author: STONE, J.

text:
    Connie S. AYERS, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Specialty Shoes, Appellees.
    No. 4D02-1416.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Gordon R. Leech of Wiederhold, Moses & Rubin, P.A., West Palm Beach, for appellant.
    John D. Maher, Tallahassee, for Appel-lee-Unemployment Appeals Commission.
   STONE, J.

Ayers appeals an order of the Unemployment Appeals Commission that rejected the referee’s award and held that Ayers was disqualified from receipt of unemployment benefits. We reverse.

The UAC erred in rejecting the findings and conclusions of the appeals referee that Ayers had left her employment for good cause based on a good faith belief that her employer was acting illegally in its Medicare billing practices.

Ayers worked for Specialty Shoes, a supplier of medical shoes and orthoties for people with diabetes. Specialty Shoes would get a list of patients from a doctor’s office or nursing home and would check each patient’s eligibility for Medicare or Humana coverage. Specialty Shoes would give the list to its shoe fitter who sees the patient for fitting the shoes. It would then bill Medicare and deliver the shoes to the patient. Ayers was hired in an administrative capacity, with the assigned duty of overseeing two other staffers, one of whom handled the billing. When the two employees were fired, Ayers took over the Medicare billing responsibilities.

The referee accepted the testimony that Ayers immediately determined something was wrong with the billing procedures and confirmed that Specialty Shoes was billing for shoes that had not been delivered. Ayers notified Peggy Hester, the owner, and Hester promised to start billing properly. When Ayers saw no change in the billing practices, she again spoke with Hester, who told her she was trying to get it under control. Ayers also contacted a Medicare benefits administration unit and initiated an investigation into the employer’s billing practices. Ayers then quit, fearing that she could be held liable if the billing practice was deemed to be Medicare fraud.

At the hearing, Hester acknowledged that there were problems with billing that were subsequently resolved and that she, alone, was ultimately responsible for any alleged wrongdoing. She testified that some patients were fitted for shoes who were bed-ridden and other shoes were delivered to individuals who were deceased. Hester also testified to other Medicare billing mistakes.

The appeals referee found that Ayers had acted reasonably and showed good cause attributable to Specialty Shoes in connection with her quitting, that there was a good faith basis for her conclusions, and that Hester’s assurances that she would take steps to rectify the situation only reinforced those conclusions.

Specialty Shoes appealed the decision of the appeals referee to the UAC and the UAC found that the referee’s decision was not supported by the record. The UAC decided Ayers did not have good cause to quit because the employer was no longer requiring Ayers to perform the billing responsibilities at the time she quit. As further evidence for its conclusion, the UAC noted that Specialty Shoes’ practices had not officially been found to be illegal or unethical.

Under the applicable statute, a resigning employee is disqualified for unemployment compensation by abandoning work without good cause attributable to the employer. § 443.101(l)(a)(l), Fla. Stat. (2002). Whether good cause exists in a particular case, however, is a question of fact within the province of the appeals referee. See Campeanu v. Fla. Unemployment Appeals Comm’n, 629 So.2d 1015 (Fla. 4th DCA 1993).

The referee’s fact findings must be upheld by the commission where supported by competent, substantial evidence in the record and in compliance with the essential requirements of law. Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992); Greseth v. Dep’t of Health & Rehab Servs., 573 So.2d 1004, 1005 (Fla. 4th DCA 1991). “It is well settled that the UAC cannot reweigh the evidence, modify the referee’s factual findings, or substitute its factual findings for those of the referee unless the UAC determines that the referee’s findings were not based on competent substantial evidence.” Wall v. Unemployment Appeals Comm’n, 682 So.2d 1187, 1188 (Fla. 4th DCA 1996).

Here, there is record support for the referee’s conclusion that Ayers reasonably believed that she was engaged in illegal practices that would expose her to liability. Clearly, an employer’s requiring an employee to perform acts which the employee reasonably believes violate the law furnishes the employee with good cause, attributable to the employer, to voluntarily leave employment. See Gorr v. Sheridan Travels, Inc., 655 So.2d 1310, 1311 (Fla. 4th DCA 1995)(employee showed good cause for leaving employment where employer required her to perform acts, such as unauthorized backdating of ticket orders, which she considered improper, unprofessional, and illegal). Additionally, an employee’s fear of personal liability as a result of an investigation of his employer can be good cause to voluntarily leave employment. See Tarr v. Fla. Unemployment Appeals Comm’n, 651 So.2d 1246 (Fla. 2d DCA 1995)(employee’s fear that he would be responsible for any EPA violations of employer was good cause). Thus, here, where competent, substantial evidence existed that Ayers reasonably believed she was required to perform illegal acts exposing her to liability, the UAC should have affirmed the decision of the appeals referee.

Furthermore, the UAC modified the appeals referee’s findings and relied on facts not established at the hearing in making its decision. The law is clear that the UAC may not re-weigh the evidence. See Wall, 682 So.2d at 1187; Kelly v. Unemployment Appeals Comm’n, 823 So.2d 275, 279 (Fla. 5th DCA 2002).

Therefore, we quash the order of the UAC and remand for entry of an order in accordance with the referee’s findings.

Motion for Attorney’s Fees

We also find that counsel for Ayers is entitled to attorney’s fees under section 443.041(2)(b), Florida Statutes (2001). It provides:

An attorney at law representing a claimant for benefits in any district court of appeal of this state or in the Supreme Court of Florida is entitled to counsel fees payable by the division as fixed by the court if the petition for review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision from which appeal was taken. The amount of the fee may not exceed 50 percent of the regular benefits awarded under s. 443.111(5)(a) during the benefit year.

As for the amount of fees to be awarded, the clear language of the statute mandates that the fees be “fixed by the court.” As determined by the Third District in Cheung v. Executive China Doral, Inc., 638 So.2d 82 (Fla. 3d DCA 1994), this language requires that we set the amount of the fee. Procedurally, the Third District states that this should be done by having us appoint a commissioner of this court, such as a circuit or county court judge, in order to hear evidence, make specific findings as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), and to render recommendations regarding attorney’s fee orders. See Cheung, 638 So.2d at 84-85. The Second District, however, in Berry v. Scotty’s, Inc., 789 So.2d 1008 (Fla. 2d DCA 1998), did not follow Cheung and instead chose to relinquish jurisdiction to the appeals referee to conduct further proceedings. Id. at 1009. The Second District reasoned that the appeals referee would be more familiar with the factors necessary to apply Rowe in this setting. Id.

We believe that the procedure outlined in Cheung is the better one to follow to determine the amount of fees to be awarded because it most comports with the language in section 443.041(2)(b). Relinquishing jurisdiction to the appeals referee, on the other hand, would be inconsistent with the mandatory language of the statute directing the court to fix the fee. Furthermore, we agree with the Third District that having functionaries of the commission or the department determine the issue of attorney’s fees to be awarded against the department is not appropriate and note conflict with Berry. See Savage v. Macy’s East, Inc., 719 So.2d 1208 (Fla. 3d DCA 1998).

Accordingly, a separate order will be entered by this court appointing a commissioner. The order shall direct the commissioner to hold an evidentiary hearing, and thereafter file with this court a recommended order, with findings and conclusions consistent with the Rowe principles. If it appears that the proceedings will require more than thirty days, then the parties shall notify this court of the status. Upon receiving the commissioner’s recommended order, this court, consistent with our statutory duty to “fix” the amount, will issue an order setting the amount of the award.

WARNER and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    PUBLIX SUPER MARKETS, INC., Appellant, v. Norman G. YOUNG and Jennifer Young, his wife, Appellees.
    No. 4D02-1607.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Rosemary B. Wilder of Marlow, Connell, Valerius, Abrams, Adler & Newman, Coral Gables, for appellant.
    Edna L. Caruso, Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Leonel R. Plasencia of Plasencia & Associates, West Palm Beach, for appellees.
   GROSS, J.

In a personal injury lawsuit, Norman and Jennifer Young sued Publix Super Markets, Inc. Norman Young injured his back while unloading a truck at the loading dock of a Publix Super Market. The jury returned a verdict finding Publix 70% negligent and Mr. Young 30% negligent. The court entered a final judgment in favor of the Youngs. We reverse because the court failed to use the itemized verdict form required by section 768.77, Florida Statutes (2001).

At the charge conference during the jury trial, the trial court elected to use the verdict form submitted by the Youngs. That form did not separate economic and noneconomic damages. It asked the jury to allocate percentages of fault between Publix and Norman Young. The verdict form additionally requested the jury to determine Mr. Young’s total amount of damages and, on a separate line, the total amount of his wife’s damages. At the charge conference, Publix objected to the form because it was “not itemized like the law requires.”

Section 768.77 requires an itemized verdict in a negligence action. The statute provides:

In any action to which this part applies in which the trier of fact determines that liability exists on the part of the defendant, the trier of fact shall, as a part of the verdict, itemize the amounts to be awarded to the claimant into the following categories of damages:
(1) Amounts intended to compensate the claimant for economic losses;
(2) Amounts intended to compensate the claimant for noneconomic losses; and
(3) Amounts awarded to the claimant for punitive damages, if applicable.

§ 768.77, Fla. Stat. (2001) (emphasis added).

The original version of section 768.77 was enacted as part of the Tort Reform and Insurance Act, which became effective in 1986. Ch. 86-160, § 56, at 752, Laws of Fla. A stated legislative purpose of the Act was that damage awards “be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.” § 768.74(3), Fla. Stat. (2001). The itemized verdict form required by the statute “serves the beneficial purpose of allowing the court to scrutinize each item of damages in fight of the evidence actually presented in support of that item.” Dyes v. Spick, 606 So.2d 700, 703 (Fla. 1st DCA 1992). Section 768.74(5), Florida Statutes (2001) sets out five criteria to be applied by the court in determining the adequacy of a verdict. “[Sjpecial verdicts facilitate appellate review, and ‘may promote judicial economy by limiting the issues in a possible retrial.’ ” ITT Hartford Ins. Co. of the Southeast v. Owens, 816 So.2d 572, 578 (Fla.2002) (quoting David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision Making?, 36 Jurimetrics J. 275, 278 (1996)).

In 1999, section 768.77 was “amended to require itemization of only economic losses, noneconomic losses and punitive damages.” Standard Jury Instructions-Civil Cases (Nos. 01-01 & 01-02), 825 So.2d 277, 285 cmt. on 6.2g & h (Fla.2002). This amendment did not change the statutory requirement for itemization; it only reduced the number of things that must be itemized.

The itemized verdict required by section 768.77 “is mandatory when requested by a party.” Kriston v. Webster, 688 So.2d 346, 347 (Fla. 5th DCA 1997); Perry v. Allen, 720 So.2d 614, 617 (Fla. 1st DCA 1998). We cannot apply the harmless error rule because the use of the general verdict form precludes the scrutiny of the monetary award that is the goal of the statute.

The case is reversed and remanded for a new trial on damages.

KLEIN and SHAHOOD, JJ., concur.

      . “Except as otherwise specifically provided,” Part II of Chapter 768, Florida Statutes (2001) "applies to any action for damages, whether in tort or contract” when the cause of action arose on or after July 1, 1986. § 768.71(1) & (2), Fla. Stat. (2001).


author: SCHWARTZ, Chief Judge.

text:
    The ROYAL ADMINISTRATION, INC. and The Royal Company for Life and Health Insurance, Inc., Appellants, v. HANNOVER LIFE REASSURANCE COMPANY OF AMERICA, and Reliastar Life Insurance Company, Appellees.
    Nos. 3D02-2381, 3D02-2388.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Silver Garvett & Henkel; Hersch & Talisman and Patrice Talisman, Miami, for appellants.
    Harnett Lesnick & Ripps and Judith Ripps (Boca Raton); Carlton Fields and Patricia H. Thompson, Miami; Halleland Lewis Nilan Sipkins & Johnson and Jacqueline M. Moen (Minneapolis), for appel-lees.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   SCHWARTZ, Chief Judge.

Royal (Royal Administration Inc. and The Royal Company for Life and Health Insurance, Inc.) was the administrator of an international health insurance program provided by Sterling Investors Life Insurance Company to South American insureds. Sterling’s obligations were, in turn, reinsured with five reinsurers, including the two present appellees, Hann-over Life Reassurance Company of America and ReliaStar Life Insurance Company. Acting both as administrator and agent of Sterling and pursuant to its agreements with Sterling, Royal itself paid almost $1,000,000 in claims which Sterling had insured. It then sought reimbursement both from Sterling and the reinsurers which both declined — Sterling, on the ground that the reinsurers were responsible and should pay; and the rein-surers, on the ground that they did not have to pay until Sterling itself did. Faced with this expensive dilemma, Royal sued both Sterling and all the reinsurers. While the case continues — now in arbitration — as against Sterling and the other reinsurers, the trial judge dismissed Royal’s complaint as against the present ap-pellees Hannover and ReliaStar for failure to state a cognizable, direct cause of action against them. We reverse on the sole ground that the complaint properly stated a claim that Royal was equitably subrogated to Sterling’s rights against the reinsurers-.

It seems clear to us that each of the elements of equitable subrogation are present in this case. As we said in DeCespedes v. Prudence Mutual Casualty Company, 193 So.2d 224, 227 (Fla. 3d DCA 1966), affirmed, 202 So.2d 561 (Fla.1967):

Subrogation is a ‘creature of equity having for its purpose the working out of an equitable adjustment between the parties by securing the ultimate discharge of a debt by the person who in equity and good conscience ought to pay it....’

In this case, it is appropriately alleged that the plaintiff, acting pursuant to its obligations under its agreements with Sterling, and thus not as a volunteer, see American Nursing Resources, Inc. v. Forrest T. Jones & Co., Inc., 812 S.W.2d 790 (Mo.Ct.App.1991); Baker v. Fargo Building & Loan Ass’n, 64 N.D. 317, 252 N.W. 42 (1933) (which would have precluded a subrogation claim, see Dade County School Brd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999)), paid the insureds amounts which the reinsurers were themselves ultimately obliged to pay Sterling. See Doherty v. Songer, Inc., 195 F.3d 919 (7th Cir.1999); Spring Constr. Co. v. Harris, 614 F.2d 374 (4th Cir.1980); Amalgamated Casualty Ins. Co. v. Winslow, 135 F.2d 663 (D.C.Cir.1943); Federal Land Bank v. Godwin, 107 Fla. 537, 145 So. 883 (1933); First NLC Fin. Servs. v. Altamirano, 847 So.2d 516 (Fla. 3d DCA 2003); Suntrust Bank v. Riverside Nat’l Bank, 792 So.2d 1222 (Fla. 4th DCA 2001), review denied, 821 So.2d 300 (Fla.2002); Wolf v. Spariosu, 706 So.2d 881 (Fla. 3d DCA 1998), dismissed (Fla.1998); In re Forfeiture of United States Currency in the Amount of Ninety-One Thousand Three Hundred Fifty-Seven and 12/100 Dollars, 595 So.2d 998 (Fla. 4th DCA 1992), review denied, 601 So.2d 552 (Fla. 1992); Eastern Nat’l Bank v. Glendale Fed. Sav. & Loan Ass’n, 508 So.2d 1323 (Fla. 3d DCA 1987); Price v. Scharps, 405 So.2d 1043 (Fla. 3d DCA 1981); Federal Ins. Co. v. Arthur Andersen, 75 N.Y.2d 366, 552 N.E.2d 870, 553 N.Y.S.2d 291 (1990); see also Holyoke Mut. Ins. Co. v. Concrete Equip. Inc., 394 So.2d 193 (Fla. 3d DCA 1981)(subrogee like plaintiff may maintain action in own name as real party in interest), review denied, 402 So.2d 609 (Fla.1981).

Moreover, contrary to the appellees’ protestations, we see nothing in the reinsurance context which calls for an exception to this general and salutary rule. There is no doubt that Sterling has direct, enforceable rights against the reinsurers— which indeed, it has asserted in this action. The reinsurance world will surely not — as the appellees portentously threaten — come to an end if the plaintiff is permitted to assert those rights against the reinsurers in its own name. See Holyoke.

It is true that as a subrogee, Royal succeeds to the burdens of Sterling’s “treaties” with the reinsurers, as well as to their benefits. See Cleary Bros. Constr. Co. v. Upper Keys Marine Constr. Inc., 526 So.2d 116 (Fla. 3d DCA 1988), review denied, 534 So.2d 402 (Fla.1988); Jones v. Bradley, 366.So.2d 1266 (Fla. 4th DCA 1979). In this case, the impediments include the contractual requirement (which started all the trouble in the first place) that the reinsurer is liable only when it is presented with an appropriate record of insured payments actually made by Sterling. We think, however, that the complaint adequately alleges that this condition was satisfied by Royal’s having provided the reinsurers with lists of specific payments it made as Sterling’s agent and on its behalf.

For these reasons, the order dismissing the complaint as against the appellees is reversed for further proceedings.

Reversed and remanded.

      . It relied on the following provision of the reinsurance "treaties”:
      2.All claim losses paid by the Reassured, including compromise, ex gratia and arranged settlements, provided such losses are within the conditions of the original Policy and/or Contract and within the terms of this agreement, shall under all circumstances be binding upon the Reinsurer in proportion to its liability.

      . The order also dismissed the claim as against European Speciality Reinsurance (Ireland) LTD, which was an original appellee, but has since settled with Royal.

      .Although it is unnecessary directly to so hold, we tend to disagree with the alternative theories advanced by Royal to support a direct action against the reinsurers. See, e.g., § 624.610(9), Fla. Stat. (2002)(generally no direct action by insured against reinsurer); but see Koken v. Legion Ins. Co., No. 183 MD 2002, - A.2d -, 2003 WL 22071555 (Pa.Commw. Ct. filed June 26, 2003).

      . The authorities upon which they rely, see § 624.610(9), Fla. Stat. (2002); McDonough Constr. Corp. v. Pan Am. Sur. Co., 190 So.2d 617 (Fla. 1st DCA 1966), deal primarily with attempts to gain preferences in the reinsurance by proceeding directly against the rein-surer when the primary insurer has become insolvent.

      . Our confidence in this statement is reinforced by the fact that the other reinsurers, which stood in exactly the same position as the two holdouts now before us, have agreed to the maintenance of Royal’s action against them.

      . See supra note 1.

      . Of course, the appellees are free to contend otherwise below.

      . Royal also complains of an order denying its motion to stay the action against the present appellees pending the arbitration in progress against the other reinsurers. We deem it appropriate to vacate this order for further review by the trial court in light of our decision on the merits and of the status of the proceedings at the time of remand.


author: SHAHOOD, J.

text:
    Gary SHER and Irene Levine, Individually, Appellants, v. COUNTRYWIDE HOME LOANS, INC., a New York corporation, f/k/a Countrywide Funding Corporation d/b/a America’s Wholesale Lender and Steven Patrick Realty, Inc., Appellees.
    Nos. 4D02-1802, 4D02-1803.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.

      Kelley B. Gelb of Krupniek, Campbell, Malone, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauder-dale, for appellants.
    Philip J. Landau and William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee Countrywide Home Loans, Inc.
   SHAHOOD, J.

Facts

Appellants, Gary Sher and Irene Levine, were tenants for. approximately one year when the owners of the home they were renting defaulted on their mortgage. Foreclosure proceedings were instituted, a Summary Final Judgment for Foreclosure was entered, and the house was ultimately sold at auction to the mortgage company, appellee, Countrywide Home Loans, Inc. (Countrywide).

One month later, appellants had removed most of their personal items from the home, with the exception of some antiques, some art work and a glass aquarium containing turtles. One day, appellants learned that there had been an intruder in their home. They arrived at the house and discovered that the locks had been changed. After gaining entry into the house, they noticed that all of their personal belongings had been removed. The glass aquarium was overturned in the front yard and all of the turtles were missing.

It was later discovered that the house had been cleared, in preparation for resale, by a man who had been hired by the listing agent, Stephen Patrick Realty, Inc. Appellants thereafter filed suit against Countrywide and Steven Patrick Realty. They alleged trespass, civil theft, and intentional infliction of emotional distress against both defendants, and fraud, deceit and misrepresentations against Countrywide. The trespass and civil theft counts were based on the alleged improper entry onto the premises and removal of appellants’ property. The intentional infliction of emotional distress count was based on the disposal of appellants’ pet turtles. The fraud count was based on an alleged representation made by a Countrywide representative to appellants at the foreclosure sale to the effect that appellants would receive notice prior to any eviction proceedings.

Proceedings below

The uncontroverted evidence presented at the hearing on Countrywide’s Motion for Summary Judgment was that the certificate of title was issued to Countrywide on May 8, 1998, well before the alleged trespass on May 21, 1998. In addition, Countrywide pointed out that the foreclosure order specifically permitted Countrywide to dispose of any personal property remaining in the house after the successful bidder acquired possession by way of issuance of a certificate of title. Third, Countrywide pointed out that the locksmith and the realtor were completely independent of Countrywide, a fact which had been discovered after the lawsuit was filed. Finally, Countrywide referred to the depositions of both Sher and Levine wherein they stated that they had a lawyer of their own and did not rely on any representations made to them by any Countrywide agent on the day of the foreclosure sale.

It was appellants’ position that, pursuant to the foreclosure order, Countrywide was required to not only obtain a certificate of title, but also to acquire possession of the house. Appellants argued that they were still in possession of the house even though they had moved out; therefore, Countrywide could not have had possession. At the hearing, counsel for appellants stated,

I don’t think there can be any doubt as to count one, trespass, entering the property, not authorized by Judge Frus-ciante. Countrywide is responsible for their presence. Civil theft, or fraud, or intentional infliction of distress have nothing to do with Countrywide, but the trespass, authorization to go on the property was authorized by Countrywide.

In addition, appellants’ counsel told the court that she had nothing to offer on the intentional infliction and fraud counts and Countrywide was responsible only for the trespass.

After hearing argument, the court concluded that the dispositive issue was, as a matter of law, whether Countrywide was entitled to possession of the home at the time appellants’ property was removed. Finding that appellants did not have the right to possess the house, the court entered summary final judgment in favor of Countrywide and reserved jurisdiction to consider a motion for fees pursuant to section 772.11 and 57.105, Florida Statutes (2002).

At the hearing on Countrywide’s motion for fees, appellants’ counsel admitted that, after taking discovery, she concluded that Countrywide was not responsible, but argued that the critical time for determining justiciable issues is at the time the complaint is filed. The court concluded, “I find just a minimum of due diligence investigation before filing suit would have even precluded filing suit on the civil theft claim, therefore, there is entitlement for the civil theft claim, because basically there was no civil theft.” The court also found a complete absence of justiciable issues on the fraud and intentional infliction counts.

The court entered an Order Granting Countrywide’s Motion for Attorneys’ Fees Against Plaintiffs, awarding $28,827.50 in fees pursuant to both sections 772.11 and 57.105. The court also awarded costs in the amount of $6,834.38. Based on the representations of Countrywide’s counsel that it was impossible to apportion the fees because there was no way of distinguishing work done on each count separately, the court did not apportion the fees. Final judgments on fees and costs were entered accordingly.

First Issue — Section 772.11 Fees

The first issue on appeal is whether it was error to award fees pursuant to section 772.11. Appellants’ civil theft claim was based on their interpretation of sections 9.1 and 9.2 of the Summary Final Judgment of Foreclosure, which state the following:

After the Certificate of Title is issued by the Clerk of this Court, then the Clerk shall issue upon further Order one or more Writs of Possession. The Writs of Possession shall put the buyer at the foreclosure sale in possession of the land and property which was sold on the Courthouse steps. The Writs of Possession shall be in the name of the successful bidder. The address for which the Writ of Possession shall be issued is 10188 NW 48th Drive, Coral Springs, Florida 83067.
In the event that any defendant has failed to remove any item or items of personal property from the subject real estate at the time of the issuance of the Writ of Possession as provided above, the successful buyer at the foreclosure sale shall be entitled to dispose of such personal property at his discretion. In the event the successful bidder at the foreclosure sale acquires possession of the subject real estate after issuance of the Certificate of Title or by any other means and personal property of any other defendant remains on the subject real estate, said successful bidder shall be entitled to dispose of said personal property at his discretion.

(emphasis added).

Appellants argue that, according to the final judgment, Countrywide was required to first obtain a writ of possession before removing their property from the house. Thus, while they do not quarrel with the entry of summary judgment on their civil theft claim, they assert that, at the time they filed their complaint for civil theft, it was reasonable for them to believe that Countrywide should not have acted without a writ of possession.

Section 772.11 provides that, in a suit for civil theft pursuant to sections 812.012-812.037, Florida Statutes (2002), or section 825.103(1), Florida Statutes (2002), “[t]he defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support.” § 772.11(1), Fla. Stat. (2002). The trial court’s ruling concerning an award of fees under this statute is subject to an abuse of discretion standard of review and shall not be reversed absent competent record support. See generally Marcus v. Miller, 663 So.2d 1340 (Fla. 4th DCA 1995).

In filing the complaint for civil theft, appellants relied upon the case of Redding v. Stockton, Whatley, Davin & Co., 488 So.2d 548 (Fla. 5th DCA 1986). That case suggests that even though a property has been foreclosed on and sold, a writ of possession is nevertheless required for the owner to remove the lessee from the property. Appellants also relied upon the language of the court’s order in this case, which could be interpreted to require a writ of possession before appellants’ property could be removed. Even though the trial court interpreted the order adversely to appellants’ position, it does not necessarily follow that appellants’ civil theft claim was without substantial factual or legal support at the time they filed their complaint.

The fact that appellants’ counsel conceded at the summary judgment hearing that the civil theft claim “had nothing to do with Countrywide” does not undermine appellants’ position. Counsel’s candid acknowledgment was based on discovery made subsequent to the filing of the complaint, which revealed that Steven Patrick Realty and Christopher Bosse were independent contractors such that their actions were not attributable to Countrywide. Knowledge available at the time of the filing of the complaint, however, indicated otherwise. In fact, prior to the filing of the complaint, Countrywide had represented in a letter to appellants that the persons who had entered the home and removed their property were Countrywide agents.

Thus, it was reasonable for appellants to believe that a Countrywide agent was responsible for, allegedly, wrongfully removing their personal items. It was error for the court to require appellants, before filing suit, to independently investigate whether Countrywide’s own admission that the people were its agents was, in fact, a true statement. In addition, based on the language of the order of foreclosure as well as the Redding case, it cannot be said that appellants’ claim was without substantial legal or factual support when the claim was originally filed. Consequently, it was error to award Countrywide fees on the basis of section 772.11.

Second Issue — Section 57.105 Fees

The second issue is whether it was appropriate to award fees pursuant to section 57.105, Florida Statutes, with regard to appellants’ claims of intentional infliction of emotional distress and fraud. In awarding fees under this section, the trial court must find that, at the time a claim or defense is presented to the court, the losing party knows or should know that it “[w]as not supported by the material facts necessary to establish the claim or defense” or “[w]ould not be supported by the application of then-existing law to those material facts.” § 57.105(l)(a), (b), Fla. Stat. (2002); see also Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002).

In this case, the trial court stated generally that appellants’ fraud and intentional infliction of emotional distress claims lacked justiciable issues and made no specific finding in the final order to support the 57.105 fee award. An absence of justi-ciable issues is no longer the standard for awarding fees under section 57.105. See Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001), rev. granted, 817 So.2d 844 (Fla.2002). Thus, we reverse and remand for the trial court to reconsider the 57.105 fee award according to the current standard.

Based on the foregoing, we reverse the final judgment awarding fees and costs to Countrywide and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

POLEN and GUNTHER, JJ., concur.


author: MAY, J.

text:
    Paul J. MIGLIORE, Appellant, v. Sandra A. HARRIS, Appellee.
    No. 4D02-3614.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.

      Paul J. Migliore, Jupiter, pro se.
    Robert H. Springer, P.A., Lake Worth, for appellee.
   MAY, J.

A father appeals the denial of his motion to vacate a trial court order, which modified a final judgment with regard to child support. He raises two issues. One is evidentiary in nature and the other concerns the court’s compliance with section 61.30(ll)(b), Florida Statutes (2001). We agree that the court failed to comply with the mandatory language of section 61.30(ll)(b) and reverse.

On June 19, 1997, a trial court awarded residential custody of the children to the mother. Two years later, on May 7, 1999, the parties entered into a settlement agreement, which modified the final judgment to include shared parental responsibility. The trial court approved the modification. As a result of the agreement, the father received additional holidays with the children.

On March 23, 2000, the mother filed a petition for modification requesting to relocate to Connecticut. The trial court denied the petition on August 30, 2000. Following an amendment to section 61.30, the father petitioned to modify his child support obligation. See § 61.30(ll)(b), Fla. Stat. (2001); Ch. 01-158, § 16, Laws of Fla.

■The court held a hearing on the petition for modification. Over the father’s objection, the court reviewed calendars that the mother had kept detailing the father’s visitation during 1999, 2000, and 2001. The court found that the father had 129 overnight visits in 1999, 117 overnight visits in 2000, and 132 overnight visits in 2001. The court found that the number of exercised visits by the father over the last three years were less than the statutory 40% or 146 visits needed to constitute a “substantial amount of time.” See § 61.30(ll)(b)10.

The court found that neither the settlement agreement nor court order “required” the children to spend a substantial amount of time with the father. However, the court found that “if the [father] were to exercise all possible time set forth by Court Order, it would indeed meet the requirement for substantial time requiring the court to adjust the [father’s] child support obligation accordingly.” The court then concluded that the adjustment under section 61.30(ll)(b) was not “mandatory” because the father’s visitation with the children was not “required.”

The trial court ordered the parties to complete the child support guidelines without applying the formula for substantial time-sharing, and directed that once the father’s support was calculated, his obligation “shall be reduced by 5% for consideration of the significant amount of time he spends with the children.”

The father argues that the trial court erred in failing to apply the formula set forth in section 61.30(ll)(b), because the agreed visitation arrangement gave him sufficient overnight visits to satisfy the statute’s application. He further argues that the trial court should not have considered the “history” of the father’s adherence to the visitation schedule prior to the petition to modify, but rather the amount of time provided for by the agreement. The mother argues that the father had never used all of the time allotted to him and was not therefore entitled to the reduction in child support.

Section 61.30(ll)(b) states that “[w]hen-ever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support .... ” § 61.30(ll)(b). This provision is mandatory. See Guttler v. Guttler, 798 So.2d 888 (Fla. 4th DCA 2001). Section 61.30(ll)(b)10. defines a “substantial amount of time” as occurring when “the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.”

Based on the plain language of the statute, the trial court was required to adjust the child support obligation under section 61.30(ll)(b). In the event the father subsequently failed to exercise the 40% visitation requirement, the mother is provided a remedy under section 61.30(ll)(c), Florida Statutes (2001). That section deems a noncustodial parent’s failure to exercise its agreed visitation to be a “a substantial change of circumstances for purposes of modifying the child support award.” It further provides for retroactive modification to the date the noncustodial parent first fails “to regularly exercise court-ordered or agreed visitation.” Id.

To apply the remedy before the adjustment is made is placing the cart before the horse. See McDaniel v. McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003) (trial court erred by increasing the mother’s child support for father’s noncompliance where the child support amount had never been adjusted pursuant to section 61.30(ll)(a) or (b)). In doing so, the trial court erred.

The father’s second issue concerns the trial court’s consideration of the calendars concerning the father’s visitation, kept by the mother for the three years preceding the father’s request for modification. He argues that this evidence should not have been admitted because the mother failed to disclose the calendars, pursuant to Family Law Rule 12.440(a). In light of our holding on the proper application of the statute, the issue is rendered moot.

Reversed and remanded for further proceedings consistent with this opinion.

SHAHOOD and TAYLOR, JJ., concur.


author: COPE, J.

text:
    Guillermo SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1351.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Guillermo Sanchez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   COPE, J.

Guillermo Sanchez appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.

Defendant-appellant Sanchez was convicted of armed robbery and attempted armed robbery. The convictions were affirmed on appeal, with a remand for correction of a sentencing error. Sanchez v. State, 693 So.2d 678 (Fla. 3d DCA 1997).

The defendant’s current Rule 3.850 motion is his second (“the Second Motion”). It was filed more than two years after his convictions and sentences became final.

As grounds for filing the Second Motion beyond the two-year time limit, the defendant relies on Florida Rule of Criminal Procedure 3.850(b)(3). This rule allows a belated filing where “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.”

In his sworn Second Motion, the defendant alleges that after he was convicted, his father retained counsel to represent him on appeal and in a subsequent Rule 3.850 motion. Counsel represented the defendant on the direct appeal as agreed.

According to the defendant, in 1999 counsel filed a Rule 3.850 motion (“the First Motion”) in the trial court. The motion was denied as untimely.

In December 2001, the defendant filed the Second Motion pro se. In it he asserts that he is entitled to proceed with this belated motion because his retained counsel through neglect failed to file the First Motion timely.

The trial court denied the Second Motion, accepting the State’s argument that the Second Motion was untimely and successive. The defendant has appealed.

We conclude that the order now before us must be reversed and the cause remanded for further proceedings. Rule 3.850(b)(3) was adopted in order to deal with the exact situation asserted by the defendant in this case. Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999). If counsel undertook to file a Rule 3.850 motion on behalf of the defendant, and through neglect failed to file it timely, then the defendant is entitled to belatedly file a Rule 3.850 motion. 747 So.2d at 934.

On remand the State should first advise the trial court whether, in light of this opinion and Steele, the State disputes the defendant’s right to a belated Rule 3.850 filing. The response filed by the State in the trial court acknowledges that the First Motion was filed by counsel, and that it was denied as untimely. If the State has a basis on which to dispute the defendant’s entitlement to a belated filing under Rule 3.850(b)(3), then there must be a hearing on that issue.

If the court determines that the defendant is entitled to proceed with a belated Rule 3.850 motion under Rule 3.850(b)(3), then the court must proceed to a consideration of the defendant’s claims. We express no view on the ultimate merits.

We exclude from the remand the trial court’s ruling on ground VI, the defendant’s argument that he is entitled to relief from his habitual violent felony offender adjudication on account of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The trial court denied relief on ground VI on the merits. We affirm that ruling on authority of Jackson v. State, 802 So.2d 387 (Fla. 3d DCA 2001).

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


author: PER CURIAM. COPE, J.

text:
    William LOVETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-913.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    John Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before, COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed.

GERSTEN and SHEVIN, JJ., concur.

COPE, J.

(concurring).

While initially skeptical, in the end I conclude that the outcome would not have been different if a voluntary intoxication defense had been offered. The defendant’s actions were so persistent and goal-directed that the jury inevitably would have concluded the defendant had formed the necessary specific intent.

      The crime date was 1994, so the defendant is in the group for which voluntary intoxication offers a defense to specific intent crimes. The defense has subsequently been repealed (with a narrow exception) for crimes committed on or after October 1, 1999. See § 775.051, Fla. Stat. (1999); ch. 99-174, §§ 1-2, Laws of Fla.


author: PER CURIAM.

text:
    Kevin Lee WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2281.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., GODERICH and SHEVIN, JJ.
   PER CURIAM.

We reverse the order denying defendant’s motion to correct illegal sentence. As the state properly concedes, defendant does not qualify for sentencing as a violent career criminal. Accordingly, we vacate defendant’s sentence and remand for re-sentencing without regard to violent career criminal or violent habitual offender sentencing statutes.

Order reversed; sentence vacated.


text:
    Al-Jerome CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-654.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.

      Al-Jerome Carter, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Al-Jerome Carter (“defendant”) appeals from an order denying his motion to correct illegal sentence pursuant to Florida Rules of Criminal Procedure 3.800. We reverse and remand for resentencing.

The defendant was convicted of second-degree murder for a crime committed in November of 1996. The defendant was sentenced under the 1995 sentencing guidelines, which permitted the judge to impose a life sentence if the total sentencing points exceeded a certain number. Subsequently, the Florida Supreme Court held the 1995 sentencing guidelines unconstitutional for crimes committed from October 1, 1995 to May 24, 1997. See Heggs v. State, 759 So.2d 620 (Fla.2000). Where the sentencing guidelines are unconstitutional, the defendant can claim relief under Rule 3.800. See Copeland v. State, 842 So.2d 1052 (Fla. 3d DCA 2003) (holding that the defendant must be resentenced where sentencing guidelines have been held unconstitutional).

Heggs requires only the resentencing of those persons who were adversely affected by the application of the 1995 guidelines. A defendant sentenced outside the guidelines is not adversely affected if the reasons invoked for going outside the guidelines would be valid under both the 1994 and 1995 laws. See State v. Lemon, 825 So.2d 927 (Fla.2002).

Here, there was no provision in the 1994 guidelines that allowed a life sentence to be imposed if a certain point score was exceeded. Therefore, the defendant was adversely affected by the application of the 1995 guidelines, and the case must be remanded for resentencing. On remand, the trial court may impose an upward departure sentence supported by valid written reasons that existed at the time of the original sentencing. See State v. Betancourt, 552 So.2d 1107 (Fla.1989); Trotter v. State, 774 So.2d 924 (Fla. 5th DCA 2001).

Reversed and remanded.


text:
    Mark PRESSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1071.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marni A. Bryson, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of false imprisonment, concluding that the trial court did not abuse its discretion in finding that the victim’s statements to an officer were excited utterances. Although the evidence was conflicting on the amount of time which passed between the incident and statements made by the victim, at most it was twenty to twenty-five minutes. Whether her statements were excited utterances, or responses to questions after she had calmed down, was a preliminary fact to be determined by the trial court. Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000). We find sufficient evidence in the record from which the trial court could make that factual finding. We have considered the other issues raised by appellant to be without merit. Affirmed.

FARMER, C.J., KLEIN and SHAHOOD, JJ., concur.


text:
    Mitchell C. KOZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3205.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

It appears that the trial court made a mathematical error in calculating appellant’s credit for time served. According to this record, appellant was in jail in California from February 4, 2001 until July 25, 2002, a total of 535 days, not related to California charges and solely because he was being held for extradition to Florida. Adding to that the 141 days he had already served in Florida on the original sentence would appear to entitle him to a total jail credit of 676 days, not the 657 days calculated by the trial court. We therefore remand for recalculation.

FARMER, C.J., KLEIN and SHAHOOD, JJ., concur.


author: KLEIN, J.

text:
    M.A.M., as father of W.T.M., a minor child, Appellant, v. Charles VISCOUNT, Appellee.
    No. 4D02-4902.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2003.
    Chet E. Weinbaum, Fort Pierce, for appellant.
    Jonathan Jay Kirschner of Kirschner & Garland, P.A., Fort Pierce, for appellee.
   KLEIN, J.

Appellant, the natural father, appeals an order denying his motion to withdraw his consent to allow the adoption of his child. We affirm.

The child was born in 1994 and the parents divorced two years later. After several years in which there had been no contact between the father and the child, the mother remarried and, a year or so later, appellant signed a consent agreeing to adoption of the child by the stepfather.

Over a year later, in the adoption proceeding, appellant filed a motion to withdraw his consent. In the meantime, the mother had died. After an evidentiary hearing the trial court denied appellant’s motion to withdraw his consent and he appeals.

The stepfather argues that this order is not appealable; however, we disagree. Although the adoption proceedings are not final, this order is final as to the natural father because it totally disposes of the case as to him. Fla. R.App. P. 9.110(10.

As to the merits, we agree with the trial court’s conclusion that appellant failed to prove that his consent was obtained by fraud or duress. Affirmed.

FARMER, C.J., and SHAHOOD, J., concur.


author: THOMPSON, J.

text:
    AVATAR PROPERTIES, INC., Appellant/Cross Appellee, v. N.C.J. INVESTMENT COMPANY, et al., Appellee/Cross Appellant.
    Nos. 5D02-1252, 5D02-1253.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.

      John R. Hamilton of Foley & Lardner, P.A., Orlando, for Appellant/Cross Appel-lee.
    Scott A. McLaren and Lynn C. Hearn of Hill, Ward & Henderson, P.A., Tampa, for Appellee/Cross Appellant.
   THOMPSON, J.

Avatar Properties, Inc., appeals an order confirming an arbitration award, and N.C.J. Investment Company cross appeals the order. We affirm.

In June 1979, Avatar, then known as GAC Properties, sold a parcel of land to Osceola Petroleum Company, Inc. The deed provided that the seller had the right to repurchase the property if the buyer or its assigns, agents, or operators failed to operate the gas station “to be built,” for ninety days. The deed provided that the repurchase price was to be set by arbitration between the parties under the terms of the American Arbitration Association.

Henry Barkett obtained title from Osceola and allegedly failed to operate a gas station for more than 90 days. In April 1990, having previously offered Barkett $150,000 for the property, Avatar demanded arbitration. During arbitration, Bark-ett stipulated that gasoline service had been unavailable for more than 90 days. Also during arbitration, Barkett filed a declaratory judgment action, seeking a ruling on whether Avatar would be required to repurchase the property once the price was established at arbitration. In December 1995, Avatar and Barkett entered a settlement agreement which stayed both proceedings. The agreement called for Barkett to make certain renovations, and to pay Avatar $40,000 upon completion of the renovations. In the event the conditions of the agreement were not met, the stay would cease. Also, the parties would be in the same position vis-a-vis the arbitration and declaratory judgment action as they were before the agreement was entered.

Later, Barkett transferred ownership of the property, and the transferee conveyed it to 3G Properties, which leased it to N.C.J. in January 1995. In July 1996, Avatar and N.C.J. entered what is referred to as a “redevelopment agreement” under which N.C.J. would remodel the facility and pay Avatar 2% of sales. Also, Avatar guaranteed N.C.J. five years of exclusivity in the area with respect to certain sales. It is disputed whether this was a completed contract. Seven months later, N.C.J. purchased the property from 3G. As part of the purchase, N.C.J. signed an “Acknowledgment,” agreeing that Barkett owed Avatar $40,000 under the settlement agreement, that N.C.J. would make the payment, and that N.C.J. would hold 3G harmless with respect to the $40,000. N.C.J. and 3G agreed that N.C.J. did not assume any other responsibilities under any settlement agreement reached with Avatar at any time.

In the Fall of 1999, Avatar re-opened the arbitration proceeding between it and Barkett. N.C.J. wrote to the American Arbitration Association stating that it had an interest in the outcome of the proceeding and asked for a copy of the original demand for arbitration and copies of future correspondence. In January 2000, Avatar joined N.C.J. to the arbitration proceeding. N.C.J. told the American Arbitration Association that it did not have jurisdiction over N.C.J. and that N.C.J. declined to join an arbitration designed to establish a price for property that Avatar had no right to acquire. Neither Barkett nor N.C.J. appeared at the arbitration. The arbitrator entered an award providing that the market value of the property was $180,000 after deducting environmental clean-up costs.

Avatar petitioned the circuit court to confirm the arbitration award and to enter a judgment declaring that Avatar was entitled to purchase the property for $180,000. N.C.J. filed a motion to dismiss, arguing that N.C.J. had not been a party to the arbitration and did not participate in it. Because the arbitration was flawed, N.C.J. argued, the court did not have jurisdiction. The court confirmed the award, but declined to rule, as requested by Avatar, that N.C.J. was required to deed the property to Avatar upon Avatar’s tendering $180,000. The court stated that if Avatar wanted the title, it would probably have to sue for specific performance.

On appeal, Avatar argues that the court erred in declining to rule that N.C.J. would be required to transfer title to Avatar upon Avatar’s tendering the price established at arbitration. Avatar argues such a determination was implicit in the arbitrator’s award. We do not agree because the arbitrator was never asked to decide whether N.C.J. should be required to transfer title upon tender of the market value established at the arbitration. It is not unusual for parties to a contract to agree to submit certain matters, especially of valuation, to arbitration, but to leave other matters for the court system. Compare State Farm Fire and Cas. Co. v. Licea, 685 So.2d 1285 (Fla.1996) (holding that appraisal provision in homeowner’s insurance policy in which insurer also “retained rights” did not lack mutuality of obligation where retention of rights clause was interpreted to mean right to litigate issue of coverage rather than amount of loss). Here, the deed restriction only requires the parties to settle the issue of price through arbitration:

The seller shall have the right to repurchase that portion of the property, used as a retail Gas-Service Station in the event that the Buyer, or its assigns, agents or operators fail to operate the gasoline filling station to be built for a period of ninety (90) days during a time when gasoline and fuel is generally available. The purchase price in the event of such a transaction shall be set by arbitration between the parties under the terms of the American Arbitration Association but shall not be less than the amount of any outstanding first mortgage on the property.

We also note that Avatar and Barkett stipulated that the arbitrator would have “the authority to determine value only,” and when Barkett sought clarification about whether Avatar would be required to purchase the property once the price was established, Avatar argued in response: “It is the position of Avatar that the sole issue before this panel is the evaluation of the property in question.”

Furthermore, the only finding made by the arbitrator concerned the market value of the property:

As of the date of exercise of the right to repurchase, to wit: March 12, 1990, which the arbitrator determines to be the appropriate date for valuation, [the] fair market value of the property was $425,000 less the reasonable cost of remediation of then existing contamination of which the arbitrator finds to be $245,000 ... rendering the true market value to be $180,000 as of March 12, 1990.

It is true that the arbitrator referred to the “exercise of the right” to repurchase, but we cannot construe that language to imply a determination that Avatar had the right to repurchase, because the arbitrator was merely setting the valuation date. Perhaps it would have been better for the arbitrator to have referred to the assertion of the right to repurchase, but we cannot read into the award a determination the arbitrator was not authorized to make. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989) (holding that an arbitrator exceeds his or her power by going beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration).

We also reject Avatar’s claim that it would have been proper for the trial court to expand upon the arbitration award in order to give “complete relief.” See Goldman v. Chang, 622 So.2d 30 (Fla. 3d DCA 1993) (trial court was without power, authority, or jurisdiction to enter an award of damages where arbitration panel had not intended to do so).

On cross appeal, N.C.J. argues that the court erred in confirming the award because the arbitration provision did not bind N.C.J. We conclude that N.C.J. has waived this argument by failing to avail itself of the statutory procedure for making it. Section 682.13(l)(e), Florida Statutes, requires a court to vacate an arbitration award if “[tjhere was no agreement or provision for arbitration subject to this law....” Assuming N.C.J.’s motion to dismiss should be construed to be a motion to vacate the award, it was untimely because section 682.13(2), Florida Statutes, provides that an application to vacate an arbitration award “shall be made within 90 days after delivery of a copy of the award to the applicant,” unless the award is predicated on fraud or corruption. There is no dispute that N.C.J. failed to contest the award within 90 days of its receipt of the award. N.C.J. also could have, but did not, seek relief when Avatar joined it to the arbitration: section 682.03(4), Florida Statutes, provides that a court may “stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had.” N.C.J. argues that sections 682.13(l)(e) and 682.03(4) presuppose an arbitration agreement between the parties, but that argument is untenable in light of the language of these provisions, which clearly contemplate a situation in which one party claims there is no arbitration agreement to which it is bound. Indeed, section 682.12 requires the trial court to confirm an award, “unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award.”

N.C.J. further argues that it did not waive the issue of the arbitrator’s “jurisdiction” because it is a matter that can be raised at any time, just as the issue of a court’s jurisdiction can be raised at any time. This argument was rejected in City of West Palm Beach v. Palm Beach County Police Benevolent Association, 387 So.2d 533 (Fla. 4th DCA 1980):

With regard to subject matter jurisdiction, appellant urges that jurisdiction over the subject matter cannot be conferred on a tribunal by either failure to object or by consent. Appellant then suggests that this rule is equally applicable to arbitration proceedings. We concur in the first suggestion but reject its extension to arbitration proceedings. The jurisdiction of courts arises from constitutional, statutory or common law authority. The parties may not confer jurisdiction by waiver, failure to object, or consent, where none is given by law. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977). On the other hand, jurisdiction in arbitration proceedings is conferred by the agreement of the parties and is circumscribed by the terms of that agreement.

Id. at 534; see also Burt v. Duval County School Bd., 481 So.2d 55 (Fla. 1st DCA 1985) (concluding that the issue between the parties was arbitrable under the contract, but that the school board, having failed to comply with the 90-day provisions in § 682.13 and § 683.14, could not, in any event, challenge the arbitrator’s jurisdiction in the proceeding for confirmation). Because N.C.J. did not contest the award within the time limits, the court properly confirmed it.

Finally, N.C.J. argues that the confirmation order was erroneous because the court ruled therein that Avatar was entitled to repurchase the property. Like the arbitrator whose award was being confirmed, the trial court referred to the “exercise” of the right to repurchase, but we do not read the order to rule on Avatar’s entitlement. The order simply confirms the price and valuation date set by the arbitrator. We note that the court specifically rejected Avatar’s suggestion that it make a ruling that Avatar would be entitled to repurchase the property if it tendered the amount established by the arbitrator.

AFFIRMED.

SAWAYA, C.J., and TORPY, J., concur.

      . We do not think Ruffin v. Kingswood E. Condominium Association, Inc., 719 So.2d 951 (Fla. 4th DCA 1998) is on point because the authority of the arbitrator in that setting was circumscribed by the statute requiring arbitration.


author: MONACO, J.

text:
    L.R.W. A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1795.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.

      James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

L.R.W. (“LRW”), a minor, appeals an order finding that she committed an aggravated assault with a deadly weapon, and an order adjudicating her delinquent and placing her on probation. Although she raises a number of issues, the primary basis for the appeal is the trial court’s denial of LRW’s motion for judgment of acquittal in which she argued that the State failed to prove a necessary element of aggravated assault with a deadly weapon under § 784.021(l)(a), Fla. Stat. (2002); namely, that the victim had a well-founded fear of imminent bodily injury. We conclude, however, that the court correctly determined that the evidence adduced created a clear inference that the victim had such a fear, and, therefore, affirm.

On the date in question Ms. George, a case manager where LRW was housed, and the only witness at the trial, heard a “ruckus” coming from the dining room. When Ms. George entered the room, a physical altercation between LRW and Ca-lida Brown was in its final stages. Ms. George testified that as she entered the room, she saw LRW chasing Brown. She then saw LRW pick up a chair and hold it over her head in a threatening manner, while the other residents that were in the room at the time of the altercation moved out of the way. At that point Ms. George said that she saw another female restrain LRW by the arms. The resident that was holding LRW’s arms kept saying to LRW, “you don’t want to do that.”

Ms. George testified that when she approached LRW and asked her to put the chair down, LRW immediately complied. She said that it appeared to her that the resident was holding LRW to keep her from hitting Brown with the chair. Ms. George also testified that if LRW had thrown the chair, she would have been able to hit Brown, as only 6-7 feet separated LRW from Brown.

The specific testimony of Ms. George that gave rise to the motion for judgment of acquittal concerned her observations of Brown when LRW held the chair above her own head. During the altercation, according to Ms. George, Brown was laughing and was leaning forward with her hands on a table. All other persons in the room, however, were standing completely still at that point.

After Ms. George testified, the State rested and LRW moved for a judgment of acquittal. LRW contended that the evidence was insufficient with respect to one of the elements required by § 784.021(l)(a): that LRWs actions created a well-founded fear in the victim’s mind that violence was about to take place. LRW argued that Brown’s laughter and posture demonstrated that LRW had not created a well-founded fear of imminent violence in Brown, particularly in view of the fact that Brown did not testify. The trial judge denied the motion, and LRW was eventually found guilty of the offense.

When a defendant moves for a judgment of acquittal, the defendant “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974); see also, Darling v. State, 808 So.2d 145 (Fla.2002). It is the trial court’s obligation to determine whether the evidence reflects the presence or absence of competent evidence on each element of the offense from which a fact-finder could infer guilt to the exclusion of all other inferences. See Darling. The state is not required to rebut conclusively every imaginable variation of events that could possibly be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant’s theory of events. Once that threshold is satisfied, it is the duty of the finder of fact to determine whether there is sufficient evidence to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Moreover, the trial court must consider the evidence under such circumstances in the light most favorable to the state. See Rogers v. State, 788 So.2d 980 (Fla.2001).

The Supreme Court in Lynch noted that a motion for judgment of acquittal should not be granted unless the evidence is such that no view which the fact-finder may lawfully take of the evidence that is favorable to the state can be sustained under the law. If there is room for a difference of opinion between reasonable men with respect to the proof of facts from which an ultimate fact is sought to be established, or if there is room for such differences with respect to an inference which might be drawn from conceded facts, the court should submit the case to the finder of fact. The conclusion of the jury or fact-finder regarding a fact or inference in such cases should prevail. For this reason the credibility and probative force of conflicting testimony should not be determined by a motion for judgment of acquittal.

There is, moreover, no requirement that the victim of an assault actually testify to his or her own state of mind. See McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980). If the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the victim may properly be found to have been in fear. See Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977).

Here, although Brown did not testify as to her state of mind, Ms. George gave testimony that LRW was holding the chair directly over her head and was menacing Brown. Although Brown might have been laughing, the trial court found that an inference could be drawn that Brown’s laughter was out of fear, or out of a desire by Brown to frustrate LRW’s “design and intent” to injure her. Additionally, there was evidence that the other residents were in fear for their safety because they retreated when LRW picked up the chair. Because these are permissible inferences, the trial court could conclude that LRW’s actions would put a reasonable person in fear. The fact that Brown did not testify regarding her actual fear, therefore, is not conclusive. See McClain; Gilbert. As the evidence was sufficient to prove the element of fear on the part of Brown, the trial court properly denied the motion for judgment of acquittal.

We have reviewed the other errors argued by LRW, but have concluded that they are without merit.

AFFIRMED.

SAWAYA, C.J. and ORFINGER, J., concur.


text:
    Larry LENNEAR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1961.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.
    Larry Lennear, De Funiak Springs, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The matter of petitioner’s resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), and his consequent departure sentence has, in fact, been reviewed by this court in both of petitioner’s previous appeals to this court. We therefore deny the petition for belated appeal.

DENIED.

PLEUS, PALMER and MONACO, JJ„ concur.


text:
    Adam James BOLLENBACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3103.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.
    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Partick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

In this appeal of his judgment and sentence, the appellant, Adam Bollenback, asserts that the trial court imposed an illegal sentence by committing him as an adult to a lengthy prison term in the custody of the Department of Corrections, even though a pre-disposition report prepared by the Department of Juvenile Justice contained a recommendation that he receive only juvenile sanctions. Because Bollenback was charged, tried and convicted as an adult, however, we find no error and affirm.

Bollenback, who was 17 years old when the offenses were committed, was charged by information as an adult with one count of burglary of a dwelling, one count of escape from a law enforcement officer, and one count of petit theft. He was tried as an adult by jury trial and found guilty as charged. At Bollenback’s request the trial court asked for and received a Juvenile Predisposition Report from the Department of Juvenile Justice. The report recommended that Bollenback be placed in a high risk juvenile commitment facility. The trial court also requested a presen-tence investigation from the Department of Corrections, which reflected a lowest permissible prison sentence of 45 months, and a maximum of 30 years.

At the sentencing hearing the trial court considered the testimony of Bollenback and his mother, and considered, as well, psychological, substance abuse and mental acuity information about Bollenback. His attorney argued for treatment as a juvenile, but the court decided to sentence the appellant as an adult to a prison term.

Bollenback postulates that his prison sentence was illegal because the trial court “did not place on the record or in writing any facts on which the Court was relying in deciding to sentence the Defendant to greater sanctions than the sanctions recommended by the Department of Juvenile Justice.” He points out that § 985.23(3)(a) and (c), Fla.Stat. (2000), requires the court to make specific findings when adjudicating a child as delinquent and committing the child to the Department of Juvenile Justice, and when committing the child at a restrictiveness level different from that recommended by the Department. From this premise Bollenback asserts that in the absence of written findings, he was entitled to be sentenced as a juvenile, regardless of the fact that he was charged and tried as an adult.

The imposition of adult sanctions on a juvenile prosecuted as an adult, however, is governed by § 985.233 Fla.Stat. (2000). Subsection (1) of that statute gives the trial court the option to impose adult or juvenile sanctions, and sets out the criteria to be considered by the court in making this decision. Subsection (4) discusses the sentencing requirements and alternatives available when a child has been charged either by indictment or information, and is tried as an adult. Subparagraph (4)(a)4 of that statute provides, as follows:

4. Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.

While Bollenback may have preferred that the trial judge articulate his reasoning in sentencing him as an adult, the simple fact is that the judge was under no obligation to do so. Section 985.23 does not apply when the subject is sentenced as an adult. Cf. Nelson v. State, 757 So.2d 622 (Fla. 3d DCA 2000); Lutz v. State, 664 So.2d 1060 (Fla. 4th DCA 1995).

AFFIRMED.

SAWAYA, C.J., and ORFINGER, J, concur.

      . Bollenback did not challenge the propriety of the election by the State to prosecute him as an adult.

      . While Bollenback also argues an evidentiary issue as error, we find no merit to his position.


author: SAWAYA, C.J.

text:
    Edward J. ZANONE, Appellant, v. Martha L. CLAUSE a/k/a Martha L. Carpenter, Appellee.
    No. 5D02-2931.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2003.

      Edward J. Zanone, Cape Canaveral, pro se.
    No Appearance for Appellee.
   SAWAYA, C.J.

Edward Zanone, pro se, appeals the order awarding Brevard County Legal Aid, Inc. $1,500 in attorney’s fees for work it performed on behalf of Appellee, the mother of Zanone’s child. Zanone argues, and we agree, that the court erred in ordering him to pay fees. Accordingly, we reverse.

The case began as a paternity action filed by Zanone in 1997, almost six years after the birth of the child at issue. The record reflects a number of motions by both parties. A subsequent blood test proved that Zanone is the father of the child. Thereafter, the parties entered into a stipulation as to paternity, support, and visitation. Specifically, they agreed to $187.06 per month as child support plus an additional $87.94 per month towards the $3,403.40 arrearage. The terms of the stipulation were adopted by the trial court and included in the final judgment, which also contained a reservation of jurisdiction to award attorney’s fees for Appellee, payable to Brevard County Legal Aid, Inc.

At the hearing on attorney’s fees, Za-none testified that he earns $750 per month as a chaplain doing “mind, body, and spirit training.” After paying $230 per month in child support, $115 per month for insurance, and $215 per month in rent, the remainder of Zanone’s income is utilized to support his wife and another son. Za-none’s income has been so low for the past several years that he has not had to pay income tax. Not only is Zanone’s income limited, the assets he owns are limited. For example, he does not own a car. Za-none expressed his frustration at the fee hearing over the length of time the case had dragged on and the fact that he had had to fight to even gain visitation with his son. He noted that Appellee had moved some eight times and had changed her name four times, making it almost impossible for him to locate his son. He filed his petition in 1997, but did not see his son until 1999. Zanone accused the legal aid attorney of tying up the case for years with unfounded pleadings.

After hearing the testimony, including testimony from Appellee’s legal aid attorney that he believed the case had been over-litigated and that he had spent 85.24 hours on it because of the complications, the trial judge expressed his disbelief of Zanone’s financial affidavit but found that Zanone was in no better financial position than Appellee. The trial judge attributed some fault to Zanone for causing the case to be over-litigated by filing frivolous pleadings, acknowledging, though, that the case was more complicated than the “normal” paternity case. The court found that Zanone had the ability to pay for ten hours of work at $150 per hour and entered judgment accordingly.

The trial court did not cite any specific statutory support for its award of fees; nevertheless, we conclude that the award was made pursuant to either section 57.105 or section 742.045. We will first address section 57.105(1), Florida Statutes, which allows a court to award a prevailing party its attorney’s fees under certain conditions. We need not determine under which version of section 57.105 fees were awarded because, under either the pre1999 amendment or the current version, Zanone was not a “losing party” as is required under section 57.105. To the contrary, he was the prevailing party as he was proven to be the father of the child at issue and obtained a stipulation from Appellee as to paternity, visitation, and support. Just as stated in Guerin v. DiRoma, 819 So.2d 968, 971 (Fla. 4th DCA 2002), “[wjhile the father’s conduct may have been unreasonable in some respects, and apparently vexatious, it did not qualify for fees under section 57.105.”

If the fee award was not made pursuant to section 57.105, it alternatively may have been made pursuant to section 742.045, which is the statute that authorizes fees in paternity actions. Section 742.045 provides in pertinent part, “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.” (Emphasis added). In order to award fees under section 742.045, the trial court must find that the party has the ability to pay those fees. See Starkey v. Linn, 727 So.2d 386, 388 n. 3 (Fla. 5th DCA 1999) (“Obviously section 742.045 is not a prevailing party statute, but rather is based on need and ability to pay.”).

In addition to the factors of need and ability to pay, in Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the supreme court authorized the consideration of secondary factors that are related to the length and scope of the litigation and the parties’ behavior during litigation when awarding fees in dissolution cases. Rosen is equally applicable to paternity actions. Guerin, 819 So.2d at 971 (“As a paternity case, the right to fees resides in section 742.045, not section 61.16. Nevertheless, because section 742.045 is nearly identical to the text and function of section 61.16, Rosen applies to the consideration of fees under section 742.045.”). Zanone’s “over-litigation” of his paternity suit would qualify as a factor to be considered in awarding fees under section 742.045. This factor does not, however, abrogate the requirement that Zanone have the ability to pay. See St. Pierre v. Greenberg, 697 So.2d 218, 219 (Fla. 4th DCA 1997) (“In assessing attorney’s fees against a party, a trial court may consider that party’s willful refusal to comply with an existing order if that conduct made further litigation necessary for enforcement. In doing so, however, the trial court must still consider the need of the movant and the ability of the recalcitrant party to pay the movant’s fees.”) (citations omitted). Thus, we must first determine whether the primary factors of need and ability to pay were demonstrated before any consideration may be given to Zanone’s “over-litigation” of his case.

Despite the fact that the trial court’s order recites the conclusory finding that Zanone had the ability to pay the fee award, the record before us does not support that conclusion. The trial court specifically found that Zanone was not in any better position financially than Appellee and expressed doubt whether Zanone could live on the amount of money reflected in his financial affidavit and testified to by Zanone. Then, however, without making any findings as to any amount it was imputing to Zanone and without finding that Zanone was underemployed, the court imposed the fee order, presumably imputing some additional income to Zanone that was not evidenced at the hearing. In Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002), this court described what was necessary to properly impute income:

A trial court may only impute income to a party who is voluntarily unemployed or under-employed. See Walker v. Walker, 719 So.2d 977, 980 (Fla. 5th DCA 1998); § 61.30(2)(b), Fla. Stat. (2001). The imputation must be supported by specific findings of fact indicating the amount and source of the imputed income. See Woodard v. Woodard, 634 So.2d 782, 783 (Fla. 5th DCA 1994).

Id. at 871. No such findings were made in this case.

Because there was no basis for concluding that Zanone had the ability to pay, and indeed the court’s own comments refute any such conclusion, the fee award in the instant case cannot be upheld under section 742.045.

We conclude that the fee award is not sustainable under either statute and must therefore be reversed.

REVERSED.

THOMPSON and MONACO, JJ., concur.

      . We note, parenthetically, that Appellee did not file a brief in these proceedings.

      . We have thoroughly reviewed the record, including the trial court’s order, and there is no express finding by the trial court of bad faith on Zanone’s part such that the award of fees would be sustainable as an exercise of the trial court's inherent authority to punish bad faith conduct pursuant to Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), and Bitterman v. Bitterman, 714 So.2d 356 (Fla.1998).


author: STRINGER, Judge.

text:
    Linda M. JOHNSON, Appellant, v. Bruce H. JOHNSON, Appellee.
    No. 2D02-3355.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Stephen R. Williams of Kaltenbach, Williams & Ristoff, P.L.C., New Port Rich-ey, for Appellant.
    No appearance for Appellee Bruce H. Johnson.
   STRINGER, Judge.

Linda M. Johnson, the Former Wife, seeks review of the trial court’s order enforcing a provision of the mediation agreement regarding Bruce H. Johnson’s obligation as the Former Husband to pay for the minor children’s medical. expenses. The order required the Former Husband to reimburse the Former Wife for one-half of the children’s medical bills paid by the Former Wife but declined to find the Former Husband responsible for medical expenses that had been incurred but not yet paid by the Former Wife. Because the trial court’s order imposes an obligation on the Former Wife that was not expressly contemplated by the final judgment or mediation agreement, we reverse.

The parties’ marriage was dissolved on December 15, 1992, and the final judgment incorporated into it a marital settlement agreement. Paragraph 10.2 of the settlement agreement requires the Former Husband to provide health insurance for the children and requires each party to pay fifty percent of all uncovered medical expenses over $100 per calendar year. The parties subsequently entered into a mediation agreement, which provides, “The father will continue to maintain the health insurance for the children. If the father fails to maintain insurance, he will pay for all of the children’s medical bills.” In May 2002 the Former Wife filed a motion for civil contempt alleging that the Former Husband had discontinued his health insurance and subsequently failed to pay medical bills for the parties’ minor children.

The trial court ordered the Former Husband to reimburse the Former Wife for one-half of the children’s medical bills paid by the Former Wife but declined to find the Former Husband responsible for medical expenses that had been incurred but not yet paid. The court found that the Former Husband was not required to pay for the children’s medical bills until the Former Wife first paid those expenses. The court’s stated rationale for so ordering was that the Former Wife could bargain with the medical providers and obtain reduced bills.

On appeal, the Former Wife argues that the trial court erred in determining that the Former Husband is not hable for the children’s medical expenses that have been incurred but not yet paid by the Former Wife. The Former Wife correctly asserts that the order erroneously imposes an obligation on the Former Wife that was not expressly contemplated by the final judgment or mediation agreement.

The trial court’s interpretation of marital settlement agreements is subject to de novo review. Kipp v. Kipp, 844 So.2d 691, 691 (Fla. 4th DCA 2003); McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001). Settlement agreements are to be interpreted in accordance with laws governing contracts. Id. Thus, absent evidence of the parties’ intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning. Id. The court should also consider the object sought by the provision of the agreement. Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002), review denied, 842 So.2d 843 (Fla.2003).

We conclude that the trial court’s construction of the provision at issue was contrary to the plain meaning of the mediation agreement and must be reversed. Neither the final judgment nor the mediation agreement contains a provision placing a duty on the Former Wife to pay the medical bills and then seek reimbursement from the Former Husband. Furthermore, it is clear that the object of the provision in the mediation agreement was to make the Former Husband solely responsible for the children’s healthcare in the event he failed to maintain health insurance. While we understand the court’s consideration of the Former Wife’s ability to bargain with the medical providers and attempt to obtain reduced bills, there is no reason that the Former Husband could not conduct those negotiations himself.

Reversed and remanded.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, concur.

      . We note that the trial court’s order awarded the Former Wife only one-half of the medical bills she had paid even though the mediation agreement required the Former Husband to pay for all of the children’s medical bills in the event he failed to maintain his insurance. However, the Former Wife does not raise this issue on appeal, so we do not decide its merit.


author: FULMER, Judge.

text:
    William F. CAREY d/b/a Carey’s Central Service, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY a/s/o Dennis & Rosalie Den Besten, and Dennis & Rosalie Den Besten, individually; The Enrich Corporation, and Clack Corporation, Appellees.
    No. 2D02-3905.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    J. Michael Hussey and Paul E. Liles of Hussey & Liles, P.A., Fort Myers, for Appellant.
    No appearance for Appellee State Farm Fire & Casualty Company.
    Gregory J. Blackburn of Dutton, Capito & Blackburn, Tampa, for Appellee, The Enrich Corporation.
    James G. Salerno of Peterson, Bernard, Yandenberg, Zei, Geisler & Martin, Fort Lauderdale, for Appellee, Clack Corporation.
   FULMER, Judge.

Third-party defendant, William F. Carey d/b/a Carey’s Central Service, appeals from a final order of dismissal that directs him to bear his own attorney’s fees and costs. We affirm the dismissal but reverse the fee and cost provision because Carey did not join in the stipulation upon which the final order was based.

In 1997, Dennis and Rosalie Den Besten purchased a water filter system that was manufactured by Clack Corporation, distributed by The Enrich Corporation, and installed by Carey. About a year later, the water filter system developed a leak, which resulted in water damage to the Den Bestens’ home. The Den Bestens filed a claim for the damage with their insurance company, State Farm Fire and Casualty Company. On January 4, 2000, State Farm and the Den Bestens filed a complaint for damages against Enrich.

Enrich filed an answer disputing liability and initiated a third-party complaint against Clack and Carey, seeking contribution and indemnification from Clack for a defective product and from Carey for negligent installation. On May 10, 2000, Carey sent an offer of judgment to Enrich pursuant to section 768.79, Florida Statutes (1999).

On June 13, 2002, State Farm, the Den Bestens, Enrich, and Clack executed a written stipulation to dismiss the claims with prejudice, with “each party ... to bear their own costs and attorney’s fees.” Carey was not a party to the stipulation. Without notice or hearing, the trial court rendered a Final Order of Dismissal on June 25, 2002, which stated that it was being entered “in consideration of the foregoing Stipulation.” The order dismissed with prejudice the case in its entirety, including the third-party action against Carey, and directed the parties to bear their own attorney’s fees and costs. Upon receipt of the order of dismissal, Carey filed a copy of his original offer of judgment together with a motion for costs, attorney’s fees, and sanctions. Because he was unable to obtain a hearing on his motion within thirty days after entry of the final order of dismissal, Carey timely filed this appeal to challenge the order.

Carey argues that it was fundamental error for the trial court to order him to bear his own attorney’s fees and costs because he was not a party to the stipulation wherein the other parties agreed to bear their own attorney’s fees and costs. Carey further argues that the trial court erred in dismissing the case without notice to him because he was deprived of the opportunity to present his claim for attorney’s fees and costs pursuant to his offer of judgment. Enrich responds that Carey should have sought relief in the trial court by filing a motion pursuant to either Florida Rule of Civil Procedure 1.530 or 1.540. We reject this contention without discussion. Enrich also argues that even if Carey is successful on appeal, he will not prevail in his claim on remand because the offer of judgment did not comply with the time restrictions set forth in Florida Rule of Civil Procedure 1.442(b) and is, therefore, a nullity. Enrieh’s challenge to the validity of Carey’s offer of judgment is not an appropriate issue to be decided in this appeal because it must first be argued to and ruled on by the trial judge. See Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22, 26 (Fla. 3d DCA 2002) (“An appellate court may not decide issues that were not ruled on by a trial court in the first instance.”). Clack makes no response to Carey’s arguments on appeal and simply seeks affirmance of the order of dismissal and the order regarding attorney’s fees and costs insofar as it applies to Clack, State Farm, the Den Bestens, and Enrich.

We agree that Carey should not have been ordered to pay his own attorney’s fees and costs where he was not a party to the stipulation and was not given notice of the stipulation prior to the entry of the order of dismissal. The procedure deprived Carey of the opportunity to timely assert his entitlement to attorney’s fees pursuant to his offer of judgment. See Sec. Prof'ls, Inc. ex rel. Paikin v. Segall, 685 So.2d 1381, 1388 (Fla. 4th DCA 1997) (“As a general rule, parties that are not included in a stipulation for settlement cannot be bound by its provisions.”); see also Jenister v. Unger, 507 So.2d 707, 708 (Fla. 2d DCA 1987) (stating that due process requires, at a minimum, notice and opportunity to be heard).

The dismissal with prejudice is not being challenged on appeal, and therefore, we affirm the dismissal with prejudice as to all parties. We reverse only that portion of the trial court’s order directing Carey to bear his own attorney’s fees and costs. We remand for further proceedings to determine Carey’s entitlement to attorney’s fees and costs pursuant to the offer of judgment.

Affirmed in part, reversed in part, and remanded.

WHATLEY and COVINGTON, JJ„ concur.


author: WHATLEY, Judge.

text:
    Michael Antonio DeJESUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4155.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Michael Antonio DeJesus challenges the revocation of his drug offender probation. We reverse because Dejesus’s probation was revoked in violation of his rights to due process.

DeJesus was originally placed on probation after pleading no contest to fraudulent use of a credit card and grand theft. His probation was revoked for a second time after he pleaded no contest to violating probation and to sale of cocaine. The trial court sentenced DeJesus to concurrent terms of forty-eight months in prison but suspended that sentence and required De-Jesus to complete two years of drug offender probation.

Subsequently, a revocation of probation hearing was held, although no affidavit of violation of probation was ever filed. According to the transcript of the hearing, DeJesus was represented by an assistant public defender and the State was represented by an assistant state attorney. However, only the trial court judge and DeJesus spoke at the hearing. The judge stated that three screens of Dejesus’s urine showed the presence of pink crystals, although the lab could not say what they were, just that they were a foreign substance. He also stated that another drug screen was questionable and that the temperature of one of the urine samples was too low to allow a screening.

The judge asked DeJesus if there was anything he wanted to say. DeJesus responded that if he were to say that he had gotten high, he would be lying. He asked that the court take a blood or hair sample and said that his family was willing to give everything it had to facilitate such testing. The judge stated that the drug screens spoke for themselves and imposed the suspended sentences of forty-eight months.

In this appeal, DeJesus argues that the trial court violated his constitutional right to due process through the procedure it employed to revoke his probation. Specifically, he notes the absence of an affidavit of violation of probation and the absence of substantive evidence that the foreign substance found in his urine was an illegal substance. The State responds that DeJe-sus, while represented by counsel, signed a contract (the order of drug offender probation) waiving his right to a revocation hearing. DeJesus admits that he signed the order of probation but asserts that it does not state that he agreed to waive his right to a hearing.

As DeJesus asserts, the order of drug offender probation says nothing about the probationer waiving his right to an adversarial hearing. Athough one may waive any right one has under a constitution, statute, or contract, that waiver must be knowing, intelligent, and voluntary. A.D.W. v. State, 111 So.2d 1101 (Fla. 2d DCA 2001). We have grave doubts that a probationer can make a knowing and intelligent waiver of his right to an adversarial hearing to determine whether he violated probation before the alleged violation has even occurred, i.e., before he even knows the factual basis of the alleged violation. However, because Dejesus’s order of probation does not contain such a waiver, we need not address that issue.

We reverse the order revoking Dejesus’s probation for two reasons. First, the record does not contain an affidavit of violation of probation. “Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.” Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999). Second, the only evidence that DeJesus violated his probation was the hearsay statement of the trial court judge that the lab reported the presence of a foreign substance in Dejesus’s urine. In addition to the fact that hearsay alone may not support the revocation of probation, Andrews v. State, 693 So.2d 1138 (Fla. 1st DCA 1997), a foreign substance is not necessarily an illegal substance. Thus, there was no substantive evidence of a violation of probation.

Accordingly, we reverse the order of revocation of Dejesus’s probation and remand with directions consistent with this opinion.

CASANUEVA and CANADY, JJ., concur.

      . As a result of the absence of an affidavit of violation of probation, the order of revocation does not state what condition of probation DeJesus was found to have violated. This is an additional reversible error. See Blair v. State, 636 So.2d 784, 785 (Fla. 1st DCA 1994).