author: STONE, J. HAZOURI, J.,

text:
    Lewis Clarence LESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3459.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Lester was convicted of the robbery of a purse. He contends that the purse was taken without a struggle or resistance and that it was, therefore, error to deny his motion for judgment of acquittal. We affirm.

The record reflects that the victim was walking on a downtown street when Lester appeared, walking towards her. When he was several feet away from her, he greeted her and suddenly started running towards her. Then, Lester hit the victim in the shoulder and grabbed her purse out of her hand. The victim demonstrated to the jury the manner and force with which Lester hit her. She testified that he ran into her “hard,” causing pain and bruising.

A prima facie case for robbery requires the state to prove that the accused took the victim’s property with the intent to permanently deprive her of the property and, in the course of the taking, the accused used force, violence, assault, or put the victim in fear. § 812.13(1), Fla. Stat. (2000).

Suggesting that the victim’s testimony was that the incident happened too quickly for her to resist, and that Lester grabbed the purse as “he ran by her,” he urges that the robbery was not proven because there was no evidence that the victim either resisted or surrendered her purse out of fear. Accordingly, Lester argues that on this evidence, this court must vacate his robbery conviction and sentence him to second-degree petit theft of $100 or less, a necessarily lesser-included offense of robbery. See Simmons v. State, 551 So.2d 607 (Fla. 5th DCA 1989).

We conclude, after viewing the evidence in the light most favorable to the state, that the victim’s testimony is sufficient to state a prima facie case on the element of force.

We have considered Robinson v. State, 692 So.2d 883, 886-87 (Fla.1997), relied on by Lester, where the supreme court stated:

we find that in order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender .... [citations omitted] The snatching or grabbing of property without such resistance by the victim amounts to theft rather than robbery.

See also Jones v. State, 652 So.2d 346, 349 (Fla.1995).

We do not read Robinson to require a showing of resistance by the victim, so long as the perpetrator used more force than would have been necessary to simply remove the property from the victim. The Robinson court noted its earlier opinion in McCloud v. State, 335 So.2d 257 (Fla.1976), where the victim held fast to her purse after the perpetrator grabbed it and let go only after she fell to the ground.

Here, the key component of force or violence is present. In Rigell v. State, 782 So.2d 440, 442 (Fla. 4th DCA 2001), this court determined that Rigell used sufficient force when taking the victim’s purse to support his conviction for robbery where he snatched the victim’s purse with such force that he wrenched her shoulder, caused the victim sharp pain, and broke the strap on the purse. Similarly, in Reed v. State, 698 So.2d 1271, 1272 (Fla. 4th DCA 1997), we upheld a robbery conviction where a defendant took “the victim’s purse with such force as to break the strap and bruise her shoulder.... ” Additionally, in Hayes v. State, 780 So.2d 918, 919 (Fla. 1st DCA 2001), the victim testified that the assailant bumped her from behind and probably would have caused her to fall to the ground but for the fact that she was in between rows of cars when the robbery occurred. This was deemed sufficient evidence of use of force to submit the robbery charge to the jury. Id. at 919.

We, accordingly, conclude that the robbery charge was properly submitted to the jury. As to all other issues raised, we find no reversible error. Therefore, the judgment and sentence are affirmed.

SHAHOOD, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. The evidence presented at trial and as outlined by the majority, indicates that there was no resistance by the victim. Under these facts, the Florida Supreme Court’s decision in Robinson v. State, 692 So.2d 883 (Fla.1997), is controlling. Without evidence that there was resistance by the victim that was overcome by the physical force of the defendant, the State has failed to establish the crime of robbery. Therefore, I would reverse the conviction for robbery and remand for sentencing on the lesser-included offense of second-degree petit theft of $100.00 or less.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Harutyun ARUTYUNYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1524.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Harutyun Arutyunyan, the appellant, was convicted of attempted first degree murder, with a firearm, of a law enforcement officer (count I), shooting into an occupied building (count II), and grand theft with a firearm (count III). Ultimately, appellant was sentenced to life with a twenty-year mandatory minimum for count I and to fifteen years each for counts II and III. The mandatory minimum imposed for count I was ordered to run consecutive to the sentences imposed for counts II and III. In this appeal, Arutyunyan contests both his convictions and his sentence. We affirm the convictions, but find merit in appellant’s challenge to his sentence.

Arutyunyan discharged a firearm in the commission of the attempted murder of Officer John Cnrry. Consequently, pursuant to the 10/20Aife statute, section 775.087(2)(a)2., Florida Statutes (2002), the trial court was required to impose a twenty-year mandatory minimum sentence. The issue that arose at the sentencing hearing, however, was whether the court had discretion to order that this mandatory minimum run consecutive to or concurrent with the sentences imposed for counts II and III. The State convinced the court that the statute required, that the mandatory minimum run consecutive to the sentences for counts II and III. However, the State’s position was in error.

Subsection (2)(d) of the 10/20Aife statute states that “[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” § 775.087(2)(d). The words “any other felony offense” have been ascribed a specific meaning: “the reference to ‘any other’ felony refers ... only to another separate crime, rather than those involved in a single prosecution.” Mondesir v. State, 814 So.2d 1172, 1173 (Fla. 3d DCA 2002)(emphasis in original); see also Stafford v. State, 818 So.2d 693, 694-95 (Fla. 5th DCA 2002)(expressly adopting the reasoning on this issue set forth in Mondesir). Arutyunyan was being sentenced for felonies tried within a single prosecution. Thus, section 775.087(2)(d)’s directive regarding consecutive sentencing has no application, leaving the court free to choose whether the mandatory minimum sentence should run consecutive to or concurrent with the sentences imposed for counts II and III. Since the trial court was expressly operating under the belief that section 775.087(2)(d) required consecutive sentencing, we reverse the sentence imposed and remand to allow the judge the opportunity to consider the option of concurrent sentencing. The court is free, however, to again order that the minimum mandatory be served consecutive to the sentences imposed for counts II and III.

AFFIRMED in part; REVERSED in part; and REMANDED.

WARNER and GROSS, JJ., concur.

      . Among the issues raised by appellant is a claim that his counsel conceded his guilt to counts II and III, without his consent, amounting to ineffective assistance of counsel per se. This claim is not cognizable on direct appeal as the ineffective assistance is not apparent from the face of the record. See, e.g., Barrientos v. State, 825 So.2d 1065, 1067 (Fla. 4th DCA 2002), review denied, 845 So.2d 887 (Fla.2003). Our affirmance of this claim, however, is without prejudice to appellant's right to seek postconviction relief.


author: PER CURIAM.

text:
    Robert W. CRONIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2915.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal, appellant claims that the prosecutor’s reference to Mother’s Day in closing argument was improper and prejudicial, and the court erred in overruling his objection. Here, the appellant was on trial for attempted murder of his mother, and the trial concluded on the Friday before Mother’s Day. While we agree that the court should have sustained an objection when the prosecutor referred to Mother’s Day in closing argument, we conclude that this one comment was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

As to the contention that appellant was denied his right to a full appeal by transcripts filled with inaudible portions, we affirm, as the transcript when reconstructed was sufficient to determine what objections to evidence were made and the rulings thereon. While there were still inaudible phrases, the inaudible portions do not prevent a complete review of the issues presented. See Velez v. State, 645 So.2d 42, 44 (Fla. 4th DCA 1994).

Affirmed as to all issues.

WARNER, GROSS and HAZOURI, JJ., concur.

      . This transcript was prepared from an audiotape of the proceedings. When inaudible portions were noted in the original transcript, appellant moved to reconstruct the record and the transcriber prepared a second transcript in which most of the inaudible phrases were reconstructed. Although it was not necessary in this case, another source of reconstruction would be to ask the attorneys what they said at the hearing. The attorneys themselves may be best able to decipher their own comments. This is particularly true where, as in this case, the “inaudible" portion occurred when the court asked whether the attorneys objected to the instructions as read.


author: GROSS, J.

text:
    PIERSON D. CONSTRUCTION, INC., a Florida corporation, Appellant, v. Martin YUDELL and Judith Yudell, Appellees.
    No. 4D03-711.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Jan. 29, 2004.

      Rapdall L. Leshin of Law Offices of Randall L. Leshin, Pompano Beach, for appellant.
    Morris G. (Skip) Miller of Adorno & Yoss, P.A., West Palm Beach, for appel-lees.
   GROSS, J.

We address this case upon a certified question from the county court pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A). We rephrase the certified question as follows:

WHERE AN OWNER FILES A NOTICE OF CONTEST OF A CONTRACTOR’S LIEN PURSUANT TO SECTION 713.22, FLORIDA STATUTES (2000), MUST A CONTRACTOR SEEKING TO FORECLOSE THE LIEN FILE ITS FINAL CONTRACTOR’S AFFIDAVIT NO LATER THAN THE 60 DAY LIMITATION PERIOD PROVIDED FOR IN SECTION 713.22(2)?

We answer the question in the affirmative and affirm.

Martin and Judith Yudell entered into a contract with Pierson D. Construction, Inc. whereby Pierson would make additions and renovations to the Yudells’ property for $60,000. On August 9, 2000, Pierson filed a claim of lien against the Yudells’ property alleging that of the $74,054.68 worth of work performed, an unpaid balance of $9,063.46 remained.

The Yudells filed a notice of contest of lien on September 5, 2000. Pierson filed its complaint for foreclosure of a lien on November 3, 2000. Attached to the complaint as exhibits were the agreement between the parties, the final invoice showing a balance of $9,063.46, the claim of lien, and the notice of contest of lien.

On December 5, 2000, the Yudells moved to dismiss. One ground for the motion was Pierson’s failure to comply with Chapter 713, Florida Statutes (2000), in that it failed to furnish a contractor’s final affidavit at least five days before bringing its action and within the 60 day statutory limitation period triggered by the Yudells’ notice of contest. On January 19, 2001, Pierson served the Yudells with a contractor’s final affidavit. The county court later dismissed the case.

Pierson filed an amended complaint on March 13, 2001. It alleged that the January 19, 2001 service of the contractor’s affidavit related back to the November 3, 2000 filing of the lawsuit. The Yudells moved to dismiss, arguing that the January 19, 2001 contractor’s affidavit was untimely, because it was not delivered within sixty days of September 5, 2001, the day the Yudells filed their notice of contest. The county court granted the motion and dismissed the case with prejudice.

Pierson argues that section 95.11 contains the applicable statute of limitations in this case. It is true that Chapter 95, Florida Statutes (2000), generally controls limitations of actions. However, section 95.011, Florida Statutes (2000), indicates that an action “shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elseivhere.” (Emphasis added). Thus, if Chapter 713 contains statutes of limitations applicable to liens, those provisions will prevail over section 95.11. See Carcaise v. Durden, 382 So.2d 1236, 1237 (Fla. 5th DCA 1980) (finding that generally a special statute of limitations will take precedence over a general statute).

The Construction Lien Law, sections 713.001-713.37, Florida Statutes (2000), applies to this case. After a claim of lien against an owner is recorded pursuant to section 713.08, Florida Statutes (2000), the lien is valid for one year, “unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.” § 713.22(1), Fla. Stat. (2000).

An owner may “shorten” the one-year time period if the owner files a notice of contest of lien pursuant to section 713.22(2). Such a notice shortens the statute of limitations to “60 days after service of such notice.” Id. The statute provides:

713.22. Duration of lien
(1) No lien provided by this part shall continue for a longer period than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for a valuable consideration and without notice, unless a notice of lis pendens is recorded.
(2) An owner ... may elect to shorten the time prescribed in subsection (1) within which to commence an action to enforce any claim of lien ... by recording in the clerk’s office a notice [of contest of lien]
The lien of any lienor upon whom such notice is served and who fails to institute a suit to enforce his or her lien within 60 days after service of such notice shall be extinguished automatically.

(Emphasis added).

It is the section 713.22(2) 60 day period that is the applicable statute of limitations in this case. The purpose of the notice of contest is to “shorten the time ... within which to commence an action to enforce any claim of lien.... ” § 713.22(2). Like other statutes of limitation, section 713.22(2) bars an action to enforce a lien not filed within its 60 day time frame. See Jack Stilson & Co. v. Caloosa Bayview Corp., 278 So.2d 282, 283 (Fla.1973) (“The purpose of the fixed periods provided in such statutory remedies as the one here involved of the Mechanics’ Lien Law was to make definite and certain the time within which the matter can be considered as ended.”); Charles Redi-Mix, Inc. v. Phillips, 580 So.2d 166, 167 (Fla. 4th DCA 1991), receded from on other grounds by Volksbank Regensburg eG v. Burger, 703 So.2d 538 (Fla. 4th DCA 1997) (stating that the “Notice of Contest acts by operation of law to discharge a lien on the sixtieth day, without intervention of the court”).

Pierson contends that its suit to foreclose the lien was filed within the 60 day limitation period and that the January 19, 2001 service of the contractor’s affidavit may relate back to the November 3, 2000 filing of the lawsuit.

Case law excuses the failure to file a contractor’s affidavit prior to filing suit to enforce the lien; however, in this case, such filing must have been accomplished within the 60 day limitation period of section 713.22(2).

Section 713.06(3)(d), Florida Statutes (2000), requires the contractor to give the owner an affidavit “[w]hen the final payment under a direct contract becomes due the contractor.” While making provisions for the negligent omission of information in an affidavit, the statute provides that the “contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit.” § 713.06(3)(d) 1.

The statute appears to make the delivery of the affidavit a condition precedent to filing suit:

The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or her or not.

Id. (emphasis added).

Case law has established that if a contractor’s affidavit is not served on the owner five days before commencing an action, it must still be served within the applicable “statutory limitation period.” Holding Elec., Inc. v. Roberts, 530 So.2d 301, 303 (Fla.1988); see Privas v. Brisson Custom Homes, Inc., 817 So.2d 983, 985 (Fla. 4th DCA 2002); Bell v. Renar Dev. Co., 811 So.2d 780, 781 (Fla. 4th DCA 2002); Hanley v. Kajak, 661 So.2d 1248, 1249 (Fla. 4th DCA 1995); Timbercraft Enters., Inc. v. Adams, 563 So.2d 1090, 1093 (Fla. 4th DCA 1990).

In Roberts, the supreme court held that a contractor’s affidavit could be served after the filing of the complaint, provided that the statute of limitations had not expired. 530 So.2d at 302. In that case, the contractor failed to deliver an affidavit pri- or to commencing its action. The contractor was granted leave to amend the complaint and filed an amended complaint with the affidavit attached within the one-year statute of limitations that applied in that case. Id. The trial court dismissed the case because the contractor had failed to submit the affidavit five days before filing the original complaint as required by section 713.06(3)(d) 1. Id.

Holding that the dismissal was error, the supreme court ruled that the delivery of a contractor’s affidavit was not jurisdictional, but was a “prerequisite to maintaining the action and must be completed within the statutory limitation period.” Id. at 303; see also Lindberg v. Hosp. Corp. of Am., 545 So.2d 1384, 1387 (Fla. 4th DCA 1989) (recognizing that the supreme court has permitted the filing of a contractor’s affidavit after the filing of the complaint so long as the affidavit is filed within the applicable statute of limitations).

Most recently, this court addressed the issue in Privas. In that case, we reversed the trial court’s entry of judgment in favor of the contractor. 817 So.2d at 984. The contractor had filed a complaint, but failed to timely serve the affidavit. The owners moved to dismiss the complaint, but the trial court denied the motion. Id. The contractor amended its complaint, yet still failed to include the affidavit. Id. The owners answered the complaint and noted the lack of affidavit in their affirmative defenses. Id. The trial court entered judgment in favor of the contractor. Id.

This court found that the contractor filed its claim of lien on July 6,1995 and its complaint on May 13, 1996, without an affidavit being served five days beforehand. Id. at 985. This court reasoned that an affidavit had to be served five days prior to the filing of a complaint and before the statute of limitations ran, calculated from the original filing date of the claim of lien. Id. Because the contractor did not file an affidavit with an amended complaint until September 6, 1996, two months after the one-year statute of limitations had run, this court found that the contractor was “ ‘foreclosed’ from foreclosing on its claim of lien.” Id.

Applying Roberts and Privas to this case, Pierson is precluded from foreclosing on his lien. The operable statute of limitations is the 60 day period provided by section 713.22(2). The 60 day limitation period did not apply in Roberts and Pri-vas, because neither case involved a notice of contest that shortened the limitations period from one year to sixty days. The Yudells filed a notice of contest of lien on September 5, 2000. On November 3, 2000, two days shy of the running of the 60 day period, Pierson filed its complaint. Pier-son did not serve its final contractor’s affidavit until January 19, 2001, after the 60 day limitation period had expired. The county court had no choice but to dismiss the case.

Pierson relies upon McCown v. Pierce Construction, Inc., 552 So.2d 940 (Fla. 4th DCA 1989) and Coquina, Ltd. v. Nicholson Cabinet Co., 509 So.2d 1344 (Fla. 1st DCA 1987). Neither case controls. McCoum involved a contractor’s affidavit that was timely served, with deficiencies, not an affidavit like the one in this case that was served outside the statutory time period. Similarly, Coquina involved a contractor’s affidavit filed during the 60 day limitations period.

Pierson argues that Coquina holds that an absence of a contractor’s affidavit is not fatal to a cause of action. However, Co-quina does not indicate that a cause of action may be maintained with the complete absence of a contractor’s affidavit; the case merely holds that serving the affidavit five days prior to filing the complaint is not essential to maintaining a cause of action, as the supreme court held the following year in Roberts.

For these reasons, we affirm the order of the county court dismissing the case.

WARNER and HAZOURI, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. B.Y., the Grandmother, Appellee.
    No. 4D03-715.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Jeffrey Dana Gillen, West Palm Beach, for appellant.
    Kirsten A. Herndon, William Booth, and Michelle Hankey of the Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellee.
   ON MOTION FOR RECONSIDERATION AND REHEARING AND MOTION FOR REHEARING EN BANC

PER CURIAM.

We grant the Department of Children and Families’ (DCF) motion for reconsideration and rehearing, but deny the motion for rehearing en banc. As a result, we withdraw our previous opinion and substitute this opinion in its place.

The question framed by DCF is whether a trial court may order DCF to consent to an adoption, or finalize an adoption in the absence of DCF’s consent, given certain facts. In this case, DCF selected an adoptive parent but did not conduct a final home study. Because a final home study had not been completed, DCF had not prepared a written consent to adoption. Because DCF had not consented to the adoption in writing, it did not guarantee an award of post-adoption subsidies. DCF contends that discretion over this chain of events from home study to consent to subsidies is firmly reposed in it by Chapter 39 and related administrative rules, and may not be upset by judicial intervention, even where section 63.125(1), Florida Statutes applies.

B.Y. instead relies upon the judicial powers for the protection of children vested by Chapter 63 in asserting that the trial court did not err by finalizing the adoption of the children. This is especially the case because no home study was required under section 63.125(1) where at least two of the siblings to be adopted were within the third degree of consanguinity with B.Y.

The facts of this case are as follows. DCF sheltered the children in this case, J.L.P., B.D.P., and J.S.P., in September 2001. The children were subsequently adjudicated dependent as to their mother. The children remained in the protective custody of DCF until January 2002, when DCF and the guardian ad litem for the children filed a joint motion for emergency placement of the children with B.Y., the grandmother. B.Y. had recently moved from Pennsylvania to be near the children, and the trial court granted the motion allowing for expedited placement with B.Y.

In February 2002, a judicial review of the children’s situation was conducted, finding that B.Y. was willing to assume custody of the children, and leading DCF to favor adoption. However, BY. lacked the financial resources necessary to obtain adequate housing. In March 2002, a preliminary home study was undertaken in anticipation of the placement of the children with BY. The study was favorable and BY. was awarded temporary custody. Upon obtaining temporary custody of the children, she began living in a transitional housing program providing her with housing for up to two years.

In anticipation of adoption, the rights of the children’s parents were terminated. The children were committed to DCF for adoption and B.Y. was determined to be a suitable permanent custody arrangement for the children. Throughout the proceedings below, B.Y. was represented to be the grandmother of the three children and DCF did not contest this representation. Adoption finalization was set for January 31, but on that date, DCF refused to consent to B.Y.’s adoption of the children because a final home investigation was not conducted as she remained in temporary housing.

At the next hearing on February 7, DCF again refused to consent to the adoption due to the outstanding nature of the home investigation. DCF also stated that adoption subsidies would not be payable to BY in the absence of DCF consent to the adoption. In response, the attorney ad litem for the three children argued that a final home investigation was not required under section 63.125, because BY was within the third-degree of consanguinity with the children. At the conclusion of the hearing, the trial court directed DCF to consent to the adoption, ruled that no home investigation was required based on the statute, and mandated the payment of subsidies. However, on February 14, DCF again refused to consent to the adoption because B.Y. had not obtained permanent housing and the home investigation had not been completed. The trial court reiterated the February 7 rulings and finalized the adoption without DCF consent.

We now turn to a review of the applicable law. This review, particularly where it involves statutes, is complex in the present case because the applicable law has been seldom cited by Florida courts. As a result, it will become necessary to engage in a certain degree of statutory construction only where the meaning and operation of particular statutes is uncertain. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992). Statutory language should be given its plain and ordinary meaning unless otherwise defined by statute or legislative intent. Green v. State, 604 So.2d 471, 473 (Fla.1992) (citation omitted). This task may be accomplished through resort to a dictionary. Id. (citation omitted). Additionally, “[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe, 604 So.2d at 455 (emphasis in original). To this end, statutory language should not be construed in such a way as to render it superfluous or insignificant. Conklin v. Goldsmith, 5 Fla. 280 (1853).

In C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA 1996), HRS, DCF’s predecessor, selected adoptive parents for a child but the trial court finalized the adoption in favor of the child’s foster parents. Id. at 265. In reversing the trial court’s decision, this Court wrote:

Chapter 39 specifically controls the placement for adoption of children where parental rights have been previously terminated. While Chapter 63 authorizes the trial court to finalize the adoption, its provisions are triggered only after HRS places and approves a child for adoption as provided in Chapter 39. Thus, we conclude, that the general grant of authority over all adoption proceedings does not supersede HRS’s specific authority to select the adoptive parents.

Id. at 268. Additionally, Chapter 63 may allow the courts to intervene if HRS has failed to select adoptive parents or has made an inappropriate selection, but the courts cannot act without HRS’s consent under ordinary circumstances. Id. at 269.

This precedent appears to strongly indicate that a court may not mandate DCF’s consent to an adoption, as the court’s role is not triggered until DCF has placed the child and given its approval for adoption, barring extraordinary circumstances. See, e.g., L.R. v. Dep’t of Children & Families, 822 So.2d 527, 531 (Fla. 4th DCA 2002) (reiterating “that the trial court lacks authority to waive DCF’s consent to the adoption of a child in its control”). B.Y. suggests that C.S. addresses only DCF’s selection of adoptive parents, not the finalization of an adoption after those parents have been selected. B.Y. contends that this reading can be placed on C.S. and its progeny because the cases exemplify instances in which two sets of parents were attempting to adopt the same child.

In light of C.S., we next explore the relevant statutory language of Chapters 39 and 63 to determine how they are intended to work in tandem. Chapter 39 governs proceedings related to children, and its provisions are to be liberally construed based on Florida Statutes section 39.001(9). The provision at issue in the present case is section 39.812(1):

If the department is given custody of a child for subsequent adoption in accordance with this chapter, the department many place the child with an agency as defined in s. 63.032, with a child-caring agency registered under s. 409.176, or in a family home for prospective subsequent adoption. The department may thereafter become a party to any proceeding for the legal adoption of the child and appear in any court where the adoption proceeding is pending and consent to the adoption, and that consent alone shall in all cases be sufficient.

(Emphasis added). Additionally, section 39.812(5) states that “[a] copy of the consent executed by the department as required under s. 63.062(7) must be attached to the petition.”

DCF maintains that the language of Chapter 39 clearly indicates that DCF consent is the sine qua non of adoption finalization and that such consent must be executed in writing before an adoption can become final. B.Y. places emphasis on the italicized words of section 39.812(1) above, stressing that DCF may give its consent for an adoption, indicating that it does not have to and that other parties must be able to consent. Before further evaluating the parties’ arguments regarding Chapter 39, we will analyze the provisions of Chapter 63.

The key section of Chapter 63 as relevant to the case at bar is section 63.062(7) which provides:

If parental rights to the minor have previously been terminated, a licensed child-placing agency, a child-caring agency registered under s. 409.176, or the department with which the minor has been placed for subsequent adoption may provide consent to the adoption. In such case, no other consent is required.

(Emphasis added). DCF views this language as again supporting a requirement for its consent prior to adoption, but B.Y. contends that the language clearly makes DCF’s consent permissive, especially because DCF is not a listed party from which consent is required under section 63.062. It is true that section 63.062(1) emphasizes the consent of individuals such as the child’s mother and father, but the provision also states that such are the rules when there is a “petition to terminate parental rights pending adoption.” In the present case, the termination of parental rights has already occurred.

What is indicated in the cited sections by the fact that no other consent is required if DCF consents, is that in a case where parental rights have been terminated, DCF has custody of the child and may consent to an adoption if it sees fit. If it does consent, this consent will be sufficient because other possible consenting parties, such as the mother and father, will no longer have the right to consent. In sum, if DCF elects to finalize the adoption, no other consent is required because parental rights have been terminated, but DCF does not have to consent to the adoption, in which case judicial oversight of the adoption will not be triggered.

This conclusion is bolstered by the applicable provisions of the Florida Administrative Code. Florida Administrative Code section 65C-16.010 addresses the adoption process. Subsection 4(a) provides that a final home evaluation must be conducted before the adoption petition is heard by the court and a written recommendation as to whether the adoption should occur must be submitted to the court. Fla. Admin. Code 65C-16.010(4)(a). Then assuming that the final home evaluation leads to a recommendation that the adoption be approved, subsection (4)(b) provides that DCF must sign a standard consent to adoption form, and provide a copy to the adoptive parents’ attorney before adoption can take place. Fla. Admin. Code R. 65C-16.010(4)(b). Considering this chain of events, it appears that a final home study is required prior to DCF’s consent to adoption. Combining case law, statutes, and rules, we conclude that the decision to grant consent to adoption is firmly reposed in DCF and may not generally be intruded upon by the judiciary.

This, however, does not resolve the question of whether DCF was justified in withholding its consent considering the circumstances of the case at bar. B.Y. contends that the final home study was not required in the present case based on the language of section 63.125(1):

The final home investigation must be conducted before the adoption becomes final. The investigation may be conducted by a licensed child-placing agency or a professional in the same manner as provided in s. 63.092 to ascertain whether the adoptive home is a suitable home for the minor and whether the proposed adoption is in the best interest of the minor. Unless directed by the court, an investigation and recommendation are not required if the petitioner is a stepparent or if the minor is related to one of the adoptive parents within the third degree of consanguinity.

(Emphasis added). The first italicized sentence indicates that under typical circumstances, the home study must be conducted and that DCF would be justified in withholding its consent where this mandatory procedure did not occur.

The second italicized sentence is that on which B.Y. rests her argument. However, this sentence poses a problem for B.Y.’s assertion that DCF may not withhold its consent for inability to conduct a home study. The language only states that a home study is not required, not that DCF cannot choose to undertake one under the given circumstances if deemed necessary. This is the case because the word “require” means to “make something necessary” or “demand something by law,” indicating that the home study is not necessary or mandated by law, not that it is prohibited or not permitted by law. See Encarta World English Dictionary (2003), at http://encarta.msn.com/dic-tionary — /require.html.

In essence, this statute authorizes DCF to dispense with typical investigatory procedures where no concerns are raised about the relative adoption. However, if DCF has concerns about the adoption it may elect to employ typical procedures such as a home study to determine the appropriateness of the adoptive placement. Furthermore, a court can order the home study where it has concerns about the adoption, even if DCF does not have those concerns.

Overall, DCF holds the discretion to consent to adoptions, withhold its consent, and do so based on inability to conduct a final home study even where section 63.125(1) applies, if DCF has concerns about the prospective adoptive placement. Therefore, the finalized adoption in this case must be reversed and remanded for compliance with the procedures deemed necessary by DCF for adoption consent. Based on this outcome, we decline to reach the adoption subsidies issue on appeal, because this issue will be revisited and potentially mooted by further proceedings.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

GUNTHER, KLEIN and GROSS, JJ„ concur.


author: TAYLOR, J.

text:
    MARINE ENVIRONMENTAL PARTNERS, INC., Appellant, v. Dennis JOHNSON and Aqua-Ion Systems, Inc., Appellees.
    No. 4D03-1575.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Helaina Bardunias and Michael W. March, Gunster Yoakley & Stewart, P.A., Fort Lauderdale, for appellant.
    J. David Huskey, Jr. and C. Edward McGee, Jr., McGee & Huskey, P.A., Fort Lauderdale, for appellees.
   TAYLOR, J.

Appellant, Marine Environmental Partners, Inc. (MEP), appeals the dismissal of its second amended complaint, which was dismissed on the grounds of contractual arbitration and choice of forum provisions. We reverse, holding that the contractual rights to arbitration and a foreign venue were waived as a matter of law.

Defendant, Aqua-Ion is a Colorado corporation. Defendant, Dennis Johnson, is its president and sole owner. In August 2000, Aqua-Ion entered into a Shareholder Incorporation Agreement (hereinafter Shareholder Agreement) with Boatside Services, Inc. for the formation of a third corporation, Plaintiff, MEP. This contract contains no arbitration or forum selection provision.

The Shareholder Agreement was executed simultaneously with a separate Exclusive Licensing Agreement, which was described as “Exhibit A.” The Exclusive Licensing Agreement was then superseded by an Amended Exclusive Licensing Agreement (hereinafter Licensing Agreement) dated a few months later. This Licensing Agreement essentially required MEP to pay a $100,000 fee to Aqua-Ion for marketing rights under certain patents and applications owned by Aqua-Ion. This Licensing Agreement provides in pertinent part:

16. Settlement of Disputes. Any claim or controversy arising out of or relating to this Agreement or to the breach of this Agreement shad (sic) be settled by arbitration in accordance with the rules of the American Arbitration Association....
17. Choice of Law. This Agreement shall be interpreted under the law of, and in the courts of, the State of Colorado.

MEP was a signatory to both agreements.

On June 7, 2002, MEP filed suit here in Florida. The complaint alleged several tort and statutory grounds. Although the complaint does not sound in contract, it does note the existence and violation of the Licensing Agreement in two separate paragraphs, which are each reincorporated in each count of the complaint. Attached to the complaint initially filed is the Shareholder Agreement only, not the Licensing Agreement. The defendants’ first motion to dismiss did not raise the existence of a contractual right to arbitrate or incorrect venue. Subsequently, on August 23, 2002, the defendants answered and raised affirmative defenses, again without alleging the contractual right to arbitrate or incorrect venue.

It is undisputed that a copy of the Licensing Agreement containing the arbitration provision was used as an exhibit at defendant Johnson’s deposition, which occurred in October and November 2002.

On January 14, 2003, the trial court entered an agreed order which permitted MEP to file a second amended complaint. That second amended complaint is substantially the same as the previous complaints, except that it adds a count for breach of the Shareholder Agreement.

Defendants’ motion to dismiss the second amended complaint on grounds of the contractual arbitration provision and improper venue was heard on April 8, 2003. The trial court dismissed the complaint over MEP’s claims of waiver. The trial court ruled that because it was unclear whether the Shareholder Agreement or the Licensing Agreement was being sued on, the defendants’ could not be held to have waived the contractual rights to arbitrate and to a Colorado forum.

The Federal Arbitration Act mandates the arbitration of contracts which contain arbitration provisions and involve interstate commerce. See Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997). Thus, generally, where the contract falls within the scope of the Federal Arbitration Act, federal law applies. Donald & Co. Sec., Inc. v. Mid-Florida Cmty. Servs., Inc., 620 So.2d 192, 198 (Fla. 2d DCA 1993). However, where the United States Supreme Court has not ruled on a specific question, state courts are free to apply state law on that question. Raymond James Fin. Servs. v. Saldukas, 851 So.2d 853, 857 (Fla. 2d DCA 2003). Where, as here, the contract between the parties specifies the state law to be applied (in this case Colorado law), such a provision will ordinarily be given effect in deciding the parties’ right to arbitrate. See Info. Tech. & Eng’g Corp. v. Reno, 813 So .2d 1053, 1055 (Fla. 4th DCA 2002)(ap-plying California law).

However, in this case neither party has argued the applicability of Colorado law (either below or in their briefs) and both have cited only sparse lower federal authorities, apparently as merely persuasive. By contrast, both parties have relied heavily on Florida law as controlling. In this situation, the choice of law issue is deemed waived and the court is free to apply the law of the forum. See Terminix Int’l Co., 693 So.2d at 106; Waner v. Ford Motor Co., 331 F.3d 851, 856, n. 2 (Fed.Cir.2003); Neely v. Club Med Management Services, 63 F.3d 166, 180 (3d Cir.1995). We thus apply Florida law.

Under both federal law and the Florida arbitration code, there are three elements for courts to consider: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitral issue exists; and (3) whether the right to arbitration was waived. See Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999).

The question of waiver is one of fact, reviewable for competent substantial evidence. See Raymond James, 851 So.2d at 856; Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999). All doubts regarding waiver should be construed in favor of arbitration rather than against it. Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288 (Fla. 4th DCA 2002).

Waiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right. Hill, 745 So.2d at 1138. A party claiming waiver of arbitration must show: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right. Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994).

The defendants maintain that they did not become aware of the arbitration provision until after their attorneys attended the deposition of Dennis Johnson in October and November 2002. They assert that because a copy of the Licensing Agreement was not attached to the complaint, they could not have known about this agreement’s terms until then. However, the defendants were signatories to the Licensing Agreement and legally charged with knowledge of its terms from the date it was signed. See Marthame Sanders & Co. v. 100 W. Madison Corp., 401 So.2d 1145, 1146 (Fla. 4th DCA 1981); see also Breckenridge, 640 So.2d at 211.

This is not the end of the knowledge inquiry, however, since it is also necessary that the defendants were aware that the complaint raised claims “arising out of or relating to” the Licensing Agreement in which the arbitration agreement was located. In Eden Owners Ass’n v. Eden III, Inc., 840 So.2d 419, 420 (Fla. 1st DCA 2003), relied upon by the trial court below, the court held that because appellant had failed to set forth an actionable claim based upon breach of the contract in which the arbitration right was contained until the second amended complaint and appel-lees moved promptly thereafter to compel arbitration, no waiver had occurred.

The trial court’s reliance on Eden Owners is misplaced. In this case there was no material difference between the original complaint and the second amended complaint insofar as the relationship to the Licensing Agreement is concerned. Both complaints contained identical allegations regarding that agreement. In fact, the only difference between the two complaints was the addition of a breach of contract action based on the separate Shareholder Agreement, which contained no arbitration provision. If the defendants were sufficiently aware of their right to arbitrate after the second amended complaint (which we must presume from their motion), they must be charged with an identical awareness from the outset of the litigation.

The trial court was unclear about which contract MEP was suing upon. However, because this was a broadly worded (“relating to”) arbitration provision, it was not necessary that the claims actually arise from the Licensing Agreement to be arbi-trable, merely that they relate to that agreement. See Seifert, 750 So.2d at 637-38. The fact that the complaint referred to the Licensing Agreement in two separate paragraphs (one alleging its violation), which allegations were then incorporated into every cause of action raised, should clearly have put the defendants on notice that the complaint “related” to the Licensing Agreement and hence was arbitrable.

The remaining waiver question is whether the defendants actively participated in the suit or otherwise took actions inconsistent with the right to arbitrate. Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 396 (Fla. 5th DCA 2003). Active participation in the suit works a waiver because it is generally presumed to be inconsistent with the intent to arbitrate. Miller & Solomon Gen. Contractors, 824 So.2d at 290. Where a party defends on the merits by answering the complaint without demanding arbitration, a waiver is deemed to have occurred. Id.; O’Flarity v. Trend Star Dev., Inc., 689 So.2d 1297 (Fla. 4th DCA 1997); Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992); Riverfront Props., Ltd. v. Factor, 460 So.2d 948, 952 (Fla. 2d DCA 1984); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977). The defendants’ answer in this case did not raise the right to arbitrate. It thus worked a waiver of that right.

There is a split among Florida courts as to whether prejudice must also be shown to establish a waiver of the right to arbitrate. The first district and the third district hold that a showing of prejudice is required before a waiver can be found. See Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003); Shoma Dev. Corp. v. Rodriguez, 730 So.2d 838 (Fla. 3d DCA 1999). This court, the second, and fifth districts hold that no prejudice need be shown. See Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 177 (Fla. 4th DCA 1998); Raymond James, 851 So.2d at 857-58; Morrell, 834 So.2d at 395. The appellee has not asked this court to recede from its position. In any event, we would adhere to the view that no prejudice is required, as we agree with the second district’s thorough analysis and reasoning in its Raymond James opinion.

The first district in Benedict felt that the Florida Supreme Court’s opinion in Seifert, 750 So.2d at 636, had substantially changed Florida law by broadly requiring Florida to adhere to federal law on the subject of arbitration. We disagree with this analysis, since Florida courts were clearly required to follow federal law even before Seifert (at least in the vast majority of cases where interstate commerce is implicated). See, e.g., Trojan Horse, Inc. v. Lakeside Games, 526 So.2d 194 (Fla. 3d DCA 1988). The problem here is not any attempted non-compliance with federal law but rather the fact that the federal circuits are themselves split on whether a showing of prejudice is required. See Raymond James, 851 So.2d at 857-58 (and cases cited therein). In this circumstance we are free to follow what we perceive to be the better reasoned approach.

The trial court also erred in its alternative reliance on the Colorado venue selection clause. While venue selection clauses are valid, Friedman v. Am. Guardian Warranty Servs., Inc., 837 So.2d 1165 (Fla. 4th DCA 2003), any objection to venue is waived if it is not raised in the defendants’ answer. Copelco Leasing Corp. v. Besi Photo Shop, Inc., 678 So.2d 17, 18 (Fla. 4th DCA 1996); MacDonald v. MacDonald, 444 So.2d 531 (Fla. 1st DCA 1984). The filing of amended pleadings does not revive a waived venue argument. Id. In this case, the defendants answered without raising any venue objection. Hence, their right to a Colorado venue was also waived.

We reverse the dismissal of the Second Amended Complaint and remand for further proceedings consistent with this opinion.

STONE and KLEIN, JJ., concur.

      . The copy of the complaint served on the defendants in Colorado did not have any contracts attached but defendants concede that they were provided a copy of the Shareholder Agreement at the hearing on their first motion to dismiss, early in the litigation.

      . Defendants claim misconduct on the part of MEP in failing to attach one or both agreements to the copy of the complaint served on them. However, MEP had no obligation to attach the Licensing Agreement to any version of the complaint, since it never sued on that agreement. Fla. R. Civ. P. 1.130(a) (2003). While it apparently failed to attach the copy of the Shareholder Agreement to the service copy of the original complaint sent to Colorado, that is immaterial since that agreement contained no arbitration clause. Moreover, even after the defendants were provided a copy of the Shareholder Agreement at the hearing on its first motion to dismiss, they still did not seek arbitration but instead chose to answer and defend on the merits.


author: WARNER, J.

text:
    J.L., S.L. and K.L., Appellants, v. G.L., the Father, and Department of Children and Family Services, Appellees.
    No. 4D03-1999.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Hank Jackson and Joseph J. Ward of Holland & Knight LLP, West Palm Beach, for appellants.
    James L. Eisenberg and Kai Li Aloe Fouts of Eisenberg & Fouts, P.A., West Palm Beach, for appellee G.L.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Family Services.
   WARNER, J.

The guardian ad litem of J.L., S.L. and K.L. appeals the trial court’s order denying the children’s request to order their father, whose parental rights were terminated, to continue post-termination child support. We agree with Ponton v. Tabares, 711 So.2d 125 (Fla. 3d DCA 1998), that the father’s legal obligation to provide child support ended when the court terminated his parental rights. Therefore, the court did not err in denying the request to continue child support for his children.

The father’s parental rights were terminated after he was charged with criminal failure to protect his children from continued beatings by their stepmother. These acts led to substantial psychological damage to at least one of the children. During the time the petition was pending, the father paid child support, as he was earning around $100,000 per year. However, as part of the plea agreement to the criminal charges, he agreed to the termination of his parental rights to the Department of Children and Families, who would seek adoptive placement. In addition, the father agreed to establish a trust of $6,500 for each of the three children to be paid when they reached the age of eighteen.

At the hearing on the termination, the court ordered the father’s rights to be terminated but denied the guardian’s request for continued child support. Although the court believed that it had the authority to order the father to pay child support, the court found that the plea agreement already required the father to pay $6,500 per child. The court therefore denied any further award. The guardian appeals the order denying child support.

In Ponton v. Tabares, the third district faced the same question presented in this appeal, namely whether a parent whose rights have been terminated may still be ordered to pay child support for those children. The court noted that the obligation to pay child support is placed on “parents.” See, e.g., § 61.13(l)(a), Fla. Stat. (2003) (“In a proceeding for dissolution of marriage, the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30.”); § 39.521(l)(d)7, Fla. Stat. (2003) (court’s powers of disposition where child is in out-of-home placement include power to require “child support to be paid by the parents”). A parent is defined as:

a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under s. 63.062(l)(b). If a child has been legally adopted, the term “parent” means the adoptive mother or father of the child. The term does not include an individual whose parental relationship to the child has been legally terminated ...

§ 39.01(49), Fla. Stat. (2003) (emphasis added). Therefore, because the father’s rights were terminated, he no longer qualifies as a parent and thus no longer has the legal obligation to pay child support.

While this result leaves the children without support from a father who could well afford to provide for his children, the Department points out that there are other considerations which may militate against a law which requires support from a parent whose rights are terminated. As it suggests in its brief, severance of all ties with the parent may be in the child’s best interest. Moreover, the legal option of permitting child support may prevent some children from receiving support from other sources, such as social security.

The law as presently stated is clear and unambiguous and does not provide the legal authority to a court to order a parent whose parental rights have been terminated to pay child support. While we disagree with the court’s reasoning, we affirm the order of the trial court denying child support.

Affirmed.

GROSS and HAZOURI, JJ., concur.

      . The court relied on Morris v. Stone, 236 So.2d 455, 457 (Fla. 1st DCA 1970). However, that case was decided under the repealed Juvenile Court Act, which permitted the court to order parents to pay child support even where the child was permanently committed to an institution for adoptive placement. That statute was repealed and has never been reenacted. While the court also relied on Kranz v. Kranz, 661 So.2d 876 (Fla. 3d DCA 1995), which held that the adoption of a minor child did not relieve the parent from an accrued child support obligation, that case is inapplicable to the present inquiry.

      . What is disconcerting in this case is that the father agreed to make some payments to his children as a part of his plea agreement. However, these are future payments and are not available, for instance, to pay the oldest child’s psychiatric treatment. It was within the state’s authority in the criminal case to negotiate a plea where the children, as victims, received compensation for their injuries. We see no reason why a plea and probation agreement could not provide for the victims of the father’s crimes. In this case, the state negotiated an agreement which did not include such compensation.


text:
    STATE of Florida, Appellant, v. J.L., a child, Appellee.
    No. 4D03-679.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   TAYLOR, J.

The state filed an appeal from a juvenile court order reinstating appellee’s probation, contending that the court erred in continuing the juvenile’s probation without first ordering a predisposition report. We dismiss the appeal for lack of jurisdiction.

Appellee’s probation officer filed an affidavit alleging that appellee committed several violations of probation. Appellee admitted to the violations and the court scheduled a disposition hearing. At the hearing, appellee’s probation officer recommended that appellee be continued on probation so that he could attend the Florida Ocean Science Institute (FOSI). The state announced that it would be seeking residential commitment and asked the trial court to order a predisposition report (PDR) pursuant to section 985.229, Florida Statutes (2001). The court declined and continued appellee’s probation, with an additional condition that he complete the FOSI program. The state appealed.

Initially, as authority for its position that the court erred in failing to order and consider a predisposition report before making a final disposition in this case, the state relied on section 985.229(2), Florida Statutes, B.B. v. State, 647 So.2d 268, 269 (Fla. 4th DCA 1994), and R.K. v. State, 834 So.2d 358, 359 (Fla. 4th DCA 2003). Section 985.229(2), Florida Statutes, provides that:

The court shall consider the child’s entire assessment and predisposition report and shall review the records of earlier judicial proceedings prior to making a final disposition of the case.

Subsequently, in response to our order to show cause why this appeal should not be dismissed for lack of jurisdiction, the state conceded that it lacked authority to appeal the court’s order continuing probation without a predisposition report.

Section 985.234(l)(b)(5), Florida Statutes (2003), allows the state to appeal “a disposition, on the ground that it is illegal.... ” See also Fla. R.App. P. 9.145(c)(1)(G). Here, although the state, in its initial brief, argued that the court erred in refusing to order a predisposition report before continuing appellee’s probation, it did not contend that the order continuing probation was an “illegal disposition” beyond the court’s statutory power to impose. The state now acknowledges that its claim of procedural error preceding reinstatement of appellee’s probation is not equivalent to a challenge of an illegal disposition entitling it to appellate review. See State v. F.G., 630 So.2d 581, 584 (Fla. 3d DCA), aff'd, 638 So.2d 515 (Fla.1994)(“A claim of procedural error leading up to the entry of the disposition orders does not render the disposition ‘illegal’ for purposes of a state appeal under Rule of Appellate Procedure 9.145(d).”).

Accordingly, we dismiss this appeal.

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


text:
    Sundarampillai JEYANANDARAJAN, Appellant, v. Barry S. FREEDMAN and B.F. Enterprises, Inc., Appellees.
    No. 4D03-548.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Joel B. Blumberg of Joel B. Blumberg, P.A., West Palm Beach, for appellant.
    William M. Layton, Lake Worth, for ap-pellees.
   PER CURIAM.

Appellant, Sundarampillai Jeyanandara-jan, appeals from the final judgment entered against him after the trial court denied his motion to vacate a default judgment. He argues that he presented sufficient evidence of excusable neglect and as a result the trial court should have vacated the default. Appellees, Barry S. Freedman and B.F. Enterprises, Inc., have cross-appealed the trial court’s denial of them claim for attorney’s fees incurred under section 57.105, Florida Statutes (2002).

On June 24, 2002, appellees filed a complaint against appellant for the return of their security deposit and their pre-paid rent. When appellant failed to respond to the complaint by September 26, 2002, ap-pellees filed a motion for default. The clerk of court entered a default on October 1, 2002.

On October 16, 2002, appellant’s counsel filed his notice of appearance and on behalf of appellant filed a motion to vacate the default. In the motion, appellant alleges that the summons and complaint were served on his wife on August 28, 2002, when his family was in the process of moving. The return of service confirms this date and that appellant’s wife was the person served. Appellant’s wife did not inform him of the service and he only became aware of the lawsuit on October 2, 2002, after reviewing papers at his new residence. Appellant denied the allegations of the complaint and alleged that he had meritorious defenses. He also intended to file a counterclaim for breach of the lease agreement.

Also filed with the motion was appellant’s affidavit in which he averred that he learned of the complaint on October 2, 2002, when he discovered the summons and complaint under a stack of papers. His wife had been served and did not tell him. They had recently moved from the address in California at which he was served to another California address.

On November 12, 2002, the trial court denied appellant’s motion to vacate and found that the reasons set forth in appellant’s affidavit were insufficient to vacate the default.

A week later, appellant filed his Answer, Affirmative Defenses and Counterclaim. Appellees moved to strike the pleading as a sham and requested attorney’s fees which they incurred as a result of responding to the sham pleading. The trial court granted appellees’ motion to strike but denied their request for attorney’s fees.

Thereafter, appellant filed a motion for reconsideration of the trial court’s refusal to vacate the default arguing that he filed his motion to vacate only fourteen days after the default was entered, that he demonstrated excusable neglect, and that it was a clerk’s default not a final default judgment. The trial court refused to vacate the default. Finally, at the hearing on appellees’ motion for final judgment, appellant again asked the trial court to reconsider its decision. The trial court refused and granted the motion. It entered final judgment for appellees in the total amount of $21,009.10. Appellees again requested attorney’s fees which the trial court denied.

This court set forth the standard of review of an order entered on motion to vacate a default in Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001). We held:

Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits. See N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla.1962). In implementing this policy, “if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits.” Id. at 853 (quoting State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 43 (Fla.1931)). An order denying a motion to vacate a default is reviewed under an abuse of discretion standard. See George v. Radcliffe, 753 So.2d 573, 575 (Fla. 4th DCA 1999). It is an order granting a motion to vacate which is reviewed under a gross abuse of discretion standard. Id. McKinzie By & Through McKinzie v. Hollywood, Inc., 421 So.2d 606, 607 (Fla. 4th DCA 1982).

In Shurgard Storage Centers, Inc. v. Parker, 755 So.2d 695, 696 (Fla. 4th DCA 1999), this court stated what to consider when deciding whether to vacate a default:

This court has previously stated that “[w]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.” Gateway Am. Bank of Fla. v. Lucky Jet Corp., 720 So.2d 1141, 1142 (Fla. 4th DCA 1998) (citations omitted).

In Somero v. Hendry General Hospital, 467 So.2d 1103 (Fla. 4th DCA 1985), this court discussed a number of default cases and concluded:

The pattern which emerges from these and the myriad of cases not cited here is best stated negatively: a default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act. The failure to state any factual grounds upon which the movant relies has also been held to be an insufficient basis for setting aside a default.

Id. at 1105-06.

The third district considered a case similar to the instant case in Roberts v. Safeway Insurance Co., 610 So.2d 700 (Fla. 3d DCA 1993). Safeway filed a subrogation action against Roberts for an accident involving his truck. Service of the complaint was made on Roberts’s wife but she never gave it to him or told him about it. A default was entered and Roberts did not find out until six months later when he went to renew his driver’s license. After the trial court denied Roberts’s motion to set aside the default, stating that there were insufficient reasons for the failure to respond, Roberts moved for reconsideration and filed affidavits in support. In the wife’s affidavit, she said that when she received the complaint she had been arguing with Roberts and was not speaking to him. She threw the papers away. The trial court denied the motion for reconsideration. On appeal, the third district held: “Roberts’ explanation for his failure to respond to the complaint in a timely manner constituted excusable neglect.” Id. at 701.

In the instant case, although appellant’s wife did not intentionally fail to give appellant the summons and complaint, her failure to give appellant the papers during the confusion of moving resulted in a “reasonable misunderstanding” that constituted excusable neglect. The trial court abused its discretion in denying appellant’s motion to vacate the default. Therefore, we reverse and remand for further proceedings. As a result of our vacating the default, the point raised by appellees on cross-appeal is moot.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Roshawn T. STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-118.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Roshawn Stephens was charged by information on four counts. He moved to sever counts two and three from counts one and four. Because the trial court improperly denied Stephens’s motion, we reverse and remand.

Stephens was charged in count two with grand theft auto, and in count three with burglary of a structure or conveyance. The charges in counts two and three resulted from the theft of a Dodge Durango on or about October 19, 2001 from the home of Brian Jennings in Boynton Beach. In another incident, unrelated to counts two and three, Stephens was charged in count one with burglary with assault or battery and in count four with petit theft. Counts one and four resulted from the theft of the purse of Susan Watson, a seventy-seven-year-old woman, and the ensuing assault on her person.

The theft and assault occurred at a gas station, around noon on October 19, 2001 in North Palm Beach. Watson was pumping gas and had left the driver’s side door of her car open. She had also left her purse in the car. As Watson pumped her gas, she looked up and saw a young man standing in front of her open car door. She recognized this young man as the driver of an SUV who had pulled up on the opposite side of the pump. At trial, Watson testified that she now knows that the SUV was a Dodge Durango. The man reached into the car and grabbed Watson’s purse. As he did this, Watson grabbed the young man and held onto his shirt. As Watson would not let go, the young man dragged her to the driver side door of the Durango. The man was trying to get into the driver’s seat and eventually shoved Watson to the ground. Watson hit the concrete face-first. She lost consciousness briefly and did not know where the man or the Durango went after that.

At trial, Stephens moved to sever the Durango case from the Watson case. The trial court ruled that the two cases would be tried separately, but the State would be permitted to introduce evidence of the Durango theft in the Watson case. Stephens responded that he did not “want this kind of severance” as it would not be meaningful. We agree with Stephens, rejecting the State’s argument that because the severance was not denied this issue has not been preserved for review.

The purpose of separate trials is “ ‘to assure that evidence adduced on one charge will not be misused to dispel doubts on the other.’ ” State v. Williams, 453 So.2d 824, 825 (Fla.1984) (quoting Paul v. State, 365 So.2d 1063, 1066 (Fla. 1st DCA 1979) (Smith, J., dissenting), adopted in, Paul v. State, 385 So.2d 1371, 1372 (Fla.1980)).

In this case, severing the two cases but admitting the evidence defeats the purpose of severing cases, which is to exclude evidence of the other crimes. As the concern in joining offenses is the effect of the evidence of the other charge and not just the charge, the trial court’s ruling, allowing evidence of the other two counts to be used, effectively denied Stephens’s motion to sever. Thus, this issue was preserved.

The standard of review for the denial of a motion for severance is abuse of discretion. Bateson v. State, 761 So.2d 1165, 1169 (Fla. 4th DCA 2000) (citations omitted). In order for joinder of Stephens’s offenses to have been proper, his offenses must be connected in a “significant way.” Ellis v. State, 622 So.2d 991, 1000 (Fla.1993). “This can include the fact that they occurred during a ‘spree’ ... or the fact that one crime is causally related to the other.” Id. (citations omitted).

“For ‘crime spree’ offenses to be tried together, they generally require both temporal and geographical proximity, as well as a similarity between the offenses.” Hutchinson v. State, 731 So.2d 812, 815 (Fla. 5th DCA 1999). Here, it is arguable that the two crimes were connected temporally and geographically. However, “temporal and geographic proximity is not sufficient in itself to justify joinder.” Ellis, 622 So.2d at 1000. In this case, the third requirement for a crime spree is not satisfied as there is not a similarity between the two offenses.

In the Durango case, counts two and three, Stephens is charged with stealing an SUV. In the Watson case, counts one and four, he is charged with assaulting a worn-an and stealing her purse. While both instances involve theft, there is not enough similarity in the nature and manner to link the two crimes together as a crime spree. Other cases where courts have identified crime sprees in the context of considering motions for severance have dealt with crimes that had a much higher degree of similarity than the crimes in this case. See Rolling v. State, 695 So.2d 278, 295-96 (Fla.1997) (where the court stated the defendant went on a crime spree when he stabbed to death five college students in their apartments within a seventy-two hour period); Bundy v. State, 455 So.2d 330, 334, 335 (Fla.1984), abrogated on other grounds, Fenelon v. State, 594 So.2d 292, 294 (Fla.1992) (where the court found that when the defendant attacked four women in a sorority house with a blunt weapon, killing two of them, and attacked a fifth woman with a blunt weapon about an hour later a few blocks away, the crimes were linked by “the close proximity in time and location, by their nature, and by the manner in which they were perpetrated”); Rohan v. State, 696 So.2d 901, 902-03 (Fla. 4th DCA 1997), abrogated on other grounds by, State v. Smith, 840 So.2d 987, 990-91 (Fla.2003) (where the court found the defendant went on a crime spree when he burglarized an apartment and then a dorm room in less than an hour) Here, there is not a meaningful relationship between the theft of the car and the assault and robbery. Thus, Stephens’s actions did not constitute a crime spree and cannot provide a basis for joinder.

The second situation justifying joinder, situations where there is a causal link between two offenses, also does not apply to the facts in this case. Cases where there is a causal link between two offenses are those in which “[o]ne crime was used to induce the other.” Ellis, 622 So.2d at 1000. For example, in Fotopoulos v. State, 608 So.2d 784, 789-90 (Fla.1992), the defendant coerced a woman to kill a man while he videotaped her crime and then later used this videotape as blackmail to coerce the woman to murder his wife. Similarly, in Livingston v. State, 565 So.2d 1288, 1290 (Fla.1988), the court found it was proper to join the offenses as the pistol stolen from an earlier burglary was used to commit another robbery and murder. Unlike the cases described above, the stolen car did not cause the assault and robbery of Watson.

In Crossley v. State, 596 So.2d 447, 448 (Fla.1992), the defendant committed his first offenses when he briefly kidnapped Betty White, robbed her, and then released her, stealing her car. Crossley’s second offense occurred a few hours later when he committed an armed robbery of the Banner Food Store, which was located about two miles from where he released his kidnapping victim. Id. The court found that “though Crossley was arrested after the ... robbery [of the store] while driving White’s car there is no evidence that Crossley used White’s car to perpetrate the [store] robbery.” Id. at 450. Here, while the Durango was used to get to the gas station and later to leave it, there is no evidence that it aided Stephens in perpetrating the crimes committed against Watson.

We find the State’s argument that any error in this case was harmless to be unpersuasive. Thus, we find the trial court reversibly erred when it denied Stephens’s motion for severance. Therefore, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: PER CURIAM. POLEN, J.,

text:
    Margaret GIVENTER, Petitioner, v. Michael GIVENTER, Respondent.
    No. 4D03-2790.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Robert A. Stok and Andrew S. Feuer-stein of Stok & Associates, P.A., Aventura, for petitioner.
    Robert W. Sidweber of Robert W. Sid-weber, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

Margaret Giventer (the mother) filed a petition for writ of prohibition, seeking to prohibit the Broward County circuit court from exercising further jurisdiction in connection with child visitation enforcement proceedings initiated by her former husband, Michael Giventer (the father). The mother filed the petition after the trial court denied both her cross-motion to dismiss, based on lack of subject matter jurisdiction, and her subsequent motion to vacate that ruling. We deny the petition.

When the mother and father were both residing in Florida, after their divorce, they entered into a mediated settlement agreement, which provided that the mother and minor children would relocate to Colorado in June 2002, and that the court would retain jurisdiction until the mother’s relocation to Colorado. On May 30, 2002, a Broward County Circuit Court judge approved and adopted the agreement in an order specifically providing that the court reserved jurisdiction to enforce the order. The mother and children then moved to Colorado, and the father later moved to Texas.

On June 3, 2003, after experiencing difficulties in exercising his visitation rights, the father filed a motion in the Broward court to compel summer visitation with the minor children in accordance with the parties’ agreement. The mother cross-moved to dismiss for lack of subject matter jurisdiction because by then neither party resided in Florida. On June 12, 2003, the trial cornd denied the mother’s motion to dismiss, noting that no one had filed an action in Colorado. The trial court also granted the father’s motion and ordered that the father be given seven weeks of visitation with the two children, beginning June 22, 2003. However, the written order was not filed until July 17, 2003, by which time the father’s attempts to exercise this visitation had been frustrated.

On June 27, 2003, the mother instituted proceedings in Engle County, Colorado, filing a verified motion to modify parenting time. The father moved the Broward court for contempt and other relief. The mother moved to vacate the ruling denying her cross-motion to dismiss for lack of subject matter jurisdiction. She also replied to the father’s contempt motion, insisting that the Florida court did not have subject matter jurisdiction to entertain the father’s motion to compel summer visitation or his motion for contempt. The mother’s motion advised the court of the pending Colorado proceeding. At a hearing on July 15, 2003, the trial court explained that it would continue to exercise jurisdiction until a judge in Colorado called to discuss the matter.

We deny the petition for writ of prohibition because we find the Broward circuit court did have subject matter jurisdiction to enforce visitation pursuant to its previous modification order. The order had been entered at a time when the court clearly had jurisdiction to enter a modification order under the Uniform Child Custody Jurisdiction Act; Florida then was the home state of the children and both parents. See § 61.1308(l)(a), Fla. Stat. (2001). Although the current statutes concerning enforcement of visitation provisions are not clear when applied to the instant fact situation, we conclude that the father’s proceeding to compel summer visitation fell within section 61.527, concerning “temporary visitation.” That statute provides as follows:

(1) A court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:
(a) A visitation schedule made by a court of another state; or
(b) The visitation provisions of a child custody determination of another state which does not provide for a specific visitation schedule.

§ 61.527(1), Fla. Stat. (2003).

Although the May 30, 2002 order adopting the parties’ mediated settlement agreement was not “made by a court of another state,” it contained visitation provisions and was entered by a court which had jurisdiction to modify the child custody determination at the time it was rendered. If the Broward court could enforce the visitation provisions made by a court of another state, it stands to reason that it could also enter temporary orders to enforce its own visitation provisions as well.

However, because the parties’ agreement did not set out a specific schedule for summer visitation, the Broward court’s order on the father’s motion to compel summer visitation falls within subsection 61.527(l)(b); thus, the Broward court should have specified a period in which the father had to obtain an order from a court having jurisdiction to modify under section 61.514-.523. Under the facts of this case, that would have been a court in Colorado.

Section 61.530, providing for simultaneous proceedings, states that an enforcement proceeding in this state may continue even after the court learns that a proceeding to modify is pending in another state with jurisdiction to modify; in that case, the enforcing court must first communicate with the modifying court, but the enforcement proceeding continues unless the enforcing court stays or dismisses it after communicating with the modifying court. By the time the lower court entered the July 17, 2003 written order compelling summer visitation, it had been advised of the commencement of the Colorado proceeding, in which the mother sought modification of the child custody determination in the form of a modification of the visitation provisions of the mediated settlement agreement. Based on section 61.530, the Broward circuit court should have communicated with the Colorado court as soon as it was advised of the Colorado proceeding.

Accordingly, while we deny the petition because the lower tribunal did have jurisdiction to enforce the visitation provisions of the modification agreement, we point out that actions should have been taken at the outset of the enforcement proceedings to involve a court in Colorado, as discussed above.

GUNTHER and TAYLOR, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I concur entirely with the majority’s denial of this Petition for Writ of Prohibition. I write separately to note my concern regarding the trial judge’s responsibilities under the former UCCJA, now UCCJEA, sections 61.501-61.542, Florida Statutes (2002). In this case we seem to have one-half of that infamous duo: Alfonse and Gastone. By that I mean, the trial judge below seemed to take the position she would confer with the Colorado judge when that judge called her. (“You first; no, you first.”) The clear requirement of section 61.530 is that the enforcing court (Florida) “shall immediately communicate with the modifying court.” (Emphasis supplied.) Where interests of children are held to be of the utmost urgency, it does not serve that interest to say, “I’ll wait for him/her to call me.”

      . Effective October 1, 2002, the UCCJA, sections 61.1302-.1348, was amended and renamed as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered as sections 61.501-.542, Florida Statutes (2002).

      . Subsection 61.527(2) provides as follows:
      (2) If a court of this state makes an order under paragraph (l)(b), it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in ss. 61.514 61.523. The order remains in effect until an order is obtained from the other court or the period expires.

      . The statute provides as follows:
      If a proceeding for enforcement under ss. 61.524-61.540 is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under ss. 61.514-61.523, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
      § 61.530, Fla. Stat. (2003).


text:
    Brian J. BOLLACI, Appellant, v. Naomi C. NIEPORTE-BOLLACI, Appellee.
    No. 4D03-226.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

Brian Bollad appeals a final judgment of dissolution of marriage. We affirm on all issues except the one challenging the trial court’s requirement that appellant and his former wife share equally in any proceeds that appellant might receive in the future from his pending personal injury claim.

A few months after the former wife filed a petition for dissolution of marriage, appellant was involved in an automobile accident. During the dissolution of marriage trial, neither party presented any evidence concerning the circumstances surrounding the accident, the nature and extent of any injuries sustained by appellant, the filing of a personal injury lawsuit, or any settlement negotiations. However, in the final judgment of dissolution of marriage, the trial court ordered as follows:

The parties shall equally share in any proceeds receivefd] from Husband’s claim in connection with Husband’s automobile accident on May 20, 2002. Husband shall immediately provide to Wife any settlement documents and judgments in connection with said case.

We agree with appellant that the court erred in treating the proceeds of his personal injury claim as marital assets and equally distributing them. In Weisfeld v. Weisfeld, 545 So.2d 1341 (Fla.1989), the supreme court held that in determining whether a worker’s compensation award is marital property, the trial court should use an analytical, rather than a mechanistic or unitary, approach. The court should consider the purpose of the award and focus on the award’s “elements of damages.” Id. at 1343. Only that portion of damages paid to the injured spouse as compensation for past lost wages and loss of earning capacity is to be considered marital property. Id. at 1345. Damages for future loss of earnings and loss of earning capacity and future medical expenses are the separate property of the injured spouse, although they may be considered in fashioning alimony and support awards. Id.; see also White v. White, 820 So.2d 432 (Fla. 4th DCA 2002)(citing Weisfeld and holding that future lump sum payments to husband pursuant to settlement of his workers’ compensation case were not marital assets).

Here, because neither side presented evidence from which the court could determine whether the proceeds from appellant’s personal injury claim are subject to equitable distribution, we reverse that portion of the equitable distribution relating to appellant’s personal injury claim and remand with directions to vacate it.

AFFIRMED in part; REVERSED and REMANDED in part.

STONE and KLEIN, JJ., concur.


text:
    Stephen RAKUSIN, Appellant, v. CHRISTIANSEN & JACKNIN, P.A., Appellee.
    Nos. 4D03-26, 4D03-1609.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Stephen Rakusin of Stephen Rakusin, P.A., Fort Lauderdale, pro se.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   WARNER, J.

Stephen Rakusin (“Rakusin”) appeals the final order awarding Christiansen, and Jacknin, P.A., attorney’s fees and costs based upon the court’s inherent authority to assess attorney’s fees in cases involving bad faith litigation. See Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996). While we agree that the court had the authority to assess fees in the circumstances , of this case, the court erred in making the award absent expert witness testimony as to the reasonableness of the fees, and in failing to determine the reasonable hourly rate and reasonable number of hours attributable to the bad faith activity. We therefore reverse. .

Appellee Christiansen and Jacknin, P.A., was discharged from representation of Elizabeth Heller (“Heller”) in her dissolution of marriage proceeding. Heller never paid the bill for services rendered, and Christiansen and Jacknin filed a notice of charging lien. Appellant Rakusin substituted as counsel for Heller in the proceedings, and a final judgment was entered in March 2001.

Subsequent to the entry of the final judgment, Christiansen and Jacknin moved to adjudicate its charging lien. From the point that the motion was filed, it appears that Rakusin attempted to do everything he could to delay the proceedings, including, on several occasions, agreeing to the setting of depositions only to call the day before and cancel or refuse to appear. He also failed to provide documents demanded in discovery, even after agreeing to do so, in order to avoid scheduled hearings on motions to compel. Christiansen and Jacknin filed a motion for sanctions against Rakusin. Finally, Heller agreed to the amount for the claim of lien, and the court approved a settlement reserving jurisdiction to consider the sanction motion against appellant.

At the hearing, attorney Christiansen testified to the attempts Christiansen and Jacknin made to settle the case and the delaying tactics employed by Rakusin to prevent the matter from concluding. He admitted a summary of his fees and costs into evidence and testified that in his opinion the fees and costs were reasonable in Palm Beach County for the services provided. He did not present any expert testimony as to the reasonableness of the fees.

Ultimately the court granted the motion for sanctions, finding that Rakusin had engaged in bad faith litigation, and awarded attorney’s fees to Christiansen and Jacknin. Starting with the amount billed by Christiansen and Jacknin, the court concluded that the charging lien matter could have been resolved in half the time actually incurred had it not been for Raku-sin’s antics. Therefore, the court ordered Rakusin to pay half the bill, $6,414.32. It is from this order Rakusin appeals.

Even when an attorney’s fee award is entered as a sanction, it must be supported by expert evidence as to the reasonableness of the amount of time expended and the reasonableness of the hourly fee. See Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000). This court has explained that

[a]n award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Additionally, the award must be supported by expert evidence, including the testimony of the attorney who performed the services. The same principle applies whether the attorney’s fee award is post-judgment or a discovery sanction.

Id. (citations omitted). Although we noted in Island Hoppers, Ltd. v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002), that Florida courts have demanded the testimony of a corroborating expert as to the reasonableness of fees, we questioned the advisability of this requirement in every case, noting that “our trial judges have become highly experienced in all aspects of litigation, often with knowledge equal to, or in some cases far superior to, that of those attorneys who are called upon to provide expert testimony as a ‘fees witness.’ ” Id. at 972. However, agreeable or not, the existing case law requires the presentation of corroborating testimony of the reasonableness of attorney’s fees.

Appellee cites to Eve’s Garden, Inc. v. Upshaw & Upshaw, Inc., 801 So.2d 976 (Fla. 2d DCA 2001), as standing for the proposition that an expert witness is not needed when the fee award is made as a sanction. That case confirms the necessity for such corroborating evidence. In Eve’s Garden, the second district found that a court has the discretion to award attorney’s fees as sanctions in the amount of the hourly rate charged by the attorney, even if that rate differs from the rate customarily charged in the locality. Because the attorneys seeking the sanctions were from Tampa (as were those defending the suit), the court determined that the trial court could award a sanction fee based upon a reasonable hourly rate charged in Tampa instead of Dade City where the litigation was brought. However, the facts related in the opinion reveal that corroborating expert evidence of a reasonable hourly rate and reasonableness of the hours expended were offered at the hearing.

We therefore conclude that the court erred in awarding fees without corroborating expert testimony of their reasonableness. In Young v. Taubman, 855 So.2d 184 (Fla. 4th DCA 2003), in a similar situation, we permitted the court to take further evidence on remand to cure the defect, explaining:

Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary. As the instant case falls into this latter category, we reverse the fee award and remand for further proceedings.

Id. at 186-87 (citation and footnote omitted). Because there was some evidence to support the award in the form of lawyer Christiansen’s testimony and detailed billing statement, we also reverse and remand for further proceedings.

Finally, we also reverse for the trial court to make specific findings as to the reasonable hourly rate and reasonable number of hours attributable to the bad faith activity. An award of attorney’s fees as a sanction must contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. See Tutor Time Merger Corp., 763 So.2d at 506; Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So.2d 1283, 1289 (Fla. 1st DCA 1993).

Reversed and remanded for further proceedings.

GUNTHER and MAY, JJ., concur.

      . All of the proceedings occurred within the dissolution file of Heller v. Heller, Fifteenth Judicial Circuit Case No. 00-8092, and the notice of appeal was filed in that case. We have restyled this opinion to reflect the true parties to the order being appealed.