author: STEVENSON, J.

text:
    J.F., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-4225.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.
    Rehearing Denied March 10, 2004.

      Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   STEVENSON, J.

In this appeal, the mother, J.F., argues that the Department of Children and Families (Department) failed to present clear and convincing evidence to support the termination of her parental rights to two children, a son and daughter. We agree and reverse.

J.F.-l was born on January 8, 1993. The Department filed a shelter petition on June 21, 1993, as to J.F.-l, alleging that the mother’s step-child, S.F., was physically abused and died while in her care as the result of a blunt trauma to the stomach. The trial court granted the petition and sheltered J.F.-1. Later, as a result of the allegations, J.F.-l was adjudicated dependent in October 1993 and placed in the custody of his maternal aunt and uncle under the protective supervision of the Department.

The mother was convicted on April 16, 1996, of manslaughter and child abuse for the killing of S.F. Attempts were made to reunite J.F.-l with his father, J.F., Sr., but plans to reunite the child with the mother were put on hold pending her release from prison. The placement of J.F.-1 with his father broke down in August 1998, and he was ultimately removed from his custody. The trial court entered a no contact order as to both the mother and father, accepted a new case plan goal of long-term relative placement, and placed J.F.-l with his maternal grandmother. The new case plan reflected that the mother was still incarcerated.

Both parties disagree as to whether the mother was a party to the August 1998 case plan, and the record in this respect is unclear; however, both agree that the mother was offered a case plan upon her release from prison on January 27, 1999, which had to be completed before she could have contact with J.F.-l. The case plan required that the mother attend parenting classes, maintain stable employment and residence, and participate in psychological evaluation, family and individual counseling. The court accepted the case plan and ordered that the mother attend psychological evaluations to determine specific treatment needs; the goal remained long-term relative placement, and the mother was not allowed to visit or have contact with J.F.-l.

Subsequent judicial reviews reveal that the mother completed requirements to obtain her G.E.D., attended parenting classes while in prison, and completed the court-ordered psychological evaluation. The psychological evaluation recommended that the mother receive a neuropsychological evaluation, weekly individual therapy with a licensed mental health professional experienced with working with violent offenders, individualized parent training sessions, and no contact with J.F., Sr., or J.F.-l, unless therapeutically indicated by his counselor.

The Department later reported that the mother “appears to be motivated to comply with her court ordered tasks,” “has made tremendous efforts to attend and find services that would meet the court[’]s requirements,” and “has proven to be quite motivated to regain visitation and possibly custody of her son.” The mother also received an appointment for neuropsycho-logical evaluation and actively participated in and attended intensive parenting classes at New Dimensions Family Services.

Subsequently, the Department had problems finding the appropriate persons to make a referral for the mother to participate in individualized and family therapy. She was referred to several programs, but was unable to complete them because she was either excluded because of her manslaughter conviction, was not medicaid eligible, or the program closed before she could complete counseling. The Department informed the court that it was still attempting to locate counseling services for the mother.

The mother completed the neuropsycho-logical study in February 2001, which reported that

Results suggest that [the mother] is capable of reestablishing a relationship with her child [J.F.-l]. There is no evidence of neuropsychological impairment that would cause her to be dangerous to her children.
Her two other children currently reside in her home and no problems have been reported.
The client has eagerly pursued completion of all court-ordered requirements and is motivated to reunify her family.

Nevertheless, the report determined that visitation between the mother and J.F.-l was not therapeutically recommended at the time and that the mother should receive a psychological evaluation to obtain outside information history and perspective.

Following this recommendation, the Department filed a motion for “new psychological evaluation” of the mother. J.F.-l’s counselors also believed that visitation with J.F.-l was not advisable until the mother completed the psychological evaluation because the neuropsychological evaluation expressed concerns about her ability to safely and appropriately parent and “a pervasive unwillingness to admit even minor character flaws.” They also believed that the mother provided inaccurate case history to the evaluation team, acknowledged little remorse or involvement in the death of S.F., and was defensive and at times reluctant to cooperate with testing. J.F.-l’s counselors expressed concerns about the mother’s contact with J.F., Sr., since he was not currently under a case plan. The mother agreed and the court entered an order for the new psychological evaluation.

During the pendency of the proceedings, the mother gave birth to another child, J.F.-2, in June 2000. The Department alleged that the child was required to be sheltered due to S.F.’s death in 1993. The dependency petition, however, was not filed until November 2001 because the Department had difficulties locating the child and the mother refused to reveal her whereabouts. It was not until February 2002, a year and three months after J.F.-2 was born, that the Department was able to locate and shelter the child. J.F.-2 was placed in the custody of a non-relative friend of the mother under protective supervision. By all accounts, J.F.-2 looked well taken care of when she was sheltered; she had no marks, burns or other signs of abuse.

The mother entered a denial to the petition for adjudication of dependency as to J.F.-2, and the court granted her supervised visitation. Later, the Department filed a case plan stating adoption as its goal. On March 27, 2002, the Department filed a petition to terminate the mother’s parental rights; however, the Department entered into mediation with the mother, which required that J.F.-l remain with the maternal grandmother and the mother receive individualized counseling.

In March 2002, when the Department filed its petition for termination of parental rights, the mother still had not completed individual or family counseling, though the case plan had been signed some three years earlier. The record reflects that any failure to complete the counseling was not the fault of the mother as it was she who found, scheduled and paid for individual counseling for herself in March 2002. Nor does it appear from the record that the “new psychological evaluation” ordered by the court had been completed. On August 22, 2002, the Department filed an amended petition for termination of parental rights and permanent commitment of the minor children.

At the termination proceedings conducted in September 2002, the mother related the 1993 incident that resulted in S.F.’s death. She admitted to spanking the child on her bottom with some type of stick or rod, but denied kicking her. The State called several witnesses to establish that S.F.’s injuries were consistent with being severely abused.

The Department’s expert, who testified as to why the mother’s rights should be terminated, explained that she has a law degree, but took several courses while working with the Department to assess risk. The Department uses a written risk assessment tool, which looks at several different social variables to determine whether a child is at risk in a particular circumstance. Regarding reuniting the mother and the children, the Department’s expert stated:

I am very concerned about any child being with [the mother] at this point in time because in my meetings with [her] I have not seen that she has been interested in taking responsibility for ... [S.F.’s] death.
She wanted the past to be in the past. She said that she was not interested in how this child died; that that has all been rehashed. She paid the price for it and that is it.
And that absolutely terrifies me because a child who was in her care died and she was found guilty of causing that child’s death.
And she wants to put it in the past. She does not want to deal with it. She has not gotten long-term therapy.
I have seen her become very, very angry at several different people. She is not good at containing her anger for any length of time.
And I just don’t see that there has been any intervention between the time that [S.F.] was killed and now, and my concern is particularly for a child who is at an age and with a disposition that may make [the mother] angry and what [her] actions could be.

The guardian ad litem expressed the same sentiments, at first stating that she believed the mother completed her punishment for the crime and should be given a chance to at least be a part of the children’s lives. Ultimately, she agreed that the mother’s parental rights should be terminated because the mother failed to take responsibility for the death of her stepchild and she fears that the incident could reoccur.

The mother’s case worker who had been working with her since November 2000 expressed that he did not believe the mother could provide a safe environment because she “physically assaulted” him several times over the phone. He did not, however, specify when the assaults occurred, the circumstances under which they occurred, or give examples of what he deemed to be a physical assault.

Both the Department’s expert and the case worker admitted that the mother completed all the tasks outlined in her case plan, with the exception of the individual counseling, which the Department had problems scheduling and the mother ended up paying for herself. When the mother ultimately began counseling, her therapist worked with both her and J.F.-l to reestablish visitation. In . July 2002, two months before the termination proceedings commenced, the therapist recommended and the court ordered supervised visits between J.F.-l and the mother. The mother had continued to visit regularly with J.F.-2 since she was sheltered, which, according to the mother’s case worker, went well.

The mother’s case worker believed that J.F.-l, did not have a bond with the mother because of the no contact order that had been in place since the mother’s release from prison. However, the Department’s expert described the mother’s court-ordered visit with J.F.-l in August 2002 as “demonstratively affectionate.” “[I]t wasn’t like two strangers. They were very familiar with each other, and they just sat and talked and colored.” The mother knew a lot about J.F.-l’s life, she knew about his football coach, the kids on his team, “all kinds of things,” stated the expert. In regards to J.F.-2, the Department’s witnesses believed that, overall, the mother had a bond with J.F.-2.

The mother testified that the individual and group counseling she had been receiving was helping her tremendously and, through the counseling, she has learned that it is permissible for her to get angry in a way that is not harmful to others. She expressed remorse, reluctantly accepted some blame for the death of S.F., and stated that the incident had impacted her life greatly. She also expressed frustration over being separated from her children and stated that she was no longer involved with J.F., Sr. She continues to financially support her children, which she has done since being granted work-release in 1997.

The trial court granted the petition to terminate the mother’s parental rights, concluding that the mother failed to take responsibility for S.F.’s death; had received long-term therapy and still had an anger management problem; and failed to substantially complete the case plan. It further “reject[ed]” the argument that the mother could parent the children because she safely parented J.F.-2 for one year and three months, stating that it is easy to parent a child J.F.-2’s age.

In this case, the Department has the burden of presenting clear and convincing evidence of the grounds under section 39.806(1), Florida Statutes (2002), for terminating parental rights and evidence that reunification poses a significant risk of harm to the child. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. See R.S. v. Dep’t of Children & Families, 831 So.2d 1275 (Fla. 4th DCA 2002). A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. See id.

In its amended petition, the Department moved to terminate the mother’s parental rights on four grounds under section 39.806(1): subsection (c), the continuing involvement of the parent with the children threatens their life, safety and well-being, irrespective of the services offered; subsection (e), failure to substantially comply with the case plan for a period of twelve months after an adjudication of the child as dependent or placement in shelter; subsection (f), engaging in egregious conduct upon the child or the child’s sibling; and subsection (h), committing voluntary manslaughter of another child or a felony assault that results in bodily injury to the child or another child.

We find the record inadequate to support termination on any one of the four grounds. As it relates to the first two grounds, contrary to the trial court’s findings, the Department failed to establish that long-term therapy did not or would not have helped the mother’s anger management problems and that she faded to substantially comply with the case plan. The record shows that the mother was referred to four different programs for intensive therapy and she was unable to complete any of them because of various problems, not attributable to her. It was not until March 2002, shortly before the termination proceedings began, that the mother had to resort to paying for therapy herself.

There was no evidence presented that between March 2002 and September 2002, when the termination proceedings began, the mother was assessed to determine whether the intensive therapy was assisting her anger management problems. The Department’s evidence was based upon interviews and incidents that occurred prior to the mother beginning therapy. At trial, the Department’s expert acknowledged that the mother “ha[d] not gotten long-term therapy,” and the mother’s case worker testified that the mother “had basically completed” the case plan, “[t]he only problem she had was the individual counseling, which she had not gotten.” And, the only professional tests conducted revealed that the mother was amenable to treatment.

We also find troubling the Department’s insistence that the mother admit “guilt” to abusing S.F. Indeed, no therapist testified that admitting culpability by public confession was an appropriate and necessary therapeutic goal in the mother’s case. This court has on more than one occasion noted that such a requirement is impermissible under section 39.601(1), Florida Statutes, as a condition of any case plan. See A.C. v. Dep’t of Children & Families, 798 So.2d 32, 35 n. 2 (Fla. 4th DCA 2001); D. Children v. Dep’t of Children & Family Servs., 820 So.2d 980, 985 n. 6 (Fla. 4th DCA 2002)(Warner, J., concurring in part and dissenting in part)(expressing concerns that the social worker expected the parents to admit to their abuse). Furthermore, as in AC., there was no evidence presented here that any counselor worked with the mother from a therapeutic standpoint to assist her in overcoming her state of psychological denial.

It was inappropriate to base termination on the testimony of a professional who recommended that the parents receive counseling and therapy and then, even though such counseling has not been provided, determines the parents still present a risk.

798 So.2d at 35-36.

The other two grounds for termination, Florida Statutes section 39.806(1)© (egregious conduct towards another child) and (h) (committing manslaughter or felony assault against another child), raise questions of prospective abuse. In the seminal case in Florida discussing prospective abuse, our supreme court stated that

To protect the rights of the parent and child, we conclude that before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.

Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

In a recent decision, we discussed the law on prospective abuse and noted that

Where DCF is petitioning to terminate parental rights on the basis of abuse or neglect of another child, we have emphasized that the state must show that “the behavior of the parent was beyond the parent’s control, likely to continue, and place the child at risk.”

F.L. v. Dep’t of Children & Families, 849 So.2d 1114, 1120 (Fla. 4th DCA 2003)(quoting A.C., 798 So.2d at 35). The Department must prove a nexus between the act of abuse and any prospective abuse. See D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000). The issue in these types of cases is whether future behavior, which will adversely affect the child, can be “clearly and certainly predicted.” L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002); accord In re P.S., 825 So.2d 530 (Fla. 2d DCA 2002). Or, stated another way, whether it is “likely to happen” or “expected.” In re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002) (citations omitted). .

On appeal, the Department .argues that, as to subsection (h), no nexus need be shown. Section 39.806(l)(h) allows parental rights to be terminated:

When the parent or parents have committed murder or voluntary manslaughter of another child, or a felony assault that -results in serious bodily injury to the child or another child, or aided or abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter or felony assault.

We disagree with the Department’s contention that no nexus between the acts described in subsection (h) and the potential for future abuse need be shown. As this court stated in F.L., in reiterating the constitutional requirements for termination of parental rights set forth in Pad-gett, “DCF carries the burden not only to establish a ground for termination but the continuing substantial risk of harm to the current child.” 849 So.2d at 1122 (emphasis added). Failure to give the statutory scheme a narrow construction requiring the State to prove a nexus between the past conduct and the continuing substantial risk of harm to the current child could render the statute constitutionally infirm. See id. (holding section 39.806(l)(i) unconstitutional where it permits termination of parental rights solely upon the involuntary termination of rights to another child and shifts “DCF’s responsibility to prove the elements necessary to terminate a parent’s fundamental right to parent to the parent”).

In closing arguments, the Department argued that the mother’s failure to take responsibility for S.F.’s death is “the nexus that proves that [she] is a danger to any child in her care.” We find this argument, and the evidence presented by the Department in support thereof, insufficient to support a finding that the mother posed a threat to her children because of S.F.’s death.

The record shows that the mother had taken steps to improve her parenting skills and anger management problems. Prior to being released from prison, she completed an eight-week parenting program, a sixteen-week ■ parenting program and participated in a parent support group. She also attended additional parenting classes upon her release. At judicial reviews, the Department reported that the mother was highly “motivated” to complete and had indeed completed her case plan, with the exception of the long-term counseling. The neuropsychological evaluation conducted revealed that the mother had no impairments that would cause her to be a danger to her children and that she was capable of reestablishing a relationship with them. And, while the Department alleged that this test was based upon inaccurate case history, the Department failed to conduct any new psychological evaluation taking into account the correct information.

Moreover, because the Department failed to evaluate the mother once she began long-term counseling, there is no expert testimony as to whether the individual counseling she was receiving was making a difference in controlling her anger. The record shows that the mother was making gains in terms of her relationship with her children. Just prior to the termination proceedings, the therapist found and the court ordered that the mother could visit with J.F.-l, which by the Department’s account went well. At a minimum, we find that this evidence did not support a finding that the mother’s behavior was beyond her control, likely to continue, and would place the children at risk if parental rights were not terminated.

In short, the Department failed to prove that the manifest best interests of the two children, J.F.-l and J.F.-2, would be served by terminating the mother’s parental rights at this time. We acknowledge the trial court’s legitimate concern with whether J.F. has adequately addressed her personal “anger management” issues. Yet, in this case, there has been no competent professional or expert testimony that J.F.’s anger problems are not amenable to treatment or are likely to continue, posing a substantial risk of harm to the children. Accordingly, we reverse the termination of parental rights and return this cause to the jurisdiction of the trial court for continuation of the children’s dependency status.

REVERSED and REMANDED.

MAY, J., and CHAVIES, MICHAEL B., Associate Judge, concur.

      . Since the mother, the father and the two children all have the same initials, the mother will be referred to as J.F., the father as J.F., Sr., the son as J.F.-l, and the daughter as J.F.-2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles MEDINA, Appellant, v. FLORIDA EAST COAST RAILWAY, L.L.C., Appellee.
    No. 3D02-3309.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2004.
    Barbara Green, Coral Gables, for appellant.
    Conroy, Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for ap-pellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Charles Medina (“Medina”) appeals from an order dismissing his personal injury claims for discovery violations which were found to have pervaded the proceedings. We reverse on the sole ground that Medina should have been afforded the opportunity, requested by him through counsel at the hearing, to appear in person and explain the discovery violations which were the basis for the dismissal.

Medina was employed by the Florida East Coast Railway (“FEC”). In November of 1999, Medina was involved in an on the job accident while he was connecting an air hose between two boxcars. Medina alleged that the accident caused injuries to his left knee and back. Medina brought a claim against FEC under the Federal Employer’s Liability Act, the Locomotive Inspection Act, and the Safety Appliances Act. After discovery, FEC moved to dismiss Medina’s claim on the grounds that he had repeatedly lied under oath concerning prior workers’ compensation claims, a prior motor vehicle accident, prior injuries, and prior psychological treatment. The court heard arguments on FEC’s motions, but refused Medina’s request to conduct an evidentiary hearing. The trial court found that Medina “gave false, misleading and incomplete answers during discovery of such severity that he [had] committed a fraud upon the court” and entered an order dismissing his claim with prejudice. For the following reasons, we reverse.

We recognize that a trial court has broad discretion when imposing sanctions arising from serious abuses of the judicial process. Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996). A trial court has the inherent authority to dismiss an action when it finds that a plaintiff has perpetrated a fraud on the court. Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998); Tri Star Invs., Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981). However, due to the severity of dismissal as a sanction, it should only be employed in extreme circumstances, Cox, 706 So.2d at 46, and only after the plaintiff has been given fair notice and an opportunity to be heard. Sklandis v. Walgreen Co., 832 So.2d 942, 943 (Fla. 3d DCA 2002).

Although Medina received fair notice and the court heard arguments on FEC’s motions, under these circumstances, the court abused its discretion by imposing the ultimate sanction without first taking the additional step of granting Medina’s request for an evidentiary hearing, so as to give him the opportunity to appear in person and possibly explain the discovery violations which were the basis for the dismissal.

Accordingly, the order granting FEC’s motion to dismiss is reversed and the case remanded for an evidentiary hearing on the motion.

Reversed and remanded.


author: DAVIS, J. BENTON, J.,

text:
    Julie CONNELL, Century 21—R. Winston Connell, Realtor, Appellants, v. Bobby FLOYD, Big Bend Timber Services, Inc., Jerry Walton and Richard Connell, Appellees.
    No. 1D02-4510.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Rehearing Denied Feb. 20, 2004.

      John R. Beranek of Ausley & McMullen, Tallahassee; and Charles J.F. Schreiber, Jr., and Paul M. Harden of Bateman Harden, P.A., Tallahassee, for Appellants.
    J. Steven Carter and Laura Beth Fara-gasso of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellees.
   DAVIS, J.

In this appeal from the trial court’s denial of the appellants’ motion to tax attorneys’ fees and costs pursuant to section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442, we review de novo the appellants’ assertion that they were entitled to fees based on the appellants’ extension of a $1.00 proposal for settlement to Appellee-Floyd (hereinafter, “appellee”), the appellee’s rejection thereof, and the fact that the appellants ultimately prevailed. We affirm the trial court’s order denying an award of attorneys’ fees to the appellants.

The appellants are correct that, had their proposal for settlement been valid, they would have been entitled to an award of fees under section 768.79 and Rule 1.442. The appellants’ proposal for settlement, however, was not legally sufficient to be valid because it contained a non-monetary condition that was not stated with the particularity required by Florida Rule of Civil Procedure 1.442(c)(2)(C) & (D). Thus, the appellee’s rejection of the proposal did not vest the appellants with an entitlement to fees.

Below, the appellee named the appellants as joint defendants in a lawsuit, and the appellants responded by filing multiple compulsory counterclaims against the ap-pellee — counterclaims that arose from the exact same set of facts and circumstances which spawned the appellee’s claim against the appellants. The appellants proposed to give the appellee $1.00 to settle his claims against them, but, as a condition of that settlement, the appellants required the appellee’s stipulation to a final judgment that would have made a specific finding that the appellants prevailed in defense of the appellee’s claims against them.

After succeeding at trial, the appellants sought attorneys’ fees pursuant to section 768.79 and Rule 1.442. Having carefully considered the matter based on his knowledge of the entire record and the totality of the circumstances, the trial judge denied the appellants’ motion for attorneys’ fees and costs and found specifically that the potential impact on the remaining counterclaims of the final judgment condition was contrary to the appellants’ claimed desire to settle the appellee’s claims against them. Because the potential ramifications of the proposed final judgment condition did not simply place the appellee in the position of having to make a hard choice, but rather, rendered him unable to evaluate what his choices were, we agree with the trial court that the proposal was invalid.

Rules 1.442(c)(2)(C) and (D) require all non-monetary terms of an offer to be stated with particularity. See Zalis v. M.E.J. Rick Corp., 797 So.2d 1289 (Fla. 4th DCA 2001); Gulf Coast Transp., Inc. v. Padron, 782 So.2d 464 (Fla. 2d DCA 2001). This requirement of particularity is fundamental to the purpose underlying the statute and rule because a proposal for settlement is intended to end judicial labor, not create more. See Lucas v. Calhoun, 813 So.2d 971 (Fla. 2d DCA 2002); Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002). For this reason, a proposal for settlement should be as specific as possible, leaving no ambiguities, so that the recipient can fully evaluate its terms and conditions. Id. at 973 (citing United Servs. Auto. Ass’n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000)). Further, the rule and statute must be strictly construed because they are in derogation of the common law. Willis Shaw Express, Inc. v. Hilyer Sod Inc., 849 So.2d 276, 279 (Fla.2003).

Applying strict construction, we conclude that the non-monetary condition proffered by the appellants was not stated with sufficient particularity to have allowed the appellee to fully evaluate its terms or the impact thereof. Contrary to the appellants’ assertion, this non-monetary condition was not intended to just settle the appellee’s claims against the appellants. Although the appellants assert that they sought to bring an early end to a portion of the litigation, a goal which is acceptable under the statute and the rule, the appellants concede that a final judgment containing a finding that the appellants prevailed on the facts of this case might have been admissible in the litigation of the remaining counterclaims and most likely would have eviscerated the ap-pellee’s defense(s) thereto. Moreover, the counterclaims were still being vigorously pursued by the appellants and the appellants could have and, in fact, did amend those counterclaims to seek more damages. Had the appellee acquiesced to the appellants’ , requirement, the appellee would have been bound by whatever impact the final judgment might have had on the counterclaims, regardless of subsequent amendments thereto.

While a proposal for settlement may settle only a portion of a lawsuit, a valid proposal for settlement must at least settle that portion with certainty. Because the non-monetary condition was not susceptible to meaningful evaluation by the appellee, it was not stated with sufficient particularity to have rendered the proposal valid. See Fla. R. Civ. P. 1.442(c)(2)(C) & (D); see also Hales v. Advanced Systems, Design, Inc., 855 So.2d 1232 (Fla. 1st DCA 2003)(finding insufficiently particular a proposal’s requirement that an of-feree execute a general release of all future claims because the offeree could not evaluate whether the offer was sufficient to cover any future claims).

Accordingly, this proposal for settlement was not valid and the trial court’s order is affirmed.

ALLEN, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

The court today affirms denial of fees under the proposal for settlement statute, § 768.79, Fla. Stat. (2002), not for any reason the trial judge assigned, but on grounds that the proposal failed to meet the requirements of the implementing rule, Fla. R. Civ. P. 1.442, in that “the non-monetary condition ... was not stated with sufficient particularity to have allowed the appellee to fully evaluate its terms or the impact thereof.”

In my view, the non-monetary condition^) in question could not have been clearer. The settlement proposal contained the following six, numbered conditions, and no others:

1. Defendants will pay BOBBY FLOYD the sum of One Dollar ($1.00) in settlement of the claims asserted against them in Count V of the Second Amended Complaint;
2. BOBBY FLOYD will execute a full and final release of all such claims against the Defendants;
3. BOBBY FLOYD will stipulate to the entry of a judgment in favor of the Defendants, which judgment will make an express finding that the Defendants prevailed in defense of the claims against them;
4. This Proposal for Settlement is inclusive of, and intended to resolve any and all claims for damages, interest, costs, and attorneys’ fees asserted by BOBBY FLOYD against the Defendants;
5. This Proposal for Settlement is not intended in any way to resolve counterclaims filed by the Defendants against BOBBY FLOYD;
6. This offer of judgment is valid for a period of 30 days from the date set forth below, and will be considered withdrawn unless accepted, by filing both a written notice of acceptance within 30 days after service hereof; ...

As the majority opinion recognizes, if the proposal had been accepted, Mr. Floyd “would have been bound by whatever impact the final judgment might have had on the counterclaims.”

This circumstance does not mean that the proposal for settlement failed to “state with particularity any relevant conditions,” Fla. R. Civ. P. 1.442(c)(2)(C), including “nonmonetary terms.” Fla. R. Civ. P. 1.442(c)(2)(D). In the nature of things, in any case in which a proposal for settlement contemplates entry of judgment, the judgment proposed may have collateral or even res judicata effect on related litigation, whether then ongoing or later instituted. The proposal for settlement need not, however, include prognostications about the future course of any such litigation. It is enough that the proposal for settlement clearly identify the terms of the judgment proposed to be entered.

The judgment proposed in the present case would have been a partial, final judgment, leaving appellants’ pending counterclaim for later resolution. As the majority opinion concedes, however, “bringing] an early end to [even] a portion of the litigation ... is acceptable under the statute and the rule.” In the words of Judge Parker:

Nothing in either the statute or the rule requires that a proposal settle all claims between all parties, or even all claims between the parties to the proposal. It cannot be bad faith to apply the provisions of the statute and rule as they are written.

Wagner v. Brandeberry, 761 So.2d 443, 447 (Fla. 2d DCA 2000). See Sec. Prof'ls, Inc. v. Segall, 685 So.2d 1381, 1382 (Fla. 4th DCA 1997) (holding proposal for settlement effective as to claims and parties it addressed, even though many of the parties would remain in the litigation); Lieff v. Sandoval, 726 So.2d 335, 336 (Fla. 3d DCA 1999).

The majority opinion finds no fault with the amount of the monetary offer, nor does rule or statute require more than a nominal amount. See City of Neptune Beach v. Smith, 740 So.2d 25, 26-27 (Fla. 1st DCA 1999). -The rule is that

a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal. See [Evans v. Piotraczk, 724 So.2d 1210, 1211 (Fla. 5th DCA 1998) ]; see also Deltona House Rentals, Inc. v. Cloer, 734 So.2d 586, 588 (Fla. 5th DCA 1999); Weesner v. United Servs. Auto. Assoc., 711 So.2d 1192, 1194 (Fla. 5th DCA 1998); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997).

Nants v. Griffin, 783 So.2d 363, 365 (Fla. 5th DCA 2001). See also Fox v. McCaw Cellular Communications of Fla., Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998). The record is .devoid of finding or evidence of any lack of good faith.

It is also true that Ms. Connell’s offer did not designate how much of the dollar she would receive and how much her employer- — allegedly liable vicariously only, on account of the single telephone call she made — would receive. But the majority opinion rightly avoids any reliance on the failure to allocate pennies between a defendant employee-proposer and her co-defendant employer, whom the recipient of the proposal alleges to be liable only vicariously. See Barnes v. Kellogg Co., 846 So.2d 568, 572 (Fla. 2d DCA 2003) (“If anything, authorizing joint offers in such cases will facilitate settlements, which is the intended purpose of section 768.79”); Thompson v. Hodson, 825 So.2d 941, 954 n. 5 (Fla. 1st DCA 2002) (Benton, J., concurring in part and dissenting in part). But see Matetzschk v. Lamb, 849 So.2d 1141, 1144 (Fla. 5th DCA 2003).

In response to unsubstantiated claims filed against them, Ms. Connell and Century 21-Winston Connell, Realtor, counterclaimed for the commission they ultimately received. In a preliminary effort to focus the litigation on the commission, they made a proposal for settlement of extraneous claims in conformity with statute and rule. Under statute and rule, Ms. Connell and her employer were entitled to attorney’s fees after Mr. Floyd rejected the proposal, engaged in protracted litigation, and failed to establish a single one of his claims against them.

I respectfully dissent.


text:
    Charlie BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2888.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Rehearing Denied Feb. 24, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s partial denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because appellant’s sentences exceed the statutory máximums for his convictions, we are constrained to reverse.

On November 25, 1992, appellant was convicted of two counts of battery on a law enforcement officer and one count of inciting a riot, and was sentenced as an habitual violent felony offender to consecutive terms of 10 years in prison with concurrent 5-year mandatory mínimums on each count. On direct appeal, we affirmed appellant’s convictions and sentences. Brown v. State., 638 So.2d 939 (Fla. 1st DCA 1994) (table). Appellant subsequently filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his sentences violated the decision in Hale v. State, 630 So.2d 521 (Fla.1993). The trial court denied relief. On appeal, we held that appellant had stated a facially sufficient claim and remanded to the trial court for further proceedings. Brown v. State, 688 So.2d 976 (Fla. 1st DCA 1997).

On remand, the trial court vacated appellant’s sentences and imposed concurrent terms of 10 years in prison with 5-year mandatory mínimums. Appellant’s written judgment and sentence stated that these were habitual violent felony offender sentences. Appellant then filed the motion which has prompted this appeal, alleging that his sentences are illegal because they do not comport with the trial court’s oral pronouncement and they exceed the statutory máximums for his convictions. The trial court agreed that appellant had not been orally pronounced an habitual violent felony offender at the resentencing, and struck the habitual violent felony offender designations and the 5-year minimum mandatory terms from the judgments and sentences. However, the trial court concluded that appellant’s sentences were not illegal because they were within the permitted sentencing range. Appellant now challenges the trial court’s denial of his claim that his sentences are illegal because they exceed the statutory máximums for his convictions.

Appellant was convicted of three third-degree felonies, each of which is punishable by up to 5-years in prison. §§ 784.07(2)(b), 870.01, 775.082(3)(d), Fla. Stat. (1991). Appellant’s recommended sentencing range was 12 to 17 years in prison, and his permitted sentencing range was 9 to 22 years in prison. The 10-year sentences are within the guidelines range. However, appellant committed his crimes in 1992, when the sentencing guidelines did not authorize trial courts to impose a sentence that exceeded the statutory maximum, even if it was within the guidelines sentencing range. See § 921.001(5), Fla. Stat. (1991) (“Sentences imposed by trial court judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions”); Mays v. State, 717 So.2d 515, 516 (Fla.1998); Stewart v. State, 755 So.2d 736 (Fla. 4th DCA 2000). Thus, the maximum sentence appellant could receive on each count is 5-years.

Accordingly, we reverse the trial court’s denial of appellant’s claim that his sentences are illegal because they exceed the statutory máximums for his offenses, and we remand for resentencing. On remand, the trial court must impose a combination of sentences which will come as close as possible to the guidelines range. See Branam v. State, 554 So.2d 512 (Fla.1990); Holmes v. State, 653 So.2d 464 (Fla. 1st DCA 1995). However, because of double jeopardy concerns, the combination of sentences imposed may not exceed 10 years. See, e.g., Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002). Thus, because the low end of appellant’s permitted guidelines range is 9 years, the trial court must sentence appellant to a total of between 9 and 10 years in prison, by making at least one of the sentences consecutive. Bra-nam; Holmes.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Arthur C. HEIKES, Jr. and Valerie M. Heikes, his wife, Appellants, v. REPUBLIC INSURANCE COMPANY, Appellee.
    No. 3D02-2179.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Lyons & Farrar, P.A. and Marsha L. Lyons (Tallahassee), for appellants.
    Thornton, Davis & Fein, P.A. and Mark D. Bohm, Miami, for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   PER CURIAM.

The appellants, Arthur and Valerie Heikes, on behalf of themselves, and as class representatives, appeal from a final summary judgment entered in favor of Republic Insurance Company (“Republic”), and from the denial of their motion for rehearing. We affirm in part, reverse in part and remand for further proceedings.

In November 1994, the Heikes filed a class action suit against Republic Insurance Company. The gravamen of the complaint avers that the plaintiffs were buyers of homes constructed by General Development Corporation (“GDC”), and purchasers of homeowner’s insurance policies from Florida Insurance Concepts (“FIC”), a wholly owned subsidiary of GDC. FIC placed insurance policies on each of the plaintiffs’ properties through various insurance companies including Vanguard Insurance Company (“Vanguard”), Merrimack Mutual Fire Insurance Company (“Merrimack”), and Republic. The complaint alleges that each homeowners’ insurance policy sold to the class plaintiffs through FIC had excessive insurance premiums because it was calculated on an inflated value or replacement value of the homes.

The trial court certified the class in February 1999, and incorporated into its order a list of class members based on a response to a request for production, a computer printout provided by Republic, of the insureds. Republic appealed the order certifying the class, but we affirmed. See Republic Ins. Co. v. Heikes, 741 So.2d 1179 (Fla. 3d DCA 1999).

Following our affirmance the parties engaged in settlement discussions. At that time plaintiffs’ counsel indicated that he was unclear about which policies on the printout were issued by Vanguard and which were issued by Republic. On May 11, 2000, the Heikes served an interrogatory requesting a breakdown of the Republic and Vanguard insureds, to which Republic responded that code “2” were Vanguard insureds and code “1” were insured by Republic. This information showed that out of a certified class of 2,370, 2,168 of the class members, including the Heikes, were not insured by Republic.

Thereafter Republic moved for summary judgment on grounds that since, among others, the class representatives and a majority of the class members were not insured by Republic, no valid cause of action against Republic existed. The trial court granted summary judgment in Republic’s favor. The Heikes’ motion for rehearing was denied, and a final judgment was entered. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

It is undisputed that the Heikes, the class representatives, and a majority of the class members were insured by Vanguard and not Republic. Thus, these insureds are maintaining an action against the wrong entity. Accordingly, as to these insureds’ claim against Republic, summary judgment was proper. See People Against Tax Revenue Mismanagement, Inc. v. Leon County Canvassing Bd., 573 So.2d 31 (Fla. 1st DCA 1991)(finding summary judgment proper where Leon County Canvassing Board was not proper party to suit); see also In re TEU Holdings, Inc., 287 B.R. 26 (Bkrtcy.D.Del.2002) (finding that, because party against whom relief was sought was not party to the contract, no contract or negligence action could lie against it); Freund v. Fleetwood Enterps., Inc., 756 F.Supp. 604 (D.Me.1991)(finding summary judgment was granted in favor of wrongly named entity where plaintiff sued “U-Haul International” for negligent repairs to vehicle, but named defendant made no repairs, and where evidence showed different entity, “U-Haul of New Hampshire and Vermont,” serviced vehicles in region.). These members, however, are not without recourse as they can join the related class action lodged against Vanguard on similar charges.

With regard to the over 200 class members who were insured by Republic, we find that summary judgment was improper. In an abundance of caution, however, we note that the certification of this class is not “final,” if it can be found that subsequent developments have altered a previous certification ruling. See Liggett Growp, Inc. v. Engle, 858 So.2d 434 (Fla. 3d DCA 2003). Thus, the trial court is not precluded, as plaintiffs suggest, by the doctrine of “law of the case” from revisiting the propriety of a class action in this case. We also note that plaintiffs have not waived their entitlement to move for a substitution of class representatives, as defendant contends, and we direct the trial court to order the same. Thus, we reverse the summary judgment entered against the Republic insureds and remand for further proceedings.

Affirmed in part, reversed in part and remanded with instructions.

      .Related class actions were also brought against Vanguard and Merrimack. See Augustine v. Vanguard Ins. Co., 793 So.2d 998 (Fla. 3d DCA 2001) rev. denied, 817 So.2d 852 (Fla.2002) and Merrimack Mut. Fire Ins. Co. v. Power, 727 So.2d 1000 (Fla. 3d DCA 1999).

      . The computer printout evidenced homeowner policies issued through FIC by both Vanguard and Republic.

      . In Augustine v. Vanguard, the trial court recently granted summary judgment in favor of Vanguard, but the court has granted the plaintiffs, represented by the same counsel as the plaintiffs here, leave to amend.

      . But note that classes much smaller than the 200 plus Republic insureds have been certified. See Pottinger v. City of Miami, 720 F.Supp. 955 (S.D.Fla.1989)(25 members in class held sufficient); Basile v. Merrill Lynch, 105 F.R.D. 506 (Dist.Ct.Ohio 1985).


text:
    Miguel CORCINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-744.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

Affirmed. See State v. Simmons, Nos. 3D02-3120, 3D03-376, — So.2d -, 2003 WL 22658101 (Fla. 3d DCA Nov.12, 2003).


text:
    Nicholas ARSALI, substituted for Washington Trust, LLC, Appellant, v. Scott KIPP, National Lending Center, Inc., and Code Enforcement Special Master of Palm Beach County, Florida, Appellees.
    No. 4D02-3742.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Rehearing Denied March 15, 2004.

      Nicholas Arsali, Ocean Ridge, pro se.
    No briefs filed for appellees.
   PER CURIAM.

Affirmed. See § 197.552, Fla. Stat. (2002).

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


text:
    STATE of Florida, Appellant, v. Scott HARGREAVES, Appellee.
    No. 4D03-1471.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Rehearing Denied March 11, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, appellant.
    J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Daniels v. Cochran, 654 So.2d 609, 613 (Fla. 4th DCA 1995).

STONE, WARNER and STEVENSON, JJ., concur.


author: KAHN, J.

text:
    P.D., mother of C.W., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-3044.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.

      Jennifer Cogdill, Fleming Island, for Appellant.
    Lacey Noel, Assistant General Counsel, Department of Children and Families, Green Cove Springs, for Appellee.
   KAHN, J.

P.D.,' the mother of C.W., appeals a dependency order entered by the trial court based solely upon a finding that the mother and child tested positive for cocaine at the child’s birth. Because we conclude that a finding of harm under section 39.01(30)(g)l., Florida Statutes (2002), requires some showing of an adverse effect resulting from the mother’s use of controlled substances or alcohol, we must reverse.

C.W. and P.D.' each tested positive for the presence of cocaine at C.W.’s birth. The mother claims she inadvertently took prescription drugs she obtained from a friend two weeks before C.W.’s birth. On appeal, the Department of Children and Families argues, among other things, that the mother’s story lacks credibility and, therefore, provides evidence of a continuing substance abuse problem and a risk of prospective abuse and neglect justifying the dependency order. The Department never argued this point at the hearing below.

Under the statutory provisions pertinent to C.W.’s situation, an adjudication of dependency requires the Department to show that C.W. has been “abandoned, abused, or neglected” by P.D. or that C.W. was at “substantial risk of imminent abuse, abandonment, or neglect.” § 39.01(14)(a), (f), Fla. Stat. (2002). The Amended Petition for Dependency in this cause alleged “acts constituting abandonment, abuse and/or neglect as defined in Section 39.01(01), (02) and/or (46).” In support, the Department alleged that: 1) P.D. exposed C.W. to cocaine during her pregnancy; 2) P.D. suffered from physical ailments which precluded her from caring for C.W. for significant periods of time; 3) P.D. continues to abuse drugs; and 4) of P.D.’s two other children, one has been placed with the father and the other has been placed with the mother.

An abandoned child is one whose parent or caregiver, “while being able, makes no provision for the child’s support and makes no effort to communicate with the child.” § 39.01(1), Fla. Stat. (2002). An abused child is one who is subjected to “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to 'be significantly impaired.” § 39.01(2), Fla. Stat. (2002). Finally, a neglected child is one who is “deprived of ... necessary food, clothing, shelter, or medical treatment or ... permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or .emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(45), Fla. Stat. (2002).

Our review of the transcript of the hearing and the trial court’s order leads us to conclude that the trial court based its adjudication of dependency solely upon a finding of abuse. The Department’s argument at the hearing focused almost exclusively on the issue of whether P.D. knowingly used cocaine while pregnant with C.W. Despite the variety of allegations, the trial court made no pertinent factual finding other than “at the child’s birth the mother and child tested positive for cocaine.” As a result, we must examine whether the Department made a showing of harm as required to meet the definition of abuse in section 39.01(2).

Under section 39.01(30)(g)l., exposure of an unborn child to controlled substances or alcohol by the mother may constitute harm. That provision, however, does not contemplate an adjudication of dependency any time a newborn tests positive for the presence of a controlled substance or alcohol. In pertinent part, section 39.01(30) provides:

“Harm” to a child’s health or welfare can occur when any person:
* * *
(g) Exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by:
1. Use by the mother of a controlled substance or alcohol during pregnancy when the child, at birth, is demonstrably adversely affected by such usage.

(emphasis added). The issue, then, is whether a detectable amount of cocaine in C.W.’s blood, absent any other adverse effects, establishes an “exposure to a controlled substance” as that phrase is defined in the statute.

Under principles of statutory construction, a court may not generally ignore or delete words used by the Legislature in a statutory provision absent a finding that “the words at issue are so meaningless or clearly inconsistent with the legislative intent that they should be ignored as mere surplusage.” Greenberg v. Cardiology Surgical Ass’n, 855 So.2d 234, 237 (Fla. 1st DCA 2003). The trial court’s order does not grapple with the statutory phrase “demonstrably adversely affected.” We understand that the mother’s drug usage had an effect upon C.W. in that it caused cocaine to be present in the infant’s blood. Such effect was demonstrated by a positive blood test. Unexplainably, however, the record is devoid of any attempt by the Department to establish that C.W. was adversely affected so as to be harmed under the statute.

Perhaps public policy would favor a rule that allows a finding of dependency solely on the basis of a newborn’s positive test for cocaine. Such a rule, however, would allow a finding of dependency based on the presence in a newborn of any non-prescribed controlled substance or alcohol regardless of whether the child showed any adverse effects at birth. If the Legislature had intended such a result it could have omitted the second sentence of section 39.01(30)(g) and subparagraphs 1. and 2., leaving the statute to read that harm occurs when any person “[ejxposes a child to a controlled substance or alcohol.” Instead, the Legislature provided a particularized definition of “exposure to a controlled substance.” The words chosen by the Legislature cannot be viewed as mere surplusage because they sharpen the definition of “harm.”

We REVERSE the dependency order. In the interest of the child, the effect of this decision will be stayed for 30 days after issuance of our mandate. During this time, the Department may investigate the child’s situation and welfare.

BENTON and VAN NORTWICK, JJ, concur.


author: ERVIN, J.

text:
    Mindy MYERS, Appellant, v. STATE of Florida, R. Brent Maggio, Emerald Healthcare, Inc., Emerald Coast Healthcare, Inc., Crestview Investments, Inc., d/b/a Crestview Nursing and Convalescent Home, Ft. Walton Beach Investments, Inc., d/b/a Ft. Walton Beach and Rehabilitation Center, Emerald Landmark, Inc., d/b/a Landmark Health & Rehabilitation Center, Emerald-Cedar Hills, Inc., d/b/a Cedar Hills Nursing Center, Emerald-Golfcrest, Inc., d/b/a Golfcrest Nursing Home, Emerald-Golfview, Inc., d/b/a Golfview Nursing Home, and Emerald-Southern Pines, Inc. d/b/a Southern Pines Nursing Center, Appellees.
    No. 1D03-0541.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    David L. McGee and Terne L. Didier of Beggs & Lane, Pensacola, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee State of Florida.
    John R. Hamilton and Christi R. Adams of Foley & Lardner, Orlando, for Appel-lees R. Brent Maggio, et al.
   ERVIN, J.

Appellant, Mindy Myers, appeals a final judgment approving a settlement agreement brought under the Florida False Claims Act, which authorizes civil actions by individuals and the state against persons who file false claims for payment or approval with a state agency. Myers complains that the trial court’s approval failed to take into proper consideration the requirements that settlements be fair, adequate and reasonable. We agree and reverse and remand with directions for the lower court to reconsider the proposed settlement in accordance with the statutory criteria.

Myers filed a qui tam action for damages and civil penalties against appellees, R. Brent Maggio and numerous nursing homes he owns and manages, alleging fraudulent practices in violation of the False Claims Act. While the proceeding was pending, appellee, the State of Florida, intervened pursuant to section 68.083(6)(a), filing a complaint seeking damages and civil penalties arising from false claims and reports submitted to the Medicaid program for nursing home services and for care to persons in certain nursing homes.

After the trial court had granted summary judgment for Maggio on five out of seven counts, the state and the defendants entered into a proposed settlement agreement, and, over Myers’ objection, the state thereafter moved for the court’s approval of it. At the hearing conducted on the motion, Myers presented evidence showing that the proposed settlement failed to comply with the statutory criteria of reasonableness, etc. The lower court, in approving the agreement, never determined whether the stipulation was reasonable, because it concluded only that the settlement had not been obtained through fraud. This was error.

Initially, we observe that our review standard is de novo, because this appeal involves essentially an issue regarding the correct interpretation of a statute. Section 68.084(2)(b) is modeled after 31 U.S.C. § 3730(c)(2)(B), which also requires that a proposed settlement agreement be “fair, adequate, and reasonable under all the circumstances.” We have uncovered no case law in Florida construing subsection 68.084(2)(b), nor have we found federal cases interpreting the parallel provision. We have thus found it useful to consider federal case law wherein courts have construed Federal Rule of Civil Procedure 23(e), which permits settlements of class actions with court approval, as similarly requiring trial courts to determine whether a proposed settlement agreement is fair, adequate and reasonable. See Officers for Justice v. Civil Service Comm’n, 688 F.2d 615, 625 (9th Cir.1982). In making such determination, courts have assessed a multiplicity of factors in cases we find to be highly persuasive in reaching our own construction of the Florida statute. Cf. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984) (approving six components for determining whether a settlement is fair, adequate and reasonable, i.e., (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point over or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense and duration of the litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of the proceedings at which the settlement was achieved); Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975) (recommending the following nine factors: (1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks, of maintaining a class action; (7) the ability of the defendants to -withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation). See also Officers for Justice, 688 F.2d at 625 (suggesting eight factors).

Because the court below, in its order of approval, appears to have considered only that the agreement was not tainted by fraud, it did not decide whether the criteria demanded by section 68.084(2)(b) had been satisfied. In our judgment, the statute clearly requires a more thorough review than that given the agreement by the trial court. The final judgment of approval is therefore reversed, and the case is remanded for the court to evaluate explicitly whether “the proposed settlement is fair, adequate, and reasonable under all the circumstances.” The court may, in its discretion, conduct another hearing and consider additional evidence in making such determination.

REVERSED and REMANDED.

BARFIELD and POLSTON, JJ., concur.

      . Sections 68.081-68.09, Fla. Stat. (2002).

      . Specifically, section 68.084(2)(b) provides, in part: “[N]othing in this act shall be construed to limit the authority of the department or the qui tam plaintiff to compromise a claim brought in a complaint filed under this act if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.”

      . A qui tam (Latin for "who as well”) action is filed under a statute that allows a private person to sue for a penalty, part of which the government will receive. See Black’s Law Dictionary 1262 (7th ed.1999).

      . Rule 23(e) was amended to provide, after December 1, 2003: "The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.”

      . In reaching our decision, we have not overlooked appellees' argument that this court lacks jurisdiction over the appeal because, after the settlement agreement was proposed and before the entry of the judgment of approval, the state had filed a notice of voluntary dismissal of the case with prejudice, and, as a consequence, the lower court lacked jurisdiction to enter its order. The state previously raised the same argument in its motion to dismiss the appeal, and another panel of the court rejected the argument. We see no reason to disturb that ruling.


text:
    UNITED AUTOMOBILE INS. CO., Petitioner, v. TOTAL HEALTH CARE OF FLORIDA a/a/o Joyce Marshall, Respondent.
    No. 3D03-2846.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Lawrence Root, for petitioner.
    Panter, Panter & Sampedro, P.A., Miami, and Jorge Luis Montero, for respondent.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We quash the order of the circuit court, appellate division, on authority of United Automobile Insurance Co. v. Total Rehab & Medical Center, No. 3D03-2126, — So.2d -, 2004 WL 231799 (Fla. 3d DCA opinion filed February 4, 2004), and Leonard v. First Union Nat’l Bank, 685 So.2d 98 (Fla. 3d DCA 1997).

Certiorari granted.


author: STONE, J.

text:
    The CITY OF HOLLYWOOD, a municipal corporation, Appellant, v. Gary HAKANSON, Appellee.
    No. 4D02-4674.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Daniel L. Abbott, City Attorney, and Robert M. Oldershaw, Hollywood, for appellant.
    No appearance for appellee.
   STONE, J.

Gary Hakanson, former risk manager for the city of Hollywood, obtained a declaratory judgment against the city. The judgment established that Frank Yamout, president of the Hollywood civil service board, to which Hakanson filed an appeal after his employment was terminated, had received an undisclosed ex-parte communication which triggered a presumption of prejudice pursuant to section 286.0115, Florida Statutes. We reverse.

Section 286.0115, Florida Statutes, requires public officials to disclose ex-parte communications in order to assure an adverse party the opportunity to confront, respond, and rebut any such disclosures so as to prevent any appearance of impropriety.

The alleged ex-parte communication involved statements made during a public meeting of the city commission, attended by both Yamout and Hakanson, a few months after Hakanson’s termination as risk manager. At that meeting, the assistant city manager, Ken Fields, discussing the city’s options for self-insurance plans and the cost increases of the present plan, remarked that the former risk manager, who had managed the plan, was asked to analyze and determine the reasons for the cost increases, but failed to do so.

Subsequently, at a preliminary civil service board hearing regarding Hakanson’s appeal, Hakanson’s attorney asked the board members if any of them were “biased towards the case as a result of any newspaper, radio and/or t.v. coverage.” Yamout answered in the negative.

We conclude that it was error to deny the city’s motion for directed verdict because the comments, made at a city commission meeting open to the general public, did not constitute an offending ex-parte communication simply because a civil service board member was in the audience. See generally Citizens of the State of Florida v. Wilson, 569 So.2d 1268 (Fla.1990). Therefore, section 286.0115 is not implicated.

We additionally note that even if the incident was deemed an ex-parte communication, section 286.0115 requires that disclosure of the offending communication must be made by the public official either before or during the meeting at which final action is taken. Here, final action was not taken at the board meeting.

Therefore, we reverse and remand for entry of judgment in favor of the city.

KLEIN and HAZOURI, JJ., concur.


author: STRINGER, Judge.

text:
    Charles P. DE GESO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2502.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2004.
   STRINGER, Judge.

Charles De Geso challenges the trial court’s order summarily dismissing his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erroneously dismissed the motion as untimely and did not reach the merits of De Geso’s claims, we reverse.

On April 28, 1999, a jury found De Geso guilty of two counts of trafficking in cocaine. He was sentenced to eleven and a half years in prison. De Geso appealed, and on December 12, 2000, the mandate of this court issued in which his convictions were affirmed. His sentences were reversed, and the case was remanded. On February 15, 2001, De Geso was resen-tenced to concurrent terms of 83.2 months in prison. He did not appeal. This motion for postconviction relief was filed on February 18, 2003.

Rule 3.850(b) states that “[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... ” Fla. R.Crim. P. 3.850(b) (emphasis added). Accordingly, De Geso had until roughly March 15, 2003, to file a motion for postconviction relief. Therefore, his motion was timely filed.

Reversed and remanded.

COVINGTON and VILLANTI, JJ„ Concur.


author: ALLEN, J.

text:
    Ruby HOPKINS and Ronald Hopkins, Appellants, v. THE BOAT CLUB, INC., a Florida Corporation d/b/a Embark Boat Club and Billy R. Brawner, Appellees.
    No. 1D02-3385.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2004.

      Chalmers H. Barnes of Barnes, Barnes & Cohen, P.A., Jacksonville, for Appellant:
    Daniel Vazquez of Holland, Singer & Miller, P.A., Miami, and Robert S. Glazier of Law Office of Robert S. Glazier, Miami, for Appellee.
    Daniel Vazquez of Holland, Singer & Miller, P.A., Miami, and Robert S. Glazier of Law Office of Robert S. Glazier, Miami, for Appellee.
   ALLEN, J.

The appellants, Ruby and Ronald Hopkins, who were the plaintiffs below, challenge a final summary judgment in favor of the appellees, The Boat Club, Inc. (“the Boat Club”) and Billy Brawner, who were the defendants below. Because we conclude that the exculpatory clauses signed by the appellants were legally sufficient under controlling federal maritime law to release the appellees from liability for injuries caused by the appellees’ negligence, we affirm the order under review.

Mr. Hopkins entered into a written membership agreement with the Boat Club by which he secured the right to use various boats owned by the Boat Club. Mr. Hopkins and his wife, Ms. Hopkins, then executed individual releases, each entitled “Assumption and Acknowledgment of Risks and Release of Liability Agreement,” and each providing, in relevant part, as follows:

As a member of [the Boat Club], or as a guest of a member, 'in consideration of being allowed to participate in waters-port evénts and activities, and/or being provided with watercrafts and/or waters-port recreational property or services, for myself and any minor children for whom I am parent, legal guardian or otherwise responsible, and for my/our heirs, personal representatives or assigns, I hereby:
1. ACKNOWLEDGMENT OF RISKS. Acknowledge that some, but not all, of the risks of participating in watersport activities include:
1. Changing water flow, tides, currents, wave action and ships’ wakes,
2. Collisions with any of the following: other participants, the watercraft, other watercraft, and man-made or natural objects,
3. Wind, inclement weather, lightning, variances and extremes of wind, weather, and temperature,
4. My sense of balance, physical coordination, ability to operate equipment, swim and/or follow directions,
5. Collision, capsizing, sinking or other hazard which results in wetness, injury, exposure to the elements, hypothermia, and/or drowning,
6. The presence of insects and marine life forms,
7. Equipment failure or operator error,
8. Heat or sun related injuries or illnesses, including sunburn, sunstroke or dehydration,
9. Fatigue, chill and/or dizziness, which may diminish my/our reaction, time and increase the risk of an accident.
2. EXPRESS ASSUMPTIONS OF RISK AND RESPONSIBILITY. Agree to assume responsibility for all the risk of the activity, whether identified above or not. My/our participation in the activity is purely voluntary. I assume full responsibility for myself and my minor children for whom I am responsible, for any bodily injury, accident, illness, paralysis, death, loss of personal property and expenses thereof as a result of any accident that may occur while I/we participate in the activity.
3. RELEASE. Release [the Boat Club], its principals, directors, officers, agents, employees and volunteers, their insurers and each and every land owner, municipal and/or governmental agency upon whose property an activity is conducted and their insurers, from any and all liability of any nature for any and all injury or damage (including death) to me or my minor children and other persons as a result of my/our participation in the activity, regardless of the cause.

On May 1, 2001, Mr. and Ms. Hopkins first used a watercraft under the terms of the membership agreement. As required by the agreement, they participated in a “checkout cruise” with one of the Boat Club’s employees, Mr. Brawner, who was to instruct Mr. Hopkins on the proper and safe operation of the boat. While operating the craft under Mr. Brawner’s direction and supervision, Mr. Hopkins crossed a large boat wake at a high rate of speed, resulting in Ms. Hopkins being thrown out of her seat and seriously injured.

The appellants sued the appellees, alleging that the negligence of Mr. Brawner and the Boat Club had caused Ms. Hopkins’s injuries. The appellees later filed a motion for summary judgment in which they asserted that the releases signed by the appellants were sufficiently clear and unequivocal to overcome the general rule that exculpatory clauses seeking to release a party from its own negligence are disfavored. The trial court agreed and entered the final summary judgment under review.

This case falls within the contours of federal maritime jurisdiction. See Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000); Beckman v. Rick’s Watercraft Rentals, 719 So.2d 1025 (Fla. 3d DCA 1998); Mink v. Genmar Industries, 29 F.3d 1543 (11th Cir.1994). Federal maritime law controls the rights and liabilities of the parties in such cases. See Diesel "Repower," Inc. v. Islander Investments, 271 F.3d 1318 (11th Cir.2001). State law may be applied only where it does not conflict with or disturb the uniformity of maritime law. Id. at 1323-1324. See also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485 (11th Cir.1986); Norwegian Cruise Lines, Ltd. v. Zareno, 712 So.2d 791 (Fla. 3d DCA 1998).

Relying upon Florida decisional law, the appellants argue that the releases they signed were legally insufficient to relieve the appellees of liability for their own negligence because the releases did not specifically refer to the appellees’ “negligence.” Exculpatory clauses seeking to absolve a party from liability for injuries resulting from its own negligent acts are operative in Florida, but are looked upon with disfavor. See Borden v. Phillips, supra; Foster v. Matthews, 714 So.2d 1215 (Fla. 3d DCA 1998); Van Tuyn v. Zurich American Insurance Co., 447 So.2d 318 (Fla. 4th DCA 1984). For such a clause to be effective, the release of liability for the party’s own negligence must be clearly and unequivocally stated. Id. Rigorously adhering to this principle, some Florida courts have applied a bright-line rule that a release is ineffective to relieve a releasee of responsibility for its negligence unless the release specifically references the re-leasee’s “negligence.” The appellants in the present case rely upon the decisions of these courts.

Federal law is consistent with Florida law in its disfavored treatment of exculpatory clauses seeking to release a party from its own negligence. As is the case under Florida law, the intent to relieve a party from responsibility for its own negligence must be clearly expressed in a release for it to be effective under federal law. See Krazek v. Mountain River Tours, Inc., 884 F.2d 163 (4th Cir. 1989). But federal courts have consistently refused to hold that words such as “negligence” or “negligent acts” are indispensable. Id. at 166; United States v. Seckinger, 397 U.S. 203, 213 n. 17, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970); accord Sander v. Alexander Richardson Investments, 334 F.3d 712 (8th Cir.2002). State laws requiring specific reference to the releasee’s “negligence” therefore conflict with federal law and may not be applied in cases involving federal maritime law. For example, in a maritime negligence case from Missouri, the Eighth Circuit wrote as follows:

We recognize that the Supreme Court of Missouri requires something more, see Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337 (Mo.1996) (holding that exculpatory clause in health club membership did not exculpate the facility from liability for a personal injury stemming from the facilities negligence because the clause did not use the term “negligence,” “fault,” or equivalents), but we are applying federal maritime law, which must control our construction of the contract at issue.

Sander, 334 F.3d at 716. See also Harrison v. S/V Wanderer, 25 F.Supp.2d 754 (S.D.Tex.1998). Consequently, state bright-line rules requiring explicit reference to a releasee’s “negligence,” such as the rule applied in the Florida decisions upon which the appellants rely, are preempted by federal law.

The appellants also argue that 46 U.S.C.A.App., section 183c invalidates the releases involved in this case. This section provides:

It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury, or the measure or damages therefor. All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.

Because there is no indication that the Boat Club was operating as a commercial carrier or that the transportation involved was occurring from port to port, this provision does not apply in the present case. See Shultz v. Florida Keys Dive Center, Inc., 224 F.3d 1269 (11th Cir.2000); see also Olivetti v. Sappo Corporation, Inc., 225 F.Supp.2d 109 (D.P.R.2002); Moore v. American Scantic Line, Inc., 30 F.Supp. 843 (S.D.N.Y.1939).

The ultimate issue for our determination is whether, in accordance with controlling federal law, the exculpatory clauses in this case validly absolved the appellees of liability for injuries caused by their own negligence. This determination is guided by the U.S. Supreme Court’s instruction in Seckinger, 397 U.S. at 213 n. 17, 90 S.Ct. 880, that “[cjontract interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.” We note that there is no indication that the parties were in unequal bargaining positions, and we find it significant that the releases made specific reference to a number of risks involved in the underlying recreational activity, including “ship’s wakes.” Further, the exculpatory clauses detailed that the waiver applied not just to the Boat Club, but also to its principals, directors, officers, agents, employees, and the like, and provided that they served to release those persons and entities from any and all liability of any nature for any and all injury or damage as a result of participating in the activity, “regardless of the cause.” This language was sufficient to inform an ordinary and knowledgeable person that he or she was releasing the appellees from liability for injuries caused by the appellees’ negligence, and the appellants’ executions of the releases therefore effected this intent.

The appellants’ remaining arguments are rejected, and the order under review is affirmed.

ERVIN and LEWIS, JJ., concur.

      . The parties explicitly acknowledge that the final summary judgment disposed of the entire case, and thus jurisdiction properly lies in this court.

      . Under the savings to suitors clause of the Judiciary Act of 1789, currently codified as 28 U.S.C. section 1333(1), state courts have concurrent jurisdiction with the federal courts as to in personam claims based on maritime torts.

      . Other Florida courts have eschewed the bright-line rule applied in these decisions. Compare Witt v. Dolphin Research Center, Inc., 582 So.2d 27 (Fla. 3d DCA 1991) with Hardage Enterprises, Inc. v. Fidesys Corporation, N.V., 570 So.2d 436 (Fla. 5th DCA 1990) and Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590 (Fla. 5th DCA 1998). The first district is more closely aligned with the view that the appellee's negligence must be specifically mentioned. See, e.g., Levine v. A. Madley Corporation, 516 So.2d 1101 (Fla. 1st DCA 1987).


author: RAMIREZ, J.

text:
    Omar FLETCHER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3079.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    John H. Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and RAMIREZ, JJ.
   RAMIREZ, J.

Omar Fletcher appeals his conviction for burglary of a dwelling and petit theft. We reverse because the jury failed to affirmatively find that the burglary was of a dwelling.

Count I of the Information charged that Fletcher did unlawfully enter or remain in a dwelling. The trial court subsequently instructed the jury as follows: “Omar Fletcher, the defendant in this case, has been accused of the crime of Burglary of an Unoccupied Dwelling and Grand Theft-Third Degree ($300 to $5,000).” The trial court also instructed the jury that the State must prove, as one of three elements of the crime of burglary, that Fletcher entered or remained in a structure. The jury received the definitions of “structure” and “dwelling.” As part of the instruction for Trespass in a Structure as a lesser included offense of burglary, the trial court instructed the jury that it was necessary for Fletcher to have willfully entered or remained in a dwelling. The jury again received the definition of “structure,” but not that of “dwelling.”

The verdict form read as follows:

As to Count I of the Information
_ Guilty of Burglary
_ Guilty of Trespass as a lesser included offense
_ Not guilty

The jury found Fletcher guilty of burglary.

In order for a third degree felony conviction of burglary to be enhanced to a second degree felony of burglary of a dwelling, the jury must make a specific finding that the burglary was of a dwelling, not just a structure. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “It is a well established rule of law that the judgment of the trial court must conform to the jury’s verdict.” Williams v. State, 511 So.2d 1017, 1019 (Fla. 2d DCA 1987). In Williams the defendant’s conviction for burglary of a dwelling was reversed because “[t]he verdict did not specify burglary of a dwelling nor state that Williams was guilty ‘as charged’ in the information.” Id. As in Williams, the verdict in this case did not specify that Fletcher was guilty of burglary of a dwelling or state that he was guilty as charged. Thus, Fletcher cannot be convicted of burglary of a dwelling. We therefore reverse Fletcher’s conviction for burglary of a dwelling, and remand for resentencing for burglary of a structure, a third degree felony.

Reversed and remanded.


text:
    Claudia SALOMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3430.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing and Certification Denied Feb. 27, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J.-Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Herise v. State, 763 So.2d 393 (Fla. 3d DCA 2000).


author: GODERICH, Judge.

text:
    VERYSELL-HOLDING LLC, a foreign limited liability company, and Mikhail Krasnov, an individual, Appellants, v. Sergei TSUKANOV, an individual and Olga Tsukanov, an individual, Appellees.
    No. 3D03-2490.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.

      Seidman, Prewitt & DiBello, Thais Hernandez and Darin A. DiBello, Miami, for appellants.
    Lyons & Farrar, and Charles Farrar, Coral Gables, for appellees.
    Before COPE, GODERICH, and FLETCHER, JJ.
   GODERICH, Judge.

The plaintiffs, Verysell-Holding LLC and Mikhail Krasnov, appeal from an order granting the defendants’ ore tenus motion for enlargement of time to file their motion to dismiss for forum non conve-niens and also granting the motion to dismiss. We affirm.

The plaintiffs filed a complaint against defendants, Sergei Tsukanov and Olga Tsukanov. On June 26, 2002, the defendants were served by substituted service. Thereafter, on March 3, 2003, the defendants filed a motion to dismiss for forum non conveniens, pursuant to Rule 1.061(a), Florida Rules of Civil Procedure. At the hearing on the motion to dismiss, the plaintiffs argued that pursuant to Rule 1.061(g), Florida Rules of Civil Procedure, the motion was untimely filed. In response, the defendants made an ore tenus motion for enlargement of time to file the motion to dismiss arguing that they had mistakenly believed that they were not required to file the motion to dismiss for forum non conveniens until the trial court had ruled on a previously filed motion. The defendants also argued that pursuant to Government Employees Insurance Co. v. Bums, 672 So.2d 834, 838 (Fla. 3d DCA 1996), the trial court had the inherent power to raise the issue of forum non conve-niens sua sponte. The trial court entered an order granting the defendants’ ore ten-us motion for enlargement of time finding that the defendants had shown “excusable neglect.” The trial court also found that, in the alternative, pursuant to Bums, it had the inherent power to raise the issue of forum non conveniens sua sponte. Finally, the trial court dismissed the action for forum non conveniens after applying the factors set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996). This appeal followed.

The plaintiffs contend that the trial court erred by considering the issue of forum non conveniens sua sponte after the expiration of the sixty-day time limit set forth in Rule 1.061(g). We disagree.

In Bums, this Court on rehearing held that a trial court can consider the issue of forum non conveniens sua sponte. However, subsequent to the decision in Bums, Rule 1.061 was amended to impose a time limit on the service of motions to dismiss for forum non conveniens. The plaintiffs argue that the time limit imposed by Rule 1.061(g) also applies to the trial court’s ability to consider the issue of forum non conveniens sua sponte. We disagree.

The time limit imposed in Rule 1.061(g) applies to motions to dismiss for forum non conveniens. Specifically, Rule 1.061(g) states: “A motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” (emphasis added). This rule does not in any way apply to a trial court’s ability to consider the issue sua sponte. Further, the commentary to Rule 1.061 does not address Bums and does not indicate that the time limit imposed by Rule 1.061(g) also applies to the trial court’s ability to consider the issue of forum non conveniens sua sponte. Moreover, it would be impractical to impose the sixty-day time limit to a trial court’s ability to consider the issue of forum non conve-niens sua sponte because, in most instances, the trial court is not aware of the case prior to the expiration of the sixty-day time limit and even if aware, the case may not be postured in such a way as to allow the trial court to decide the issue of forum non conveniens. Therefore, we find that the time limit imposed by Rule 1.061(g) does not apply to a trial court’s inherent power to raise the issue of forum non conveniens sua sponte.

Based on our disposition of the above issue, we do not need to address whether the trial court abused its discretion by granting the defendants’ ore tenus motion for enlargement of time to file the motion to dismiss for forum non conveniens. Finally, the remaining issue raised by the plaintiffs lacks merit.

Affirmed.

      . Rule 1.0 61 (g) provides:
      (g) Time for Moving for Dismissal. A motion to dismiss based on forum non con-veniens shall be served not later than 60 days after service of process on the moving party.

      . The motion for enlargement of time was filed pursuant to Rule 1.090(b)(2), Florida Rules of Civil Procedure, which provides, in part, as follows: (b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion ... (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect....

      . This amendment became effective January 1, 2001.


author: FLETCHER, Judge.

text:
    Richard E. FRIEND, Appellant, v. Marsha Lynne FRIEND, et al., Appellees.
    No. 3D03-1714.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.

      Kluger, Peretz, Kaplan & Berlin and Steve L. Silverman, Miami, for appellant.
    Morgan, Lewis & Bockius and Robert M. Brochin and Erik W. Scharf, Miami, for appellees.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   FLETCHER, Judge.

Richard E. Friend appeals from an order unsealing his dissolution of marriage case at the request of Orion Group. We affirm.

On November 12, 1997, pursuant to an agreement between Friend and his former wife, Marsha Lynne Friend, the trial court ordered the file of their dissolution of marriage action sealed. Approximately five years later, Friend was sued in connection with legal services he provided to a group of companies involved in the development of resort properties. Orion Group, one of said companies, requested permission to intervene in and unseal the dissolution of marriage action on April 2, 2003 alleging possible discrepancies in representations made by Friend in the two cases.

Friend opposes the unsealing of the dissolution file on several grounds. After careful consideration and review of appellant’s position, we find none of the arguments sufficient to overcome the well established right of public access to court proceedings and records. See, e.g., Art. I, § 24, Fla. Const.; § 119.07, Fla. Stat.; Fla. R. Jud. Admin. 2.035; Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988). In Barron, the court recognized the trial court’s inherent power to control the conduct of its own procedures by closing all or parts of the proceedings but only in limited circumstances under specific guidelines. 531 So.2d at 118. Once a record is sealed, there is a presumption that it was correctly sealed; however, a party moving to unseal the record may overcome the presumption by demonstrating that the original order sealing the record was legally in error. Scott v. Nelson, 697 So.2d 207 (Fla. 1st DCA 1997). In the instant case, it is evident that the trial court sealed the dissolution action based solely on the parties’ agreement. The denial of access to dissolution of marriage proceedings may not be based solely-upon the wishes of the parties to the litigation. As the Barron court stated “parties seeking a dissolution of marriage are not entitled to a private proceeding.” 531 So.2d at 119. Therefore, we affirm the trial court’s ruling below unsealing the court file.

Affirmed.


author: KLEIN, J.

text:
    Irwin K. CHAPMAN, Appellant, v. Barbara CHAPMAN, Appellee.
    No. 4D03-716.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Lewis Kapner of Lewis Kapner, P.A., West Palm Beach, for appellant.
    Jorge M. Cestero of Sasser, Cestero & Sasser, P.A., West Palm Beach, for appel-lee.
   KLEIN, J.

The issue in this appeal from a judgment dissolving a marriage is whether the trial court erred in holding that a portion of the increase in value of the husband’s premarital securities resulted from marital labor, making it marital property. We reject the husband’s contention that the fourteen percent annual return he achieved over twenty-five years was purely passive.

Section 61.075(5)(a) defines marital assets as including the “enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage.”

The husband testified that his efforts in regard to the securities, which were in his retirement fund, were limited to replacing investment grade bonds, as they became due, with similar bonds. He contends that the enhancement in value was therefore passive and should not be considered a marital asset under the statute.

If the husband’s testimony had been believable, he would have a point. His testimony, however, was contradicted by the records from his brokerage account. The wife’s expert testified, based on those records, that the husband was actively trading stocks and bonds, which enabled him to achieve a greater annual return than the benchmark for stocks, the Standard & Poors 500 Stock Index. The benchmark for investment grade bonds, the Lehman Brothers Aggregate Bond Index, returned about four percent less than the S & P Stock Index during this same period. The evidence that the husband was actively-trading stocks and bonds was sufficient to support the trial court’s finding that enhancement resulted from his efforts during the marriage.

Rather than complaining, the husband in this case should have considered himself fortunate, because the trial court did not find that the entire fourteen percent annual enhancement was due to his efforts. Rather, based on the testimony of the wife’s expert, the court deducted a portion of the enhancement which could have been achieved if these assets had been passively invested in bonds, as the husband claimed had been the case. That portion of the annual return, the court found, was not marital property. Although the wife has not cross-appealed the apportionment, we address it in order to clarify a prior decision of this court.

In Pagano v. Pagano, 665 So.2d 370 (Fla. 4th DCA 1996), the issue was whether the increase in the value of stock in the family business, in which the husband was a shareholder, the president, and the operations manager, was a marital asset. The trial court had held that the appreciation in the husband’s stock in the business was the result of economic factors, not his labor. We reversed, holding that all of the increase in valuation would be marital even if not all of it could be attributable to his efforts. We said:

We recognize that purely passive increases in the value of a pre-marital asset caused by inflation are not subject to division. See generally Stefanowitz v. Stefanowitz, 586 So.2d 460 (Fla. 1st DCA 1991). However, asset appreciation constitutes a marital asset subject to equitable distribution where marital labor contributes to its value, notwithstanding that the increased value is primarily created passively by inflation, market conditions, or the conduct of others.

Id. at 372 (emphasis added).

The emphasized statement has been cited by at least one other court as being applicable to the increase in a stock brokerage account. Sizemore v. Sizemore, 767 So.2d 545 (Fla. 5th DCA 2000). We conclude that the emphasized statement in Pagano, read in light of the preceding sentence, was intended to be limited to the facts of Pagano, i.e., a business in which there was no proof that the increase in the value of the stock during the marriage was not from marital efforts. The burden of proof as to this issue is on the spouse who wishes to show that the asset acquired during the marriage (in Pagano the increase in value of the stock in the business) is not marital property. Gladstone v. Gladstone, 733 So.2d 1090 (Fla. 4th DCA 1999); Deas v. Deas, 592 So.2d 1221 (Fla. 1st DCA 1992). The husband did not carry that burden in Pagano.

This narrow interpretation of Pagano is supported by Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997). In Oxley, the asset was not a family business, but rather investments which were in a trust. We observed that, because the trial court had found that the husband’s role in regard to the investments did not constitute a marital effort, we did not have to address “apportioning the increase between passive appreciation and that portion attributable to effort.” Oxley at 368 n. 1. We thus recognized in Oxley, in which we cited Pagano, that apportionment between active efforts and passive factors would be appropriate.

Pagano should thus be limited to its facts, which were similar to the facts in Robbie v. Robbie, 654 So.2d 616 (Fla. 4th DCA 1995), which we deemed controlling in Pagano. In each of those cases the businesses were family owned, and there was no proof which would have enabled a court to apportion the increase in the value of the business between passive factors and marital labor.

Affirmed.

MAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.

      . Although it is unnecessary to our conclusion, it is worth noting that the husband outperformed the majority of professional stock managers, including mutual funds. A study done by Goldman Sachs reported in 1995 that less than thirty percent of professional stock managers had outperformed the S & P 500 Index for the preceding one, three and five year periods. Harold R. Evensky, Wealth Management, The Financial Advisor’s Guide to Investing and Managing Client Assets 328 (1997). A passive investment in an S & P 500 Stock Index fund during the twenty-five year period involved in this case would have produced an annual return of about twelve percent. See Vanguard 500 Index Fund Investor Shares, http://www.vanguard.com Annual returns for key indexes such as the S & P 500 and the Lehman Brothers Aggregate Bond Index are available at http://www.callan.com.

      . In addition to the fact that Oxley cited Paga-no, both opinions were authored by the same judge and another judge of this court was on both panels.