author: PER CURIAM.

text:
    Ex parte Jeremy Shawn BENTLEY. (In re State of Alabama v. Jeremy Shawn Bentley).
    CR-02-0134.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2002.
    Lila V. Cleveland, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Jeremy Shawn Bentley, filed this petition for a writ of mandamus directing Judge Herman Y. Thomas to re-cuse himself from presiding over Bentley’s capital-murder trial. Bentley was indicted for murdering Jamie Tolbert during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(l), Ala.Code 1975. In September 2002, Bentley’s attorney learned that Bentley, who is currently incarcerated in the Mobile County jail while awaiting trial, had sent several letters to Judge Thomas. The letters contained threats and included statements that Judge Thomas had “sold [his] soul to Lucifer.” One letter contained a dead lizard with the caption that “Judge Thomas would die like his lizard spy.” Bentley filed a motion for Judge Thomas to recuse on the ground that Judge Thomas was prejudiced against him because of the threats contained in the letters. Thomas denied the motion after a hearing; this petition followed. Bentley also filed a motion to stay the proceedings in circuit court. This Court denied the motion to stay. We now address the merits of Bentley’s petition.

Mandamus is the appropriate vehicle by which to review a trial court’s ruling denying a motion to recuse. See Ex parte Cotton, 638 So.2d 870 (Ala.1994). “However, the writ of mandamus is a drastic and extraordinary remedy and should be issued only upon a clear showing that the trial court has abused its discretion by exercising it in an arbitrary and capricious manner.” 638 So.2d at 872.

Canon 3.C. of the Alabama Canons of Judicial Ethics, addresses those situations where a trial judge should recuse herself or himself from presiding over a case. Canon 3.C. reads, in part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

Applying the standard articulated in the Canons, the Alabama Supreme Court has stated: “The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality — whether there is an appearance of impropriety.” Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.1994).

Our research has revealed no Alabama case specifically addressing the issue presented here — whether a defendant’s threats towards a trial judge require that judge to recuse himself or herself from the defendant’s case. However, other state and federal courts have addressed this issue. The consensus is that, barring extraordinary circumstances, a defendant will not be allowed to profit from his own misconduct. As the Washington Court of Appeals stated in State v. Bilal, 77 Wash. App. 720, 893 P.2d 674 (1995), a case involving a defendant’s threat toward the judge presiding over his trial:

“This is a case of first impression in Washington. However, other jurisdictions have dealt with the issue of trial court recusal under an appearance of impartiality analysis in circumstances of assault or threat by a party or person associated with a party. See Annotation, Disqualification of Judge because of Assault or Threat Against Him by Party or Person Associated With Party. 25 A.L.R.4th 923 (1983). We note that the federal courts are governed by the federal rules of judicial conduct. See 28 U.S.C. § h55 (federal bench regulated by the appearance of impartiality standard). We further note that other state jurisdictions apply an appearance of impropriety standard similar to Washington’s appearance of fairness doctrine. Regardless of the standard used, however, all jurisdictions agree that a defendant should not benefit from his or her own misbehavior and that recusal lies within the sound discretion of the trial court. See, e.g., Bisignano v. Municipal Court of Des Moines, 237 Iowa 895, 23 N.W.2d 523 (1946), cert. denied, 330 U.S. 818, 67 S.Ct. 674, 91 L.Ed. 1270 (1947) (judge not required to recuse after being assaulted by defendant while court was in session).”

77 Wash.App. at 722, 893 P.2d at 675.

The Supreme Court of Illinois in People v. Hall, 114 Ill.2d 376, 499 N.E.2d 1335, 102 Ill.Dec. 322 (1986), upholding a' trial judge’s refusal to withdraw from a case after the defendant had had an outburst in the courtroom and had struck his attorney and the trial judge, stated:

“We cannot presume a failure of impartiality of a trial judge even under extreme provocation. Judges are called upon to preside over the trial of onerous causes and persons. By definition, however, a trial judge is required to ignore provocations and pressures, whether public or from individuals.... To hold that the law requires a substitution of judges under circumstances similar or comparable to those here would invite misconduct toward judges and lawyers, and a practice would develop that the grosser the misconduct the better the chances to avoid trial with an undesired judge or lawyer.”

114 Ill.2d at 407, 499 N.E.2d at 1347, 102 Ill.Dec. at 334.

In a similar situation, the Louisiana Court of Appeals in State v. Prater, 583 So.2d 520 (La.Ct.App.1991), upholding the denial of a motion to recuse after the defendant had sent the trial judge threatening letters, stated:

“In the present case, defendant seeks recusal of the trial judge as a result of defendant’s own conduct. The only Louisiana case dealing with a situation similar to this was State v. Garrison, 244 La. 787, 154 So.2d 400 (1963), reversed on other grounds, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In Garrison, prior to his trial on charges of criminal defamation, the defendant had issued a press release critical of all Louisiana judges. Defendant then filed a motion to recuse the presiding judge which was ultimately denied. In a Federal case against the same defendant, [United States] v. Garrison, 340 F.Supp. 952 (E.D.La.1972), defendant again sought recusal of the trial judge based upon defendant’s press release critical of the court’s ruling against him in another case. The Federal court in [United States] v. Garrison, denied defendant’s motion because to grant the recusal motion would .allow any defendant to get rid of a particular judge based upon defendant’s conduct in making derogatory statements.
“Granting Prater’s motion to recuse the trial judge based upon conduct by Mr. Prater would open the doors for. any defendant to get rid of a presiding judge by the simple expedient of making a threat against the judge. A defendant does not have the right to select the judge who will preside over his trial or sentencing.”

583 So.2d at 527-28.

Federal courts have likewise upheld a trial judge’s refusal to withdraw from a case in' similar situations. A New Jersey federal district court upheld a trial judge’s denial of a motion to recuse after the judge had received threats from the defendant. See In re the Extradition of Singh, 123 F.R.D. 140 (D.N.J.1988). The Court stated, “The receipt of a threat did not justify recusal. Recusal would only encourage litigants to send threats in the hope of forcing recusal and obtaining a different judge.” 123 F.R.D. at 149 (footnote omitted). See also United States v. Cooley, 787 F.Supp. 977 (D.Kan.1992). The United States Court of Appeals for the Second Circuit in United States v. Yu-Leung, 51 F.3d 1116 (2d Cir.1995), upheld a trial judge’s denial of a motion to recuse after the defendant had sent him a threatening letter. The Court stated that there was no indication that the trial judge found the threat to be credible. 51 F.3d at 1120.

The United States Court of Appeals for the Seventh Circuit in Wilks v. Israel, 627 F.2d 32 (7th Cir.1980), stated the following in upholding a trial judge’s refusal to withdraw from the case when the defendant had jumped from his chair and had assaulted the judge during the pretrial proceedings:

“A petitioner’s deliberate attack on the trial judge calculated to disrupt the proceedings will not force a judge out of a case. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971). To permit such an attack to cause a new trial before a new judge would encourage unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration.”

627 F.2d at 37 (footnote omitted).

The holdings in the above cases are consistent with Alabama law that recognizes that a defendant may not profit from his own misconduct. Recognizing the concept of invited error, we have repeatedly upheld rulings that were adverse to a defendant made as a result of actions by the defendant. See Ex parte Musgrove, 638 So.2d 1360 (Ala.1993); Bankhead v. State, 585 So.2d 112 (Ala.1991); Phillips v. State, 527 So.2d 154 (Ala.1988).

However, we realize that there will be extraordinary situations where a trial judge should recuse herself or himself because of threats. See United States v. Greenspan, 26 F.3d 1001 (10th Cir.1994). In Greenspan, the FBI notified the trial judge of a conspiracy to assassinate him that involved a defendant he was about to sentence. The court stated:

“[U]nder these unique circumstances, the trial judge should have recused himself from sentencing Greenspan. The judge learned of the alleged threat from the FBI, and there is nothing in the record to suggest the threat was a ruse by the defendant in an effort to obtain a different judge....
“... The trial court had accelerated the date of Greenspan’s sentencing, for the stated reason that the court wanted to get Greenspan into the penitentiary system as quickly as possible, and the trial court refused to grant a continuance of the sentencing hearing even though defendant’s counsel had been appointed only two days before the sentencing date. Although any one of these actions standing alone would not provide sufficient reason to believe a judge was biased against the defendant, when considered in light of the judge’s knowledge of the alleged threats against him, these factors might provide further bases for questioning the court’s impartiality.”

26 F.3d at 1006. The dramatic situation presented in Greenspan is not present in this case.

There is absolutely no indication that Judge Thomas found Bentley’s threats to be credible. The threats were made by an inmate incarcerated in the county jail awaiting a competency hearing. Like the courts cited above, we refuse to allow a defendant to manipulate the system by his own misconduct. Under the circumstances, Judge Thomas’s impartiality cannot reasonably be questioned. For the foregoing reasons, we conclude that Judge Thomas acted within his discretion in denying the motion to recuse. This petition is due to be, and is hereby, denied.

PETITION DENIED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Apparently Bentley believed that Judge Thomas had sent a “lizard spy” to his cell to spy on him.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Dan AMERSON, Jr. (In re State of Alabama v. Dan Amerson, Jr.)
    CR-01-2491.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2002.
    Dan Amerson, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Dan Amerson, Jr., filed this petition for a writ of mandamus directing Judge Gloria Bahakel to make specific findings as to why she denied his request for informa pauperis status when he filed his postconviction petition. Amer-son filed a postconviction petition attacking his 1995 convictions for robbery and burglary and a request to proceed in forma pauperis. In September 2002, Judge Ba-hakel denied his request. This petition followed.

Amerson argues in his mandamus petition that we should direct the circuit court to make specific findings as to why it denied indigency status.' He cites our holding in Lucas v. State, 597 So.2d 759 (Ala.Crim.App.1992). The State, also citing Lucas, makes the same request. See also Rule 24(a), Ala.R.App.P.. (when it denies a request for indigency status, for purposes of appellate review, the trial court should set out its reasons).

The exhibits filed with the mandamus petition reflect that Judge Bahakel stated the following when she denied Amerson’s request for indigency status:

“Petitioner’s in forma pauperis declaration was received and reviewed by the Court this date. Petitioner’s request to be granted indigency status for the purpose of filing a petition for writ of habe-as corpus is denied. The Clerk is directed to forward a copy of this CAS [case action summary] to petitioner.”

The statement of Amerson’s prison account shows that at the time that he filed the petition in the circuit court he had approximately $21 in his account. It also appears that Amerson’s request to proceed in forma pauperis complied with the requirements set out in Rule 32.6(a), Ala. R.Crim.P. Rule 32.6(a), states, in part:

“If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the In Forma Pauperis Declaration’ at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in forma pauperis.”

The State also concedes that Amerson s request complied with this Rule.

For the reasons stated above, this petition is due to be, and is hereby, granted. The trial court is directed to state its reasons for denying Amerson in forma pauperis status. If the trial court has no reason for denying Amerson indigency status, then the trial court is authorized to grant Amerson’s in forma pauperis request. We cite the court to our holding in Ex parte Pritchett, 832 So.2d 100 (Ala.Crim.App.2002), where we stated that the trial court should rule on the in forma pauperis request based solely on the individual’s ability to pay the filing fee.

PETITION GRANTED.

McMILLAN, P.J„ and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . The docket fee for filing a postconviction petition is contained in § 12-19-71(b), Ala. Code 1975. On October 1, 2000, the docket fee was increased to $145.


text:
    AMENDMENTS TO FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS—DOMESTIC VIOLENCE, REPEAT VIOLENCE AND DATING VIOLENCE FORMS.
    No. SC02-2445.
    Supreme Court of Florida.
    May 15, 2003.
   PER CURIAM.

The Supreme Court of Florida, in accordance with Amendments to the Florida Family Law Rules of Procedure and Family Law Forms, 810 So.2d 1, 14 (Fla.2000), hereby adopts new and amended Florida Supreme Court Approved Family Law Forms addressing domestic violence, repeat violence and dating violence. The changes are necessary to comport with recent legislative changes. We have jurisdiction. See art. V, § 2(a), Fla. Const.

During the 2002 session, the Legislature amended the definition of “domestic violence” set forth in section 741.28, Florida Statutes (2001). See ch.2002-55, § 9, at 790, Laws of Fla. The Legislature also amended section 741.30, Florida Statutes (2001), to require that all domestic violence proceedings be recorded. See ch.2002-55, § 13, at 798, Laws of Fla. The Legislature further amended section 741.31, Florida Statutes (2001), to provide additional conduct that will violate an injunction for domestic violence. See ch.2002-55, § 14, at 799, Laws of Fla. Finally, the Legislature amended the definition of “violence” under section 784.046, Florida Statutes (2001), and created a cause of action for dating violence under this statute. See ch.2002-55, § 21, at 803, Laws of Fla.

Input on this issue was sought and received from the Advisory Workgroup on The Florida Supreme Court Approved Family Law Forms, which provided valuable assistance as to which additional forms were needed and which forms required amendment as a result of the new legislation. The Workgroup assisted the Court significantly in the drafting of the forms.

To comport with the 2002 statutory changes, we proposed amending Florida Supreme Court Approved Family Law Forms 12.980(a)-(n), where applicable, to (1) reflect the statutory change to the definitions of “domestic violence” and “violence”; (2) address the mandatory recording of domestic violence proceedings; (3) include additional conduct that will violate an injunction for protection against domestic violence; and (4) include the new cause of action for dating violence. We also proposed new Florida Supreme Court Approved Family Law Forms 12.980(o), Petition for Injunction for Protection Against Dating Violence; 12.980(p), Temporary Injunction for Protection Against Dating Violence; and 12.980(q), Final Judgment of Injunction for Protection Against Dating Violence. Finally, we proposed new form 12.980(r), Petition by Affidavit for Order to Show Cause for a Violation of Final Judgment of Injunction for Protection Against Domestic Violence, Repeat Violence or Dating Violence, for reporting a violation of an injunction, as well as new form 12.980(s), Order to Show Cause, to be used in conjunction with new form 12.980(r).

A summary of the proposed amendments was published in the December 15, 2002, edition of The Florida Bar News. Five comments were received.

ANALYSIS

We have carefully reviewed and considered each of the comments filed and have decided to make various amendments to our proposals in response to the comments received. We do not attempt to address every proposal and every comment received; rather, we focus our attention on the comments that have resulted in a modification to the forms. In doing so, we continue to emphasize the importance of simplicity and uniformity in the mandatory injunction forms.

We agree with Judge Vitale and administrator Genung that the instructions to form 12.980(b), Petition for Injunction for Protection Against Domestic Violence, should include the ten statutory factors that a judge may consider when determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. See § 741.30(6)(b), Fla. Stat. (2002). We also agree with Judge Vitale and administrator Genung that Section III. 2. of form 12.980(b) should be made consistent with Section III. 1. of the form. Section III. 1. requires the petitioner to state whether he or she has ever received or tried to obtain an injunction for protection against domestic violence against the respondent “in this or any other court.” We agree that adding the phrase “in this or any other court” will make Section III. 2. consistent with Section III. I.

Chief Judge Demers correctly notes that the statutory changes to section 741.30(6)(h), Florida Statutes (2001), require recording of domestic violence proceedings, but do not require recording of repeat and dating violence proceedings. See ch.2002-55, § 13, at 798, Laws of Fla. Accordingly, we have amended form 12.980(c)(1), Order Setting Hearing on Petition, to reflect that only domestic violence hearings are required to be recorded, and that the recording of repeat and dating violence hearings is optional.

We also adopt Chief Judge Demers’ suggestion that forms 12.980(d)(1), Temporary Injunction for Protection Against Domestic Violence with Minor Child(ren), and 12.980(d)(2), Temporary Injunction for Protection Against Domestic Violence without Minor Child(ren), be amended to clarify that the court has jurisdiction over the respondent upon service of the temporary injunction.

Chief Judge Demers also suggests that form 12.980(g), Petition for Injunction for Protection Against Repeat Violence, be amended to eliminate the opportunity for the petitioner to indicate whether the minor child for whom the petitioner is seeking the injunction resides at home. When a petition is filed on behalf of a minor child, the minor child must live at the home of the parent or legal guardian in order for the parent or legal guardian to have standing as the petitioner. See § 784.046(2)(a), Fla. Stat. (2002). We agree with Chief Judge Demers and amend the form to provide that “Petitioner is the parent or legal guardian of_, a minor child who is living at home.”

We agree with Judge Vitale and administrator Genung that the instructions to form 12.980(h), Supplemental Affidavit in Support of Petition, should be amended to include the statutory language that dating violence “does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.” Ch.2002-55, § 21, at 803, Laws of Fla.

We further adopt Chief Judge Demers’ suggestion that form 12.980(o), Petition for Injunction Against Dating Violence, be amended to include the petitioner’s birth date and the address of the respondent’s parent or guardian if the respondent is a minor. Finally, pursuant to suggestions made by Chief Judge Demers, Judge Vi-tale and administrator Genung, we have amended form 12.980(o) to (1) require the petitioner to list other domestic violence and repeat violence injunctions that the petitioner has sought or obtained against the respondent, and (2) afford the petitioner the option to request that the injunction prohibit the respondent from knowingly and intentionally coming within 100 feet of petitioner’s automobile.

Accordingly, we hereby amend the Florida Supreme Court Approved Family Law Forms as set forth in the appendix to this opinion, effective for immediate use. By adoption of these forms, we express no opinion as to their correctness or applicability, or on the substance of the new legislation. This opinion and the forms discussed herein may be accessed and downloaded from this Court’s website at www.flcourts.org.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(a), AFFIDAVIT AND MOTION FOR WAIVER OF FEES FOR PETITION FOR INJUNCTION FOR PROTECTION AGAINST REPEAT VIOLENCE OR DATING VIOLENCE

When should this form be used?

If you need to file a petition for an injunction for protection against repeat violence or dating violence and you do not have enough money to pay filing fees to the clerk of the circuit court or service fees to the sheriff, you may use this form to request that the fees be waived. Later, the court will decide who, if anyone, should pay those fees.

This form should be typed or printed in black ink. You should complete the first section of this form, and sign it in front of a notary public or deputy clerk. You should then file the original of this form with your petition for injunction for protection. You should keep a copy for your records. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do next?

A copy of this form must be mailed, faxed and mailed, or hand delivered to the respondent in your case.

Special notes ...

With this form you will also need to file the following:

• Family Law Financial Affidavit, % □ Florida Family Law Rules of Procedure Form 12.902(b) or (c).

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(b), PETITION FOR INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE

When should this form be used?

If you are a victim of any act of domestic violence or have reasonable cause to believe that you are in imminent danger of becoming a victim of domestic violence, you can use this form to ask the court for a protective order prohibiting domestic violence. Because you are making a request to the court, you are called the petitioner. The person whom you are asking the court to protect you from is called the respondent. Domestic violence includes: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnaping, false imprisonment, or any other criminal offense resulting in physical injury or death to petitioner by any of petitioner’s family or household members. In determining whether you have reasonable cause to believe you are in imminent danger of becoming a victim of domestic violence, the court must consider all relevant factors alleged in the petition, including, but not limited to the following:

1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

The domestic violence laws only apply to your situation if the respondent is your spouse, former spouse, related to you by blood or marriage, living with you now or has lived with you in the past (if you are or were living as a family), or the other parent of your children) whether or not you have ever been married or ever lived together. With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit. If the respondent is not one of the above, you should look at Petition for Injunction for Protection Against Repeat Violence, Florida Supreme Court Approved Family Law Form 12.980(g), to determine if your situation will qualify for an injunction for protection against repeat violence, or Petition for Injunction for Protection Against Dating Violence, Florida Supreme Court Approved Family Law Form 12.980(o), to determine if your situation will qualify for an injunction for protection against dating violence.

If you are under the age of eighteen and you have never been married or had the disabilities of nonage removed by a court, then one of your parents or your legal guardian must sign this petition with you.

This form should be typed or printed in black ink. You should complete this form (giving as much detail as possible) and sign it in front of a notary public or the clerk of the circuit court in the county where you live. The clerk will take your completed petition to a judge. You should keep a copy for your records. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do if the judge grants my petition?

If the facts contained in your petition convince the judge that you are a victim of domestic violence or that an imminent danger of domestic violence exists, the judge will sign an immediate Temporary Injunction for Protection Against Domestic Violence with Minor Child(ren), ^ □ Florida Supreme Court Approved Family Law Form 12.980(d)(1). A temporary injunction is issued without notice to the respondent. The clerk will give your petition, the temporary injunction, and any other papers filed with your petition to the sheriff or other law enforcement officer for personal service on the respondent. The temporary injunction will take effect immediately after the respondent is served with a copy of it. It lasts until a full hearing can be held or for a period of 15 days, whichever comes first. The court may extend the temporary injunction beyond 15 days for a good reason, which may include failure to obtain service on the respondent.

The temporary injunction is issued “ex parte.” This means that the judge has considered only the information presented by one side — YOU. The temporary injunction gives a date that you should appear in court for a hearing. At that hearing, you -will be expected to testify about the facts in your petition. The respondent will be given the opportunity to testify at this hearing, also. At the hearing, the judge will decide whether to issue a Final Judgment of Injunction for Protection Against Domestic Violence with Minor Child(ren)(After Notice), □ Florida Supreme Court Approved Family Law Form 12.980(e)(1), which will remain in effect for a specific time period or until modified or dissolved by the court. If you and/or the respondent do not appear, the temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including the imposition of court costs.

If the judge signs a temporary or final injunction, the clerk will provide you with the necessary copies. Make sure that you keep one certified copy of the injunction with you at all times!

What can I do if the judge denies my petition?

If your petition is denied on the grounds that it appears to the court that no imminent danger of domestic violence exists, the court will set a full hearing, at the earliest possible time, on your petition. The respondent will be notified by personal service of your petition and the hearing. If your petition is denied, you may: amend your petition by filing a Supplemental Affidavit in Support of Petition for Injunction for Protection Against Domestic Violence, Repeat or Dating Violence, ^ □ Florida Family Law Form 12.980(h); attend the hearing and present facts that support your petition; and/or dismiss your petition.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary domestic violence forms and can give you information about local domestic violence victim assistance programs, shelters, and other related services. You may also call the Domestic Violence Hotline at 1-800-500-1119. For further information, see chapter 741, Florida Statutes, and rule 12.610, Florida Family Law Rules of Procedure.

Special notes ...

With this form you may also need to file the following:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, □ Florida Supreme Court Approved Family Law Form 12.902(d), must be completed and filed if you are asking the court to determine issues of temporary custody or visitation with regards to a minor child(ren).

• Notice of Social Security Number, % □ Florida Supreme Court Approved Family Law Form 12.902®, must be completed and filed if you are asking the court to determine issues of temporary child support.

• Family Law Financial Affidavit, ^ □ Florida Family Law Rules of Procedure Form 12.902(b) or (c), must be completed and filed if you are seeking temporary alimony or temporary child support.

• Child Support Guidelines Worksheet, %> □ Florida Family Law Rules of Procedure Form 12.902(e), MUST be filed with the court at or prior to a hearing to establish or modify child support.

Additionally, if you fear that disclosing your address to the respondent would put you in danger, you should complete Petitioner’s Request for Confidential Filing of Address, ^ □ Florida Supreme Court Approved Family Law Form 12.980(i), and file it with the clerk of the circuit court and write “confidential” in the space provided on the petition.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(g), PETITION FOR INJUNCTION FOR PROTECTION AGAINST REPEAT VIOLENCE '

When should this form be used?

If you or a member of your immediate family are a victim of repeat violence, you can use this form to ask the court for a protective order prohibiting repeat violence. Repeat violence means that two incidents of violence have been committed against you or a member of your immediate family by another person, one of which must have been within 6 months of filing this petition. Repeat violence includes assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnaping, or false imprisonment, or any criminal offense resulting in physical injury or death. Because you are making a request to the court, you are called the petitioner. The person whom you are asking the court to protect you from is called the respondent. If you are under the age of eighteen and have never been married or had the disabilities of nonage removed by a court, one of your parents or your legal guardian must sign this petition on your behalf.

The parent or legal guardian of any minor child who is living at home may seek an injunction for protection against repeat violence on behalf of the minor child. With respect to a minor child who is living at home, the parent or legal guardian must have been an eye-witness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis of the petition.

If the respondent is your spouse, former spouse, related to you by blood or marriage, living with you now or has lived with you in the past (if you are or were living as a family), or the other parent of your child(ren), whether or not you have ever been married or ever lived together, you should use Petition for Injunction for Protection Against Domestic Violence, ^ □ Florida Supreme Court Approved Family Law Form 12.980(b), rather than this form.

This form should be typed or printed in black ink. You should complete this form (giving as much detail as possible) and sign it the presence of a notary or in front of the clerk of the circuit court in the county were you live. The clerk will take your completed petition to a judge. You should keep a copy for your records. If have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do if the judge grants my petition?

If the facts contained in your petition convince the judge that you or a member of your immediate family are a victim of repeat violence and that an immediate and present danger of repeat violence to you or that family exists, the judge will sign a Temporary Injunction for Protection Against Repeat Violence, Florida Supreme Court Approved Family Law Form 12.980(i). A temporary injunction is issued without notice to the respondent. The clerk will give your petition, the temporary injunction, and any other papers filed with your petition to the sheriff or other law enforcement officer for personal service on the respondent. The temporary injunction will take effect immediately after the respondent is served with a copy of it. It lasts until a full hearing can be held or for a period of 15 days, whichever comes first. The court may extend the temporary injunction beyond 15 days for a good reason, which may include failure to obtain service on the respondent.

The temporary injunction is issued “ex parte.” This means that the judge has considered only the information presented by one side — YOU. Section I of the temporary injunction gives a date that you should appear in court for a hearing. You will be expected to testify about the facts in your petition. The respondent will be given the opportunity to testify at this hearing, also. At the hearing, the judge will decide whether to issue a Final Judgment of Injunction for Protection Against Repeat Violence (After Notice), □ Florida Supreme Court Approved Family Law Form 12.980(m), which will remain in effect for a specific time period or until modified or dissolved by the court. If you and/or the respondent do not appear, the temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including the imposition of court costs.

If the judge signs a temporary or final injunction, the clerk will provide you with the necessary copies. Make sure that you keep one certified copy of the injunction with you at all times!

What can I do if the judge denies my petition?

If your petition is denied on the grounds that it appears to the court that no immediate and present danger of repeat violence exists, the court will set a full hearing on your petition. The respondent will be notified by personal service of your petition and the hearing. If your petition is denied, you may: amend your petition by filing a Supplemental Affidavit in Support of Petition for Injunction for Protection, % □ Florida Supreme Court Approved Family Law Form 12.980(h); attend the hearing and present facts that support your petition; and/or dismiss your petition.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary forms. For further information, see section 784.046, Florida Statutes, and rule 12.610, Florida Family Law Rules of Procedure.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(h), SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF PETITION FOR INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT OR DATING VIOLENCE

When should this form be used?

You may use this form if your Petition for Injunction for Protection Against Domestic Violence, Florida Supreme Court Approved Family Law Form 12.980(b), or your Petition for Injunction for Protection Against Repeat Violence, % □ Florida Supreme Court Approved Family Law Form 12.980(g), or your Petition for Injunction for Protection Against Dating Violence, %>> □ Florida Supreme Court Approved Family Law Form 12.980(o), was denied by the judge. You should use this supplemental affidavit to add facts or clarify the facts you wrote in your original petition. For a domestic violence case, you should include FACTS that establish that you have been a victim of violence or are in imminent danger of becoming a victim of violence from the respondent. For a repeat violence case, you should include FACTS that establish that you or a member of your immediate family have or has been a victim of at least two prior incidents of violence, that one of those incidents occurred within the last six months and that there is an immediate and present risk of danger to you or a member of your immediate family. For a dating violence case, you should include FACTS that establish that you have been a victim of violence or are in imminent danger of becoming a victim of violence from the respondent who is an individual with whom you have or have had a continuing and significant relationship of a romantic or intimate nature, to be determined by consideration of such facts as the dating relationship existed within the past six months, the nature of the relationship included an expectation of affection or sexual involvement and the frequency and type of interaction between you and the individual included involvement over time and on a continued basis. Dating violence does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the petition was filed and keep a copy for your records.

What should I do next?

After you complete this supplemental affidavit, the clerk will attach it to your original petition and all the documents will be submitted to the judge as your “Amended Petition.”

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980®, PETITIONER’S REQUEST FOR CONFIDENTIAL FILING OF ADDRESS

When should this form be used?

If you are the petitioner in a petition for injunction for protection against domestic violence action and you fear that disclosing your address to the respondent would put you in danger, you should complete this form and file it with the clerk of the circuit court.

You cannot use this form in a petition for injunction for protection against repeat or dating violence action.

This form should be typed or printed in black ink. After completing this form, you should file the original with the clerk of the circuit court in the county where your petition was filed and keep a copy for your records.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(j), MOTION FOR EXTENSION OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE OR DATING VIOLENCE

When should this form be used?

If you are the petitioner on a previously entered injunction for protection against domestic violence, repeat violence or dating violence and that injunction will soon expire, you may use this form to request that the court extend the injunction. You must file a motion for extension BEFORE the previously entered order expires.

This form should be typed or printed in black ink. After completing this form, you should sign it before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the petition was filed and keep a copy for your records. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do next?

For your case to proceed, you will need to set a hearing on your motion. You must properly notify the other party of the motion and hearing. You should check with the clerk of court for information on the local procedure for scheduling a hearing. When you know the date and time of your hearing, you should file Notice of Hearing (General), % □ Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. You will need to serve a copy of your motion and Notice of Hearing to the other party. Service of your motion must be in a manner that is reasonably calculated to apprise the other party of your motion and the hearing. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should consider using certified mail, return receipt requested, or having the motion personally served. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, % □ Florida Family Law Rules of Procedure Form 12.910(a).

You will need to appear at the hearing on your motion. After the hearing, if the judge grants your motion, he or she will prepare an Order Extending Injunction for Protection Against Domestic Violence, Repeat Violence or Dating Violence, % □ Florida Supreme Court Approved Family Law Form 12.980(n). After the judge signs the order, the clerk will provide you with the necessary copies. Make sure that you keep a certified copy of the previously entered injunction AND a certified copy of the order extending that injunction with you at all times.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary domestic or repeat violence forms and will answer any question that you may have.

Special notes ...

With this form you may also file the following:

• Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(i), if your petition is for protection against domestic violence and you wish to keep your address confidential.

• When completing this form, you should make sure that your reasons for requesting that the injunction be extended are stated clearly and that you include all relevant facts.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.98000, MOTION FOR MODIFICATION OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE OR DATING VIOLENCE

When should this form be used?

This form may be used if you are a party to a previously entered injunction for protection against domestic violence, repeat violence or dating violence and you want the court to modify the terms of the injunction. If you use this form, you are called the moving party.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the original petition was filed and keep a copy for your records. You must file a motion for modification before the previously entered order expires. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do next?

For your case to proceed, you will need to set a hearing on your motion. You must properly notify the other party of the motion and hearing. You should check with the clerk of court for information on the local procedure for scheduling a hearing. When you know the date and time of your hearing, you should file Notice of Hearing (General), % D Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. You will need to serve a copy of your motion and Notice of Hearing to the other party. Service of your motion must be in a manner that is reasonably calculated to apprise the other party of your motion and the hearing. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should consider using certified mail, return receipt requested, or having the motion personally served. If you are not represented by an attorney in this action, you must file proof that the other party personally received notice of your motion. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, % □ Florida Family Law Rules of Procedure Form 12.910(a).

You will need to appear at a hearing on your motion for modification of injunction. After the hearing, if the judge grants your motion, he or she will prepare a new injunction for protection that contains the modifications. After the judge signs the new injunction, the clerk will provide you with the necessary copies. Make sure that you keep a certified copy of the new injunction with you at all times!

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary domestic, repeat or dating violence forms and will answer any question that you may have.

Special notes ...

If the injunction you are seeking to modify is for domestic violence and you want the court to modify alimony, custody of a minor child(ren), or child support, you must establish that there has been a change in circumstance(s), as required by chapters 61 Florida Statutes, or 741 Florida Statutes, as applicable, that requires this (these) modification(s). Be sure that you make these change(s) clear in your motion.

With this form you may also file the following:

• Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(i), if your petition is for domestic violence and you wish to keep your address confidential.

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, % □ Florida Supreme Court Approved Family Law Form 12.902(d), must be completed and attached if the modification(s) you are seeking involves temporary custody of any minor child(ren).

• Family Law Financial Affidavit, % □ Florida Family Law Rules of Procedure Form 12.902(b) or (c), must be completed and attached if the modification(s) you are seeking involves temporary alimony or temporary child support.

• When completing this form, you should make sure that your reasons for requesting that the injunction be modified are stated clearly and that you include all relevant facts.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(o), PETITION FOR INJUNCTION FOR PROTECTION AGAINST DATING VIOLENCE

When should this form be used?

If you or a member of your immediate family are a victim of dating violence, you can use this form to ask the court for a protective order prohibiting dating violence. Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The dating relationship must have existed within the past six months, the nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties, and the frequency and type of interaction must have included that the persons have been involved over time and on a continuous basis during the course of the relationship. Dating violence does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context. Dating violence includes assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kid-naping, or false imprisonment, or any criminal offense resulting in physical injury or death. Because you are making a request to the court, you are called the petitioner. The person whom you are asking the court to protect you from is called the respondent. If you are under the age of eighteen and have never been married or had the disabilities of nonage removed by a court, one of your parents or your legal guardian must sign this petition on your behalf.

The parent or legal guardian of any minor child who is living at home may seek, an injunction for protection against dating violence on behalf of the minor child. With respect to a minor child who is living at home, the parent or legal guardian must have been an eye-witness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis of the petition.

If the respondent is your spouse, former spouse, related to you by blood or marriage, living with you now or has lived with you in the past (if you are or were living as a family), or the other parent of your children), whether or not you have ever been married or ever lived together, you should use Petition for Injunction for Protection Against Domestic Violence, ^ □ Florida Supreme Court Approved Family Law Form 12.980(b), rather than this form.

This form should be typed or printed in black ink. You should complete this form (giving as much detail as possible) and sign it the presence of a notary or in front of the clerk of the circuit court in the county were you live. The clerk will take your completed petition to a judge. You should keep a copy for your records. If have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do if the judge grants my petition?

If the facts contained in your petition convince the judge that you or a member of your immediate family are a victim of dating violence and that an immediate and present danger of dating violence to you or that family exists, the judge will sign a Temporary Injunction for Protection Against Dating Violence, Florida Supreme Court Approved Family Law Form 12.980(p). A temporary injunction is issued without notice to the respondent. The clerk will give your petition, the temporary injunction, and any other papers filed with your petition to the sheriff or other law enforcement officer for personal service on the respondent. The temporary injunction will take effect immediately after the respondent is served with a copy of it. It lasts until a full hearing can be held or for a period of 15 days, whichever comes first. The court may extend the temporary injunction beyond 15 days for a good reason, which may include failure to obtain service on the respondent.

The temporary injunction is issued “ex parte.” This means that the judge has considered only the information presented by one side — YOU. Section I of the temporary injunction gives a date that you should appear in court for a hearing. You will be expected to testify about the facts in your petition. The respondent will be given the opportunity to testify at this hearing, also. At the hearing, the judge will decide whether to issue a Final Judgment of Injunction for Protection Against Dating Violence (After Notice), % □ Florida Supreme Court Approved Family Law Form 12.980(q), which will remain in effect for a specific time period or until modified or dissolved by the court. If you and/or the respondent do not appear, the temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including the imposition of court costs.

If the judge signs a temporary or final injunction, the clerk will provide you with the necessary copies. Make sure that you keep one certified copy of the injunction with you at all times!

What can I do if the judge denies my petition?

If your petition is denied on the grounds that it appears to the court that no immediate and present danger of dating violence exists, the court will set a full hearing on your petition. The respondent will be notified by personal service of your petition and the hearing. If your petition is denied, you may: amend your petition by filing a Supplemental Affidavit in Support of Petition for Injunction for Protection, Florida Supreme Court Approved Family Law Form 12.980(h); attend the hearing and present facts that support your petition; and/or dismiss your petition.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary forms. For further information, see section 784.046, Florida Statutes, and rule 12.610, Florida Family Law Rules of Procedure.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(r), PETITION BY AFFIDAVIT FOR ORDER TO SHOW CAUSE FOR A VIOLATION OF FINAL JUDGMENT OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE OR DATING VIOLENCE

When should this form be used?

You may use this form if you have a valid Final Judgment of Injunction for Protection Against Domestic Violence, Repeat Violence or Dating Violence in force which has been violated. You should use this affidavit to state the essential facts which establish a violation of the Final Judgment of Injunction.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or the clerk of the circuit court. You should then file the original with such clerk or judge as determined by the chief judge of your circuit to be the recipient of affidavits of violation, provide a copy to the state attorney of that circuit and keep a copy for your records.

      . Comments were filed by Judge David A. Demers, Chief Judge of the Sixth Judicial Circuit Court; Judge Linda L. Vitale, Administrative Judge of the Seventeenth Judicial Circuit Court, and Thomas A. Genung, Family Court Administrator of the Seventeenth Judicial Circuit; Blaise Trettis, executive assistant public defender for the Eighteenth Judicial Circuit; Dorothy K. Burk, Senior Assistant General Counsel for the Orange County Sheriff's Office; and Amanda N. Smith, Domestic Violence Unit Supervisor of the Collier County Domestic Violence Unit of the Twentieth Judicial Circuit.

      . Although several of the comments address only specified forms, we have concluded that certain suggestions are applicable to other forms and have, therefore, amended those forms accordingly. These additional amendments are noted where appropriate.

      . The ten factors set forth in section 741.30(6)(b) are:
      1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
      2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
      3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
      4. Whether the respondent has intentionally injured or killed a family pet.
      5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
      6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
      7. Whether the respondent has a criminal history involving violence or the threat of violence.
      8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
      9. Whether the respondent has destroyed personal properly, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
      10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

      . We approve similar amendments to forms 12.980(g), Petition for Injunction for Protection Against Repeat Violence, and 12.980(o), Petition for Injunction Against Dating Violence, as well.

      . We approve the proposed changes to forms 12.980(Z). Temporary Injunction for Protection Against Repeat Violence, and 12.980(p), Temporary Injunction for Protection Against Dating Violence, as well.

      . We approve this amendment to form 12.980(o), Petition for Injunction Against Dating Violence, as well.

      . Because these suggestions are applicable to form 12.980(g), we amend that form as well.


text:
    STANDARD JURY INSTRUCTIONS IN CIVIL CASES (NO. 03-01).
    No. SC03-302.
    Supreme Court of Florida.
    June 26, 2003.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions (Civil) (Committee) petitions this Court to amend the Florida Standard Jury Instructions in Civil Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On February 21, 2003, the Committee filed a Supplemental Report proposing amendments to current civil jury instruction MI 3, Insurer’s Bad Faith. Prior to submitting this report to the Court, the Committee published an initial and a revised version of its proposals in the May 15, 2002, and the October 15, 2002, editions of The Florida Bar News, respectively. Several comments were received after each publication and were considered by the Committee prior to submission of its report to the Court.

The end product of the Committee’s proposal is a completely revised instruction on insurer’s bad faith claims. The revised instruction merges MI 3.1 (“Insurer’s Bad Faith Failure to Settle Within Policy Limits”) and MI 3.2 (“Insurer’s Bad Faith Failure to Offer Up to Policy Limits to Settle Above Policy Limits”) into one instruction. It also replaces a portion of the current instruction directing the jury to award damages in a sum certain with a statement that if the jury finds for the claimant, “the court will award damages in an amount allowable under Florida law.” Finally, it adds provisions addressing the issues of punitive damages and damages for mental distress.

Upon consideration of the Committee’s report, we hereby authorize the publication and use of the revised instruction as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that the notes and comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instruction as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

MI 3

INSURER’S BAD FAITH

INTRODUCTORY COMMENT

MI 3.1 or 3.2 is applicable when the particular matter in -issue-is-the insurance company’s failure-to settle a claim within its policy-limits or its failure-to offer up to its policy limits to-setfle-above the policy-limits. — These charges do not exhaust the subject, — Other—charges are necessary-if liability is asserted-for the insurance company’s-violation of some other— duby^-fe-g^ “to advise the insured-of-settlement opportunities,-to advise-as to the probable outcome of the litigation, to warn of the possibility of-an-exeess-judgment, and to advise the-imsured of any steps he ■might-take-fco avoid same.” Boston Old Colony Ins. Co. v. Gutierres, 386 So.2d 783, 785 (Fla.1980).

MI 3.1

INSURER’S BAD FAITH FAILURE TO SETTLE WITHIN POLICY LIMITS

& Issue:

The issue for your determination is whether (defendant) acted in bad faith in failing to settle the claim [of] (name) [against] (insured). An insurance company acts in bad faith in failing to settle a claim against its [policyholder-] — [insured] within its-policy-limits-when, under all — of the circumstances, it could and should have done so, had it acted fairly and honestly towards its [its policyholder] [its insured] [an excess carrier] and with due regard for [his] [her][its] [their] interests.

K Burden of proof:

If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant). However, if the greater weight of the evidence does support the claim of (claimant), your verdict should be for (claimant). “The greaterGreater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

If you find for (defendant), you will not consider the matter of damages. But, if you find for (claimant-X-then-

a-. — When claimant is original plaintiff:

you will award (claimant) the sum of $=.

4 — When claimant is original insured person or excess carrier:

you -will-award (claimant) -the-sum of $._which is [the amount with interest— (insured-) — has—paid-]—[the-amount (insured) -is-obligated- to- pay] -in satisfaction of the judgment.

c. When claimant’s damages-mektde-daÁm for costs and atto-meyis-feesi

you should also award such additional amount-as the greater weight of the evidence shows will adequately compensate-(claimant) for costs and attorney’s fees necessarily and reasonably incurred by-(elamant-)-in-(identify prior-proceedings in-defending against-claim-or — in-resisting the judgment). — You should not consider or-make-any-award-on-acGount of-(claimant’s) costs-or-attorney’s fees incurred in the present lawsuit, — These will be determined and awarded by the court la-

D (images:

1. Cases without claims for mental distress:

If your verdict is for (claimant), the court will award damages in an amount allowable under Florida law.

2. Cases with claims for mental distress:*

* Use this instruction only if the court determines that there is a sufficient predicate to support a claim for mental distress. See Time Ins. Co. v. Burger, 712 So.2d S89 (Fla.1998). The committee takes no position on whether claims for mental distress mag he available in other situations.

If your verdict is for (claimant), you will next determine (claimant’s) claim for mental distress. On (claimant’s) claim for mental distress, the issues for your determination are:

Whether (defendant’s) [denial of] [failure to timely pay] the claim resulted in (insured’s) failure to receive necessary or timely health care; and if so

Whether this failure caused or aggravated (insured’s) [medical] [psychiatric] condition; and if so

Whether (insured) suffered mental distress related to the condition or the aggravation of the condition.

Burden of Proof — Mental Distress:

If the greater weight of the evidence does not support the claim of (claimant) for mental distress, your verdict should be for (defendant) on this issue. However, if the greater weight of the evidence does support the claim of (claimant) for mental distress, your verdict should be for (claimant) on this issue.

Damages — Mental Distress:

If you find for (claimant) on the claim for mental distress, then you should award (claimant) an amount of damages that the evidence shows will fairly compensate claimant for [his][or][her] [loss][injury][or][damage] as a result of the mental distress. Your damage award should be for mental distress only. The court will enter judgment for other damages to which (claimant) is entitled under the law.

d Punitive damages:*

* If a claim for punitive damages is made pursuant to section 621.155, Florida Statutes, substitute the following instruction for the instructions located at PD-Punitive Damages, PDla(2) or PD2a. For common law punitive damages claims, see PD-Punitive Damages.

Punitive damages are warranted if you find by clear and convincing evidence* that:

1. the acts giving rise to the violation occurred with such frequency as to indicate a general business practice; and
2. these acts were willful, wanton, and malicious, or in reckless disregard for the rights of the [insured] [beneficiary].

* Note: The Committee has assumed that the clear and convincing evidence burden of proof provided in Florida Statutes section 768.725 applies to punitive damages claims made pursuant to Florida Statutes section 624.155.

Comment on MI 3.1

See Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974); Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1976), affirming 313 So.2d 101 MI 3.1 does not distinguish statutory claims from common law claims or first party claims from third party claims. See State Farm Mut. Auto. Ins. Co. v. LaForet, 658 So.2d 55 (Fla.1995).

NOTES ON USE

1. MI 3.1 is applicable when the particular matter in issue is the insurance company’s failure to settle a claim. This instruction does not exhaust the subject. Other instructions may be necessary if liability is asserted for the insurance company’s violation of some other duty. See, e.g., Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980) (duty “to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same”).

2. This instruction does not ask the jury to insert on the verdict form the amounts of the judgment, interest, costs and attorneys’ fees in the underlying case, because these amounts, in many cases, will be decided by the court as a matter of law. The Committee does not intend the omission of these issues from the instructions to affect the admissibility of such amounts. When any damages are to be determined by the jury, appropriate instructions and verdict form will be needed.

3. In cases brought under section 624,155, Florida Statutes, ssues of notice and cure generally will be determined by the court. See Talat Enters., Inc, v. Aetna Cas, and Sur. Co., 753 So.2d 1278 (Fla.2000). Therefore, no standard jury instruction is provided on those issues.

MI-3,2

INSURERS BAD FAITH FAILURE TO OFFER UP TO POLICY LIMITS TO SETTLE^JBOVE POLICY LIMITS

The issue-for — your—determination is whether (defendant) acted in bad faith in failing to offer to pay-its-policy limits toward-settlement of the claim of (name) against (insured), — An-insnrance company acts in bad-faith-in-failing to offer to pay [an amount-up to] [the amount of] its policy- limits-toward settlement of a claim — against—its—[policyholder]—[insured] when-offering that amount would have-resulted in settlement of-the-claim- and» under all of the circumstances» the insurance company should-have offered that amount» had it acted fairly and honestly — toward-[itg- -policyholder] [insured] [and] [the excess carrier of its policyholder] and with due regard for [his][its] [their] interests.

If the greater weight of the evidence does not support the-claim-of- (claimant)) your verdict should-be-for- (defendant). However»-if the greater weight of the evidence — does—support the — claim—of (claimant)) your verdict should — be—for (claimant). — “The greater-weight - of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

If you find for (defendant-)» — you—w-ill not consider the matter of damages. But» if you find for (claimant), then

a-. — when claimant is original-plaintiff:

you will award (claimant) the sum of $.=)- the amount necessary to satisfy judgment,- less the amount which the greater weight of-the evidence shows (insured or excess- carrier) would and could have paid» settling the claim of (clalmant)-if-(defendant) had offered to pay its policy limit-s-toward-the settlement,

4 — when claimant is-origmaC-msured person or excess carrier [judgment sat-isfiedf-Efudgment not satisfied]

[you-- will award (claimant) $._, the amount (claimant)-paid-to-satisfy the judgment, less the-amount which the greater weight of the evidence shows (claimant) would and could-have paid, settling the claim of (name), if (defendant-had offered to pay its policy limits -toward the settlement. — You will also award (claimant) interest-on the amount due» at _% per year, from (date claimant satisfied judgment).]
[you will award (claimant) $_, the amount (claimant) is obligated to pay to satisfy- judgment, less -the amount which-the greater weight-of the evi-denee — shows—(claimant)—would—and could have paid) settling the claim of (name), if the (defendant) had offered to pay its policy limits toward the settlement.]

c — when—claimant’s—damages—include claim for costs and attorney’s fees:

you should also-award-such additional amount as the greater weight of the evidence shows-will -adequately compensate (claimant) for costs and attorney-8 fees necessarily and-reasonably incurred by (claimant) in (Identify prior proceedings in defending against claim or in resisting the judgment). — You should not consider or make any award on account -of-(claimant’s) costs or attorney’s fees-incurred in the present-lawsuit. These will be determined and awarded by the court later.

Gommeni-on~MI~3&

See General Accident Fire and Life Assurance Corp., Ltd. v. American Casualty Co., 390 So.2d 761 (Fla. 3d DCA 1980).


text:
    Jose A. DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D99-3078.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Rehearing Denied July 18, 2003.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Affirmed. Niebla v. State, 832 So.2d 887 (Fla. 3d DCA 2002).


text:
    Michael GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1850.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Rehearing and Rehearing En Banc Denied July 18, 2003.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Melbourne v. State, 679 So.2d 759 (Fla.1996)(peremptory challenges are presumed non-discriminatory and trial court’s findings will be affirmed absent clear error); Amazon v. State, 487 So.2d 8 (Fla.1986) (Juror’s comment to another juror that a witness’ testimony was impressive did not show that juror had developed a premature opinion on case).


author: WELLS, Judge.

text:
    Oscar ALVAREZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-472.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Rehearing, Rehearing En Banc and Certification Denied July 18, 2003.

      Jay L. Levine, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   WELLS, Judge.

Oscar Alvarez petitions for issuance of a writ of prohibition directing the lower court to dismiss an information charging him as an adult on the basis that the 90-day juvenile speedy trial rule applies to the adult charges and has run. For the following reasons, we deny the petition.

Alvarez, a juvenile, was arrested on August 17, 2002 and charged in a delinquency petition with one count of battery. On October 8, 2002, the State announced a nolle prosequi of the delinquency charges, specifically stating that it was reviewing the case for possible direct file in the adult criminal division. Petitioner was subsequently released from custody.

Thereafter, on January 15, 2003, the State filed a one count information in the criminal division, charging Alvarez as an adult with burglary of a conveyance with the intent to commit battery. Alvarez subsequently moved for dismissal and discharge on the grounds that under State v. Olivo, 759 So.2d 647 (Fla.2000), once a delinquency petition is filed, a juvenile’s right to proceed under the juvenile rules is triggered, and by virtue of Florida Rule of Juvenile Procedure 8.090(Z), that right becomes forever fixed. The trial court disagreed with these propositions, as do we.

In Olivo, the Florida Supreme Court concluded that “applying the juvenile speedy trial rule to cases directly filed in the adult division [will] frustrate both the letter and the spirit of the statutes and procedural rules.” Olivo, 759 So.2d at 650. Although the Supreme Court noted that juvenile speedy trial rights are “triggered” upon filing of a delinquency petition, it confirmed that those rules apply only while something is pending in the juvenile court:

Properly construed, rule 8.090(a) provides that the ninety day period is triggered only upon the filing of a petition for delinquency. Therefore, the logical conclusion is that since the State did not file a petition for delinquency, rule 8.090 and its attendant ninety-day time restriction were not triggered. This construction is consistent with the Parr [v. State, 415 So.2d 1353 (1982)] court’s conclusion that the juvenile speedy trial rule, by definition, applies to those cases pending before the juvenile court. Moreover the Bell [v. State, 479 So.2d 308 (1985)] court was correct in its conclusion that neither the statute nor rules evince an intent to maintain juvenile speedy trial requirements once a case has been direct filed in the adult division. On the contrary, the statutes consistently provide that state attorneys are entitled to make independent assessments without having their discretion curtailed by the juvenile system.

Id. at 649 (emphasis added).

Here, by virtue of the nolle pro-sequi, nothing was pending against Alvarez in the juvenile court at the time the information was filed. See Allied Fid. Ins. Co. v. State for Use and Benefit of Dade County, 408 So.2d 756 n. 1-n. 2 (Fla. 3d DCA 1982)(noting that a “nolle prosequi is the dismissal of a pending information or indictment” that serves to “terminate then pending proceedings and to release the defendant from all restraint”). Thus in this case, rule 8.090, with its admonition against attempting to avoid application of the 90-day juvenile speedy trial rule by entering a nolle prosequi followed by prosecution of a new juvenile proceeding, has no application. Moreover, we discern the purpose of rule 8.090© to be to preclude the state from circumventing the juvenile speedy trial time limit by nol prossing a juvenile charge followed by refiling of a new juvenile charge as the time limit approaches. See Stewart v. State, 491 So.2d 271, 272 (Fla.1986) (holding that the purpose of Florida Rule of Criminal Procedure 3.191(o), which in pertinent part is the same as rule 8.090©, “is to prevent the state from circumventing the speedy trial rule ... by nol prossing a charge and refiling a new information when the time limit approaches”). That purpose is not implicated in this case.

Because the juvenile rules do not apply to the adult charges filed against Alvarez, and because the information charging him as an adult was filed within the time limit set forth in rule 3.191, there was no speedy trial violation. The petition for writ of prohibition is, therefore, denied.


text:
    Rodney T. MACK, Petitioner, v. James V. CROSBY, Department of Correction, Respondent.
    No. 1D02-2175.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Rehearing Denied July 24, 2003.
    Rodney T. Mack, pro se, petitioner.
    Louis A. Vargas, General Counsel, and Sheron Wells, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

By petition for writ of certiorari, Rodney T. Mack seeks review of the circuit court’s denial of his petition for writ of mandamus. In 1993, Mack pled guilty to burglary of a dwelling and was sentenced to twelve years in prison to be followed by three years of probation. He was released from prison to begin service of his probationary term in 1998, but was returned to prison in 2000, after violating his probation. Upon Mack’s return to prison, the Department of Corrections forfeited the gain-time he had accrued on his initial sentence, even though the sentencing court had credited him with this gain-time. After exhausting the prison grievance process, Mack filed a petition for writ of mandamus seeking restoration of this gain-time. The circuit court denied the petition finding that the Department of Corrections properly forfeited the gain-time under section 944.28(1), Florida Statutes. We find that the circuit court applied the correct law in making this determination. See Forbes v. Singletary, 684 So.2d 173 (Fla.1996); Williams v. Wasi, 681 So.2d 839 (Fla. 4th DCA 1996). Therefore, we deny the petition.

PETITION DENIED.

DAVIS, BENTON and PADOVANO, JJ., concur.


text:
    John NIVEN and Mary Niven, Appellants, v. G.F.B. ENTERPRISES, LLC, a Florida limited liability company d/b/a Lexus of Kendall, Appellee.
    No. 3D01-2669.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied July 25, 2003.
    Beckham & Beckham and Pamela Beck-ham, Miami, for appellants.
    Glen R. Goldsmith, Miami, and Timothy J. Grecsek, for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

The plaintiffs, John and Mary Niven [the Nivens], appeal from an adverse final judgment confirming an arbitration award and denying their motion to .vacate. We reverse.

The Nivens brought suit against G.F.B. Enterprises, L.L.C., d/b/a Lexus of Kendall [the Dealer] for breach of contract and for violations of Florida’s Deceptive and Unfair Trade Practices Act. The Nivens sought to enforce a Motor Vehicle Lease Agreement and a Car Contract Order and Supplemental Conditions. The Dealer compelled arbitration pursuant to the Lease Agreement, but then, at arbitration, argued that the Lease Agreement was unenforceable because the Dealer had not executed it. The arbitrator agreed that the Lease Agreement was unenforceable and awarded the Dealer damages for the rental value of the vehicle, the cost to repossess it, and the cost of the arbitration.

The Nivens filed a motion to vacate the arbitration award arguing that because there was no valid Lease Agreement, there was no valid arbitration clause. The Dealer moved to confirm the award. The trial court entered an order confirming the arbitration award and denying the motion to vacate. The trial court entered final judgment. The Nivens’ appeal follows.

The Nivens contend that the trial court erred by confirming an arbitration award based on an agreement that never existed. We agree.

“If there is no contract, there can be no arbitration clause of the contract.” Henderson v. Coral Springs Nissan, Inc., 757 So.2d 577 (Fla. 4th DCA 2000)(holding that there is no enforceable arbitration clause where the dealer rescinded the contract containing the arbitration clause); Hymowitz v. Drath, 567 So.2d 540 (Fla. 4th DCA 1990)(holding that there is no enforceable arbitration clause when arbitrators cancel a contract during arbitration). Therefore, the trial court erred by confirming the arbitration award and denying the plaintiffs’ motion to vacate.

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


author: GODERICH, Judge.

text:
    Emory DOZIER and Crete Carrier Corporation, Appellants, v. Isaac HODGES, Appellee.
    Nos. 3D02-267, 3D02-1503.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied July 23, 2003.
    Fowler White Burnett, Steven E. Stark, June Galkoski Hoffman and Patti A. Meeks, Miami, for appellants.
    Lytal, Reiter, Clark, Fountain & Williams and Julie H. Littky-Rubin (West Palm Beach), for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   GODERICH, Judge.

The defendants, Emory Dozier and Crete Carrier Corporation, appeal from an adverse final judgment and from an order awarding attorney’s fees and costs to the plaintiff, Isaac Hodges. We affirm.

First, the trial court properly denied the defendants’ motion for a mistrial on the basis of unrecorded communications between plaintiffs counsel and a juror’s husband where the presumption of prejudice was rebutted by the testimony of plaintiffs counsel and the insurance adjuster. Rudolph v. Gleason, 339 So.2d 298 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 952 (Fla.1977).

Next, the trial court properly prohibited the introduction of evidence that the plaintiff received a traffic citation and paid it by mail. § 318.14(4), Fla. Stat. (1997); Galgano v. Buchanan, 783 So.2d 302 (Fla. 4th DCA 2001); Turco v. Leon, 559 So.2d 1199 (Fla. 3d DCA), review denied, 574 So.2d 141 (Fla.1990). We note that the defendants’ reliance on Figueredo v. Keller Industries, Inc., 583 So.2d 432 (Fla. 3d DCA), review denied, 595 So.2d 52 (Fla.1991), is misplaced because in that case the driver had pled guilty by mail to a traffic charge that by statute required a personal appearance.

Further, the trial court properly excluded the police officer’s initial estimate of the speed of the plaintiffs vehicle because although the officer had been qualified as an expert, he had previously testified in his deposition that he took no measurements, made no calculations, and had no factual basis for his opinion. Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA), cert. denied, 225 So.2d 535 (Fla.1969).

Lastly, the trial court properly denied the defendants’ motion for a new trial based on the allegedly inflammatory and prejudicial comments made during plaintiffs closing argument. A review of the record shows that the trial court sustained all appropriate objections, that the trial court gave curative instructions where appropriate, and that the evidence supported the jury’s verdict. Gatlin v. Jacobs Const. Co., 218 So.2d 188 (Fla. 4th DCA), cert. denied, 225 So.2d 529 (Fla.1969).

Affirmed.


author: GODERICH, Judge. COPE, J.

text:
    The CITY OF MIAMI, etc., Appellant, v. The URBAN LEAGUE OF GREATER MIAMI, INC., Family Resource Center of South Florida, Inc., f/k/a Family Resource Center of Dade County, Miami-Dade County, etc., et al., Appellees.
    No. 3D02-1827.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied July 23, 2003.

      Robert S. Glazier and Sarah Helene Sharp; Alejandro Vilareho, City Attorney, and Maria J. Santovenia, Assistant City Attorney, for appellant.
    Adorno & Yoss, Stephanie G. Kolman and Emily M. Usow, for appehees Family Resource Center and Miami-Dade County.
    Before COPE, GODERICH and FLETCHER, JJ.
   GODERICH, Judge.

The plaintiff, the City of Miami [City], appeals from a final order striking certain ahegations from its complaint as a sham and from a final order dissolving a hs pendens. We affirm.

On September 2, 1988, the City lent the Urban League of Greater Miami [Urban League] $372,000.00. In turn, the Urban League executed a promissory note and a mortgage that was secured by four parcels of land [Parcels I-IV]. In 1990, the Urban League executed a Modification of Note and Mortgage. Thereafter, the Urban League conveyed Parcel IV to King Heights Apartments Partnership [King Heights].

On July 17, 1995, City Manager Cesar Odio executed a Release of Lien for Parcel IV. On August 29, 1995, a certified copy of the Release of Lien was recorded in the official pubhc records of Miami-Dade County. Meanwhile, on August 25, 1995, King Heights conveyed Parcel IV to the Family Resource Center of South Florida, Inc. [FRC], a not-for-profit social service agency that provides community-wide child welfare and family services. On August 31, 1995, the Warranty Deed was recorded in the official public records of Miami-Dade County.

In 2002, FRC raised $8 million to renovate the buildings located on Parcel IV and provide housing, counseling and educational services to homeless or low-income families. As part of those monies, FRC secured a $275,000 grant from the State of Florida.

On April 24, 2002, the City filed- suit against the Urban League, FRC, and others alleging that the Urban League had defaulted on the promissory note and seeking to foreclose on the four parcels that secured the note, including Parcel IV. The City also recorded a lis pendens on each of the four parcels.

On April 29, 2002, FRC was served with the complaint. On April 30, 2002, FRC contacted the Assistant City Attorney, by telephone and by letter, and informed her that in 1995, before FRC purchased the property, the City had executed and delivered a Release of Lien for Parcel IV specifically describing the instruments that the City was seeking to foreclose. FRC attached a copy of the Release of Lien. FRC also advised the City that its lawsuit and the lis pendens filed on Parcel IV were an impediment to the funding of its renovations project and that it would be damaged if the error was not timely corrected as the funds that it was receiving from a grant needed to be expended by a date certain or they would be lost.

On May 1, 2002, FRC, by letter, informed the Assistant City Attorney that it had reviewed the 1995 closing files and enclosed copies of letters and documents that evidenced the negotiations that led to the execution of the Release of Lien and confirmed its execution.

On that same day, the City responded by letter stating that the Release of Lien did not appear in the title search report it had conducted before filing the foreclosure action. The City also raised “concerns regarding the apparent lack of consideration for the release and the apparent lack of authority for execution of the release by the then city manager” and stated that the documents that were forwarded did not fully address or allay those concerns. The City indicated that it would move expeditiously to address the matter. Lastly, the City asserted, “However, based on the available documentation, we áre not in a position to conclude that the release of lien document is anything other than an ultra vires act by the then city manager.”

Oh May 22, 2002, FRC filed a verified emergency motion to strike the allegations in the City’s complaint regarding Parcel IV as a sham. FRC argued that it needed to move forward immediately with the development of the property and that it should be permitted to do so because of the Release of Lien. FRC asked that the allegations in the complaint regarding Parcel IV be stricken as a sham and that Parcel IV be released from the lis pen-dens.

On May 28, 2002, FRC faxed a notice of hearing to the Assistant City Attorney stating that a hearing on the motion to strike was- set for May 24, 2002, at 2:00 p.m. The Assistant City Attorney responded to the notice by requesting “all of the exhibits upon which you rely in support of your motion” and “any case law or other legal authority in support of your motion.” In response, on May 23, 2002, FRC faxed the Assistant City Attorney a copy of the exhibits attached to motion to strike.

At the hearing, FRC presented its verified emergency motion and all of the exhibits that were attached including the Warranty Deed dated August 25, 1995, the Release of Lien, correspondence relating to- the negotiation of the Release of Lien, and the recent correspondence between FRC and the City that was detailed above. Further, FRC presented the testimony of the Urban League’s attorney who negotiated the Release of Lien. He testified that the City executed the Release of Lien because it was beneficial to do so because the Urban League needed to sell the property so that it could continue to make payments on its debt to the City. FRC also presented the Miami-Dade County Attorney’s testimony that the lis pendens on Parcel IV created funding problems and that absent a charter or code provision or administrative order prohibiting the city manager and the city attorney from executing a release of hen, it should be assumed that they had the authority to do so.

The Assistant City Attorney argued that the FRC should go to the City Commission to have the release ratified because she believed that it was the result of an ultra vires act by the then City Manager without the City Commission’s authority. When asked for an ordinance or other evidence showing that the then City Manager did not have the authority to enter into this type of release, the Assistant City Attorney stated that she did not have sufficient notice to brief the matter.

The trial court heard the remaining arguments of counsel and found that the Assistant City Attorney was on notice of the hearing, that she did not bring any evidence to controvert FRC’s motion, and that immediate action was necessary to preserve FRC’s funding. The trial court granted FRC’s motion to strike the allegations in the complaint relating to Parcel IV and dissolved the City’s lis pendens on Parcel IV. The City’s appeal follows.

The City contends that the trial court erred by striking the allegations in the City’s complaint regarding Parcel IV. First, the City contends that it was denied due process because it did not receive sufficient notice of the evidentiary hearing. Under the circumstances of this case, we disagree.

A review of the record shows that although the City received one-day notice of the hearing, it had ample notice of the issues and evidence that were to be presented. A review of the correspondence between FRC and the City dated May 1, 2002, indicates that the City recognized the need to resolve the matter quickly, that the City knew the exact arguments that FRC was raising, and that FRC had provided the City with copies of the documents that FRC had to support its position. The City had twenty-three days to investigate FRC’s claims but did not do so. “This is not a case of a surprise hearing where an unprepared party is forced to litigate an issue it has not yet analyzed.” Couture Farms, Inc. v. Triton Int’l, Inc., 682 So.2d 578, 579 (Fla. 3d DCA 1996). As early as May 1, 2002, the City suspected that the release might be an ultra vires act of the then City Manager, but the City, knowing that FRC was in jeopardy of losing its funding, did nothing for twenty-three days to verify that its position was justified. Further, at no time did the City ever move for a continuance. The City only stated that it had not had sufficient time to brief the matter. For these reasons, we reject the City’s contention that it was denied due process.

Next, the City argues that FRC did not establish that the complaint was “palpably or inherently false.” St. John Med. Plans v. Physician Corp. of Am., 711 So.2d 1329, 1331 (Fla. 3d DCA 1998). We disagree.

At the hearing, FRC presented its verified emergency motion, the Release of Lien, the Warranty Deed dated August 25, 1995, correspondence relating to the Release of Lien, the testimony of the Urban League’s attorney who negotiated the Release of Lien, and the testimony of the Miami-Dade County Attorney who testified that FRC’s funding was in jeopardy. Further, the City failed to rebut FRC’s evidence when it failed to present any evidence of a charter or code provision or administrative order that prohibited the city manager from executing the release of lien.

Therefore, because the tmcontroverted evidence established that the City had released its lien, the trial court properly struck the allegations of the complaint regarding Parcel IV and dissolved the corresponding lis pendens.

Accordingly, we affirm.

FLETCHER, J., concurs.

COPE, J.

(concurring).

While I join the opinion, I emphasize that there were exigent circumstances in this case and that the City did not request a continuance of the hearing. Ordinarily, a one-day notice of hearing on a dispositive motion would be insufficient.