text:
    STATE of Florida, Petitioner, v. Alfredie STEELE, Respondent.
    No. 2D04-1049.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Candance M. Sabella, Assistant Attorney General, Tampa, for Petitioner.
    Bob Dillinger, Public Defender, Clear-water, and Joy Goodyear, Assistant Public Defender, Dade City, for Respondent.
   PER CURIAM.

The State seeks certiorari review of a pretrial order of the trial court. Alfredie Steele is charged with first-degree murder. Mr. Steele filed a pretrial motion to bar imposition of the death penalty on the ground that Florida’s capital sentencing procedure is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The trial court denied the motion but ordered the State to provide the defense with “adequate notice” of the aggravating factors that the State intended to submit and argue to the jury at any sentencing phase as a basis for the imposition of the death penalty. The trial court ordered the defense to schedule a hearing on the issues of the form, content, and timing of the required adequate notice. The trial court also announced that the jury would be required to complete an interrogatory verdict form specifying those aggravators which a majority of the jury had found proven beyond a reasonable doubt, together with a numerical breakdown of the jurors “for” and “against” each aggravator.

The State argues that this order departs from the essential requirements of law resulting in a miscarriage of justice. We agree that requiring the State to provide advance notice of the aggravators is a departure from the essential requirements of law, but we conclude that the State is not entitled to relief from the trial court’s order regarding the-verdict form.

In Vining v. State, 637 So.2d 921 (Fla.1994), the Florida Supreme Court held that because the aggravating factors to be considered in determining the propriety of a death sentence are limited to those set out in section 921.141(5), Florida Statutes (1987), there is no reason to require the State to notify defendants prior to trial or the penalty phase of the aggravating factors that it intends to prove. The United States Supreme Court’s decision in Ring does not affect the holding in Vining because Ring does not require the State to provide notice of aggravators. See Kormondy v. State, 845 So.2d 41, 54 (Fla.2003). Therefore, the trial court’s order requiring the State to provide notice of aggravators departs from the essential requirements of law. See State v. Richman, 861 So.2d 1195 (Fla. 2d DCA 2003); Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. 2d DCA 2003).

Regarding the verdict form, Florida law does not specifically prohibit a trial judge from using a special verdict form such as the one ordered here. Therefore, we conclude that the trial court’s order as to the special verdict form does not depart from the essential requirements of law.

Accordingly, we deny certiorari as to the portion of the order requiring the special verdict form. We grant certiorari as to the portion of the order requiring notice of aggravators and quash that portion of the order and remand for further proceedings consistent with this opinion.

Because this ruling could affect many cases that may ultimately be reviewed by the supreme court, we certify the following questions of great public importance to the supreme court so that it may review these issues at this time if it so chooses:

(1) DOES A TRIAL COURT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW, IN A DEATH PENALTY CASE, BY REQUIRING THE STATE TO PROVIDE PRE-GUILT OR PRE-PENALTY PHASE NOTICE OF AGGRAVATING FACTORS?
(2) DOES A TRIAL COURT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW, IN A DEATH PENALTY CASE, BY USING A PENALTY PHASE SPECIAL VERDICT FORM THAT DETAILS THE JURORS’ DETERMINATION CONCERNING AGGRAVATING FACTORS FOUND BY THE JURY?

Petition for writ of certiorari denied in part and granted in part; trial court order quashed in part and remanded for further proceedings.

ALTENBERND, C.J., and SILBERMAN and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    F. Annette MORRONI, Appellant, v. Marshall A. PEEPLES, Trustee of Winkler Extension/International Blvd. Land Trust Agreement II, and Spectra Properties, Inc., Appellees.
    No. 2D03-2552.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Ralph P. Richard of Law Office of Ralph P. Richard, Fort Myers, for Appellant.
    W. Gus Belcher, II, of Nuckolls, Johnson & Belcher, P.A., Fort Myers, for Appellee Peeples.
    No appearance for Appellee Spectra.
   VILLANTI, Judge.

F. Annette Morroni appeals the order dismissing her action against Marshall Peeples with .prejudice. Because the order dismissing Morroni’s action was entered based on a stipulation to which Mor-roni was not a party, we reverse.

On January 8, 2003, Morroni and a co-plaintiff, Spectra Properties, Inc., filed a complaint against Peeples seeking a declaratory judgment concerning the parties’ respective rights under a land trust agreement and seeking certain payments allegedly due to them under the agreement. Peeples filed a motion to dismiss, contending that the complaint failed to contain sufficient allegations to support a declaratory judgment action. The motion to dismiss contained no other basis for dismissal. On March 20, 2003, the trial court granted the motion to dismiss without prejudice and gave the plaintiffs leave to file an amended complaint “on or before June 10, 2003.”

In April 2003, Peeples and Spectra entered into a stipulation for a dismissal of Spectra’s claims with prejudice. Peeples submitted, the stipulation to the court along with a proposed “Order Dismissing Action with Prejudice.” This proposed order named both Morroni and Spectra as plaintiffs and stated that based on the stipulation, “this action” would be dismissed with prejudice. No distinction was made in the proposed order between Mor-roni’s claims and Spectra’s claims. Neither Morroni nor her attorney was advised of the negotiations- that resulted in the stipulation or of the stipulation itself, and neither was provided with a copy of the proposed order before it was submitted to the court. The trial court signed the proposed order on April 30, 2003.

On May 5, 2003, when counsel for Mor-roni received the signed order dismissing the action with prejudice, he wrote to counsel for Peeples, pointing out that the order did not reflect that the action was dismissed with prejudice only as to Spectra. The letter stated, in pertinent part, “Your proposed Order perhaps mistakenly caused the entire action to be dismissed with prejudice, including the claim of F. Annette Morroni who was not a party to your Stipulation and who has not agreed to a dismissal with prejudice of her claim.” Morroni requested that Peeples take steps immediately to correct the error to avoid the necessity of a motion for rehearing or an appeal. Peeples took no action in response to the letter, and Morroni filed this appeal on May 80, 2003.

On appeal, Morroni contends that the order dismissing the action with prejudice must be reversed because she was not a party to the stipulation that resulted in the dismissal. We agree. There is no question that Morroni is not bound by the stipulation between Spectra and Peeples because she was not a party to that stipulation. See, e.g., Dealers Ins. Co. v. Haidco Inv. Enters., Inc., 638 So.2d 127 (Fla. 3d DCA 1994) (holding that a surety could not be bound by the stipulation of its principal when the surety was not a party to the stipulation); State Road Dep’t v. Bramlett, 179 So.2d 137 (Fla. 1st DCA 1965) (holding that a lessee’s rights in a condemnation action could not be barred by a stipulation entered solely between the lessor and the government), reversed on other grounds, 189 So.2d 481 (Fla.1966); Postol v. Singer, 159 So.2d 243 (Fla. 3d DCA 1964) (holding that a stipulation between a plaintiff and one codefendant could not bar claims by a nonstipulating codefendant). Because the order dismissing the action with prejudice is premised solely on the stipulation between Spectra and Peeples, that order cannot bind Morroni or dispose of her claims.

Peeples seems to recognize this principle but argues that the dismissal should nevertheless be affirmed because Morroni had no standing to sue for a real estate commission in her own right. Peeples contends that section 475.42(l)(d), Florida Statutes (2002), requires any claim for a real estate commission to be brought by the broker, not the individual sales person. This argument has two flaws.

First, on a procedural level, this argument is improper on appeal because it was never raised in the trial court. Appellate courts generally will not consider issues or arguments raised on appeal that were not first made and ruled upon in the trial court. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999); Dober v. Worrell, 401 So.2d 1322, 1323-24 (Fla.1981). Here, Peeples never sought dismissal of Morroni’s complaint based' on section 475.42(l)(d). Instead, Peeples sought dismissal only on the issue of pleading defects in the complaint. Because Peeples never presented the issue of the applicability of section 475.42(l)(d) to the trial court, it is improper for him to raise the issue on appeal.

Second, on a substantive level, section 475.42(l)(d) does not bar Morroni’s action because her complaint does not seek a real estate commission. Rather, Morroni seeks a declaratory judgment concerning her rights to various payments allegedly due under the land trust agreement. Because the complaint seeks judicial interpretation of a contract between Morroni and Pee-ples, the dismissal of the action cannot be sustained on the basis of section 475.42(l)(d).

Here, the order dismissing- the action with prejudice improperly bars the claims of a plaintiff who was not a party to the stipulation upon which the dismissal was predicated. Accordingly, we reverse the order dismissing the action with prejudice as to Morroni and remand for whatever further proceedings Morroni chooses to pursue.

Reversed and remanded.

ALTENBERND, C.J., and STRINGER, J., concur.


author: SILBERMAN, Judge.

text:
    Elijah A. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-2944.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Elijah A. Smith, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Judge.

Elijah Smith was convicted of battery in the Charlotte County Court. He now seeks, pro se, certiorari review of the circuit court’s order dismissing his appeal of the conviction. Because Smith was not afforded procedural due process, we grant the petition and quash the circuit court’s order dismissing his appeal.

Smith appealed his county court battery conviction to the circuit court. On April 15, 2003, the circuit court rendered an order directing Smith to file an amended notice of appeal within fifteen days that identified the rendition date of the sentencing order and Smith’s address. On April 21, 2003, Smith filed a notice of address change because he had been transferred on April 9, 2003, from the Charlotte County Jail to the Central Florida Reception Center, a Department of Corrections (DOC) facility. The notice of address change requested the following:

Due to the processing delays and time of postal service I am requesting a copy of every Court proceeding or information that has been sent out to me in the last month (April) and late March. Please send any documents or information from March 26th to the present date, that may have allready [sic] been sent to me in case I have not recieved [sic] them.

On June 2, 2003, the circuit court entered an order dismissing Smith’s ■ appeal on the basis that Smith failed to comply with the April 15 order to file an amended notice of appeal. The dismissal order noted the following: (1) the April 15 order had advised Smith that if he did not comply with the order his appeal could be subject to dismissal without further notice; (2) the copy of the April 15 order mailed to Smith “was returned because he had moved with no forwarding address”; and (3) Smith had not filed a notice of address change, and the appellate file contained no other address for him. Thus, the circuit court concluded that Smith was “solely responsible for any lack of notice due to his own failure to keep this Court advised of his current address.”

Smith argues that the circuit court should not have dismissed his appeal because he did not receive a copy of the court’s April 15 order directing him to file an amended notice of appeal. He states that he filed a notice of address change reflecting his prison transfer, yet he never received the April 15 order. The State acknowledges that Smith had been transferred on April 9, 2003, and that Smith’s notice of address change was filed on April 21, 2003. The State also acknowledges that nothing in the records of the clerk’s office indicates that the April 15 order was forwarded to Smith in response to his April- 21 notice of address change. However, the State argues that Smith is not entitled to relief because he did not file his notice of address change until twelve days after he was transferred to the DOC facility; therefore, the failure to receive the April 15 order was his own fault.

In this certiorari review of an order of the circuit court sitting in its appellate capacity, our review is limited to whether the circuit court afforded procedural due process and observed the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Procedural due process requires fair notice and a real opportunity to be heard. Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth, 795 So.2d 940, 948 (Fla.2001); see also Massey v. Charlotte County, 842 So.2d 142, 146 (Fla. 2d DCA 2003). This court explained in Massey that “[procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests. It serves as a vehicle to insure fair treatment through the proper administration of justice where substantive rights are at issue.” Massey, 842 So.2d at 146 (citation omitted).

Based on the undisputed sequence of events, we conclude that Smith was not afforded procedural due process because the trial court dismissed his criminal appeal for failure to comply with an order that he had not received. When Smith was transferred to the DOC facility, he filed a notice of address change with the court. We cannot agree with the State that twelve days was an unreasonable delay in informing the court of the address change, especially in light of the fact that Smith sent the notice from a DOC facility and the court actually received the notice within twelve days of his transfer. Additionally, the April 15 order was returned undelivered due to Smith’s prison transfer, and it was not re-sent to his correct address. The dismissal order of June 2, 2003, incorrectly stated that Smith had not filed a notice of address change when, in fact, he had filed the notice on April 21, well before the circuit court entered its dismissal order.

Because Smith was not on notice that he was required to file an amended notice of appeal and that if he did not do so his appeal would be subject to dismissal, the circuit court’s dismissal of Smith’s criminal appeal denied him procedural due process. Accordingly, we grant the petition for writ of certiorari, quash the dismissal order, and direct that the circuit court allow Smith to file an amended notice of appeal that complies with the order of April 15, 2003.

FULMER and COVINGTON, JJ., Concur.


author: PER CURIAM.

text:
    Lynne NOACK, Harry Noack, and Noack and Associates Insurance and Financial Services, Inc., Petitioners, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.; Florida Combined Life Insurance Company, Inc.; Florida Combined Agency, Inc.; and Health Options, Inc.; Affiliated Insurance of Pensacola, Inc.; and Mark Tubbs, Respondents.
    No. 1D04-1178.
    District Court of Appeal of Florida, First District.
    April 28, 2004.

      Michael J. Pugh of Levin, Tannenbaum, Wolff, Band, Gates & Pugh, P.L., Sarasota, for petitioners.
    No appearance for respondents.
   PER CURIAM.

Petitioners seek certiorari review of an order of the circuit court denying their motion seeking leave to amend their complaint to plead a prayer for punitive damages in connection with their fraud claim. Pursuant to Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995), certiorari will lie to inquire into the question of whether the trial court followed the procedural requirements of section 768.72, Florida Statutes, in disposing of petitioners’ motion, but it may not serve as a vehicle to review the sufficiency of the evidence supporting the trial court’s decision that a reasonable basis for the recovery of punitive damages had not been shown. Petitioners, however, make no claim that the procedural requirements of section 768.72 were not followed, and in any event, certio-rari is not available to review the denial of a motion to add a claim for punitive damages because an adequate remedy exists by way of appeal. See Estate of Esterline v. Avante at Leesburg, Inc., 845 So.2d 1028 (Fla. 5th DCA 2003); Sloan v. Toler, 778 So.2d 1094 (Fla. 3d DCA 2001).

Alternatively, petitioners seek mandamus relief to compel the trial court to grant their motion, asserting that its ruling is contrary to the law of the case as established in an earlier appeal in this matter. However, because an adequate remedy can be afforded on plenary appeal if the trial court did indeed err, mandamus relief is likewise unwarranted. See Wuesthoff Memorial Hospital, Inc. v. Florida Elections Commission, 795 So.2d 179 (Fla. 1st DCA 2001). Moreover, our conclusion in Noack v. Blue Cross and Blue Shield of Florida, Inc., 859 So.2d 608 (Fla. 1st DCA 2003), that sufficient issues of material fact existed to preclude summary judgment on petitioners’ fraud claim does not establish the law of the case concerning punitive damages, since that issue was neither expressly nor impliedly resolved in our prior decision. See Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). The conventional analysis utilized in resolving a summary judgment motion has no application in the context of a punitive damages determination under section 768.72. See Will v. Systems Engineering Consultants, Inc., 554 So.2d 591 (Fla. 3d DCA 1989). Whether the entitlement to plead a claim for punitive damages has been established must be determined under the procedure and standards set forth in the statute, and our finding in the earlier appeal that respondents failed to establish that there is no material issue of disputed fact concerning the fraud claim is not the equivalent of petitioners establishing a reasonable evidentiary basis for punitive damages. See Potter v. S.A.K. Development Corporation, 678 So.2d 472 (Fla. 5th DCA 1996).

For the foregoing reasons, the petition for writ of certiorari or, alternatively, for writ of mandamus is DENIED.

KAHN, BENTON and VAN NORTWICK, JJ., concur.


author: KAHN, J.

text:
    INTERNATIONAL TRUCK AND ENGINE CORPORATION, and Ward International Trucks, Inc., Petitioners, v. CAPITAL TRUCK, INC., Michael Pitts, and Mark Thomas, Respondents.
    No. 1D03-4025.
    District Court of Appeal of Florida, First District.
    April 28, 2004.

      Bruce Culpepper and Robert J. Telfer, III, of Akerman Senterfitt, Tallahassee, and John Beranek and Robert N. Clarke, Jr., of Ausley & McMullen, Tallahassee, for Petitioners.
    Robert A. Bass of Myers & Fuller, Tallahassee and Thomas F. Panebianco, Tallahassee, for Respondents.
   KAHN, J.

Petitioners, International Truck and Engine Corp. (ITEC) and Ward International Trucks, Inc. (Ward), seek review of a Department of Highway Safety and Motor Vehicles (DHSMV) non-final order abating further action on administrative causes of action filed by both the petitioners and respondents in this case. We have jurisdiction to review non-final administrative orders where “review of the final agency action would not provide an adequate remedy.” See § 120.68(1), Fla. Stat. (2001); Fla. R.App. P. 9.190(b)(2). For the reasons stated below, we quash the challenged order and remand for further proceedings.

Background,

In March 2001, ITEC and Ward entered into an agreement giving Ward franchise rights to sell and service International trucks in Tallahassee. At that time, Respondent, Capital Truck, Inc. (Capital), through its principals, Michael Pitts and Mark Thomas, claimed ownership of ITEC franchise rights in Tallahassee. For purposes of this opinion, we need not discuss the complicated factual background of Capital’s claim.

In order to bring its franchise rights into fruition, Ward needed to obtain a dealership license from DHSMV. ITEC recognized that under section 320.642(8), Florida Statutes (2001), “An existing franchised motor vehicle dealer or dealers [meeting certain geographical conditions] shall have standing to protest a proposed additional or relocated motor vehicle dealer where the existing motor vehicle dealer or dealers have a franchise agreement for the same line-make vehicle to be sold by the proposed additional or relocated motor vehicle dealer.... ” Accordingly, ITEC filed an action for declaratory relief in Leon County Circuit Court on April 19, 2002. ITEC sought a ruling that Capital held no ITEC franchise rights. A week later, ITEC also filed a verified complaint with DHSMV essentially seeking an agency statement to the same effect.

In January 2003, ITEC filed a Notice of Intent to establish Ward as its Tallahassee dealership. DHSMV entered a final order awarding Ward a license on February 4, 2003. Shortly thereafter, Capital filed a “Petition or Complaint Protesting Establishment of Dealership.” In turn, DHSMV vacated the final order awarding Ward a license and referred Capital’s action to the Division of Administrative Hearings where Administrative Law Judge Barbara Staros (ALJ) consolidated the action with ITEC’s pending matter. Without objection, both administrative actions were held in abeyance pending the outcome of the circuit court declaratory relief action.

On May 19, 2003, the circuit court entered an order finding that Capital “is not entitled to any rights and privileges ... as a dealer that is the holder of a motor vehicle franchise.” The order thus extinguished any rights claimed by Capital under section 320.642(3). After the circuit court order, ITEC sought a summary final order in the consolidated administrative cases. Additionally, Ward filed a motion asking the ALJ to remand the case to DHSMV for entry of a final order dismissing Capital’s complaint. Capital filed a response to ITEC’s and Ward’s motions requesting that the actions remain abated pending the disposition of its appeal of the circuit court summary judgment.

On June 16,- 2003, the ALJ issued an order closing the case files and relinquishing jurisdiction to DHSMV. After noting that each of the parties had filed pleadings which acknowledged that resolution of the circuit court case would resolve the issues in the administrative cases, the ALJ’s order concluded:

Having reviewed the Final Summary Declaratory Judgment, the motions and responses of the parties, and it appearing that the Circuit Court, by exercising its concurrent jurisdiction, disposed of the issues herein, it is
ORDERED:
That jurisdiction is relinquished in the above styled cases to the Department of Highway Safety and Motor Vehicles for appropriate disposition and the files of the Division of Administrative Hearings are closed.

Capital filed exceptions to the ALJ’s order on June 24, 2003, which were followed by ITEC’s response on July 2, 2003. On July 25, 2003, ITEC filed a Motion for Expedited Final Order citing lost business opportunities. Finally, DHSMV entered the order now on review, finding that further action would not be appropriate until the disposition of Capital’s appeal to this court. DHSMV’s order contained no findings of fact or statements of law or policy supporting its conclusion that it would not be appropriate to rule on the parties’ consolidated cases.

Analysis

ITEC and Ward filed their petition for review in this ease pursuant to section 120.68(1), Florida Statutes (2003). Generally, an appellate court’s scope of review in such a case “is analogous to and no broader than the right of review by common law writ of certiorari.” Eight Hundred, Inc. v. Dep’t of Rev., 837 So.2d 574, 575 (Fla. 1st DCA 2003) (quoting Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995)). Under that standard, the petitioners would have to show that DHSMV departed from the essential requirements of law, thereby causing irreparable harm that could not be remedied on appeal of DHSMV’s final order. See id. However, “the appellate courts are free to disagree with an agency on a point of law.” Id. Where the agency’s action is founded upon an erroneous interpretation of the law, the appellate court may set that action aside. See id.

Section 120.68(7)(d) directs reviewing courts to set aside agency action or remand for further proceedings where the agency act is “[o]utside the range of discretion delegated to the agency by law” or violates a “constitutional or statutory provision.” An agency action that is arbitrary stands outside the range of discretion delegated to the agency for purposes of review under section 120.68. As this court has stated, “[T]he general rule in Florida [is] that an agency’s exercise of delegated legislative authority will not be disturbed on appeal unless shown by a preponderance of the evidence to be arbitrary, capricious, or an abuse of administrative discretion.” Island Harbor Beach Club, Ltd. v. Dep’t of Natural Res., 495 So.2d 209, 218 (Fla. 1st DCA 1986). The question we thus face is whether the DHSMV order abating the action exceeded the agency’s discretion or was arbitrary.

The sole finding, if it can be characterized as such, by DHSMV here was that abatement would be “appropriate ... pending the decision of the First District Court of Appeal.” This action came in the face of an order issued by the ALJ that can only be viewed as reflecting the ALJ’s conclusion that the final summary declaratory judgment entered by the circuit court resolved any issue between the parties then pending for administrative determination. As ITEC had stated in an unopposed motion previously filed before the ALJ, “[R]esolution of the Leon County action will resolve the issues in this administrative action.” For that reason, the ALJ had, upon the agreement of the parties, held the administrative matters in abeyance pending the outcome of the circuit court case. Consistently, the ALJ determined, after the judgment in the circuit court action, that the DOAH file should be closed, there being no issue remaining for resolution.

As a reason for abating the action, rather than concluding the action, DHSMV noted the pending appeal before this court. In our view, however, DHSMV completely overlooked the fact that at no point had respondents sought a stay of the circuit court order. Because 'the only operative effect of the circuit court order would be to allow ITEC and Ward to move forward with their plan to establish Ward as ITEC’s Tallahassee dealer, the effect of DHSMV’s action here is to grant a stay to respondents. Respondents have not, however, complied with Florida Rule of Appellate Procedure 9.310(a) requiring that “a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” The appeal to this court notwithstanding, until the circuit court or this court imposes a stay on the circuit court’s final order, that order is in effect, and controls. See, e.g., Greenberg v. Carlisle, 481 So.2d 106 (Fla. 4th DCA 1986). Accordingly, a Florida judgment in a separate maintenance action is enforceable in another state under the full faith and credit clause of the federal constitution, despite a showing that an appeal is being prosecuted from the Florida circuit court decree. See Maner v. Maner, 412 F.2d 449 (5th Cir.1969). Thus, until stayed by an appropriate order, the circuit court’s decision that respondents enjoy no franchise rights with ITEC is final. The agency’s action here, without explanation or basis in law, denied petitioners the benefit of the final order.they had already obtained.

We also determine that review of final agency action would not suffice in this case. Despite prevailing in the circuit court, Ward is not free to engage in the sales and servicing of- International trucks until DHSMV issues a final order. In the meantime, ITEC has no distributor for its products in the Tallahassee area, and Ward is- delayed - and frustrated in its attempt to obtain a dealership license.

We have observed that economic deprivation resulting from a non-final order by a State agency may well result in an injury or loss that would “not necessarily be recoverable in the event petitioner is ultimately successful in its administrative challenge.” Nat'l Freight, Inc. v. State Dep’t of Transp., 483 So.2d 742, 743 n. 1 (Fla. 1st DCA 1986). Thus, a non-final order of the Department of Transportation refusing renewal of certain licenses was treated by this court as immediately reviewable under section 120.68(1) because “final agency action would be inadequate.” Id. at 742. Moreover, a final appeal would rarely, if ever, remedy the damage caused by an unjustified abatement. The very nature of the damage caused by the abatement here is delay, with the attendant loss of the immediate enjoyment of rights to which the challenging party would otherwise be entitled.

At oral argument, counsel for respondents seemed- to suggest that perhaps the circuit court action did not resolve all issues pending between the parties. We can find nothing in the appendices filed by the parties before this court that would support such a conclusion. In her order, the ALJ quoted from each of the parties’ pleadings to show agreement that the decision in the circuit- court case would control the outcome of the administrative actions. These assertions were primarily unopposed, because they were offered in support of an abatement of the administrative actions pending the circuit court decision. Respondent Capital asserted that the circuit court action “is pending and will determine whether the dealer [Capital] is, in fact, entitled under Florida law to recognition as the authorized dealer for International vehicles in Tallahassee.” According to documents filed by both sides in the administrative action, the DHSMV proceeding was brought in an “abundance of caution.” Although not expressly stated, the AL J’s relinquishment of jurisdiction to DHSMV for “appropriate disposition” could only be reasonably interpreted as a recommendation that the matter was, in fact, over and that the agency would resolve the matter favorably to petitioners.

For the reasons ■ stated herein, we QUASH the Order Abating Action and RE1\ÍAND the case- to DHSMV for proceedings consistent with this opinion.

BARFIELD and HAWKES, JJ., concur.


author: HAWKES, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-0769.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    J. Bruce Hoffmann and Gene T. Sellers; Dept, of Revenue, Tallahassee, for Appellant.
    Richard A. Patterson; Unemployment Appeals Commission, Tallahassee, for Ap-pellee.
   HAWKES, J.

The Department of Revenue appeals a final order of the Unemployment Appeals Commission (UAC) granting unemployment benefits to William Condon. The Department argues Condon is not qualified to receive unemployment benefits, because he resigned his employment after entering a negotiated agreement in settlement of his collateral PERC action. We agree and reverse.

By final action letter dated August 1, 2001, the Department discharged Condon for a second occurrence of disruptive conduct. Following his termination, Condon filed for unemployment benefits and, shortly thereafter, challenged his termination with PERC. In order to resolve the PERC claim, Condon and the Department entered into a stipulated settlement agreement. The agreement provided, in part, that Condon would be allowed to resign from his employment with the Department instead of being terminated.

The UAC concluded the agreement had no impact on Condon’s rights to collect unemployment benefits based on section 443.041(1), Florida Statutes (2000), which, in pertinent part, provides:

(1) WAIVER OF RIGHTS VOID — Any agreement by an individual to waive, release, or commute her or his rights to benefits or any other rights under this chapter shall be void.

Clearly, if Condon and the Department had entered into an agreement, the purpose of which was for Condon to waive his rights under chapter 443, Florida Statutes, the UAC would be correct. The agreement would be void and have no impact on Condon’s rights to collect unemployment benefits. However, the parties’ purpose in entering into this agreement was to avoid any potential adverse results from the pending PERC claim. Each party derived a benefit they concluded was valuable by entering the agreement. As consequence of the negotiated agreement the Department would be prevented from stating it terminated Condon, and Condon would be permitted to voluntarily resign his employment.

The rule is clear. Employees who voluntarily resign from employment without good cause attributable to the employer are not entitled to unemployment compensation benefits. See, e.g., § 443.101(1)(a)1., Fla. Stat. (2002); Yarabothu v. Unemployment Appeals Comm’n, 721 So.2d 379 (Fla. 5th DCA 1998); Quick v. N. Cent Fla. Cmty. Mental Health Ctr., 316 So.2d 301 (Fla. 1st DCA 1975). Because Condon voluntary resigned his employment, he is not entitled to unemployment compensation. Condon’s disqualification is a collateral consequence, not the primary purpose, of the negotiated agreement. The UAC’s conclusion to the contrary is clearly erroneous. The award of unemployment benefits is REVERSED.

DAVIS and VAN NORTWICK, JJ., CONCUR.


author: POLEN, J.

text:
    Leonard DEPAOLA, Appellant, v. The TOWN OF DAVIE, Florida, Appellee.
    No. 4D03-519.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.

      Gene Reibman, Fort Lauderdale, for appellant.
    Michael T. Burke, Erin E. Gill, and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

This case stems from Leonard DePaola’s termination from the Town of Davie Fire Department and his subsequent lawsuit alleging violation of his constitutional rights. DePaola appeals a final judgment dismissing his complaint with prejudice. For the reasons outlined below, we reverse the final judgment and remand the case to the trial court for proceedings consistent with this opinion.

Leonard DePaola was employed by the Town of Davie Fire Department in 1986. He was terminated on June 30, 2000. De-Paola complained he was wrongfully discharged. After his termination, DePaola initially filed a grievance with the fire chief. Ultimately DePaola was advised that he was not entitled to a grievance. DePaola requested that the union take the grievance to arbitration. No such action was taken. Two years after getting no relief through grievance procedures, De-Paola filed a complaint in the circuit court seeking declaratory and injunctive relief.

In response to the complaint, the Town filed a motion to dismiss alleging that De-Paola had an option: either he could have pursued a grievance under the collective bargaining agreement or he could have elected to challenge' his termination at a personnel review board. The Town contended that by initially electing to file the grievance, DePaola could not subsequently pursue alternate relief in the circuit court. The Town further argued that regardless of which option DePaola elected, he was not entitled to seek de novo review in the circuit court.

The trial court agreed with the Town and held that since DePaola pursued a grievance under the collective bargaining agreement, he was prohibited from bringing an appeal before the personnel board. Moreover, the court concluded that DePao-la was not entitled to a de novo review but was limited to an administrative appeal or certiorari review. The complaint was dismissed and DePaola’s motion for rehearing denied.

On appeal DePaola contends the trial court improperly dismissed the complaint. DePaola asserts that the Town violated his due process rights. As a result, DePaola contends his cause of action, based on a violation of his constitutional rights, was properly brought in circuit court and should ■ not have been dismissed. We agree. This court has recently summarized the applicable standard of review of an order dismissing a complaint as follows:

In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.

Walton v. Health Care Dist. of Palm Beach County, 862 So.2d 852 (Fla. 4th DCA 2003) (internal quotations omitted).

Initially we hold that DePaola did have a protected interest in his employment that entitled him to due process protections. In discussing the constitutional due process rights of public employees, the fifth district summarized the issue clearly:

An individual may, in a public employment context, establish entitlement to procedural due process under the United States and Florida Constitutions, by showing a property interest in his or her position. The concept of a property interest has been defined by the United States Supreme Court as a legitimate expectation of continued employment. Such legitimate expectations of continued employment establishing property interests are not created by the United States Constitution, rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law. Consequently, [the appellant] had to sufficiently allege a property interest in his position under Florida law in order to establish his entitlement to any procedural due process safeguards.

McRae v. Douglas, 644 So.2d 1368 (Fla. 5th DCA 1994) (internal citations and quotations omitted).

In McRae, the fifth district concluded that McRae had no protected property interest in his -employment as a deputy sheriff because:

deputy sheriffs in Florida are not deemed to be employees of the sheriff, but rather, are appointees who serve at the pleasure of the sheriff. Because deputy sheriffs are not employees and both their selection and retention come under the absolute control of the sheriff, they have' no property interest in their positions for purposes of the Fourteenth Amendment to the United States Constitution.

Id. at 1873.

Unlike McRae, DePaola alleged the applicable Town ordinances established that he could not be terminated absent just cause. Those allegations, for purposes of the motion to dismiss, have to be accepted as true and the allegations considered in the light most favorable to DePaola. De-Paola’s employment with the Town of Da-vie is unlike McRae’s because DePaola was not an appointee and his employment could not be terminated arbitrarily. As a result, DePaola had a property interest in his continued employment with the Town and was entitled to due process protections. See also Metro. Dade County v. Sokolowski, 439 So.2d 932 (Fla. 3d DCA 1983)(Police officers who, under Miami Dade ordinance could not be suspended or dismissed without cause had a property interest in uninterrupted employment and were therefor entitled to due process protections.); Johnson v. Sch. Bd. of Palm Beach County, 403 So.2d 520 (Fla. 1st DCA 1981) (“Without question appellant, by virtue of his tenure, had a legitimate claim of entitlement to continued employment absent sufficient cause for his discharge, and therefore had a property interest in his continued employment of which he could not be deprived without procedural due process meeting constitutional standards.”).

In addition, the trial court improperly dismissed the claim because DePaola sought money damages. The trial court found that an action for money damages could not be brought. The trial court relied on Garcia v. Reyes, 697 So.2d 549 (Fla. 4th DCA 1997) and Fernez v. Calabrese, 760 So.2d 1144 (Fla. 5th DCA 2000). In Garcia, this court concluded that no cause of action exists for money damages for a violation of a state constitutional right. Similarly, Calabrese was an action seeking money damages based on a wrongful termination complaint.

The case at bar is distinguishable from Garcia and Calabrese. Here DePaola sought injunctive relief. At the conclusion of DePaola’s lengthy complaint he asked the trial court for the following relief:

1. render a declaratory judgment pursuant to 86.011 Fla. Stat. That the plaintiff was unlawfully terminated from his employment with the Town of Davie Fire Department;
2. render a declaration judgment pursuant to s.86.011 Fla. Stat. That the plaintiff was in the course of and due to his termination from his employment denied his right to free association with others; to equal protection of the law; to due process of law; to engage in protected union activity; and, to privacy in his personal relationships as all guaranteed by Article I, s.s. 2,6,9, and 23 of the Constitution of the State of Florida.
3. direct the defendant to restore the plaintiff to is former employment with full retroactive status, seniority, pay and benefits, including accrued retirement credit and benefits;
4. direct the defendant to remove from plaintiffs personnel file all documents relating to plaintiffs unlawful termination from his employment with the Town of Davie Fire Department.
5. award plaintiff the costs of this action and a reasonable attorney’s fee pursuant to s. 448.08 Fla. Stat., and,
6. award to plaintiff such other and further relief the court may deem just and proper.

Long ago this court noted that the test of the sufficiency of a complaint seeking relief under the Declaratory Judgment Act “is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n, 210 So.2d 750 (Fla. 4th DCA 1968).

In Hialeah this court commented that the Declaratory Judgment Act should be liberally construed and administered and explained that an action properly brought under the act requires “a bona fide controversy, justiciable in the sense that it flows out of some definite and concrete assertion of right, and there should be involved the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought.” Id. at 753.

In the case sub judice the complaint clearly seeks relief under the authority conferred to the trial court in section 86.011, Florida Statutes. That statutory section provides:

The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.

§ 86.011, Fla. Stat.

Although some of the relief sought in DePaola’s complaint asks the trial court for more than declaratory relief, section 86.011 specifically permits claimants to seek alternative or supplemental relief within an action seeking declaratory relief.

Further, at this stage in the proceedings, where the court must not go beyond the four corners of the complaint and must accept the facts alleged therein as true and draw all reasonable inferences in favor of DePaola, the trial court should have found that the complaint stated a cause of action. The issue of whether the Town violated his due process rights is a bona fide controversy. In addition, it is justiciable in the sense that it flows out of a definite and concrete assertion of DePaola’s due process rights, and the parties have adverse interests. As a result, the claim meets the standard enunciated by this court in Hialeah for an action properly brought seeking declaratory relief.

We also find the trial court improperly dismissed the claim based on section 447.401, Florida Statutes. Section 447.401 provides in pertinent part:

All public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures.

The trial court concluded that since De-Paola sought relief through the grievance procedure, he was precluded from seeking relief before the personnel board. In fact, the trial court commented that because DePaola elected the grievance route, “[h]e was—He was had. He never got his day, so to speak, of having someone determine that his firing was with or without good cause.” The trial court should not have determined the merits of DePaola’s wrongful discharge claim on a motion to dismiss.

As the plain language of the statute instructs, “[A] career service public employee who is also a union member may contest a disciplinary action taken by his or her employer either through the union or by filing a civil service appeal, but may not pursue both avenues for relief.” Bass v. Dep’t of Transp., 516 So.2d 972, 973 (Fla. 1st DCA 1987).

Section 447.401, Florida Statutes, provides that “[a]ll public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization.” § 447.401, Fla. Stat. (emphasis added). This court has clarified that, “where the parties collective bargaining agreement reserves to the certified bargaining agent the exclusive right to submit grievances to arbitration, a public employer is not obligated to process an individual’s grievance to arbitration if the certified bargaining agent has declined to advance the grievance because of its belief that the grievance lacks merit.” Galbreath v. Sch. Bd. of Broward County, 424 So.2d 837, 843 (Fla. 4th DCA 1982).

Thus, had the Town not processed the grievances to arbitration because it was determined that the grievance had no merit, the Town would have acted properly. However, the allegations of the complaint were that the grievances were altogether not processed at all. As a result, DePaola should not be precluded from seeking alternate relief. Moreover, the cases relied upon by the trial court, as well as the Town, are categorically distinguishable. All three cases involve situations where the claimant elected to pursue relief through one mechanism, the procedures took place, and after not getting the relief sought, the claimant attempted to pursue the alternative avenue. See Bass v. Metro. Dade County Dept. of Corr. and Rehabilitation, 798 So.2d 835 (Fla. 3d DCA 2001) (Claimant not entitled to bring independent action in circuit court to challenge termination after instituting and fully pursuing her civil service administrative remedies); Fraternal Order of Police v. City of Miami, 598 So.2d 89 (Fla. 3d DCA 1992) (Circuit court could not hear complaint once issue proceeded to arbitration through grievance process.); Metro. Dade County v. Dade County Ass’n of Firefighters, 575 So.2d 289 (Fla. 3d DCA 1991) (Firefighter’s appeal of his discharge through civil service appeal procedure precluded him from seeking any relief by arbitration under grievance procedure.).

The trial court also incorrectly concluded that DePaola would be limited to an administrative appeal or certiorari review, not a de novo action in the circuit court. We recognize the unique posture of this case and the difficult task before the trial court. If the union decided to go forward with the grievance procedure, there would be an arbitration and then the matter would come to this court to affirm or vacate. In the alternative, if DePaola had chosen to pursue the civil service avenue, the civil service board would render a decision and then DePaola could have filed a petition for writ of certiorari.

In this case, there is no administrative order that could be the subject of certiora-ri review. As a result, the peculiar posture of this case distinguishes it from the cases relied upon by the trial court and we hold that the complaint was improperly dismissed.

In Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982), this court explained that an action seeking injunctive relief could not be maintained because the claimant failed to exhaust his administrative remedies. The same can not be said in the case at bar. The other cases pointed to by the trial court for its conclusion that DePaola is not entitled to de novo review are also distinguishable. See, e.g., City of Miami Springs v. Barad, 448 So.2d 510 (Fla. 3d DCA 1983) (Claimant submitted himself to and fully utilized administrative review procedures and received a quasi-judicial hearing before the Civil Service Board on his claim of wrongful demotion; he is not entitled to a de novo hearing in the circuit court, but instead must institute an appropriate proceeding in the circuit court, sitting in its appellate capacity.).

A dismissal with prejudice should not be ordered without giving the party an opportunity to amend unless it is clear the pleading cannot be amended so as to state a cause of action. Delia & Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla. 4th DCA 1984). Because it is not clear that DePao-la could not have amended the complaint to state a cause of action, the trial court improperly dismissed the complaint with prejudice. Therefore, we reverse that order and remand the case to the trial court for proceedings consistent with this opinion.

REVERSED and REMANDED.

WARNER and KLEIN, JJ., concur.


author: MAY, J.

text:
    Jack BLAINE, Appellant, v. Thais BLAINE, Appellee.
    No. 4D03-254.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.
    Steven Cripps of Orsley & Cripps, P.A., West Palm Beach, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   MAY, J.

The former husband appeals Qualified Domestic Relations Orders entered subsequent to the final judgment of dissolution. He argues that the QDROs are not in accord with the provisions of the final judgment. We agree and reverse.

The trial court entered the QDROs to give effect to the equitable distribution scheme set out in the final judgment. The orders gave the former wife an interest in the former husband’s Unisys Pension Plan and Unisys Corporation Supplemental Executive Retirement Income Plan, respectively. Upon reviewing the QDROs, the Unisys Plan Administrator discovered that the orders resulted in adverse tax consequences. The former wifé’s certified public accountant conferred with the plan administrator and revised orders were prepared.

The former husband still maintained the amended QDROs failed to conform to the dictates of the final judgment. The court conducted a hearing on the dispute, but then entered the proposed amended QDROs. It is from these amended QDROs that the former husband appeals.

The final judgment awarded the former wife one-half of the marital portion (35%) of the former husband’s pension plan. The QDROs, however, provided:

C) ...
The benefits payable to the Alternate Payee [former wife] shall include future improvements, cost of living adjustments, or early retirement subsidies and must begin no later than the date the participant commences payment.
Once the Alternate Payee begins to receive benefits she will not be entitled to share in any Plan improvements or other benefits updates which are effective after the date payments begin, except for any cost of living adjustments....

Thus, the QDROs provided the former wife with more than her yearly percentage of the pension plan. They provided her with future improvements, cost of living adjustments, and early retirement subsidies. None of these were contained within the final judgment.

In Downey v. Downey, 843 So.2d 932 (Fla. 4th DCA 2003), this court reversed a QDRO that had awarded the former wife a portion of the former husband’s pension plan earned prior to the marriage. This court recognized that a retirement pension must be viewed as a marital asset, but only the marital portion may be equitably distributed. See Bogard v. Bogard, 490 So.2d 43 (Fla.1986).

Similarly, the Fifth District reviewed an award of fifty percent of the former husband’s pension to the former wife in Howerton v. Howerton, 491 So.2d 614 (Fla. 5th DCA 1986). The court noted that if the husband continued to work for the same employer, the pension would increase allowing the wife to share in benefits accruing subsequent to the dissolution. The court found this to be “improper” and reversed the award. Id. at 615.

The QDROs in this case suffer from a similar defect. To the extent that they provide future enhancements in the pension fund that were not part of the marital portion, they conflict with the final judgment. The orders are reversed and the case remanded to the trial court for entry of a QDRO in compliance with the final judgment of dissolution.

REVERSED AND REMANDED.

STEVENSON and SHAHOOD JJ., concur.

      . This court recently affirmed the final judgment of dissolution. Blaine v. Blaine, 869 So.2d 716 (Fla. 4th DCA 2004).


author: STEVENSON, J.

text:
    EDE PROPERTIES, INC. and Edward D. Eckert, Appellants, v. Bernhard ECKERT, Appellee.
    No. 4D03-3231.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.
    Richard A. Kupfer of Richard A. Kup-fer, P.A., West Palm Beach, and Mark Osherow, P.A., Boca Raton, for appellants.
    Joseph B. Heimovics and Thomas U. Graner of Graner Root & Heimovics, P.A., Boca Raton, for appellee.
   STEVENSON, J.

EDE Properties, Inc. and Edward Ec-kert, appellants, challenge an order wherein the trial court found that it did not have jurisdiction to award “additional damages” in favor of appellants nearly a year after entry of final judgment in the case. We affirm.

This appeal arises out of a business dispute between a father, Bernhard Eckert, and a son, Edward Eckert. Edward Ec-kert is the sole shareholder of EDE Properties, Inc. In two separate loans, EDE Properties borrowed more than $800,000 from Bernhard Eckert. The first loan was in the amount of $540,000 and secured by a mortgage on property in Coconut Creek. The second loan was in the amount of $341,900 and secured by a mortgage on the same property in Coconut Creek and also by a mortgage on property in Deerfield Beach.

Subsequently, EDE Properties and Edward Eckert (hereinafter collectively referred to as EDE Properties) sued Bern-hard Eckert. The complaint alleged that EDE Properties had contracted for the sale of the Coconut Creek property. As a consequence of the sales contract, EDE Properties sought an estoppel letter from Bernhard Eckert requesting loan pay-off information. The complaint alleged that the lender refused to provide this information, thereby precluding the sale of the property. Moreover, according to the complaint, Bernhard Eckert had made representations to the would-be buyer that, in fact, he was the true owner. Based upon these allegations, EDE Properties sought monetary damages, alleging causes of action for tortious interference (count I); breach of statutory duty to provide pay-off information (count II); and slander of title (count TV). Additionally, in count III, EDE Properties sought injunc-tive relief, requesting that the court (1) preclude Bernhard Eckert from interfering with the sale of the property and (2) either compel Bernhard Eckert to provide the pay-off information and estoppel letter or, in the alternative, judicially establish the amounts.

Shortly after the filing of the complaint, EDE Properties filed a motion for temporary injunctive relief in the form of an order compelling Bernhard Eckert to provide the estoppel information. The trial court granted the motion for temporary injunctive relief and entered an order directing Bernhard Eckert to provide the estoppel information within five' days. Subsequently, EDE Properties served a motion for contempt and attorney’s fees, pointing to Bernhard Eckert’s failure to provide the pay-off information despite the trial court’s order. The trial court granted the request for attorney’s fees and issued an order directing Eckert to show cause why he should not be held in contempt. There is nothing in the record indicating that the matter was addressed further or that Bernhard Eckert was actually held in contempt of court for his failure to provide the information.

Approximately six months later, in January 2002, the trial court entered final judgment on the complaint in the amount of $336,616.16 on EDE Properties’ claims for damages resulting from Bernhard Eckert’s failure to provide the pay-off information. In the final judgment, the court reserved jurisdiction to award fees, costs, and “future damages” that might be incurred. The final judgment was silent as to the claim for injunctive relief.

In December 2002, nearly a year after entry of the final judgment, EDE Properties filed a motion styled “Plaintiffs Motion to Compel and/or to Determine Es-toppel Information for Closing and for Contempt.” In the motion, EDE Properties requested that the court compel Bern-hard Eckert to provide the pay-off information for the mortgage secured by the Deerfield Beach property or, alternatively, to judicially determine the amount of payoff. EDE Properties also sought to have Bernhard Eckert held in contempt for his failure to comply with the earlier order directing him to provide the pay-off information.

The following month, January 2003, EDE Properties filed a motion seeking the award of “additional damages” that it allegedly suffered with respect to both the Coconut Creek and Deerfield Beach properties as a consequence of Bernhard Ec-kert’s failure to provide the mortgage payoff information. These “additional damages” included, but were not limited to, the following: (1) some $409,712 in additional mortgage payments; (2) legal fees, costs and a settlement incurred in a suit styled, Brenner Equities Group, Inc. v. EDE Properties, which resulted when the contract for the sale of the Coconut Creek property fell through; (3) additional legal fees and costs incurred in the case before the court; and (4) the interest lost on what would have been the proceeds of the sale of the Coconut Creek property. In seeking this relief, EDE Properties acknowledged that the January 2002 judgment had been executed upon and satisfied, but pointed to the reservation of jurisdiction in the final judgment as a basis to award these damages.

The trial court denied both motions and held that it did not have jurisdiction to adjudicate the motion for additional damages nor the motion to determine estoppel information since the January 2002 final judgment had been satisfied. We believe that the trial court was correct. Here, once the judgment was satisfied, it was no longer subject to amendment. See Morris N. Am., Inc. v. King, 430 So.2d 592 (Fla. 4th DCA 1983). Further, the August 2000 temporary injunctive order requiring that Bernhard Eckert provide the pay-off information merged into the January 2002 final judgment. See Skinner v. Skinner, 579 So.2d 358, 359 (Fla. 4th DCA 1991)(“ ‘The general rule of procedure is that all provisional or interlocutory proceedings in a cause are merged in, and disposed of, by the final decree therein.’ ”)(quoting Duss v. Duss, 92 Fla. 1081, 111 So. 382 (1926)); see also Adoption Hot Line, Inc. v. State, Dep’t of Health & Rehabilitative Servs., Dist. XI ex rel. Rothman, 385 So.2d 682, 684 n. 2 (Fla. 3d DCA 1980)(“A temporary injunction is clearly not conclusive; its provisions may be merged in, or dissolved by, the final decree.”). Count III of the complaint sought an injunction from the court requiring the appellee to provide the pay-off information. The final judgment failed to address the injunctive relief claim and EDE Properties took no steps to ensure that it did.

Having considered all issues raised and finding them to be without merit, we affirm the order on review.

WARNER and GROSS, JJ., concur.

      . Bernhard Eckert did not appear for the trial that resulted in the final judgment.


text:
    Mikael JOHANSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3785.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING/CLARIFICATION

PER CURIAM.

We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following.

This is an appeal from the circuit court’s denial of appellant’s petition for writ of mandamus compelling the state attorney’s office to comply with appellant’s public records request.

Appellant was convicted of aggravated battery. The information charged that the victim had suffered “great bodily harm, permanent disability or permanent disfigurement” caused by appellant “throwing a cup of bleach in his eyes.”

Appellant filed a public records request with the state attorney’s office seeking lab reports and medical records regarding the victim’s injury. Appellant’s request noted that the state’s discovery response in the criminal case listed lab reports and medical records.

The state’s unsworn response to the mandamus petition conceded that its discovery submission listed Dr. Lieberman of the Coral Springs Medical Center and “lab report, medical report(s), lab report, as mentioned in the police reports.” The response indicated that the assistant state attorney who had prepared the discovery submission reviewed her office’s file and did not find any lab or medical reports. The state argued that it did not possess the requested records and that the mandamus petition should be denied. The circuit court adopted the state’s response and denied the motion.

We agree with appellant that the circuit court erred in not conducting an evidentia-ry hearing, including an in-camera inspection of the state attorney’s file, on the contested issue of whether the state had the requested reports in its possession.

At the hearing, the trial court may consider and rule on arguments that the records are covered by exemptions from disclosure.

Reversed and remanded for an eviden-tiary hearing.

STONE, WARNER and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Marvin JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5066.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.

      Charles G. White and Maria L. Sachs of Sachs, Augspurger, White & Associates, Boca Raton, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Marvin Jenkins appeals his conviction of two counts of sexual battery. We reverse the conviction and remand for a new trial. The trial court erred by failing to grant Jenkins’s request for a continuance in order to present the testimony of two witnesses. ..These, witnesses would testify that the victim had told them that the sexual encounter with Jenkins had been voluntary and it was only after Jenkins refused to pay for the consensual sex that she decided to make a claim that she had been raped. During cross examination, the victim denied she had made such contradictory statements.

Jenkins’s theory of defense was that the victim had consented to have sex with him and that the only reason she claimed to have been raped was because he did not pay her. Carolyn and Keshara Griffin were deposed' by the state and were subpoenaed for trial by the defense; however, because their car broke down they were unable to get to,the courthouse as scheduled. The trial court refused to continue the proceedings to allow Jenkins’s counsel to secure their appearance. The trial court also refused to allow introduction of their depositions and rejected the defense counsel’s request to take their testimony by telephone. Jenkins argues that the trial court’s refusal to grant a continuance constituted an abuse of discretion. We agree.

There are few rights more fundamental than the right of an accused to present witnesses in his or her own defense. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In order to prevail in a motion for continuance, the defendant must show: (1) prior due diligence to obtain the witnesses’ presence; (2) that substantially favorable testimony would be forthcoming; (3) that the witnesses were available and willing to testify; and (4) that the denial of the continuance caused material prejudice. See United States v. O’Neill, 767 F.2d 780, 784 (11th Cir.1985); Smith v. State, 762 So.2d 929, 931 (Fla. 4th DCA 2000), review denied, 786 So.2d 1188 (Fla.2001). In the instant case, each of the elements necessary for a continuance to be granted was present. Jenkins had placed the two witnesses under subpoena and the reason for the delay in appearing at trial was as a result of developing car trouble. The two witnesses would provide favorable testimony for Jenkins’s defense that the sexual encounter was consensual. In addition, the witnesses were available and willing to testify. Failure to grant the continuance to permit these witnesses to testify clearly caused material prejudice to Jenkins. We find that the trial court abused its discretion and therefore reverse the conviction and remand for a new trial.

REVERSED AND REMANDED.

WARNER and GROSS, JJ., concur.


text:
    Curtis J. TILLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3229.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Curtis J. Tillman, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, (Ft.Lauderdale), for appellee.
    Before SCHWARTZ, C.J., and SHEVIN, and WELLS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Due to the State’s proper confession of error, we vacate the sentence imposed and remand for resentencing the defendant under the 1994 sentencing guidelines.


author: ERYIN, J.

text:
    Sandra CHAPMAN, Appellant/Cross-Appellee, v. NATIONSBANK and Royal & Sunalliance Insurance, Appellees/Cross-Appellants.
    No. 1D02-4338.
    District Court of Appeal of Florida, First District.
    April 30, 2004.

      Randy- Ellison, Jupiter, for Appellant/Cross-Appellee.
    Joshua M. Levy, Bay Harbor Islands, for Appellees/Cross-Appellants.
   ERYIN, J.

Claimant, Sandra Chapman, appeals from a final workers’ compensation order denying her motion to appoint an expert médical advisor (EMA) pursuant to section 440.13(9), Florida Statutes (1997), and the employer/carrier (E/C), Nationsbank and Royal & Suiialliance Insurance, cross-appeals, urging that because the judge of compensation claims (JCC) decided that claimant had made a false, fraudulent or misleading statement for the purpose of obtaining benefits, in violation of section 440.105(4)09, Florida Statutes (Supp.1998), the JCC erred in refusing to dismiss the entire claim, as required by section 440.09(4), Florida Statutes (Supp.1998). We reverse and remand as to the issues raised in both appeals.

Claimant, who had an extensive prior history of mental depression, was diagnosed in 1998 with carpal tunnel syndrome. The E/C accepted the condition as compensable and authorized treatment for it. One of her physicians, hand surgeon Michael Russin, opined that she was ■ at maximum medical improvement (MMI) on May 17, 1999, with a two percent permanent-impairment rating (PI) to her whole body. Another physician, orthopedist Kenneth Easterling, consulted by claimant for a second opinion, stated she was at MMI on May 17, 1999, with a five percent PI.

During the summer of 1998, following her employment injury, claimant resumed seeing a number of unauthorized mental consultants, including a psychotherapist and two psychiatrists, who were generally provided a complete history of her preexisting mental condition, and who diagnosed her with major depression. Thereafter, claimant obtained an independent medical examination (IME) with another psychiatrist, Dr. Gregg Friedman, who, based on an incomplete psychiatric history, diagnosed claimant with major depression, which he causally -related to the carpal tunnel syndrome. After being advised of critical omissions in the material provided him, Dr. Friedman considered the new information and nonetheless replied that his original opinion remained unchanged. The E/C then obtained an IME of claimant with psychiatrist Neil Edison, who, after being informed of claimant’s complete medical background, concluded that she suffered from major depressive disorder which was not causally related to the workplace injury. In his opinion, claimant’s preexisting psychological illness was the major contributing cause (MCC) of her depression.

Because of thé disagreement between physicians, first, as to the degree of claimant’s anatomic impairment rating, and second, as to whether claimant’s industrial injury was the MCC of her depressive condition, claimant filed motions for the appointment of an orthopedic EMA and a psychiatric EMA. The JCC denied both. As to the former, the JCC apparently based her rejection on the fact that Dr. Easterling, who opined a five percent impairment rating, was not a hand specialist, as was Dr. Russin, nor a treating physician, but he was rather consulted for a second opinion. The JCC’s reason for denying the request for a psychiatric EMA was that she rejected Dr. Friedman’s opinion of a causal relationship, because he had been furnished with an inaccurate history; therefore, his examination “at its worst [was] tainted, at its best it [was] completely unreliable.” The JCC erred as to both conclusions.

Section 440.18(9) on its face clearly mandates the appointment of an EMA in situations in which a conflict occurs between expert medical opinions:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, ... the division may, and the judge of compensation claims shall ... order the injured employee to be evaluated by an expert medical advis- or.

(Emphasis added.) The JCC does not have the authority to resolve conflicts between physician opinions once the claimant has requested an EMA. If there is conflict or contradiction on any material aspect of the experts’ medical or psychological opinions, the JCC must appoint an EMA. See, e.g., Horticulture Plus, Inc. v. Ash, 791 So.2d 535 (Fla. 1st DCA 2001) (reversing denial of motion for EMA, for the reason that appointment of an EMA is mandatory when there are conflicting medical opinions regarding causation); City of Inverness v. Volmar, 768 So.2d 1253 (Fla. 1st DCA 2000) (reversing denial of motion for EMA, because the experts’ testimony was contradictory on a material element).

The disagreement in the opinions of the physicians as to the degree of orthopedic impairment is clearly established in the record. The reasons the JCC gave for declining to appoint an EMA. to resolve the conflict are contrary to the statute’s requirements. See Martinez v. Healthsouth Doctor’s Hosp., 817 So.2d 1080, 1081 (Fla. 1st DCA 2002) (reversing denial of motion for EMA, observing: “The JCC’s finding that there is no conflict in the medical testimony is unsupported by the record, which indicates clear disagreement regarding the fact of permanent impairment.”).

Similarly, the denial of the request for a psychiatric EMA cannot be justified on the basis that the JCC disagreed with and rejected the contrary opinion of an expert. Regardless of the JCC’s disbelief as to the value of his opinion, Dr. Friedman adamantly refused to alter that opinion after being apprised of the true nature of claimant’s prior condition. As such, his evaluation, counterpoised with that of Dr. Edison, constituted by law a “disagreement in the opinions of the health care providers,” dictating appointment of an EMA.

In its cross-appeal, the E/C asserts that the JCC erred in awarding claimant impairment benefits for her carpal tunnel syndrome, because once the JCC found that claimant had misrepresented her psychiatric condition, the provisions of section 440.09(4) required her to dismiss the entire claim. It is not clear from our examination of the order whether the JCC found that claimant had violated section 440.105(4)(b). In rejecting the E/C’s fraud defense, the JCC commented “that even though misrepresentations may have been made relating to the psychiatric condition,” such fact was irrelevant to claimant’s right to receive impairment benefits. Earlier in her order rejecting Dr. Friedman’s opinion of a causal connection, the JCC explained that she did so because claimant misled and misrepresented “various issues” during her examination.

When she decided this case, the JCC did not have the benefit of our opinion construing the statute in CDL v. Corea, 867 So.2d 639 (Fla. 1st DCA 2004) (observing that if claimant’s false and misleading statements were made knowingly, he would forfeit his right to all benefits pursuant to section 440.09(4)). On remand, we direct the JCC to clarify, either on the record before her, or on the basis of additional evidence, if necessary, whether claimant knowingly or intentionally made false, incomplete or misleading statements concerning material facts for the purpose of obtaining benefits. If so, consistent with this court’s decision in CDL, “the JCC should rule that the statements fall within the scope of section 440.105(4)(b)l.” Id. at 640.

REVERSED and REMANDED.

BOOTH, J., and SMITH, Senior Judge, concur.

      . Section 440.09(4) provides in part:
      An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims ... determines that the employee has knowingly engaged in any of the acts described in s. 440.105 for the purpose of securing workers' compensation benefits.

      . Section 440.105(4)(b) 1. states it is unlawful for anyone "[t]o knowingly make, or cause to be made, any false, fraudulent, or misleading ... statement for the purpose of obtaining ... any benefit or payment under this chapter.”


text:
    Patricia NAIL, Appellant/Cross Appellee, v. Steven H. NAIL, Appellee/Cross Appellant.
    No. 1D03-1077.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Christopher L. Craun, Lake City, for Appellant/Cross Appellee.
    M. Blair Payne, of Darby, Peele, Bow-doin & Payne, Lake City, for Appel-lee/Cross Appellant.
   PER CURIAM.

Patricia Nail appeals, and Steven Nail cross-appeals, a final judgment of dissolution. We reverse in part and remand for further proceedings.

The record supports the trial court’s findings that the stock and interest in cattle, if any, were non-marital assets. The trial court also did not abuse its discretion in awarding Patricia Nail a portion of her attorney’s fees.

The final judgment ordered the 401K account to be divided equally as of the date the actual distribution takes place, irrespective of the value on the valuation date, to take into account equal risks and rewards of fluctuations in value. Although the amount distributed to Steven Nail should take into account any passive increases or decreases in his share, the trial court’s distribution fails to account for any contributions made to the account after the valuation date or even after entry of the judgment of dissolution and any passive accumulations on such contributions.' On remand, the trial court should set the date at which this asset is to be valued and provide for consideration of any passive increases or decreases from the valuation date until the actual date of distribution in Steven Nail’s share.

In awarding lump sum alimony, the trial court failed to include any findings regarding the factors in section 61.08, Florida Statutes, other than the duration of the marriage. The final judgment also does not contain any of the findings of fact required in section 61.075, Florida Statutes. Without the required findings of fact, we cannot adequately review the lump sum alimony award.

We reverse in part and remand for entry of the required findings of fact. The trial court may, in its discretion, take any additional evidence necessary to fulfill its obligation to make the required factual findings.

BARFIELD, KAHN, and HAWKES, JJ., concur.


text:
    Mario M. McCORVEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3033.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal of a sentence imposed following revocation of community control, the appellant claims that the trial court erred when it sentenced him to the lowest permissible sentence under the Criminal Punishment Code after expressing the erroneous belief that it could not consider as reasons for a downward departure any factors that were not specifically enumerated in section 921.0026, Florida Statutes (2003). The appellant is correct; the statutory mitigating circumstances are not exclusive. See § 921.0026(2), Fla. Stat. (2003); see also e.g., State v. VanBebber, 848 So.2d 1046, 1048 (Fla.2003); State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002).

We do not reach the question of whether the non-statutory reasons proffered by the appellant would have been sufficient to support a downward departure. Nonetheless, the trial court sentenced the appellant “under a misconception about its discretion in sentencing.” Hines v. State, 817 So.2d 964, 965-66 (Fla. 2d DCA 2002). Because we are unable to determine from this record whether the trial court would have imposed a downward departure if it understood that it was allowed to consider non-statutory factors, we reverse the appellant’s sentence and “remand for the trial court to reconsider the sentence in light of its discretion to depart if the facts so warrant.” Id.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Jeffery Lamar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5560.
    District Court of Appeal of Florida, First District.
    April 30, 2004.

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

Appellant seeks review of a final order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking postconviction relief. We affirm the summary denial as to seven of the nine grounds raised by appellant without further discussion. However, because the trial court’s order does not conclusively show that appellant is entitled to no relief on two of the grounds raised, we are constrained to reverse the summary denial as to them, and to remand for further proceedings.

The trial court’s order failed entirely to address a portion of one claim, which asserted that trial counsel had been ineffective because he failed to have appellant speak at trial, so that the victim might hear his voice. According to appellant, had counsel done so, the victim (who was unable to identify appellant in court as her attacker) would have testified, that appellant’s voice was not that of her attacker. Those allegations were legally sufficient, and the trial court should have addressed them.

The trial court also denied a claim that trial counsel had been ineffective because he failed to have appellant display his tattooed arms to the jury. According to appellant, the victim had testified that her attacker had no tattoos on his arms. The trial court concluded that this was a reasonable trial tactic because, had trial counsel done so, he would have forfeited the right to first and last closing arguments, and subjected appellant to cross-examination. “[A] finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.” E.g., Robinson v. State, 637 So.2d 998, 999 (Fla. 1st DCA. 1994) (citations omitted). Moreover, we note that the trial court’s assumption that simply displaying appellant’s tattoos to the jury would have forfeited first and last closing arguments and subjected appellant to cross-examination is erroneous' as a matter of law. See, e.g., Whittington v. State, 656 So.2d 1346, 1347 (Fla. 1st DCA 1995) (“a display of tattoos is not testimonial in nature,” and does not subject the defendant to cross-examination) (citing Macias v. State, 515 So.2d 206 (Fla.1987)).

We reverse the summary denial of the two grounds addressed in this opinion, and remand for further proceedings. If the trial court determines that summary denial of these two grounds is appropriate, it shall attach to its order portions of the record that conclusively show appellant is entitled to no relief. Otherwise, it shall hold a hearing. We affirm the summary denial of the remaining grounds asserted in’ appellant’s motion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KÁHN, WEBSTER and BROWNING, JJ., concur.


text:
    Paul W. SMITH, Appellant, v. Marilyn SMITH, Appellee.
    No. 1D03-2866.
    District Court of Appeal of Florida, First District.
    May 4, 2004.

      Mark Hulsey, III, of Mark Hulsey, P.A., Jacksonville, for Appellant.
    Robert W. Elrod, Sr., Jacksonville, for Appellee.
   PER CURIAM.

In this dissolution case, appellant, Paul Smith, challenges imputation of income to his salary as well as awards of retroactive child support and bridge-the-gap alimony to appellee, Marilyn Smith. Because the record does not contain evidence to support two of these aspects of the Final Order, we reverse and remand for proceedings consistent with this opinion. We find no abuse of discretion in the alimony award.

A trial court’s imputation of income' is reviewable for abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). To impute income pursuant to section 61.30(2)(b), Florida Statutes (2003), “the trial judge must find that the parent owing a duty of support has the actual ability to earn more than he or she is currently earning, and that he or she is deliberately refusing to return to work at that higher capacity to avoid support obligations.” Stebbins v. Stebbins, 754 So.2d 903, 907 (Fla. 1st DCA 2000). Here, the only evidence regarding this issue was appellant’s speculation that he would “suspect it’s possible” in other states to earn more income. Such speculation is not competent substantial evidence. See Undercuffler v. Undercuffler, 798 So.2d 867, 869 (Fla. 4th DCA 2001) (holding that the trial court erred in imputing income to the husband where he testified that he “hoped” he could earn as much as $40,000 per year); see also Stein v. Stein, 701 So.2d 381, 382 (Fla. 4th DCA 1997) (holding that the trial court >erred in imputing income where record failed to demonstrate that any special circumstance existed to support imputing income in an amount that husband had never earned and which record indicated he could not presently earn). The record contains no competent evidence to support the court’s finding that appellant was deliberately underemployed and capable of earning more income. We therefore reverse the imputation of income.

The Smiths had two children. From 1985, when the 'oldest child was an infant, until 1998, when Mr. Smith went to Oklahoma to pursue his education, the family lived with Mr. Smith’s mother in Jacksonville. After Mr. Smith left, Mrs. Smith and the children remained in the grandmother’s home. Until at least August 2001, the grandmother paid for virtually all the needs of the Smith children, specifically including food, shelter, and private school education. The record reflects that beginning in August 2001, after the Smith’s separated, Mrs. Smith began contributing toward her children’s needs. The trial court ordered child support retroactive from the date of the final hearing to two years before Mrs. Smith filed for dissolution, a time spanning July 25, 2000, through April 2003.

Ás with imputation of income, we review the trial court’s award of retroactive child support under the abuse of discretion standard. Bardin v. State, 720 So.2d 609, 611 (Fla. 1st DCA 1998). A court may award retroactive child support where the children have needs and the parent has the corresponding ability to pay. Id. at 611-12. Here, however, ap-pellee presented no affirmative evidence that the children needed child support before August 2001, or that appellant had the ability to pay during that time period. Cf. Kelley v. Kelley, 678 So.2d 369, 370 (Fla. 1st DCA 1996)(reversing the amount of an award of retroactive child support because the trial court failed to properly determine the ability of the parents to pay and the needs of the child); Sumlar v. Sumlar, 827 So.2d 1079, 1082 (Fla. 1st DCA 2002) (holding that the trial court did not abuse its discretion by awarding retroactive child support for children who were taken care of by a grandparent and the parent reimbursed the grandparent). Here, appellant’s mother provided for the children during the first thirteen months of retroactive child support, just as she had done for their entire lives. The children did not want, nor did appellee incur any obligation to reimburse her mother-in-law. The trial court therefore abused its discretion in awarding support for the period of time. We find no abuse of discretion, however, in the award of retroactive child support commencing at the point where Mrs. Smith began to provide for the children’s needs in August 2001.

We reverse those portions of the order imputing income to appellant and awarding retroactive child support from July 25, 2000, to August 2001. On remand, the trial court must recalculate the amount of retroactive child support for the appropriate period and without imputation of income.

ALLEN, KAHN and POLSTON, JJ., concur.


text:
    Leslie G. ASH, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-1095.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Archie Hayward, Jr., Esquire, Florida Rural Legal Services, Inc., Ft. Myers, for Appellant.
    Geri Atkinson-Hazelton, General Counsel; John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Leslie Ash appeals the order of the Unemployment Appeals Commission which, determined that she was ineligible to receive unemployment compensation benefits. We reverse.

■ When Interstate Brands Corporation, her employer, discharged her from a job at the bread store where she had worked for almost ten years, Ms. Ash applied for unemployment compensation benefits. A claims examiner found her eligible but an appeals referee ruled otherwise, after hearing her testimony and that of Michael Douglas Kirkland, a retail sales manager for Interstate Brands. The appeals referee made the following findings of fact:

The claimant was employed as a lead clerk from August 22, 1994, through September 12, 2002. The claimant was responsible for stocking the store, taking orders and doing light cleaning. The claimant was scheduled to start work at approximately 8:00 a.m. until close. The claimant left the job site at approximately 2:15 p.m. to go to the bank. The claimant became ill and telephoned the job site to tell the other employee she would not be back until later in the day. The claimant returned to the store at approximately 6:15 p.m. and did inventory. The claimant left the job site after 8:00 p.m. when she had worked all of the hours she was absent earlier in the day. The claimant completed her time card prior to leaving the job site at 2:15 p.m. Company policy states that a time card is not to be completed prior to the hours worked. The claimant gave her time card to the employee that submits time with it signed as having worked the hours as indicated on the time card. The claimant’s supervisor was aware of the fact that the claimant was absent from the job site for the majority of the afternoon and had no knowledge of the claimant working after hours. The claimant was not authorized to work after the store had closed. The claimant’s time card did not reflect the hours that were worked due to it being submitted in her absences [sic] to payroll. The claimant was discharged for falsifying her time card.

Based on these findings, the appeals referee concluded that Ms. Ash’s actions constituted misconduct as defined in section 443.036(29), Florida Statutes (2002), and ordered that unemployment benefits be denied. The Unemployment Appeals Commission affirmed.

The Commission and the appeals referee erred in concluding that Ms. Ash engaged in “misconduct” disqualifying her for unemployment compensation benefits. Section 443.036(29), Florida Statutes (2002), provides:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

“In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee.” Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000).

“Whether an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria set out in the unemployment compensation statute are separate issues. See Cooks v. Unemployment Appeals Comm’n, 670 So.2d 178, 180 (Fla. 4th DCA 1996); Livingston v. Tucker Constr. & Eng., Inc., 656 So.2d 499, 500 (Fla. 2d. DCA 1995); Hummer v. Unemployment Appeals Comm’n, 573 So.2d 135, 137 (Fla. 5th DCA 1991).” Lusby v. Unemplmt. App. Comm’n, 697 So.2d 567, 568 (Fla. 1st DCA 1997). A single, isolated act of negligence does not constitute disqualifying misconduct. See, e.g., Cooks, 670 So.2d at 180; Johnson v. Unemplmt. App. Comm’n, 513 So.2d 1098, 1099 (Fla. 3d DCA 1987). “While a violation of an employer’s policy may constitute misconduct, ‘[rjepeated violations of explicit policies, after several warnings, are usually required.’ Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001).” Cooksey-James v. Unemplmt. App. Comm’n, 869 So.2d 1209 (Fla. 2d DCA 2004).

In Seger v. Danner Construction Co., 611 So.2d 82 (Fla. 2d DCA 1992), an employee was warned when he failed to show up for work one Saturday and terminated when he was absent again the following Saturday, without notifying the employer beforehand. While the Second District concluded that the employee was guilty of poor judgment, it also concluded that the poor judgment did not rise to the level of misconduct. We reach a similar conclusion with regard to the actions of Ms. Ash in the instant case.

Her failure to correct her timecard was understandable in light of the fact that making corrections was impossible by the time she returned to the store, because the cards had been removed by then. The only departure from company policy proven was in filling the timecard out before the whole day had been worked. Ms. Ash came back to the store and made up the hours she had missed due to her illness.

“[T]he conduct complained of was, at most, an isolated incident of poor judgment that did not rise to a level of ‘misconduct,’ as the claimant was not acting willfully, wantonly, or in substantial disregard of the employer’s interest. See §§ 443.036(29), 443.101, Fla. Stat. (2001); McKnight v. Florida Unemployment Appeals Comm’n, 713 So.2d 1080 (Fla. 1st DCA 1998);, Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37 (Fla. 3d DCA 1996); Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995); Smith v. Krugmam-Kadi, 547 So.2d 677 (Fla. 1st DCA 1989), review denied, 558 So.2d 20 (Fla.1990); Erber v. Federal Express Corp., 409 So.2d 522 (Fla. 5th DCA 1982).” Cohen v. Unemplmt. App. Comm’n, 868 So.2d 664 (Fla. 3d DCA 2004).

REVERSED AND REMANDED.

WEBSTER and BENTON, JJ., concur; ALLEN, J., concurs in result only.

      . The findings of fact of the appeals referee are supported by competent, substantial evidence except that the referee's finding that appellant knowingly violated a store policy by working after hours is contradicted by Ms. Ash’s testimony that she was unaware of such a policy. The employer offered no evidence to the contrary. Thus, there was no evidence on which to base a finding that the employee knowingly violated this policy.


text:
    Frederick LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3507.
    District Court of Appeal of Florida, First District.
    May 4, 2004.

      Frederick Lane, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction.

DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.