author: THE COURT:

text:
    STATE of Florida, Appellant, v. Alfred J. WAGNER Appellee.
    No. 5D02-1211.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2004.
   BY ORDER OF

THE COURT:

In accordance with the January 28, 2004, Mandate and instructions of the Florida Supreme Court by Opinion filed January 8, 2004, it is

ORDERED that the prior opinion of this Court rendered in the above-styled cause is withdrawn. Moreover, the Petition For Writ Of Certiorari, filed April 25, 2002, is reinstated in this Court. Moreover, it is

ORDERED that Respondent shall file with this Court and show cause, within twenty days from the date hereof, why the Petition For Writ Of Certiorari should not be granted. Petitioner may reply, within ten days from the service of such response.


source: Caselaw Access Project

author: RAMIREZ, J. COPE, J.

license: Public Domain

text:
    GOLDEN STATE INDUSTRIES, INC., Appellant, v. Amparo CUETO, Appellee.
    No. 3D02-2965.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied Nov. 5, 2004.

      Tobin & Reyes; Bunnell, Woulfe, Kirschbauna, Keller, McIntyre & Gregoire, for appellant.
    Friedman & Friedman, and John Selig-man, Coral Gables; Lauri Waldman Ross, Miami, for appellee.
    Before COPE, SHEVIN , and RAMIREZ, JJ.

       Judge Shevin did not hear oral argument.

   REVISED OPINION

RAMIREZ, J.

Golden State Industries, Inc. appeals the denial of its motion to dismiss the complaint for lack of jurisdiction. We affirm the order denying dismissal.

I. FACTUAL BACKGROUND

Amparo Cueto sustained injuries when the pool deck she contracted for with Blue Haven Pools of Miami, Inc. collapsed on her foot. She sued Blue Haven and, after obtaining a default judgment, she also sued Golden State Industries, Inc. and Jeffrey D. Cohen. She alleged that Golden State conducted business in Florida under the trademark “Blue Haven Pools and Spas” and that Blue Haven Pools of Miami, Inc. “was a subsidiary of and/or part of this national pool building company.”

On August 15, 2000, Cueto served Golden State with process in California through Golden State’s “authorized agent,” Phil Za-mel. Golden State, however, did not answer the complaint nor did it file any other pleading. The trial court entered a default against Golden State on October 26, 2000. After Golden State received a notice for trial, it moved to set aside the default- on August 15, 2001, arguing excusable neglect, meritorious defense, and due diligence. The motion did not challenge the court’s jurisdiction.

In support of its motion to set aside the default, Golden State relied upon the affidavit of Golden State’s corporate counsel, Daniel W. Schreimann, Esq., and a letter from Phil Zamel’s physician. In the affidavit, Schreimann swore that Zamel inadvertently failed to forward the complaint and summons to Golden State’s corporate counsel as a result of Zamel’s medical condition which impaired his mental faculties. Golden State also filed its proposed answer and affirmative defenses, -the latter of which included the defense of failure to state a cause of action, lack of personal jurisdiction, and absence of ownership of trademarks. The proposed answer did not set forth any facts to justify its allegation of lack of personal jurisdiction. Athough there existed two Golden State Industries, Inc. corporations, one incorporated in California and one incorporated in Nevada, neither the motion nor the proposed answer made any reference to that fact. They simply referred to “Golden State Industries, Inc.” The trial court denied the motion to vacate the default on October 10, 2001.

On February 6, 2002, Golden State renewed its motion to vacate default. In support of its renewed motion, Golden State again relied upon Schreimann’s affidavit, as well as the affidavit of Zamel’s physician, Colin Stokol, M.D. The new affidavit basically expanded on -the prior affidavit, wherein Dr. Stokol swore that Za-mel suffered from Parkinson’s Disease and experienced memory difficulties, fatigability, deafness, and likely had a poor comprehension of questions and offered potentially' unreliable answers. The motion also alleged that “Golden State” maintained that they had no contacts whatsoever with the State of Florida. The Schreimann Affidavit referred to Golden State Industries, Inc., a California corporation, but did not intimate that there was another Golden State incorporated in the State of Nevada. The trial court denied the renewed motion to vacate default on April 22, 2002.

On February 12, 2002, six months after it had initially moved to set aside the default, Golden State for the first time moved to dismiss for lack of personal jurisdiction. Golden State again argued that it had no affiliation with Blue Haven and did not conduct business in Florida. In support of its motion to dismiss, Golden State relied upon the affidavit of California Golden State’s secretary and director, Billy Eisman, as well as the affidavit of Schreimann. Eisman swore that California Golden State only conducts business in California, does not own the Blue Haven Pools and Spas trademark nor have they ever owned such a trademark, is a sub-franchiser only for the State of California, and that California Golden State has never constructed or built a swimming pool in California or in any other state. Eisman also swore that Zamel suffered from a severe medical condition. None of these documents mention the Nevada Golden State Industries, Inc.

The existence of two Golden State Industries, Inc., both bearing the same name, with different states of incorporation, was revealed for the first time at the deposition of Phil Zamel, which was taken on March 22, 2002. Zamel testified that he bought the trade name Blue Haven Pools and Spas from its parent company in 1975 and that he was the president of “Golden State” since 1981. He also testified that there were two Golden State Industries, the one located in California and the other located in Nevada, that bore the same corporate name; that California Golden State is only registered to do business in California; and that he was not connected with the Nevada Golden State. It turns out that Zamel was not only connected with the Nevada Golden State, he was its president.

At the subsequent evidentiary hearing, the trial court considered the testimony of various witnesses, including the Schreim-ann Affidavit; the Eisman Affidavit; Cue-to’s deposition; the testimony of Cueto’s counsel John Seligman, Esq.; and the testimony of Ronald Zaberer, the Chief Financial Officer of both the California Golden State and Nevada Golden State. Zaberer admitted that Phil Zamel was the president of both corporations; that Nevada Golden State conducts business all over the United States; and that California Golden State conducts business only in California. Schreimann testified that he was counsel for both corporations. The trial court denied the motion to dismiss for lack of personal jurisdiction and this order forms the basis of Golden State’s appeal.

II. WAIVER OF PERSONAL JURISDICTION

The first issue we must consider is whether the defendant waived the issue of personal jurisdiction. Because personal jurisdiction is intended to protect a defendant’s liberty interests, the defense is a personal right and may be obviated by consent or otherwise waived. Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). As the Florida Supreme Court stated in Babcock, “a defendant may manifest consent to a court’s in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct.” Id. quoting from General Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20, 22 (1st Cir.1991)). Here, Golden State pursued its motion to set aside the default, but not the lack of jurisdiction, until months later when it had been repeatedly unsuccessful in obtaining the requested relief.

In Rojas v. Rojas, 723 So.2d 318 (Fla. 3d DCA 1998), the wife filed a dissolution of marriage action and obtained a default against the husband, a Mexican national. Counsel for the husband filed a “Notice of Limited/Special Appearance” announcing the husband’s intent to contest personal jurisdiction. The husband next filed a motion to set aside default and to dismiss the petition for dissolution of marriage. He argued that the trial court should defer to an earlier-filed proceeding in Mexico, and that the Florida action should be dismissed. We concluded that, because the husband’s motion to dismiss did not challenge personal jurisdiction, the defense was waived. Similarly, in Consolidated Aluminum Corp. v. Weinroth, 422 So.2d 330, 331 (Fla. 5th DCA 1982), the court stated that a “defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and' defendant has submitted himself to the court’s jurisdiction.”

We thus conclude that Golden State waived the issue of personal jurisdiction by not raising it initially, but instead pursuing its motion to set aside the default based on excusable neglect, due diligence and meritorious defense. The fact that the proposed answer made a vague, conclusory reference to the lack of personal jurisdiction, without setting forth any factual support, does not change the outcome that the issue was waived.

The dissent takes issue with this conclusion. Apparently, the dissent finds that the general denial of personal jurisdiction in the Second Affirmative Defense, included with ten other general, boiler-plate affirmative defenses, was sufficient to challenge personal jurisdiction because rule 1.140(h)(1) specifically allows the defense of lack of jurisdiction over the person to be presented in a responsive pleading. We cannot agree. Rule 1.140(h)(1) states:

(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).

Because Golden State made a motion, we cannot see how the language of the rule supports the dissent. Such an approach would allow a party to attack service of process first, obtain a ruling on that issue, then depending on the outcome, bring up the personal jurisdiction issue, followed perhaps by a motion attacking venue. The transgression which the dissent does not address is Golden State’s silence about the existence of two corporations. Golden State raised only one issue, which it unsuccessfully litigated, and then raised the issue of the two corporations with the same name from different states months after it unsuccessfully litigated its motion to set aside default.

III. PERSONAL JURISDICTION

Even if the issue had not been waived, we find that the trial court properly denied the motion to dismiss. In determining whether there is personal jurisdiction, a two-part inquiry is required. First, the reviewing court must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes (1999). See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). Under section 48.193, Florida Statutes (1999), a person subjects themselves to the jurisdiction of Florida courts, as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subdivision thereby submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an officer of agency in this state.
(b) Committing a tortious act within this state.

Second, if the allegations in the complaint fall within the ambit of Florida’s long-arm statute, the court must then determine whether the exercise of jurisdiction is consistent with due process. Venetian Salami, 554 So.2d at 502. The exercise of personal jurisdiction comports with the requirements of due process so long as the defendant purposefully established “minimum contacts” in the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). We find the allegations in the complaint in this case are sufficient to invoke personal jurisdiction under Florida’s long-arm statute. See § 48.193(l)(a), 1(g), Fla. Stat. (1999). Additionally, these allegations show the constitutionally required minimum contacts with the State of Florida so as to satisfy due process requirements.

In addition to the allegations in the complaint regarding Golden State’s business activities in Florida through the “Blue Haven Pools and Spas” trademark and Blue Haven Pools of Miami, Inc.’s subsidiary status, the complaint makes various other allegations. The complaint alleges as follows:

Defendants and/or their agents and/or their employees ... negligently failed to adequately and reasonably inspect and build a pool deck; these defendants negligently failed to properly and reasonably supervise the actions of their agents and/or employees, failed to make sure that their agents and/or employees were properly trained in the installation of the subject decking and/or failed to properly and adequately provide sufficient information to [Cueto] so that she could know that the defendants’ agents and/or employees were not properly trained, did not know how to build a pool deck, and/or may not have been affiliated with this national organization.

Furthermore, the complaint alleges that Cueto injured herself as a direct, proximate, and reasonably foreseeable result of the defendants’ negligence.

IV. SERVICE OF PROCESS

We turn now to the issue of service of process. Section 48.081, Florida Statutes (1999), permits service of process upon a corporation to be served on the corporation’s authorized agent. That section provides as follows:

(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation.

A corporation’s president is its authorized agent for service of process. See § 607.0504(2), Fla. Stat. (1999). In the absence of the corporation’s president, vice president, or the corporation’s head, process may be served upon a variety of other persons. See § 48.081(l)b-d, (2) Fla. Stat. (1999). Process may be served on the corporation’s designated agent. See § 48.081(3), Fla. Stat. (1999).

In this case, it is undisputed that Phil Zamel was the president of both Nevada Golden State and California Golden State at the time in which Cueto effectuated service of process. Notwithstanding the different states of incorporation of Golden State, Phil Zamel was the authorized agent of both corporations under section 48.081, Florida Statutes (1999). Additionally, Phil Zamel was the designated agent of California Golden State under section 48.081(3), Florida Statutes (1999).

The denial of Golden State’s motion to vacate default is not before us for review. Golden State argues, however, that the parties agree that Nevada Golden State, as opposed to California Golden State, is the appropriate party defendant. It thus urges us to reverse based on this Court’s long standing policy that favors the resolution of matters on the merits, see Integrated Transaction Servs., Inc. v. Bahama Sun-n-Fun Travel, Inc., 766 So.2d 269, 271 (Fla. 4th DCA 2000). Notwithstanding this policy, to reverse for a trial on the merits, we would have to ignore our prior law on waiver, personal jurisdiction and service of process. We cannot in fairness do that. The plaintiff here was injured over seven (7) years ago. Golden State was served on August 15, 2000, almost four (4) years ago. It filed no pleadings for a year, then, for months tried to dance around the fact that there were two corporations with the same name, the same president, the same legal counsel, and the same chief financial officer. Enough is enough.

V. TWO GOLDEN STATE INDUSTRIES, INC.

The problem in this case all stems from the defendant incorporating in two different states under the exact same name, then using the same registered agent for both. We agree with the dissent that when the plaintiff served “Golden State Industries, Inc.,” it was not serving both the California and the Nevada corporations. Where we disagree is with the conclusion that the plaintiff was serving the California corporation. We conclude that the plaintiff served the Nevada corporation.

“When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.” Fiera, com, Inc. v. DigiCast New Media Group, Inc., 837 So.2d 451, 452 (Fla. 3d DCA 2002), quoting State Farm, Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001). Thus, the defendant admitted that it was doing business in Dade County, Florida under a trademark which they owned as “Blue Haven Pools and Spas.” They admitted that they had been in business since 1954, that they were experienced contractors, that they were the “world’s largest pool builder;” and that Blue Haven Pools of Miami, Inc. was a subsidiary of and/or part of this national pool building company. As it turns out, these allegations apply only to the Nevada Golden State, not the California Golden State. When you consult http://wvnv.bluehaven.com, you see a presence in almost every state in the country. The trademark office lists Golden State Industries, Inc., with an address in San Diego, California, as the owner. Thus, when the defendant served “Golden State Industries, Inc.,” why should we assume, as the defendant suggests, that the plaintiff was serving the wrong Golden State, to which the allegations in the complaint did not apply, as opposed to the correct Golden State, to which the allegations did apply?

VI. CONCLUSION

We conclude, as the trial court did, that the defendant created the confusion between the two corporations. The obvious purpose for using the same corporate name in two states is to confuse creditors. The defendant continued the tactic during this litigation by keeping this information hidden from the plaintiff and the court for months while it unsuccessfully litigated the issue of the service of process, using perjured testimony. Only after the motion to vacate and its motion for reconsideration were both denied did the defendant raise the issue that there were two corporations with the same name in two different states.

We therefore affirm the order denying dismissal for lack of personal jurisdiction.

SHEVIN and RAMIREZ, JJ., concur.

REVISED DISSENT

COPE, J.

(dissenting).

I respectfully dissent. The majority opinion’s analysis is contrary to established precedent.

I.

The majority opinion says that California Golden State waived its objection to personal jurisdiction. Majority opinion at 7. That is not so. The plaintiff served the complaint on Phil Zamel in California. There was no timely response and the court entered a default.

Subsequently California Golden State filed a Motion to Vacate Default, attached to which was a proposed answer and affirmative defenses. Golden State’s Second Affirmative Defense says: “This Court does not have personal jurisdiction over Golden State, a non-resident of Florida, which does not conduct business and does not have sufficient contacts in Florida to subject it to the jurisdiction of this Court.” App. 8.

The majority opinion finds that Golden State waived the jurisdictional objection. The majority is wrong about that.

The majority says that “Golden State pursued its motion to set aside the default, but not the lack of jurisdiction, until months later-” Majority opinion at 821. The majority misapprehends the record. In moving to set aside a default, the moving party must demonstrate (among other things) that the moving party has a meritorious defense. See Cinkat Transp. Inc. v. Maryland Cas. Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992). In order to demonstrate the existence of such defenses, Golden State filed an answer and affirmative defenses which included the absence of personal jurisdiction as one of several defenses. See id.; Pieco, Inc. v. Sunset Amoco West, Inc., 597 So.2d 972, 973 (Fla. 3d DCA 1992). Rule 1.140(h)(1) specifically allows the defense of lack of jurisdiction over the person to be presented in a responsive pleading, i.e., an answer. See M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So.2d 1215 (Fla. 3d DCA 1992); Cumberland Software, Inc. v. Great American Mtg. Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987). The defendant’s filings were a timely and appropriate way to raise the objection to personal jurisdiction.

The majority opinion also says, “The fact that the proposed answer made a vague, conclusory reference to the lack of personal jurisdiction, without setting forth any factual support, does not change the outcome that the issue was waived.” Majority opinion at 821. There are two problems with this analysis.

First, the defendant’s affirmative defense is clear on its face and puts the plaintiff on fair notice of the defense of lack of personal jurisdiction.

Second, the majority’s analysis is contrary to this court’s decision in Calero v. Metropolitan Dade County, 781 So.2d 911 (Fla. 3d DCA 2001). There we said that where an affirmative defense is insufficiently particularized, it is “subject to being stricken with leave to replead. See Fla. R. Civ. P. 1.140(b).” 787 So.2d at 914.

Contrary to what the majority opinion says, there is no rule that an insufficiently pled affirmative defense is waived. The majority cites no authority for that proposition. Instead, as stated in Calero, if the affirmative defense is insufficiently pled, the plaintiff may attack it by a motion to strike and, if the motion is well taken, then the defending party must be given leave to replead with more particularity.

II.

The majority opinion rules alternatively that the trial court correctly denied the motion to dismiss for lack of jurisdiction on the merits. Respectfully, that is not so.

The problem here is that the majority opinion treats the issue purely as a matter of pleading. The majority says that the complaint makes sufficient allegations to invoke personal jurisdiction under Florida’s long arm statute. Majority opinion at 822. The majority thus rules that, as matter of pleading, the plaintiff has alleged sufficient facts to bring the defendant within the ambit of Florida’s long arm statute.

The majority opinion has, however, failed to address Golden State’s actual claim in the trial court: that as a matter of fact, there is no long-arm jurisdiction over California Golden State. Under Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position.” Id. at 502 (emphasis added). In this case the defendant filed such affidavits and the trial court referred the matter to a retired judge for “a limited evidentiary hearing in order to determine the jurisdiction issue.” Id. at 503.

On appeal from the order denying the motion to dismiss for lack of personal jurisdiction, the question before us is whether the order is supported by competent substantial evidence. In the present case there is no evidence to support the order.

It is clear in the record that the California Golden State corporation does business only in California. Since there is no evidence which supports the proposition that California Golden State has long arm contact with Florida, it follows that the order now before us must be reversed.

III.

I am in agreement with the majority opinion in rejecting the plaintiffs “two for one” theory of personal jurisdiction. At oral argument, the plaintiff announced her theory that when the plaintiff served Mr. Zamel in California, the plaintiff had effectively accomplished service of process on both California Golden State and Nevada Golden State. Further, it is the plaintiffs position that when the default was entered, the default applies to both the California and Nevada companies.

The terminology used on the summons in this case corresponds to the terminology and identification of officers for the California corporations. It is clear that the plaintiff has served only California Golden State, not Nevada Golden State.

IV.

In conclusion, the evidence of record demonstrates that there is no long arm jurisdiction over California Golden State. We should reverse the order now before us.

Because the plaintiff did not know of the existence of two Golden State corporations, the complaint has been addressed to Golden State without differentiation between the two companies. The complaint is thus legally sufficient to state a claim against Nevada Golden State. Golden State’s counsel agreed with this point at oral argument.

That being so, the current complaint is sufficient to stop the running of the statute of limitations as to Nevada Golden State. Thus, while service of process should be quashed as to California Golden State, the plaintiff remains free to serve Nevada Golden State.

      . The dissent takes issue with this statement because, in its proposed Answer and Affirmative Defenses, as a Second Affirmative Defense, Golden State alleged that the court did “not have jurisdiction over Golden State, a non-resident of Florida, which does not conduct business and does not have sufficient contacts in Florida to subject it to the jurisdiction of this Court.” For the reasons we will explain later, this was insufficient to challenge the court’s jurisdiction.

      . The dissent also cites M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So.2d 1215 (Fla. 3d DCA 1992), but in that case the defendant raised the lack of personal jurisdiction in its answer and in its motion for judgment on the pleadings. Likewise, in Cumberland Software, Inc. v. Great American Mtg. Corp., 507 So.2d 794 (Fla. 4th DCA 1987), the defendant only filed an answer and a counterclaim, but did not file a motion.


author: PALMER, J.

text:
    Anton Nicolai SIMON, etc., et. al., Appellants, v. The CELEBRATION COMPANY, et al., Appellees.
    No. 5D02-2262.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.

      Michael L. Boswell of Michael L. Boswell, P.A., and Bret Hartley of Drymonis, Hartley & Boswell An Association of Professional Corporations, Daytona Beach, for Appellants.
    James V. Etscorn, Robert W. Thielhelm, Jr., and Leslie B. Bissinger of Baker & Hostetler LLP, Orlando, for Appellee The Celebration Company.
    Mark G. Alexander, Michael G. Tanner and Stephen H. Grimes of Holland & Knight LLP, Jacksonville, for Appellees Stetson University, Harvard University, Auburn University and University of Minnesota.
    Usher L. Brown and Erin J. O’Leary of Brown, Ward, Salzman, Weiss & Garga-nese, P.A., Orlando, for Appellees The Johns Hopkins University and The Osceola County School Board.
   PALMER, J.

We sua sponte withdraw the opinion issued on December 5, 2003, and substitute the following opinion in its stead.

Anton Simon, his sister Ana, and his parents Paul and Connie, appeal the final orders entered by the trial court dismissing their lawsuit against The Celebration Company and various educational institutions. The Simons sued for declaratory relief and in tort, alleging that their family had been damaged because they had relocated to The Town of Celebration (developed by The Celebration Company) based upon misrepresentations that The Celebration School provided its students with a quality education based upon a time-tested and successful curriculum known as “best practices”. Concluding that the trial court erred in dismissing some but not all counts of the Simons’ complaint, we affirm in part and reverse in part.

Mr. and Mrs. Simon enrolled Anton in public school in Orange County. When he experienced difficulties in learning Anton was evaluated and found eligible to receive special learning disability services. He was also given an individual education plan by the county.

The Simons continued to seek out better education options for Anton since he continued to experience difficulty in learning. They allegedly decided to relocate their family to The Town of Celebration because they had received information that The Celebration School, a public school in Osceola County, would offer an appropriate learning environment for Anton. However, after enrolling both of their children in The -Celebration School, Mr. and Mrs. Simon became dissatisfied with the learning experience provided by the school and withdrew the children, and re-enrolled them in a private school in Orange County.

As a result of their dealings with The Celebration Company and The Celebration School, the Simon family filed a lawsuit against The Celebration Company, Stetson University, Johns Hopkins University, Harvard University, Auburn University, University of Minnesota, The School Board of Osceola County (SBOC), and Valencia Community College (VCC). The five count complaint alleged that Mr. and Mrs. Simon purchased a home in, and relocated their family to, the Town of Celebration in reliance upon false representations made to them by the named defendants concerning the quality of education available at The Celebration School. The complaint essentially alleged The Celebration School failed to live up to the representations which were made and that the Simons suffered damages as a result of their relocation.

Count I of the complaint alleged a claim for declaratory relief against SBOC, requesting a declaration of the Simons’ rights concerning the interpretation of section 230.23(4)(m)5 of the Florida Statutes (1997). The complaint averred that SBOC had failed to properly address Anton’s educational needs, and requested that the trial court conduct a de novo review of the issue (which had been the subject of an earlier proceeding before an Administrative Law Judge (ALJ) as well as a federal lawsuit). Count II asserted a second claim for declaratory relief against SBOC, alleging that SBOC had violated Article IX, section 1 of the Florida Constitution by failing to provide Anton and Ana with a high quality free public education and, as a result of such failure, the Simons suffered damages. Count III alleged a claim of fraudulent inducement against all of the defendants, claiming, that each defendant had made false statements and/or representations to Mr. and Mrs. Simon concerning the quality of education offered at The Celebration School and that such statements had been made with the intent to persuade Mr. and Mrs. Simon to purchase property in the Town of Celebration. The complaint further alleged that the defendants knew that their statements and/or representations concerning The Celebration School were false when they made them. The complaint also alleged that, but for the false statements and/or representations, Mr. and Mrs. Simon would not have purchased a home in the Town of Celebration and relocated their family there.

Count IV alleged a claim of negligent misrepresentation against all of the defendants, again asserting that each of the defendants made false statements and/or representations relating to the quality of the education available at The Celebration School and that said statements were made with the intent to persuade, and actually had the result of persuading, Mr. and Mrs. Simon to move to the Town of Celebration and to purchase property there. The complaint averred that the defendants either knew that the statements and/or representations were false or that they were without knowledge of their truth or falsity, but that the defendants intended to made the statements so that the prospective purchasers would rely on the false statements and purchase a home in The Town of Celebration.

Count V alleged a claim for declaratory relief against SBOC, alleging that Anton and Ana were denied their right to receive a high quality free education, and that Anton was denied his right to receive a McKay Scholarship under section 229.05371 of the Florida Statutes (2001).

The defendants filed separate motions to dismiss, raising various grounds for relief. Upon review, the trial court dismissed the Simons’ complaint with prejudice, entering separate orders for each defendant. The trial court’s ruling regarding each count will be discussed below.

Dismissal of Count I

Count I of the Simons’ complaint alleged a claim against SBOC based upon the provisions of section 230.23(4)(m)5 of the Florida Statutes (1997). That statute provides parents who have children who either have been denied a request for, or have been evaluated as needing, special instruction the right to receive a due process hearing regarding the school board’s decision regarding same. The due process hearing is conducted by an administrative law judge (ALJ), and the ALJ’s decision is final, but subject to review. The statute provides parents with two choices for such review: (1) the parent can file a civil action in the circuit court, or (2) the parent can request an impartial review of the ALJ’s order by the district court of appeal.

The Simons’ complaint alleged that, pri- or to filing the instant lawsuit in the trial court, the Simons exhausted their administrative remedies under section 230.23 by requesting and receiving a due process hearing before an ALJ. The complaint further stated that on January 31, 2000, the ALJ issued a final order in favor of SBOC and that within 30 days of that date the Simons filed suit against SBOC in the United States District Court. The Simons later (no specific date was provided) voluntarily dismissed that federal lawsuit, without prejudice, so that this matter could proceed in state circuit court. The instant lawsuit was filed in February of 2001.

The trial court dismissed Count I, concluding that it was time-barred since the Simons’ complaint had not been filed in the circuit court within 30 days of the date the ALJ entered its final order. In so ruling, the court rejected the contention that the limitations period had been tolled during the time the matter was pending in the federal court.

The Simons maintain that the trial court erred in so ruling because federal law provides that statutes of limitations are tolled during the period of time a claim is pending in a federal district court. They cite to 28 U.S.C. § 1367(d) which specifically requires state statutes of limitation to be tolled for the period during which a petitioner’s cause of action is pending in federal court as well as 30 days after the claim is dismissed.

“The statute of limitations is generally an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action.” New York State Dept. of Taxation v. Patafio, 829 So.2d 314 (Fla. 5th DCA 2002). Since the instant complaint fails to set forth with particularity the date when the matter was dismissed from federal court, it is impossible to determine from the four corners of the instant complaint the length of time during which the matter was tolled by reason of the fact that the matter was pending in federal court. As such, the trial court erred in ruling that the complaint conclusively established that the statute of limitations barred Count I. Accordingly, on remand, this count should be reinstated.

Dismissal of Count II

In Count II of their complaint the Simons asserted a claim for damages allegedly sustained by them as the result of SBOC’s violation of Article IX, section 1 of the Florida Constitution which guarantees a high quality free public education. The trial court dismissed this count, ruling that no private cause of action exists under Article IX, section 1 of the Florida Constitution for the enforcement of its provisions against individual school boards. We agree.

In order for a constitutional provision to create a private cause of action, the provision must be self-executing. See Tucker v. Resha, 634 So.2d 756 (Fla. 1st DCA 1994). “The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.” Gray v. Bryant, 125 So.2d 846 (Fla.1960).

The trial court properly concluded that Article IX, section 1 can not be found to be self-executing because the language set forth in the provision leaves too many issues unresolved. For example, there is no benchmark for determining what “adequate provision for education” is meant to entail, nor is the term “high quality education” defined in the provision. Furthermore, Article IX, section 1 specifically states that the provision of an adequate education must be made by the Legislature since the provision states that “adequate provision shall be made by law”. Accordingly, we affirm the trial court’s dismissal of Count II.

Dismissal of Counts III and TV

Count III of the Simons’ complaint alleged a claim of fraudulent inducement against each of the defendants, and count IV alleged a claim of negligent misrepresentation against each of the defendants. The complaint averred that each defendant had made false statements and/or misrepresentations to Mr. and Mrs. Simon indi-eating that The Celebration School would provide the Simon children with an education based upon a proven curriculum known as “best practices”, and that said statements had influenced Mr. and Mrs. Simon to purchase property in the Town of Celebration and relocate their family there so that the children could attend The Celebration School. The complaint alleged that the defendants either knew that their statements and/or representations concerning The Celebration School were false when they made them, or that they were without knowledge of their truth or falsity, and that, but for the false statements and/or misrepresentations, Mr. and Mrs. Simon would not have purchased a home in the Town of Celebration and relocated their family there. The complaint stated that the Simons were damaged by the money paid to the Celebration Company and others.

In order to allege a viable cause of action for fraudulent inducement a plaintiff must allege that: (1) the defendant made a false statement regarding a material fact; (2) the defendant knew that the statement was false when he made it or made the statement knowing he was without knowledge of its truth or falsity; (3) the defendant intended that the plaintiff rely and act on the false statement; and (4) the plaintiff justifiably relied on the false statement to his detriment. See Fla. Std. Jury Instr. (Civ.) MI 8; see also Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536 (Fla. 5th DCA 2003). Similarly, in order to allege a viable cause of action for negligent misrepresentation a plaintiff must allege in his complaint that: (1) the defendant made a misrepresentation of material fact that he believed to be true but which was in fact false; (2) the defendant was negligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely and on the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation. See Johnson v. Davis, 480 So.2d 625 (Fla.1985); Fla. Std. Jury Instr. (Civ.) MI 8; see also Baggett v. Electricians Local 915, 620 So.2d 784, 786 (Fla. 2d DCA 1993).

The trial court dismissed both counts with prejudice, ruling primarily that the counts failed to set forth cognizable causes of action since they essentially alleged claims of educational malpractice, a cause of action not recognized by the Florida courts. We reverse this ruling because, although inartfully drafted, the Simon’s complaint sought to allege claims for fraud and misrepresentation, not educational malpractice. As such, the dismissal of these two counts should have been with leave to amend.

On remand, we direct the court’s attention to the fact that a complaint for fraud must specifically allege sufficient ultimate facts on each element of the claim. Held v. Trafford Realty Co., 414 So.2d 631, 632 (Fla. 5th DCA 1982). The instant complaint fails to meet this pleading requirement because it fails to allege the false representations with sufficient specificity, and fails to allege cognizable fraud damages.

The first fraud element, false representations of fact, can only be satisfied when the pleading identifies specific facts and states how they were false. Batlemento v. Dove Fountain, Inc., 598 So.2d 284, 238 (Fla. 5th DCA 1991). The precise allegations here are that the defendants falsely stated that they intended to implement a curriculum of “proven best practices” that would include “technology” and “whatever it takes” in a school that had not yet commenced operation. Despite the inclusion of over 100 paragraphs in the fraud count, the complaint does not describe with specificity what “best practices” means, the type of technology promised, or what was meant by “whatever it takes.” These alleged misrepresentations are too vague to provide the essential foundation for a fraud claim. See Allen v. United Zinc Co., 64 Fla. 171, 60 So. 182 (1912); Connecticut General Life Ins. Co. v. Jones, 764 So.2d 677, 684 (Fla. 1st DCA 2000). Furthermore, nowhere within the complaint do the Simons state how these representations were false. The complaint simply alleges the conclusory statement that the representations were false, a legally insufficient allegation under the strict pleading requirements for a claim predicated on fraud. See Batlemento, 593 So.2d at 238. The lack of specificity is particularly troublesome here where nine separate defendants are lumped together in each count in a complaint that often fails to particularize which of the nine defendants made which statements.

Furthermore, actual damages is an element of an action for fraud. National Equipment Rental, Ltd. v. Little Italy Restaurant & Delicatessen, Inc., 362 So.2d 338, 339 (Fla. 4th DCA 1978). As such, this element must be pled using specific, ultimate facts. Held, 414 So.2d at 632. Moreover, fraud cannot form the basis for recovery of damages unless the damages directly arise from the fraud and are causally connected to the fraud. Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla. 3d DCA 1981); Tampa Union Terminal Co. v. Richards, 108 Fla. 516, 146 So. 591, 594 (1933). The Simons’ complaint fails to assert how their alleged damages were causally related to the alleged fraud.

Dismissal of Count V

The Simons have not raised any challenge to the trial court’s dismissal to Count V. Therefore, that ruling is affirmed.

Closing

As for appellees Harvard, Auburn, and the University of Minnesota, the trial court granted their motions to dismiss on the basis of lack of personal jurisdiction and, since the Simons have not raised any challenge to that ruling in this appeal, the trial court’s dismissal of counts III and IV is affirmed with regard to those three defendants.

Furthermore, since there is no dismissal order in the record regarding appellee Valencia Community College, we issue no ruling regarding Valencia Community College.

AFFIRMED in part, REVERSED in part, and REMANDED.

PETERSON and TORPY, JJ„ concur.

      . Section 230.23(4)(m)5, Florida Statutes (1997) provides parents who have children, who have either been denied a request for or been evaluated as needing special instruction, the right to receive a due process hearing regarding the school board’s decision thereto.

      . Article 9, section 1 of the Florida Constitution provides, in relevant part:
      § 1. Public education
      (a) The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.

      . Section 229.05371 of the Florida Statutes (2001) sets forth a pilot program where students who have disabilities and are enrolled in public schools can request scholarships from the local school board so they can attend private schools.

      . Section 1367 provides in relevant part:
      § 1367. Supplemental jurisdiction
      (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

      (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
      (Emphasis added).

      . In the United States, a cause of action known as "educational malpractice" has been asserted by plaintiffs who allege that a school has failed to properly educate a student. Apparently, under an educational malpractice claim, a school would have a duty to educate its students and would be liable in tort/negligence for failing to fulfill its duty. Most cases involving educational malpractice deal with plaintiffs who allege that their school failed to teach them reading, or failed to properly diagnose a learning disability. See Elizabeth D. Kaiser, Jesus Heard the Word of God, But Mohammed had Convulsions: How Religion Clause Principles Should be Applied to Religion in the Public School Social Studies Curriculum, Journal of Law and Education, July, 2003.


author: PER CURIAM.

text:
    John C. CARRAWAY, JR., Petitioner, v. Clinton Adam CARRAWAY, Respondent.
    No. 1D04-1405.
    District Court of Appeal of Florida, First District.
    June 7, 2004.
    Ryan Thomas Truskoski, Orlando, for petitioner.
    John G. Grimsley and Robert F. Iseley, Jr. of Grimsley Marker & Iseley, P.A., Jacksonville, for respondent.
   PER CURIAM.

John C. Carraway, Jr., petitioner, petitions this court for a writ of prohibition, seeking to prohibit the trial court from ruling on a petition for discharge in a probate proceeding. Petitioner argues that there is a pending appeal in this court of the trial court’s order denying his motion to revoke the personal representative and petition for appointment of successor personal representative. After this appeal was filed, respondent filed a notice of final accounting and petition for discharge. Petitioner objected, contending that the trial court did not have jurisdiction while the appeal was pending. The trial court eventually held that it had jurisdiction but had not issued a written order on the petition for discharge.

The mere fact that the order relating to the appointment of the personal representative was on appeal does not deprive the trial court of its jurisdiction to enter any further orders or judgment in the case, so long as the trial court does not interfere with the subject matter of the appeal or impinge on the power and authority of the district court to decide the issue presented to it on appeal. See Finst Dev., Inc. v. Bemaor, 449 So.2d 290 (Fla. 3d DCA 1983). If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, then the trial court can act. See Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981); see also Jordon v. State, 631 So.2d 362 (Fla. 1st DCA 1994).

Section 733.901(2), Florida Statutes (2003), specifically bars a subsequent action against a personal representative upon the discharge of the personal representative. Although section 733.903 and Florida Probate Rule 5.460(a) allow further administration of the estate if it is required for any reason, Florida case law appears to only permit the reopening of an estate after the discharge of the personal representative where there were procedural irregularities or facts constituting fraud or bad faith. See, e.g., Dacus v. Blackwell, 90 So.2d 324 (Fla.1956); Dean v. Bentley, 848 So.2d 487 (Fla. 5th DCA 2003).

In the present case, the pending appeal involves the issue of the qualifications of the personal representative. The trial court is considering, during the pen-dency of this appeal, the final accounting and petition for discharge filed by the personal representative which petitioner seeks to disqualify. The trial court’s granting of the petition for discharge would impinge on the power and authority of this court to decide the issue presented to it on appeal. If the trial court acts on the petition to discharge the personal representative, then the substantive controversy is decided. This would sufficiently prejudice petitioner unless petitioner can later successfully reopen the estate. At this time, the record does not show that petitioner can maintain a successful claim to reopen the estate if the trial court grants the petition to discharge.

Accordingly, the petition for writ of prohibition is granted. The lower tribunal is hereby prohibited from entering an order on the notice of final accounting and petition for discharge of the personal representative until the appeal pending in this court is resolved.

PETITION GRANTED.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: ORFINGER, J.

text:
    Roger CHAPMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1900.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    Roger Chapman, Arcadia, Pro Se.
    No Appearance for Respondent.
   ORFINGER, J.

Roger Chapman petitions this court for writ of mandamus seeking to compel the trial court to rule on his motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. We deny the petition as it fails to allege that Chapman has made the trial court aware of the pending motion.

In a civil proceeding, it is generally necessary to bring a pending matter to the trial court’s attention. See Al-Hakim v. State, 783 So.2d 293, 294 (Fla. 5th DCA 2001). For purposes of seeking a hearing, it is of no significance that the petitioner is incarcerated or involuntarily committed. Although Chapman has been involuntarily committed pursuant to the Jimmy Ryce Act, presumably, he would be able to attend a telephonic hearing should the trial court decide to hold one. Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla.1991) (trial court has discretion to decide whether to hold a telephonic hearing in prisoner’s civil case, but may not make prisoner’s physical presence a condition precedent to ruling on pending matters). Accordingly, we deny Chapman’s petition for writ of mandamus without prejudice. Chapman must first make the trial court aware of his pending motion and seek a hearing.

MANDAMUS DENIED WITHOUT PREJUDICE.

PETERSON and GRIFFIN, JJ., concur.


author: MONACO, J.

text:
    Gardiner S. SOMERVELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1751.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.
    Rehearing Denied Oct. 12, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Gardiner S. Somervell, appeals the judgment and sentence arising from his conviction of attempted lewd and lascivious conduct with an 8-year old male. Mr. Somervell argues that he is entitled to a new trial because he believes that his Sixth Amendment right to confront the witnesses against him was violated. We affirm.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court overturned the framework for the admissibility in criminal cases of testimonial out-of-court statements articulated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, (1980). Roberts allowed hearsay evidence in a criminal trial, even absent the opportunity for the defense to cross-examine the witness, if the declarant was unavailable, and if the evidence either fell within one of the “firmly rooted hearsay exceptions,” or was otherwise shown to have “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66-74, 100 S.Ct. 2531. The Crawford court held, however, that the Confrontation Clause of the Sixth Amendment to the United States Constitution, excludes from evidence any out-of-court testimonial statements unless, first, the witness is found to be unavailable, and second, the defense is provided with a prior opportunity to cross-examine the declarant. It no longer makes any difference whether the trial court deems the statements to be reliable. See also U.S. v. Hite, 364 F.3d 874, 883 (7th Cir. 2004).

Importantly, the Crawford holding applies only to “testimonial” out-of-court statements in criminal cases, and not to non-testimonial hearsay. The Supreme Court declined to define “testimonial hearsay” in a comprehensive fashion, and specifically left that question “for another day.” Crawford, 541 U.S. at -, 124 S.Ct. at 1374. By its very terms, however, Crawford applies to prior testimony at a preliminary hearing before a grand jury; or to testimony at a former trial; or to police interrogations. Id.; see also Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004).

In the present case the jury found Mr. Somervell guilty of attempted lewd and lascivious conduct with respect to D.Z., an eight-year-old male. Mr. Somer-vell argues first that his Sixth Amendment right to confrontation of witnesses was violated when the videotaped statement of D.Z., given in response to police questioning, was admitted into evidence. Mr. Somervell might be correct if the videotape had simply been received into evidence without an opportunity being afforded to cross-examine D.Z. See, e.g., Snowden v. State, 156 Md.App. 139, 846 A.2d 36 (Md.2004). Here, however, D.Z. was not only available to testify, he did in fact testify, and Mr. Somervell (who was fully knowledgeable of the contents of the videotape), had a full and complete opportunity to confront and cross-examine him. D.Z. essentially confirmed in person what he had earlier related on tape. The receipt into evidence of the videotape under these circumstances did not offend the Sixth Amendment.

Mr. Somervell next argues that a Williams rule witness should not have been permitted to tell jurors of the responses she received from another child, D.L., who is also alleged to have been a victim of the appellant. Unfortunately, D.L. is autistic, and because of this condition was determined by the trial judge to be unavailable for testimony at trial. Although he is ten years old, his mental age is approximately four to five. The Williams rule witness was a police officer who had interviewed D.L. at the Child Advocacy Center after the event in question. She was able to get D.L. to talk to her only by pretending that they were on cell phones together. Once again, the admission of this testimonial hearsay would appear to be erroneous in light of Crawford, and might ordinarily require a reversal. Two factors, however, militate against such a conclusion because they convince us that the error in admitting this testimony was harmless.

First, D.L.’s mother testified without objection (except for a generalized objection to the admission of any Williams rule evidence), that she overheard D.L. pretending to talk on a phone with “Mr. Stan,” (who was identified as Mr. Somer-vell), and relating the same information that was later revealed by D.L. to the police officer. The statements made by D.L. and overheard by his mother are, in our judgment, not testimonial.

We come to this conclusion because although the Crawford court declined to provide a comprehensive definition of testimonial statements, it did give us three “formulations” of the “core class of testimonial statements.” Crawford, 541 U.S. at-, 124 S.Ct. at 1364. First, the court described a class consisting of “ex parte in-court testimony or its functional equivalent,” which includes such things as affidavits, custodial examinations, prior testimony that the defendant was unable to test by cross-examination, “or similar pretrial statements that declarants would reasonably expect to be used ‘prosecutorially.’ ” Id. The second class of testimonial statements consists of out-of-court statements “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions.” Id. The final class described by the Supreme Court is comprised of testimonial statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. See also Horton, 370 F.3d at 84 (1st Cir.2004).

It seems to us that statements that a mother hears from her autistic child does not fit within the umbra or penumbra of any of these categories. We hold, accordingly, that it was non-testimonial. If the mother’s testimony was admissible, then the testimony emanating from the police officer at the Child Advocacy Center was cumulative. That the evidence was cumulative must, of course, be factored into the harmless error calculus. See Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988); Ivory v. State, 821 So.2d 1258 (Fla. 4th DCA 2002); Rosado v. State, 785 So.2d 751 (Fla. 5th DCA 2001).

Another consideration entering into our harmless error analysis is that Mr. Somer-vell made certain pretrial admissions reflecting that while he did attempt to commit a lewd and lascivious act on D.Z., he was prevented from doing so. Mr. Somer-vell was tried on a charge of touching a child under 16 in a lewd and lascivious manner, in violation of section 800.04(6)(a)(l) and (6)(b), Florida Statutes (2001). The jury apparently accepted his explanation, as it found Mr. Somervell guilty only of an attempt.

Despite the fact that the Confrontation Clause is implicated by the issues raised in this case, we conclude that a harmless error analysis is appropriate. See U.S. v. Mitchell, 365 F.3d 215, 253 (3d Cir.2004); see also U.S. v. Anderskow, 88 F.3d 245, 251 (3d Cir.), cert. denied, 519 U.S. 1042 (1996). In light of the fact that the improperly admitted Williams rule testimony was cumulative in nature, and in light of the inculpatory statements of Mr. Somer-vell, and in light of the jury’s acceptance of Mr. Somervell’s explanation, we are convinced that the improper admission of the police officer’s testimony concerning D.L.’s statements was harmless error beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

      . The State asked the trial court to declare that D.Z. was unavailable to testify because he refused to recall bad memories. The court deferred ruling on the issue until trial.


text:
    Vivian C. TORRES, Appellant, v. Josue TORRES, Appellee.
    No. 3D03-2950.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 20, 2004.

      Gloria C. Gonzalez; George C. Vogel-sang, for appellant.
    James D. Keegan, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN, J., and DAUKSCH, Jr., JAMES C., Senior Judge.
   PER CURIAM.

Vivian Torres appeals a final dissolution judgment. We affirm in part and reverse in part.

The husband and wife were married in 1996; their son suffers from severe hyperactivity and requires special schooling and treatments. The parties have no marital real property; there are various items of personal property that the parties acquired during the marriage.

The parties lived in the husband’s home, which he purchased prior to the marriage. The value of the husband’s house was hotly contested during the proceedings. The wife offered appraisals into evidence that valued the house at $238,000 at the time of the marriage and $340,000 at the time of the first trial setting. The husband valued the house at $200,000 on his financial affidavit. The final judgment does not value the marital home; the court merely concluded that it is a non-marital asset.

The husband also owns a warehouse that he uses for work. He deeded the warehouse to his first wife as security for his outstanding child support obligations to his children from his first marriage.

At the time of their separation, in 1999, the wife had substantially the same amount of credit card debt as when she entered the marriage. The husband had about $3,600 less debt at the time of the separation than at the time of the marriage. By the time of trial, however, both parties had doubled their credit card debt. The husband discharged his debts in bankruptcy prior to the entry of the final dissolution judgment. The judgment makes no reference to this fact, and the court’s awards do not reflect the discharge.

In the final judgment the court awarded the parties the property in their possession, awarded the former husband lump sum alimony, ordered the husband to pay child support, but denied the wife retroactive child support or an arrearage award and did not account for the child’s special needs in the award.

As a threshold issue, we reverse the court’s equitable distribution scheme and remand to the court for the requisite statutory findings. The court’s distribution lacks the findings required under section 61.075(3), Florida Statutes, and does not reference the factors enumerated in 61.075(1), or set apart the non-marital assets and liabilities of each party. See Shoffner v. Shoffner, 744 So.2d 1157 (Fla. 1st DCA 1999). In reconsidering the equitable distribution, we direct the court to address the following shortcomings in the present judgment.

The trial court must determine the date for valuing the marital assets and liabilities. § 61.075(4), Fla. Stat. (2003). We note that the trial court did not assign a value to the marital home as a result of its finding that the wife had no interest, therein. On remand, however, the trial court must determine a valuation date and the home’s value. Section 61.075(4) gives the court discretion to assign a date that is just and equitable under the circumstances, including the date of the final hearing. Jahnke v. Jahnke, 804 So.2d 513 (Fla. 3d DCA 2001); White v. White, 717 So.2d 89 (Fla. 3d DCA 1998). The court must set forth the facts supporting its valuation date in the judgment.

We note that the husband’s valuation, in his financial affidavit, of the marital home at $200,000 appears incredible in light of the expert testimony submitted by the wife. The husband valued the house at $240,000 on his Amended Summary of Schedules in Bankruptcy Court, and the house was appraised at $238,000 in 1997, apparently in connection with the second mortgage. The parties must provide the court with substantial, competent evidence to support their valuation of assets that will withstand appellate review. Valdes v. Valdes, 29 Fla. L. Weekly D1375, 2004 WL 1252725, - So.2d - (Fla. 3d DCA June 9, 2004); Moon v. Moon, 594 So.2d 819 (Fla. 1st DCA 1992). However, we caution the court that a valuation based on the average of the difference in the parties’ valuation is not a valuation based on the evidence.

Contrary to the trial court’s finding, the record contains substantial competent evidence of the wife’s interest in the enhanced value of the marital home purchased by the husband before the marriage. See § 61.075(5)(a)2, Fla. Stat.; Williams v. Williams, 683 So.2d 1119 (Fla. 3d DCA 1996); see Adkins v. Adkins, 650 So.2d 61 (Fla. 3d DCA 1994)(on rehearing). Moreover, the wife is entitled to compensation for her non-marital contributions to the property. Gaetani-Slade v. Slade, 852 So.2d 343 (Fla. 1st DCA 2003). The husband himself testified that she had contributed at least $1,200 in materials to his home.

The equitable distribution scheme is also deficient in that it fails to make a complete distribution of the parties’ property. On remand, the court must distribute to the wife her non-marital personal property that remains in the marital home. Additionally, the court shall equitably distribute the parties’ marital property that remained in the marital home after the parties separated. It is insufficient to conclude that the wife made her election of property when she moved out; the wife has pled for equitable distribution and division of the items remaining in the house.

Next, we address errors on the husband’s financial affidavit that the court must consider on remand. His affidavit includes credit card debt; however, that credit card debt was discharged in bankruptcy prior to entry of the final judgment. The final judgment is written as if these debts were still outstanding, and the court’s awards are based on this erroneous premise, as well. On remand, the court shall account for the husband’s bankruptcy-discharge on his financial affidavit.

In addition, the husband’s financial affidavit includes a $1000 deduction for child support to the children from his first marriage; the record demonstrates this debt is not being paid, and therefore, is not a proper deduction. § 61.30(3)(f), Fla. Stat. Additionally, the affidavit allowances for federal wage and social security taxes that the husband does not pay are also improper deductions on the affidavit. See Penalver v. Columbo, 810 So.2d 563, 565 (Fla. 2d DCA2002).

We next address the court’s $10,000 lump sum alimony award to the husband. There is no record support for this award. Paragraph 8.b. of the final judgment contains several inconsistencies and appears to include, improperly, in various places the payoff of the wife’s credit card debt from the 1997 second mortgage proceeds. Alternatively, if this is a reference to the 1995 refinance proceeds, the parties were not yet married in 1995 and the testimony reflects that those premarital proceeds went to pay for the husband’s pre-marital debt or expenses.

Despite the judgment’s conclusion to the contrary, the record shows that the increased mortgage obligations on the husband’s non-marital property are not wholly attributable to the wife. Of the $172,000 mortgage outstanding at the time of trial, only $16,000 went to pay the wife’s credit card debt and $10,000 went for marital use. The first time the home was refinanced, in 1995, the parties were not yet married. Those proceeds went entirely to pay off the husband’s credit card debt. There is no support for the husband’s argument that he is entitled to credit for these sums spent prior to the marriage, even if he chose to spend them for the wife’s benefit. Hence, the lump sum alimony award to the husband is not supported by the record.

The court must also make findings of fact regarding the allegations that the former husband receives undisclosed cash income. There was testimony that husband paid his former wife child support payments in cash, and paid his attorney in cash. The source of these cash payments should be imputed to the husband as income.

We also reverse the child support award. There are numerous shortcomings with the child support order in this case. Of course, upon consideration of the husband financial affidavits, in light of the improper deductions considered above, the court will revisit the child support award. In so doing, we offer the following guidance: Any child support award must allow for the child’s special needs. § 61.30(ll)(a), Fla. Stat. (2004). The child’s special needs are undisputed, despite the parties’ different methods of addressing these needs. As to the wife’s request for retroactive child support and an arrearage award, there is no basis for relieving the husband of the obligation to provide for the child’s needs. On remand, the court shall make a retroactive child support award and order the husband to pay any child support ar-rearage, and his portion of the child’s outstanding medical expense arrearages that the wife incurred. § 61.30(17), Fla. Stat. (2004).

Lastly, we reverse the court’s award of fees to the husband. There is no record basis to justify this award. See § 61.16, Fla. Stat. (2004). The record fails to show that the wife has superior ability to pay. The court should also reconsider the denial of fees to the wife based on the new equitable distribution scheme and the husband’s corrected financial affidavit. See Bagley v. Bagley, 720 So.2d 582 (Fla. 4th DCA 1998).

Therefore, we affirm the judgment to the extent that it dissolves the parties’ marriage and establishes custody and visitation rights. We reverse the portions of the judgment addressing equitable distribution, lump sum alimony, child support and attorney’s fees. Accordingly, we remand for further proceedings.

      . Custody is not contested; the court awarded the wife custody of the son.

      . The wife correctly argues that the final judgment improperly adopts the husband’s proposed final judgment. On remand the court must comply with Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004).


author: GRIFFIN, J.

text:
    Saboor ABDULLAH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3114.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    Rehearing Denied Oct. 11, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Saboor Adib Abdullah [“Abdullah”] appeals the denial of his motion to suppress. We affirm.

On January 19, 2003, Abdullah was stopped by an Orange County deputy for riding his bicycle at night without a light. A radio check revealed that Abdullah had an outstanding 1993 warrant for petit theft. He was arrested. During a search incident to the arrest, crack cocaine and drug paraphernalia were found in his pockets.

Abdullah was charged with possession of cocaine and possession of drug paraphernalia. He filed a motion to suppress, arguing that his arrest was illegal because prosecution for the 1993 offense had not “commenced” within the time limitations set forth in section 775.15(2), Florida Statutes (2003), which states that “[a] prosecution for a misdemeanor of the first degree must be commenced within two years after it is committed,” and “[a] prosecution for a misdemeanor of the second degree must be commenced within one year after it is committed.” See § 775.15(2)(c) & (d), Fla. Stat. (2003). The trial court denied the motion to suppress, ruling that the 1993 prosecution for petit theft had been timely “commenced” against Abdullah by the filing of the information in November 1993. In so holding, the court apparently relied on an amended version of section 775.15, Florida Statutes (2003), which provides that “[pjrosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.” § 775.15(5)(a), Fla. Stat. (2003). Following the denial of his motion to suppress, Ab-dullah pled guilty, reserving the right to appeal.

The trial court was in error in holding that prosecution of Abdullah for the petit theft had been timely “commenced” within the meaning of the statute of limitations. Applicable statutes of limitation are the ones in effect at the time of the acts giving rise to the criminal charges. See State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000); Brown v. State, 674 So.2d 738, 739, n. 1 (Fla. 2d DCA 1995). Regarding “commencement” of prosecution, the 1993 statute provided:

(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.

Id. (emphasis added).

Under this version of the statute,

the filing of an information and the issuance of a capias do not, alone, commence prosecution. The capias must also be executed without unreasonable delay. State v. Miller, 581 So.2d 641 (Fla. 2d DCA), review dismissed, 584 So.2d 999 (Fla.1991). The word “executed” means completion of service on the defendant.

Brown, 674 So.2d at 740. Here, there is no evidence that “process” of any kind was issued following Abdullah’s arrest, which was necessary to “commence” prosecution of the petit theft under the 1993 version of the statute. See State v. Parks, 866 So.2d 172 (Fla. 2d DCA 2004); Sutton v. State, 784 So.2d 1239 (Fla. 2d DCA 2001); State v. Watkins, 685 So.2d 1322 (Fla. 2d DCA 1996).

Although prosecution of Abdullah for the 1993 petit theft is barred by the statute of limitations, it does not follow that Abdullah’s arrest for that offense was illegal. The 1993 warrant involved in this case was plainly valid, as was Abdullah’s arrest, even though he had a defense to prosecution of the petit theft — that it was barred by the statute of limitations. See United States v. Causey, 834 F.2d 1179 (5th Cir.1987); Erfani v. Bishop, 251 Ga.App. 20, 553 S.E.2d 326 (2001). The deputy was not required to address legal questions, such as whether prosecution of the underlying offense was barred by the statute of limitations, before effectuating the arrest. As the court explained in Pickens v. Hollowell, 59 F.3d 1203 (11th Cir.1995)

[PJolice officers have no responsibility to determine the viability of a statute of limitations defense when executing a valid arrest warrant. The existence of a statute of limitations bar is a legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun, not by police officers executing an arrest warrant. Our conclusion to that effect is reinforced by the knowledge that whether a valid statute of limitations defense exists is not a cut and dry matter. For example, the statute of limitations for a criminal proceeding in Georgia is tolled during the time the “accused is not usually and publicly a resident within” Georgia. Ga.Code Ann. § 17-3-2(1) (Michie 1990);
see Danuel v. State, 262 Ga. 349, 418 S.E.2d 45 (1992). An arresting officer is not in a position to make that type of determination, nor is he required to know the law relating to statute of limitations issues.

Id. at 1207-08.

This case does not involve prosecutorial or court “error,” like that involved in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); Shadler v. State, 761 So.2d 279 (Fla.2000); and State v. White, 660 So.2d 664 (Fla.1995). Abdullah argues that some state actor was required to purge this warrant from their system, but fails to cite any authority for this proposition. Indeed, it is difficult to see how either the police, prosecutor, or the courts could accomplish this task without knowledge of the facts relating to the defense, such as the facts behind Abdullah’s non-appearance. Consequently, we conclude that the trial court properly refused to suppress contraband seized incident to Abdullah’s arrest.

AFFIRMED.

THOMPSON and ORFINGER, JJ„ concur.

      . The offense seemingly has a five-year limitations period, rather than the one or two year period cited by the parties. See § 812.035(10), Fla. Stat. (1993); State v. Telesz, 873 So.2d 1236 (Fla. 2d DCA 2004). However, prosecution was not commenced by the expiration of the extended limitations period.

      . We find no merit to the State’s "inevitable discovery” argument under the present facts.


text:
    Daniel L. BARRS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2182.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Rehearing Denied Oct. 12, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying the appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant alleges that his counsel was ineffective, and that his plea was involuntary, because he was not advised that the habitual offender adjudication would render him ineligible for “early release programs, etc.” Because the appellant committed his offenses after January 1, 1994, when the Legislature abolished automatic grants of gain time, the appellant would not have been entitled to such gain time regardless of his habitual felony offender status. See Ferguson v. State, 677 So.2d 968 (Fla. 3d DCA 1996). Furthermore, as the habitual felony offender statute also explicitly states that section 947.1405, Florida Statutes, applies to habitual felony offenders, the appellant’s eligibility for conditional release is also unaffected by his habitual felony offender sentence. See § 775.084(4)(j), Fla. Stat. (2002). Finally, the appellant does not allege that had he been correctly advised he would not have pled, but would have insisted on a jury trial. See Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002). We, therefore, conclude that the appellant’s allegations do not establish that his counsel was ineffective or that his plea was unknowingly and involuntary. We accordingly affirm the summary denial of the appellant’s motion.

AFFIRMED.

ERVIN, PADOVANO and LEWIS, JJ., concur.