author: SHAHOOD, J.

text:
    K.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1468.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by K.J., a juvenile, from an Amended Delinquency Disposition Order, which order imposed a commitment to a level six program over appellant’s objection to the court’s failure to consider a predisposition report (PDR). We affirm.

A Petition for Delinquency was filed against appellant charging him with unlawfully delivering cocaine. He entered a plea of no contest and was placed on probation. The court stayed commitment to a level six program in lieu of thirty-five hours community service, which had been recommended by the Department of Juvenile Justice (DJJ).

Thereafter, an Affidavit for Violation of Probation was filed based upon an allegation that K.J. had absconded from the supervision of the DJJ. At a hearing he was found guilty of the violation, based in part on his own admission, and was committed to a level six program. He objected to being sentenced to a commitment without the court’s considering a PDR. Appellant argues that it was error to sentence him without first reviewing a PDR.

The appellee does not dispute that the law in effect prior to the 2000 amendment to section 985.229, Florida Statutes, required that a PDR be prepared and reviewed by the judge prior to committing a juvenile. In 2000, however, the legislature amended section 985.229(1) and (3), Florida Statutes (2001). Pursuant to the wording of the amended statute the trial court does not have to order or review a PDR in all situations. Subsection (1) of the statute provides, in part, as follows:

A predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department.

§ 985.229(1), Fla. Stat. (2001).

In this case, the residential commitment to the level six program had already been determined and agreed to by appellant at the time of the original plea for unlawfully delivering cocaine, the original charge. The commitment had been stayed while appellant was on probation. At the hearing on appellant’s violation of his probation, the trial court merely lifted the stay and enforced the prior disposition order.

Under the facts and circumstances of this case, no recommendations were made by the DJJ, nor were any required. In addition, the trial court was not required to obtain and review a PDR prior to sentencing appellant.

AFFIRMED.

HAZOURI and MAY, JJ., concur.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Eugene BURNS, Appellant, v. RADISSON SEVEN SEAS CRUISES, INC., Services et Transports Tahiti, Copropriete du Navire Paul Gauguin, The Cruise Station, and Dimensions in Travel, Inc., Appellees.
    No. 4D03-1333.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.

      Kelley B. Gelb and Walter G. Campbell, Jr. of Krupnick, Campbell, Malone, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauderdale, for appellant.
    Louis H. McMurray and Douglas M. McIntosh of McIntosh, Sawran, Peltz Car-taya & Petruccelli, P.A., Miami, for Appel-lees-Radisson Seven Seas Cruises, Inc.; Services et Transports Tahiti; and Copro-priete De Naviere Paul Gauguin.
   STONE, J.

Eugene Burns appeals an order dismissing a complaint for improper venue. The order enforces a forum selection clause contained in a cruise ticket requiring Burns to bring suit in France. We affirm.

Burns, a resident of San Francisco, California, contracted to act as radio host for seven days on Tahitian cruise ship, the Paul Gauguin, and was subsequently injured in a slip and fall while on board. Radisson Seven Seas Cruises, headquartered in Broward county, had issued Burns a cruise ticket containing a forum selection clause providing that United States citizens must bring suit, for any incidents arising on board a cruise ship that does not touch a United States port, in Paris, France.

In admiralty cases, federal law governs the enforceability of forum selection clauses contained in passenger cruise contracts. Carnival Cruise Lines, Inc. v. Chute, 499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The United States Supreme Court has held that forum selection clauses are generally presumed valid, unless enforcement of the agreement would be unreasonable under the particular circumstances, so as to encourage international trade and foster international relationships. M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). This presumption places a heavy burden on a plaintiff contesting a forum selection clause to present compelling evidence that the clause was based on fraud, undue influence, unequal bargaining power, overreaching, or fundamental unfairness. Carnival, 499 U.S. at 590, 111 S.Ct. 1522 (citing M/S Bremen, 407 U.S. at 12, 92 S.Ct. 1907).

Burns does not assert that the forum selection clause is fraudulent or that he is financially unable to bring suit in France; rather, he contends that the clause is inconvenient and unreasonable.

In Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 8 (2nd Cir.1995), a passenger and resident of Palm Beach, Florida, took a 16-day cruise aboard a Greek cruise ship departing from Brazil and returning to Argentina. Id. The passenger brought suit in New York, where she maintained a second residence, for injuries sustained during a slip and fall while on board the ship, despite the fact that a forum selection clause provided the passenger must submit to the jurisdiction of Athens, Greece. Id. Noting that the passenger had reasonable notice of the clause, and that there was no evidence of fraud, the Effron court found Greece was a reasonably neutral location for passengers from a range of countries. Id. at 10. Finally, while the passenger may experience inconvenience and expensive travel, the court found that the forum selection clause was not so unfair as to deprive the passenger of “her day in court.” Id. at 11. But See Carnival, 499 U.S. at 592, 111 S.Ct. 1522 (where the Court indicated that forum selection clauses may be unreasonable when parties are forced to adjudicate in a remote forum).

Like in Effron, the Paul Gauguin both departed and returned from a foreign locale, never making contact with any ports or waters of the United States. Accordingly, it is reasonable that Radisson selected Paris, France as a neutral location in order to dispel confusion as to where passengers from a variety of countries could bring a lawsuit.

By arguing that Paris, France is merely an unreasonable and inconvenient locale, Burns has not met his burden of proof as set forth in Carnival and M/S/ Bremen. Therefore, we affirm the dismissal of Burns’s complaint for improper venue and find the forum selection clause valid.

WARNER and KLEIN, JJ., concur.


author: GROSS, J.

text:
    E.C., a minor child, Petitioner, v. GUARDIAN AD LITEM PROGRAM, DEPARTMENT OF CHILDREN AND FAMILIES, A.C., mother, and R.P., father, Respondents.
    No. 4D03-4266.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.

      William W. Booth of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for petitioner.
    Timothy M. Beasley and Dawn Wilson, West Palm Beach, for respondent Guardian Ad Litem Program.
    Jeffrey Dana Gillen, West Palm Beach, for respondent Department of Children and Families.
   GROSS, J.

This petition for certiorari challenges the standard appointment order of the Guardian Ad Litem Program in the Fifteenth Judicial Circuit which allows the program unrestricted access to the child’s mental health records even without the child’s knowledge or consent.

We grant the petition and quash the orders tacitly approving the form order.

E.C. is a seventeen-year-old child in the custody of the Department of Children and Families as a result of a dependency action. The circuit court entered a standard order appointing a guardian ad litem. Paragraph one of the order provides:

Upon presentation of this Order to any agency, hospital, organization, school, person or office including the Clerk of this Court, Department of Health and Rehabilitative Services, human services and/or child-caring agencies, public and private health facilities, medical and mental health professionals, including doctors, nurses, pediatricians, psychologists, psychiatrists, counselors and staff, and law enforcement agencies, the individual designated in this cause and the Circuit Coordinator or program staff are hereby authorized to inspect and copy any records relating to the above-named Child without consent of said Child or parents of said Child.

(Emphasis added).

As the order applies to psychologists and psychiatrists, it runs afoul of S.C. v. Guardian Ad Litem, 845 So.2d 953, 960 (Fla. 4th DCA 2003). That case held that in a dependency proceeding, a juvenile “has a right to assert” the psychotherapist/patient privilege pursuant to section 90.503, Florida Statutes (2002), to prevent a court-appointed guardian ad litem from having access to records covered by the privilege. S.C. identified the problem with the form order there at issue; it “allow[ed] the guardian unrestricted access to the minor’s most private communications with her therapist.” 845 So.2d at 960.

We wrote in S.C. that the guardian ad litem:

should be restricted to using the least intrusive means of obtaining information about the child’s treatment.... Patently, the least intrusive means for such purpose dictates that to the extent the court may have authority to invade the minor’s privilege, its exercise must, at a minimum, include notice to the minor and an opportunity to be heard. Submitting the issue to the trial court for resolution in camera and giving the minor the opportunity to be heard is the least restrictive or intrusive means of furthering a compelling state interest in acquiring the privileged information.

Id. at 959 (emphasis added).

The order in this case allows the same unrestricted access to the guardian that this court found problematic in S.C. The order does not provide that the guardian’s right to obtain the privileged information must be preceded by a noticed in camera hearing, where the minor may assert the privilege.

Petition for writ of certiorari is granted.

WARNER and SHAHOOD, JJ., concur.


author: PER CURIAM.

text:
    Tom HILL, Appellant, v. FEDERAL INSURANCE COMPANY, Appellee.
    No. 4D03-2844.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Rehearing Denied April 12, 2004.
    Thomas W. Hill, Jr., West Palm Beach, pro se.
    Robin Taylor Symons of Ford & Harrison LLP, Miami, for appellee.
   PER CURIAM.

Appellant filed this appeal from a cost judgment rendered after appellee prevailed in a declaratory judgment action. The suit sought to determine whether appellant’s litigation expenses, incurred in a controversy with a developer, were a covered loss under a policy issued by appellee to the property owners’ association, of which appellant was a member and director. The trial court determined that appellant was not covered by the policy, as he was acting in his individual capacity in bringing the lawsuits for which he sought recovery of expenses. He appealed that judgment, and this court affirmed.

In this appeal of the cost judgment, the only issue raised in appellant’s abbreviated brief deals with the merits of the underlying judgment. Having raised no errors as to the cost judgment itself, we affirm.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: WOLF, C.J. •

text:
    Robert Bruns KENNEDY, Petitioner, v. Dr. Albert BYAS, d/b/a Agape Animal Hospital, Respondent.
    No. 1D03-3234.
    District Court of Appeal of Florida, First District.
    March 4, 2004.

      Clayton R. 'Syfrett, of Syfrett & Kykes Law Offices, P.A., Panama City, for petitioner.
    B. Richard Young and Elizabeth A. Parsons, of Young, Bill, Fugett & Roumbos, P.A., Pensacola, for respondent.
   WOLF, C.J. •

Robert Kennedy, the plaintiff in the trial court, has filed a petition for Writ of Cer-tiorari asking us to quash an order granting the respondent’s motion to transfer petitioner’s action from circuit court to county court. Petitioner contends that the circuit judge’s order determining that he could not collect emotional distress damages based on veterinary malpractice in the treatment of his basset hound constituted a departure from the essential requirements of law. We disagree, deny the petition, and certify conflict with the Third District Court of Appeal’s decisions in Johnson v. Wander, 592 So.2d 1225 (Fla. 3d DCA 1992), and Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37 (Fla. 3d DCA 1978).

The petitioner filed a two count complaint against his veterinarian, Dr. Byas, seeking damages for veterinary malpractice in the treatment of his basset hound. In count I, petitioner alleged negligence and emotional distress; in count II, the petitioner alleged fraud. Dr. Byas filed a motion for partial summary judgment. The defense motion for partial summary judgment was granted with respect to Kennedy’s claim for emotional distress damages, finding that, even if all allegations were proven, the petitioner could not recover for emotional distress, mental pain and suffering, or mental anguish. The court denied the motion with respect to the fraud claim.

After discovery, Dr. Byas filed a motion to transfer venue from circuit court to county court, asserting that discovery had revealed that without the claim of damages for emotional distress the only damages remaining in litigation were $350 alleged as the value of the basset hound and $50 for the amount of the bill over which an allegation of fraud had been raised. The circuit court entered an order granting Dr. Byas’ motion to transfer because the jurisdictional limits of the circuit court had not been satisfied.

An order of the circuit court transferring all further jurisdiction from the circuit court to the county court is reviewable by petition for certiorari because absent this remedy, petitioner would be deprived of any right of review of the circuit court’s order. See Easley v. Garden Sanctuary, 120 So.2d 59 (Fla. 2d DCA 1960). We determine, however, that petitioner has failed to demonstrate a departure from the essential requirements of law.

Johnson v. Wander, 592 So.2d 1225 (Fla. 3d DCA 1992), is a veterinary malpractice case where, as here, the trial court entered partial summary judgment on the claims for damages for emotional distress and subsequently granted a motion to change the case from circuit court to county court due to the lower jurisdictional amount sought in the claims remaining. In that case, the Third District held that a jury question was presented on the issues of gross negligence and mental pain and suffering as claimed by the dog’s owner and the trial court improperly transferred the case to county court as being a claim for less than the circuit court jurisdictional amount. In Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37 (Fla. 3d DCA 1978), the Third District specifically held that a dog owner was entitled to collect for emotional damages in a veterinary malpractice case. We determine that the “impact rule” precludes such recovery. See Zell v. Meek, 665 So.2d 1048 (Fla.1995).

The “impact rule” requires some physical impact prior to the recovery of damages for emotional distress. Id. at 1050. Petitioner requests that we abandon the “impact rule” in this case and allow the recovery for emotional distress in cases involving veterinary malpractice. In Welker v. S. Baptist Hosp. of Fla., Inc., 864 So.2d 1178 (Fla. 1st DCA 2004), this court recognized that the impact rule is not an unyielding inflexible rule of law and in some cases damages for emotional distress may be recovered absent physical impact. We identified those types of cases where an exception to the impact rule was likely to be applied:

There exist common threads in all of the foregoing cases in which the court established exceptions to the impact rule. In all, the likelihood of emotional injury was clearly foreseeable; the emotional injury was likely to be significant; the issue of causation was relatively straightforward; and it was unlikely that creating an exception to the rule would result in a flood of fictitious or speculative claims.

Id.

One area that was identified as having the gravity of emotional injury and lack of countervailing policy concerns to justify exceptions to the impact rule involves familial relationships, such as injury to a child as a result of malpractice. See Welker. We decline to extend this exception to malpractice cases involving animals. As we stated in Bennett v. Bennett, 655 So.2d 109, 110 (Fla. 1st DCA 1995), ‘While a dog may be considered by many to be a member of the family, under Florida law animals are considered to be personal property.”

In making this point we have not overlooked the decision of the Florida Supreme Court in La Porte v. Associated Indeps., Inc., 163 So.2d 267, 269 (Fla.1964), where the supreme court stated, ‘Without discussing the affinity between ‘sentimental value and mental suffering’ we feel that the affection of a master for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover.” (Emphasis supplied). La Porte, however, may be distinguished from the instant case. In La Porte, the defendant’s behavior was malicious — the defendant threw a garbage can at the plaintiffs pet; in the instant case we are dealing with an allegation of simple negligent behavior by a veterinarian who was trying to provide treatment. See Nichols v. Sukaro Kennels, 555 N.W.2d 689, 691 (Iowa 1996) (distinguishing La Porte on the basis that their case involved negligence rather than malicious behavior).

We acknowledge there is a split of authority on whether damages for emotional distress may be collected for the negligent provision of veterinary services. See Jay M. Zitter, Annotation, Recovery of Damages for Emotional Distress Due to Treatment of Pets, 2001 WL 1042542, 91 A.L.R. 5th 545, §§ 3 and 4. We find ourselves in agreement, however, with the New York courts which recognize that while pet owners may consider pets as part of the family, allowing recovery for these types of cases would place an unnecessary burden on the ever burgeoning caseload of courts in resolving serious tort claims for individuals. Johnson v. Douglas, 187 Misc.2d 509, 723 N.Y.S.2d 627 (N.Y.Sup.Ct.), aff'd, 289 A.D.2d 202, 734 N.Y.S.2d 847 (2001). We decline to carve out an exception to the impact rule for cases involving veterinary malpractice.

Petition denied.

ALLEN and DAVIS, JJ., CONCUR.

      . In his objection to the motion to transfer the case to county court, the petitioner acknowledged that without the claim for mental anguish the remaining damages did not meet the threshold requirement for circuit court.


author: PLEUS, J.

text:
    Chris Carleton ELLIOTT, Appellant, v. Sue Day ELLIOTT, Appellee.
    No. 5D02-1997.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied March 24, 2004.

      Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellee.
   PLEUS, J.

The husband challenges numerous aspects of the final judgment of dissolution. We conclude that the trial court’s imputation of bonus income to the husband and its determination of enhancement value of the husband’s stock ownership during the marriage are supported by substantial competent evidence and were within its broad discretionary authority. See Jones v. Jones, 633 So.2d 1096 (Fla. 5th DCA 1994); Doyle v. Doyle, 789 So.2d 499 (Fla. 5th DCA 2001); Gerthe v. Gerthe, 857 So.2d 306 (Fla. 2d DCA 2003). There are, however, two aspects of the final judgment which require reconsideration.

First, in determining alimony and child support, the trial court erred in failing to attribute interest income to the wife. The final judgment of dissolution awards the wife $444,460.14 in marital assets. This amount includes the $336,950.28 proceeds from the sale of the marital home, two stock accounts ($24,855.42 and $32,175.15) and a tax refund of $11,879.00. The husband points out that he adduced evidence from an investment broker of potential rates of return on such monies of somewhere between 1.85% and 5%.

The wife concedes that testimony regarding potential rates of return was adduced but she asserts that: (1) she anticipated a portion of these liquid assets would be used to pay her attorney’s fees and costs and for a down payment on a home and (2) investment income was not imputed to the husband even though he received proceeds from the sale of the marital home totaling $64,555.77 as well as a commercial lot valued at $165,000 which he could either sell or lease. The wife, however, adduced no evidence of investment income available to the husband.

Pursuant to section 61.08(2)(g), Florida Statutes, investment income should be considered in determining support issues. McLean v. McLean, 652 So.2d 1178 (Fla. 2d DCA 1995) (‘When a party receives an asset in equitable distribution that will result in immediate investment income, we see no reason for that income to be excluded from consideration under section 61.08(2)(g)”). See also Rosecan v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003), rev. denied, 858 So.2d 332 (Fla. 2003), The husband presented evidence of potential rates of return and the court should have considered possible interest income available to the wife on the substantial liquid assets • awarded to her. In so doing, the trial court can take into account the portion needed for her attorney’s fees and house down payment.

Second, the trial court failed to make adequate findings in support of its decision to assess one-half of the wife’s attorney’s fees against the husband. While the amount of the wife’s fees was not determined, the wife asserts the husband will be liable for approximately $25,473.66 plus one-half of the attorney’s fees and costs incurred from March 20, 2002 to April 15, 2002. The court explained in the final judgment:

14. Attorney’s Fees. Ordinarily, where there has been a substantial and equal division of marital assets as here, each party will be- required to pay his or her own attorney’s fees. Wilkerson v. Wilkerson, 623 So.2d 1192 (Fla. 5th DCA 1993). However, this case has been excessively and unnecessarily litigated by the Husband. Discovery costs have been substantially increased by his lack of cooperation with discovery requests that are clearly proper under the rules. He has failed to comply with orders compelling disclosure. “Under this scheme (§ 61.16, Florida Statutes), the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained pri■marily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation:” Rosen v. Rosen, 696 So.2d 697 (Fla.1997). Virtually all of these factors apply to the Husband’s conduct during these proceedings. In order to compensate the Wife for the unnecessary increase in her cost attributable to the Husband, the court orders the Husband to reimburse her one-half of her attorney’s fees and costs.

The husband argues that Rosen does not apply, that both parties vigorously litigated this case but not to a degree warranting sanctions by way of assessment of attorney’s fees. The husband maintains that the trial court abused its discretion in ordering him to pay one-half of the wife’s attorney’s fees where she received substantial liquid assets in the equitable distribution. Alternatively, the husband asserts that if Rosen applies, the trial court was obligated but failed to make specific findings as to how his actions increased the wife’s attorney’s fees.

In addition to the factors of need and ability to pay, Rosen holds that section 61.16(1), Florida Statutes., authorizes 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 actions. Specifically, Rosen explained that these secondary factors include:

the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

696 So.2d at 700. In Rosen, the award of attorney’s fees was reversed for reconsideration in light of the reversal of other substantive aspects of the final judgment of dissolution. The supreme court’s discussion of the secondary factors which may warrant an assessment of attorney’s fees was offered in the context of a dispute which had been continuously litigated for nearly 18 years and produced six separate appeals.

Rosen has been interpreted as authorizing an award of attorney’s fees against a spouse for “over litigation,” Zanone v. Clause, 848 So.2d 1268 (Fla. 5th DCA 2003), persisting in litigation when there is “no reasonable prospect of success,” Diaz v. Diaz, 727 So.2d 954 (Fla. 3d DCA 1998), quashed on other grounds, 826 So.2d 229 (Fla.2002), or where the party has engaged in “vexatious and frivolous litigation,” Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999). See also, Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000) (attorney’s fees recoverable under Rosen for improper conduct which causes extensive litigation).

Conversely, in Wilkinson v. Wilkinson, 714 So.2d 524, 525 (Fla. 5th DCA 1998), this court reversed an attorney’s fee award to the wife, explaining:

[T]he trial court concluded that the wife was entitled to receive an award of attorney’s fees because the husband asserted “unreasonable positions” regarding the equitable distribution of the parties’ marital assets. However, the record does not indicate that the husband intended to “frustrate or stall” the dissolution proceedings. See Rosen, 696 So.2d at 700. In that regard, the husband did not request any continuances nor did he violate any rules of discovery. Moreover, the parties’ pretrial negotiations resulted in only a $10,000 difference with regard to equitable distribution. There is no evidence in the record which indicates that the husband’s claims were designed to harass the wife. See id. Thus, it does not appear that the husband acted unreasonably during these dissolution proceedings.

714 So.2d at 525.

Likewise, in Taylor v. Taylor, 746 So.2d 577 (Fla. 1st DCA 1999), the First District found the attorney’s fee award against the former wife to be unwarranted. The appellate court noted that the litigation had not been protracted and that the record did not support the trial court’s finding that the wife had used the court system to frustrate the husband’s visitation request.

A problem with meaningful appellate consideration of this point rests with the vagueness of the trial court’s factual findings. The court reached a legal conclusion that the case had been “excessively and unnecessarily litigated by the Husband,” but save for lack of cooperation with valid discovery requests and failure to comply with orders compelling discovery, the court provided no specifics. The court did not specify the nature and extent of the husband’s lack of cooperation or that one-half of the wife’s attorney’s fees were in fact occasioned by the husband’s misconduct. It seems difficult to conclude that the duration of the litigation was unreasonably extended. The time from the filing of the petition for dissolution (June 2000) to entry of the final judgment of dissolution (September, 2002) was just over two years. In a ease involving equitable distribution of the enhancement value of corporate-related assets, such a time period would hardly seem excessive. In Gagnon v. Gagnon, 539 So.2d 1179 (Fla. 1st DCA 1989), the trial court was reversed for its failure to include specific findings regarding hourly rate, number of hours reasonably expended and failing to indicate what portion of the wife’s attorney’s fees were occasioned by the husband’s misconduct. Remand for such findings is necessary in this case. The trial court should articulate the precise nature and extent of the conduct it believes warrants an assessment of attorney’s fees under Rosen and its impact on the attorney’s fees incurred by the wife. See Pietras v. Pietras, 842 So.2d 956 (Fla. 4th DCA 2003).

The wife encourages this court to examine the record for instances of over litigating on the part of the husband which could validate the assessment of fees. Even if this court could find some basis to support an assessment of fees, this request ignores the failure of the trial court to directly quantify the portion of The wife’s attorney’s fees-incurred as a result of the husband’s purported misconduct.

Accepting, arguendo, the wife’s contention that the husband will be liable for approximately $25,473.66, at $185 per hour (which is what the record reflects the wife’s counsel charges), the effect of the trial court’s assessment is that the husband’s misconduct caused the wife’s attorney to incur approximately 137 additional hours in representation of the wife. The dearth of precise factual findings creates some doubt as to whether the trial court realized the extent of its assessment of fees against the husband. The wife additionally argues that she is in an inferior financial position, both from an earnings capacity and assets unrelated to the marriage aspect which would warrant the award of attorney’s fees. We note, however, that the trial court did not rest its award on such a finding and implicitly recognized it would have been in error to award fees to the wife absent misconduct by the husband by citing Wilkerson v. Wilkerson, 623 So.2d 1192 (Fla. 5th DCA 1993) (where as a result of equitable distribution parties are equally able to pay their attorneys, trial court abuses its discretion in awarding attorney’s fees).

Accordingly, the support awards and attorney’s fees assessment are reversed and the cause remanded for further proceedings consistent with this opinion. In all other respects, the final judgment is affirmed'.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . Section 61.08(2)(g), Florida Statutes, provides that in determining alimony, "the court shall consider all relevant economic factors,” including “all sources of income available to either party.”

      . This subsection provides that the court may "after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees....”


text:
    Judy HAGNER, Appellant, v. ALLSTATE INSURANCE COMPANY, et al., Appellee.
    No. 5D03-1211.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied March 22, 2004.
    Judy Hagner, Altamonte Springs, Pro Se.
    A. Craig Cameron and William K. Pratt, II- of Cameron, Hodges, Coleman, La-Pointe & Wright, P.A., Orlando, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Desimone v. Old Dominion Ins. Co., 740 So.2d 1233, 1234 (Fla. 4th DCA 1999) (“[Wjhere a party perpetrates a fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper.’.’) (quoting Savi-no v. Fla. Drive In Theatre Mgmt. Inc., 697 So.2d 1011, 1011 (Fla. 4th DCA 1997)).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


text:
    Aniesha L. MUNSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-463.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    Aniesha L. Munsey, Fort Lauderdale, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Miller v. State, 829 So.2d 321 (Fla. 5th DCA 2002).

GRIFFIN, PLEUS and TORPY, JJ., concur.


text:
    Charles G. KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-56.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    Charles G. King, Wewahitchka, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Washington v. State, 662 So.2d 1027 (Fla. 5th DCA 1995).

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Silvana ALTIERI and Jane Doe # 1 and Jane Doe # 2, Appellants, v. Daniel WINGARD, Mark A. McLeod, et al., Appellees.
    No. 5D03-2738.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.

      Thomas H. McGowan, St. Petersburg, Robert J. Hanreck, Miami and Steven R. Adamsky, Weston, for Appellants.
    Pamela A. Chamberlin of Mitrani, Ry-nor, Adamsky & Macaulay, PA.., Miami, for Appellees, Mark A. McLeod and Janet M. McLeod.
    Joshua D. Lerner and Robert J. Han-reck of Rumberger, Kirk & Caldwell, P. A., Miami for Appellee, Century 21 Alliance Realty.
   PER CURIAM.

AFFIRMED. See Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, 683 So.2d 1086 (Fla. 5th DCA 1996).

GRIFFIN, ORFINGER and PLEUS, JJ., concur.


text:
    Michael BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2391.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and PLEUS, JJ., concur.


text:
    Allen Keith BOATRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2076.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004).

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    David E. ISOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-561.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    David E. Isom, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Steiuart v. State, 840 So.2d 438 (Fla. 5th DCA 2003).

GRIFFIN, ORFINGER and MONACO, concur.


text:
    STATE of Florida, Appellant, v. P.M., a child, Appellee.
    No. 4D02-3712.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellee.
   STONE, J.

We review the order dismissing, on speedy trial grounds, the state’s petition for delinquency alleging grand theft. It is undisputed that the state properly filed the petition for delinquency within ninety days of P.M.’s detention at a Walmart for failing to pay for merchandise. Also undisputed is that P.M.’s arraignment was held thirty-seven days after the speedy trial window closed.

At a hearing at which P.M.’s counsel stated there was a pending motion to dismiss, and after being informed of the delay in holding an arraignment, the trial court, without more, dismissed the charges. This cursory dismissal of the charges against P.M. is contrary to Florida Rule of Juvenile Procedure 8.090, and this court’s recent opinion in C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004).

In C.D., this court, en banc, stated:

When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the facts in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

Id.

Here, where the state failed to bring P.M. to trial within ninety days, the trial court was required to set a hearing within five days at which point it would review the factors in rule 8.090(d). If no factors apply, then the state is given ten days to try the case. Conversely, if one of the factors applies, the state is provided ninety days to try the case.

The trial court failed to comply with rule 8.090, as now clearly enunciated in C.D. Thus, we reverse and remand for the trial court to conduct the required review and provide the state with the ten day recapture period or ninety days to try this case.

WARNER and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    Carlos Guevara TOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1581.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Carlos Tovar, went to trial before a jury on a charge of DUI manslaughter while being impaired or with a blood alcohol level of .20 or above. After the jury began deliberations, it requested a read-back of testimony. Without any objection from Tovar’s counsel, the trial court permitted a read-back of the requested testimony outside the presence of the trial judge. The record on appeal fails to reflect that Tovar waived the presence of the trial judge. Tovar asserts that without his knowing, intelligent and voluntary waiver, the waiver by his counsel does not constitute a valid waiver and, therefore, requires a reversal for a new trial. We agree.

In Brown v. State, 538 So.2d 833 (Fla.1989), the jury requested transcripts of witnesses’ testimony during deliberations. The trial judge was not in the courthouse and his bailiff and both counsel telephoned him to inform him of the request. The trial judge offered to return but both counsel agreed it was not necessary. It was agreed that the jurors be told they could not have the transcripts and that they rely on their memories. Brown argued on appeal that communication with the jury outside the presence of the judge was reversible error. The supreme court held that:

Article I, section 16 of the Florida Constitution and the federal constitution’s sixth amendment guarantee criminal defendants trial by an impartial jury. The presence of a judge, who will insure the proper conduct of a trial, is essential to this guarantee.

Id. at 834-35. It concluded that “the presence of a judge during trial is a fundamental right which can be waived only in limited circumstances and then only by a fully informed and advised defendant, and not by counsel acting alone.” Id. at 835.

Similarly, in Bryant v. State, 656 So.2d 426 (Fla.1995), the supreme court considered whether it was fundamental error for the trial judge to leave the courtroom during a read-back of testimony to the jury without an informed waiver of the judge’s presence by the defendant. When the jury requested to see transcripts of police officers’ testimony, the judge and counsel from both sides met to discuss the request. They agreed to have the testimony read back in its entirety. It was noted by defense counsel that the defendant was not in the courtroom and the judge ordered that he be brought in. The record revealed more discussion during which the attorneys agreed the judge need not be present during the read-back but “[t]he record [did] not indicate when Bryant was brought into the courtroom or whether he was present during this colloquy.” Id. at 428. The supreme court held:

The presence of a judge, who will insure the proper conduct of a trial, is essential to the state and federally guaranteed rights of trial by an impartial jury. Although this right can be waived under some circumstances, such waiver must be “by a fully informed and advised defendant, and not by counsel acting alone.” Waiver of the trial judge’s presence cannot be implied because of a defendant’s failure to make a timely objection. Although defense counsel and the state attorney agreed to the judge’s absence in this case, the defendant Bryant did not because he was not consulted about this procedure by his attorney or the trial court. Thus, Bryant did not knowingly, intelligently, and voluntarily waive the trial judge’s presence during the readback.

Id. at 428-29 (citations omitted)(footnote omitted). A trial judge’s absence during the read-back of testimony without a valid waiver is reversible error. Id. at 429.

The record in this case does not reflect a knowing and voluntary waiver by Tovar. Therefore, the read-back of testimony outside the presence of the trial judge was reversible error. The other issue raised on appeal by Tovar is without merit. We, therefore, reverse and remand for a new trial.

REVERSED AND REMANDED.

POLEN and KLEIN, JJ., concur.


author: SHEVIN, J.

text:
    Henry SIMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1181.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney. General, and Meredith L. Balo (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   SHEVIN, J.

Henry Sims appeals his conviction and sentence for possession of cocaine. We reverse.

The charges against defendant stemmed from an allegation that defendant dropped a baggie of cocaine while being questioned by two police officers. At trial, one of the officers had no knowledge whether defendant dropped the baggie; the other officer did not recall the exchange at his earlier deposition, and testified based on his arrest report. Defendant was only one of several persons in the area that evening.

Defendant asserts that the conviction must be reversed because the trial court erred in denying defense requests to issue a writ of bodily attachment for a witness the defense had subpoenaed. On the first day of trial, the state requested that the court begin jury selection the following day, so the state could depose the defendant’s witness, James Hale. The witness was in court on that first day and was directed to be present for deposition in the prosecutor’s office at 2:00 PM. The defense proffered that the witness would testify that he was with defendant on the night of the arrest and that defendant did not possess drugs.

The following day, the prosecutor reported that the witness did not appear for the deposition. .The prosecutor was informed that the witness had a family death or emergency and could not be present. The- prosecutor wanted to postpone jury selection pending the deposition. The defense had subpoenaed the witness again the night before. The defense requested a continuance to secure the-witness’s presence. The court requested the return of service to issue a writ of bodily attachment. Defense counsel had faxed the subpoena and did not receive a return. The witness, however-was still under the previous subpoena. The court did not issue the bodily attachment writ.

On the third day, the witness did not appear. Service was again attempted the previous evening, with no success. The defendant informed his attorney he wanted to go ahead with the trial without the witness. Defense counsel stated for the record that this was against his advice. Trial began without the witness’s presence. The following day, defense again requested that the court issue bodily attachment writ to secure the witness’s presence. The court refused because the defendant wanted to go ta trial without the witness. Defense counsel produced the subpoena for the record, and renewed his objection to proceeding without the witness. The jury-convicted the defendant as charged.

On appeal, defendant correctly argues that the trial court lacked discretion to deny the request that the bodily attachment writ issue to procure the witness’s presence. The defense witness in the case had been properly subpoenaed, and had appeared the first day. However, the witness left abruptly before being called, and before completion of the proceedings. “A witness summoned ... in a criminal case shall remain in attendance until excused by the court.” § 914.03, Fla. Stat. (2003). The witness violated the subpoena by departing. Therefore, the “defendant has a constitutional right to compulsory process of witnesses to produce testimony which is admissible in the cause for which he is on trial.” Krantz v. State, 405 So.2d 211, 212 (Fla. 3d DCA 1981). This constitutional protection exists “because of the fundamental unfairness which results from placing a man on trial on a criminal charge and denying him the means to compel the attendance of witnesses, within the jurisdiction of the court, who are in possession of material facts which show or tend to show his innocence of the charge.” Trafficante v. State, 92 So.2d 811, 815 (Fla.1957). The “trial court has no more authority to refuse to enforce for a defendant’s benefit the production of the evidence available to be procured and for which compulsory process has been issued than to deny the process itself in the first instance.” Green v. State, 377 So.2d 193, 202 (Fla. 3d DCA 1979)(citing Brown v. Dewell, 123 Fla. 785, 167 So. 687 (1936)), approved, 395 So.2d 532 (Fla.1981).

This is not a case where overwhelming evidence supported the defendant’s conviction, as the entire case rested on the testimony of one officer, who had no recollection of the incident. The second officer had no recollection, and there were several persons in the direct vicinity of the incident. Thus, we cannot conclude that refusing to enforce the subpoena was harmless beyond a reasonable doubt. Compare Carter v. State, 410 So.2d 552 (Fla. 3d DCA 1982).

We are not persuaded that defense counsel waived the right to have the subpoena enforced. The trial transcript demonstrates that the court would not grant any further continuance to secure the presence of the witness, and the defendant himself, against the advice of counsel, stated that he would like to go on with the trial. However, defendant’s decision is not a meaningful choice, or a waiver of the right to compel the presence of the witness, as the court had already determined that the trial would begin and no further continuances would be granted. Additionally, when a defendant is represented by counsel, the “acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes.” State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977); State v. Kruger, 615 So.2d 757 (Fla. 4th DCA 1993). Counsel preserved his objection to the court’s failure to issue the bodily attachment writ at every appropriate opportunity.

Based on the foregoing, we reverse the conviction and remand for a new trial.

Reversed and remanded.


author: RAMIREZ, J.

text:
    Ralph MIZRAHI, Appellant, v. Noemi MIZRAHI, Appellee.
    No. 3D03-644.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.

      Paul Morris, Miami; and Andrew H. Boros, Coral Gables, for appellant.
    Lehr Fischer Feldman & Gasalla, and Martin E. Feldman, Coconut Creek, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

The former husband Ralph Mizrahi (the father) appeals the trial court’s orders denying his motion for contempt and denying his motion for rehearing. The former wife Noemi Mizrahi (the mother) cross-appeals the order denying the father’s motion for contempt which denies her attorneys’ fees and costs. We affirm the trial court’s orders in all respects except that portion where the trial court modified the children’s travel restrictions because it violated the father’s due process rights. We also affirm the mother’s cross-appeal.

In October of 1990, the trial court entered a final judgment dissolving the parties’ marriage and adopted the parties’ Marital Settlement Agreement. The Marital Settlement Agreement contained a provision relating to attorneys’ fees and costs as follows:

19. Default. In the event either party defaults in the performance of their obligations hereunder, the party in default shall be liable to the non-defaulting party for all reasonable attorneys’ fees and costs in the enforcement of the obligations created by this Agreement, including costs and fees of any appeal.

The General Master subsequently addressed various post-dissolution issues. On May 9, 1991, the trial court entered an order on the report of the General Master, and adopted the report and recommendation of the General Master. The General Master’s report contained a provision that stated, “[t]he parties must agree as to when the children may travel out of the country. Plans should be made well in advance so that if the parties cannot agree, the matter can be addressed by the court.” The mother filed no objection to the travel restriction, and the father did not appeal the trial court’s order adopting the report and recommendation of the General Master.

The father then filed a Verified Motion for Contempt for the mother’s failure to comply with the shared parenting requirements and a motion for injunction to prevent future travel of the two minor children. The father claimed that the mother had allowed one of the minor children to travel on a vacation outside the country for a few days on a cruise with the mother’s friends and family. The father’s counsel at the time did not refer to the travel restriction contained in the May 9, 1991 order. The trial court held a full eviden-tiary hearing on July 9, 2002, after which the trial court denied the motion. The trial court, not having been apprised of the May 9, 1991 order, was not aware of any travel restriction.

The father then filed a motion for rehearing, attaching the May 9, 1991 order adopting the report and recommendation of the General Master to the motion for rehearing and argued that he had found this order entered subsequent to the Marital Settlement Agreement which barred the minor children from traveling. The mother argued that the motion for rehearing should be denied because the father was aware of the existence of that additional order and failed to present any argument on it at the hearing. The court denied the father’s motion for rehearing.

Through new counsel, the father thereafter filed a second motion for contempt on October 10, 2002, his Verified Motion for Contempt for Mother’s Failure to Abide by Court Order. He alleged the same factual basis as his first motion for contempt and referred to the May 9, 1991 order containing the travel restriction. The father further alleged that the mother knowingly violated the May 9, 1991 order when she permitted the minor son to travel outside the U.S. without the father’s permission. The father also alleged that the mother was aware of the travel restriction.

A full evidentiary hearing was held on the father’s second motion for contempt. The father stated that he had given the son permission to take the trip, but was not told that the trip was outside of the United States. He did not give permission for a trip outside the country. The mother testified that she was aware of the travel restriction order, received a copy of it, and understood it. The court denied the father’s motion and entered its order on January 23, 2003, concluding that “there is no basis for barring the children’s future traveling.” This order further denied attorneys’ fees and costs to the mother. The father filed a motion for rehearing, contending that .the order modified the preexisting travel restriction order of May 9, 1991 without notice to him and thus violated his due process rights. The trial court denied the motion for rehearing.

The father now seeks reversal of the January 23, 2003 order on three grounds, one of which merits discussion. The father contends, in part, that the trial court’s order must be reversed because it violates his due process rights. He states that the order was entered without notice to him, and the issue of the minor children’s future traveling "was not tried by consent of the parties. We agree with the father that by ruling on an issue that was not before the court, the trial court violated the father’s right to due process.

Due process protections prevent a trial court from- deciding matters not noticed for hearing and not the subject of appropriate pleadings. See Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981). In the case before us, the father requested a hearing on his motion to hold the mother in contempt for violating the trial court’s travel restriction order which prohibited travel outside the country by the parties’ children without the .consent of both parents or court approval. After the eviden-tiary hearing on the father’s motion was held, the trial court entered an order denying the father’s motion for contempt. This order modified the travel restriction order because the order stated, “[t]he court further concludes, as did Judge Rodriguez, there is no basis for barring the children’s future traveling.” In essence, this language basically nullified the travel restriction contained in the May 9, 1991 order. This violates the father’s due process rights because it was entered without notice to the father. See Cummings v. Cummings, 662 So.2d 769 (Fla. 4th DCA 1995). In addition, the May 9,1991 order restricting the children’s travel was not pled in the proceedings before Judge Rodriguez, and it was not tried by consent of the parties. We agree with the father that the minor children are not allowed to travel outside the country without permission of both the father and the mother, unless the travel plans are approved by the court or until the travel restriction order is properly noticed and modified. As such, this portion of the order must be reversed. See Neumann v. Neumann, 857 So.2d 372 (Fla. 1st DCA 2003).

In addition, we do not agree with the mother’s position that if the parties intended a general restriction on the minor children traveling, then the language in the May 9,1991 order would have used “if’ and not “when.” The May 9, 1991 order states the following:

I) The parties must agree as to when the children may travel out of the country. Plans should be made well in advance so that if the parties cannot agree, the matter can be addressed by the court, (emphasis added).

We believe that the use of the word “when” in the May 9, 1991 order represents a restriction upon international travel by the children without consent of the parties or court approval.

Turning to the mother’s cross-appeal of the same order, she contends that the trial court erred in denying her attorneys’ fees and costs because the Marital Settlement Agreement authorized such for a prevailing party. We disagree.

Under the Marital Settlement Agreement, the “party in default shall be liable to the non-defaulting party for all reasonable attorneys’ fees and costs in the enforcement of the obligations created by this Agreement, including costs and fees of any appeal.” In the case before the trial court, it was not alleged nor found that the father was in default of his obligations under the Marital Settlement Agreement. That action arose from the father’s claim that the mother violated the May 9, 1991 order which required parental agreement or court approval for travel outside the country by the parties’ minor children. As such, the mother’s request for fees and costs was properly denied.

Furthermore, we do not agree with the mother’s position that the father’s action was frivolous and she is thus entitled to attorneys’ fees under section 57.105, Florida Statutes. The trial court did not abuse its discretion in denying her attorney’s fees and costs pursuant to section 57.105 because the father was not litigating an issue that had already been adjudicated. As previously discussed, the father requested that the trial court hold the mother in contempt for violating the May 9, 1991 travel restriction order. This was an issue which the trial court had not previously addressed. In his first motion for contempt, the father had simply argued that the mother had violated the shared parenting requirements and did not reference any court order. We thus do not see the father’s second motion for contempt as an attempt by the father to relitigate the same issues that had been brought before the trial court on the father’s first motion for contempt, and find that the father’s second motion for contempt was not frivolous.

Accordingly, we affirm the trial court’s January 21, 2003 order which denies the father’s verified motion for contempt and reverse only that portion which modifies the May 9, 1991 order containing the travel restriction. Furthermore, we affirm the portion of the January 21, 2003 order which denies the mother’s motion for attorneys’ fees and costs.

Affirmed in part and reversed in part.

      . This language was inserted by counsel who was allowed to draft the order, a practice ffaught with risk.


text:
    Desmond MEADE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1840.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   SHEVIN, J.

Desmond Meade appeals his conviction and sentence. We reverse, holding that the trial court should have granted defendant’s cause challenge of a prospective juror.

Meade was charged with possession of a firearm by a convicted felon. During jury selection, a prospective juror related that she had been the victim of a violent home invasion robbery during which the perpetrator held a gun to her head and threatened her life. Upon further questioning, the juror volunteered that she had learned that the perpetrator was a convicted felon who was out of jail, like the defendant in this case. The defense moved to excuse the juror for cause. The court denied the cause challenge. The defendant used his first peremptory to strike this juror.

We find that the court abused its discretion in denying the cause challenge when, as here, the juror drew a parallel between the defendant and the perpetrator who victimized her. Rodriguez v. State, 816 So.2d 805 (Fla. 3d DCA 2002)(error to deny cause challenge of prospective juror who was victim of abuse by boyfriend, and whose sister was victim of domestic violence, in domestic violence felony battery trial); Gill v. State, 683 So.2d 158 (Fla. 3d DCA 1996)(error to deny cause challenge of prospective jurors who were home burglary victims in trial of burglary of a dwelling charge); Crawford v. State, 805 So.2d 997 (Fla. 2d DCA 2001)(error to deny cause challenge of prospective juror who had been held up at gunpoint twice, in second degree murder involving a firearm trial), review denied, 821 So.2d 301 (Fla. 2002). A review of the record demonstrates that, based on the totality of the juror’s responses, there was a reasonable doubt as to whether she could be an impartial juror, and the cause challenge should have been granted on that basis. Franqui v. State, 804 So.2d 1185 (Fla.2001); Miles v. State, 826 So.2d 492 (Fla. 3d DCA 2002); Martinez v. State, 795 So.2d 279 (Fla. 3d DCA 2001). This juror was not rehabilitated; she only answered, “Yes,” to the court’s sole question of whether she could put her experience aside and be impartial. This response is certainly “not dispositive of her competence to serve in light of her initial responses.” Henry v. State, 586 So.2d 1335, 1337 (Fla. 3d DCA 1991). This court has long held that responses to questions by the court are more likely offered to “ ‘please’ the judge and give the rather obvious answers indicated by the leading question, and as such these responses alone must never be determinative of a juror’s capacity to impartially decide the cause to be presented.” Price v. State, 538 So.2d 486, 489 (Fla. 3d DCA 1989); Henry, 586 So.2d at 1337 (“responses to court’s leading questions reflect a desire to please the court, but do not dissipate the reasonable doubt raised by previous equivocal statements.”).

Moreover, this issue was preserved for review, contrary to the State’s contention. The defense was forced to exercise a peremptory challenge to strike this prospective juror. Thereafter, the defendant exhausted his peremptory challenges, requested additional challenges that were not granted, and identified the objectionable jurors that he would have stricken. Hearse v. State, 770 So.2d 1119 (Fla.2000); Trotter v. State, 576 So.2d 691 (Fla.1991). Cf. Blye v. State, 566 So.2d 877 (Fla. 3d DCA 1990)(denial of cause challenge of juror who acknowledged inability to be objective because of crimes against friends was reversible error where defendant exhausted his peremptory challenges and was denied another). The defense also accepted the jury subject to its previous objections. Joiner v. State, 618 So.2d 174 (Fla.1993).

We therefore reverse the conviction and remand for a new trial.

Reversed and remanded.


text:
    Terry L. MIZE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0127.
    District Court of Appeal of Florida, First District.
    March 11, 2004.

      Terry L. Mize, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA1989).

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Daniel HOWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0071.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Daniel Howell, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. The petition alleging ineffective assistance of counsel is untimely as it was not filed within two years after petitioner’s conviction became final. Fla. R.App. P. 9.141(c)(4)(B). Accordingly, the petition alleging ineffective assistance of counsel is denied.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Tracey HAMILTON, Appellant, v. RYAN FOODS COMPANY, Stacey L. Johnson and Christina Johnson, Appellees.
    No. 1D03-5161.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Eric S. Block, Jacksonville, for Appellant.
    L. Johnson Sarber, III, of Marks, Gray, Conroy & Gibbs, Jacksonville for appellee Ryan Foods Co.
    Charles E. Earnhardt, Ponte Vedra Beach, for appellees Johnson.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of December 17, 2003, we dismiss this appeal as premature. The order on appeal reserved jurisdiction to determine collateral source set-offs, thereby rendering it nonfinal. Even assuming that the reservation of jurisdiction to determine collateral source set-offs could be extinguished by the parties’ failure to file a motion seeking such set-offs, and assuming this left nothing further for the court to determine, nevertheless, the instant order would still be nonfinal. See Neuman v. Neuman, 858 So.2d 1273 (Fla. 1st DCA 2003); Ponton v. Gross, 576 So.2d 910, 911 (Fla. 1st DCA 1991).

DISMISSED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Brian A. WATLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5070.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003).

AFFIRMED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Jeremiah John Micheal BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4515.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Trisha Meggs Pate, Assistant Attorney General; Tallahassee, for Appellee.
   PER CURIAM.

On April 3, 2003, the appellant filed a rule 3.800(a) motion alleging that the trial court lacked personal jurisdiction over him at the time of his trial because the charging document was defective. The trial court denied the motion on May 8, 2003, and the appellant sought review of the trial court’s denial. On July 18, 2003, while the appeal was pending, the appellant filed the instant rule 3.800(a) motion raising a claim pursuant to Heggs v. State, 759 So.2d 620, 623 (Fla.2000), and asserting that the trial court erred in failing to sign the written reasons for departure. On August 4, 2003, the trial court entered an order striking the appellant’s motion because his prior rule 3.800(a) motion was under appellate review. The trial court erred in striking the appellant’s motion filed on July 18, 2003, as the issues raised are unrelated to those raised in his prior motion. See Bates v. State, 704 So.2d 562 (Fla. 1st DCA 1997).

Accordingly, we reverse the trial court’s order striking the appellant’s motion and remand the cause to the trial court to consider the merits of the appellant’s motion.

REVERSED and REMANDED.

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    Jerry W. COUCH, Glenda M. Couch, and Beverly Todd, Appellants, v. TROPICAL BREEZE RESORT ASSOCIATION, INC., Shore Line Group, Ltd., Gulf Tropics Ltd., Inc., Gerald Hataway, Harry Rosenthal, George Schweikert, and Joel Pate, Appellees.
    No. 1D03-3523.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Mark Freund, Tallahassee, for Appellants.
    Larry A. Bodiford of Hutto & Bodiford, Panama City; Julie Ann Sombathy of Isler & Sombathy, Panama City; and John F. Daniel of Daniel & Komarek, Panama City, for Appellees.
   PER CURIAM.

The appellants have sought review of an order captioned as a Final Judgment. However, the order is not final because related claims remain pending. Specifically, Counts I through VI, VIII, and X through XIII are not adjudicated by the order on appeal. Moreover, although the order appears to adjudicate the merits of Counts VII and IX, it reserves jurisdiction to hold a trial on the issue of punitive damages. Judicial labor with regard to the related issue of punitive damages on Counts VII and IX remains pending, and the order is consequently nonfinal. Accordingly, the appeal is hereby dismissed for lack of jurisdiction. See Raymond James & Associates, Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003); see also S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).

The appellants suggest that the order should be “deemed” final pursuant to McGum v. Scott, 596 So.2d 1042 (Fla.1992). Recently, this Court limited application of McGum to orders that otherwise appear to be ordinary final money judgments except for an improper reservation of jurisdiction to consider prejudgment interest, specifically. See Godshall, 851 So.2d at 881. However, McGum and Godshall are both distinguishable from the present appeal because it is clear that related substantive claims remain pending in the form of Counts I through VI, VIII, and X through XIII, as well as the issue of punitive damages as to Counts VII and IX. It appears at this time that extensive judicial labor remains. Accordingly, the appellant’s request that the Court certify a question of great public importance to the Florida Supreme Court is denied.

The appellants’ motion for extension of time to file the initial brief is denied as moot.

DISMISSED.

ALLEN, DAVIS and HAWKES, JJ., concur.


text:
    James HOLLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2894.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    James Holland, pro se, petitioner.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

James Holland’s request for a belated appeal of an order denying his motion for postconviction relief rendered on October 3, 2003, in Duval County Circuit Court case numbers 99-09836-CF-A and 00-11472-CF-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Carl WASILESKI, former attorney for Russell J. Warga, and Russell J. Warga, Appellants, v. Shannon D. WARGA, Appellee.
    No. 1D02-2439.
    District Court of Appeal of Florida, First District.
    March 11, 2004.

      Carl Wasileski, Titusville, and Russell K. Ramey, Panama City, for Appellants.
    Samuel T. Adams, Panama City, for Ap-pellee.
   PER CURIAM.

We find no abuse of discretion in the trial court’s determination to impose attorney’s fees pursuant to section 57.105, Florida Statutes. We do, however, find error in the apportionment of fees. Accordingly, we vacate that portion of the order and remand with directions that the order require the “attorney’s fee to be paid to the [former wife] in equal amounts by the [former husband] and the [former husband’s] attorney.” § 57.105(1), Fla. Stat. (1999).

AFFIRMED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Michael Wayne CORN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0431.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Michael Wayne Corn, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as it is without merit.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    John Brady LAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0182.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    John Brady Layne, pro se, appellant.
    ■ Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the court’s order of January 20, 2004, the court has determined that the notice of appeal was not timely filed because the motion for reconsideration did not toll the time for filing a notice of appeal of the order denying appellant’s 3.800(a) motion. See Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992). The appeal is hereby dismissed.

DISMISSED.

BARFIELD, KAHN and HAWKES, JJ., concur.


author: PALMER, J.

text:
    Lisa H. OWEN, Appellant, v. Robert A. OWEN, Appellee.
    No. 5D03-1900.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Karen O’Brien Steger of Steger & Steger, P.A., Stuart, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellant.
    Richard I. Wallsh of Chartered Law Offices of Troum & Wallsh, Winter Park, for Appellee.
   PALMER, J.

Lisa H. Owen (the former wife) timely appeals the final dissolution judgment entered by the trial court in which (1) Robert A. Owen (the former husband) was awarded primary residential custody of the parties’ minor children, and (2) an annual income of $66,000 per year was imputed to the former wife. Finding no abuse of discretion in the trial court’s decision awarding primary residential custody to the former husband, we affirm as to that issue. However, finding that the former husband failed to meet the burden of proof necessary to impute income in the amount of $66,000 per year to the former wife, we reverse as to that issue.

With regard to the trial court’s imputation of income, the evidence showed that the former wife’s last full-time job was in 1995 and that she earned $33,000 per year at that time. Since that time, the former wife has earned a masters degree in electrical engineering, but has not been in the work force because she was the primary custodian of the parties’ minor children.

Section 61.30 of the Florida Statute (2000) provides the following with regard to imputed income:

61.30 Child support guidelines; retroactive child support:
* * *
[2](b) Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community ...

Since the evidence was undisputed that at the time of the dissolution hearing the former wife was voluntarily unemployed, the trial court’s imputation of income to her was appropriate. However, as the former wife aptly argues, it was error to impute income to her in an amount which exceeded the $33,000 she previously earned in the job market since the former husband failed to present evidence as to the availability in the community of jobs for the former wife and the salary which she could earn at those jobs. The only evidence presented by the former husband with regard to the imputation of income were two sets of statistics of which the trial court took judicial notice: (1) the U.S. Department of Labor Bureau of Labor Statistics Report that placed the 2000 national median annual earnings for electrical engineers at $64,910.00, and (2) the Career Center at Carnegie Mellon report for 2002 that placed the national median salary for masters prepared electrical and computer engineers at $66,000.00. Neither of these reports specifically address the availability of jobs in the area where the former wife resides nor the salary payable for jobs in the Central Florida area or, for that matter, in any community.

The Fourth District explained in Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003), that the trial court’s finding regarding imputation of income must be supported by substantial competent evidence and it is error for the trial court to impute income to a spouse in an amount higher than the spouse has historically earned, absent special circumstances. The importance of determining income for the local community was shown in Stebbins v. Stebbins, 754 So.2d 903 (Fla. 1st DCA 2000), where the court held that the prevailing income in the community in which the person was located, not income that could have been earned from relocation, must be used in establishing the amount of income to impute. Other courts have held evidence of the nature utilized in this case insufficient. For example, in Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1998), the court held that expert testimony establishing the prevailing earnings level for a particular degree does not constitute evidence sufficient to impute that amount of income for child support purposes. Similarly, in Iglesias v. Iglesias, 711 So.2d 1316 (Fla. 2d DCA 1998), the court found insufficient for purposes of imputed income evidence of the employment section of the newspaper where the husband resided, reflecting multiple jobs opening, noting there was nothing to indicate that any of these jobs were available to the husband, or what the rate of pay was.

The evidence presented in this case was woefully inadequate to support a finding of an imputed income of $66,000 for the former wife. Although the former husband presented evidence as to the former wife’s work history (having earned $33,000 when last in the job market) and her occupational qualifications (having earned a masters degree in engineering), he presented absolutely no evidence regarding the “prevailing earnings level in the community.”

Accordingly, we reverse the trial court’s imputation of $66,000 in income to the former wife and remand this matter to the trial court to enter an amended order limiting imputed income to $33,000 per year.

AFFIRMED in part, REVERSED in part, REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.


author: SAWAYA, C.J.

text:
    Brett KING and Angela King, Appellants, v. Larry BRAY and Deborah Bray, Appellees.
    No. 5D02-4064.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      James Barrow of Tampa Bay Law Group, P.A., Tampa, for Appellants.
    David La Croix, Brooksville, for Appel-lees.
   SAWAYA, C.J.

Brett and Angela King appeal the final judgment rendered in favor of Larry and Deborah Bray in the action for specific performance filed by the Kings to enforce their contract to purchase the Brays’ home. The issue we must resolve in these proceedings is whether the trial court erred in finding that the contract was unenforceable because it was ambiguous and because there was never a meeting of the minds between the parties regarding an essential term of the agreement.

Negotiations between the parties resulted in a contract whereby the Kings agreed to purchase the Brays’ residence and assume the existing mortgage. Appended to the contract was an addendum that contained the following provision:

When Mortgage is assumed and Loan is Liquidated, sellers: Larry & Deborah Bray are to be released from Liability and VA certificate is to be returned to Larry Bray.

This provision formed the genesis of the lawsuit because, according to the Kings, nothing in the contract required them to return the VA certificate at closing as the Brays apparently expected. ' The Kings understood that the certificate would be returned after the loan was paid in full. Unfortunately, the addendum was not attached to the copy of the contract sent to the mortgage company and when the Brays learned that the mortgage company would not return the certificate until the loan was satisfied, they refused to close. The Brays testified at the trial that the addendum meant that when the loan was assumed, they would get the certificate back at closing. The transactional broker who prepared the addendum testified that she understood that the certificate was to be returned at closing and that this is what the Brays made clear to her when the contract was signed.

The trial court found that return of the certificate was a major consideration for the Brays when they executed the contract so that it could be utilized by them to purchase another home. The trial court also found that the addendum was prepared with the Brays’ understanding that the certificate would be returned at closing and because there was no meeting of. the minds and no mutual understanding of the contents of the contract, a valid and enforceable contract never came into existence. Accordingly, judgment was entered denying the Kings specific performance of the contract and requiring that the deposit be returned to the Kings with no deductions for fees or costs.

The Kings argue that the judgment should be reversed because the trial court erred in admitting parol evidence to explain the addendum that they contend was clear and unambiguous. The parol-evidence rule is a substantive rule of law and reduced to its essence, provides that a written document intended by the parties to be the final embodiment of their agreement may not be contradicted,' modified or varied by parol evidence. See The Florida Bar v. Frederick, 756 So.2d 79 (Fla.2000); Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943); Ali R. Ghahramani, M.D., P.A. v. Pablo A. Guzman, M.D., PA., 768 So.2d 535 (Fla. 4th DCA 2000). Because the law generally presumes that the parties, by making a writing on the subject, intended the writing to be the sole expositor of their agreement, the party seeking to introduce parol evidence must establish that the document is ambiguous and in need of interpretation. See Frederick; Laboratory Corp. of Am. v. McKown, 829 So.2d 311 (Fla. 5th DCA 2002); NCP Lake Power, Inc. v. Florida Power Corp., 781 So.2d 531 (Fla. 5th DCA 2001).

The problem with the Kings’ argument is that-they did not object to the introduction of the parol evidence that allowed the trial court to look beyond the four corners of the contract. Although the theoretical underpinnings of the parol-evidence' rule might logically suggest otherwise, especially in light of the fact that the rule is considered a fundamental rule 'of substantive law, the Florida courts generally agree that failure to object to the introduction of parol evidence in the trial proceedings waives the right to invoke the rule on appeal. See Pathway Fin. v. Miami Intern. Realty Co., 588 So.2d 1000 (Fla. 3d DCA 1991); King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989), review denied; 564 So.2d 487 (Fla.1990); Thai v. Roth, 173 So.2d 174 (Fla. 3d DCA 1965); Ross v. Florida Sun Life Ins. Co., 124 So.2d 892 (Fla.2 DCA 1960); Frank v. Pioneer Metals, Inc., 121 So.2d 685 (Fla. 3d DCA), cert. denied, 123 So.2d 676 (Fla.1960). Hence, we proceed to determine whether the trial court arrived at the correct conclusion based on the evidence and testimony submitted by the parties.

Specific performance may be denied when a contract is unenforceable because, based on an ambiguity in the contract, the parties never reached a meeting of the minds regarding an essential term of the agreement. See Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001); Allen v. Berry, 765 So.2d 121 (Fla. 5th DCA 2000), review denied, 786 So.2d 1183 (Fla.2001). Regarding the issue whether the contract is ambiguous, the underlying rationale of the argument presented by the Kings is that 38 U.S.C. § 3702(b) provides for the return of a VA certificate upon the satisfaction of the mortgage. Therefore, if a VA loan is assumed by a nonveteran, the certificate will not be returned until the loan is paid in full. Accordingly, the Kings argue the contract was clear and unambiguous and could not mean that the certificate would be returned at closing because such an interpretation would result in an absurdity and render assumption of the loan, as contemplated by the contract, impossible to accomplish. The courts generally agree that where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner. See American Med. Int’l, Inc. v. Scheller, 462 So.2d 1, 7 (Fla. 4th DCA 1984) (“A true ambiguity does not exist merely because a contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible. It is the duty of the trial court to prevent such interpretations.”); Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315-16 (Fla. 2d DCA 1963) (“Looking to the other provisions of a contract and to its general scope, if one construction would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability.”) (citation omitted). We disagree, however, that the contract is clear and unambiguous.

Contrary to the assertions of the Kings, there are instances under federal law when a VA certificate can be returned at closing. For example, if the buyer is also a veteran or if the buyer applies for and receives a waiver from the YA Secretary, a certificate may indeed be returned at closing. See 38 U.S.C. § 3702(b)(1). Therefore, it is clear that the Brays’ intent to have the certificate returned at closing was not without basis in the law, impossible, or meaningless as the Kings contend. The Brays also assert that the meaning of the addendum turns on what “liquidated” means because that term has different meanings. Webster’s Collegiate Dictionary defines “liquidate” to mean to determine, by agreement or litigation, the exact amount of an indebtedness. Webster’s Collegiate Dictionary 679 (10th ed.1993). It also defines the same term as meaning to settle a debt by payment or other settlement. Id. Hence, the term may be defined to fit either understanding of the parties to the instant contract. Accordingly, the trial court concluded, and we think correctly so, that the contract was ambiguous. See Friedman v. Virginia Metal Prods. Corp., 56 So.2d 515, 517 (Fla.1952) (“A word or phrase in a contract is ‘ambiguous’ only when it is of uncertain meaning, and may be fairly understood in more ways than one. The term ‘ambiguous’ means susceptible of more than one meaning.”) (citations omitted). “ ‘Language is ambiguous where it is susceptible of interpretation in opposite ways.’ ” Id. (quoting J.E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862, 868 (1943)).

Having concluded that the contract was ambiguous, the trial court determined that the parties never formed an enforceable contract because, based on their different views of what the contract meant, they never arrived at a meeting of the minds. “It is well established that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract....” Greater New York Corp. v. Cenvill Miami Beach Corp., 620 So.2d 1068, 1070 (Fla. 3d DCA 1993) (citations omitted); see also Cavallaro (holding that if there was never a meeting of the minds regarding the essential terms of a contract, the contract is unenforceable). An objective test is utilized to determine whether a contract is enforceable. See Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985); Blackhawk

Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d 404 (Fla.1974). In Robbie, the court explained:

We have consistently held that an objective test is used to determine whether a contract is enforceable. Blackhawk (and cases cited therein). As stated in Blackhawk:
“The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.”
302 So.2d at 407, quoting Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). In addition, parties to a contract do not have to deal with every contingency in order to have an enforceable contract. See Blackhawk.

469 So.2d at 1385.

The testimony in the instant ease leads to no conclusion other than that reached by the trial court. The Brays believed that the Kings acquired their own mortgage (albeit by assuming the Brays’ mortgage) and the addendum required that the Kings return the VA certificate to the Brays at closing. The Kings believed that the addendum was pointless and required nothing more than that which would have occurred without it, which was the return of the certificate after they paid off the mortgage at the end of the term. Therefore, the trial court correctly found that the parties never reached a meeting of the minds regarding the provisions of the addendum.

We must next determine whether the provision in the addendum regarding the certificate was an essential element of the contract. “While a ‘meeting of the minds’ may not be necessary as to every term for a contract to be formed, mutual assent is certainly necessary as to an essential term.... ” David v. Richman, 568 So.2d 922, 924 (Fla.1990) (citations omitted); Blackhawk, 302 So.2d at 408 (“Even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto.”) (citation omitted); Bowen v. Larry Gross Constr., Inc., 781 So.2d 464, 466 (Fla. 5th DCA 2001). What is an essential term of a contract “will vary widely according to the nature and complexity of each transaction and will be evaluated on a case by case basis.... ” Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 760 (Fla.1980); see also Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001) (“Certainly, what is an ‘essential term’ of a contract differs according to the circumstances.”), review denied, 817 So.2d 848 (Fla.2002).

Here, the trial court found that the provision in the contract regarding the VA certificate was “a major consideration and specific requirement of the sale” and the Kings do not argue otherwise in these proceedings. Even if the Kings had argued that the addendum provision was not an essential term of the contract, based on the particular facts and circumstances of this case, we would not be able to say that the conclusion reached by the trial court was wrong.

Accordingly, we affirm the judgment rendered by the trial court.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . The parol-evidence rule is generally considered a "fundamental rule of substantive law." The Florida Barv. Frederick, 756 So.2d 79, 85 n. 2 (Fla.2000) (citing Schwartz v. Zaconick, 68 So.2d 173, 175 (Fla. 1953); Knabb v. Reconstruction Fin. Corp., 144 Fla. 110, 197 So. 707, 715 (1940)).


author: MONACO, J.

text:
    Luis TROCOLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3670.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The issue presented by the appeal of Luis Trocola is whether the trial court abused its discretion in refusing' to grant Mr. Trocola a continuance of his trial. We conclude that the court should have granted the continuance and reverse.

Mr. Trocola was charged in two informa-tions with fleeing and attempting to elude law enforcement officers, three counts of battery on a law enforcement officer, and two counts of resisting an officer with violence. The informations were consolidated for trial at the request of the State. .,

At his arraignment on June 17, 2002, the Office of the Public Defender was appointed to represent Mr. Trocola, and the court set a pretrial conference for August 8, and a jury trial for September 17, 2002. At a status conference held on August 8th, Mr. Trocola, who was represented by his originally appointed assistant public defender, turned down a plea offer. His attorney stated, “We’re going to. trial.” . On September 17th, the original trial date, the court held a pretrial conference at which Mr. Trocola was represented by a different assistant public defender. ■. The new attorney asked for a continuance based on a potential conflict of interest that he thought might preclude representation by the public defender’s office, and based on his lack of readiness for trial. He argued that he was not prepared to try Mr. Troco-la’s case because it had only recently been assigned to him. He further advised the court that he had a very heavy case load, and that discovery had not yet been concluded.

It appears that two witnesses for the State, both of whom were police officers, failed to appear for their depositions, which were to be held a short time before the pretrial conference. In addition, two depositions had been set by the State which were to take place a week after the commencement of the trial period. Finally, a motion to suppress had been filed, but had not yet been heard by the court. The suppression hearing could not be heard immediately, according to Mr. Trocola’s new counsel, because of the potential conflict that the attorney said he recently discovered. The trial court denied the motion for continuance, but continued the pretrial conference until the following day to allow the assistant public defender time to investigate the potential conflict.

On the following day counsel for Mr. Trocola again moved for- a continuance on similar .grounds, although the potential conflict, was apparently resolved. The attorney’s investigation indicated that he would not only have to depose the officers who had failed to appear, but that he would need to locate and call a rebuttal witness. He pointed out that officers from two separate counties, and possibly others were involved, and he simply had not had time either to discuss the case with his client or the witnesses, or to prepare a defense. Finally he related that the originally assigned attorney had “shifted out,” and • that Mr. Trocola “didn’t have any choice in the matter.” The trial court still denied the continuance, although he did schedule the trial near the end of the docket.-

The jury found Mr. Trocola guilty of three of the charged offenses. He seeks a new trial. arguing that the trial judge abused its discretion in denying a continuance.

As a general rule, the denial of a motion for continuance is within the sound discretion of the trial court, and the action of the court will not be disturbed on appeal unless there is a clear showing that there has been a “palpable” abuse of discretion to the disadvantage of the accused, or, unless the rights of the accused might have been jeopardized by the continuance determination. See Robinson v. State, 561 So.2d 419, 420 (Fla. 1st DCA 1990); Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988); Mills v. State, 280 So.2d 35, 35 (Fla. 3d DCA 1973). Still, criminal defendants and counsel are entitled to a reasonable time to prepare for trial. See Browne v. State, 88 Fla. 457, 102 So. 546, 546-47 (1924); Langon v. State, 791 So.2d 1105, 1113 (Fla. 4th DCA 1999), review denied, 751 So.2d 1252 (Fla.), cert. denied, 530 U.S. 1218, 120 S.Ct. 2225, 147 L.Ed.2d 256 (2000); McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986). The “common thread” connecting cases finding a “palpable” abuse of discretion in the denial of a continuance seems to be that defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defenses. D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003) (citing Wei-ble v. State, 761 So.2d 469, 472 (Fla. 4th DCA 2000)). “This right, however, is not absolute. At some point, the right bends before countervailing interests involving the effective administration of the courts.” McKay, 504 So.2d at 1282.

In McKay, the First District Court of Appeal identified seven criteria that a court should consider in determining whether denial of a motion for continuance amounts to a palpable abuse of discretion based on lack of adequate time to prepare a defense. Those criteria include:

1. The time actually available for preparation;
2. The likelihood of prejudice from the denial;
3. The defendant’s role in shortening preparation time;
4. The complexity of the case;
5. The availability of discovery;
6. The adequacy of counsel actually provided; and
7.The skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.

McKay, 504 So.2d at 1282. The Fourth District adopted this test in D.N. v. State, 855 So.2d at 260. While not intending to imply that this list is exclusive, we agree that the factors are fair, well-considered and reasonable, and provide a sound basis to evaluate the present case.

Upon consideration of the McKay criteria, we conclude that the trial court palpably abused its discretion in denying the continuance. Mr. Trocola’s counsel had only recently been assigned the case, and was clearly not prepared for trial. The time available to him before trial was inadequate under the circumstances, particularly given the fact that multiple counties and multiple law enforcement agencies were involved. In addition, the time problem was exacerbated by the fact that subpoenaed police officers failed to show up for their depositions. It simply is not fair to squeeze the trial preparation time of the accused because he or she cannot get discovery from State witnesses. Surely the Sixth Amendment right to counsel implies the right to prepared counsel. See McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir.1974).; Kimbrough v. State, 352 So.2d 925 (Fla. 1st DCA 1977); see also Madden v. State, 535 So.2d 636 (Fla. 5th DCA 1988). We note, as well, that Mr. Trocola did not cause the problem associated with having a new attorney recently assigned. He had nothing to do with the fact that his original lawyer was “shifted” by the public defender’s office, and ought not to be penalized because of it. Finally, this was Mr. Trocola’s first request for a continuance. He was not abusing the process. We think it should have been granted.

Trial courts are under constant pressure to move cases through the criminal justice system. All judges are fully aware that unless cases are efficiently processed, the burden of backlog begins to choke, and unwanted delays multiply exponentially, One of our primary functions, however, is to make sure that trials are fair. We cannot lose sight of that laudable goal in the name of expediency. Mr. Trocola is entitled to a new trial with adequately prepared counsel.

REVERSED and REMANDED.

PETERSON and THOMPSON, JJ„ concur.