute.

Contrary to Clifton’s argument here, the Goff opinion does not stand for the proposition that any post-suit payment automatically operates as a confession of judgment. Instead, when considered in its factual context, the Goff opinion held that State Farm’s payment operated as a confession of judgment because State Farm was aware that the Goffs disputed the settlement of the claim but it took no steps to resolve that dispute. The Goffs’ suit forced State Farm’s hand, and thus the suit was “necessary” to obtain policy benefits. The Goff decision is also entirely consistent with the holdings of Myrick, Lewis, Wilson, and Meadows MRI that an insurer that knows of a dispute with its insured, takes no steps to resolve that dispute, and then makes a post-suit payment of additional policy proceeds confesses to judgment by that post-suit payment.

Finally, we reject United Casualty’s argument that its payment should not operate as a confession of judgment because it never denied Clifton’s claim. When an insurer is aware that an insured disputes the settlement of a claim and the insurer fails to respond in any fashion to the insured’s demands for further action, that failure has the legal effect of denying coverage. See Sanchez v. Am. Ambassador Cas. Co., 559 So.2d 344, 346 (Fla. 2d DCA 1990) (holding that when an insurer was aware of its insured’s demand for either payment or arbitration and it chose not to respond to the demand until after suit was filed, the insurer’s actions amounted to a denial of coverage). While an insurer is clearly not required to pay any sum demanded by an insured to avoid a judgment for breach and award of attorney’s fees, an insurer may not simply sit back and ignore its insured’s demands for additional payments and then claim that its failure to respond does not operate as a denial of coverage.

In sum, the disputed issue of material fact concerning whether Clifton was “forced” to file suit precluded summary judgment in favor of United Casualty. Therefore, we reverse and remand for further proceedings.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . We note that our decision would have been the same on these facts even if United Casualty had not withdrawn Warnock's affidavit. United Casualty’s payment after suit was filed was prima facie evidence of a confession of judgment. United Casualty filed a motion for summary judgment arguing, in essence and without proof, that its payment was not a confession of judgment because Clifton's suit was unnecessary. Clifton refuted this assertion with his affidavit. While we note that United Casualty did not support its allegations with proof, we also note under these facts that any proof offered would have simply added to the fact questions, given Clifton’s affidavit. Thus, the withdrawal of Warnock’s affidavit is not dispositive of the propriety of summary judgment here.


text:
    Antonio D. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3452.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2010.
    Rehearing Denied April 7, 2010.
    Blake G. Johnson, Assistant Regional Conflict Counsel, Jacksonville, for Petitioner.

      Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Mansfield v. State, 911 So.2d 1160 (Fla.2005).

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


text:
    Carliss M. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4152.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2010.
    Rehearing Denied April 5, 2010.
    Carliss M. Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Marcus O. Graper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Clark v. State, 954 So.2d 685 (Fla. 1st DCA 2007).

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