author:
PER CURIAM.
      SALCINES, Judge, CANADY, Judge,

text:
    STATE of Florida, Petitioner, v. Alan Ira RICHMAN, M.D., Respondent.
    No. 2D02-4697.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Petitioner.
    Wilbur C. Smith, III, of Wilbur Smith Law Firm, Fort Myers, for Respondent.
   PER CURIAM.

On this timely petition for writ of common law certiorari, the State challenges an amended, nonfinal pretrial order determining certain collateral crime evidence to be inadmissible. Because we conclude that the exclusion of the evidence constitutes a departure from the essential requirements of law and will irreparably harm the State’s presentation of its case, we grant the State’s petition.

The respondent, Alan Ira Richman, M.D., a rheumatologist, was charged by information with one count of sexual battery upon C.G., while she was physically helpless to resist; one count of lewd or lascivious molestation of A.G., an elderly or disabled person; and two counts of misdemeanor battery upon D.B. All three victims were patients of Dr. Richman, and each of the incidents giving rise to the charges were alleged to have occurred on a first or second visit to Dr. Richman’s Lee County office during normal business hours. In these instances, Dr. Richman was purportedly administering treatment for joint pain relating to fibromyalgia, as was the case with victims C.G. and A.G., or for a cluster migraine headache possibly relating to lupus, as was the case with victim D.B.

On July 5, 2001, citing sections 90.402 and 90.404(2)(a), Florida Statutes (2000), the State filed notice of its intention to introduce collateral crime evidence at trial “for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident, lack of consent, corroborating vietim[s’] testimony, modus operandi, and rebutting defenses.” Thereafter, hearings were held at which the State proffered the testimony of seven former female patients of Dr. Richman, each of whom claimed to have been sexually molested by him while receiving treatment during what was supposed to have been a routine office visit.

The trial court entered a written order finding that the collateral crime/similar fact testimony from three of the seven proposed State witnesses would be admissible at trial. The trial court specifically found that, pursuant to Heuring v. State, 513 So.2d 122, 124 (Fla.1987), the proffered testimony of State witnesses J.H., G.J., and I.L. demonstrated that their experiences with Dr. Richman were strikingly similar to those of the victims of the charged offenses. The trial court thus concluded that the testimony of those three witnesses was “relevant and ... admissible ... for the purpose of establishing a modus operandi or a common plan, scheme[,] or design ... in committing the erime[s]” at issue.

Subsequently, the trial court, sua sponte, entered an amended written order declaring the State’s similar fact evidence to be inadmissible in its entirety. The trial court indicated that, in light of this court’s recent decision in Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002), it had reconsidered its former evidentiary ruling. In doing so, it determined that Heuring was not controlling in this instance, because it “is applicable only to ‘cases involving sexual abuse by a person in familial authority.’ ” The trial court further concluded that, under Rutting, the characteristics of the acts described by the State’s collateral crime witnesses were not “so [similar or] unique as to constitute fingerprint evidence.” The trial court in fact found that the testimony of the State’s witnesses merely demonstrated “limited points of factual similarity.”

The State now properly petitions this court for certiorari relief. See State v. Pettis, 520 So.2d 250 (Fla.1988) (holding that certiorari petition is appropriate to review nonfinal pretrial evidentiary order in criminal case). The State is entitled to such relief if the trial court’s order “constitutes a departure from the essential requirements of law from which the State may suffer irreparable injury.” State v. Johnston, 743 So.2d 22, 24 (Fla. 2d DCA 1999) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995)); see also State v. Gates, 826 So.2d 1064, 1066 (Fla. 2d DCA 2002) (stating that upon certiorari review of nonfinal order “State must prove that the trial court’s ruling violated a clearly established legal principle which would result in material injustice”).

In this instance, the State contends that it is not required to’meet a high standard of admissibility, because the primary purpose of the collateral crime evidence at issue is to establish Dr. Richman’s modus operandi — not to prove his identity, which the State suggests is a circumstance where collateral crime evidence must reach “fingerprint” level similarity to the charged offense. The State further contends that, even if fingerprint similarity is required in this context, the testimony of witnesses J.H., G.J., and I.L. indeed meets that standard. In either event, the State argues that neither Heuring nor Rutting applies here. It posits that Heuring allows for a lower standard of admissibility and controls only when sexual abuse occurs in a familial context. It claims that Rutting, which mandates the higher standard of fingerprint similarity, controls only when collateral crime evidence is offered for the sole purpose of corroborating the testimony of a sexual abuse victim.

We agree that Heuring does not apply in this instance. We conclude, however, that the similar fact evidence at issue meets the fingerprint standard of admissibility enunciated in Rutting.

In Gore v. State, 599 So.2d 978 (Fla. 1992), a death penalty case, collateral crime evidence was admitted in a prosecution for first-degree murder, kidnaping, and robbery. The purpose of the collateral crime-evidence was to establish the defendant’s identity as the perpetrator of those crimes and his specific intent to commit them. The defendant argued that the collateral crime was too dissimilar to have been properly admitted into evidence. The Florida Supreme Court stated, however, that it “has never required the collateral crime[s] tb be absolutely identical to the crime[s] charged.” Id. at 984. It explained that, instead, it is the “pervasive similarities” or the “significant common features” of the current and collateral offenses that are determinative. Id. at 988. In upholding the admissibility of the subject collateral crime evidence, the Gore court acknowledged differences between the current and collateral incidents but concluded that “the similarities [were] pervasive, and the dissimilarities insubstantial.” Id. at 984. It observed that the dissimilarities seemed to result only from differences in the defendant’s opportunities rather than his modus operandi. Id. (citing Chandler v. State, 442 So.2d 171, 173 (Fla.1983)); see also Schwab v. State, 636 So.2d 3, 7 (Fla.1994); Cadet v. State, 809 So.2d 43, 47 (Fla. 4th DCA 2002). The Gore court ultimately stated that, in the past, it “has upheld the use of evidence of a collateral crime where the common points, when considered in conjunction with each other, establish a pattern of criminal activity which is sufficiently unique.” 599 So.2d at 984 (citing Chandler, 442 So.2d at 173); see also State v. Ackers, 599 So.2d 222, 224 (Fla. 5th DCA 1992) (holding that, despite some differences between the charged offense and the collateral crime, similarities between the two were striking enough to establish a unique crime pattern).

In the instant case, the pervasive material similarities between the circumstances and conduct giving rise to the instant charges and those described by collateral crime witnesses J.H., G.J., and I.L. are uncanny. The current and collateral crime victims were, of course, female patients of Dr. Richman. All were referred to him for the same or similar maladies or combinations of illnesses such as fibro-myalgia, arthritis, lupus, and/or migraines. All were seeking treatment for joint pain, with the exception of victim D.B., who complained of cluster headaches. All were on either their first or second afternoon office visit at the same Lee County location. In each instance, Dr. Richman treated the victim in his examining room, without a nurse present. Each incident arose under the guise of examination and treatment, where Dr. Richman would at some point begin examining and otherwise touching a part of the victim’s anatomy that was completely unrelated to her medical complaint. Thus, in each instance, the visit would begin normally and ultimately end in some form of sexual molestation. While the nature and degree of sexual abuse varied from victim to victim, any dissimilarities seemed to result from the level of incapacity of a victim to resist or the sheer aggressiveness of a victim in rejecting Dr. Richman.

Because the similarities between the charged offenses and the collateral crimes here are striking enough to establish a unique crime pattern and are otherwise sufficient to meet the fingerprint standard for admissibility, the trial court departed from the essential requirements of the law in refusing to allow such evidence. The State will be irreparably harmed in the presentation of its case, see State v. Cohens, 701 So.2d 362, 364 (Fla. 2d DCA 1997), and will be without a legal remedy if Dr. Richman is acquitted. See State v. M.D., 706 So.2d 41, 42 (Fla. 2d DCA 1998). Therefore, we grant the petition for certio-rari and quash the trial court’s amended order excluding the collateral crime evidence at issue.

Petition granted.

SALCINES, KELLY, and CANADY, JJ., concur.

SALCINES, J., concurs with opinion.

CANADY, J., concurs with opinion in which KELLY, J., concurs.

SALCINES, Judge,

concurring.

Our conclusion is unanimous. We agree that the collateral similar act or fact evidence is admissible. In the case before us, the State proffered the testimony of seven collateral witnesses (who were not the victims in the subject information which alleged three other victims). The judge initially ruled that the testimony of three of the seven collateral witnesses was admissible under the Williams rule, but seven months later, sua sponte, changed his ruling in a subsequent order which is now before us. I agree with the State’s argument that neither Kulling nor Heuring should apply and that our decisions in Morman and in McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2008), are more consonant with the legal history of the Williams rule and its statutory codification. We are aware of the fact that the trial judge did not have the benefit of the McLean opinion when he entered his sua sponte order.

The use, at trial, of certain similar act or fact evidence has withstood the test of time at all levels of federal and state jurisprudence, proeedurally and statutorily. “Relevance” is the key factor in determining whether such evidence is admissible at trial and I would not whittle away that standard with a “strict,” “relaxed,” “liberal,” or “conservative” spin.

If collateral evidence is relevant, the trial judge must use the scales of justice. On one side of the scale, the judge must weigh “the probative value,” such as the significant, unique, and common features, or similarities that establish a pattern. On the other side of the scale, the judge must weigh “the prejudicial effect,” considering such factors as the lack of similarities or significant features to determine whether the evidence is offered- solely to show the accused is of bad character or propensities.

In the present case, the trial judge had to consider the similarities and chronology of the alleged sexual acts, including the evidence that the alleged acts were committed in the same location, at approximately the same time of day when no nurse was present, and against victims of the same gender, as well as the evidence that the alleged acts were of similar duration.

I could not say the trial judge departed from the essential requirements of law when he first ruled that the collateral evidence was admissible. But then, presumably upon rereading the flurry of cases which make a distinction when the identity of the accused is not an issue and others which address family,and nonfamilial relationships. (which was not the case here), the judge reacted- sua- sponte and changed his ruling. The misconception, in my view, was created by the numerous recent opinions on Williams rule issues that have led to sufficient disagreement among thoughtful and cautious trial judges as to the method by which .the decision to admit or exclude the collateral evidence is to be reached. The shortest distance between two destinations is a straight line — but that is not the only way to travel between point “A” and point “B.” The alternative routes that one may consider in reaching a destination have become confusing to trial judges through dicta and examples used in different appellate cases. That confusion, I believe, led the trial judge in the case before us to exclude the Williams rule evidence out of an abundance of caution. The State correctly sought appellate redress and this panel fully agrees that the evidence is relevant and admissible and should be allowed at trial with the standard cautionary jury instructions as stated in our recent opinion in McLean.

We unanimously agree that the sua sponte order of the trial judge now before us was a departure from the essential requirements of law.

CANADY, Judge,

concurring.

I fully concur with the conclusion and the analysis set forth in the majority opinion. I write separately for the sole purpose of expressing my view that fingerprint-type similarity should not be required for the admission of similar fact evidence concerning modus operandi that is relevant to corroborate a victim’s testimony that an offense occurred and not to establish the identity of the defendant as the perpetrator. See Shapiro v. State, 696 So.2d 1321, 1324 (Fla. 4th DCA 1997) (holding that similar fact evidence regarding prior act of sexual misconduct by defendant was properly admitted to show the defendant’s “common scheme, plan, or design to sexually exploit his patients,” and that such evidence is relevant “even if it is not uniquely similar”).

I agree that in the case under review the trial court had no basis for concluding that the similar acts evidence which the State sought to introduce did not meet the fingerprint-type similarity test articulated by this court in Kulling. See also Farrill v. State, 759 So.2d 696, 698 (Fla. 2d DCA 2000) (holding, in case where identity was not at issue, that evidence of collateral offenses of sexual batteries on children outside the intrafamilial or custodial context was inadmissible because the collateral acts were not “strikingly” similar to the charged crimes and did “not possess unique characteristics to distinguish them from other similar sexual batteries on children”). But I believe that the strict test set forth in Kulling is not appropriately applied in a case — such as the case under review — where the identity of the defendant is not at issue. The rationale for requiring a heightened level of similarity in cases where the defendant is identified as the perpetrator based on collateral crimes involving the same modus operandi used in the charged offense is simply not applicable where the similar acts evidence is offered to corroborate the victim’s testimony that an offense occurred and to rebut the defendant’s contention that the victim’s testimony is fabricated.

The admissibility of similar fact evidence is determined by the interaction of the rules set forth in sections 90.402, 90.403, and 90.404(2)(a), Florida Statutes (2000). Under these statutory provisions, the starting point for analysis is the rule that “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402. Once it is determined that similar fact evidence is relevant to “prove a material fact in issue,” the evidence may be excluded only if it “is relevant solely to prove bad character or propensity,” § 90.404(2)(a), or if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,” § 90.403.

A requirement that similar fact evidence generally meet a fingerprint-type similarity standard is neither required by nor consistent with these governing statutory provisions. Where offered to establish something other than the identity of the defendant, evidence of a collateral crime that lacks unique distinguishing characteristics may nonetheless be highly relevant to prove a material fact other than the defendant’s bad character or propensity. (Although similar fact evidence may — indeed almost inevitably will. — point to a conclusion regarding the defendant’s propensity or bad character, that is not sufficient to exclude the evidence. The rule of exclusion applies only to similar fact evidence that is used solely to prove bad character or propensity.) Moreover, there is no reason to believe that the danger of unfair prejudice to the defendant from the admission of such evidence will necessarily substantially outweigh its probative value.

The probative value of modus operandi evidence used to establish identity depends on a high degree of similarity between the charged crime and the collateral crime. Such evidence is admissible because it supports an inference that the charged crime is so much like the collateral crime and the collateral crime is itself so unusual or unique that it is unlikely that the charged crime could have been committed by anyone other than the person who committed the collateral crime. Such a high degree of similarity between the charged crime and the collateral crime is not necessary to give significant probative force to collateral crime evidence offered to support the inference that it is unlikely that the victim’s accusation against the defendant is fabricated if the defendant has committed a similar — albeit not uniquely similar— crime in the past. That inference is based on the manifest improbability that a defendant who has previously committed a particular type of crime using a particular modus operandi will thereafter fortuitously be falsely accused of committing a similar type of crime using a similar modus oper-andi.

“[T]he determination of whether evidence properly may be admitted as Williams [v. State, 110 So.2d 654 (Fla.1959)] rule evidence is a highly individualized, factually intensive inquiry.” Robertson v. State, 829 So.2d 901, 908 (Fla.2002) (enumerating “multiple determinations” that trial court must make in evaluating the admissibility of Williams rule evidence). Ultimately, the degree of similarity required for the admission of similar fact evidence should depend on the particular purpose for which that evidence is offered and the total factual context. The context-sensitive inquiry required for a proper determination concerning the admissibility of Williams rule evidence should not be supplanted by the unreflec-tive application of the requirement for fingerprint-like similarity.

In Heuring, the supreme court stated— by way of obiter dictum — the broad principle that “similar fact evidence must meet a strict standard of relevance,” namely that “[t]he charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristics or combination of characteristics which sets them apart from other offenses.” 513 So.2d at 124. The Heuring court went on to indicate that such a strict standard is not applicable to “[e]ases involving sexual battery committed within the familial context” — like the case under review in Heur-ing — where “identity is not an issue,” the “victim is typically the sole eye witness,” and the “[cjredibility [of the victim] becomes the focal issue.” Id. The court further observed that in such cases “the better approach treats similar fact evidence as simply relevant to corroborate the victim’s testimony[ ] and recognizes that in such cases the evidence’s probative value outweighs its prejudicial effect.” Id. at 124-25. The court, however, did not articulate a precise alternative standard applicable in the context of intrafamilial sexual battery cases for determining the sufficiency of similarity between the collateral acts and the charged crime.

It is noteworthy that in support of the general strict standard of relevance the Heuring court cited two Florida cases, Thompson v. State, 494 So.2d 203 (Fla.1986), and Drake v. State, 400 So.2d 1217 (Fla.1981), and a California case, People v. Haston, 69 Cal.2d 233, 70 Cal.Rptr. 419, 444 P.2d 91 (1968). All three cases dealt with circumstances where similar fact evidence was introduced to establish the identity of the perpetrator by showing modus operandi. See Thompson, 494 So.2d at 204 (holding that collateral crime evidence used to identify defendant as perpetrator was improperly admitted where the facts did not “have some special character” and were not “so unusual as to point to the defendant”); Drake, 400 So.2d at 1219 (stating that the “mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared”); Heston, 70 Cal.Rptr. 419, 444 P.2d at 98 (stating that when “a primary issue of fact is whether or not defendant rather than some other person was the perpetrator of the crime charged, evidence of other crimes is ordinarily admissible if it discloses a distinctive [mjodus operandi”) (citations omitted).

The fact pattern in Heuring itself was, of course, distinct from the fact pattern in Thompson, Drake, and Haston. In Heur-ing, identity was not at issue; in' Thompson, Drake, and Haston, identity was the central issue. The reach of the strict standard for the admission of similar acts evidence pronounced in Heuring extends beyond the scope of the standard articulated in each of the cases on which Heuring relies. See also State v. Savino, 567 So.2d 892, 894 (Fla.1990) (stating, in case where defendant sought to identify third party as perpetrator by introduction of evidence of similar acts by third party,' that “[w]hen the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or ‘fingerprint’ type of information, for the evidence to be relevant”).

In State v. Rawls, 649 So.2d 1350, 1354 (Fla.1994), the court held that even in a nonfamilial context “similar fact evidence was properly admitted to corroborate [the victim’s] testimony” concerning a sexual battery. The focus in Rawls was not on the level of similarity between the charged offense and the collateral acts but on similar acts evidence that was admissible for the purpose of corroborating a victim’s testimony outside the familial context. In reaching its conclusion, the court quoted an observation made by Professor Eh-rhardt concerning the rationale in Heur-ing: .

“Although the Heuring opinion appears to limit its theory of admissibility of other. act evidence to acts involving sexual battery within the familial context, its rationale may extend to the admission of sexqal acts upon other children. The rationale would also seem to be applicable whenever the defense in a sexual battery prosecution is that the victim fabricated the incident, rather than that the wrong person has been charged.”

Rawls, 649 So.2d at 1354 (quoting Charles W. Ehrhardt, Florida Evidence § 404.18 at 183-84 (1994 ed.) (footnotes omitted)). The Rawls court concluded that the “charged and collateral offenses committed by Rawls” were “ ‘strikingly similar’ ” and “share[d] the unique combination of characteristics required to meet the strict standards of the Williams rule.” 649 So.2d at 1353-54. The court therefore was not called on to address whether a relaxed standard of similarity could be applied in such a case of sexual battery outside the intrafamilial context.

In Saffor v. State, 660 So.2d 668, 671 (Fla.1995), the court recognized that in Heuring it had “discussed a relaxed standard of admissibility for familial sexual battery cases, but [had] not specifically address[ed] the question of how similar the charged offense and the collateral sex crime must be in order for the collateral crime evidence to be admissible.” The court again addressed the issue without articulating a precise standard of similarity. The court did, however, state that the applicable standard “lies somewhere in between the stringent similarity requirement of the usual Williams rule case and the liberal similarity rule” that would allow the admission of collateral crime evidence of any sex crimes committed in the familial context. 660 So.2d at 671. The Scuff or court held simply that in addition to showing that the collateral offense occurred within the familial context “[t]here must be some additional showing of similarity in order for the collateral sex crime evidence to be admissible.” Id. at 672.

The court in Heuring, Rawls, and Sajfor thus unequivocally states that the strict standard of relevance for evidence under section 90.404(2)(a) — a standard requiring not only striking similarity but also unique distinguishing characteristics — is the standard generally applicable outside the context of intrafamilial sex crimes. And even more recently the court has cited the strict standard of similarity pronounced in Heur-ing in a case where it held that supposed similar facts evidence was not relevant to show the absence of mistake or accident. See Robertson, 829 So.2d at 909 (stating that “substantial similarity of crimes is a requirement when the evidence is sought to be admitted for the specific purpose of establishing absence of mistake or accident,” citing Heuring, and holding that where charged crime involved murder of girlfriend using a handgun, collateral crime involving threat of violence against defendant’s former wife using an assault rifle was not admissible). Yet the court has never applied that strict standard in a case where identity was not at issue to exclude similar acts evidence introduced to establish the defendant’s modus operandi and thereby to corroborate the testimony of the victim that the defendant committed the offense. And there is an apparent tension between the rationale for the use of a relaxed standard of similarity expressed in Heuring, Rawls, and Saffor and application of the strict standard of similarity in other cases where the similar acts evidence is not offered to establish the identity of the perpetrator but to support the victim’s credibility.

The justification for applying a relaxed standard of similarity focuses on the appropriateness of using similar acts evidence to support the credibility of a victim who testifies concerning an offense committed when the victim was alone with a person well known to the victim. The rationale for allowing such similar acts evidence is just as compelling when the context is a sexual assault by a physician on a patient in the privacy of the physician’s examining room as it is when the context is a sexual assault by a parent on that parent’s child in the privacy of the home. Indeed, the rationale is compelling in any context where a defendant who is well known to the victim has been accused of an offense and the critical issue is whether the victim’s testimony regarding the offense is a fabrication.

In such circumstances, testimony of a third party that the defendant committed similar acts in the past has substantial probative force to rebut the defendant’s contention that the victim’s testimony is fabricated. See Richard A. Sanders, A Dangerous Bend in an Ancient Road: The Use of Similar Fact Evidence for Corroboration, 74 Fla. B.J. 40, 46 (2000) (criticizing logic of cases permitting similar fact evidence to corroborate victim testimony in child molestation cases and suggesting that appropriate rationale for admission of such evidence is that “it is objectively reasonable to conclude (on a nonpropensity basis) that the charged allegations are true because it is unlikely that -more than one child would fabricate similar false allegations against the same person”). And there is no reason' to believe that the probative.value of such similar acts evidence would be “substantially outweighed by the danger of unfair prejudice,” § 90.403, Fla. Stat„ in every setting other than the context of intrafamilial sexual assault, see Morman v. State, 811 So.2d 714, 719 (Fla. 2d DCA 2002) (Altenbernd, J., concurring) (stating that if Williams rule evidence “is admissible under a relaxed standard in the family context when identity is not an issue, I am inclined to believe that it should be admissible under that same standard in most nonfamilial cases because its probative value and prejudicial effect is not significantly affected by the family context”).

The statement of a broadly applied strict standard of similarity .under the Williams rule finds no support in the original Williams decision itself. While acknowledging that “the question of the relevancy of [similar fact evidence] should be cautiously scrutinized before [the evidence] is determined to be admissible,” the Williams court stated that “relevancy is the test,” and that such evidence should be admitted “[i]f found to be relevant for any purpose save that of showing bad character or propensity.” 110 So.2d at 662. The court in Williams stated that in considering the issue of collateral crimes evidence “we begin by thinking in terms of a rule of admissibility as contrasted to a rule of exclusion.” 110-So.2d at 658. A major thrust of the opinion is its criticism of those who “disregard the basic principle of the admissibility of all relevant- evidence having probative value in establishing a material issue.” Id.

      . We note that the specific holding of Heuring has effectively been superseded by the adoption of section 90.404(2)(b)(l), Florida Statutes (2002), which provides that prior acts of child molestation are admissible in any criminal case where the defendant is charged with child molestation and that such evidence "may be considered for its bearing on any matter to which it is relevant.” See also McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2003) (upholding the constitutionality of section 90.404(2)(b) in child molestation cases where identity is not an issue).

      . Williams v. State, 110 So.2d 654 (Fla.1959), codified as explained in, Kulling v. State, 827 So.2d 311, 314 (Fla. 2d DCA 2002).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Darryl L. MAYNARD, Appellant, v. HOUSEHOLD FINANCE CORPORATION III, Appellee.
    No. 2D02-3753.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.

      Elizabeth L. Hapner, Tampa, for Appellant.
    Enrico G. Gonzalez, Temple Terrace, for Appellee.
   WALLACE, Judge.

In this appeal we are asked to determine whether a mortgagor’s compulsory counterclaim alleging claims for fraud in the inducement and for breach of contract, pleaded as part of an answer to a mortgagee’s complaint for foreclosure, is barred when it is filed after the expiration of the applicable statute of limitations. Because the mortgagor’s compulsory counterclaim is a claim for recoupment, we hold that the expiration of the statute of limitations does not bar it. Accordingly, we reverse the circuit court’s final summary judgment entered in favor of the mortgagee, and we remand for further proceedings.

The Facts

The facts, which are drawn from the pleadings and other documentary evidence in the record, are reviewed in the light most favorable to the nonmoving party against whom final summary judgment was entered. Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla.2002). On April 30, 1996, Home Finance Corporation III(HFC) loaned $69,999.52 to Darryl L. Maynard (the Mortgagor), who executed a promissory note and secured payment with a mortgage on his Tampa home in favor of HFC. At the time, the home was encumbered by two mortgages that secured loans from Advanta Mortgage Corporation (Advanta) and American General Home Equity, Inc. (American General). The Mortgagor intended to obtain satisfaction of the prior mortgages, and HFC represented that the prior mortgages would be paid. To the extent that there may be a written undertaking by HFC to pay the prior mortgages from the loan proceeds, such writing is not part of the record.

In May 1996, HFC paid a substantial sum of money to Advanta on the Mortgagor’s account, but this amount did not satisfy the full balance due. HFC did not pay any amount on the Mortgagor’s account with American General. Later that month, the Mortgagor became aware that the prior mortgages had not yet been satisfied. Faced with outstanding balances on three home loans, the Mortgagor repeatedly attempted to rectify the situation with HFC but was unsuccessful in obtaining satisfaction of the prior mortgages. Then, according to HFC, the Mortgagor failed to make the payment due to HFC in November 2000 and all subsequent payments.

On May 30, 2001, HFC sued to foreclose on the Mortgagor’s home. On June 21, 2001, the Mortgagor answered and denied he had defaulted on the note and mortgage. His answer included a counterclaim alleging that HFC represented that the purpose of the mortgage transaction was for the refinancing of his existing mortgages and that HFC failed to carry out its promise to satisfy the existing mortgages. Asserted in a single count, the counterclaim may be interpreted as a claim for fraud in the inducement or for breach of contract. For the purposes of our decision, we need not identify the cause of action pleaded in the counterclaim. The Mortgagor filed his counterclaim more than five years after he first became aware in May 1996 of HFC’s apparent failure to satisfy the Advanta and American General mortgages from the loan proceeds.

HFC moved for summary judgment on its foreclosure claim, submitting proof of the amount claimed and the Mortgagor’s default. HFC also moved for summary judgment on the Mortgagor’s counterclaim, arguing that it was barred by the applicable statute of limitations. In response to cases submitted by the Mortgagor to support the proposition that his counterclaim was not barred by the statute of limitations, HFC argued that the cases were distinguishable because the Mortgagor’s counterclaim did not seek recoupment. The trial court granted final summary judgment in favor of HFC on the foreclosure claim and the counterclaim, awarding HFC a summary judgment of foreclosure for $96,080.50, including interest, penalties, attorney’s fees, and costs.

Standard of Review

Review of a summary judgment is de novo, requiring a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). First, a summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered. Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000). Second, if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law. Aberdeen at Ormond Beach, 760 So.2d at 130. The presumption of correctness generally applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence. Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995); Savage-Hawk v. Premier Outdoor Prods., Inc., 474 So.2d 1242, 1244 (Fla. 2d DCA 1985).

Analysis

HFC’s sole argument in support of summary judgment on the Mortgagor’s counterclaim was that it was barred by the statute of limitations because it did not seek recoupment. HFC’s argument was incorrect. The distinguishing feature of a claim for recoupment is the same as a compulsory counterclaim — it must spring from the same transaction or occurrence as the underlying claim. Cherney v. Moody, 413 So.2d 866, 868 (Fla. 1st DCA 1982) (tracing the history of the plea of recoupment). A recoupment seeks to diminish or exceed the damages sought by the plaintiff. Id. Viewed as a breach of contract claim, the Mortgagor’s counterclaim was necessarily a compulsory counterclaim to HFC’s foreclosure action based upon breach of the promissory note. Viewed as a claim of fraud, this court has held: “At least in some, if not all, cases, fraud in the inducement of a note or mortgage is a compulsory counterclaim to an action in foreclosure on the note or mortgage.” Norris v. Paps, 615 So.2d 735, 737 (Fla. 2d DCA 1993). The Mortgagor sought money damages for HFC’s alleged misconduct arising from the same transaction or occurrence upon which HFC premised the Mortgagor’s liability; thus the Mortgagor’s counterclaim was a compulsory counterclaim in recoupment.

As a general rule, our supreme court has held that “a compulsory counterclaim in recoupment permits the recovery of an affirmative judgment even though barred as an independent cause of action by the running of the statute of limitations.” Allie v. Ionata, 503 So.2d 1237, 1239 (Fla.1987) (quoting and adopting the analysis of Chemey, 413 So.2d at 868-69). The Allie court explained that the purpose of a statute of limitations is to protect unwitting defendants from the unexpected enforcement of stale claims brought by plaintiffs who have slept on their rights. This purpose is not served if a statute of limitations is used as a shield to bar meritorious defensive actions when plaintiffs, by bringing their claims, have effectively acknowledged that they are prepared to litigate all aspects of the matter. Id. at 1240.

Our supreme court has identified two exceptions to the general rule. First, the rule of Allie does not apply when the defensive claim seeks specific performance of an option to buy land or the transfer of some other unique, nonfungible property. Rybovich Boat Works, Inc. v. Atkins, 585 So.2d 270, 271 (Fla.1991). Second, when the defensive claim seeks to enforce the statutory right of rescission under the federal Truth in Lending Act, the statute’s three-year limitation on actions prevails over the common law rule of Allie because the statute itself provides the right and the remedy. Beach v. Great W. Bank, 692 So.2d 146, 149-50 (Fla.1997).

The Mortgagor’s counterclaim in recoupment does not fall within the exceptions to the rule of Allie. Therefore it is not barred by the statute of limitations that otherwise might have applied had it been brought as an independent claim. Further, upon our review of the Mortgagor’s deposition and affidavit in opposition to HFC’s motion for summary judgment, we conclude that the Mortgagor has presented facts creating a genuine issue with regard to the counterclaim viewed as an action for breach of contract. Specific facts creating a genuine issue of fraud in the inducement may well be adduced upon further discovery. Therefore, the final summary judgment in favor of HFC is reversed.

Remand

Remand for further proceedings is required for both the Mortgagor’s counterclaim and HFC’s foreclosure claim. On remand, if the Mortgagor proves damages arising from breach of contract or fraud, then the amount of the Mortgagor’s damages may reduce or exceed the amount of HFC’s claim. See Hilsenroth v. Kessler, 446 So.2d 147, 149-50 (Fla. 3d DCA 1983) (allowing a counterclaim for fraud, which was otherwise barred by the statute of limitations, to be raised as a defensive claim to reduce the aggregate unpaid balance on a mortgage in a foreclosure action); see also Norris, 615 So.2d at 737 (holding that a compulsory counterclaim for fraud may not be severed from the underlying foreclosure action); Millennium Group I, L.L.C. v. Attorneys Title Ins. Fund, Inc., 847 So.2d 1115, 1117 (Fla. 1st DCA 2003) (reversing a partial summary judgment that allowed one party to execute a judgment on a promissory note before resolving the other party’s claim of damages because of fraud). At the conclusion of the litigation, a single judgment should reflect the aggregate amount of the Mortgagor’s liability to HFC and HFC’s liability to the Mortgagor, if any. See Hilsenroth, 446 So.2d at 150.

Reversed; remanded with directions.

COVINGTON and CANADY, JJ„ concur.

      . The record does not completely explain the history of the Mortgagor's loan accounts with Advanta and American General subsequent to May 1996. However, these details are not particularly pertinent here as it appears the Mortgagor was never fully relieved of his liability on these mortgages prior to filing his counterclaim.

      . HFC initially named American General as a codefendant as the holder of an inferior lien, but HFC later dropped this party from its lawsuit.

      .From the time a cause of action accrues, an action on a contract that is founded on a written instrument must be brought within five years, an action on a contract that is not founded on a written instrument must be brought within four years, and an action founded on fraud must be brought within four years. § 95.1 l(2)(b), (3)(j)-(k), Fla. Stat. (1995). The issues of what limitations apply and when any limitation period began to run were not argued before the trial court and are now rendered moot by our decision.

      . We note that the Mortgagor in his deposition testimony identified by name the person who made the purported misrepresentations.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Joyce RIVERS, Appellee.
    No. 2D03-2228.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   KELLY, Judge.

The State appeals from the trial court’s order granting Joyce Rivers’ motion to suppress evidence found during a search of her car incident to arrest. The trial court’s order found that the officer’s continued detention of Rivers’ car after determining her temporary tag was valid was illegal. The State argues that the officer was justified in detaining Rivers based on an outstanding arrest warrant. We agree and reverse.

A police officer was on routine patrol when he stopped Rivers’ car because he did not see a license plate. As the officer approached the vehicle, he noticed a temporary tag in the rear window, but he could not read the numbers. The temporary tag, which was valid, was hanging off the window. The officer walked up to Rivers, intending to tell her the reason for the stop and to ask her to tape the tag on the window so that it was visible from outside the car. When the officer saw Rivers, he immediately recognized her from a prior encounter. He arrested her based on his knowledge that there was an outstanding warrant for her arrest.

During the search incident to arrest, the officer found cocaine in the car. Rivers was charged with possession of cocaine. She moved to suppress the evidence, alleging that the detention was illegal. The trial court granted Rivers’ motion on the basis that the officer illegally continued the traffic stop beyond the time that was necessary to investigate Rivers’ temporary tag.

The Florida Supreme Court recently addressed this issue in State v. Diaz, 850 So.2d 435 (Fla.2003). In that case, a police officer made a stop of Diaz’s car because he was unable to read the expiration date on the temporary tag. Before making contact with the driver, the officer discovered that the tag was valid but continued the detention to obtain additional information. The supreme court reversed Diaz’s resultant conviction for felony driving with a suspended license because, once the officer was satisfied that the temporary tag was valid, “he was without probable cause, reasonable or articulable suspicion, or any other type of cause to believe or consider that any violation had occurred or was occurring.” Id. at 437. The only allowable personal contact an officer could make with the driver after determining that the tag was valid would be to explain the reason for the initial stop. Id. at 440. See also Blackwelder v. State, 853 So.2d 479 (Fla. 2d DCA 2003).

This case is distinguishable from Diaz because, here, the officer did not continue the traffic stop on the basis of the temporary tag, but on his independent knowledge of the outstanding warrant. His initial contact with Rivers to explain the reason for the stop was permissible. Thereafter, his recognition of Rivers supplied the probable cause to justify her continued detention. Because the search of her car was incident to a lawful detention and arrest, we reverse the order granting the motion to suppress and remand for further proceedings.

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.


author: FULMER, Judge.

text:
    Allie Louis CONE, III, Appellant, v. Teresa Cone GILLSON, Appellee.
    No. 2D02-2394.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    Mark G. Rodriguez of Mark G. Rodriguez, P.A., Tampa, for Appellant.
    R. Ray Brooks of R. Ray Brooks, P.A., Tampa, for Appellee.
   FULMER, Judge.

Allie Louis Cone, III, the Former Husband, appeals an order finding him guilty of indirect criminal contempt for failing to make payments required of him in a final judgment of dissolution of marriage. We reverse.

The order 'to show cause that was issued to initiate the indirect criminal contempt proceeding fails to comply with Florida Rule of Criminal Procedure 3.840 in that it was based on an unsworn motion filed by Teresa Cone Gillson, the Former Wife, which alleged that the Former Husband had failed to make payments due on alimony, attorney’s fees, and equitable distribution' awards. And, while it appears that the trial court also considered a sworn affidavit previously filed by the Former Wife, that affidavit addressed only the Former Husband’s failure to pay sums of money awarded to the Former Wife as equitable distribution of the parties’ assets and liabilities. In supplemental briefing, both parties acknowledge that a trial court is without authority to enforce equitable distribution awards by contempt. See Kadanec v. Kadanec, 765 So.2d 884 (Fla. 2d DCA 2000); Montanez v. Montanez, 697 So.2d 184 (Fla. 2d DCA 1997).

Because a trial court’s failure to comply with the procedural requirements of rule 3.840 is fundamental error, we reverse. See Hagerman v. Hagerman, 751 So.2d 152 (Fla. 2d DCA 2000). However, we note that while our reversal renders moot the other issues raised on appeal, it does not relieve the Former Husband of his obligations under the final judgment of dissolution.

Reversed and remanded.

SALCINES and VILLANTI, JJ., concur.


author: GERSTEN, J.

text:
    Miriam LEVY, Appellant, v. Eli LEVY, Appellee.
    No. 3D03-1437.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Bernardo Burstein, for appellant.
    Ricardo E. Pines, for appellee.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   GERSTEN, J.

Miriam Levy (“former wife”) appeals an order finding her in contempt of court for violating a settlement agreement regarding the parties’ children. We affirm.

A person can be held in contempt of court for violating an order when the language of the order is clear and precise and the behavior of the person clearly violates that order. Paul v. Johnson, 604 So.2d 883 (Fla. 5th DCA 1992). The settlement agreement provides that each parent shall encourage and foster the maximum relations, love and affection between the minor children and the other parent; shall not obstruct or interfere with the other parents right to companionship with the minor children; and shall discuss and work together in an effort to reach a joint decision on all major decisions involving the children. Here, the former wife’s actions clearly violated the settlement agreement.

The former husband and former wife are involved in a particularly acrimonious divorce. Despite the parties negative feelings towards each other, as a parent they have an affirmative obligation to encourage and nurture the relationship between their children and the other parent. See Schutz v. Schutz, 581 So.2d 1290 (Fla.1991). This obligation includes encouraging the children to interact with the other parent; taking good faith measures to ensure the children visit and have frequent and continuing contact with the noncustodial parent; and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. Schutz, 581 So.2d at 1292.

Dissolution proceedings are painful to all parties involved especially minor children. However, facilitating and encouraging positive relationships with the other parent can help ease the children’s transition to a single parent home. We affirm the trial court’s order finding the former wife in contempt of court.

Affirmed.


author: PER CURIAM.

text:
    Keturah JOHNSON, a/k/a Keturah A. Darling, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1582.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Johnson may have to file a facially sufficient motion for postconviction relief under Florida Rule of Criminal Procedure 3.800(a).

SALCINES, STRINGER, and WALLACE, JJ„ Concur.


text:
    Rodney COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2688.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
   PER CURIAM.

Affirmed. See Alexander v. State, 830 So.2d 899 (Fla. 2d DCA 2002). As this court did in Alexander, 830 So.2d at 899-900, we certify the same question of great public importance, to wit:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE ENHANCING CONSEQUENCES OF A DEFENDANT’S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

Affirmed; question certified.

COVINGTON, CANADY, and VILLANTI, JJ., Concur.


text:
    Gordon W. ADCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2997.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
   PER CURIAM.

Gordon W. Adcock challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion on the ground that it was facially insufficient. Our affirmance of the trial court’s order is without prejudice to any right Adcock might have to file a facially sufficient motion raising the same claim within sixty days from the issuance of the mandate in this case.

Affirmed.

WHATLEY, SALCINES, and SILBERMAN, JJ., Concur.


text:
    Donald McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3471.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
   PER CURIAM.

Affirmed. See Alexander v. State, 830 So.2d 899 (Fla. 2d DCA 2002); Camille v. State, 803 So.2d 910 (Fla. 2d DCA 2002). As this court did in Alexander, 830 So.2d at 899-900, we certify the same question of great public importance, to wit:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE ENHANCING CONSEQUENCES OF A DEFENDANT’S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

Affirmed; question certified.

CANADY, VILLANTI and WALLACE, JJ., Concur.


text:
    Felix ZAMORA, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-4680.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
   PER CURIAM.

The petition for belated appeal is granted to review the trial court order of August 5, 2003.

Zamora has filed his initial brief. Based upon consideration of the brief, the order of the trial court is summarily affirmed. See Florida Rule of Appellate Procedure 9.315(a).

Affirmed.

FULMER, KELLY, and VILLANTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Jerome DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1819.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.

      Jerome Davis, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Jerome Davis challenges the circuit court’s dismissal of his petition for a writ of mandamus. We reverse.

Davis filed a letter with the Florida Supreme Court seeking to compel his public defender to turn over certain trial transcripts and depositions to Davis. The supreme court forwarded the letter to the circuit court with instructions to treat the letter as a petition1 for a writ of mandamus. Rather than ruling on the petition, the circuit court held it for eighteen months and then dismissed it for “lack of prosecution.” In the order dismissing the petition, the court also stated that a writ of mandamus was not a proper vehicle for Davis’s request. Davis appealed this dismissal to the supreme court, which transferred the appeal to this court. Because the circuit court erred in dismissing Davis’s petition, we reverse.

We note initially that a petition for a writ of mandamus may not be dismissed for the petitioner’s “lack of prosecution.” When a trial court receives a petition for a writ of mandamus, its initial task is assessing the petition to determine whether it is facially sufficient. Holcomb. v. Dep’t of Corr., 609 So.2d 751 (Fla. 1st-DCA 1992). If it is not facially sufficient, the court may dismiss the petition. Id. Otherwise, if the petition states a legally sufficient claim, the court must issue an “alternative writ in mandamus” ordering the respondent to show cause why the writ should not be granted. Fla. R. Civ. P. 1.630(d)(3); Holcomb, 609 So.2d at 753 (citing Conner v. Mid-Fla. Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989)). Therefore, the circuit court could dismiss Davis’s petition for failure to state a legally sufficient claim but not for “lack of prosecution.”

It appears from the circuit court’s order that the court determined the petition was not legally sufficient because a writ of mandamus was “not the proper vehicle for this request.” To be valid, a petition for a writ of mandamus must show that the petitioner has a clearly established legal right to have the respondent public officer perform a nondiscretionary duty. State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 508 (1933); McDaniel v. City of Lakeland, 304 So.2d 515 (Fla. 2d DCA 1974). The law is clear that an indigent defendant is entitled to his criminal trial transcripts, including depositions, prepared at public expense and that a writ of mandamus is a proper means to compel a public defender to furnish a defendant with such transcripts. See Pearce v. Sheffey, 647 So.2d 333 (Fla. 2d DCA 1994); Thompson v. Unterberger, 577 So.2d 684 (Fla. 2d DCA 1991); Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999); Harris v. Webb, 711 So.2d 641 (Fla. 1st DCA 1998). Because Davis stated a facially sufficient claim for mandamus relief, the trial court erred by not issuing an alternative writ ordering the public defender to show cause why the relief should not be granted. Therefore, we reverse and remand for the circuit court to issue an alternative writ in mandamus.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Patricia HOLBROOK, Appellee.
    No. 2D02-5679.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    Kerry C. McGuinn, Jr., Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Wendy Coxhead of Law Offices of Wendy Coxhead, P.A., Newcastle, Washington, for Appellee.
   FULMER, Judge.

Liberty Mutual Insurance Company appeals from a final judgment that awarded attorney’s fees to Wendy Coxhead, Esq., former counsel of the' plaintiff, Patricia Holbrook. We reverse the award of attorney’s fees because, pursuant to Faro v. Romani, 641 So.2d 69 (Fla.1994), Coxhead abandoned her right to compensation when she withdrew from the representation of Holbrook.

In September 1997, Coxhead filed a breach of contract lawsuit on ■ behalf of Holbrook alleging that Liberty Mutual failed to pay Holbrook personal injury protection benefits under an automobile insurance policy issued to Holbrook. Coxhead had .a-contingency fee agreement with Hol-brook. In March 2000, the trial court entered an order allowing Anthony Britt, Esq., to substitute as counsel for Holbrook after Britt and Coxhead filed a Joint Stipulation for Substitution of Counsel, which provided that Coxhead would be relieved of any further responsibility with regard to Holbrook’s representation. Coxhead filed a notice of lien for attorney’s fees and costs.

In November 2001, a partial settlement agreement was entered, which resolved Holbrook’s claim against Liberty Mutual and the issue of attorney’s fees and costs of Anthony Britt but specifically reserved the issue of the attorney’s fees and costs of former counsel, Coxhead. Coxhead moved to intervene, moved to tax attorney’s fees and costs, and moved to enforce her lien. In its order enforcing the lien, the trial court stated that Coxhead’s “withdrawal and relocation to the State of Washington due to her marriage during this litigation is not a ‘voluntary withdrawal,’ and [Cox-head] is entitled to recover quantum meru-it attorney’s fee and costs.”

In Faro, the supreme court addressed the voluntary withdrawal of an attorney in a contingency fee case and held:

[W]hen an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation .... We further hold, however, that if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.

Id. at 71; see also Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc., 699 So.2d 321 (Fla. 3d DCA 1997) (concluding .that law -firm forfeited compensation where its withdrawal was based on an ethical dilemma resulting from a force within its control).

The record in this case does not support the trial court’s finding that Coxhead’s withdrawal was not voluntary. At the hearing on the motion to enforce her lien, Coxhead,testified that her decision to get married and move to a different state was a purely personal decision and that her client did not do anything to cause her to withdraw from the case. On these facts, Coxhead abandoned her right to compensation when she withdrew on her own volition to relocate to Washington. Liberty Mutual does not challenge the award of costs and, therefore, that portion of the order is affirmed.

Reversed in part, affirmed in part.

WALLACE, J., and DANAHY, PAUL W., Senior Judge, Concur.


text:
    Stanford R. SOLOMON, Appellant/Cross-Appellee, v. Sheila A.B. SOLOMON, Appellee/Cross-Appellant. Sheila A.B. Solomon, Appellant, v. Stanford R. Solomon, Appellee.
    Nos. 2D01-494, 2D01-2227, 2D02-97.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.

      Stanford R. Solomon and Hallie S. Evans of The Solomon Tropp Law Group, P.A., Tampa, for Appellant/Cross-Appel-lee.
    Arnold D. Levine and Robert H. Mac-Kenzie of Levine, Hirseh, Segall, Mackenzie & Friedsam, P.A., for Appel-lee/Cross-Appellant.
   KELLY, Judge.

In these consolidated cases, the former husband, Stanford Solomon, appeals from a final judgment of dissolution of marriage. The former wife, Sheila Solomon, cross-appeals the trial court’s determination of the amount of marital debt in the final judgment and appeals from the trial court’s order on her motion for attorney’s fees, expert witness fees and costs, and the trial court’s order that established a payment schedule for the equalizer portion of the equitable distribution award. We affirm without discussion the former wife’s cross-appeal of the final judgment and her appeals from the trial court’s orders. In the former husband’s appeal, we reverse the portions of the final judgment dealing with child support, alimony, equitable distribution, and life insurance, but in all other respects we affirm the final judgment of dissolution.

CHILD SUPPORT

The former husband argues that the trial court’s child support award is flawed in several respects, all of which stem from the trial court’s failure to use the child support guidelines in calculating child support. Instead of calculating support based on the guidelines, the trial court based its support award on the amount of temporary support the former husband had been paying. The trial court reasoned that because the former husband had not sought child support, it was “without jurisdiction to make an award of child support to be paid to the Husband by the Wife.” The trial court also relied on the fact that the former husband had not filed a pleading requesting a reduction in the amount of the temporary support he had been paying.

Simply put, the trial court was wrong. The amount of temporary support paid by the former husband does not provide a basis to ignore the child support guidelines. See Segall v. Segall, 708 So.2d 983, 989 n. 3 (Fla. 4th DCA 1998) (noting that the trial court’s determination that the former husband had the ability to pay $1500 per month in child support based on his prior ability to pay $1500 per month for temporary support did not constitute a legally cognizable basis to ignore the statutory child support guidelines). Further, regardless of whether the former husband sought an award of support, the former wife was seeking such an award, and the amount of that award had to be determined under the child support guidelines. The supreme court explained the procedure the trial court is to employ in calculating the amount of child support as follows:

[A] trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the child support amount should vary plus or minus five percent from the guideline amount, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court’s determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.

Finley v. Scott, 707 So.2d 1112, 1117 (Fla.1998). Because the trial court failed to calculate child support under the guidelines, the award of child support must be reversed.

The former husband also contends the trial court erred in awarding child support “until the youngest child reaches the age of eighteen (18), both minor children have married, both minor childi-en have entered into the armed forces, the death of both minor children, or the emancipation of both minor children, whichever shall first occur.” This was error. In the absence of a finding of physical or mental deficiencies, child support for the oldest child should terminate when that child reaches the age of eighteen. Stultz v. Stultz, 504 So.2d 5, 6 (Fla. 2d DCA 1986).

ALIMONY

The former husband contends that the trial court applied the wrong legal standard in determining whether to impute income to the former wife for the purposes of determining alimony. We agree.

It appears from the final judgment that the trial court was under the impression that it could not impute income to the former wife unless the former husband offered evidence that there was a specific employer who was ready, willing and able to employ the former wife. However, there is no such requirement under the facts of this case. Rather, “[a] court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts.” Koeppel v. Holyszko, 643 So.2d 72, 75 (Fla. 2d DCA 1994). In imputing income, the court must consider recent work history as well as occupational qualifications and prevailing earnings. Cushman v. Cushman, 585 So.2d 485 (Fla. 2d DCA 1991); see also Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (stating that “[a]s to the imputation of income to the wife, the amount of income a spouse may be able to earn is a factor the court should consider in determining an alimony award.”).

In reaching the conclusion that there must be evidence of an actual job available to the former wife before income could be imputed to her, the trial court relied on Brooks v. Brooks, 602 So.2d 630 (Fla. 2d DCA 1992). Brooks, however, is distinguishable from this case. In Brooks, the former wife sought to have income imputed to the former husband, contending he was underemployed. The former husband offered evidence that he had sent out 100 resumes in an unsuccessful effort to secure a higher paying job. Because the former husband demonstrated that he had used his best efforts but still could not obtain a higher paying job, the burden then fell upon the former wife to show that there was an actual job available that the former husband failed to take. Unlike the former husband in Brooks, the former wife in this case had made no attempt to secure employment and testified that she had no wish to do so. Therefore, the burden never fell upon the former husband to show that a specific employer existed who was willing to hire the former wife. Thus, the rationale in Brooks does not apply here. Accordingly, the trial court erred in failing to consider whether income should be imputed to the former wife.

The former husband also argues that the amount of alimony awarded is not supported by competent, substantial evidence of the former wife’s needs, that the trial court improperly included a “savings alimony” component in the award, and failed to take into account the economic effect of rotating custody. It is impossible for us to evaluate the merits of these contentions from the face of the final judgment. The final judgment does not contain any findings of fact regarding the former wife’s needs or give any indication as to how the court arrived at the amount of alimony it awarded. - Nor can we discern from the record how the trial court arrived at the amount it awarded. Failure to include findings of fact as required by section 61.08, Florida Statutes (2000), is reversible error. Farley v. Farley, 800 So.2d 710 (Fla. 2d DCA 2001).

EQUITABLE DISTRIBUTION

We affirm the equitable distribm tion award in its entirety with one-, exception. We agree with the former husband’s contention that the trial court’s valuation of the marital residence is not supported by competent, substantial evidence. There is no. evidence in the record to support the value the trial court assigned to the marital home. It appears from the record that the trial court split the difference between the valuations offered by the parties to arrive at the figure in the final judgment. This is improper. Cf. Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990) (finding that valuation based on the average of the differences in experts’ valuations was not a váluátion based on evidence).

LIFE INSURANCE

The former husband argues that the trial court erred by ordering him to maintain a $1,000,000 life insurance policy naming the former wife as the beneficiary. The trial court made no findings that would demonstrate that there was a need to secure the former wife’s alimony, nor does the record demonstrate that such a need exists in this case.- See Kearley v. Kearley, 745 So.2d 987, 989 (Fla. 2d DCA 1999) (Altenbernd, J., concurring); Moorehead v. Moorehead, 745 So.2d 549, 552 (Fla. 4th DCA 1999). In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation. Cozier v. Cozier, 819 So.2d 834 (Fla. 2d DCA 2002); Pinion v. Pinion, 818 So.2d 557 (Fla. 2d DCA 2002). No special circumstances are present in this case; therefore, it was error to require the former husband to maintain life insurance to secure the former wife’s alimony.

CONCLUSION

In summary:

1. The child support award is reversed and remanded for reconsideration. On remand the trial court must recalculate the amount of child support using the child support guidelines and taking into account all the factors specified in section 61.30, Florida Statutes (2000), including whether to impute income to the former wife, the effect of the parties’ rotating custody arrangement, and the actual needs of the children.

2. The alimony award is reversed based on the trial court’s failure to apply the correct legal standard to determine whether to impute income to the former wife and based on the trial court’s failure to include findings of fact regarding the former wife’s need. On remand the trial court should reconsider whether to impute income to the former wife and it must enter a final judgment with the required factual findings supporting its award of alimony.

3. The equitable distribution award is reversed and remanded for the trial court to redetermine the value of the marital home based on the evidence in the record and to adjust the equitable distribution award accordingly.

4. On remand the trial court shall strike the requirement in the final judgment that the former husband maintain life insurance to secure the former wife’s alimony.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ„ Concur.


text:
    Robert W. RANKIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3990.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
   PER CURIAM.

Robert W. Rankin challenges the trial court’s order summarily denying his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Rankin filing a facially sufficient claim under rule 3.850 regarding two of the four grounds that he asserted in his motions.

The attachments to the trial court’s order show that in trial court case number 97-9354, Rankin entered guilty pleas to aggravated battery of a law enforcement officer and aggravated assault on a law enforcement officer. At the plea hearing, Rankin’s counsel objected to the sentencing guidelines scoresheet, stating, “I do object to the score sheet as to the severity of victim injury of 40 points being assessed. I don’t believe that would be able to be verified. I just want to make sure that is not waived at any further [sic] time.” The trial court responded that Rankin would be able to litigate and discuss that issue, apparently at the time of sentencing, as long as he understood that it was an open plea.

The sentencing hearing was postponed to allow Rankin an opportunity to provide substantial assistance to law-enforcement. Rankin was represented by substitute counsel at the sentencing hearing, and according to Rankin’s own statements, he was unable to provide substantial assistance to law enforcement. Rankin’s counsel stated to the trial court that he had advised Rankin that he wanted to challenge the scoring of victim injury but could not do so because “[t]he scoresheet that was submitted at the time of Mr. Rankin’s pleas was agreed to by counsel for Mr. Rankin at that time.” Counsel requested a downward departure on the basis that Rankin, required specialized treatment for drug addiction and that he was amenable to such treatment. The State requested a guidelines prison sentence.

In his rule 3.850 motion, Rankin alleged that substitute counsel was ineffective for failing to object to the incorrect scoring of forty victim injury points on the sentencing scoresheet. The trial court denied the claim, finding that substitute; counsel’s performance was not defective because “counsel did bring the aforementioned 40 points to the Court’s attention, and explained on the record, the presence of - Defendant [sic], as to why he could not contest the aforementioned points on the sentencing guidelines scoresheet.” The trial court found that because substitute counsel’s performance was not deficient, it need not address the prejudice component of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court’s reasoning was erroneous because at-the plea hearing, Rankin’s original counsel specifically objected to the scoring of victim injury points and the trial court agreed that the issue would be litigated and discussed at the sentencing hearing. Additionally, substitute counsel was incorrect in stating that Rankin’s prior counsel had agreed to the scoresheet.

Although the trial court’s analysis was incorrect, we must affirm the denial of relief on this ground because Rankin failed to state a facially sufficient claim of ineffectiveness of substitute counsel. A claim that a plea was involuntarily entered based on trial counsel’s failure to object to an inaccurate scoresheet is a cognizable rule 3.850 claim. See Herman v. State, 795 So.2d 1000 (Fla. 2d DCA 2001). However, a defendant raising such a claim must allege that he would not have entered his plea had he been aware of the correct guidelines sentencing range. See Kleppinger v. State, 760 So.2d 1045, 1046 (Fla. 2d DCA 2000) (citing Skidmore v. State, 688 So.2d 1014 (Fla. 3d DCA 1997)); Smith v. State, 741 So.2d 579, 580 (Fla. 3d DCA 1999). Because Rankin failed to allege that he would not have entered his pleas had he been aware of the correct sentencing range, his claim is facially insufficient.

We note that Rankin may have a valid claim that his plea was involuntarily entered because he entered it in the mistaken belief that counsel would challenge the scoring of victim injury at the time of the sentencing hearing. However, where a defendant claims that his plea was involuntarily entered based on a mistake or based on misinformation, he must still allege “that he would not have entered the plea had he been given the correct information.” Days v. State, 637 So.2d 66, 66 (Fla. 1st DCA 1994); see also State v. Taylor, 738 So.2d 988, 989 (Fla. 2d DCA 1999). Rankin, if he is able, may present this claim in a subsequent motion.

Rankin also alleged that trial counsel was ineffective for failing to object that five convictions for possession of cocaine were scored as “additional and/or prior convictions” on the sentencing guidelines scoresheet when he only had four such convictions. The trial court denied the claim, finding that only two convictions for possession of cocaine were scored in the “prior record” section of the sentencing guidelines scoresheet. The trial court, however, failed to take note that three convictions for possession of cocaine were scored in the “additional offenses” section of the scoresheet. Again, because Rankin did not allege that he would not have entered his pleas had he been aware of the correct sentencing guidelines range, we affirm the order denying relief. See Kleppinger, 760 So.2d at 1046. We also note that this claim was insufficient because Rankin did not allege that counsel knew or should have known of the errors. See Richie v. State, 111 So.2d 977 (Fla. 2d DCA 1999).

Accordingly, we affirm the trial court’s order without prejudice to any right Rankin might have to file a facially sufficient motion raising the grounds for relief discussed above. Such a motion shall not be considered successive. See Herman, 795 So.2d at 1001. We affirm without discussion the denial of relief as to Rankin’s other claims.

Affirmed.

SALCINES, STRINGER, and SILBERMAN, JJ., Concur.

      . It appears from the copy of the sentencing guidelines scoresheet attached to the trial court's order that Rankin simultaneously entered pleas in at least four other trial court cases.

      . We note that the prosecutor who attended the sentencing hearing was not the same prosecutor who had attended the plea hearing.


author: SALCINES, Judge.

text:
    Mildred MORGAN and Jerry Morgan, Appellants, v. SOUTHEAST SERVICE CORPORATION, Bath & Body Works, Inc., and General Growth Management, Inc. d/b/a Coastland Center Mall, Appellees.
    No. 2D02-2906.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.

      John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, and Alexander L. Kaplan of Alexander L. Kaplan, P.A., Naples, for Appellants.
    Bonita Kneeland Brown of Fowler, White, Boggs, Banker P.A., Tampa, for Appellee Southeast Service Corporation.
    Dale T. Golden of Marshall, Dennehey, Warner, Coleman & Goggin, for Appellee Bath & Body Works, Inc.
    No appearance for Appellee General Growth Management, Inc. d/b/a Coastland Center Mall.
   SALCINES, Judge.

Mildred Morgan and her husband, Jerry Morgan, appeal the trial court’s order which granted Southeast Service Corporation’s motion for a limited trial de novo after nonbinding arbitration. The Morgans also question the order which granted Bath & Body Works, Inc.’s motion to enforce the arbitrator’s decision and the final judgment entered pursuant to that order. We reverse the order granting the limited trial de novo and affirm the final judgment relating to Bath & Body Works.

The underlying facts of this case are clear. Mrs. Morgan was walking in the shopping center owned by General Growth Management, Inc. d/b/a Coastland Center Mall (the Mall). When she passed at or near the entrance to the Bath & Body Works store, she fell. The accident allegedly was caused by a substance on the floor. Mrs. Morgan sustained injuries as a result of the fall. The Morgans filed an action against the Mall, Bath & Body Works, and Southeast Service, the provider of janitorial services at Coastland Center Mall.

The trial court entered an order directing all the parties to participate in nonbinding arbitration pursuant to section 44.103, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.800. After a hearing, the arbitrator made a determination as to the percentages of fault of each party and the total amount to be awarded for Mrs. Morgan’s medical expenses, her noneconomic damages, and Mr. Morgan’s loss of consortium.

Only one of the defendants, Southeast Service, filed a timely motion-for a trial de novo pursuant to section 44.103(5). Southeast Service did not request a trial of all issues relating to it but, instead, requested a limited trial only as to the issue of liability. The trial court granted the relief as requested by Southeast Service. The Morgans assert that the order which granted the trial as to the issue of liability, but not as to damages found-by the arbitrator in the nonbinding arbitration, was improper. We agree with the Morgans’ assertions on this issue. Additionally, the Morgans claim that codefendant Bath & Body Works should be included in the trial de novo although neither they nor Bath & Body Works filed a motion for trial de novo. We find this argument unpersuasive.

On appeal, the Morgans first challenge the trial court’s ruling on Southeast Service’s unusual motion. This appeal presents an issue of first impression as to whether a party who has participated in nonbinding arbitration can limit a séction 44.103(5) trial de novo to encompass only the issue of liability as to that party but otherwise to enforce the decision of the arbitrator concerning the issue of damages.

Recent cases involving motions for trial de novo following nonbinding arbitration, although distinguishable, are instructive. In Bacon Family Partners, L.P. v. Apollo Condominium Ass’n, 852 So.2d 882 (Fla. 2d DCA 2003), a counterclaim had been filed by the Bacon Family Partners. Following a hearing, the arbitrator in the nonbinding arbitration awarded an injunction as requested by the condominium association and denied the claims for damages in the complaint and in the counterclaim. The Bacon Family Partners filed a motion for trial de novo only as to the arbitrator’s decision regarding the injunction and. the denial of its demand for damages in the counterclaim. The Bacon Family Partners did not request a trial de novo on the ruling in its favor denying the condominium association’s request for damages. The trial court noted that the motion for trial de novo was timely but struck the motion because of an alleged technical defect in the pleadings and because the counterclaim appeared to be nonviable.

While the appellate opinion addressed other aspects of the dispute between the Bacon Family Partners and the condominium association, this court specifically held that there was nothing in section 44.103 or rule 1.820 which supported a conclusion that the trial court had any discretion to deny a party’s timely motion for trial de novo. Id. at 888-89. The case was remanded “for a trial on the issues raised in the Bacon [Family Partners’] motion for trial.”

In Bacon Family Partners, this court’s concluding statement provided for a limited de novo trial on only those issues raised in the moving party’s motion. However, the ease is distinguishable because the Bacon Family Partners’ motion referenced separate causes of action, not the component parts of liability and damages of a single claim against a single defendant as in the present case. As the Fourth District stated in Johnson v. Levine, 736 So.2d 1235 (Fla. 4th DCA 1999):

[W]e can find nothing in section 44.103 that requires a trial on all issues against all defendants in a case having multiple and alternative claims against multiple defendants. Certainly there is nothing about the term trial de novo that suggests such a result. The phrase simply refers to a proceeding that begins anew, not to the range of the issues so tried.
Nothing in the structure and purpose of the statute purports to mandate an omnibus trial in a multi-issue, multi-party case where the adverse parties to discrete claims have failed to request a trial after non-binding arbitration.... Each claim by this plaintiff against each separate defendant stands alone and can be treated ... entirely separate from and alternative to the other claims.

Id. at 1239-40 (emphasis in original). See also Venetoff v. Papas, 732 So.2d 453 (Fla. 2d DCA 1999) (holding plaintiffs motion for trial de novo of award in counterclaim only, but not of damages awarded in main cause of action was not void and remanding for a trial de novo of both the main cause of action and the counterclaim). The request for trial de novo in the present case did not involve separate, discrete claims against Southeast Service but involved only one claim which it attempted to dissect into liability and damages.

The appellate standard of review is de novo when reviewing a trial court’s decision relating to a motion for trial pursuant to section 44.103. See Bacon Family Partners, 852 So.2d at 887-88. We hold that the trial court erred when it held that Southeast Service could restrict the trial de novo to the issue of liability only and bind the Morgans on the issue of damages.

The second issue raised by the Morgans questions the propriety of the trial court’s order which granted Bath & Body Works’ motion to enforce the arbitrator’s decision and the entry of final judgment as to that party.

After the time period for filing a motion for trial de novo had expired, the trial court granted Bath & Body Works’ motion and entered a final judgment affirming the decision of the arbitrator as to Bath & Body Works. A final judgment was entered which awarded money damages to the Morgans on their claims against this defendant only.

The Morgans argue that if a trial de novo is conducted, Bath & Body Works should be included as an active defendant in that trial. This argument is without merit. We note that the cause of action as to Bath & Body Works was a discrete claim in a multi-party action. Because neither Bath & Body Works nor the Morgans filed a motion for trial de novo, under the holdings of Venetoff, 732 So.2d 453, and Johnson, 736 So.2d 1235, the trial court properly entered judgment based upon the arbitrator’s decision as to that cause of action.

Accordingly, we affirm the final judgment entered in favor of the Morgans as to Bath & Body Works, reverse the trial court’s order granting Southeast Service’s motion for a limited trial de novo, and remand for trial on all issues between the Morgans and Southeast Service.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and COVINGTON, JJ„ Concur.