author: ALLEN, J.

text:
    Clinton Gilman BUSH, III, Appellant, v. Cynthia Martin BUSH, Appellee.
    No. 1D02-1872.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Rehearing Denied Oct. 17, 2003.
    Michael W. Jones, P.A., Gainesville, and Cynthia L. Greene of Law Offices of Cynthia L. Greene & Associates, P.A., Miami, for Appellant.
    Elliot Zisser of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, for Appellee.
   ALLEN, J.

The appellant challenges various rulings contained in a final judgment of dissolution of marriage. We conclude that only one of the arguments presented by the appellant has merit. Specifically, we agree that the trial court erred by retroactively awarding permanent alimony to a period already covered by a temporary alimony award.

On July 17, 2000, before the parties’ marriage was dissolved, the appellee requested an award of temporary alimony. Following a hearing on this request, the trial court entered an order by which the appellee was awarded temporary alimony in the amount of $12,000 per month, commencing on January 1, 2001. No award was made for the period from July 17 through December 31, 2000. On September 25, 2001, the court entered the final judgment which included an award to the appellee of permanent alimony in the amount of $18,500 per month. Finding that the appellee’s need for support and the appellant’s ability to pay preexisted the final judgment, the court made the permanent alimony award retroactive to July 17, 2000, the date on which the appel-lee first requested temporary support.

The trial court erred in making its permanent alimony award retroactive to July 17, 2000, because the parties had already litigated the appellee’s entitlement to alimony during this period. See Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999); see also Rodgers v. Diederichsen, 820 So.2d 362 (Fla. 1st DCA 2002). Accordingly, the award of permanent alimony for periods prior to September 21, 2001, is reversed, but the final judgment is otherwise affirmed.

BOOTH and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wilton Amos ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2885.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Rehearing Denied Oct. 21, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 23, 2003, the Court has determined that the notice of appeal was not timely filed because the motion for rehearing was not filed within fifteen days of the date of service of the trial court’s order. Accordingly, the appeal is hereby dismissed.

DISMISSED.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


author: MONACO, J.

text:
    James Nelson MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2322.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    Rehearing Denied Oct. 13, 2003.
    James Nelson Morrow, Defuniak Springs, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

James Nelson Morrow appeals the summary denial of his Rule 3.850 motion for post-conviction relief. Morrow pled guilty to possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes, and was sentenced to life imprisonment as a violent career criminal. His direct appeal of this judgment and sentence was affirmed by this court. See Morrow v. State, 760 So.2d 1098 (Fla. 5th DCA 2000). Morrow then filed the instant 3.850 motion asserting five claims of ineffective assistance of trial counsel. Although we find that all five claims are without merit, there are two that warrant discussion.

Morrow argues that his plea is involuntary because neither his trial counsel, nor the trial court informed him that his guilty plea could result in a mandatory life sentence. The record, however, refutes this claim. The transcript reflects that the trial court specifically advised Morrow that he could be sentenced to life imprisonment as a result of his plea. When asked if he understood this sobering fact, Morrow answered that he did. He pled guilty and the trial judge ordered the preparation of a presentence investigation. At sentencing the court determined that Morrow qualified as a violent career criminal, and awarded the life sentence. It is clear on the face of the transcript of the plea hearing that Morrow was fully aware that a life sentence could result from his plea, and thus we conclude that this claim is without merit. See Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002).

Morrow also contends that his sentence under the “Three Strikes Violent Felony Offender Act” is unconstitutional as constituting cruel or unusual punishment, and that his trial counsel was ineffective for failing to object on this basis. This claim is likewise without merit. In Nelson v. State, 811 So.2d 761 (Fla. 4th DCA 2002), the Fourth District Court of Appeal held that the 10/20/life statute, section 775.087(2), Fla. Stat., is not on its face cruel or unusual. See also Olivo v. State, 823 So.2d 872 (Fla. 5th DCA 2002), holding that the 10/20/life statute does not violate the separation of powers provision of the Florida Constitution. We are likewise not persuaded by Morrow’s argument that his life prison sentence for possession of a firearm by a violent career criminal constitutes cruel or unusual punishment.

The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), pointed out that reviewing courts “should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” Similarly, in Hale v. State, 630 So.2d 521 (Fla.1993), the Florida Supreme Court noted that the length of a sentence actually imposed for violation of the criminal law is generally a matter of legislative prerogative.

Historically the Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution have protected individuals with respect to the method of punishment, not the length of a period of incarceration. See Harmelin v. Michigan, 501 U.S. 957, 979, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Hall v. State, 823 So.2d 757 (Fla.2002). Neither constitutional provision requires strict proportionality between crime and sentence. See Hall; cf. State v. Cotton, 769 So.2d 345 (Fla.2000). Instead, they prohibit only extreme sentences that are “grossly disproportionate” to the crime. See Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring). A criminal sentence may qualify as a cruel and unusual punishment if it, among other things, “involves the unnecessary and wanton infliction of pain,” Provenzano v. Moore, 744 So.2d 413, 415 (Fla.1999), or otherwise “shocks the conscience and sense of justice of the people,” United States v. Rosenberg, 195 F.2d 583, 608 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 21, 97 L.Ed. 652 (1952), based on “evolving standards of decency.” See Provenzano, 744 So.2d at 415; see also Duncan v. Moore, 754 So.2d 708 (Fla.2000). We do not believe that Morrow’s punishment meets these tests.

Our legislature is entitled to protect society against repeat criminal offenders. See Bynes v. State, 28 Fla. L. Weekly D1764, 2003 WL 21749434 (Fla. 4th DCA July 30, 2003). In the exercise of its prerogatives regarding sentencing it has chosen to afford that protection by enactment of the three strikes law. See Cotton. We cannot say that the punishment meted out to Morrow based on his violent criminal history and his commission of the firearms offense is grossly disproportionate, involves the unnecessary and wanton infliction of pain, or shocks the conscience and sense of justice. Accordingly, we conclude that his sentence is not violative of the constitutional proscriptions against cruel or unusual punishment. Morrow’s trial counsel was not required to object on this basis, and was, therefore, not ineffective.

AFFIRMED.

SHARP, W„ and GRIFFIN, JJ., concur.


author: TORPY, J.

text:
    Neville GLANVILLE, Errol Glanville, et al., Appellants, v. Robert GLANVILLE, Appellee.
    No. 5D02-2024.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Scott E. Siverson, Orlando, for Appellants.
    Kevin Knight, of deBeaubien, Knight, Simmons, Mantzaris & Neal, L.L.P., Orlando, for Appellee, Robert Glanville.
   TORPY, J.

After a jury trial, the lower court entered judgment that invalidated a quitclaim deed wherein Appellee and his late wife purportedly conveyed to Appellants a remainder interest in a parcel of property. The sole issue on appeal is whether the findings of the jury contained in the special verdict were sufficient to support the court’s conclusion that the deed must be declared invalid. We conclude that they were not and therefore reverse and remand for a new trial.

In May of 1989, Appellee and his late wife executed a quit-claim deed concerning a parcel of property located in Seminole County. The deed contained the signature of two witnesses and a notary. The deed reserved life estates in Appellee and his late wife and conveyed remainder estates to Appellants in varying percentages. In December of 2000, Appellee brought this action to obtain a declaratory judgment and to quiet title based on the alleged invalidity of the deed. In an amended complaint, Appellee alleged first that his signature on the deed was fraudulently procured by affirmative misrepresentations by his late wife, and second, that the deed was “void” because the witnesses and notary were not present when Appellee signed the deed. Appellants denied that the deed was procured by fraud and asserted as an affirmative defense that Ap-pellee’s challenge to the deed was time-barred pursuant to the limitations provisions of section 95.281, Florida Statutes (2001).

The case was tried by jury. The verdict form submitted to the jury, which was proposed by Appellee, was as follows:

VERDICT
We, the jury, return the following verdict:
1. Was the execution of the May 10, 1989, deed properly witnessed and acknowledge [sic]?
__YES _ NO
If you answer “YES”, proceed to answer Question No. 2. If you answer “NO”, please skip Question No. 2 and proceed to sign and date the Verdict form and return it to the Courtroom.
2. Was the execution of the May 10, 1989, deed procured by fraud or misrepresentation?
__YES _ NO
After answering Question No. 2, please sign and date the Verdict form. Verdict [sic] and return it to the Courtroom.
So say we all, this 19th day of MARCH, 2002.

(emphasis added).

Appellants objected to the verdict form because it failed to address their statute of limitations defense and permitted the jury to avoid answering the second question if the first question was answered in the negative. The lower court overruled Appellants’ objections. The jury returned a verdict answering the first question “no,” and, as instructed, failed to answer the second question. Based upon the verdict, the court entered judgment declaring that the deed was invalid. This appeal timely followed.

The issue on appeal is whether the jury’s finding that the deed was not properly witnessed and acknowledged, in and of itself, gives rise to the legal conclusion contained in the judgment that the deed must be invalidated, even in the face of Appellants’ assertion that the action is time-barred.

The applicable limitations statute, section 95.231, Florida Statutes, provides as follows:

(1) Five years after the recording of a deed or the probate of a will purporting to convey real property, from which it appears that the person owning the property attempted to convey or devise it, the deed or will shall be held to authorize the conveyance or devise of, or to convey or devise, the fee simple title to the real property, or any interest in it, of the person signing the instrument, as if there had been no lack of seal or seals, witness or witnesses, defect in acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending litigation. The instrument shall be admissible in evidence.
(2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.
(3) This law is cumulative to all laws on the subject matter.

(emphasis added).

Appellee acknowledges that the instant action was filed more than five years after the deed was recorded. Therefore, absent “fraud, adverse possession, or pending litigation,” the statute bars the claim. Earp & Shriver, Inc. v. Earp, 466 So.2d 1225 (Fla. 2d DCA 1985). Because the jury was not permitted to address the issue of whether fraud in the procurement of the deed occurred, there was no finding by the jury sufficient to overcome the statute of limitations defense. Under these circumstances, entry of judgment for Appellee was erroneous.

REVERSED and REMANDED.

PETERSON and PALMER, JJ., concur.

      . We have considered Appellee’s argument that, because the property is "homestead,” the deed is "void.” Relying on Reed v. Fain, 145 So.2d 858 (Fla.1962), Appellee argues that section 95.231 does not apply to a "void” deed. We decline to consider this argument, however, as it was not asserted in the Amended Complaint or Reply as a basis for voiding the deed or avoiding the defense. Moreover, the incomplete record before us does not support the accuracy of the factual assertion or that this legal issue was properly presented to the lower court. Therefore, we express no opinion on the viability of this theory.


author: FARMER, C.J.

text:
    Emil COLTEA, Appellant, v. Gabriela COLTEA, Appellee.
    No. 4D02-100.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.

      John M. Bernazzoli, Hollywood, for appellant.
    Lucinda Hofmann and Cathy A. Williams of Holland & Knight, LLP, Fort Lauderdale, for appellee.
   FARMER, C.J.

In this action for support unconnected with dissolution of marriage and for partition of real property, an agreed order allowed the sale of the marital home. Because of his prior refusals to pay support, the court also awarded her as lump sum alimony a share of his proceeds from the sale of the home. On appeal, he argues that the trial court erred in awarding lump sum alimony. We affirm and, in so doing, recede from recent precedent, explaining why the supreme court decision on which our recent precedent was founded is itself no longer viable.

The parties are Romanian nationals who married there in 1978. He practiced medicine; she did not work outside the home. They left Romania in 1994 and entered the United States. He was admitted under a work visa to study for a religious degree, which was awarded in 1996. He is now employed as the pastor of a church. She had a spouse’s visa that did not permit her to work. Three years ago, her visa was changed to allow her to study nursing but she still cannot work. She has never worked outside the home in the entire 25-year marriage and is barred by federal law from working now.

In 2000, she filed a petition for an injunction, alleging domestic violence. Meanwhile, he was charged with the crime, tried, found guilty, and placed on probation, adjudication withheld. Because she filed the civil action, he refused to support his family and made no mortgage payments after September 2000. He ignored a court order to make mortgage payments.

For reasons based on religion, neither of the parties sought a formal end of their marriage. She filed this action for support unconnected with dissolution of marriage. The court gave her exclusive possession of the marital home but their mortgage was in default. The mortgagee initiated foreclosure proceedings. She had to borrow more than $6,000 to bring the mortgage current. They agreed to a partition and sale to salvage their equity in the home. It was ultimately sold, with the proceeds awaiting disposition by the court.

In a final order, the court awarded her $300 per month in permanent periodic alimony, as well as $600 per month in child support. Because of his history of refusing to support his family, the court awarded her his share of the proceeds from the sale of the home, calling it lump sum alimony, in order to secure payment of the periodic support. This is the order we now review.

He relies on our decision in Hasslacher v. Hasslacher, 650 So.2d 166 (Fla. 4th DCA 1995), to attack the lump sum award. Hasslaeher held that the supreme court’s four-decades-old decision in Bredin v. Bredin, 89 So.2d 353, 356 (Fla.1956), controlled the issue. Bredin had held that lump sum alimony was not available in proceedings for support unconnected with divorce. Hasslaeher held that in proceedings for alimony unconnected with dissolution of marriage Bredin bars the court from awarding any lump sum alimony. The question is whether Bredin states current law.

In 1956 when Bredin was decided, alimony was payable only by husbands “primarily to provide food, clothing, habitation and other necessaries for the support of the wife.” [e.s.] 89 So.2d at 355. Until 1947, all alimony in divorce had to be paid in periodic installments, as there was no authority for lump sum awards. 89 So.2d at 355. While Bredin noted some equitable, judge-made authority for separate maintenance unconnected with divorce, the cases “clearly” required only periodic payments and did not allow lump sum alimony to a wife who did not ask for a divorce. 89 So.2d at 355.

In discussing the statute then existing, Bredin noted that while the 1955 text provided for alimony unconnected with divorce, it did not specify whether such alimony could be a lump sum. From this omission, the court concluded that only periodic alimony was statutorily authorized in proceedings in which divorce was not sought. Bredin explained:

“While a divorce decree brings about a termination and final disposition of the marriage relationship, a separate maintenance decree recognizes the continuation of the marriage relationship, the continuing right of the wife to participate in her husband’s estate on his death, as well as the possibility of a reconciliation that will end the necessity for the separate maintenance award.
“[W]e are of the view that the better holding is that in a separate maintenance proceeding the courts deal only with the incomes of the parties and should not divest either of the corpus of his estate. While it remains the duty of the husband to provide for the wife in a fashion consistent with her need and his financial ability, taking into consideration the station in life which the parties occupy, there appears to he no justification in a separate maintenance proceeding unconnected with divorce to divide up the husband’s assets and deliver a portion of them in hulk to the wife while simultaneously continuing the marriage relationship and leaving vested in her all of her rights as a wife in the husband’s remaining assets.” [e.s.]

89 So.2d at 356.

The lump sum alimony awarded in Bre-din was $200,000 — an enormous sum fifty years ago. In fact the husband challenged it as “exorbitant” but the court found it unnecessary to decide whether the amount was more than the law allowed because of its conclusion that lump sum was unavailable. The extent to which the size of the award affected the conclusion that lump sum was unavailable is impossible to know, but it is difficult to escape the suspicion that it played a role.

All decisional precedent must be understood within its historical context. One aspect of Bredin — apart from changes in the statutory text we shall presently elucidate — should signal doubts about any lasting validity. Marriages in Florida are no longer terminated by divorce. Today we deal with dissolution of marriage rather than divorce. Divorce was a fault based system for ending marriages. To prevail in a divorce, the wife had to show misconduct, or fault, by the husband. Outcomes in that fault based system were undoubtedly influenced by this essential fact — that someone was at fault, or responsible, for ending the marriage.

Bredin gave no thought to a much different application of that term that might be used today. Fifty years ago in a divorce, property rights were usually decided solely on who held title. Valentine v. Valentine, 45 So.2d 885 (Fla.1950) (holding that once marriage was ended by divorce and the proportionate share of each in the estate was fixed, appellant and appellee became tenants in common, and thereafter it was for them to determine whether the property should be partitioned or whether one should purchase the interest of the other). Jointly held property was divided between the parties, while property held in separate names was left untouched. Reid v. Reid, 68 So.2d 821 (Fla.1954). Moreover, when Bredin spoke in 1956 of lump sum alimony it was really concerned with property rights. Bredin held that the result of the trial court’s decision would have been to transfer part of the husband’s separate estate to his wife even though the parties were not divorcing and the marriage relationship would continue. The court reasoned:

“there appears to be no justification in a separate maintenance proceeding unconnected with divorce to divide up the husband’s assets and deliver a portion of them in bulk to the wife while simultaneously continuing the marriage relationship and leaving vested in her all of her rights as a wife in the husband’s remaining assets.”

89 So.2d at 355.

The anachronistic nature of the Bredin opinion is quite evident in its fear of a wife being vested with “all of her rights as a wife” in her “husband’s remaining assets.” How much these “gender-role” perceptions affected the essential holding in Bredin is unknowable, but surely they played a part.

Today the statute does not speak of husbands or wives, only of spouses. Alimony is no longer limited to wives, and adultery is no longer a bar to entitlement. Hasslacher failed to consider the historical context of precedent on which it relied. Bredin was based on the former statutory law of divorce, and the Legislature had since abandoned the entire construct of divorce. In its place the Legislature has adopted no-fault dissolution of marriage in this state. Unlike divorce, no-fault dissolution does not focus on the conduct of the parties that led their marriage to fail.

Apart from these changes in the legal landscape, it is apparent that Hasslacher also failed to consider whether the term lump sum alimony meant the same thing today as it meant to the Bredin court. Bredin’s holding in 1956 was then the prevalent understanding of the use of lump sum alimony. It is, however, certainly not what the trial court had in mind in the present case or the only meaning that might be employed today.

The particular usage of lump sum alimony employed in the present case- — as security for the payment of support — was not to adjudicate property rights at all. Lump sum alimony was intended to secure the payment of support by a spouse/parent with a history of refusing to pay such support. There is no hint in Bredin in 1956 that the meaning of lump sum alimony used by the trial judge in this case was ever considered.

We also note that the 1955 text of what is now section 61.09 was changed in 1965 in a significant respect. Whereas the 1955 text had stated that “the court shall have power to grant such temporary and permanent alimony...as the circumstances of the parties may render just,” in 1965 the Legislature changed that formulation to:

“the court shall have power to grant such temporary and permanent alimony, support, suit money...as the circumstances of the parties may render just, and to make such other orders as may be necessary to secure to her such maintenance or contribution....”

Although dissolution of marriage replaced divorce in 1971, the 1965 text of section 61.09 remained unchanged until 1986, when the text was again reformulated to its current version: “the court shall enter such order as it deems just and proper.” If anything in the current statute excludes lump sum alimony in eases where dissolution is not being sought, it would have to be found in those words or in the absence of different words. But as we shall show, recent supreme court precedent makes clear that in the absence of statutory rules, chapter 61 should not be read as a basis to apply judge-made rules defeating the Chapter’s utility in requiring spouses to support their families. In this regard, chapter 61 should be construed to bestow discretion on trial judges to fashion equitable decisions designed to achieve that end.

The focal point under the dissolution of marriage statute is to make provision for the support of children and a needy spouse while also equitably dividing marital property. A division of marital property does not necessarily turn on how title is held. Issues of alimony turn less on the form and more on the peculiar need of the requesting spouse and the ability of the other spouse to pay it, all within the recognized processes of traditional equity jurisprudence.

If we were to limit our consideration of the matter of securing payment of support solely to the body of property law, we would recognize the rule that ordinarily one co-tenant may recover only the other co-tenant’s share of mortgage payments she has actually advanced. See, e.g., Power v. Power, 387 So.2d 546 (Fla. 5th DCA 1980); Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979). And it is true that this property law rule is sometimes used in family law cases, as where one parent is granted primary residential custody of minor children. In family law, however, issues of support are rarely governed solely by the rules of property law. Where the issue comprehends more than mere compensation of a co-tenant for advancing funds to save the parties’ joint interest in property, where the court is also fashioning security for support of a spouse and children, however, the one-half limitation of the property law reimbursement rule may be inequitable and thus inadvisable in a proceeding under chapter 61.

We emphasize that the granting of equitable relief is rarely mechanical and is usually subject to principles and standards. Equitable discretion is not unlimited or open-ended, a wooden application of ancient maxims. Equity is often under the influence of legal rules. See Schwartz v. Zaconick, 68 So.2d 173, 175 (Fla.1953) (“Equity, although not as inflexible as the law, is nevertheless administered within established limits and upon recognized principles.”); August Tobler, Inc. v. Goolsby, 67 So.2d 537, 539 (Fla.1953) (“the equities here are equal and ... consequently the maxim ‘Equity follows the lauf is applicable.”); Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916) (equity will not apply doctrine of equitable subrogation where it would deprive party of legal right). In cases arising under chapter 61, however, on many issues the Legislature has chosen to delegate specific discretion to trial judges to fashion an outcome tailored to the facts and circumstances of each case, largely eschewing thereby the use of inflexible rules. This is especially true with regard to matters of support of minor children and needy spouses, the subject of this use of lump sum alimony we confront in today’s case.

Whatever may have been the understanding of relations between married people and their “roles” in 1956 when Bredin was decided, in this the first decade of the 21st century these perceptions are not the same. Proceedings under chapter 61 are now recognized as primarily equitable in nature. When specific statutory rules are lacking, chapter 61 reposes discretion in the trial court to achieve the purposes and aims of the statutes. In the words of the supreme court:

“proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings. See, e.g., § 61.001, Fla. Stat. (1995). Thus, section 61.16 should be liberally — not restrictively — construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” [c.o.]

Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997); see also Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980) (“In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure ‘equity and justice between the parties.’ ”).

Rosen teaches that in fashioning an equitable remedy, a legal rule should not unreasonably restrain a trial court unless the statute makes such a rule applicable. Alimony unconnected with dissolution of marriage is a proceeding under chapter 61. § 61.09, Fla. Stat. (2001). In eases where support is sought without dissolution of marriage, the statute does not prohibit this use of lump sum alimony but instead allows the court to tailor the remedy to the facts and circumstances. See § 61.09 (“the court shall enter an order as it deems just and proper.”); see also § 61.08(2) (“[In awarding alimony generally] [t]he court may consider any other factor necessary to do equity and justice between the parties”).

Both Bredin and Hasslacher seem to proceed on the basis that in a case eschewing dissolution, the issue is governed by a legal rule — under no circumstances may lump sum alimony be utilized unless dissolution is also sought. That is contrary to the current statute. The facts of this case offer a strong justification for employing the equitable tool of lump sum alimony to secure payment of support. He has a history of refusing to support his family. The circumstances of the family are such that any refusal of support threatens to have severe consequences. To follow Bre-din would be to construe chapter 61 restrictively, rather than “liberally to allow consideration of any factor necessary to ensure equity between the parties.” It would be, in short, to set aside the more recent expressions of the highest court as to the meaning of chapter 61 text in favor of a half-century old understanding of the former divorce law. That would also perpetuate an understanding of societal roles quite at odds with current perceptions of relations between the sexes and the duties and obligations of marital parties.

We think Hasslacher was wrongly decided and does not state a current understanding of the statute in question. We also conclude that the holding in Bredin was made inapplicable by the abandonment of the system of divorce in favor of dissolution of marriage and the changes in the statutory text we have described or to which we have alluded. We therefore recede from Hasslacher.

If we are wrong in this, our decision today will be in conflict with Bredin, and the supreme court will have jurisdiction to point us in the right direction. If we are correct, however, further review will be unwarranted and these parties will be spared the time and unnecessary diminution of their limited assets such additional review would entail.

On the basis of the foregoing, we affirm the final order.

GUNTHER, STONE, WARNER, POLEN, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR and MAY, JJ., concur.

HAZOURI, J., recused.

      . The statute considered by Bredin in 1956 provided as follows:
      "If any of the causes of divorce set forth in § 65.04 shall exist in favor of the wife, and she be living apart from her husband, she may obtain alimony without seeking a divorce upon bill filed and suit prosecuted as in other chancery causes; and the court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just; hut no alimony shall be granted to an adulterous wife.” [e.s.]
      § 61.09, Fla. Stat. (1955).

      . Because this case involves no claim to adjudicate property rights with lump sum alimony in a proceeding for support unconnected with dissolution, we have no occasion to consider whether Bredin’s essential holding about property rights is still valid. Whether there are circumstances in which some kind of property division might be permitted in this kind of case we leave for another day in which the issue is directly raised.

      . See Ch. 71-241, Laws of Fla.

      . The supreme court has thereafter never been called upon to decide specifically whether this current text discards the Bredin holding and authorizes lump sum alimony in proceedings where a termination of the marriage is not being sought.

      . In fact, equitable division of marital property did not become the law of this state until the supreme court adopted it in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

      . The panel in Hasslacher did not have the benefit of Rosen, which was decided after-wards.


author: THOMPSON, J. TORPY, J.,

text:
    Robert MOTOR & Sandra Motor, etc., Appellant, v. CITRUS COUNTY SCHOOL BOARD, Appellee.
    No. 5D02-1568.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    Mark D. Rodriguez of Kovach, Kovach & Rodriguez, P.A., Inverness, for Appellant.

      Charles Tyler Cone of Fowler, White, Boggs, Banker, P.A., Tampa, for Appellee.
   THOMPSON, J.

Robert and Sandra Motor sued the Citrus County School Board, on behalf of their son, Alexander, alleging that as a result of the school board’s negligence, four-year-old Alexander was injured while playing in a school playground. The Motors appeal the final summary judgment in favor of the school board. We affirm.

Under section 768.28, Florida Statutes (2001), a person who sues a county or other state “agency” must give written notice of the claim to the agency and to the Department of Insurance within three years after the claim accrues. See, e.g., Levine v. Dade County School Board, 442 So.2d 210, 212-13 (Fla.1983) (holding that the complaint against the school board was properly dismissed because the plaintiff failed to provide written notice of the claim to the insurance department as required by section 768.28). After the accident, counsel for the Motors had ongoing written communications about the accident with the school board and its self-insurance administrator, but did not notify the insurance department of the claim.

The Motors eventually sued the school board, but did not allege that they had notified the insurance department of their claim. The school board promptly answered the complaint and asserted as an affirmative defense:

[T]he Defendant invokes all protections and defenses available under § 768.28, Fla. Stat., including but not limited to the statutory cap of damages and that the Plaintiffs claim is barred or limited because they have failed to comply with all conditions precedent to § 768.28, Fla. Stat.

At that point, there remained about three months of the three-year time limit for giving the notice.

There were no further filings until approximately ten months later when the school board moved for summary judgment on the ground that the Motors had not notified the insurance department of the claim. At about the same time the school board filed the motion, it asked the Motors to produce all of their correspondence with the school board and the insurance department. Three months after that, the school board filed the production, which included no correspondence between the Motors and the insurance department, in support of the school board’s motion for summary judgment. In addition, the school board filed the affidavit of an administrator in the insurance department, who stated that the department had not received a notice of claim from the Motors. On appeal, the Motors argue that the school board waived or is estopped from asserting the defense.

In Menendez v. North Broward Hospital District, 537 So.2d 89 (Fla.1988), the supreme court explained that notice to the insurance department is an essential element of the cause of action. Id. at 91. A complaint that does not allege departmental notice fails to state a cause of action. Id. The court further explained:

As such, the right to raise this defense is controlled by Florida Rule of Civil Procedure 1.140(h)(2) which provides that:
The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised in either a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.

Id. In Menendez, although the defendant did not move for dismissal until four years after the action was filed, and participated in mediation and settlement negotiations, the supreme court held that neither waiver nor estoppel applied to the defendant. Although this may not seem fair, “[a]ll parties are equally charged with knowing the law in Florida and recognizing whether a claim has been properly pleaded.” Schopler v. Smilovits, 689 So.2d 1189 (Fla. 4th DCA 1997). Based on Menendez, then, and because it is too late for the Motors to cure the defect in the complaint, the final judgment in favor of the school board is affirmed.

AFFIRMED.

PALMER, J., concurs.

TORPY, J., concurs, specially with opinion.

TORPY, J.,

concurring specially.

I concur with the majority opinion but write to address a pleading issue. In my view, the “affirmative defense” quoted by the majority is of no consequence here because it is not properly pled with the requisite specificity. Rule 1.120(c), Florida Rules of Civil Procedure, requires that “denial of performance or occurrence [of conditions precedent] shall be made specifically and with particularity.” However, because Appellants never pled that they complied with conditions precedent, Appel-lee was under no duty to make a denial. The quoted “affirmative defense” language, therefore, is superfluous.

The notice requirement set forth in section 768.28(6), Florida Statutes (2002), by definition, is a condition precedent to maintaining a suit against a governmental entity. McSwain v. Dussia, II, 499 So.2d 868, 869 (Fla. 1st DCA 1987). Therefore, a plaintiff must plead compliance with the statute. Ashley v. Lamar, 468 So.2d 438 (Fla. 5th DCA 1985). Under rule 1.120(c), a plaintiff may allege compliance by making a general averment, at which time the burden shifts to the defendant to deny compliance with “specificity” and “particularity.” Id. at 434. Gardner v. Broward County, 631 So.2d 319 (Fla. 4th DCA 1994).

Here, Appellant never pled compliance with conditions precedent and, therefore, Appellant’s complaint failed to state a cause of action. Menendez v. N. Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988). Because of this omission, the burden never shifted to Appellee to deny that the condition had occurred. The fact that the denial is not specific and particular is of no import as the denial itself is surplusage. Thus, no procedural impediment existed that precluded the court from addressing the merits of Appellee’s argument.

      . Section 1903 of Chapter 03-261, Laws of Florida, amended the statute to require that the notice be sent to the Department of Financial Services.

      . The denial of the occurrence of conditions precedent is not an "affirmative defense,” which relates only to matters of “avoidance.” Fla. R.Civ. P. 1.110(d). Rather, it is a special form of denial that must be pled with specificity. Fla. R.Civ. P. 1.120(c).


text:
    Frankie Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3080.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.

      Frankie Lee Johnson, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978).

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Calvin D. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2950.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    Calvin D. Ford, Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Spencer v. State, 842 So.2d 52 (Fla.2003); Vining v. State, 827 So.2d 201 (Fla.2002); George v. State, 764 So.2d 905 (Fla. 5th DCA 2000), case dismissed, 837 So.2d 409 (Fla.2003).

SHARP, W., GRIFFIN and PALMER, JJ., concur.


text:
    Donald REDPATH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2904.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    Donald Redpath, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 845 So.2d 55, 64-65 (Fla.2003); Mounds v. State, 849 So.2d 1170 (Fla. 4th DCA 2003); Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003); Szymanowski v. State, 771 So.2d 10 (Fla. 4th DCA 2000).

SHARP, W„ GRIFFIN and MONACO, JJ., concur.


text:
    Francesca HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-805.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Michael J. YOUNG Appellant, v. STATE of Florida, Appellee.
    No. 5D03-782.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Jeffrey ZAVETA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-593.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

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


text:
    STATE of Florida, Appellant, v. Stanley L. WILLIAMSON, Appellee.
    No. 5D03-456.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Cummings, 748 So.2d 388 (Fla. 5th DCA 2000).

SHARP, W., GRIFFIN and TORPY, JJ., concur.


author: HAZOURI, J.

text:
    EVERETT PAINTING COMPANY, INC., a Florida corporation, Appellant, v. PADULA & WADSWORTH CONSTRUCTION, INC., a Florida corporation, and Travelers Insurance Company, a foreign corporation, Appellees.
    No. 4D02-4221.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.

      Steven M. Rosen of Law Offices of Steven M. Rosen, Miami, for appellant.
    James B. Boone, Sunrise, for appellees.
   HAZOURI, J.

In December 1997, Everett Painting Company, Inc. (Everett Painting), entered into a written Subcontract Agreement with Padula & Wadsworth Construction, Inc. (Contractor), to perform painting services on a project identified as “Driftwood Middle School.” The project constituted a public project pursuant to section 255.05, Florida Statutes (1997), and under the terms of the statute, Contractor was required to secure both a payment and performance bond on the project. The bond was obtained from Travelers Insurance Company (Surety).

Everett Painting filed suit against Contractor and Surety alleging that it was owed a total of $80,455.50. This amount was broken down into three separate claims: 1) $11,471.50 retainage under the contract amount, 2) change orders totaling $3,916, and 3) a composite of six claims totaling $65,068, which result from additional costs that Everett Painting alleged it incurred due to delay or additional work required to patch or re-paint areas that were damaged by the negligence of other trades. The trial court entered a Summary Final Judgment in favor of Contractor and Surety on the retainage claim based on its determination that the “pay-when-paid” provision in the contract barred Everett Painting’s claim for the retainage because at the time of suit Contractor had not yet received final payment from the owner. The trial court also granted a Summary Final Judgment on Everett Painting’s other claims based upon other contract provisions.

The standard of review when reviewing the entry of summary judgment is de novo. See Volusia, County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Id. If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. See Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002), review denied, 842 So.2d 843 (Fla.2003).

We affirm in part and reverse in part. We hold that as a matter of law only Contractor was entitled to a judgment in its favor with respect to the claim for the retainage of the contract amount. The trial court should have allowed Everett Painting to pursue its claim against Surety. With respect to the claim for unpaid change orders, we hold that as a matter of law Contractor and Surety were entitled to a judgment in their favor. And, finally, with respect to the claim for additional costs incurred, we hold that the trial court erred in entering a summary final judgment in favor of Contractor and Surety. In the discussion that follows we will address each of Everett Painting’s claims separately.

Everett Painting alleges that it is owed $11,471.50 as the retainage of the payment due under the contract. Contractor argues that this claim is barred by the “pay-when-paid” provision in the contract which states that final payment from the owner is a condition precedent to Contractor’s obligation to make final payment to Everett Painting. At the time of the suit, Contractor had not yet received final payment from the owner. Therefore, under the terms of the contract, Everett Painting is not entitled to this amount until Contractor receives final payment from the owner. We hold that the provision in the contract is clear and unambiguous and therefore binding on the parties. As a matter of law, Contractor is entitled to judgment in its favor on this claim.

However, this contract provision is not a defense that is available to Surety. A payment bond is a separate agreement from the contract and an inability to proceed against Contractor does not necessarily prevent recovery on the bond. See OBS Co. v. Pace Constr. Corp., 558 So.2d 404, 407 (Fla.1990). Under section 713.245, Florida Statutes (1997), a surety may limit its liability by including conditional payment language in the bond, if the contract between the contractor and a subcontractor includes a similar limitation. This is referred to as a “conditional payment bond.” In order to create a conditional payment bond, the surety must include specific language that is identified in section 713.245. However, the record reflects that the bond agreement was never submitted to the trial court for review. Therefore, we do not know if Surety included the necessary language under 713.245 in order to create a conditional payment bond.

However, even if it did contain the language in section 713.245, Surety did not have the ability to create a conditional payment bond because the bond in the instant case was issued pursuant to section 255.05 and there are no provisions in section 255.05 similar to those in section 713.245. The purpose of section 255.05 is to protect subcontractors and suppliers by providing them with an alternative remedy to mechanic’s liens on public projects. See Palm Beach County v. Trinity Indus., Inc., 661 So.2d 942, 944 (Fla. 4th DCA 1995).

Everett Painting’s second claim is for unpaid change orders in the amount of $3,916.00. Contractor argues that it is entitled to prevail on this claim as a matter of law due to a provision in the contract which states that no changes are valid except upon written order from Contractor. The party moving for summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Once the moving party meets its burden, then the party opposing entry of a summary judgment must prove the existence of genuine triable issues. See First N. Am. Nat’l Bank v. Hummel, 825 So.2d 502, 503 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). In an affidavit supporting its Motion for Summary Judgment, Contractor stated, “Plaintiff has been paid for all change orders that were agreed to and signed by Defendant P & W. There are no other change orders that have been agreed to or signed by Defendant P & W.” This satisfied Contractor’s burden. Everett Painting then had a burden to produce something to refute this statement. Everett Painting was unable to produce any written documents signed by Contractor authorizing the change orders alleged. The documents submitted by Everett Painting are not sufficient to support their burden of establishing that there is a genuine triable issue. Therefore, Contractor and Surety are entitled to prevail on this claim as a matter of law.

Everett Painting’s final claim is a composite of six claims totaling $65,068.00. Three of these claims (Claims 1, 3, and 5) arise from additional costs Everett Painting alleges it incurred to repaint or patch areas that were damaged by the negligence of other trades. Contractor argues that these claims are barred by a provision in the “Specifications,” a document incorporated into the contract. The Specifications provide a description of the scope of work to be performed by Everett Painting under the contract. It includes the following requirement: “At completion of work of other trades, touch-up and restore all damaged or defaced painted surfaces. Contractor argues that Claims 1, 3, and 5 were for work that Everett Painting was required to perform under the terms of the Specifications and therefore Everett Painting is not entitled to any additional compensation. However, Everett Painting argues that the claims are for work that it performed that was above and beyond the “touch-up” work contemplated by the Specifications.

Contractor, as the moving party, had a burden to conclusively demonstrate that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. It failed to meet its burden. The affidavits filed in support of the Motion for Summary Judgment do not include any statements relating to these claims or the scope of work performed by Everett Painting. Contractor has failed to produce any evidence establishing that the work that was the basis for these claims fell within the language of the Specifications. Therefore, we hold that the entry of a Summary Final Judgment on these claims was error.

The remaining three claims (Claims 2, 4, and 6) arise from additional costs Everett Painting alleges it incurred due to delay on the project. Contractor asserts that these claims are barred by a provision in the contract which states that Everett Painting is entitled to damages for delay only to the extent that Contractor is entitled to compensation for such delays from the owner, and only to the extent that Contractor actually receives compensation from the owner. In the Supplemental Affidavit filed by Contractor in support of its Motion for Summary Judgment, the affiant states: “Defendant P & W is not entitled to delay damages pursuant to its contract with the School Board of Broward County, nor has it ever made a claim for delay damages. Defendant P & W has not received any sums from the School Board of Broward County for delay damages. This Affidavit satisfied Contractor’s burden. Everett Painting produced three documents to refute this statement. These documents appear to create a genuine issue of disputed material fact regarding whether Contractor is entitled to any delay damages from the owner. Therefore, the entry of a Summary Final Judgment on these claims was error.

We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

STONE and WARNER, JJ., concur.

      . After Everett Painting filed suit, Contractor made a payment to Everett Painting in partial reduction of its claim. Everett Painting signed a Partial Release of Lien to reflect the payment made.

      . Section 713.245, states that the front page of the bond must contain the following statement in at least 10-point type:
      THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN ON THIS PROJECT.


author: THOMPSON, J.

text:
    XL VISION, LLC., et al., Appellant, v. Dan R. HOLLOWAY, Appellee.
    No. 5D02-2809.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.

      Kenneth C. Crooks of Dean, Mead, et al., Melbourne, for Appellant.
    Stewart B. Capps of Stewart B. Capps, PA., Indialantic, for Appellee.
   THOMPSON, J.

VennWorks, LLC, and Robert Bertoldi appeal an order denying their motion to dismiss for lack of personal jurisdiction. We affirm.

In 2000, appellee Dan R. Holloway and XL Vision Incorporated entered an “at will” employment agreement under which XL Vision Incorporated would pay Holloway a salary and benefits including moving expenses, stock incentives, and bonuses. The contract was the letter offering Holloway the job of director of employee relations, and Holloway accepted the offer by signing the letter. The letter was signed by David J. Illingsworth, President and Chief Operating Officer, and Holloway signed the letter in agreement.

About a year later, Holloway received another letter from Illingsworth on the same letterhead. This letter informed Holloway that negotiations were under way for the transfer of XL Vision Incorporated’s assets to XL Vision Limited Liability Company, a wholly owned subsidiary of VennWorks, and that if he resigned his position with XL Vision Incorporated, he would be hired under substantially the same terms by XL Vision Limited Liability Company. According to the letter, XL Vision Limited Liability Company would have the benefit of the 2000 agreement with respect to Holloway’s non-compete agreement and certain stock grants. Under the proposed 2001 agreement, certain stock grants, held in the name of XL Vision Incorporated would be transferred to VennWorks, and VennWorks would assume XL Vision Incorporated’s obligations under the stock grants. Holloway indicated his agreement by signing the letter. XL Vision Limited Liability Company’s agreement was made “by” VennWorks as the sole member of XL Vision Limited Liability Company. VennWorks’s agreement was made “by” Robert Bertoldi, President.

Only a few months later, Holloway was terminated, according to his complaint, and he sued Bertoldi, VennWorks, and XL Vision Limited Liability Company for $121,650.00, which he claimed was still owed for his moving expenses, the balance of his bonus, and the balance of his severance package. XL Vision Limited Liability Company moved to dismiss for improper venue because its office was in Indian River County and not in Brevard County, where Holloway sued. This motion was eventually withdrawn. VennWorks and Bertoldi moved to dismiss for lack of personal jurisdiction based on Bertoldi’s affidavit stating that he was a New York resident who did not own property in Florida, that he had not conducted business individually in Florida, that VennWorks was a Delaware limited liability company which did not conduct business in Florida, that VennWorks’s sole connection to Florida was through its subsidiary, XL Vision Limited Liability Company, and that Ber-toldi’s sole connection to Florida was that he signed the 2001 letter to Holloway on behalf of VennWorks. The court reserved ruling on the motion to dismiss and allowed Holloway to amend his complaint.

The amended complaint added a count for fraud based on alleged oral misrepresentations by VennWorks and Bertoldi that VennWorks would provide funds to cover the obligations owed Holloway by XL Vision Limited Liability Company. The complaint also alleged that XL Vision Limited Liability Company was the alter ego of VennWorks and Bertoldi. Relying on Bertoldi’s previously submitted affidavit, VennWorks and Bertoldi again moved to dismiss the complaint on jurisdictional grounds. The court denied the motion, and VennWorks and Bertoldi appeal, contending that the court erred in failing to hold an evidentiary hearing to resolve discrepancies between the jurisdictional allegations of the verified amended complaint and Bertoldi’s affidavit. We affirm because there were no discrepancies between the complaint and the affidavit.

Determining whether there is personal jurisdiction is a two-part inquiry. Hartcourt Companies, Inc. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002). First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of section 48.193, Florida Statutes, Florida’s long-arm statute. Id. (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). If the allegations are within the ambit of the statute, it must then be determined whether the exercise of jurisdiction is consistent with due process. Id. (citing Venetian Salami, 554 So.2d at 502). The exercise of personal jurisdiction comports with due process if the defendant purposefully established “minimum contacts” in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Holloway’s complaint alleges that the three defendants owe him money pursuant to a contract, that the money was to be paid to him in Florida after he established a household in Florida, and that the payment was for work he was to perform and did perform in Florida. Furthermore, the complaint alleges that Bertoldi and VennWorks fraudulently induced Holloway to resign from XL Vision Incorporated and to enter the contract with XL Vision Limited Liability Company for work Holloway was to perform and did perform in Florida. These allegations are sufficient for personal jurisdiction under the long-arm statute. See Hartcourt Companies, 817 So.2d at 1071 (“Under section 48.193(l)(g), a person submits himself to the jurisdiction of this state by ‘[bjreaching a contract in this state by failing to perform acts required by the contract to be performed in this state’ ”); see also § 48.193(l)(a), Fla. Stat. (a person subjects himself to the jurisdiction of this state by, personally or through an agent, operating, conducting, engaging in, or carrying on a business or business venture in this state). In addition, the allegations show the constitutionally required minimum contacts: the agreement was not an isolated transaction, but was for ongoing services by Holloway in Florida, the agreement gave rise to ongoing relations between the parties, XL Vision Limited Liability Company solicited Holloway’s employment, and the agreement focused on and had future consequences in Florida. Compare Hartcourt Companies, 817 So.2d at 1067.

When the facts relating to personal jurisdiction are in dispute, the trial court must hold a limited evidentiary hearing to decide the jurisdiction issue. Venetian Salami, 554 So.2d at 503. Here, the verified, amended complaint alleges that VennWorks and Bertoldi are liable under the contract because XL Vision Limited Liability Company was their alter ego or instrumentality.

The corporate veil may be pierced if the plaintiff can prove “both that the corporation is a ‘mere instrumentality’ or alter ego of the defendant, and that the defendant engaged in ‘improper conduct’ in the formation or use of the corporation.” Bellairs v. Mohrmann, 716 So.2d 320, 323 (Fla. 2d DCA 1998) (emphasis supplied)(citing Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120-21 (Fla.1984)).

Merkin v. PCA Health Plans of Florida, Inc., 855 So.2d 137 (Fla. 3d DCA 2003).

In the verified amended complaint, Holloway alleges that Bertoldi and Venn-Works formed, operated, and manipulated XL Vision Limited Liability Company to defraud creditors, that they commingled funds, that they failed to maintain other corporate formalities, that VennWorks directly paid for liabilities such as salaries or expenses incurred by XL Vision Limited Liability Company, and that XL Vision Limited Liability Company was run by VennWorks for the benefit of VennWorks and Bertoldi. Bertoldi and VennWorks are correct in arguing that they could rely on the affidavit submitted in opposition to the original complaint, Bellairs, 716 So.2d at 322, but the statements in the affidavit do not conflict with the verified allegations in the complaint. The complaint does not allege that VennWorks or Bertoldi directly ran a business in Florida, which is what Bertoldi’s affidavit denies, but that they ran a business in Florida through their alter ego, XL Vision Limited Liability Company. Because the affidavit does not dispute the jurisdictional facts alleged in the complaint, the trial court was not required to hold an evidentiary hearing. See Merkin, 855 So.2d 137 (a defendant wishing to contest the jurisdictional allegations of the complaint must file an affidavit specifically addressing the allegations).

Finally, Bertoldi argues that the court lacked jurisdiction under Doe v. Thompson, 620 So.2d 1004 (Fla.1993). In Doe, the court applied the “corporate shield” doctrine and held that acts of a corporate employee performed in a corporate capacity do not form the basis for jurisdiction over the corporate employee in an individual capacity. The court also stated, however, that a corporate officer committing fraud or other intentional misconduct can be subject to personal jurisdiction. Id. at n. 1.

AFFIRMED.

PALMER and TORPY, JJ., concur.


author: GREEN, J.

text:
    HARBOR BAY CONDOMINIUMS, INC., Appellant, v. Fabian BASABE & May Basabe, and Bank One National Association f/k/a the First National Bank of Chicago, Appellees.
    No. 3D03-1147.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Frank Wolland, for appellant.

      Allison & Robertson, P.A. and John R. Allison, III, Miami, for appellee.
    Before COPE, GREEN, and FLETCHER, JJ.
   GREEN, J.

Harbor Bay Condominiums, Inc. (“Harbor Bay”) appeals a post-judgment order which denied its motion for reinstatement and to amend summary final judgment. For the following reasons, we affirm.

Bank One National Association (“Bank One”) filed a foreclosure action against a condominium unit owned by Fabian and May Anne Basabe, claiming past due mortgage payments. Harbor Bay was also named as a defendant. Harbor Bay cross-claimed the Basabes, seeking past due association fees, costs, and attorney’s fees.

On August 19, 2002, summary final judgment was entered in favor of Bank One and Harbor Bay. Specifically, as to Harbor Bay’s cross-claim, the summary final judgment provides:

4. ATTORNEY’S FEES
* * *
b. The Declaration of Condominium and Florida Statute 718 provides for Crossclaimant’s attorneys fees. Crossclaimant has retained an attorney and the Court finds that 27.20 hours have reasonably been expended by crossclaimant as set forth on said attorney’s Affidavit. Further, Cross-claimant’s counsel has filed a supporting attorneys fee Affidavit by an independent attorney. The hourly fee of $175.00 is a reasonable hourly fee. Below is a total fee awarded pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).
5. DAMAGES:
b. There is now due and owing to Crossclaimant Harbour Bay Condominium, Inc. under the Declaration of Condominium and Condominium claim of hen sued upon herein the following sums of money to wit.
1) Regular monthly assessments (25 months @ $638.71 per month from 8/1/00 through 8/1/02 $15,967.75
2) Special assessments of 4/5/01 $ 609.00
3) Special assessment of 1/10/02 $ 9,466.95
4) Late fees (28 @ $25.00 ea.) $ 650.00
5) Cost of recording Claim of Lien $ 12.00
6) Costs (Deposition of Fabian Basabe) $ 225.00
TOTAL DUE $26,929.70

The damage section of the judgment, as shown above, did not delineate the determined $4,760 in attorney’s fees or include them in the total due. Nor did the judgment reserve jurisdiction for the purpose of assessing such fees.

A foreclosure sale date for the condominium was set for October 4, 2002. On October 3, 2002, the Basabes requested a redemption figure as to Harbor Bay, which the clerk of circuit court gave as $26,929.70, the total amount recited in the final judgment. Basabe paid the sum requested by the clerk and, pursuant to Florida Statute 45.0315, timely redeemed the property. A check from the clerk of court was issued to Harbor Bay this same day.

On October 10, 2002, a week following redemption, Harbor Bay served its motion to amend summary final judgment of foreclosure, seeking to amend the judgment to include $4,760 in attorney’s fees or, alternatively, for the entry of a supplemental judgment of foreclosure entered in the same amount.

The trial court denied Harbor Bay’s motion finding that:

Pursuant to Florida Statute 45.0815, Fabian Basabe exercised his redemption rights before the Clerk’s filing of Certificate of Sale by paying the amount of money specified in the Judgment, therefore properly exercising his right of redemption under the statute. It is undisputed that attorneys fees and costs were not included in the Final Judgment, however Basabe should not be prevented from exercising his redemption rights due to Harbour Bay Condominium’s failure to include the fees and costs in the Judgment, whether such failure was either by mistake or intentional. See Bee Bee Medical Center Inc., v. Strategic Consulting and Managing, Inc., 677 So.2d 84 (Fla. 2d DCA 1996). Finding the denial of Harbor Bay’s motion proper, we affirm.

A trial court does not retain the authority to amend or modify a final judgment, absent a rule or statute providing otherwise. See Frumkes v. Frumkes, 328 So.2d 34, 35 (Fla. 3d DCA 1976) (“The court retains the power to modify by subsequent order the time and manner of the enforcement of a final judgment after it becomes final, but it does not retain the power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment.”). In this case, Harbor Bay could have moved under rule 1.525 and/or 1.530, for an amendment of the final judgment. Rule 1.530, however, provides that “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment[.]” Fla. R. Civ. P. 1.530(g) (2001); whereas rule 1.525 would have given Harbor Bay thirty days following the filing of the summary final judgment to file a motion for attorney’s fees. Fla. R. Civ. P. 1.525 (2001). Here, Harbor Bay’s motion was served more than fifty (50) days after the entry of the summary final judgment. It was therefore untimely. The Florida Supreme Court has held that:

motions and petitions for correction of error by the trial court must be made within the time prescribed by rule or statute.... Unless a proper motion or petition is filed within the allotted time the order becomes absolute and except as provided by the rules ... the trial court has no authority to alter, modify or vacate the substance of the order.

Kippy Corp. v. Colburn, 177 So.2d 193, 196-97 (Fla.1965).

The trial court in this case was without jurisdiction to amend and/or reinstate the final judgment, and therefore denial of Harbor Bay’s motion was proper. See Oyer v. Boyer, 383 So.2d 717, 718 (Fla. 4th DCA 1980) (“[t]he question of jurisdiction is absolute and the cases so holding are too numerous to require citation. In the case now before us, no petition for rehearing was filed within the time allowed under the rules. This being so, the trial court was also powerless to make the [attorney’s fee] award.”). Accordingly, we affirm. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999) (holding that ruling of trial court will be upheld if the court reached right result but for wrong reason).

Affirmed.

      . This statute provides:
      Right of redemption. — At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.
      § 45.0315, Fla. Stat. (2002).

      . After the filing of Harbor Bay’s motion to amend summary final judgment, Fabian Bas-abe filed a bankruptcy action and the trial court abated Harbor Bay’s motion. On March 7, 2003, Harbor Bay filed a motion to reinstate this action.

      . This rule provides:
      Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

      .At oral argument, Harbor Bay claimed that the court had jurisdiction to amend the judgment under Florida Rule of Civil Procedure 1.540. This claim was not raised at the trial level or briefed for appellate review. Thus, we refuse to entertain this new, alternative argument. See Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981)(holding that appellate court will not consider issue not presented to trial judge on appeal from final judgment).


author: PALMER, J.

text:
    DELCO OIL, INC., et al., Appellant, v. Harjinder PANNU, Appellee.
    No. 5D02-2884.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      Darren J. Elkind of Paul & Elkind, P.A., Deltona, for Appellant.
    Kim C. Booker of Booker & Associates, P.A., Orange City, for Appellee.
   PALMER, J.

Delco Oil, Inc. (Delco) appeals the trial court’s final order entering judgment in favor of appellee, Harjinder Pannu, on Pannu’s claims of breach of contract. Concluding that the trial court erred in ruling that the statute of limitations had not run on one of Pannu’s breach of contract claims, we reverse as to that ruling. As for all of Delco’s other claims of error, we reject them as meritless.

Pannu executed a contract with Delco on August 7, 1992, agreeing to lease two convenience stores from Delco, one located in Deltona and the other in Sanford. Five years into the lease, disputes between the parties arose over the method of calculating the monthly rent amount due on the Deltona store. Delco maintained that, pursuant to the terms of a rent addendum agreement, Pannu owed rent in the amount of $4,000.00 per month yet Pannu maintained that he owed only $3,380.52 per month. Being unable to resolve the dispute, Pannu filed an action for declaratory relief in the circuit court. Delco responded by filing a counterclaim setting forth requests for eviction, back rent, and attorney’s fees.

Of particular importance to the instant appeal, Pannu later amended his complaint adding, among other things, a claim that Delco had breached the terms of the parties’ lease on the Sanford store. Specifically, the complaint alleged that Delco had breached the lease on the date of closing by misrepresenting the fact that it held title to the property and thus was able to convey a leasehold interest to Pannu as of that date. The complaint sought the return of Pannu’s $25,000 deposit which was paid to Delco at closing. Delco answered by denying liability and raising the affirmative defense of statute of limitations. While Delco admitted that it did not possess title to the property on the date of closing, it asserted that no breach had occurred because it was able to obtain proper title by the date Pannu’s lease was scheduled to commence. Delco further alleged that the claim was barred by the statute of limitations because the alleged breach occurred on the closing date, August 7, 1992, yet Pannu failed to file his lawsuit until September 5, 1997, a month after the applicable five year statute of limitations had expired.

The matter proceeded to trial before the court sitting without a jury. Upon review of the evidence presented, the trial court ruled that, pursuant to the terms of the parties’ rent addendum, Delco was entitled to receive $4,000 per month rent on the Deltona property. The court further ruled that Delco had breached the terms of the parties’ lease agreement on the Sanford property by failing to have a possessory interest in said property at the time of closing.

Both parties filed motions for rehearing and the court conducted a hearing thereon. During the hearing, Pannu argued that the trial court had erred in calculating the amount of rent due under the terms of the parties’ rent addendum agreement, and Delco argued that the court had erred in rejecting its statute of limitations defense. The court did not issue a written order regarding the parties’ rehearing motions, yet the court stated on the record that it was granting rehearing on Delco’s statute of limitations defense and allowing Pannu time to amend its reply to address Delco’s statute of limitations claim.

More than a year later the matter was noticed for a hearing, presumably on Del-co’s pending statute of limitations claim. However, during the course of the hearing the trial court voiced its concern about the correctness of its previous ruling on the rent issue. Over Delco’s objection, the trial court decided to grant Pannu’s previously filed motion for rehearing and to schedule a hearing on the matter.

Fifteen months later, the matter proceeding to a hearing before the trial court. Inexplicably, during the hearing the trial court received evidence regarded the terms of the parties’ rent addendum agreement as well as on Delco’s statute of limitations defense. Upon review of the evidence presented, as well as the argument of counsel, the court issued a written order entering judgment in favor of Pannu on both its rental claim and Delco’s statute of limitations defense. The court concluded that since the language of the rent addendum agreement was ambiguous, the contract must be construed against Delco as the drafter of the contract. As such, the trial court determined that Pannu’s monthly rent on the Deltona store was $3,330.52. On the statute of limitations issue, the trial court ruled that the record demonstrated that the limitations period had not expired and thus Pannu’s claim for return of his deposit was enforceable.

In challenging the trial court’s final judgment, Delco first argues that the trial court committed reversible error by sua sponte revisiting Pannu’s motion for rehearing after having implicitly denied same at the initial rehearing hearing. We disagree. The trial court possessed the discretion to amend its decision regarding Pannu’s rehearing motion, and even to change its ruling thereon, because the ruling was never reduced to writing. See Carr v. Byers, 578 So.2d 347 (Fla. 1st DCA 1991)(holding that while order is in the trial court’s possession, whether signed or not, it is subject to change).

Delco next argues that the trial court erred in rejecting its statute of limitations defense. We agree.

Pannu’s breach of contract claim alleged that the contract regarding the Sanford property was breached by Delco at the time of closing on August 7, 1992, because Delco misrepresented the fact that it held title to the subject property and could convey a leasehold interest therein to Pan-nu. In responding to Delco’s statute of limitations claim, Pannu maintained that Delco was equitably estopped from asserting said defense because Delco had refused to respond to his inquires regarding the ownership issue. Upon review, the trial court concluded that Delco’s misrepresentation as to ownership, in conjunction with its refusal to respond to Pannu’s inquiries, constituted sufficient grounds to justify application of the doctrine of equitable estoppel and thus thwart Delco’s statute of limitations defense. This ruling was incorrect.

A defendant can be estopped from asserting a statute of limitations defense to an admittedly untimely filed action where his conduct has induced the plaintiff into forbearing suit within the applicable limitations period. Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992). In Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001), our Supreme Court aptly explained the rationale underlying the justification for applying the doctrine of equitable estoppel in statute of limitations matters as follows:

Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position:
“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy.”
The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. (State ex rel. Watson v. Gray, 48 So.2d 84, 87-88 (Fla.1950)(quoting 3 Pomeroy’s Equity Jurisprudence § 804 (5th ed.1941))).

Id. at 1076. Applying this case law to the instant facts, we conclude that the record does not support the trial court’s finding of equitable estoppel because there is no evidence indicating that Delco “by word, act or conduct, willfully caused [Pannu] to believe in the existence of a certain state of things, and thereby induce[d] him to act on this belief injuriously to himself, or to alter his own previous condition to his injury”. Morsani, 790 So.2d at 1076.

Here, Pannu testified that he discovered that Delco did not have possession of the Sanford property on August 31, 1992, when he drove by the property and saw that the name on the convenience store had not been changed. Pannu claims he contacted Delco’s broker on that same day to find out why Delco’s name was not on the property sign but the broker failed to immediately return his calls. In any event, soon thereafter, Pannu discovered that Delco did not own the property. Unlike the plaintiffs in Morsani who had been lulled into complacency by the defendants’ conduct until a date after the statute of limitations had run on their tortious interference claim, here Pannu had actual notice within one month of the date that the lease was signed that the alleged breach had occurred and thus he had 4 years and 11 months within which to file a timely breach of contract complaint against Delco. Additionally, and perhaps more importantly, there is no evidence in the record that Delco engaged in any conduct indicating an intent to lull Pannu into a disadvantageous legal position or preventing Pannu from filing his lawsuit within the applicable five year statute of limitations. See Florida Dep’t. of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091 (Fla.2002)(holding that equitable es-toppel presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct, and bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct).

Accordingly, we affirm the trial court’s ruling on the rent issue, reverse its ruling on the statute of limitations defense, and remand this matter to the trial court for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

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

      . The rent provision in question reads as follows:
      RENTAL ADDENDUM

      Lease: 5 years with an option for 5 additional years.
      Rental: Rent will be $2,750.00 plus applicable sales tax. Rent will increase $250.00 per month, per year until rent is increased to $4,000.00 per month/per year. Option is for 5 years with base year being 1992 plus C.P.I.
      The dispute between the parties centered on whether the rent during the 5-year extension period was calculated by adjusting upwards by the C.P.I. from the 1997 rent amount or whether the rent would be recalculated using the 1992 rent payment under the lease, adjusted by applying the C.P.I. from that date forward.

      . See § 95.1 l(2)(b), Fla. Stat. (1997)(provid-ing a five year statute of limitations for breach of written contract claims).

      . We note that Delco has not raised any challenge to the trial court’s substantive ruling regarding the amount of rent which was owed under the contract.


text:
    Rafael PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-810.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.

      James B. Gibson, Public Defender, and Barbara C. Davis, 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.
   THOMPSON, J.

Rafael Perez appeals his convictions and sentence for trafficking, delivery, and possession of heroin and cocaine. We affirm.

After selling drugs to an undercover police officer, Perez was charged with trafficking of heroin; two counts of delivery of cocaine; two counts of possession of cocaine with intent to sell or deliver; and possession of heroin with intent to sell or deliver.

At trial, Officer Matthew Floeter testified that a rehable, confidential informant gave him Perez’ phone number. Floeter testified that he called Perez while recording the conversation, and asked if Perez could get him “anything.” After several more telephone calls recorded by Floeter, Perez met Floeter at a gas station and sold him cocaine. The transaction was videotaped. Floeter testified that he did not arrest Perez on that occasion because Perez stated that he could supply Floeter more cocaine. Floeter testified that Perez sold him cocaine and heroin on a second occasion, and he arrested Perez. Prior to the second drug transaction, Floeter and Perez engaged in numerous phone conversations recorded by Floeter. During Floe-ter’s testimony, the audiotapes of his conversations with Perez and the videotapes of the drug transactions were played for the jury. Floeter was allowed to explain what was occurring on the videotapes.

Perez testified at trial and admitted that he did the things shown on the videotapes. Perez testified that he did those things because he was using heroin and cocaine, and he needed money. Perez testified that he received calls from a “David,” who turned out to be Floeter, and that Floeter was insistent about purchasing drugs. Perez stated when Floeter was telephoning him about purchasing drugs, he was in fear for the lives of himself and his family because he owed money to his drug supplier.

Perez was found guilty of trafficking in heroin, 14 grams or more; trafficking in cocaine, 28 grams or more; two counts of delivery of cocaine; and two counts of possession of cocaine with intent to sell or deliver. Perez was found not guilty of delivery of heroin, but found guilty of the lesser included offense of possession of heroin.

On appeal, Perez contends that the trial court erred by allowing Floeter to supplement and explain the videotape. We do not agree. Floeter was allowed to explain only the visual images on the videotape, which is no different from testifying about the images depicted on a photograph. See Gulf Life Ins. Co. v. Stossel, 131 Fla. 127, 179 So. 163 (1938) (holding authenticated video is admitted under the same rule as photographs); see also Harris v. State, 755 So.2d 766 (Fla. 4th DCA 2000) (“Photographs are commonly used to explain the testimony of witnesses”).

Perez also states that Floeter was able to explain what he believed was said during unintelligible portions of the videotape. After a review of the record, we find that Perez’ statement is incorrect. The record shows that the trial court sustained the defense’s objections when Floeter was asked what Perez was saying at points when the videotape was unintelligible. Furthermore, when the state asked Floe-ter why Perez sat behind Floeter in the back seat during a drug transaction, the trial court also sustained Perez’ objections and required Floeter to testify without speculating about motives. We find no error in allowing Floeter to define “street” terminology and explain the visual images such as locations where drug transactions occurred with Perez and where Perez resided.

Next, Perez argues that it was error to allow the state to rebut Perez’ entrapment defense by asking Perez about his prior conviction for possession of cannabis with intent to sell. Evidence of prior crimes is admissible because it is relevant to rebut the defense of entrapment by showing a predisposition to commit crimes of the type charged. Biondo v. State, 533 So.2d 910 (Fla. 2d DCA 1988). Sampson v. State, 645 So.2d 1005 (Fla. 2d DCA 1994) is instructive:

The absence of a defendant’s predisposition to commit the offense is the essential element of an entrapment defense. Herrera v. State, 594 So.2d 275, 277 (Fla.1992); see also § 777.201, Fla. Stat. (1991) (entrapment creates a substantial risk that a crime “will be committed by a person other than one who is ready to commit it”). The accused must show he lacked predisposition. Munoz v. State, 629 So.2d 90 (Fla.1993). To rebut this essential element of the defense, “the prosecution may make ‘an appropriate and searching inquiry’ into the conduct of the accused and present evidence of the accused’s prior criminal history, even though such evidence is normally inadmissible." 629 So.2d at 99. Evidence about predisposition to commit a crime is only relevant in this limited circumstance where the defendant puts his lack of predisposition at issue. We decline to extend its relevancy to a situation where the defendant has not specifically raised the entrapment defense.

Id. at 1007. In the instant case, Perez specifically raised the entrapment defense, and therefore, the state was properly allowed to inquire into prior convictions tending to show that Perez was predisposed to illegally sell drugs. See Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001) (holding a critical element of entrapment is that the accused not have a predisposition to commit crimes, and one way for the state to prove a predisposition is to present evidence of prior criminal history).

Perez also contends that the trial court never conducted a Richardson hearing about an alleged discovery violation. During cross examination of Perez, the state elicited his admission that in connection with his prior conviction for possession of cannabis with intent to sell, he told police in a sworn statement that he had sold marijuana only to older people and not to children. Defense counsel claimed that he knew about the conviction, but he was not aware of the statement. We find Perez’ contention to be incorrect because the trial court conducted a Richardson hearing. After objecting to the alleged discovery violation, Perez’ counsel requested a Richardson hearing. The state responded that the Richardson hearing would not take long, and the state explained that a different prosecutor had been assigned to the cannabis case and that Perez had a different defense attorney. The prosecutor explained that she did not learn until the day before that Perez had been convicted of the cannabis possession charge. The trial court responded that Perez was aware of the statements because he had entered a plea in the case and overruled the objection.

Perez further argues that the trial court should have granted his motion for mistrial based on the discovery violation. Assuming for the sake of argument that there was a discovery violation, we find that the trial court did not abuse its discretion when it denied Perez’ motion for mistrial. See Cox v. State, 819 So.2d 705, 712 (Fla.2002) (holding a trial court’s decision regarding a motion for mistrial pursuant to a Richardson hearing is subject to reversal only upon a showing that it abused its discretion). Where the state has committed a discovery violation, the standard for deeming the violation harmless is extraordinarily high. Id. In determining whether a Richardson violation is harmless, it must be determined whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995). In the instant case, we conclude that the alleged discovery violation did not prejudice Perez’ defense. Perez’ prior conviction for possession of cannabis with intent to sell was properly allowed in rebuttal to Perez’ entrapment defense, and the jury was aware of Perez’ conviction. The inclusion of Perez’ statement that he sold marijuana only to older people was cumulative and harmless.

Next, Perez argues that the trial court erred by denying his motion for judgment of acquittal on the heroin trafficking charge. An FDLE crime lab analyst testified that she tested three packages of heroin which weighed 5.1 grams, 4.7 grams, and 7.9 grams respectively. Perez sold Floeter the package weighing 5.1 grams. The 7.9 grams of heroin was located in Perez’ pocket, and a package containing 4.7 grams of heroin was located in the Ford Explorer Perez drove. Disregarding the heroin located in the Ford Explorer, Perez was in possession of 13 grams of heroin. Perez contends that he did not possess the required amount of heroin, 14 grams or more, required for a conviction under section 893.135(l)(c)b, Florida Statutes, because he was not in possession of the heroin located in the vehicle he drove. Perez states that the vehicle he drove the day he was arrested was his wife’s vehicle, and because the heroin was not found on his person, he was not in actual or constructive possession of the heroin in the car.

A trial court’s denial of a motion for judgment of acquittal will not be reversed if it is supported by competent, substantial evidence. Crump v. State, 622 So.2d 963 (Fla.1993). Perez testified that he was in possession of heroin on the day he was arrested. He confirmed that it was his voice on the audiotapes and that he told Floeter that he had picked up heroin and he was going take it real easy driving because he was “loaded.” Perez also stated on the audiotapes, “I’m in my Ford Explorer.” (emphasis added). Perez admitted selling heroin to Floeter and more heroin was found in Perez’ pocket. Given the totality of the circumstances, there was enough evidence to attribute the heroin located in the Ford Explorer to Perez. See Chambers v. State, 700 So.2d 68 (Fla. 5th DCA 1997) (where cocaine was found at defendant’s foot, $2,000 cash was found on his person, and he had keys to a vehicle that was registered in his mother’s name, given totality of circumstances, evidence was sufficient to link cocaine in vehicle to defendant).

Finally, Perez contends that the trial court erred when it denied a motion for mistrial after the state asked Perez whether he had discussed defenses with attorneys. A trial court’s decision whether to give a curative instruction or grant a mistrial is subject to an abuse of discretion standard. Cedno v. State, 545 So.2d 495 (Fla. 3d DCA 1989). A motion for mistrial is the sound discretion of the trial judge and should only be granted in cases of absolute necessity. Salvatore v. State, 366 So.2d 745 (Fla.1978). In other words, “a mistrial should be granted only in circumstances where ‘the error committed was so prejudicial as to vitiate the entire trial.’” Kivett v. State, 629 So.2d 249 (Fla. 3d DCA 1993) (quoting Duest v. State, 462 So.2d 446, 448 (Fla.1985)).

In the instant case, the state started to ask Perez if he spoke with attorneys about a possible defense, but the defense objected. Perez did not answer the question, and the trial court told the state not to inquire any further and instructed the jury to disregard the question. Given the weight of the evidence and the fact that Perez admitted to selling drugs, the partially asked question was not so prejudicial as to vitiate the entire trial. See Joseph v. State, 704 So.2d 1149, 1149 (Fla. 3d DCA 1998) (“strong curative instruction promptly given by the trial court alleviated any possible prejudice, thus trial court correctly denied the mistrial motion”).

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).