author: SHARP, W., J. COBB, Senior Judge,

text:
    Felicia FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3421.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied March 21, 2003.

      Barbara Twine-Thomas of Stewart, Joyner & Jordan-Holmes, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Fisher appeals from an order holding her in contempt for failure to make restitution payments and from an order denying her motion to vacate the restitution order which was the basis for the contempt order. We reverse both orders.

These orders were rendered in connection with a juvenile delinquency proceeding involving Fisher’s daughter, T.F. T.F., age thirteen, was charged with burglary and arson, after she and two other girls broke into a vacant house and set it on fire. The house burned to the ground. T.F. and Fisher both signed an affidavit of indigency and a public defender was appointed for T.F.

On August 19, 1999, T.F. pled no contest, was adjudicated delinquent and placed in a Level 4 program. Fisher, as well as the public defender, were present. The amended order rendered after the delinquency hearing and sentencing states: “Restitution, parents responsible also, reserved right to restitution hearing to determine amount.” This was the first notice or statement by the judge or the state that Fisher was to be held personally liable for restitution.

The restitution hearing was held on January 28, 2000. An employee of the Lake County Property Appraiser’s Office testified the house was owned by Jeffrey and Belinda Richardson and in 1999, it had a total assessed value of $30,461 (land valued at $19,800 and the house at $10,661). Other witnesses testified it would cost $5,200 to demolish the house and $95,160 to replace it. Belinda Richardson testified her father lived in the house until he died in December 1996, and after that time the house was vacant. However, she testified the house contained antique furniture and other contents she valued at $25,000.

Fisher testified she was familiar with the house. It had been abandoned, some of the downstairs windows lacked window panes, and rats, racoons or snakes could be in the house. Additional testimony was apparently taken from Fisher that she is a single parent and earns $45,000 a year. Fisher told the judge that with her income of $17.00 per hour, she could not afford to pay restitution for the house.

On February 1, 2000, the judge entered an order requiring Fisher to pay restitution in the amount of $25,861 ($5,200 for demolition, $10,000 for the contents of the house, and $10,661 for the house structure). He directed Fisher to pay $250 per month.

Fisher questioned the propriety of the restitution order at a February 22, 2001 hearing, and the court minutes reflect “the mother is ordered to pay.” On February 26, 2001, Fisher wrote a letter to the judge disputing the amounts used to calculate restitution. She had information the property was in a dilapidated state and had been the subject of notices of code violations. She also disputed anyone would have left valuable antiques in a house in such condition. The judge treated the letter as a motion for rehearing and summarily denied it.

On May 15, 2001, a different judge issued an order directing Fisher to show cause why she should not be held in contempt for failure to pay restitution. A contempt hearing was held. Fisher apparently had paid $1,485 but then stopped making payments. She testified she is a registered nurse, earning $21 an hour. She rents her home and has legal custody of two grandchildren, ages three and four. She had $2,000 in a savings account. The judge held her in contempt and sentenced her to thirty days in jail with a purge provision of $500. She spent a month in jail. In August 2001, Fisher retained private counsel.

The state again petitioned for a rule to show cause why Fisher should not be held in contempt for failure to pay restitution.

A hearing ensued before the second judge on November 1, 2001. At that hearing, Fisher’s defense counsel filed a motion to vacate the restitution order, arguing it was void ab initio because Fisher had not been properly noticed that she could be held personally liable for restitution in her daughter’s case, and the court failed to make a finding (or take any testimony which would support such a finding) that Fisher had failed to make diligent and good faith efforts to prevent T.F. from engaging in delinquent acts, pursuant to section 985.231(9), Florida Statutes. The judge denied relief on the ground that “parental diligence” was a defense Fisher had to establish and that this was not an element the state had to prove in order for the court to impose an order of restitution on a parent for the acts of a delinquent child.

The court then took evidence concerning Fisher’s ability to pay the restitution amount. It found she had the ability to pay $250 per month as set forth in the prior order. On December 21, 2001, the court rendered an order holding Fisher in contempt and sentenced her to six months in jail, with a purge provision of $250. In another order rendered on the same date, it denied Fisher’s motion to vacate the original restitution order. She appeals from both orders in this proceeding.

We conclude that the court improperly imposed restitution on Fisher without making the findings required by section 985.231. This statute provides:

(l)(a) The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing:
5. Require the child and, if the court finds it appropriate, the child’s parent or guardian together with the child, to render community service in a public service program.
6. As part of the probation program to be implemented by the Department of Juvenile Justice, or, in the case of a committed child, as part of the community-based sanctions ordered by the court at the disposition hearing or before the child’s release from commitment, order the child to make restitution in money, through a promissory note cosigned by the child’s parent or guardian, or in kind for any damage or loss caused by the child’s offense in a reasonable amount or manner to be determined by the court.... A finding by the court, after a hearing, that the parent or guardian has made diligent and good faith efforts to prevent the child from engaging in delinquent acts absolves the parent or guardian of liability for restitution under this subparagraph.
7.Order the child and, if the court finds it appropriate, the child’s parent or guardian together with the child, to participate in a community work project, either as an alternative to monetary restitution or as part of the rehabilitative or probation program.
9. In addition to the sanctions imposed on the child, order the parent or guardian of the child to perform community service if the court finds that the parent or guardian did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts. The court may also order the parent or guardian to make restitution in money or in kind for any damage or loss caused by the child’s offense. The court shall determine a reasonable amount or manner of restitution, and payment shall be made to the clerk of the circuit court as provided in subpara-graph 6. (emphasis added)

Restitution was imposed on Fisher pursuant to subsection (9) quoted above, since it was not being ordered in connection with a probation program or a community based sanction but rather as part of the sanctions initially imposed on T.F. The language in subsection (6) is different than in subsection (9), lending itself somewhat to the judge’s interpretation, that it is a defense a parent must establish to escape from sanctions, although we do not address that issue in this case.

Subsection (9) requires the court to find that the parent or guardian did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts before ordering a parent or guardian to perform community services. As we held in B.M. v. State, 744 So.2d 505 (Fla. 5th DCA 1999), although the next sentence in subsection (9) permitting the court to impose restitution on a parent or guardian does not expressly require a similar finding, such a required finding is implied from the structure of the statute. Accord J.C.R. v. State, 785 So.2d 550 (Fla. 4th DCA 2001). Holding a parent vicariously liable for a child’s harmful or delinquent acts is a departure from the common law, and statutes imposing such liability should be construed narrowly.

In this case, no finding was made that Fisher failed to make a diligent and good faith effort to prevent T.F. from engaging in the delinquent act involved in this case or any other. Nor was any evidence presented concerning Fisher’s parenting efforts. In B.M., we noted there were procedural problems with how and when such a hearing should be held pursuant to section 985.281, and whether a parent or guardian would be entitled to state representation at such a hearing. We simply remanded to the trial court to conduct a hearing.

Since that time, the juvenile rules have been amended to remedy our procedural due process concerns when the state seeks restitution or other sanctions against parents or guardians of delinquent children. See Fla. R. Juv. P. 8.040, 8.030, 8.031. Effective January 1, 2001, the rules provide that the state must file and serve a petition on the parents or guardians in cases where restitution or other sanctions are sought against them. The petition must set forth facts to establish the appropriateness of imposing sanctions on them, and service must occur 72 hours before the hearing concerning imposition of the sanctions.

The state argues that even if a “diligence and good faith hearing” was not held in this case and the statute required it, Fisher should have raised that issue in a direct appeal and that since she did not do so she has waived this defect. Thus the validity of the restitution order has become the law of the case. Normally what the state argues would be true, if the judgment being collaterally attacked was not void. See Cesaire v. State, 811 So.2d 816 (Fla. 4th DCA 2002)(person cannot be compelled to obey a void order); Synchron, Inc. v. Kogan, 757 So.2d 564 (Fla. 2d DCA 2000)(disobedience of a void order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter and parties, is not “contempt”); In re Elrod, 455 So.2d 1325 (Fla. 4th DCA 1984)(a court does not have contempt powers to enforce violations of its orders if they are rendered without jurisdiction over the subject matter or the parties or transcend its power or authority).

Fisher argues that the restitution order is void because the court did not acquire personal jurisdiction over her. She was never served with process in her daughter’s case nor was there any pleading directed at her to put her on notice she could be held personally liable for a restitution order in her daughter’s delinquency case. However, a party can make a voluntary appearance and submit to the jurisdiction of a court even where the party is not served with process. Manufacturers National Bank of Detroit v. Moons, 659 So.2d 474 (Fla. 4th DCA 1995); McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA 1976); § 985.219(1), Fla. Stat. Fisher appeared numerous times before the court and even challenged the merits of the restitution order. Thus she may have submitted herself to the jurisdiction of the court. See Hall v. State, Department of Health and Rehabilitative Services, 487 So.2d 1147 (Fla. 1st DCA 1986).

However, there is another fatal defect in these proceedings — lack of notice — -and thus it follows, lack of due process. See Wolf v. Department of Health and Rehabilitative Services, 588 So.2d 335 (Fla. 5th DCA 1991). Fisher was not a party to her daughter’ juvenile proceeding. She appeared only in her capacity as a concerned parent and possible witness. There were no pleadings or allegations which could have put her on notice that the state would seek restitution against her personally, prior to the August 19, 1999 hearing, which resulted in the restitution order imposed against her. Nor was she put on notice that sanctions, including contempt, could be imposed against her personally for failure to pay restitution. A contrary ruling from us would create an “Alice in Wonderland” situation in which witnesses or friends and supporters of a defendant could be held personally liable for the defendant’s misdeeds merely because they sat in the courtroom during the trial.

The dissent complains Fisher posed no objection to the August 19, 1999 order or to the subsequent hearing on the amount of restitution to be imposed. Had Fisher been properly noticed that she was potentially going to be held liable for restitution in this case, she could have come to the hearing with her own counsel, cross-examined witnesses, and presented her own evidence. She was clearly ill prepared to defend against the merits of the imposition of restitution sanctions, based on section 985.231(9) and the propriety of the amounts being sought. After the August 19, 1999 hearing, it was all down-hill for Fisher. She was never given a chance to dispute the validity of the imposition of sanctions against her, only the amount of restitution ordered, which was summarily denied.

Because the restitution order was rendered without due process, it is void as to Fisher. See S.B.L. v. State, 737 So.2d 1131 (Fla. 1st DCA 1999). A void judgment may be attacked at any time because the judgment creates no binding obligation on the parties, is legally ineffective and is a nullity. Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999).

The order finding Fisher in contempt for not complying with the restitution order is also void since it was based on the void restitution order. We reverse both orders involved in this appeal. Our ruling in this case is without prejudice to the right of the state to seek to reimpose restitution sanctions against Fisher, should that be appropriate under the new juvenile rules, which now govern such cases.

REVERSED.

PLEUS, J., concurs.

COBB, W.H., Senior Judge, dissents with opinion.

COBB, Senior Judge,

dissenting.

On August 19, 1999, a disposition hearing was held in a juvenile delinquency case wherein the minor daughter of Felicia Fisher was charged with burglary of a structure and arson. As a result of that hearing, which was attended by Fisher, an order was entered on September 19, 1999, providing for post-commitment community control whereby the parents of the juvenile would also be responsible for restitution for destruction of the burned house and its contents. The amount of restitution was to be set at a subsequent hearing. Fisher posed no objection to this order or to the setting of a subsequent hearing.

The hearing in regard to the amount to be set for the house which had been burned was held on January 28, 2000. Again, Fisher was present at the hearing^ Various witnesses were called to establish the value of the house and its contents. Fisher herself testified that the house was abandoned and in horrible condition — but she did not contend that she was not liable nor that she had not been notified that joint liability had been imposed against her. Her testimony at this hearing was directed to the value of the destroyed house and the extent of her liability to pay for it.

In orders filed February 1, 2000 and February 14, 2000, the trial court found that Fisher should pay the sum of $25,861.00 to the Richardsons, the owners of the house. Based on Fisher’s testimony that she earned $45,000.00 per year, the court set monthly payments at $250.00. These orders were not appealed. A year later, Fisher sent a- letter to the court contending the amount of restitution was unreasonable. Again, she failed to raise any challenge to her liability for restitution owed to the Richardsons and, in fact, said she was not trying to avoid paying restitution.

Now, several years later, Fisher argues on appeal that the trial court lacked authority to enter a restitution order against her because it did not make a finding of lack of parental diligence. She cites to B.M. v. State, 744 So.2d 505 (Fla. 5th DCA 1999) in support of her argument. In B.M., however, the lack of such finding was raised on direct appeal, and that did not happen here. Fisher has never requested a hearing on the issue of her obligation; she has only protested the amount and her ability to pay, and even then she did not appeal those issues. The issue of liability was waived years ago.

It is clear from the language of section 985.231, Florida Statutes, that the legislature intends to hold minors and their parents responsible for the monetary damage done to other people. The statutes specifically give the trial court the authority to hold a parent financially responsible for the act of a child. Clearly, the restitution order is not void as contended by the majority. As pointed out in the State’s brief:

(I)n the original disposition order, the trial court specifically held that the Appellant was going to be liable for restitution. Notice regarding the restitution hearing was sent to Appellant’s address. Appellant attended both hearings along with her juvenile daughter and her daughter’s attorney. Appellant addressed the trial court at length as to the fact that she did not feel that she could afford to pay the restitution and that she disagreed with the victim’s valuation of the destroyed property. The trial court heard evidence on both of these issues and ruled in the victim’s favor. At both the contempt hearings, the trial court inquired as to Appellant’s income and expenses and made explicit findings of fact that she could afford to pay. Compare with Wolf v. HRS, 588 So.2d 335 (Fla. 5th DCA 1991) (parents not given notice, opportunity to defend claim, or present evidence at hearing). Appellant has been given sufficient notice and numerous meaningful opportunities to be heard. She has not been denied due process.

It is very clear that the September 19, 1999 order, which was sent to Fisher, gave actual notice of her potential liability. The February 14, 2000, restitution order gave this liability finality. Fisher did not appeal from the restitution order and, in fact, expressly stated to the court that she was not trying to avoid paying restitution. I would affirm the order of contempt and the order denying her motion to vacate the restitution order.

      . The tape of the hearing ends but apparently Fisher continued to testify.

      . Canida v. Canida, 751 So.2d 647 (Fla. 3d DCA 1999), rev. denied, 767 So.2d 455 (Fla.2000).

      . The juvenile rules now contain specific provisions relating to parental sanctions:
      Rule 8.030. Commencement of Formal Proceedings.
      (b) Allegations as to Parents or Legal Guardians. In any delinquency proceeding in which the state is seeking payment of restitution by the child's parents or legal guardians, or any other penalty under chapter 985, Florida Statutes, a separate petition alleging the parents' or legal guardians’ responsibility shall be filed and served on the parents or legal guardians of the child.
      Rule 8.031. Petition for Parental Sanctions.
      (a) Contents. Each petition directed to the child’s parents or legal guardians shall be entitled a petition for parental sanctions and shall allege all facts showing the appropriateness of the requested sanction against the child's parents or legal guardians.
      Rule 8.040. Process.
      (b)(2) Petition for Parental Sanctions. A petition for parental sanctions may be served on the child’s parents or legal guardians in open court at any hearing concerning the child, but must be served at least 72 hours before the hearing at which parental sanctions are being sought. The petition for parental sanctions also may be served in accordance with chapter 48, Florida Statutes.

      . Lewis Carroll, Alice’s Adventures in Wonderland.


source: Caselaw Access Project

author: THOMPSON, C.J.

license: Public Domain

text:
    Montville LABADIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2756.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied March 27, 2003.

      Montville Labadie, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Montville Labadie appeals his conviction and sentence for trafficking in cannabis in excess of 25 pounds after a plea of guilty. He argues on appeal that his conviction violates the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and should be set aside because a jury should have been given the opportunity to determine beyond a reasonable doubt that the cannabis weighed more than 25 pounds. We disagree and affirm.

According to the arrest affidavit, on 15 December 2000, Labadie was arrested after he participated in a drug transaction. Labadie met with undercover state agents. Labadie was presented with a suitcase full of marijuana. After examining the contents of the suitcase and talking about the quality and quantity of the drugs, he purchased 70 pounds of cannabis. Labadie was arrested and charged by information with one count of conspiracy to traffic in cannabis in excess of 25 pounds and two counts of trafficking in cannabis in excess of 25 pounds. Labadie was appointed counsel, and after negotiating with the state, pleaded guilty to one count of trafficking in cannabis in excess of 25 pounds, with the state agreeing not to prosecute the other two counts. The negotiated sentence was for three years in the Department of Corrections, followed by 15 years probation. On 1 August 2001, Labadie was adjudicated guilty and sentenced. The sentence was a downward departure from the sentencing guidelines and was entered pursuant to the negotiated plea. The state entered a nolle prosequi as to the other two counts. On 17 August 2001, Labadie filed this pro se appeal.

The attorney representing Labadie filed in the trial court an eight page plea agreement divided into two parts. In the first part, Labadie admitted that he was counseled by his attorney and discussed the charges and a possible defense. He also stated that by pleading guilty, he waived his right to a jury trial and admitted to all elements of the charges against him. He also stated that the court could impose any sentence that could have been imposed had he gone to trial and been convicted. Further, Labadie stated that the plea was entered freely and voluntarily and that “no one ha[d] subjected [him] to any force, duress, threats, intimidation or pressure to compel or induce [him] to enter a plea of guilty.” Finally, Labadie stated that he understood that he could serve every day of the sentence imposed. Moreover, Laba-die’s attorney signed the plea agreement stating that the attorney had thoroughly investigated the case, that the attorney had advised Labadie of the charges against him, that the attorney advised La-badie of the rights and privileges Labadie waived by pleading guilty, and that Laba-die was not under the influence of any controlled substances.

The second portion of the plea agreement states that Labadie admitted to the charges, that he was aware that he would be sentenced to three years in the Department of Corrections, consecutive to any sentence being served, followed by 15 years of supervised probation, and that he would pay a $25,000 fine and $8,500 for costs of prosecution. Also, Labadie stated he would pay $1,753.50 to the Metropolitan Bureau of Investigation for the cost of investigations associated with this case. Finally, Labadie stated in paragraph six of the plea agreement, “If the sentence agreed upon in this plea agreement is a departure from the sentencing guidelines, both the State of Florida and the defendant agree not to appeal this sentence.”

Notwithstanding the extensive plea agreement which was signed by La-badie, his attorney, and the lawyer representing the State of Florida, Labadie appeals. Labadie’s argument is that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), dictates that a jury must And that the amount of cannabis he possessed was in excess of 25 pounds. To say this is a specious argument is being kind. First, the issue on appeal was not preserved. Nowhere in the record is there a scintilla of evidence that Labadie, or his attorney, raised this argument to the trial court. In fact, the record is clear that Labadie specifically waived his right to a jury trial and the associated rights and privileges. A sentencing error may not be raised on appeal unless preserved. Capre v. State, 773 So.2d 92 (Fla. 5th DCA 2000); Durr v. State, 773 So.2d 644, 646 (Fla. 5th DCA 2000). Further on this issue, Labadie did not provide a transcript of his plea and sentencing hearing. It is his obligation to provide the appellate court with a record sufficient to support his allegations. On this basis alone, his appeal must fail. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); see also Johnson v. State, 722 So.2d 271 (Fla. 5th DCA 1998).

The second reason we affirm is that Labadie received the specific sentence that he negotiated. The trial court imposed a sentence that Labadie, in writing, agreed to serve. Therefore, Labadie’s appellate challenge to his sentence is barred under the' doctrine of estoppel. See Pollock v. Bryson, 450 So.2d 1183, 1186-1187 (Fla. 2d DCA 1984).

Finally, Apprendi is not applicable to this case. Apprendi addresses the issue of an appellant whose penalty was increased beyond the statutory maximum based on a finding made by the trial court. In this case, Labadie agreed that the weight of the cannabis, an essential element of the crime, was more than 25 pounds. By pleading guilty as charged, Labadie admitted all of the facts alleged in the information, which included the weight of the cannabis. See Vernold v. State, 376 So.2d 1166 (Fla.1979); Stovall v. State, 252 So.2d 376, 378 (Fla. 4th DCA 1971).

Labadie has cited many federal cases in his appeal. After reviewing them, we find none applicable to this case.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.

      . §§ 893.135(1)(a)1 and (5), Fla. Stat. (2000).

      . § 893.135(1)(a)1, Fla. Stat. (2000).


author: PER CURIAM.

text:
    Jagada CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2710.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Rehearing Denied March 25, 2003.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Richard E. Doran, Attorney General, and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s finding that no valid legal reason exists to support a downward departure. Pursuant to section 924.06(1), Florida Statutes (1999), a defendant may only appeal an illegal sentence or a sentence which exceeds the statutory maximum. Appellant’s sentence is neither illegal nor in excess of the statutory maximum and, therefore, is not appealable. Accordingly, we are compelled to dismiss this appeal.

DISMISSED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: GROSS, J.

text:
    Ray J. KNIPE, Appellant, v. Laura KNIPE, Appellee.
    Nos. 4D01-4148, 4D02-1347, 4D02-2296.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied April 16, 2003.

      Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, and Richard Barlow of Kibbey & Barlow, Stuart, for appellant.
    Denise S. Calegan Desmond of Joel M. Weissman, P.A., Doreen M. Yaffa, P.A., and Denise Calegan Desmond, P.A., West Palm Beach, for appellee.
   GROSS, J.

The primary issue we address in this appeal is whether the evidence supported post-dissolution modifications short of a change in primary physical custody where the parents failed miserably at sharing parental responsibility. We affirm the trial judge on this issue.

The trial court entered an amended final judgment of dissolution in October, 1998. The judgment characterized the proceeding as “bitterly and fiercely litigated by the parties.” The judgment awarded the father primary residential custody of the couple’s two children, finding that he was “more likely to facilitate and encourage a close relationship between the minor children and the Former Wife.”

Five factors were significant to the court’s custody decision in the amended final judgment. First, the mother asserted that the children had been sexually abused while in their father’s custody, “[wjithout any evidence of sexual abuse.” Second, in a dissolution of marriage proceeding with a prior husband, the mother had made allegations that the child of that marriage had been sexually abused by the prior husband and members of his family. Although the prior husband was arrested and jailed, the prosecutor refused to file formal charges. However, “[a]s a result of the financial and emotional strain put on him by the allegations of sexual abuse,” the prior husband agreed to “surrender custody” of the child to the former wife and agreed not to see the child. At the time of the trial, the son from this prior marriage was seventeen, but he had no relationship or contact with his father. Third, the court found that the mother had had a “number of relationships with men.” The breakup of these relationships ended her son’s relationships with the men. As a result, the trial judge in this case concluded that the father could “provide a more stable and satisfactory environment for the minor children.” Fourth, the mother had caused the father to be arrested and obtained a domestic violence injunction against him for which “there was an insufficient basis.” Fifth, the court noted that the mother was unable to communicate with the former husband’s family.

The final judgment declared that the mother would have shared parental responsibility. It also provided that she would have “reasonable and liberal visitation with the minor children, no less than as is set out in the attached visitation schedule for the Nineteenth Judicial Circuit.” Both parents were “encouraged to promote and allow telephone contact between the minor children and the other parent.”

This court affirmed the final judgment. See Knipe v. Knipe, 731 So.2d 161 (Fla. 4th DCA 1999). Soon thereafter, the mother filed a petition for modification. The modification litigation was as contentious and bitter as the original dissolution proceeding. Although the petition originally sought a modification of the children’s primary residence, the mother abandoned that count at the beginning of the trial. She asserted that her true goal was to increase her visitation.

At the hearing, the mother testified that, despite the order of liberal and reasonable visitation, she was not accorded any additional overnights beyond the minimum set forth in the visitation schedule. Her telephone contact with the children had been severely limited. The father excluded her from decisions concerning the children’s schooling. To curtail her time with the children, the husband threatened that if she did not stop volunteering at the children’s school, he would remove them from that school. The father carried out the threat two weeks later and took them out of the school. The mother hired a private investigator to find out where the children were enrolled.

Dr. Stephen Alexander, a psychologist, testified as an expert witness for the mother. He described the situation between the parents as “extremely acrimonious” and “perpetually combative.” He recommended overnight visitation from after school on Friday to the beginning of school on Monday morning. He opined that such visitation would allow the mother to participate in school and homework. Also, drop-offs at school would cut down on the contact between the parents, thereby lessening the opportunities for hostile exchanges witnessed by the children.

The existing visitation plan gave the mother overnights on Wednesdays during the weeks when she did not have weekend visitation. Dr. Alexander also opined that Thursday nights were more appropriate for overnight visitation; the non-custodial parent then had a four-day block, which allowed that parent to more fully participate in the child’s life. Dr. Alexander said that the parents were probably unable to co-parent and to share parental responsibility as contemplated in the final judgment. He indicated that there was little probability that the parents would be able to set aside their differences in the best interests of the children.

Dr. Mark Agresti, a psychiatrist, testified that the children were “starved for their mother” and that they would be adversely affected if they did not spend more time with her. He opined that where children do not spend adequate time with their mother, their development is compromised.

Pamela Black, a clinical social worker, whom the court had appointed to do a home study, said that the former wife functioned only as a “weekend parent.” She stated that the children do not have the type of time with the mother that they need.

After the hearing, the trial judge made extensive findings:

9. The activities of the parties in this bitter divorce proceeding merely set the stage for what was to occur after the entry of the final judgment.
10. Under the terms of the temporary order, the Former Wife had been the primary residential parent, but once the final judgment was entered the Former Husband then became the primary residential parent, and the day following the entry of the final judgment ... the Former Husband took the police with him to gain custody of the children.
11. The following day, a Friday, the first weekend after the Final Judgment was entered, the Former Wife showed up at the Former Husband’s home with the police to enforce the visitation arrangements.
12. What follows is a sampling of the parties’ actions following the entry of the final judgment. It’s not meant to be all-inclusive nor is it [designed] to show that one party is worse than the other.
a. The father enrolled the children in kindergarten. He listed his family members as emergency contacts, but did not list the Mother as an emergency contact.
b. The father sent copies of the divorce decree and the home study to the children’s elementary school for the purpose of winning them over to his side.
c. The father’s family, his parents and siblings, united on his behalf and campaigned against the mother.
d. On the day the appeal was affirmed by the District Court, a party was held at the father’s home. The family put up a large sign on the side of the house that said, “Congratulations, you’ve won again.” This celebration occurred at the very time the Former Wife was returning the children to the father’s home.
e. At T-ball games the mother is ostracized by the father’s family. Members of the family have called her names. When Mrs. Black, the home study evaluator, was present at one of the T-ball games the family took photos of Mrs. Black to try to determine who she was and sent cousins of the parties’ children (young children 10 to 12 years old) to follow Mrs. Black to her car to write down the tag number in order to identify her.
f. When the children were in kindergarten and were dropped off by the father, the mother would come by school every day to kiss them good morning.
g. The mother and father rarely agree on any course of conduct concerning the children. They even used different names for their son with the father calling him Ray, initial J., and the mother calling him “Rayj,” all one word.
h. The mother continues to force herself into the private events that occur during the father’s time with the- children.... [A]n example of such an event would be birthday parties that the children attend that are not open to the public but that the mother appears at.
i. The parties cannot agree on medical treatment such as who the children’s doctors are to be.
j. The parties continue to have disagreements on the meaning of the visitation plan and take every opportunity to find some confusion in the plan.
13. Although the trial court believed that the parties could share all decisions, time has shown this to be wrong ... and [considering] the evidence presented, constitutes a substantial change in circumstances.
14. The court appointed an attorney ad litem to represent the children. Mrs. Kirk found that the children were tired of the fighting; that the children adored their parents; that the children want to see the mother; and that the children want to see the mother more often. On behalf of the children she recommended that the mother’s visitation be modified to give her more time.
15. The Court also appointed Mrs. Black to do a home study. This appointment was done at a time when the mother was seeking to be the primary residential parent. Mrs. Black found that the father should continue to be the residential parent, but in court recommended that the children have more time with the mother.
16. Although the final judgment says that the mother is to have liberal visitation, she’s been limited to the minimum schedule in almost all regards by the father.
20. So that neither of the parents believes they have won or lost in this proceeding, this Court finds that both of the parents’ actions are detrimental to the children. Each of the parents have “cloaked” themselves with the justification that they have done whatever they have done for the best interests of the children. The Court finds that sometimes the parents have taken actions that were in the children[’]s best interest, but many more times, the effect of what these parents have done since the entry of the Final Judgment of Dissolution of Marriage, has not benefitted the children, but has harmed them....

The judge increased the mother’s visitation. He changed her visitation from the Nineteenth Circuit’s Standard Schedule (“no less than” two hours on Wednesday and every other weekend) to the Fifteenth Circuit’s Model Schedule (Thursday night to Friday night and every other weekend).

Due to the animosity between the parents, the court gave the father the “ultimate decision-making authority” as to the children’s extracurricular activities. The judge required the father to provide the mother all of the children’s scheduled activities on a monthly basis. The court ruled that the mother would make all medical and dental decisions, provided that she continued to maintain medical and dental insurance for the children.

The former husband contends that the trial court erred in ordering these post-dissolution modifications because the evidence did not meet the threshold showing required by Haas v. Haas, 686 So.2d 799 (Fla. 4th DCA 1997), and McGlamry v. McGlamry, 608 So.2d 553 (Fla. 4th DCA 1992). Those cases provide that a “trial court may not modify visitation unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since the entry of the custody and visitation order, and (2) that the welfare of the child will be promoted by a change in custody and visitation.” Worthington v. MacGregor, 771 So.2d 576, 577 (Fla. 4th DCA 2000).

This “extraordinary” burden test requiring a “substantial and material” change in circumstances has been developed and applied in cases involving a change in primary physical custody. See Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1997); Zediker v. Zediker, 444 So.2d 1034, 1036-37 (Fla. 1st DCA 1984). The policies behind the test are to honor the res judicata effect of the original final judgment, see Zediker, 444 So.2d at 1036, and to “preclude parties to a dissolution from continually disrupting the lives of children by initiating repeated custody disputes.” Pedersen v. Pedersen, 752 So.2d 89, 91 (Fla. 1st DCA 2000). Judge Altenbernd best described the policies behind the test in Gibbs:

The judiciary cannot referee every difficult parental decision made by divorced parents. Initially, a judge may be required to choose between the parents to establish the child’s primary residence. After the court makes that decision, however, the parents must continue to fulfill their obligations to the child or children. Although it may be ideal to change the custodial parent for a particular child at some stage in his or her development, the best interests test is not intended to allow the court to micromanage a child’s custody from the entry of the final judgment until the child becomes an adult. Even in cases of divorce, these decisions should usually be made by the parents in private. The court must trust that even divorced parents usually want what is best for their children and have far greater ability to assess the interests of the child than does a judge who intervenes in the decision-making process for only a few hours.

686 So.2d at 644-45.

The former wife demonstrated a substantial change in circumstances sufficient to justify the minor changes in the structure of the children’s lives erected by the final judgment of dissolution. Where the mechanics of a final judgment become stuck because of the gross misbehavior of the parents, and the children are suffering as a result, a trial judge is not precluded from fine tuning the final judgment to improve the children’s lives. One stated purpose of Chapter 61 is to “mitigate the potential harm to ... children caused by the process of legal dissolution of marriage.” § 61.001(2)(c), Fla. Stat. (2001).

In compliance with the values of Chapter 61, the final judgment ordered “shared parental responsibility” and “reasonable and liberal visitation.” This language is in accord with “the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after ... the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.” § 61.13(2)(b)l., Fla. Stat. (2001). “ ‘Shared parental responsibility’ means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.” § 61.046(15), Fla. Stat. (2001). Chapter 61 states the preference that divorced parties share parental responsibility; a court “shall order that the parental responsibility ... be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” § 61.13(2)(b)2.

Chapter 61 contemplates that after a final judgment of dissolution, the parties can set aside their differences, share parental responsibility, and act in the best interest of their children. The law presumes that parents will abide by the terms of a final judgment and act reasonably with each other and their children. Here, the parents’ post-dissolution conduct shredded the goal of shared parental responsibility. The evidence supports the conclusions that the father used the judgment as a club to punish and manipulate the mother and the mother disruptively and destructively inserted herself into the childrens’ fives. A psychologist, a psychiatrist, the home study evaluator, and the children’s attorney ad litem agreed that the children needed to spend more time with their mother.

The gross inability of the parents to comply with the goals of the final dissolution judgment obviously arose after it was entered. The parties were unable to share parental responsibility without acting in ways detrimental to their children. The modifications imposed by the trial court were an attempt to ameliorate the problems arising from the parties’ post-judgment conduct. In fine with Dr. Alexander’s recommendation, the changes minimized the times the parents had to deal with each other and reorganized the mother’s visitation to be less disruptive to the children.

We agree with Gibbs that a court cannot “micromanage a child’s custody from the entry of the final judgment until the child becomes an adult.” 686 So.2d at 645. However, given the concern of Florida for the welfare of children, a court should not be precluded in all cases from modifying a final judgment of dissolution after considering how the parties have responded to it.

We distinguish this case from Zediker. There, the first district held that the “inability of two otherwise intelligent and rational adults to communicate before, during or after visitation” did not amount to a substantial or material change of circumstances “which would justify a change of custody.” 444 So.2d at 1036; see also Newsom v. Newsom, 759 So.2d 718, 719-20 (Fla. 2d DCA 2000) (reversing trial court’s modification of custody, despite “acrimonious relationship” between parents, as mother had demonstrated consistent attempt at co-parenting. “The fact that the parents cannot communicate and get along does not constitute a material change in circumstances to warrant a modification of custody.”). Both Zediker and Newsom involved a change in the children’s primary physical residence. This case involved no such change in custody.

We also distinguish this case from Haas and Worthington. In Haas, the trial judge found no change in circumstances and made no finding as to whether a change in visitation would be in the best interest of the child. 686 So.2d at 800. Similarly, in Worthington, “the trial judge specifically found that the former wife had failed to show by competent substantial evidence that there had been any material change in circumstances and the final judgment [was] silent as to whether it would be in the best interest of the children to modify the visitation schedule.” 771 So.2d at 577.

We have carefully considered the remaining issues, especially the award of attorney’s fees to the mother under Rosen v. Rosen, 696 So.2d 697 (Fla.1997). We affirm all other issues except for one. The court entered an order awarding damages to the former wife arising from the former husband’s failure to comply with an order regarding the sale of the marital residence. The order failed to account for $10,000 that had been awarded to the former husband in the dissolution judgment. On remand the trial court shall enter an amended final judgment using a damages amount of $17,550.

SHAHOOD, J., and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Jean ALUSMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4091.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied April 3, 2003.
    Jean Alusma, Wewahitchka, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Based on State v. Leroux, 689 So.2d 235, 236 (Fla.1996), we are compelled to reverse the order denying post-conviction relief as to appellant’s claim that his plea was involuntary because it was based on the misadvice of counsel. We affirm the order insofar as it denies relief based on appellant’s double jeopardy claim. We remand for an evidentiary hearing or the attachment of records that conclusively refute appellant’s claim.

KLEIN, GROSS and MAY, JJ., concur.


text:
    OASIS STAFFING, INC., Appellant, v. Steve LINDEMAN, Appellee.
    No. 4D02-4168.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Murray Hudson of Ward, Damon & Pos-ner, P.A., West Palm Beach, for appellant.
    Steven L. Schwarzberg of Schwarzberg & Associates, West Palm Beach, for appel-lee.
   PER CURIAM.

Plaintiff appeals an order dismissing the complaint for lack of personal jurisdiction over defendant, and in the alternative, dismissing plaintiffs complaint for failure to state a cause of action. We affirm the order dismissing for lack of personal jurisdiction. The ruling on whether the complaint failed to state a cause of action is moot.

We vacate the alternative holding that the complaint failed to state a cause of action. Having determined that the court lacked personal jurisdiction, it should not have made rulings on the merits of the case.

Affirmed as modified.

WARNER, FARMER and KLEIN, JJ., concur.


author: SHARP, W., J.

text:
    CITRUS COUNTY, Florida, Appellant, v. Bruce Michael McQUILLIN, etc., et al., Appellees.
    No. 5D02-297.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Rehearing Denied March 18, 2003.

      Nicole E. Weiss and Alan S. Zimmet of Zimmet, Unice, Salzman & Feldman, P.A., Clearwater, for Appellant.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, and Edward L. Scott of Edward L. Scott, P.A., Ocala, for Appel-lees.
   SHARP, W., J.

Citrus County appeals from the trial court’s denial of its motion for a new trial or to set aside the verdict and final judgment in a wrongful death case. The jury returned a verdict awarding Bruce McQuillin, personal representative of his late wife’s (Deborah McQuillin) estate, a total of 5.56 million dollars, reduced by 80% due to its attribution of comparative negligence to Deborah. Making up the total award were findings on net accumulations ($50,400), funeral expenses ($8,000), loss of service and support to the surviving spouse ($591,260), past and future pain and suffering for the surviving spouse ($516,-000) and past and future loss of parental companionship and pain and suffering for Deborah’s son, who was seven-years-old at the time of her death ($4,400,000). We affirm in part and reverse in part.

This case arose out of a tragic one-car accident caused by the driver losing control of the car which was traveling at a high rate of speed on a county road. The car’s wheels left the side of the road and when the driver “jerked” the car back onto the road, she lost control of the car. The rear of the car skidded sideways across the road causing the car to roll over and hit several trees. The damage to the car was described as “horrific.” Two passengers were ejected from the car, but Deborah was killed instantly, having suffered massive head injuries.

Based on the estate’s expert testimony presented at trial, the jury concluded that the accident was partially caused by a drop off of some three to five inches from the surface of the pavement to the shoulder of the road. The county had just re-paved that section of the road, and there were no warning signs or markers to delineate the drop off. Experts testified that while the drop off did not contribute to the driver running off the road, it prevented her safe return to the surface of the road. They testified the drop off on this newly paved county road was a clear hazard to cars, even ones traveling only thirty miles per hour, especially since the drop off was straight down at a ninety degree angle.

On appeal, Citrus County argues that the trial court erred in admitting a gruesome photograph of the decedent as her body was placed in a body bag at the scene of the accident. Even if relevant, the County argues it was unduly inflammatory. § 90.403, Fla. Stat. As we have said before, the admission of photographs is within the trial court’s broad discretion and its rulings will not be overturned on appeal unless there is a clear abuse of discretion. Waggoner v. State, 800 So.2d 684 (Fla. 5th DCA 2001). See also Rutherford v. Moore, 774 So.2d 637 (Fla.2000). The test for admissibility is relevance. Waggoner.

We think the photograph was relevant to support McQuillan’s version of the facts in this accident. He was attempting to persuade the jury that Deborah was not the driver of the car, but rather that one of the two passengers was the driver. The photograph tended to support an expert witness’s theory that Deborah had been a back-seat passenger, due to the nature of her injuries (to the back of her head).

In spite of its relevance, whether the photo was so gruesome as to outweigh its relevance by inflaming the jury is a judgment call — primarily one for the trial judge. As an appellate court we cannot say there was an abuse of discretion in this case. The jury knew from the testimony this had been a violent and devastating accident and the decedent’s body had to be cut out of the car. The photo was not enlarged nor did it unduly exaggerate Deborah’s obvious lethal injuries.

Second, Citrus County contends the verdict as to both liability and damages was contrary to the manifest weight of the evidence and thus the trial court should have granted its motion for a new trial or to set aside the verdict. That is a determination exclusively for the trial court.

As the appellate court, we must address the question whether the trial court abused its discretion in making those rulings. DeWitt v. Maruhachi Ceramics of America, Inc., 770 So.2d 709 (Fla. 5th DCA 2000); Clough v. Christopher, 711 So.2d 610 (Fla. 5th DCA 1998). If reasonable persons could differ as to the propriety of the trial judge’s determinations, there is no abuse of discretion. Clough.

With regard to the jury’s determination that Citrus County was twenty percent responsible for the accident in this case, we think there was adequate substantial evidence to support the verdict. Numerous witnesses testified the road was under construction and there was a drop off in elevation between the newly paved surface of the road and the shoulder. The plaintiffs experts testified the drop off was three to five inches along the whole edge of the re-surfaced road. One of the police investigators testified there was a three inch drop off at the point the vehicle came back onto the road; others testified it was larger.

Building on that, the plaintiffs experts testified as to the hazardous nature of such a drop off for vehicles traveling at the speed limit. According to these experts, the County’s traffic manual provided the highway department should allow no drop offs greater than three inches and the state manual indicates there should be no drop offs from the pavement to the shoulder of a road. This is adequate to support the jury’s conclusion that accidents may be caused by drop offs, like the one established in this case, and thus are reasonably foreseeable.

With regard to the damage award, Citrus County argues there was no evidence to support the jury’s award of $50,400 for net accumulations. “Net accumulations” are defined as follows:

‘Net accumulations’ means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. ‘Net business or salary income’ is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.

§ 768.18(5), Fla. Stat.

The purpose of allowing a personal representative to recover net accumulations is to award what would have been earned over a decedent’s life time, and theoretically was lost by the decedent’s untimely death. Wilcox v. Leverock, 548 So.2d 1116 (Fla.1989). Net accumulations are more than replacement salary. They are supposed to represent what the decedent’s estate would have been worth at death. This sum is reduced to present value so it can be invested by the survivors with the intention that when the estimated natural death of the decedent occurs, the sum will equal what the decedent’s estate would have been worth, had he or she not died. Delta Airlines, Inc. v. Ageloff, 552 So.2d 1089 (Fla.1989).

In awarding net accumulations, the jury may consider the decedent’s skills, age, health, earnings and propensity to save. See Wilcox. In this case, the testimony established the decedent was twenty-eight years old and worked as a cashier from thirty to forty hours a week, earning between $160.00 to $180.00 per week. She had dropped out of high school in the eleventh grade but was working on obtaining her GED. The decedent and her husband exhausted both of their paychecks to meet their living expenses and had no record of savings. They were “mostly trying to keep up with the kid and keeping everything paid,” as McQuillin explained at trial.

Because the parties had no record of saving anything by the time of the accident and no evidence was presented that the decedent had any propensity to save in the future, or ability to do so, the award of net accumulations is speculative and based on insufficient or no evidence. See Tobias v. Osorio, 681 So.2d 905 (Fla. 4th DCA 1996) (award of $150,000 for net accumulations was an abuse of jurors’ discretion; although there was evidence as to where the decedent worked, there was no evidence of the decedent’s salary or how much the decedent might have saved throughout his normal life expectancy); Snyergy Gas Corp. v. Johnson, 627 So.2d 539 (Fla. 3d DCA 1993) (award of $400,000 in net accumulations to estate reversed; although economic expert testified that decedent had twenty-six years of working life expectancy and that he would have saved six percent of his income per year, there was no evidence of the decedent’s propensity to save or whether he had saved anything at all at the time of his death).

Third, Citrus County argues the trial court abused its discretion in failing to grant a new trial because the verdict was clearly excessive, primarily with regard to the pain and suffering and loss of parental companionship award made to the decedent’s child. As noted above, it totaled 4.4 million dollars, before reduction by 80% due to the decedent’s comparative negligence. We agree this award is very large.

However, a large damage award by itself is not indicative of an excessive or improper verdict. Tobias. If the jury’s award is so extravagant that it shocks the judicial conscience, or is manifestly unsupported by the evidence or indicates the jury was influenced by passion, prejudice or other matters outside the record, the court in its discretion may set aside the verdict. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999); Tobias; Waddell v. Shoney’s, Inc., 664 So.2d 1134 (Fla. 5th DCA 1995); Walt Disney World Co. v. Goode, 501 So.2d 622 (Fla. 5th DCA 1986), rev. dismissed, 520 So.2d 270 (Fla.1988).

In refusing to overturn this verdict, the trial judge noted the child had testified at length at trial regarding his grief and pain caused by the loss of his mother’s companionship, how close they were, and how her loss had affected his life. Other witnesses also testified that this mother and child were unusually bonded and participated in numerous activities together. The trial judge concluded: “[A]s a young boy, he will now endure some of his childhood years without the instruction and guidance his mother used to provide him. It is clear based upon the verdict that the jury placed a significant value on these damages.”

After reviewing the awards in other cases for loss of a child, parent or spouse, we conclude that this award, although on the outer limit in size, is not so excessive as to shock our composite judicial consciences. And, we also conclude this award is based on substantial and competent evidence. Who can place a dollar value on a human life, measured by the loss and grief of a loved one? That difficult decision is generally one for the jury or fact finder, not the appellate court. Accordingly, we find the trial court did not abuse its discretion in refusing to grant a new trial based on the excessiveness of the jury verdict. See Florida Power & Light Co. v. Goldberg, 27 Fla. L. Weekly D1177, 2002 WL 1021388 (Fla. 3d DCA May 22, 2002) (jury award reduced to ten million dollars to both parents for loss of daughter was reasonable and not excessive); Pierard v. Aerospatiale Helicopter Corp., 689 So.2d 1099 (Fla. 3d DCA 1997) (jury award of 6.7 million dollars for pain and suffering not excessive for damages to helicopter crash victim); Walt Disney World Co. (award of two million dollars to parents for loss of child not excessive as a matter of law).

Accordingly, we affirm this case in all regards, with the exception of the award for net accumulations. Since there was no competent substantial evidence to support that award, we reverse that portion of the verdict.

AFFIRMED in part; REVERSED in part.

GRIFFIN and ORFINGER, JJ., concur.

      . Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999); E.R. Squibb and Sons, Inc. v. Farnes, 697 So.2d 825 (Fla.1997); Smith v. Brown, 525 So.2d 868 (Fla.1988).

      . Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997) (over forty-nine million dollars awarded to families of three men killed when their plane was shot down by Cuban air force during a humanitarian mission; award included eight million dollars to the daughter of one of the victims for mental pain and suffering and loss of parental companionship and guidance); Lopez v. Three Rivers Electric Cooperative, Inc., 92 S.W.3d 165 (Mo.App.E.D.2002) (damages awards of eleven million and ten million dollars for the death of flight engineer and pilot in a helicopter crash not excessive); Sanchez v. Mica Corp., — So.2d —, 2002 WL 31753555 (Tx.Ct.App.2002) (award of five million dol-Iars to decedent's two children for loss of parental companionship and pain and suffering not excessive); Lindsey v. Navistar Int’l Transp., 150 F.3d 1307 (11th Cir.1998) (award of five million dollars for intangible value of the life of the decedent was not clear error); West v. Maxwell, 2001 WL 789654 (Del.Super.Ct.2001) (jury award totaling almost 4.3 million dollars, including awards to spouse and child of over three million dollars, not excessive); Spohn Hospital v. Mayer, 72 S.W.3d 52 (Tx.Ct.App.2002) (decedent’s two daughters awarded 3.2 million dollars for pain and mental anguish damages); Florida Emergency Physicians-Kang and Assoc., M.D.,

        P.A. v. Parker, 800 So.2d 631 (Fla. 5th DCA 2001) (affirming award of three million dollars to daughter for loss of parental companionship and pain and suffering).


text:
    Dominic J. GIACOBBE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-29.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Rehearing Denied March 27, 2003.
    Dominic J. Giacobbe, Lake City, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner seeks a belated appeal, but his petition fails to allege when his conviction and sentence were entered, as required by Florida Rule of Appellate Procedure 9.141(c)(3). We therefore dismiss the petition without prejudice to petitioner filing an amended petition containing the information required by rule 9.141(3), including but not limited to, the date and nature of the lower tribunal’s order sought to be reviewed and the nature, disposition and dates of all previous proceedings in the lower tribunal and, if any, in appellate courts.

DISMISSED.

PETERSON, SAWAYA and PLEUS, JJ., concur.


author: BOOTH, J. BARFIELD, J.,

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Sheila BATES, Appellee.
    No. 1D02-0399.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Rehearing Denied March 26, 2003.
    John F. Fannin of Dore, Lanier, Noey & Fannin, Chartered, Jacksonville; and Rhonda B. Boggess of Taylor, Day & Cur-rie, Jacksonville, for Appellant.
    Seth L. Rothstein of Adams, Rothstein & Siegel, Jacksonville, for Appellee.
   BOOTH, J.

This appeal arises from a claim on a commercial all-risk insurance policy. We affirm the trial court’s ruling in favor of the insured, because the settling that damaged the structures on the insured’s property was not the type of normal settling connoted by the exclusions clause of the policy.

Appellant issued a commercial all-risk insurance policy to Appellee on her rental home. Unbeknownst to either Appellant or Appellee, construction debris was buried in the ground beneath the home. When the debris began to decay, it caused the ground to slowly cave in and, in turn, the structures on the property shifted, sustaining significant damage. Appellee denied coverage, and Appellant sued on the policy.

The trial court ruled in favor of Appellee and awarded damages of $139,533.48. It rejected Appellant’s argument that the claim was barred under an exclusions clause that stated that the policy did not cover damages due to settling, cracking, shrinking or expansion. It further ruled that the exclusion was ambiguous under the facts of the case. While we do not agree with the trial court that the term “settling” was ambiguous, we nonetheless affirm the ruling below, because the trial court properly concluded that the policy did not bar coverage for the damage sustained in this case.

The term “settling” as used in the exclusions clause connotes only normal settling, not the type of subsidence that occurred here. See Barash v. Insurance Co. of North America, 114 Misc.2d 825, 328, 451 N.Y.S.2d 603 (N.Y.Sup.1982) (explaining that, as applied to houses, “settling” connotes a building initially coming to rest after construction, not dramatic breaks years later caused by deterioration of organic matter under the house); Winters v. Charter Oak Fire Insurance Co., 4 F.Supp.2d 1288, 1295 (D.N.M.1998). Therefore, this all-risk policy did not exclude coverage for damage from excessive subsidence due to the decay of buried debris. The fact that the collapse occurred gradually does not bring the damage within the settlement exclusion. We affirm the grant of coverage, as well as the award of damages below.

AFFIRMED.

ALLEN, C.J., concurs; BARFIELD, J., dissents with written opinion.

BARFIELD, J.,

dissenting.

I must disagree with the majority. Having concluded that the term “settling” in the policy is not ambiguous, the majority. nevertheless decides it must connote that only some kinds of settling are excluded. It appears that the extent of connoting is in direct proportion to the quantum of dollars involved. There is no precedent for rewriting this policy to define “settling” as that which is connoted to this court.

In Barash v. Insurance Co. of North America, 114 Misc.2d 325, 451 N.Y.S.2d 603 (1982), the New York court reversed a summary judgment for the insurer, finding that the collapse of the foundation which occurred “cannot come within the meaning of the word ‘settling’ in the exclusionary clause” of the policy. In Winters v. Charter Oak Fire Ins. Co., 4 F.Supp.2d 1288 (D.N.M.1998), the court denied a motion for summary judgment because the insurer did not show that undisputed facts established settling as the sole cause of damage. Neither of these decisions supports the majority opinion that the court can connote what settling is covered and what settling is excluded.

This court would be better served following the rationale of State Farm Fire and Cas. Co. v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002), wherein the court refused to “completely ignore the unambiguous language” in a homeowner’s policy, and stated: “While it is certainly understandable that the [insureds] may have reasonably expected their homeowner’s policy to cover the damages in question, State Farm correctly points out that it is the policy’s terms which define the coverage, not the insureds’ reasonable expectations.” Id. at 246-47.

      . Below, Appellant ostensibly defended on both this exclusion and the exclusion for damage due to rust, corrosion, fungus, decay, deterioration, or hidden or latent defect. But at trial, Appellant focused solely on the settling exclusion. Likewise on appeal Appellant concentrates on the settling clause.

      . The trial court also held that the exclusion for damage due to, rust, corrosion, fungus, decay, deterioration, or hidden or latent de-feet was ambiguous.


text:
    Robert DUNN, an Interested Person, Appellant, v. Darrell DUNN, Former Personal Representative of the Estate of Dorothy Weaver, and Mona Lisa Kean, Appellee.
    No. 1D02-4747.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Rehearing Denied March 26, 2003.

      Appellant, pro se.
    Appellee Darrell Dunn, pro se
    Clare A. Duchemin, Tallahassee, and Mike Carter, Crawfordville, for Appellee Mona Lisa Kean.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated January 2, 2003, we dismiss this appeal for lack of jurisdiction. The appellant brought a motion for summary judgment before the trial court, which apparently never entered a written order denying the motion. Then the appellant brought a motion entitled Motion by Robert Dunn for the Court to Provide Him with a Copy of the Filed Signed Written Judgment or Order on His “Motion for Summary Judgment Against Respondent Mona Lisa Kean for Failure to Provide Notice.” The trial court denied this motion in an order entered October 22, 2002. The motion for a copy was in fact a motion to compel the trial court to enter an order on the motion for summary judgment. As such, the order denying the motion for a copy is neither a final order nor a nonfinal order appealable pursuant to Florida Rules of Appellate Procedure, 9.130(a)(4), (5) (2002).

DISMISSED.

ALLEN, C.J., BENTON and HAWKES, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Darius SEVILLE, Appellee.
    No. 3D02-2208.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Clarification and Rehearing Denied March 19, 2003.
    Charlie Crist, Attorney General and Michael J. Neimand (Fort Lauderdale), Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA, 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).


author: PLEUS, J.

text:
    Christopher P. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3098.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.
    Rehearing Denied March 25, 2003.
    Christopher P. Thompson, Inglis, pro se.
    No Appearance for Appellee.
   PLEUS, J.

The defendant seeks review of an order denying his motion to modify his community control and probation. The motion was addressed to the condition that the defendant visit his psychiatrist twice monthly and sought to reduce this requirement on the basis that it was no longer necessary. See § 948.03(6), Fla. Stat. (2002). A trial court’s decision to reduce or ameliorate a lawful condition of community control or probation is entirely a matter of grace for which an appeal will not lie. Burgos v. State, 765 So.2d 967 (Fla. 4th DCA 2000); Langley v. State, 721 So.2d 1264 (Fla. 5th DCA 1998). Accordingly, this appeal is dismissed.

DISMISSED.

GRIFFIN and TORPY, JJ., concur.


text:
    Christopher Edward HAWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3902.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2003.

      Christopher E. Hawn, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

We deny Hawn’s appeal from the summary denial of his second motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Hawn was convicted in 1988 of burglary of a dwelling with a battery, and two counts of sexual battery on an eight-year-old boy. Based on a negotiated plea, he was sentenced to twelve years in prison, followed by fifteen years of probation. He did not appeal and after spending five years in prison, he was released on probation. When he violated his probation in 2001, he was resentenced to twenty-five years in prison, within the permitted range of the guidelines.

Hawn then brought three collateral attacks on the original conviction. In the first proceeding labeled “Petition for Writ of Error Coram Nobis/Rule 3.800 Motion,” he asserted various claims regarding the convictions, but he did not assert a claim of newly discovered evidence. He also claimed his sentencing scoresheet was incorrect, his counsel was ineffective and his plea was coerced. The trial court denied his motions and this court affirmed. Hawn v. State, 803 So.2d 742 (Fla. 5th DCA 2001).

Next Hawn filed a petition for “Writ of Habeas Corpus ad Faciendum Recipiendum and/or Motion for Post Conviction Relief 3.850.” He argued fundamental error because he had been convicted under section 794.011, which he claimed was constitutionally invalid. This court rejected his argument in another case. Gray v. State, 826 So.2d 317 (Fla. 5th DCA 2002). The trial court denied his petition; it was appealed to the Florida Supreme Court, which transferred it to this court. We affirmed. See Hawn v. State, Case No. 02-1336, 835 So.2d 1147 (5th DCA Jan. 7, 2003).

In his current proceeding, Hawn again seeks to correct an illegal sentence, which the trial court denied as successive. He also reiterates several claims he made in his first collateral attack, which were rejected in Hawn v. State, 803 So.2d 742 (Fla. 5th DCA 2001). One such issue was the question of victim injury and penetration and improper assessment of injury points. This claim is not only successive, but is improperly brought under a rule 3.800 motion because the error, if it exists, cannot be ascertained from the face of the record. Holland v. State, 672 So.2d 566 (Fla. 5th DCA), rev. denied, 678 So.2d 338 (Fla.1996). In addition, since this was a negotiated plea ease, a defendant must make a contemporaneous objection to an alleged Karchesky error. See also State v. Montague, 682 So.2d 1085 (Fla.1996).

Hawn’s claims in this proceeding are also improper because they were raised in prior post-conviction proceedings, after being considered on the merits. The law of the case doctrine applies. See Raley v. State, 675 So.2d 170, 173-74 (Fla. 5th DCA 1996).

We warn Hawn that additional collateral attacks on his convictions and sentences, if successive and improper, may result in sanctions, including an order from this court barring him from filing additional collateral attacks on those convictions and sentences without obtaining the eo-signa-ture and endorsement by a person licensed to practice law in this state.

AFFIRMED.

PETERSON and PLEUS, JJ, concur.

      . See Karchesky v. State, 591 So.2d 930 (Fla.1992).


text:
    Phillip ADLINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2555.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rehearing Denied April 16, 2003.
    Phillip Adlington, Raiford, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order of the trial court denying appellant’s motion to correct an illegal sentence on the authority of Bover v. State, 797 So.2d 1246, 1248-49 (Fla.2001), which held that “if a habitual offender sentence is imposed when, as a matter of law, the defendant was not subject to habitualization, the resulting habitual offender sentence can be corrected as illegal provided the error is apparent from, the face of the record.” (citation omitted) (emphasis added). Here, the error alleged is hot apparent on the face of the record.

WARNER, KLEIN and GROSS, JJ, concur.


text:
    Charles WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4475.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Charles Williams, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s refiling a motion for postconviction relief showing entitlement to additional jail time credit pursuant to Gethers v. State, 798 So.2d 829, 832 (Fla. 4th DCA 2001) (defendant may be entitled to credit for time spent in another county’s jail subject to detainer issued with respect to the instant case if the detainer is the only reason prolonging the defendant’s incarceration), approved, 838 So.2d 504 (Fla.2003) (“Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.”).

KLEIN, SHAHOOD and HAZOURI, JJ., concur.


text:
    Leon BIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3175.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Leon Bivens, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order below without prejudice for Appellant to refile his motion for post conviction relief alleging facts supporting his entitlement to relief on the basis of this Court’s decision in Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000)(holding allegations of affirmative misadviee by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior are cognizable as an ineffective assistance of counsel claim). Upon remand, the court is directed to determine whether laches bars Appellant relief.

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Rene WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2923.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rene Woodard, Jasper, pro se.
    Charlie Crist, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order denying appellant’s petition for writ of mandamus without prejudice to refile his petition within thirty (30) days. The revised petition shall in-elude copies of all correspondence substantiating appellant’s prior written requests and entitlement to the requested records under section 119.07, Florida Statutes (2002).

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Gwendolyn SINGLETON and William Singleton, her husband, Appellants, v. GREYMAR ASSOCIATES, Appellee.
    No. 4D02-667.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rehearing Denied April 16, 2003.
    William Chennault of Chennault Attorneys & Counsellors at Law, Fort Lauder-dale, for appellants.
    Mark Evan Kass of Mark Evan Kass, P.A., Miami, for appellee.
   PER CURIAM.

We affirm the summary final judgment of foreclosure. Even though an earlier foreclosure action filed by appellee was dismissed with prejudice, the application of res judicata does not bar this lawsuit. The first foreclosure action sought relief due to appellants’ failure to make payments from September 1, 1999 onward, with interest accruing from August 1, 1999 through February 1, 2000; this foreclosure action was based on appellants’ failure to make payments from April 1, 2000 onward, with interest accruing from March 1, 2000 through July 1, 2001. The second action involved a new and different breach.

In Capital Bank v. Needle, 596 So.2d 1134 (Fla. 4th DCA 1992), we wrote:

Our reading of the case law ... leads us to conclude that a final adjudication in a foreclosure action that also prays for a deficiency judgment on the underlying debt may, but does not necessarily, bar a subsequent action on the debt. For instance, if the plaintiff in a foreclosure action goes to trial and loses on the merits, we do not believe such plaintiff would be barred from filing a subsequent foreclosure action based upon a subsequent default. The adjudication merely bars a second action relitigating the same alleged default.

Id. at 1138 (emphasis in original); see also Olympia Mortgage Corp. v. Pugh, 774 So.2d 863 (Fla. 4th DCA 2000), review denied, 791 So.2d 1100 (Fla.2001).

AFFIRMED.

STEVENSON, GROSS and MAY, JJ., concur.


author: STEVENSON, J.

text:
    THE CLARK CONSTRUCTION GROUP, INC., Appellant, v. WENTWORTH PLASTERING OF BOCA RATON, INC., Employers Insurance of Wausau, Performing Arts Center Authority d/b/a Broward Center for the Performing Arts, and Benjamin Thompson & Associates, P.A., Appellees.
    No. 4D02-2442.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rehearing Denied April 9, 2003.
    Michael Evan Jaffe of Thelen Reid & Priest LLP, Washington, D.C., and William C. Davell of May, Meacham & Davell, P.A., Fort Lauderdale, for appellant.
    Bruce Charles King and Nicole R. Re-kant of Carlton Fields, P.A., Miami, for appellee Employers Insurance of Wausau.
   STEVENSON, J.

The sole issue in this appeal is the propriety of the trial court’s entry of final summary judgment in favor of appellee, Employers Insurance of Wausau, on statute of limitations grounds. We affirm.

This appeal has its genesis in the design and construction of the Broward Center for the Performing Arts. In June of 1986, the Performing Arts Center Authority (“PACA”) contracted with Benjamin Thompson and Associates, P.A. (“Thompson”) for the engineering, architectural and design services required for the project. In April of 1988, PACA contracted with The Clark Construction Group, Inc., f/k/a The George Hyman Construction Company (“Clark”), for the actual construction of the center. The project was completed and accepted in 1991.

In May of 1999, PACA filed suit against both Thompson and Clark, alleging that their respective negligence had resulted in the failure of the center’s stucco wall system and water damage. Clark, in turn, filed a third-party complaint against subcontractor Wentworth Plastering of Boca Raton, Inc. (“Wentworth”) and Employers Insurance of Wausau (“Wausau”). Went-worth had performed all of the plaster, gypsum, and stucco work; Wausau issued a performance bond in favor of Clark with respect to the subcontract. In count I of the third-party complaint, Clark alleged that subsection six of its contract with Wentworth obligated Wentworth to indemnify, defend, and hold Clark harmless for all costs incurred by Clark as the result of Wentworth’s failure to perform the subcontract. In count III, Clark alleged that because of its issuance of the performance bond, Wausau was obligated to indemnify and hold Clark harmless for any loss, damage, or expense incurred as a consequence of Wentworth’s refusal to indemnify Clark as required by the subcontract.

Wausau filed a motion for summary judgment with respect to the third-party complaint, asserting that Clark’s claim was barred by the five-year statute of limitations set forth in section 95.11(2)(b), Florida Statutes. Citing Federal Insurance Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119 (Fla.1998), Wausau argued that the five-year statute of limitations began to run in 1991, when the project was accepted. Clark took the position that its claim was really one for indemnity and that the statute of limitations did not begin to run until 1999, when it was sued by PACA and Wentworth refused to defend and indemnify Clark. The trial court sided with Wausau, finding that the issue was governed by the supreme court’s decision in Federal Insurance.

The parties to this appeal agree that the relevant statute of limitations is found in section 95.11(2)(b), Florida Statutes, which provides for a five-year statute of limitations for actions on a contract or written instrument. In Federal Insurance, our supreme court addressed section 95.11(2)(b) and its application to performance bonds. In that case, Southwest Florida Retirement Center, Inc. (“Southwest”) contracted with McMerit Construction Company (“general contractor”) for the construction of a retirement center. See 707 So.2d at 1119. Federal Insurance Company (“Federal”) issued a performance bond in favor of Southwest and Barnett Bank. The bond included language which incorporated by reference the terms of the construction contract, guaranteeing “faithful performance of the construction contract according to its terms and conditions.” Id. at 1120. Ten years after completion of construction of the project, latent defects were discovered. Southwest sued both the general contractor and Federal. With respect to Federal, Southwest alleged a breach of the performance bond for its failure to cure the general contractor’s warranty violation. The trial court found that the claim was barred by the five-year statute of limitations set forth in section 95.11(2)(b). The Second District reversed, and the case was presented to the supreme court.

The supreme court agreed that the language of the bond was sufficiently broad to make Federal liable for defective work performed by the general contractor upon the general contractor’s default. Nonetheless, the court found that there was no such liability in the case because the claim was time-barred.

[W]e do not agree with the district court’s majority that the five-year period would begin to accrue at a time other than acceptance of the construction. On this issue we agree with Judge Blue’s dissent and quash the majority’s decision. We expressly hold that section 95.11(2)(b), Florida Statutes (1981), as it applies to an action on a performance bond, accrues on the date of acceptance of the project as having been completed according to terms and conditions set out in the construction contract.

707 So.2d at 1121 (emphasis added). The supreme court specifically rejected Southwest’s attempt to avoid the statute of limitations by arguing that the contractor was not required to cure the default until 1994 and, thus, that the limitations period could not have begun to run until that time. See id. at 1121 n. 5 (“Regardless of the ‘spin’ put upon it, the statute of limitations for Federal’s obligation in respect to latent defects accrues from the acceptance of the construction project.”).

Clark seeks to avoid the supreme court’s holding by arguing that the bond at issue in this case is substantively different from the one in Federal Insurance. Clark contends that the language of the subcontract and the bond “not only covers the subcontractor’s bricks and mortar performance, but also imposes specific indemnification and hold harmless obligations on Wausau.” According to Clark, since it is Wausau’s indemnity obligations that are at issue, Federal Insurance simply has no application. We cannot agree. Even if we accept Clark’s contention that, here, the language of the bond and the subcontract impose separate and distinct indemnity obligations, this does not alter the fact that Clark’s claim against Wausau is still one for breach of a performance bond. Insofar as the running of the statute of limitations is concerned, we see little material distinction between the warranty obligation arising out of the performance bond in Federal Insurance and the “indemnity” obligation involved here. Consequently, like the trial court, we find that the case is governed by Federal Insurance and, thus, affirm.

AFFIRMED.

FARMER and HAZOURI, JJ., concur.

      . Subsequent to the June 1999 filing of Clark’s third-party complaint against Went-worth and Wausau, section 95.1 l(2)(b) was amended and now provides:
      Actions other than for recovery of real property shall be commenced as follows:

      (2) WITHIN FIVE YEARS.—

      (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(2)(a)2. and 713.23(l)(e).
      § 95.1 l(2)(b), Fla. Stat. (2002); see also Ch.2001-211, §§ 2 & 13, at 1880, 1888, Laws of Fla.

      . The subcontract between Wentworth and Clark provides in relevant part:
      6. Subcontractor’s Liability

      b. Subcontractor shall be liable to [Clark] for all costs [Clark] incurs as a result of Subcontractor’s failure to perform this Subcontract in accordance with its terms.... Subcontractor's liability shall include, but not be limited to (1) damages and other delay costs payable by [Clark] to Owner; ...; (3) warranty and rework costs; (4) liability to third-parties ....
      Additionally, exhibit D to the subcontract includes the following paragraph:

        "Indemnity:

      Subcontractor does hereby indemnify and save the contractor, owner and architect/engineer harmless of and from any loss, damage; cost and expense which the contractor, owner and/or architect/engineer may suffer or sustain or be threatened with liability, for, arising either under any workers' compensation law or otherwise, out of the performance of this subcontract by subcontractor, his agents, employees, material-men or sub-subcontractors

      . The bond includes the following language:
      WHEREAS, the Principal has entered into a written Subcontract with the Obligee, dated September 23, 1988, to perform, as Subcontractor, certain portions of the work in connection with said Prime Contract, consisting of gypsum plaster, veneer plaster, stucco and molded reinforced gypsum which Subcontract is hereby referred to and made a part hereof.
      NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above bounden Principal shall well and truly perform all the undertakings, covenants, terms, conditions, and agreements of said Subcontract within the time provided therein and any extensions thereof that may be granted by the Obligee, and during the life of any guaranty required under said Subcontract, and shall also well and truly perform all the undertakings, covenants, terms conditions, and agreements of any and all duly authorized modifications of said Subcontract that may hereafter be made, and shall indemnify and save harmless said Obligee of and from any and all loss, damage, and expense, including costs and attorney’s fees, which the said Obligee may sustain by reason of failure so to do, then this obligation shall be null and void; otherwise it shall remain in full force and effect.