text:
    Susan P. GOODMAN, Appellant, v. J.K. HARTIGAN, and Jessica Hartigan, Appellees.
    No. 5D03-1586.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.

      Daniel H. Jones, Homosassa, for Appellant.
    Robert B. Buchanan and M. Suzanne Green of Siboni, Hamer & Buchanan, P.A., Ocala, for Appellee.
   MONACO, J.

Susan P. Goodman appeals the rendition of a summary final judgment in favor of J.K. Hartigan and Jessica Hartigan based on an asserted workers’ compensation immunity. Because a factual issue remains concerning whether the actions of the Har-tigans were within their managerial or policy making duties, we conclude that entry of a summary judgment was erroneous and reverse.

According to the complaint, Ms. Goodman was employed by Cashel Stud Farm, Inc. (“Cashel”) as an “exercise rider” for thoroughbred horses. Cashel was in the business of boarding and training thoroughbred horses for the racing industry. The complaint alleges that the Hartigans, who physically live on the Cashel farm, held “managerial and policy making positions with Cashel,” and the Hartigans agree with this assertion.

While Ms. Goodman was exercising a horse on a track located on Cashel’s property, a dog owned personally by the Harti-gans spooked the horse and Ms. Goodman was thrown to the ground. She was then stomped and kicked by the horse, receiving multiple debilitating injuries. Ms. Goodman further alleged that the Harti-gans allowed the dog to roam unleashed, and that this “act of defendants was not within the managerial or policy making duties of defendants nor was it within their managerial or policy making capacities.” Thus, according to Ms. Goodman, the dog had nothing to do with Cashel’s business of boarding and training horses, and was no more than the Hartigan’s personal pet.

Initially Ms. Goodman sought benefits under section 440, Florida Statutes, the workers’ compensation law, and recovered a $100,000 settlement from her employer, Cashel. She thereafter filed suit against the Hartigans, seeking damages for their negligence. In their answer the Hartigans asserted that Ms. Goodman’s exclusive remedy for the injuries she suffered was under the workers’ compensation statute, and pointed out that Ms. Goodman had intentionally pursued and successfully obtained benefits under that act. Under such circumstances, they argue, Ms. Goodman is not entitled to pursue a further recovery under the negligence theory. See, e.g., Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003); Wishart v. Laidlaw Tree Service, Inc., 573 So.2d 183 (Fla. 2d DCA 1991). Ms. Goodman responds, on the other hand, that she is not seeking a further recovery against her employer, Cashel, but rather is seeking recovery for damages against the owners of the dog.

When the Hartigans moved for summary judgment, they submitted affidavits and testimony to the effect that they were both corporate officers of Cashel, and that they used the dog in the course of their employment duties to “acclimate the thoroughbred race horses ... to the presence of other animals around the race track and to make them aware of various every day sights and sounds.” They said, as well, that the use of the dog was a “managerial and policy-making decision of the Harti-gans,” and that they were, therefore, entitled to immunity under section 440.11(1), Florida Statutes (2001).

In opposition to the motion for summary judgment Ms. Goodman admitted that she pursued and accepted workers’ compensation benefits from Cashel, but argued that she was not barred from proceeding against the Hartigans because the action against the Hartigans was for negligence committed by them acting in their private capacities in allowing the dog to roam the track while horses were being worked, and was not for negligence committed in the course and scope of their duties. She submitted several affidavits to rebut the argument that the dog was for desensitization of the horses. One affidavit was from a trainer at the Cashel track who indicated that he had worked there for several years and that there was never an instance when the dog was used in any way in training horses. He stated, in addition, that the dog was simply Mr. Hartigan’s pet. Other affidavits related that the dog in question had caused at least two other accidents involving horses, one causing a rider to break both ankles, and that the Hartigans had been warned on a number of occasions of the danger in allowing their several dogs, including the one involved in this accident, to roam loose.

The trial court granted summary judgment, finding that the Hartigans had immunity because they were acting within the scope of their employment or duties.

The Court: Okay. You win. You lose. Prepare the judgment.
[Hartigans’ Counsel]: Yes, sir. Thank you, Your Honor.
[Goodman’s Counsel]: May I ask the Court’s specific holding- — -that your holding this was within the course—
The Court: Within the scope of their employment, yes, sir.
[Goodman’s Counsel]: You’re saying that having the dog was within the course of scope?
The Court: Yes, sir.
[Goodman’s Counsel]: Okay. I understand.

Apparently, the lower court decided as a matter of law that the actions of the dog owners in allowing the dog to roam unchecked at the racetrack was sufficient to qualify for immunity pursuant to section 440.11(1). Section 440.11(1) reads in pertinent part:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee ... on account of such injury or death ...
The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment ...

Summary judgement, of course, may only be awarded when the pleadings, affidavits, depositions and other appropriate documents within the court file reflect that there are no genuine issues of material fact and that the movant is entitled to a judgment as a matter of law. See Florida Rules of Civil Procedure 1.540(c). Since it is conceded that the Hartigans are managers or policymakers, the issue to be determined is whether as a matter of law the actions of the Hartigans vis-a-vis their dog were entitled to the benefit of the workers’ compensation immunity defense.

It is clear both from a plain reading of the statute and from the case law that workers’ compensation immunity is extended to employees acting in a managerial or policy-making position only if the conduct causing the injury was within the scope of those managerial or policy-making duties. See Hawkins v. Cordy, 642 So.2d 1115, 1116 (Fla. 3d DCA 1994); cf., Eller v. Shova, 630 So.2d 537, 541 (Fla.1993). If there are issues of fact regarding whether the conduct was within the managerial or policy-making duties of the supervisory employee who caused the injury, a summary judgment is inappropriate. Cf., Madaffer v. Managed Logistics Systems, 601 So.2d 1328 (Fla. 2d DCA 1992).

Whether the actions of the Hartigans fell within their managerial or policy making duties is a material fact about which there is a genuine issue. Although the Hartigans have suggested that their handling of the dog fell within the protected range, there is sworn testimony in the record to the contrary. Under these circumstances a summary judgment is inappropriate.

REVERSED.

THOMPSON and PALMER, JJ., concur.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    SEWELL MASONRY COMPANY, Appellant, v. DCC CONSTRUCTION, INC., et al., Appellees.
    No. 5D03-28.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.

      Larry H. Colleton of Larry H. Colleton, P.A., Orlando, for Appellant.
    Jim McCrae and Heather Pinder-Rodri-guez of Holland & Knight LLP, Orlando, for Appellees DCC Construction, Inc., and American Home Assurance Company.
   PLEUS, J.

Sewell Masonry Co. (Sewell) appeals from a final order of the trial court dismissing its action for lack of prosecution.

Sewell argues that the trial court abused its discretion in dismissing its cause alleging a construction lien, breach of contract and quantum meruit because there was, in fact, record activity during the one-year period specified in Florida Rule of Civil Procedure 1.420(e). DCC Constructors, Inc. (DCC), the defendant below, counters that the court correctly dismissed the action in light of multiple periods of record inactivity and non-prosecution by Sewell.

On October 17, 1997, Sewell filed a complaint against DCC. This complaint was apparently never served. Sewell subsequently amended its complaint on March 4, 1998. This amended complaint was served. DCC filed a motion to dismiss Sewell’s amended complaint on or about March 17, 1998. No notice of hearing or ruling on this motion appears in the record. Between March 17,1998 and October 23, 1998, interrogatories and admissions were filed. From October 23, 1998 to October 5, 1999, there were 347 days of inactivity. On October 5, 1999, - the trial court, sua sponte, served an order setting a case management conference and citing over 11 months of inactivity, directed Se-well to file a written report directly with the court setting forth the status of the case. Sewell never filed a written response as directed by the order. Instead, Sewell served a request for production of documents and records upon DCC on October 7, 1999, together with a notice of change of address.

Thereafter, a period of 364 days of inactivity passed. On October 6, 2000, Sewell filed and served a notice of taking deposition of DCC and a motion to compel discovery directed to its previous request for production. No notice of hearing or ruling on the motion to compel appears of record and Sewell filed a notice of cancellation of the deposition on November 3, 2.000. The deposition was never rescheduled.

On August 15, 2001, Sewell filed a motion for substitution of counsel and an order authorizing substitution of counsel was entered on August 28, 2001.

On October 9, 2001, DCC filed its motion to dismiss for lack of prosecution, asserting lack of record activity for one year. On August 30, 2002, Sewell moved for leave to amend its complaint so as to file a second amended complaint. A hearing on the motion to dismiss for failure to prosecute was held on December 2, 2002, nearly 14 months after the motion was filed.

The court granted the motion and ordered the action dismissed, explaining at the conclusion of the hearing:

I mean, this is as gross a sign of abuse, or example of abuse of the civil process of suing someone in 1997 and having no action taken on the file virtually over five years. Actually, I don’t think it was served until March of '98. So, we are figuring four-and-a-half years.
And, I mean, there’s been nothing done on this file of any substance. Nothing. Until a Motion to Amend was filed one year after substitution of counsel. It’s inexcusable.

In its order dismissing the action, the court found:

1. The Court finds that this action has had a series of extensive periods of non-prosecution by Plaintiff, including October 23, 1998 to October 5, 1999, October 7, 1999 to October 6, 2000, October 6, 2000 to October 9, 2001 and August 8, 2001 to August 30, 2002.
2. The Notice of Cancellation of DCC Deposition (November 3, 2000) and the filing of Sewell Masonry Company’s Response to DCC’s First Request for Production of Documents (August 8, 2001) were not designed to move this case forward and are not sufficient activity to withstand Defendant’s motion.
3. The Motion for Substitution of Counsel (August 15, 2001) and the Order Substituting Counsel (August 28, 2001) are not designed to move this case forward and are not sufficient to withstand Defendant’s motion.
4. Plaintiff has shown a repeated and egregious lack of prosecution in this action for multiple periods of time, some for a period in excess of one year and some for period(s) less than one year, and Plaintiff has failed to show good cause as to why this action should not be dismissed due to these multiple periods of non-prosecution and inactivity.

The standard of review of a trial court’s dismissal of a cause of action for failure to prosecute is abuse of discretion. Cole v. Dep’t of Corrections, 726 So.2d 854 (Fla. 4th DCA 1999). Florida Rule of Civil Procedure 1.420(e) provides that in all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise, has occurred for a period of one year shall be dismissed by the court unless good cause is shown in writing.

“Record activity” is an affirmative act reflected in the court file that was designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment. Barnett Bank of East Polk County v. Fleming, 508 So.2d 718, 720 (Fla.1987). The record activity must not be “a mere passive effort” to keep the suit on the court docket. Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972). See also, Toney v. Freeman, 600 So.2d 1099 (Fla.1992), which held that the trial court’s order directing counsel to advise the court of the status of the case and the defendant’s response did not constitute record activity sufficient to avoid dismissal for lack of prosecution.

The one-year period specified in Rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of filing of the motion to dismiss. Florida East Coast Ry. Co. v. Russell, 398 So.2d 949 (Fla. 4th DCA), rev. denied, 411 So.2d 381 (Fla.1981).

During the one-year period prior to DCC’s October 9, 2001, motion to dismiss for lack of prosecution, the following actions occurred:

(1) on November 3, 2000, Sewell filed a notice of cancellation of deposition which had previously been scheduled for November 2, 2000;

(2) on August 8, 2001, a copy of Sewell’s response to DCC’s first request for production of documents was filed;

(3) on August 15, 2001, a motion for substitution of counsel was filed by Sewell; and

(4) on August 28, 2001, an order authorizing substitution of counsel was filed.

As to these latter two filings, it is well-settled that motions and orders regarding the withdrawal and substitution of counsel are not such record activity as to defeat a motion to dismiss for lack of prosecution. See National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001); Modellista de Europa v. Redpath Investment Corp., 714 So.2d 1098 (Fla. 4th DCA 1998).

Sewell argues that the notice of cancellation of deposition constitutes record activity sufficient to preclude a dismissal for lack of prosecution. DCC concedes that while the filing of a notice of taking deposition may constitute record activity under Rule 1.420(e), as an act designed to move the case forward, there is no case law addressing whether the filing of a notice of cancellation of a deposition is activity designed to move a case forward and which would therefore' constitute sufficient record activity to preclude a dismissal for lack of prosecution. As DCC points out, however, it seems self-evident that cancellation of a deposition is not an affirmative act designed to move the case toward disposition. Weitzel v. Hargrove, 543 So.2d 392 (Fla. 3d DCA 1989), holds that cancellation of a hearing on a pending motion in no way advances the cause and does not establish a valid reason why the case should not have been dismissed for lack of prosecution.

Sewell argues that its response to DCC’s first request for production which was filed on August 8, 2001, was enough to save its case. DCC explains that it served its first request for production on March 17, 1998. On April 21, 1998, Sewell filed its notice of service of response to the request for production. It was some 40 months later, on August 8, 2001, that Se-well’s April 21, 1998, response was filed in the lower court. DCC argues and the trial court correctly concluded that this filing was not designed to move the case forward and thus was not sufficient record activity to withstand dismissal for failure to prosecute.

Documents filed of record concerning discovery may, but do not always, constitute ' record activity sufficient to avoid a dismissal for failure to prosecute. Sheen v. The Time Inc. Magazine Co., 817 So.2d 974 (Fla. 3d DCA 2002). The discovery activity that is filed will not be sufficient tó avoid a dismissal where the discovery is in bad faith and is also “without any design to move the case forward toward a conclusion on its merits.” Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991). In Anthony, the supreme court approved the Second District Court of Appeal’s reversal of a dismissal for failure to prosecute where some discovery activity had occurred during the year previous to the motion to dismiss. The discovery activity consisted of the filing by the plaintiff of a request to produce and of a notice of service of interrogatories. The district court had concluded that while the discovery was filed primarily to avoid the application of Rule 1.420(e), the discovery did ask for important witnesses and did assist in moving the case toward a conclusion on the merits.

The same cannot be said in this case. The filing of Sewell’s response to DCC’s request for production of documents, which had actually been served on DCC some 40 months earlier, was clearly useless and could hardly be said to assist in moving the case toward a conclusion on the merits. Unlike the discovery in Del Duca, the discovery filing here sought no information from the opposing side and merely reflected what had occurred several years earlier. The trial court was well within its discretion in concluding that the August 8, 2001 filing of Sewell’s response to DCC’s request for production was not record activity sufficient to preclude a dismissal for failure to prosecute.

Once it appears that no record activity sufficient to withstand a motion to dismiss for lack of prosecution has occurred for a period of one year, a litigant such as Sewell may still show under Rule 1.420(e), the existence of “good cause” in writing at least five days before the hearing on the motion to dismiss as to why its action should not be dismissed. In Modellista de Europa, the Fourth District explained that good cause in this context is excusable conduct, other than negligence or inattention to pleading deadlines. Whether good cause has been shown is a matter within the sound discretion of the trial court. Sheen.

Sewell argues that good cause existed because it hired new counsel in August 2001. However, other than a motion for substitution of counsel filed on August 15, 2001, new counsel did not file anything of record until August 30, 2002, when it filed a motion for leave to amend the complaint. Substitute counsel failed to move expeditiously once in the case, thereby aggravating the lethargic pace of the litigation.

Sewell also argues that two motions were pending in the case, one the motion to compel discovery filed on October 6, 2000, and the other, the March 17, 1998, motion to dismiss the amended complaint filed by DCC. Both motions had been filed more than one year prior to DCC’s motion to dismiss for failure to prosecute (filed October 9, 2001) and neither had been noticed for hearing before the court.

Sewell takes the position that whenever a dispositive motion is pending before the trial court, the duty to proceed rests with the trial court and the cause cannot be dismissed for lack of prosecution. Sewell cites to Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996). However, in Lukowsky, a dispositive motion for summary judgment was pending before the court and the parties were awaiting the court’s ruling. In reversing an order of dismissal, the Third District relied on its earlier decision in Air Line Pilots Ass’n v. Schneemilch, 674 So.2d 782 (Fla. 3d DCA 1996), wherein the pending motions had been argued and the trial court’s ruling was pending. Here the motions were not set for a hearing, let alone argued to the court. The parties were not awaiting a court ruling on the motions.

Sewell additionally relies on Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000). In that case, the plaintiff filed a motion to disqualify the trial judge on November 15, 1994. No further record activity occurred until December 29, 1995, when the defendant filed a motion to dismiss for failure to prosecute. The supreme court reversed the order granting dismissal. The court explained that section 38.10, Florida Statutes, and Florida Rule of Judicial Administration 2.160(f) place responsibility on the trial judge to immediately rule on a motion to disqualify and that the failure of the plaintiff to set a hearing on the motion was irrelevant. The court placed “emphasis on the immediacy with which the rule and case law require a judge to act when presented with such a motion.” 781 So.2d at 1066.

The First District, in Dye v. Security Pacific Financial Services, Inc., 828 So.2d 1089 (Fla. 1st DCA 2002), relied on Lukowsky and Fuster-Escalona to hold that where a motion to dismiss a complaint has not been disposed of, even though it has never been set for hearing, it is error to dismiss a cause of action for failure to prosecute. The First District’s holding is predicated on the theory that it is the trial court’s duty to proceed. Dye cites language in Fuster-Escalona that the trial judge is the manager of its docket and has the ultimate responsibility to rule on pleadings of record.

This extension in Dye of Lukowsky and Fuster-Escalona essentially transforms the obligation to move a case toward resolution from the parties onto the trial court. We concede that judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them, but the trial judge should not be placed in the role of scheduling hearings on motions for parties who do not themselves seek rulings on their pleadings. Litigants have an affirmative obligation to move their cases to resolution and not sit back and rely on the trial court to set their hearings for them. We therefore disagree with Dye.

This case had been pending for some four and one-half years and was still in the pleading stage when the court dismissed it for failure to prosecute. The trial court made efforts to move the case toward resolution but was thwarted. No abuse of discretion was committed in the dismissal.

We affirm the dismissal and certify conflict with Dye.

AFFIRMED; CONFLICT CERTIFIED.

THOMPSON and PALMER, JJ., concur.

      . Sewell's notice of appeal names DCC Construction, Inc., as appellee. This is an obvious typographical error as all the pleadings reference the defendant as "DCC Constructors, Inc.”

      . See Abaddon, Inc. v. Schindler, 826 So.2d 436 (Fla. 4th DCA 2002).

      . Indeed, the supreme court recently ruled that a Rule 2.160(f) motion to disqualify must be ruled on by the trial judge within 30 days. Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003).


author: COVINGTON, Judge.

text:
    Thomas TOMALO, Appellant, v. KINGSLEY DISPLAYS, INC., a Florida corporation, Appellee.
    No. 2D02-5702.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.

      George L. Hayes III, of Hayes & Marto-hue, P.A., St. Petersburg, for Appellant.
    Robert Persante of Persante & McCor-mack, P.A., Clearwater, for Appellee.
   COVINGTON, Judge.

This is an appeal by Thomas Tomalo of the trial court’s order holding that his judgment lien is subordinate to that of another lienholder, Kingsley Displays, Inc. Because we conclude that the lien recorded by Kingsley does not comply with the requirements of section 55.10(1), Florida Statutes (2000), we reverse the holding of the trial court.

These proceedings commenced via the filing of a mortgage foreclosure action in July 2000. Both Kingsley and Tomalo, who were junior lienholders, asked the trial court to determine the priority of their respective judgment liens. The trial court found that Kingsley’s judgment, recorded on February 5, 1996, met the necessary statutory requirements and was therefore a valid lien. Kingsley’s judgment did not include Kingsley’s address, but instead contained Kingsley’s name followed by “c/ o” and the address of Kingsley’s lawyer. Since Tomalo’s judgment was not recorded until January 7, 1997, the trial court concluded that his lien was subordinate to that of Kingsley.

Section 55.10(1) delineates when a judgment, order, or decree becomes a valid lien, and provides:

A judgment, order, or decree becomes a lien on real estate in any county when a certified copy of it is recorded in the official records or judgment lien record of the county ... provided that the judgment, order, or decree contains the address of the person who has a lien as a result of such judgment, order, or decree or a separate affidavit is recorded simultaneously ... stating the address of the person.... A judgment, order, or decree does not become a lien on real estate unless the address of the person ... is contained in the judgment, order, or decree or an affidavit with such address is simultaneously recorded ....

(Emphasis added).

As have the courts in Hott Interiors, Inc. v. Fostock, 721 So.2d 1236, 1238 (Fla. 4th DCA 1998), and Robinson v. Sterling Door & Window Co., 698 So.2d 570, 571 (Fla. 1st DCA 1997), we find the language of section 55.10(1) to be plain and unambiguous. In Hott, the Fourth District was faced with determining whether judgments obtained by Hott against Fostock were valid liens. 721 So.2d at 1237. While the judgments did not contain Hott’s address, they did include the address of Hott’s attorneys. Id. The trial court granted summary judgment in favor of Fostock, concluding that Hott failed to comply with section 55.10(1). Id. at 1238. On appeal, the Fourth District affirmed the ruling of the trial court, reasoning that, “We cannot expand this clear statutory directive to say that the address of the judgment holder’s attorneys may be substituted for that of the judgment holder.” Id. (Emphasis added.)

Likewise in Robinson, the First District was asked to resolve whether a judgment lien was defective in light of the fact that the names of the creditor’s attorneys, but not the creditor’s address, appeared in the judgment. 698 So.2d at 571. Looking to the plain meaning of the words in the statute, the First District determined that the judgment had not become a valid lien since it did not contain the address of the creditor. Id.

In the case at bar, Kingsley has attempted to distinguish Hott and Robinson by focusing on the “c/o” on Kingsley’s recorded judgment. While we recognize that the name Kingsley Displays, Inc., and an address do appear on the recorded judgment, we are mindful that section 55.10(1) does not merely call for “an address.” The statute very specifically requires “the address of the person who has a lien.” § 55.10(1). Furthermore, pursuant to the statute’s explicit mandates, the judgment “does not become a lien on real estate unless the address of the person who has a lien as a result of such judgment ... is contained in the judgment.” Id. Thus, because Kingsley’s address was not included on the judgment, the judgment never became a valid lien. To hold otherwise would require us to expand the meaning of otherwise unambiguous and clear statutory language in an improper abrogation of legislative power. See Westport Recovery Corp. v. Smith, 830 So.2d 226, 228 (Fla. 4th DCA 2002).

Accordingly, we find that although Kingsley’s judgment was recorded before Tomalo’s, Kingsley’s judgment hen is invalid due to its failure to comply with the specific requirements of section 55.10(1). For the reasons stated herein, the trial court’s judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.


author: KELLY, Judge.

text:
    Adam Lawrence CATON, Appellant, v. STATE of Florida, Appellee.

      No. 2D02-2612.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Adam Lawrence Catón appeals from his judgment and sentence for burglary and grand theft following the revocation of his probation. Catón alleges that the trial court erred in imposing certain conditions of probation. We agree and reverse.

As a .condition of Caton’s probation, the court ordered Catón to pay a $150 Court Facilities Fee (condition 22), and $1 per month to First Step, Inc. (condition 25). After filing a notice of appeal in this court, Catón filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b), arguing that these fees should be stricken because the trial court failed to conduct an inquiry pursuant to section 939.18(l)(b), Florida Statutes (2001), regarding his ability to pay the Court Facilities Fee, and failed to cite the statutory authority for the $1 per month fee to First Step, Inc.

After the sixty-day time period provided in rule 3.800(b)(2) had expired, the trial court entered an order in which it found that Catón did not have the ability to pay the $150 fee and imposed this fee as a lien. The trial court found that Catón had the ability to pay the $1 per month fee and upheld the imposition of this cost. We agree with Catón that the trial court’s order was a nullity because it was entered after the expiration of the sixty-day time period provided for in rule 3.800(b)(2). See Jackson v. State, 793 So.2d 117 (Fla. 2d DCA 2001) (holding order granting relief on motion to correct sentencing error a nullity where the order was entered after the expiration of the sixty-day time period); McGuire v. State, 779 So.2d 571 (Fla. 2d DCA 2001) (holding that the trial court cannot extend the time to resolve a motion for correction of sentence while appeal is pending after the motion has already been automatically denied by expiration of sixty-day period and there has been no request for an extension within the sixty-day period).

Accordingly, we strike the $150 discretionary Court Facilities Fee in condition 22 because of the trial court’s failure to conduct the statutorily required inquiry. On remand, the trial court may impose this fee after compliance with section 939.18. See Vidal v. State, 820 So.2d 408 (Fla. 2d DCA 2002). We also strike condition 25 requiring Catón to pay $1 per month of probation to First Step, Inc., because the trial court provided no statutory reference for the imposition of this cost. On remand, the trial court may impose this cost after appropriate notice and an opportunity to be heard. See Miller v. State, 679 So.2d 1186 (Fla. 2d DCA 1996); Murphy v. State, 666 So.2d 182 (Fla. 2d DCA 1995).

Reversed and remanded with directions.

CASANUEVA and CANADY, JJ., concur.


author: CANADY, Judge.

text:
    In the interest of E.S., a child. K.K., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 2D02-5342.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.
    Virginia R. Vetter, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

K.K. appeals an order of the trial court terminating his parental rights. This order was based on a “default” for “failure to appear” at the adjudicatory hearing in his case. K.K. arrived at the adjudicatory hearing approximately twenty minutes late. K.K’s attorney then moved that the trial court set aside the default and hear the case. Counsel explained to the court that K.K. was late because the disabled relative who had provided transportation for K.K. had experienced difficulty finding a handicapped parking space near the courthouse. The trial court denied the motion to set aside the default. In doing so, the trial court abused its discretion.

This is one of a number of cases in which the trial court either adjudicated a child dependent or terminated parental rights due to a parent’s tardiness in appearing for the scheduled hearing. For the reasons this court has previously explained, we reverse the order terminating K.K.’s parental rights and remand for further proceedings. See T.E.D. v. Dep’t of Children & Family Servs., 28 Fla. L. Weekly D2714, — So.2d -, 2003 WL 22795083 (Fla. 2d DCA Nov. 26, 2003) (reversing order terminating father’s parental rights which was based on a default entered for the father’s tardy appearance at hearing); see also G.A. v. Dep’t of Children & Family Servs., 857 So.2d 310 (Fla. 2d DCA 2003) (reversing order adjudicating child dependent which was based on a default entered for father’s tardy appearance at hearing). “This opinion does not require the trial court to alter custody or current visitation rights, but the trial court must review these issues and make a lawful decision as soon as possible following issuance of our mandate.” T.E.D., 28 Fla. L. Weekly at D2714, — So.2d at -.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., concur.


author: PER CURIAM.

text:
    Galen GOLDEN, Petitioner, v. Lawrence W. CROW, Jr., As Sheriff of Polk County, Respondent.
    No. 2D03-5572.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2003.
    James Marion Moorman, Public Defender, and Robert V. Hartman, Assistant Public Defender, Bartow, for Petitioner.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Galen Golden petitions this court for a writ of habeas corpus. Golden is being held without bond on charges of aggravated assault with a deadly weapon and violation of injunction against repeat violence, for which he is eligible for pretrial detention under section 907.041(4)(a), Florida Statutes (2002). However, the State has failed to file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. Rule 3.132(a) states, “If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1).” Rule 3.131(b)(1) sets forth the possible conditions of release, none of which include being held without bond.

Because the State has failed to file a motion for pretrial detention, we grant the petition for writ of habeas corpus and remand for the trial court to conduct a hearing pursuant to rule 3.131(b)(1) and determine appropriate conditions of release. The trial court is directed to hold the hearing by noon, Wednesday, December 24, 2003. Should the trial court fail to do so, it shall impose the standard bond for a third-degree felony and a first-degree misdemeanor.

Petition granted; remanded with directions.

ALTENBERND, C.J., and FULMER and DAVIS, JJ., Concur.


text:
    Patrick A. YOUNG, Petitioner, v. Rodney M. SHOAP, as Sheriff of Lee County, Respondent.
    No. 2D03-5550.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2003.
    Robert R. Jacobs, II, Public Defender, and Michael M. Raheb, Assistant Public Defender, Fort Myers, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Patrick A. Young petitions this court for a writ of habeas corpus. Young is being held without bond on a charge of aggravated stalking, for which he is eligible for pretrial detention under section 907.041(4)(a), Florida Statutes (2002). However, the State has failed to file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. Rule 3.132(a) states, “If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1).” Rule 3.131(b)(1) sets forth the possible conditions of release, none of which include being held without bond.

Because the State has failed to file a motion for pretrial detention, we grant the petition for writ of habeas corpus and remand for the trial court to conduct a hearing pursuant to rule 3.131(b)(1) and determine appropriate conditions of release. The trial court is directed to hold the hearing by noon, Wednesday, December 24, 2003. Should the trial court fail to do so, it shall impose the standard bond for a third-degree felony.

Petition granted; remanded with directions.

ALTENBERND, C.J., and FULMER and DAVIS, JJ., Concur.


text:
    V.V., Mother of S.M., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-1774.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2003.
    Steven G. Casanova of Steven G. Casanova, P.A., Melbourne, for Appellant.
    Charles D. Peters of Department of Children and Family Services, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See § 39.801(3)(d), Fla. Stat. (2003).

PETERSON, THOMPSON and ORFINGER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Ken C. HICKS and Payless Shoesource, Inc., Petitioners, v. HOME SHOPPING NETWORK, INC., Respondent.
    No. 2D03-574.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2003.
    F. Wallace Pope, Jr., of Johnson Pope Bokor Ruppel & Burns, P.A., Clearwater, for Petitioners.
    G. Donovan Conwell, Jr., of Fowler White Boggs Banker, P.A., Tampa, for Respondent.
   NORTHCUTT, Judge.

Ken C. Hicks and Payless Shoesource, Inc., petition for a writ of certiorari to quash the order of the circuit court denying their motion to disqualify the law firm of Fowler White Boggs Banker, P.A., from representing Home Shopping Network, Inc., in this suit. Hicks and Payless contend that Fowler White has a conflict of interest based on its representation of Payless in other matters. Because there are disputed factual issues, we grant the petition, quash the order under review, and remand for an evidentiary hearing. See Dawson v. Bram, 491 So.2d 1275, 1276 (Fla. 2d DCA 1986) (“If the affidavits filed by the parties did not agree on the issue presented, the court should have conducted an evidentiary hearing” before deciding motion to disqualify counsel.); see also Holland v. Tenenbaum, 360 So.2d 493 (Fla. 4th DCA 1978) (granting certiorari, quashing order that disqualified petitioner’s counsel, and remanding for evidentia-ry hearing due to conflicting affidavits filed by the parties).

Petition granted; order quashed; remanded for evidentiary hearing.

DAVIS and COVINGTON, JJ., Concur.


author: WALLACE, Judge.

text:
    LeRoy H. MERKLE, Jr., Appellant, v. GUARDIANSHIP OF Robert J. JACOBY, an incapacitated person, Appellee.
    No. 2D02-2748.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2003.
    LeRoy H. Merkle, Jr., pro se.
    No appearance for Appellee.
   WALLACE, Judge.

LeRoy H. MerHe, Jr., the guardian of the person and property of Robert J. Jaco-by, an incapacitated person (the Ward), appeals an order that required Merkle to refund to the guardianship estate the sum of $3,931.12 in fees that he had previously paid to himself. Because the circuit court entered the order without proper notice to Merkle, we reverse and remand for further proceedings.

Facts and Procedural History

Merkle, an attorney, was appointed guardian of the person and property of the Ward in February 1996. The Ward’s assets were limited; his monthly income consisted of a pension from the Department of Veterans Affairs, social security benefits, and a small amount of interest. Merkle regularly paid himself both guardian’s fees and attorney’s fees from the assets of the Ward without prior court orders approving the fees and authorizing the payments. Insofar as the record reveals, the various payments were disclosed on the annual accountings of the guardianship that Mer-kle filed with the court.

The Ward died on February 8, 2001, and Merkle subsequently filed his final accounting and petition for discharge. On May 3, 2002, the circuit court entered an “Order to Refund Money to Guardianship/Sole Heir” without prior notice to Merkle or a hearing. In the order, the circuit court found that Merkle had paid himself excessive amounts as compensation and ordered him to refund the sum of $3,931.12 to the guardianship estate.

The Applicable Law

A “surcharge” is the amount that a court may charge a fiduciary that has breached its duty. Black’s Law Dictionary 1455 (7th ed.1999). In Lawyers Surety Corp. v. Saltz, 658 So.2d 1152, 1153 (Fla. 2d DCA 1995), this court said that the purpose of entering a surcharge against a guardian is to make whole the ward’s estate. Pursuant to Florida Probate Rule 5.025(a), a proceeding to surcharge a guardian is an adversary proceeding unless otherwise ordered by the court. Florida Probate Rule 5.025(d), which governs notice and procedure in adversary proceedings, provides, in pertinent part:

(1) Petitioner shall serve formal notice.
(2) After service of formal notice, the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.

Unless the guardian has waived the right to formal notice in writing pursuant to Florida Probate Rule 5.180(a), it is error to surcharge a guardian absent service of formal notice as required by rule 5.025. See Taylor v. Mercedes, 760 So.2d 282, 283 (Fla. 4th DCA 2000).

Analysis

We conclude that the order directing Merkle to refund $3,931.12 to the guardianship estate was tantamount to an order surcharging the guardian. The order required Merkle to refund money to the guardianship estate because of an alleged breach of his fiduciary duties, i.e., the payment to himself of excessive compensation. Because the order amounted to a surcharge of Merkle as guardian, its entry was improper absent formal notice as required by rule 5.025(d) or a written waiver of formal notice by Merkle. See Fla. Prob. R. 5.025(a), (d); Taylor, 760 So.2d at 283. A review of the record discloses that no formal notice was served on Merkle prior to the entry of the refund order, and Merkle did not waive formal notice. Thus the entry of the refund order was improper under the rule.

Conclusion

We reverse the refund order and remand this case to the circuit court for further proceedings consistent with this opinion. Our decision in this case is based on procedural grounds. We express no opinion on the merits of the circuit court’s proposed refund.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and STRINGER, JJ., Concur.


text:
    James R. PACCIONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4592.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Rehearing Denied Jan. 28, 2004.
    James R. Paccione, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Szuch v. State, 780 So.2d 290 (Fla. 4th DCA 2001).

SHAHOOD, GROSS and MAY, JJ., concur.


author: KRATHEN, DAVID H., Associate Judge.

text:
    Calvin Dexter MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4011.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, and Joseph J. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   KRATHEN, DAVID H., Associate Judge.

Mitchell was found guilty of trespass of a structure and battery for events that occurred on April 3, 2001. At around 2:00 a.m., appellant and his girlfriend, Michele Robinson, were having a quarrel, which she attempted to bring to an end by running away. Appellant chased her up to a neighbor’s home, where Robinson knocked on the door to seek refuge. The neighbor, Pollack, opened the door and let Robinson enter.

One version of the facts is that despite Pollack’s best efforts in attempting to shut the door with Mitchell on the outside, appellant forced his way into the home where a continuation of the dispute ensued. Awakened by the ruckus, Pollack’s boyfriend, Shimer, urged Pollack to call 911. Either Robinson or Pollack, or both, were struck by Mitchell, who thereafter fled. The defense version of the events is that, although there was an argument between Robinson and Mitchell, when Robinson entered Pollack’s home Mitchell stayed outside, there were no further altercations, and no one was struck.

In this appeal, Mitchell raises two issues. He first claims that the trial court denied him the right to an impartial jury by denying cause challenges to three jurors who expressed misgivings about being impartial if Mitchell elected not to take the stand and testify on his own behalf. Mitchell also argues that the court erred by refusing to permit the exploration on cross-examination of Shimer’s alleged bias towards appellant and his motive to lie. On proffer, defense counsel sought to introduce evidence that Shimer disapproved of Robinson dating Mitchell, because he was a black man, and that once the witness declared that to be untrue, he would call a rebuttal witness to dispute what appears in some respects to be a collateral issue.

During jury selection, Juror Weldon testified that although she knew that the defendant had a right not to testify, it “probably” would cross her mind if he did not. Juror Sheehan testified that he would “wonder why they didn’t get up there and tell their story.” Although the judge gave an instruction that defendant had an absolute right to not testify, the juror stated that this did not change his feelings. When given the opportunity to comment on this subject, Juror Zimmer explained that she would probably question why someone who was not guilty “wouldn’t want to perhaps tell their side of the story.” On the heels of Zimmer’s remarks, Juror Fantini added “[s]he expressed my sentiments exactly.”

Defense counsel challenged for cause all of the jurors who expressed doubt as to whether they could be fair if the defendant did not testify. The court denied the motion as to jurors Sheehan, Weldon, and Fantini. Defense used peremptory challenges on those three jurors, and then requested an additional peremptory to remove juror Pasquale. The request was denied and the jury was sworn.

The standard for reviewing a trial judge’s decision on a challenge for cause is abuse of discretion. Castro v. State, 644 So.2d 987, 990 (Fla.1994); see also Carra-telli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002), review denied, 848 So.2d 1153 (Fla.2003). Our review of the record indicates that the trial judge abused his discretion in denying cause challenges to two of these jurors.

Trial judges must settle the query as to “whether the juror can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). “When making this determination, the court must acknowledge that a ‘juror’s subsequent statements that he or she could be fair should not necessarily control the decision to excuse a juror for cause, when the juror has expressed genuine reservations about his or her preconceived opinions or attitudes.’ ” Rodas v. State, 821 So.2d 1150, 1153 (Fla. 4th DCA 2002), review denied, 839 So.2d 700 (Fla.2003). “Because impartiality of the finders of fact is an absolute prerequisite to our system of justice, we have adhered to the proposition that close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality.” Williams v. State, 638 So.2d 976, 979 (Fla. 4th DCA 1994), review denied, 654 So.2d 920 (Fla.1995).

Here, the responses of prospective juror Sheehan reflected doubt about his ability to set aside his conjecture as to why the defendant did not testify, and that despite the instructions from the trial judge, his feelings did not change. This juror should have been struck for cause. See Overton v. State, 801 So.2d 877 (Fla.2001). Juror Fantini fell in together with Juror Zimmer when she voiced her opinion that she would inquire why someone innocently charged with a crime would not want to testify. All of these comments create more than a reasonable doubt about these jurors’ ability to be fair and impartial, and, therefore, the court erred in denying Mitchell’s challenge for cause as to these prospective jurors.

The second point on appeal pertains to whether the trial court denied Mitchell his right of cross-examination of Shimer by prohibiting inquiry regarding a potential bias toward black men dating Robinson. Shimer’s testimony was critical. For the State, it supported what was asserted to be the unbiased testimony of Pollack who had little if any relationship with Robinson or the appellant.

Section 90.608(2), Florida Statutes, as well as the Sixth Amendment to the United States Constitution, guarantee a defendant “the right to a full and fair opportunity to cross-examine prosecution witnesses in order to show their bias or motive to be untruthful.” See Chadwick v. State, 680 So.2d 567, 568 (Fla. 1st DCA 1996). Patently, “[a] defendant has a strong interest in discrediting a crucial state’s witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony.” Auchmuty v. State, 594 So.2d 859, 860 (Fla. 4th DCA 1992); see also Jones v. State, 577 So.2d 606, 608 (Fla. 4th DCA 1991). Furthermore, “[b]ecause liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness’ testimony.” Green v. State, 691 So.2d 49, 50 (Fla. 4th DCA 1997) (quoting Livingston v. State, 678 So.2d 895, 897 (Fla. 4th DCA 1996)). Courts should even allow inquiries “that might at first blush appear to be lacking any basis at all thus far in the trial, so long as counsel states a basis tending ultimately to show such bias.” Purcell v. State, 735 So.2d 579, 581 (Fla. 4th DCA 1999); see also Barows v. State, 805 So.2d 120, 123 (Fla. 4th DCA 2002).

Pollack explained that, upon entering, Mitchell ran toward Robinson, pushed her a couple of times and continued yelling. As she began to speak to the 911 dispatcher, Pollack said Mitchell walked up to her, slapped her, and attempted unsuccessfully to wrestle the phone away from her. Pollack identified Mitchell’s voice as one of those which was heard on the tape. Shim-er awoke somewhat dazed, and described the scene as “pandemonium.” Shimer said he told Pollack to call the police, that Mitchell became very upset, took the phone out of Pollack’s hand, and threw it to the floor. He then observed Mitchell push Robinson across the living room and hit her in the face.

Robinson told the jury that she and Mitchell got into a fight over money. The argument got out of control, and to stop it, she went inside Pollack’s apartment. The recollections of the witnesses take a distinctly different path from this point forward. Robinson said that when she went into Pollack’s apartment, Mitchell remained outside, that Mitchell never became physical and that he never laid a hand on Pollack.

Where, as here, the credibility of the defendant and the alleged victim, on the one hand, and one of the State’s chief witnesses, on the other, were crucial to the case, any evidence tending to prove a motive to lie by the State’s witness is both relevant and admissible. See Barows, 805 So.2d at 122-23. It was important to the State’s evidence that Shimer’s testimony support Pollack’s. If there is any doubt that the witness may have a bias capable of crafting a scenario out of thin air, then the defendant should have a right to explore that bias before the jury. Although whether or not Shimer approved of Robinson’s relationship with Mitchell is not relevant to the crime charged, it may very well be relevant to the issue of his bias towards Mitchell and any motivation he may have had to concoct his testimony. See, e.g., Smith v. State, 679 So.2d 30 (Fla. 4th DCA 1996) (holding that it was error not to allow juvenile to present testimony concerning alleged prejudice and bias of two of the State’s key witnesses. The error was not harmless because it “went to possible motive the witnesses may have had to exaggerate or even completely fabricate them testimony”); see also Davis v. State, 527 So.2d 962 (Fla. 5th DCA 1988) (“[C]on-sidering the critical importance of the daughter’s credibility in this case, we cannot conclude, beyond a reasonable doubt, that this error was harmless.”).

The State contends that the manner in which defense counsel wished to question Shimer was inappropriate, in that, after Shimer denied that he expressed disapproval to Robinson of her relationship with Mitchell, counsel planned to recall Robinson to impeach Shimer’s testimony. The rule on collateral impeachment is stated as follows:

When a witness is testifying on cross-examination, any answer to a non-material collateral matter is conclusive and cannot be impeached by normal means of impeachment, including contradictory testimony by another witness. The test is whether the proposed testimony can be admitted into evidence for any purpose independent of the contradictions. There are two types of evidence that pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ bias, corruption, or lack of competency.

Dupont v. State, 556 So.2d 457, 458 (Fla. 4th DCA 1990). If the events play out as counsel for Mitchell outlined, although the colloquy with Shimer may be collateral, the facts that may be introduced by Robinson thereafter may tend to discredit the witness by pointing out a possible bias. Accordingly, on any retrial Mitchell should be reasonably allowed to demonstrate his contention that the witness is biased.

REVERSED AND REMANDED FOR A NEW TRIAL.

FARMER, C.J., and GUNTHER, J., concur.


author: TAYLOR, J.

text:
    Kathleen S. LUCIDO, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Palm Auto Plaza Inc., Appellees.
    No. 4D02-4040.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.

      Christopher A. Haddad, West Palm Beach, for appellant.

      John D. Maher, Tallahassee, for Appel-lee-Unemployment Appeals Commission.
   TAYLOR, J.

Kathleen S. Lucido appeals from an order of the Unemployment Appeals Commission (UAC), which reversed the appeals referee’s decision that her conduct did not amount to misconduct disqualifying her from unemployment benefits. We reverse and remand for the UAC to reinstate the decision of the appeals referee.

The parties do not challenge the following findings of fact made by the appeals referee:

The claimant worked as a cashier for this employer from September 1,1999 to a last day of work on April 6, 2002. The claimant took a personal day off on the next work day, because she had chest pains. The claimant had such chest pains before, and after various tests, the claimant had been advised that the cause was probably not heart disease, but stress. The claimant’s doctor advised that in the future if she got such pains she was to take aspirin and rest. After the claimant had advised that she was taking the day off, which was approved by the supervisor, the supervisor called back and told the claimant that she needed to bring in a doctor’s note certifying that she was fit to return to work. The claimant- objected. She was not able to see a doctor that day, or the next. The claimant’s doctor did not have an appointment available for the better part of a week. The supervisor repeated that the claimant needed a doctor’s note to be able to return. The claimant’s supervisor called the claimant later that day, but the telephone was answered by the claimant’s husband. He stated an objection to the claimant having to visit a doctor. The claimant made her objections known to supervisors higher than her immediate supervisor, and she was told that they would call back. She did not receive a telephone call. The claimant concluded that she had been discharged.

Concluding that the claimant’s conduct did not amount to misconduct disqualifying her from unemployment benefits, the appeals referee stated the following:

The facts of this case show that the claimant was discharged after she objected to going to a doctor in connection with a one-day illness. The claimant’s leave was approved, and then the employer added an additional requirement, costing time and money, that the claimant had no reason to believe would be imposed. The claimant’s refusal to go to the doctor was not so unreasonable as to be misconduct. The evidence does not show that the claimant quit, but rather that at some point she realized that she was not going to be allowed to return to work. Accordingly, it is concluded that the claimant was discharged for reasons other than misconduct connected with work.
There were numerous conflicts in the testimony, especially over what was said between the claimant and her immediate supervisor. Based bn the candor and demeanor of the witnesses, the conflicts have been resolved in favor of the claimant.

The UAC reversed the appeals referee’s decision, ruling that the claimant refused to follow a reasonable work order and, therefore, “was discharged for misconduct connected with work within the meaning of the law.”

It is well settled that “while an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.” Maynard v. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). Thus, an appeals referee’s factual findings must be accepted by the UAC if such findings are supported by competent, substantial evidence. Lowry v. Unemployment Appeals Comm’n, 702 So.2d 645 (Fla. 4th DCA 1997). This is so, because, as trier of fact, the referee is responsible for weighing and resolving conflicting evidence and judging credibility. Having witnessed the demeanor of the parties, the referee is deemed to be in the best position to make these credibility determinations. Grossman v. Jewish Cmty. Ctr. of Greater Fort Lauderdale, Inc., Unemployment Appeals Comm’n, 704 So.2d 714, 716 (Fla. 4th DCA 1998)(citing Schneier v. Fla. Unemployment Appeals Comm’n, 595 So.2d 235, 236 (Fla. 4th DCA 1992)).

As we explained in San Roman v. Unemployment Appeals Commission, 711 So.2d 93, 95 (Fla. 4th DCA 1998), once a referee makes a determination regarding a claim, the commission reviews that decision to determine:

whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law. In reviewing whether the record contains competent, substantial evidence to support the appeals referee’s findings, the reviewing court may not make determinations as to credibility or substitute its judgment for that of the referee. Thus, the appeals referee’s decision must be upheld where there is competent substantial evidence to support it.

San Roman, 711 So.2d at 95 (citations omitted).

Appellant argues that the UAC erred in rejecting the referee’s findings of fact, because those findings were supported by competent, substantial evidence in the record. We agree. Essentially, after considering all the evidence concerning the circumstances in this case, including the nature of the claimant’s illness and the duration of her approved absence, the referee determined that the claimant’s failure to visit a doctor and obtain a doctor’s note did not amount to a refusal to follow a reasonable work order. The referee found that the claimant was unable to get an appointment with her doctor on such short notice, and further, that this requirement, imposed after her leave had already been approved, demanded an unnecessary expenditure of time and money.

In its order reversing the referee, the UAC disagreed, stating that the employer’s request for the doctor’s note was not “to excuse the claimant’s one-day absence, but to determine whether the claimant was physically capable of returning to work.” The UAC went on to say that because the claimant testified that she suffered from chest pains, “the employer was reasonable in requesting documentation to make sure that the work was not endangering the claimant’s health.”

Although, as the UAC reasoned, an employer acts prudently in seeking to determine whether an employee can return to work without endangering her health, the referee did not find that the employer in this case was motivated by such concerns. Instead, the referee determined that the doctor’s note served no useful purpose other that to justify the claimant’s brief absence. Moreover, the referee did not find that the claimant willfully refused to comply with the employer’s request for a doctor’s note but that she was unable to obtain one on such short notice. Apparently, in reaching its conclusions, the UAC reweighed the evidence concerning these matters and substituted its findings for those of the referee.

Section 443.036(29), Florida Statutes, defines misconduct as including:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

An employee’s outright refusal to perform an employer’s valid and reasonable work order may constitute misconduct within the meaning of the statute. See Torres v. Unemployment Appeals Comm’n, 2003 WL 22149150, 862 So.2d 26 (Fla. 2d DCA Sept.19, 2003); Sabolia v. Unemployment Appeals Comm’n, 747 So.2d 452 (Fla. 4th DCA 1999). On the other hand, “mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.” McKinney v. U.S. Sugar Corp., 492 So.2d 478, 481 (Fla. 4th DCA 1986) (citations omitted).

Here, even assuming that the employer’s request for a doctor’s note was a valid and reasonable work order, the referee specifically found that appellant’s failure to obtain a doctor’s excuse did not result from an outright refusal to perform a valid and reasonable work order but from an inability to comply due to circumstances beyond the claimant’s control. Thus, the factual findings of the referee do not support a conclusion that appellant engaged in misconduct disqualifying her from receiving unemployment compensation benefits.

Accordingly, we reverse the order of the Unemployment Appeals Commission and remand with directions to reinstate the appeals referee’s award of unemployment compensation benefits to appellant.

REVERSED and REMANDED.

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


text:
    Anthony WILLIAMS, Appellant, v. The PALM BEACH COMMUNITY COLLEGE FOUNDATION, INCORPORATED, a Florida corporation, Ace Security, Inc., a Florida corporation, and Todd David Chuha, Appellees.
    No. 4D02-2628.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.

      Diane H. Tutt and Sharon C. Degnan of Diane H. Tutt, P.A., Plantation, for appellant.
    No appearance for appellees.
   PER CURIAM.

Anthony Williams appeals the denial of his Motion for Leave to Amend Complaint to Substitute Party Defendant to correct a misnomer. We reverse.

In 1995, Williams was a student at Palm Beach Community College (“PBCC”) and lived in the Panther Park Housing Complex in Lake Worth. While he was standing outside his apartment at the complex, he became involved in a confrontation with a fellow student, Todd Chuha. Chuha allegedly punched Williams and knocked him to the ground and then began kicking and hitting Williams in the face and head. As a result, Williams suffered injury and now experiences chronic medical problems.

While the confrontation was occurring, an Ace Security Company guard contracted by PBCC was standing nearby. The security guard allegedly did not take any measures to prevent the confrontation from escalating to physical attack, nor did he attempt to intervene in the incident once it became violent. As a result, in addition to a personal injury suit filed against Chuha and settled before trial, Williams also sued PBCC and Ace Security, Inc. for negligence. PBCC settled pri- or to trial.

As it relates to this appeal, the initial complaint was served on Ace Security, Inc., not Ace Security Company, in 1999. Although Ace Security, Inc. owner and registered agent David Bruce filed a notice with the trial court stating that he did not own Ace Security at the time of the 1995 incident and the claim should be dismissed, he never secured a court ruling on the matter. Ace Security, Inc. took no further action during the pendency of the litigation. After filing the complaint, Williams deposed Bruce and discovered that in 1997, Ace Security, Inc. had purchased the assets of Ace Security Company, the entity which had a contract with PBCC at the time of the 1995 incident, and had continued to operate the combined companies under the common name Ace Security. Williams also discovered that there was a continuity of accounts between Ace Security Company and Ace Security, Inc. and that the companies were nearly identical in form and function. Because of the applicable statute of limitations, Williams filed a Motion for Leave to Amend Complaint to Substitute Party Defendant, and argued that naming Ace Security, Inc. instead of Ace Security Company constituted a mere misnomer that could be corrected by an amended complaint relating back to the filing date of the initial complaint. The trial court denied the motion to amend.

The case then proceeded to trial with Ace Security, Inc. as the defendant, and a default judgment was entered against Ace Security, Inc. The jury then heard testimony on damages leading to a verdict and final judgment in favor of Williams for $1.5 million.

On appeal, Williams asserts that the trial court erred by denying his motion to amend the complaint. The standard of review applicable to the amendment of pleadings is abuse of discretion. G.B. Holdings, Inc. v. Steinhauser, 862 So.2d 97, 99 (Fla. 4th DCA Nov.19, 2003); Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001). Williams maintains that the trial court abused its discretion because the naming of Ace Security, Inc. instead of Ace Security Company was a mere misnomer that could be corrected by amending the complaint. He argues that this amendment would not bring a new party into the case, and therefore, would relate back to the filing of the initial complaint so as to obviate any statute of limitations concern.

This Court has explored this issue in prior cases. For example, in Thomas v. Taylor Creek Marina of Fort Pierce, Inc., 520 So.2d 708 (Fla. 4th DCA 1988), Thomas was injured at Taylor Creek Marina of Fort Pierce, Inc. which was subsequently sold to Taylor Creek Marina, Inc., the entity on which process was served. Id. at 708. Thomas named “Taylor Creek Marina, a Florida Corporation” as the defendant in his lawsuit, and this Court concluded that Thomas named a non-existent corporation, rather- than bringing a new party into the lawsuit, and that such constituted a mere misnomer allowing for amendment of the pleadings to relate back to the time the complaint was filed. Id. at 708, 709.

Taylor has several similarities to the case at bar. Williams intended to sue the entity commonly known as Ace Security that provided security at Panther Park in 1995. By naming Ace Security, Inc. as the defendant, Williams did not bring a new party into the suit because the Ace Security Company that had contracted with PBCC was purchased by Ace Security, Inc., operated under the same common name, and functioned through a common corporate form. Relying on Taylor, we conclude that the trial court abused its discretion by denying Williams’s motion to amend his complaint to reflect the correct name of the defendant, Ace Security Company.

We recognize that amendment of pleadings may be inappropriate where it would work prejudice to á party, constitute abuse of the privilege to amend, or be futile. Video Indep., 792 So.2d at 681. First, Ace Security Company will not be prejudiced by the amendment as it has been aware of the proceedings from inception because Ace Security Company was purchased by the named defendant, Ace Security, Inc. Second, Williams filed a single motion requesting leave to amend the defendant’s name and had filed only one other amended complaint during the proceedings, so no abuse of the amendment privilege has been demonstrated. Third, the amendment will allow Williams to collect a-judgment that otherwise would have been procedurally difficult to collect, and as such, the amendment will not be futile. Therefore, none of these factors bar the amendment of the complaint in the present case.

In sum, we conclude that the trial court abused its discretion by failing to allow Williams to amend his complaint to correct a mere misnomer. As a result, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FARMER, C.J., GUNTHER, J., and KRATHEN, DAVID H„ Associate Judge, concur.


text:
    Ira H. LISS, M.D., Appellant, v. DEPARTMENT OF HEALTH and Board of Medicine, Appellees.
    No. 2D02-26.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    John M. Pellett of Barr, Murman, Tonel-li, Slother & Sleet, Tampa, for Appellant.
    Pamela H. Page, Senior Attorney, Department of Health, Tallahassee, for Ap-pellees.
   NORTHCUTT, Judge.

The Department of Health revoked Dr. Ira Liss’s license to practice medicine after an informal hearing. See § 120.57(2), Fla. Stat. (2001). Liss contends he was entitled to a formal hearing. We agree and reverse for further proceedings.

This case arose after Liss and Dr. Michael Spuza were convicted on federal charges of receiving kickbacks in exchange for Medicare referrals and for conspiracy to defraud the United States. Their convictions were affirmed on appeal. United States v. Liss, 265 F.3d 1220 (11th Cir.2001). The Board of Medicine then determined probable cause existed to believe that Liss violated section 458.331(1)(c), Florida Statutes (2001), and it directed the Department of Health to file an administrative complaint against Liss’s license.

We need not recite in detail Liss’s attempts to be accorded a formal hearing, or what occurred during the informal proceeding. We have addressed these facts at length in Spuza v. Department of Health, 838 So.2d 676 (Fla. 2d DCA 2003). Both doctors were represented by the same counsel and both appeared at the same informal administrative hearing. The differences between their two cases do not warrant a different result. Accordingly, on the authority of Spuza, we reverse the order revoking Liss’s license to practice medicine and remand with directions to grant him a formal hearing under section 120.57(1).

FULMER and WHATLEY, JJ., Concur.


author: WHATLEY, Judge.

text:
    Julius ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1361.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.

      James Marion Moorman, Public Defender, and Richard T. McKendrick, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We affirm Julius Ross’s convictions and sentences, but we remand for correction of the judgment to reflect that under count III, Ross was convicted of violating section 316.1935(2), Florida Statutes (1999), and it is a third-degree felony.

Affirmed and remanded with directions.

SALCINES and CANADY, JJ., Concur.


text:
    Jorge Ramirez BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3312.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Jorge Ramirez Bonilla, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

WARNER, KLEIN and SHAHOOD, JJ., concur.


author: WARNER, J.

text:
    Fred KELLER, Petitioner, v. Rosemarie KELLER, Respondent.
    No. 4D03-4391.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 10, 2004.

      Thomas J. Sasser of Sasser, Cestero & Sasser, P.A., West Palm Beach, and Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami, for petitioner.
    No appearance for respondent.
   WARNER, J.

The husband petitions this court for a writ of prohibition to prevent the circuit court from taking further action in these dissolution proceedings on the ground that the death of the wife prior to the entry of an order adjudicating the dissolution of the marriage deprived the trial court of further jurisdiction. We deny the petition.

On October 30, 2003, after an extensive trial, the court entered a thirty-nine page “Final Judgment of Dissolution of Marriage and Other Relief, With Minor Child.” In it, the trial court found that the marriage was irretrievably broken. The court adjudicated all of the parties’ respective claims to property as well as child support. It denied alimony based upon a waiver in an antenuptial agreement. However, through clerical error, the court failed to include actual language stating that the marriage was dissolved.

Both parties moved for rehearing, raising as an issue the absence of an adjudication of dissolution of marriage and agreeing that its omission was a technical error. On November 10, 2003, the wife was shot and killed, and the husband was charged with her murder. That same day, the trial court entered an amended final judgment nunc pro tunc to October 30, 2003, including the adjudication of dissolution of marriage. At the time the trial judge knew that the wife had been shot, but did not know whether she was dead.

On November 13, 2003, the husband filed a notice of the death of the wife and moved to dismiss on the ground that the court lacked jurisdiction to amend the final judgment. His position now is that the parties were still married at the time of her death because the final judgment did not contain the adjudication of dissolution of marriage.

The trial court denied the motion to dismiss for lack of jurisdiction, taking the position that the lack of specific language adjudicating the marriage as dissolved did not prevent the judgment from acting as a final judgment of dissolution of marriage, relying on Reopelle v. Reopelle, 587 So.2d 508 (Fla. 5th DCA 1991). We agree that Reopelle applies. In that case, the court held that because there are no “magic phrases” necessary to dissolve a marriage, an order styled “Final Judgment Dissolving Marriage,” transferring property to the wife and granting her alimony, also dissolves the marriage despite the omission of language that the marriage was irretrievably broken or dissolved. Id. at 510-11. In this case, the order, styled “Final Judgment of Dissolution of Marriage,” determined that the marriage was irretrievably broken, equitably divided all of the marital property, and denied the wife’s request for alimony. This was sufficient to dissolve the marriage of the parties.

Petition denied.

FARMER, C.J. and POLEN, J., concur.


text:
    K.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-803.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2004.
    Elliott C. Metcalfe, Jr., Public Defender and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky and Donna Koch, Assistant Attorneys General, Tampa, for Appellee.
   COVINGTON, Judge.

K.B. appeals the trial court order committing her to a moderate risk residential commitment program for her third adjudication of indirect criminal contempt. Because this is an inappropriate sanction, we reverse.

This court’s recent decision in K.C. v. State, 848 So.2d 1193 (Fla. 2d DCA 2003), controls. Section 985.216, Florida Statutes (2001), which sets forth punishment options for juvenile contempt, provides that “[a] child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.” In K.C., we held that “a residential commitment program does not fall within the definition of secure facility, nor does it qualify as an alternative sanction” under section 985.216(3). Id. at 1195.

We note that the trial court did not have the benefit of K.C., which was decided several months after the order was issued in this case.

Reversed and remanded.

SALCINES and STRINGER, JJ., Concur.


text:
    Herbert Brian KARGER, Appellant, v. CAREER CITY COLLEGE, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-1977.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2004.
    Herbert Brian Karger, in proper person.
    John D. Maher (Tallahassee), for appel-lee Commission.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Herbert Brian Karger appeals an order denying unemployment benefits. There was conflicting testimony in this case which was resolved in favor of the employer-appellee Career City College, Inc. ‘Where an employee leaves his employment because he has not received a raise in salary to which he feels entitled, but which was never unequivocally promised to him by the employer, his departure cannot be considered ‘for good cause attributable to the employer.’ ” Astengo v. Miami Behavioral Health Center, 774 So.2d 803, 803 (Fla. 3d DCA 2000) (citations omitted).

Affirmed.


text:
    Michael A. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1202.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 12, 2004.
   COVINGTON, Judge.

Michael A. Anderson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with the trial court that his motion is untimely, but for different reasons, and we affirm.

In 1993, after pleading guilty in seven criminal cases, Anderson was sentenced as a habitual felony offender to a true split sentence of ten years in prison suspended after five years with the remaining five years to be served on probation. In 1995, after violating probation, Anderson was sentenced as a habitual felony offender to the suspended five years in prison with the sentencing court awarding credit for all time previously served in the Department of Corrections (DOC) prior to resentenc-ing. Pursuant to that award of prior prison time served, the DOC applied against his sentence of five years a credit of 644 days of time previously served in prison. However, in November 1999, the DOC revoked the credit on the authority of Roberts v. State, 702 So.2d 239 (Fla. 2d DCA 1997).

On January 27, 2003, Anderson filed this motion seeking relief from the revocation of the prison credit and alleging timeliness due to newly discovered evidence. The trial court found that after September 1997 Anderson’s motion would be untimely since it was not filed within two years of the date when the time period for taking an appeal of his 1995 judgments and sentences had expired and the judgments and sentences became final. See McGee v. State, 684 So.2d 241, 242 (Fla. 2d DCA 1996).

However, at the time his 1995 judgments and sentences became final, Anderson had no way of knowing that later the DOC would revoke the prison credit previously recognized. Once that occurred in November 1999, Anderson had two years from that date to file a rule 3.850 motion containing a claim based on the revocation of prison credit. See Graddy v. State, 685 So.2d 1313, 1314 (Fla. 2d DCA 1996). Any motion filed after November 2001 would be untimely. Anderson did not file his motion until 2003. Consequently, his motion is untimely.

Affirmed.

CANADY and VILLANTI, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Amir CHALUTS, Appellant, v. Jacob NAGAR, Belina G. Nagar, and Royalty Development Corporation, a Florida corporation, Appellees.
    No. 2D02-1445.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
    Richard B. Wingate of Siket & -Sollis, LLP, for Appellant. ■ '
    L. Kirk Rogers of Rogers & Rogers, P.A., Naples, for Appellee Belina Nagar.
    No appearance for Appellees Jacob Na-gar and Royalty Development Corp.
   ALTENBERND, Chief Judge.

Amir Chaluts appeals an unusual order that is, in part, an order granting relief from a judgment pursuant to Florida Rule of Civil Procedure 1.540. We have jurisdiction to review only that portion of the order setting aside a judgment entered in a collection proceeding filed by Mr. Cha-luts against Royalty Development Corporation and Jacob Nagar. See Fla. R.App. P. 9.130(a)(5). We affirm that portion of the order, but caution that the content of this nonfinal order does not establish law of the case for purposes of entering any final order in either the collection proceeding or in the consolidated dissolution of marriage proceeding.

Belina G. Nagar is the wife of Jacob Nagar. In October 2000, she initiated dissolution proceedings against him in Collier County. One of the significant marital assets was the husband’s stock in Royalty Development Corporation. Mr. Nagar owned all of the stock in this corporation and controlled its activities. During the divorce proceedings, the circuit court entered orders preventing Mr. Nagar from dissipating or disposing of marital assets. The orders also prevented Mr. Nagar, as president of Royalty Development Corporation, from dissipating the assets of that corporation.

In the summer of 2001, Royalty Development Corporation had an opportunity to sell certain assets. In light of the prior court orders enjoining dissipation of assets, on June 22, 2001, Mr. Nagar filed a motion for approval of the sale of Royalty Development Corporation’s assets. This motion specifically requested that the dissolution court approve not only the sale of assets but also the payment of certain debts of the corporation from the proceeds of the sale. One of these debts was $150,000 that Mr. Nagar allegedly owed on promissory notes to Mr. Chaluts. In July 2001, before the dissolution court addressed Mr. Nagar’s motion, Royalty Development Corporation closed on the sale of assets and placed the proceeds in the registry of the court, apparently as a result of agreement between Mr. and Mrs. Nagar.

Meanwhile, also in July 2001 and without Mrs. Nagar’s knowledge, Amir Chaluts sued both Mr. Nagar and Royalty Development Corporation to collect upon the promissory notes. Mr. Chaluts alleged that Mr. Nagar and the corporation were jointly and severally liable for the notes. Mr. Nagar immediately stipulated to a judgment in the amount of $276,145 against only Royalty Development Corporation. The court accepted the stipulation and entered the judgment on July 16, 2001. As soon as Mrs. Nagar was aware of this judgment, on August 8, 2001, she moved to intervene in the collection action to set aside the judgment. Mrs. Nagar challenged the validity of the promissory notes and alleged that the stipulated judgment was an attempt to defraud the dissolution court and Mrs. Nagar by diverting assets of the corporation, and thus decreasing the value of the corporation.

The collection suit was pending in a different division than the dissolution proceeding. The circuit court judge presiding over the collection case granted Mrs. Na-gar’s motion to intervene. Recognizing that the validity of the promissory notes had been raised in both the collection proceeding and in the dissolution proceeding, the judge transferred the collection action and Mrs. Nagar’s motion to set aside the judgment to Judge Ellis, who was presiding over the dissolution proceeding. In the interim, Mr. Chaluts moved to intervene in the dissolution action.

Following an evidentiary hearing at which all parties to this appeal participated and were represented by counsel, Judge Ellis allowed Mr. Chaluts to intervene in the divorce proceeding, consolidated the divorce action and the collection action, and concluded that the stipulated judgment should be set aside. She entered a single order on all of these motions.

Mr. Chaluts argues that the trial court erred in setting aside his stipulated judgment. Although the procedure utilized to allow Mrs. Nagar to set aside the judgment is admittedly unusual, in light of all the evidence, we conclude that the trial court had authority to set aside a judgment that it concluded had been entered as a fraud upon the court. See Pearlman v. Pearlman, 405 So.2d 764 (Fla. 3d DCA 1981) (holding wife could seek relief from judgment enforcing oral claim against husband’s estate pursuant to rule 1.540 because her rights were directly and injuriously affected by judgment which was allegedly obtained by fraud); cf. In re Adoption of a Minor Child, 593 So.2d 185 (Fla.1991) (affirming circuit court’s order granting grandparents’ motion to set aside final judgment of adoption based upon misconduct of adverse party, even though grandparents were not parties to adoption proceeding).

Mr. Chaluts also argues that the trial court has made errors in this nonfinal order by determining marital assets at this point in the dissolution proceeding. We have no authority to review the portion of the order that is a nonfinal order regarding the assets of the parties and whether they are marital. See Fla. R.App. P. 9.130(a)(3).

Although we affirm this order, we hasten to add that there was some evidence suggesting that Mr. Chaluts may be legally entitled to some recovery based upon funds allegedly paid to either Mr. Nagar or Royalty Development Corporation. Thus, the findings employed to set aside the stipulated judgment are not a final determination- of the merits of Mr. Chaluts’ collection action. Indeed, Judge Ellis’s order specifically acknowledged: “A ruling on the Motion to Set Aside Stipulated Judgment does not operate as a ruling on the underlying merits of the case, but allows for a complete judicial determination with all interested parties noticed and given an opportunity to be heard.” Likewise, although it may have been procedurally necessary for the trial court to consolidate these cases to resolve interrelated issues, the court may later decide to sever the cases prior to the entry of final judgments.

Affirmed.

WHATLEY and CASANUEVA, JJ., Concur.

      . We note that Mr. Nagar and Royalty 'Development Corporation, who may be the more appropriate parties to raise this issue, are appelléés in this proceeding and have chosen not to appear.


author: VILLANTI, Judge.

text:
    Edgar ORDONEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4240.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Edgar Ordonez challenges the trial court’s order denying his motion to withdraw his guilty plea to one count of burglary with assault or battery and one count of sexual battery. Because the trial court denied Ordonez the opportunity to present evidence in support of his motion, we reverse and remand for further proceedings.

On March 21, 2002, the State charged Ordonez with burglary with assault or battery and sexual battery for events which allegedly occurred on March 2, 2002. On April 12, 2002, Ordonez signed a felony plea form indicating that he would enter a guilty plea to both charges in exchange for concurrent sentences of 10.5 years’ imprisonment on each count followed by ten years’ sex offender probation. At the change of plea hearing on April 16, 2002, Ordonez entered the plea as indicated in the plea form. The trial court ordered a presentence investigation and set off sentencing until June 4, 2002.

On May 31, 2002, Ordonez filed a motion to withdraw his plea, alleging that he was only sixteen years old when he committed the crimes and that he should have been treated as a juvenile. At the previously scheduled sentencing hearing on June 4, Ordonez moved for a continuance to be allowed an opportunity to gather evidence to support his motion to withdraw his plea. Ordonez showed the trial court a faxed copy of a document from Guatemala purporting to establish that he was a juvenile. The State questioned the authenticity of this document; however, the trial court neither admitted the document into evidence nor found that it was inadmissible. The State also made representations concerning statements Ordonez had allegedly made to police officers when he was arrested and Ordonez’s prior adult record, but the State offered no evidence in support of these representations. At the conclusion of the hearing, the trial court did not rule on Ordonez’s motion to withdraw his plea. Rather, it granted Ordonez’s motion to continue the hearing so that he could obtain his father’s testimony and further documentation to support his assertion that he was a juvenile.

After several further continuances, the trial court held another hearing on August 6, 2002. At that hearing, Ordonez sought a further continuance to hire a private attorney. The trial court denied this request, stating, “[H]e’ll have plenty of time to hire a new counsel if he wants another attorney, but we’re at the conclusion of this case now and we need to finalize it.” The trial court then sentenced Ordonez in accordance with the plea agreement without ever holding an evidentiary hearing on or ruling upon Ordonez’s pending motion to withdraw his plea.

On September 3, 2002, Ordonez filed a new motion to withdraw his plea, again alleging that he was sixteen years old at the time of-the offenses. At the hearing on this new motion, Ordonez sought to present the testimony of his father to establish the authenticity of the Guatemalan birth certificate, but the trial court refused to hear it, indicating that it had already held a hearing on the issue. Ordonez contended that there had never been an evi-dentiary hearing on his motion and that the trial court had never made a determination as to whether Ordonez was a juvenile. The court stated that it had “effectively denied” the earlier motion by going ahead with sentencing, and it denied the new motion on the basis of its earlier “ruling.” This appeal followed.

When a defendant files a motion to withdraw a plea, the defendant has the burden to show good and sufficient cause to support the withdrawal. Robinson v. State, 761 So.2d 269, 274 (Fla.1999); Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001). Mere allegations are insufficient, and the defendant must offer proof that the plea was not voluntarily entered. Robinson, 761 So.2d at 274. Because the defendant has the burden of proof, it is reversible error for the trial court to fail to hold an evidentiary hearing to develop the facts when the motion alleges a sufficient basis to support withdrawal of the plea. Caddo, 806 So.2d at 521; Sanders v. State, 662 So.2d 1372, 1374 (Fla. 1st DCA. 1995). In other words, if the allegations in the motion to withdraw the plea are facially sufficient, .an evidentiary hearing is mandatory.

In this case, Ordonez’s motion was facially sufficient. See Figueroa v. State, 657 So.2d 1225, 1226 (Fla. 2d DCA 1995) (noting that the legislature has given juveniles the right to be treated differently from adults and that the acceptance of a juvenile’s plea without the juvenile being advised of these additional and different rights renders the plea involuntary). Accordingly, the trial court was obligated to hold an evidentiary hearing on this issue. However, the trial court did not do so. Rather, at the only hearing at which Ordonez offered any evidence, the trial court did not rule on the admissibility of the document offered, and it granted Ordonez a continuance to obtain additional evidence. The trial court subsequently sentenced Ordonez without providing him an opportunity to present any additional evidence. Moreover, when Ordonez’s father’s testimony was offered at a later hearing, the trial court refused to hear it, erroneously stating that it had already ruled on the matter. This ruling, which denied Ordonez the opportunity to present evidence to meet his burden of proof, constitutes reversible error.

The State argues that even if Ordonez is a juvenile, no evidentiary hearing is necessary because Ordonez waived his right to be treated as a juvenile. We disagree for two reasons. First, the State presented no evidence to support its contention that Ordonez had misrepresented his age. While the State represented to the trial court that Ordonez had given a specific birth date to the officer who initially questioned him, the State did not offer any testimony from that officer. The State also argued that Ordonez had been previously convicted and sentenced as an adult in Hardee County; however, it offered no evidence of that conviction. In making the factual determinations which are relevant to the waiver claimed by the State, the trial court is not permitted to rely on the unsupported representations of the prosecutor. Competent evidence must be submitted and considered by the court at an evidentiary hearing. See State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003) (noting that the argument of counsel is not evidence); DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998) (same).

Second, the State did not establish that Ordonez received any benefit by misrepresenting his age. Courts have generally found a waiver of the right to be treated as a juvenile only when the juvenile has already obtained some benefit from misrepresenting his or her age. For example, in Williams v. State, 754 So.2d 67 (Fla. 4th DCA 2000), a juvenile lied about his age to obtain a favorable sentence of probation. Only after being sentenced on a violation of probation did the juvenile assert that he was entitled to be treated as a juvenile. The court held that the juvenile had waived his right to be treated as a juvenile by taking advantage of the more lenient sentence.

Similarly, in State v. Griffith, 675 So.2d 911 (Fla.1996), and State v. King, 426 So.2d 12 (Fla.1982), the court held that the juveniles had waived their right to be treated as juveniles when they failed to object to being tried as adults in the trial court and raised the issue for the first time only on appeal. On the other hand, in T.W. v. Jenne, 826 So.2d 536 (Fla. 4th DCA 2002), the court held that when the juvenile raised the issue of his minority early in the proceedings and before receiving the benefit of a more lenient sentence, he had not waived his right to be treated as a juvenile.

In this case, Ordonez raised the issue of his alleged minority early in the case. He had entered a plea but had not yet been sentenced. The plea was entered approximately three weeks after the information was filed, and the allegations of minority were raised approximately six weeks after the plea was entered. Further, when he filed his motion, Ordonez had not received the benefit of any type of more lenient handling of his case. In the absence of any evidence that Ordonez actually misrepresented his age and obtained some benefit from that misrepresentation, there is no basis for holding that Ordonez waived his right to be treated as a juvenile.

Finally, the State questions the authenticity of the document purporting to establish Ordonez’s date of birth, suggesting that the court should question a “document from an illegal from Mexico” and opining that the document was purchased or faked. However, there is nothing in the record to show that the trial court ever considered the admissibility of the document at issue. On remand, in determining whether the document is admissible, the trial court should consider whether the document is self-authenticating pursuant to section 90.902(3), Florida Statutes (2002). See Van Den Borre v. State, 596 So.2d 687 (Fla. 4th DCA 1992) (discussing the various means for authenticating a foreign document). If so, the State’s arguments concerning the name on the birth certificate and the origins of that certificate go to the weight to be given the document rather than its admissibility.

Reversed and remanded for further proceedings.

FULMER and CANADY, JJ., Concur.


text:
    SWEAT TRANSPORTATION, INC. and Billy Corbitt, Appellants, v. Laura MENA and Leo Mena, Appellees.
    No. 3D03-668.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Hinshaw & Culbertson and Gina E. Caruso; Marissa I. Delinks and Gina E. Al-banese and Kenneth Bednar, Fort Lauder-dale, for appellants.
    Fowler White Burnett, P.A., and Patti A. Meeks and June Galkoski Hoffman, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed. Houchins v. Florida E. Coast Ry. Co., 388 So.2d 1287 (Fla. 3d DCA 1980).