author: PALMER, J.

text:
    DEPARTMENT OF REVENUE, o/b/o Foster Care, et. al., Appellant, v. Matthew V. YAMBERT, Appellee.
    No. 5D03-1327.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    Nathan G. Dinitz, Daytona Beach, for Appellee.
   PALMER, J.

In these paternity and child support actions, Florida’s Department of Revenue (DOR) appeals the final order entered by the trial court awarding appellee, Matthew Yambert, section 57.105 attorney’s fees. Concluding that the actions of DOR do not meet the standards set forth in section 57.105, we reverse.

DOR filed a complaint against Yambert seeking to establish his paternity regarding a child born in 1985. The matter proceeded to a hearing before a support enforcement officer who recommended that the matter be dismissed without prejudice because DOR had failed to join the child’s mother, who was an indispensable party. The trial court thereafter entered a dismissal order. DOR timely filed a notice of appeal, but later filed a notice voluntarily dismissing its appeal. Three months later, DOR filed a motion to voluntarily dismiss the paternity action without prejudice, and the trial court granted the motion. In response to the voluntary dismissal, Yambert filed a motion seeking an award of section 742.045 attorney’s fees.

While that attorney’s fee motion was pending, DOR filed an independent action against Yambert alleging a claim for child support. The complaint alleged that Yam-bert’s paternity had already been established (purportedly in a previous, unrelated dependency matter). Yambert filed a motion to dismiss the child support complaint, alleging res judicata and the failure to join the child’s mother as an indispensable party. The motion also requested an award of section 57.105 attorney’s fees.

The matter proceeded to a hearing on Yambert’s motion to dismiss wherein he argued that the first paternity lawsuit (which was still pending before a different judge on Yambert’s motion for section 742.045 attorney’s fees) was frivolous because it had sought a paternity adjudication when such an adjudication had already been entered in the dependency proceeding. DOR advised that it had only recently discovered that a paternity test had been taken by Yambert during the dependency proceeding and that Yambert had been determined to be the child’s father. However, DOR further informed the court that it had not yet obtained a copy of any paternity judgment. At that point, the trial court stated: “I think they may owe some attorney’s fees and court costs to somebody under 57.105.”

Counsel for Yambert agreed that fees were owing, but counsel for DOR objected on the basis of lack of notice, claiming that no notice had been given that the trial court would be considering the issue of attorney’s fee at this hearing. The court found that the record indicated that the dependency action involved the determination of Yambert’s paternity, but that DOR proceeded to file two subsequent paternity actions notwithstanding that fact. However, the trial court denied Yambert’s motion to dismiss, concluding that the grounds asserted in the motion were not sufficient to justify dismissal. At the same time, the court opined that dismissal of the child support action appeared to be available based on the fact that the issue of Yam-bert’s paternity had already been adjudicated in the dependency matter, but the court stated that issue would have to be addressed at a later time.

The court then addressed Yambert’s claims for attorney’s fees. The trial court first stated its conclusion that DOR’s appeal in the first case from the trial court’s order was frivolous, and then advised that it was awarding fees on “everything”, finding that DOR’s two cases were frivolous. While the court announced its ruling from the bench, no written order was entered at that time.

One month after the hearing, the earlier paternity case was reassigned to the circuit judge who was handling the child support case presumably so that the two cases could travel together. Soon thereafter, Yambert filed a supplemental motion for attorney’s fees in the initial paternity action adding a claim for section 57.105 fees. The motion also added a claim for fees incurred in the original appeal.

At the hearing on these motions, counsel for DOR advised the court that he had reviewed the contents of the file in the dependency action and discovered that Yambert had submitted to a paternity test and was determined to be the child’s father, but that the trial court had never entered a written paternity adjudication. Counsel argued that DOR’s paternity action and child support action were not unsupported claims since no paternity order had ever been entered against the father and, accordingly, an action for child support reimbursement could not be successfully maintained by DOR without establishing paternity. The court rejected this argument and noted on the record its opinion that the dismissal order which DOR appealed appeared to have been a non-final, non-appealable order and, therefore, the appeal was frivolous. The court then found that attorney’s fee awards were warranted under section 57.105 and entered awards accordingly. This appeal timely followed.

Section 57.105 authorizes an award of attorney’s fees in situations where it is established that the plaintiff or its counsel knew or should have known that its claim against the defendant “was not supported by material facts,” or “would not be supported by the application of then existing law to those material facts.” Our court reviews an order awarding section 57.105 attorney’s fees and costs for an abuse of discretion. Gahn v. Holiday Property Bond, Ltd., 826 So.2d 423 (Fla. 2d DCA 2002).

Here, the trial court actually entered three section 57.105(1) attorney’s fee awards. The first two awards pertained to fees incurred by Yambert in defending against DOR’s paternity action and request for a child support order. The trial court essentially concluded that DOR’s efforts in those two cases to obtain adjudications of paternity and child support constituted attempts to create a meritless controversy, basing its ruling on the fact that it appeared that the issue of Yam-bert’s paternity had already been established during the course of a previous unrelated dependency proceeding. DOR argues that the trial court abused its discretion by awarding Yambert such fees because the evidence of record was insufficient to support such an award. We agree.

To that end, while the instant record contains information indicating that Yam-bert is the child’s biological father (i.e., statements of counsel made during the course of the hearings below regarding previous DNA testing), the record fails to demonstrate that any paternity (or child support) order has ever been entered against Yambert with regard to the child at issue. During the hearings below the parties cited to the voluminous record in the dependency matter; however, no one was able to locate a written order adjudicating Yambert’s paternity. As such, it was improper for the trial court to conclude that DOR had the ability, but failed, to obtain conclusive evidence of Yambert’s paternity sufficient to avoid the necessity of prosecuting a formal paternity suit. Moreover, even assuming for the sake of argument that the issue of Yambert’s paternity had already been established in the dependency case, it cannot be said that DOR acted improperly in filing the two lawsuits against Yambert in an attempt to obtain a child support order since such an obligation had never been litigated or imposed. Stated another way, DOR’s attempt to prosecute a case against Yambert seeking to recover child support reimbursement cannot be found to have been “not supported by material facts” in light of the information indicating that Yambert is in fact the child’s biological father. As such, the trial court’s award of section 57.105 fees was not warranted. Compare Dep’t of Children & Family Services v. Carter, 851 So.2d 197 (Fla.5th DCA 2003)(holding parents who prevailed in a dependency action brought by DCF were entitled to attorney fees under statute which provided for award of fees as a sanction for baseless claims in a civil aetion); Dep’t of Revenue v. Smatt, 679 So.2d 1191 (Fla. 5th DCA 1996)(holding that DOR’s action in filing second paternity complaint was frivolous where DOR knew scientifically that it was impossible for defendant to be the child’s father).

As for the trial court’s third fee award, that award pertained to the fees incurred by Yambert in defending against the appeal filed by DOR in the paternity action. Although not argued by the parties, this award must be stricken by this court on the basis that the trial court lacked jurisdiction to enter an award of appellate fees. See Zweibach v. Richard Gordimer, C.P.A, 2004 WL 1778249, 884 So.2d 244 (Fla. 2d DCA Aug.ll, 2004)(explaining that it is improper for the trial court to award appellate attorney fees when the appellate court has not authorized such an award). See also Mulato v. Mulato, 734 So.2d 477 (Fla. 4th DCA 1999).

REVERSED.

SAWAYA, C.J., and PLEUS, J„ concur.

      . Section 57.105 of the Florida Statutes (2001) authorizes the award of attorney's fees as a sanction for raising unsupported claims:
      57.105. Attorney’s fee; sanctions for raising unsupported claims or defenses; service of motions; damages for delay of litigation
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.

        However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

      . Section 742.045 of the Florida Statutes (2001) authorizes the award of attorney’s fees in paternity actions as follows:
      742.045. Attorney’s fees, suit money, and costs
      The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.
      * * *
      The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).
      (Emphasis added).

      . DOR also argues that the instant attorney's fee award should be reversed because Yam-bert failed to comply with the procedural requirements set forth in the statute. More specifically, DOR cites to the statutory language which requires the moving party to file its motion with the trial court within 21 days after service of the motion. This argument was never raised to the trial court, and therefore, it has been waived for purposes of appellate review. See Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147 (Fla. 4th DCA 1992)(explaining that argument not specifically made before trial court could not be raised on appeal). Furthermore, the language of the statute specifically authorizes the trial court to award section 57.105(1) fees on its own “initiative”; therefore, the trial court did not abuse its discretion in overlooking Yambert’s purported procedural error.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Julie R. FROATS, Appellant, v. Jessica R. BARON, Michael S. Bernstein, et al, Appellees.
    No. 5D03-4180.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    R. David Ayers, Jr., Winter Park, for Appellant.
    A. Craig Cameron and G. Douglas Nail, of Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Orlando, for Appellee, Jessica R. Baron.
    Robert D. Keough and John E. DuBose, Jr., of Keough & DuBose, P.A., Orlando, for State of Florida, Department of Transportation.

      No Appearance for Appellees, Michael S. Bernstein, and Orange County, Florida.
   GRIFFIN, J.

This is the appeal of an order transferring venue in a personal injury action. Because we conclude that the trial judge acted prematurely, we reverse.

Julie Froats [“Froats”], the plaintiff below, was involved in two separate motor vehicle accidents. The first occurred on May 31, 2002, when she was rear-ended in Seminole County, Florida. The second occurred on August 22, 2002, when Froats was rear-ended a few miles away in Orange County, Florida.

The two accidents involved different drivers, but both drivers were insured by the same insurance company, which was Allstate. Additionally, Froats was actively receiving treatment for injuries sustained in the first accident to her neck and back when the second accident occurred. The second accident allegedly aggravated her pre-existing injuries, after which Froats continued treatment with the same physicians.

Froats brought one negligence action in Orange County, Florida, naming both drivers, as well as Orange County and the Department of Transportation [“DOT”] for their alleged role in the second accident. Count I sought damages for injuries caused by Jessica Baron [“Baron”] in the first accident. Count II sought damages for injuries caused by Michael Bernstein [“Bernstein”] in the second accident. Counts III and IV sought damages from Orange County and the DOT, respectively, for a defective traffic light which allegedly caused the accident with Bernstein. The complaint did not allege that the injuries sustained by Froats in the two accidents were the same or similar, or that they were difficult or impossible to apportion between defendants. Instead, as to each defendant, the complaint identically asserted that:

As a result [of the defendant’s negligence], Plaintiff, JULIE R. FROATS, suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of the capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of the ability to earn money, and aggravation of a previously existing condition. The losses are either permanent or continuing and Plaintiff will suffer the losses in the future.

Baron, the defendant involved in the Seminole County accident, filed a motion to transfer for improper venue and to sever the action against her. At a hearing on the motion, defendants argued that the claims arising out of the two accidents had to be brought in separate suits because Froats had not alleged that defendants were jointly and severally liable or that damages could not be apportioned. They contended that the cases should be bifurcated, and the Seminole suit should be transferred to Seminole County for the purposes of expediency, but the remaining claims should be retained in Orange County-

Froats asked to replead her complaint, if that were deemed necessary by the court, to better plead joint and several liability. Nevertheless, the court granted the motion to dismiss and the motion to bifurcate, commenting:

[I]t’s not easy for the plaintiff in this position because you’re saying that you really can’t say from which accident the injuries were sustained. But I don’t think it’s appropriate to leave it together because you got two separate cases and probably ought to be two separate lawsuits ....

On appeal, Froats contends that she was entitled to bring all of her claims in Orange County, Florida, although they involve two separate accidents, which occurred in separate counties. Defendants Baron and the DOT argue that the trial court acted within its discretion in transferring venue of the claim against Baron to Seminole County because of Froats’ failure to plead that defendants were jointly and severally liable for her injuries.

In Florida, a plaintiff who is injured in two successive accidents may bring one suit where the accidents cause the same or similar injuries and it is difficult or impossible to apportion the injuries between the two tortfeasors. See Lawrence v. Hethcox, 283 So.2d 41 (Fla.1973); Silvers v. Wal-Mart Stores, Inc., 760 So.2d 232 (Fla. 4th DCA 2000); Hemingway v. Bresney, 733 So.2d 1135 (Fla. 4th DCA 1999); Maser v. Fioretti, 498 So.2d 568 (Fla. 5th DCA 1986). The defendants in such actions are subject to joint and several liability, even though their negligence is successive. See, e.g., Gross v. Lyons, 763 So.2d 276 (Fla.2000); Morton Roofing, Inc. v. Prather, 864 So.2d 64 (Fla. 5th DCA 2003); Randle-Eastern Ambulance Serv., Inc. v. Millens, 294 So.2d 38 (Fla. 3d DCA 1974). Furthermore, where the accidents or injuries occur in different counties, all of the defendants may be sued together in one of the counties in which one of the causes of action arose. Highland Ins. Co. v. Walker Memorial Sanitarium & Benevolent Ass’n, 225 So.2d 572 (Fla. 2d DCA 1969); see also Feeley v. Lagergren, 478 So.2d 496 (Fla. 5th DCA 1985).

The problem in this case concerns the failure to clearly allege that the injuries sustained by Froats in the two accidents were difficult or impossible to apportion between defendants. The lack of a similar allegation resulted in the affirmance of an order transferring an action for improper venue in E.A.W. v. Orlando Regional Medical Center, Inc., 424 So.2d 189, 189-90 (Fla. 5th DCA 1983), the primary case relied upon by both Baron and the DOT.

Under the circumstances of this case, however, the problem is essentially one of pleading and Froats should have the opportunity to make the necessary allegations. The request to amend was timely and the privilege of amendment had not been abused. See Hemingway, supra.

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ., concur.

      . Bernstein and Orange County have not appeared in this appeal.


author: WEBSTER, J.

text:
    STATE of Florida, Appellant, v. Joseph RAKER, Appellee.
    No. 1D03-5129.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.

      Charlie Crist, Attorney General, Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellant.
    Richard H. Smith, Tallahassee, for Ap-pellee.
   WEBSTER, J.

The state seeks review of an order granting appellee’s motion to suppress. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.140(c)(1)(B). Because we conclude that the trial court erred, we reverse.

The evidence is undisputed. Only the arresting officer, a Wakulla County Sheriffs Department deputy, testified. She said that she was returning to the sheriffs office in a marked patrol car at approximately 10:40 p.m., when she saw a vehicle stopped behind the jail, in an area not designated for parking. The vehicle’s lights were off. However, when the driver saw her approaching, the headlights were illuminated and the vehicle proceeded toward her. While the vehicle was stopped at a stop sign, she pulled up next to the driver’s window and engaged appellee in conversation. She had neither the siren nor the lights activated. The deputy testified that she said “Hello,” introduced herself and asked, “How are you?” In response, and without her asking, appellee simply handed her an identification card. She then asked appellee what he was doing, and appellee answered that he was turning around. She asked if appellee had a driver’s license, and appellee responded that it had been suspended. At that point, the deputy saw that the younger of two small children in the vehicle had begun to cry, so she backed up, got out of her car and approached appellee’s vehicle in an effort to calm the children. While she was speaking to appellee through his window, she smelled marijuana. She then searched his vehicle, discovering cocaine and marijuana.

After having heard the deputy’s testimony, the trial court concluded that the deputy had lacked probable cause to stop appellee and, accordingly, granted the motion to suppress. This was error. Having carefully reviewed the record, we conclude that no competent, substantial evidence exists to support the trial court’s conclusion that a “seizure” occurred for Fourth Amendment purposes. Rather, it is apparent that what occurred was a consensual citizen encounter. See, e.g., State v. Ferrell, 705 So.2d 1051, 1052 (Fla. 1st DCA 1998) (absent any indicia of coercion, the mere fact that a law enforcement officer asks some questions will not turn a consensual encounter into a seizure); State v. Christman, 838 So.2d 1189, 1191 (Fla. 2d DCA 2003) (stating that “an officer is entitled to request identification and a driver’s license as part of a consensual citizen encounter”).

There was no “stop” initiated by the deputy because appellee was already stopped at a stop sign. There was no evidence whatsoever that appellee was not perfectly free to discontinue the consensual encounter and go on about his business until at least the point when appellee told the deputy that his driver’s license had been suspended. At that point, the deputy clearly had probable cause to arrest appel-lee for driving while his license was suspended, and to conduct a search incident to that arrest. Accordingly, the trial court should not have suppressed the fruits of that search.

The order granting the motion to suppress is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

KAHN and POLSTON, JJ., concur.


author: KELLY, Judge.

text:
    Armando R. EASTMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D04-1893.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2004.

      Armando R. Eastman, pro se.
    Charles J. Crist, Jr., Attorney General, and Joy A. Stubbs Assistant Attorney General, Tallahassee, for Respondent.
   KELLY, Judge.

Armando R. Eastman seeks cer-tiorari review of the circuit court’s denial of his petition for writ of mandamus, a proceeding that sought review of a decision by the Department of Corrections on a prison disciplinary matter that resulted in disciplinary confinement and forfeited gain time. We convert the proceeding to an appeal and affirm, because the circuit court for Hillsborough County correctly determined that the petition for writ of mandamus was untimely filed. As a consequence of an incorrect decision by the circuit court in a county outside this district, reached before he sought review in Hillsborough County, Eastman may be foreclosed from ever receiving the judicial review of the ruling of the Department of Corrections he has pursued with diligence.

Following the exhaustion of his administrative remedies, Eastman filed a timely petition for writ of mandamus in the circuit court for Leon County, the appropriate venue for such an action. See Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003). The circuit court in Leon County, however, dismissed the petition for lack of jurisdiction, relying on the supreme court’s decision in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). In so ruling, the Leon County Circuit Court reasoned that Eastman’s gain time challenge is analogous to a collateral challenge to a sentence and that the claim must be raised in the sentencing court.

Instead of appealing the dismissal, Eastman presumed the decision was legally correct; he then initiated a mandamus proceeding in the county in which he was sentenced, Hillsborough County. By this time his petition in Hillsborough County had two defects: First, it was untimely pursuant to section 95.11(8), Florida Statutes (2003), which became the basis for its eventual dismissal; and second, Hillsbor-ough County was not a proper venue in which to raise the matter. The only circuit courts with proper venue to consider Eastman’s claim were those in Leon County, the headquarters of the Department of Corrections, Stovall, 860 So.2d at 7, and in the county of his confinement, which at no pertinent time was Hillsborough County.

Eastman’s was not the only mandamus petition filed by a prisoner in Leon County that was dismissed based upon the circuit court’s reading of Schmidt. Lance Burgess suffered a dismissal of his petition for writ of mandamus. Instead of following the direction from the circuit court as did Eastman, however, Burgess sought review in the First District and prevailed. Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The First District held that a challenge to a forfeiture of gain time does not constitute a collateral challenge to a sentence and reversed the Leon County Circuit Court’s dismissal of the mandamus proceeding.

That the First District has now inferentially determined that the Leon County Circuit Court’s treatment of Eastman’s petition was also erroneous may provide Eastman little solace at this point. He failed to pursue appellate review of the defective circuit court order from Leon County and now finds himself time-barred to seek review once again in Leon County or the county of his confinement. Whether he can fashion a sufficient motion pursuant to Florida Rule of Civil Procedure 1.540 that would persuade the circuit court in Leon County to vacate its erroneous order of dismissal and entertain the mandamus petition on its merits at this time is not a matter before us.

Our jurisdiction is limited to reviewing the circuit court order from Hillsborough County that dismissed Eastman’s claim as time-barred. While venue did not lie in Hillsborough County, there was no absence of jurisdiction to entertain the petition. The circuit court reached the correct result when it dismissed the petition as untimely filed.

Affirmed.

ALTENBERND, C.J., and FULMER, J., Concur.

      . Had the circuit court ruled upon Eastman’s petition for writ of mandamus on its merits, certiorari review would be appropriate. See Sheley v. Fla. Parole Comm'n, 720 So.2d 216 (Fla.1998). When the circuit court disposes of such a petition on grounds other than upon the merits, appeal is the proper avenue for review. See Green v. Moore, 111 So.2d 425 (Fla. 1st DCA 2000).

      . In Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003), this court determined that the Department of Corrections properly invoked its home venue privilege and that the circuit court in the county in which the prisoner was housed, Polk, improperly denied the Department’s motion for change of venue. While Stovall does not precisely articulate this, nothing in that opinion should be read to suggest that Polk County was an improper venue. The decision simply holds that the circuit court erred in failing to grant the Department's motion to change the venue to the locale of its headquarters, Leon County.


author: THOMPSON, J.

text:
    James HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3632.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.

      James Henderson, Apalachicola, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

James Henderson appeals the denial of his post-conviction motion filed pursuant to Rule 3.800. He argues on appeal that the trial court erred when it refused to appoint counsel to represent him at his evidentiary hearing and that his counsel was ineffective under the criteria established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We disagree and affirm.

Because a post-conviction motion is a civil matter, a defendant is not entitled to an attorney unless the assistance of counsel is essential to accomplish a fair and thorough presentation of the claims. See Ladson v. State, 829 So.2d 305 (Fla. 5th DCA 2002); Hylleberg v. State, 729 So.2d 409 (Fla. 5th DCA 1999); Wheeler v. State, 807 So.2d 94 (Fla. 1st DCA 2002). In this case, we agree with the trial court that the issues were factual and not complex and that the trial court was not required to appoint counsel to represent Henderson at the evidentiary hearing. Henderson was able to call witnesses, including his trial attorney, and able to cross-examine the witnesses called by the state.

AFFIRMED.

PLEUS and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    Roger MILLER, Appellant, v. YANMAR DIESEL AMERICA CORP., Cody Trent d/b/a Trent Auto Sales; Lee Ransom, and Frederick’s Equipment Company, Appellees.
    Nos. 1D04-0143, 1D04-0251.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.

      Dixie D. Powell, Esquire, of Powell, Powell & Powell, Crestview; Arden J. Lea, Esquire, Bruce, for Appellant.
    J. Andrew Talbert, Esquire, of Boze-man, Jenkins & Matthews, P. A., Pensacola; Bobby L. Whitney, Jr., and Melanie Shaw Seymour, of Seymour & Whitney, Fort Walton Beach; Alan R. Horky, Esquire, of Fuller, Johnson & Farrell, P. A., Pensacola, for Appellees.
   PER CURIAM.

This case arises out of a tractor accident, occurring when Appellant Roger Miller started a Yanmar brand tractor while standing on the ground beside it, just in front of the tractor’s left rear wheel. As Miller cranked the engine, he was struck by the tractor as it lurched forward. Miller asserts that the appellees provided a tractor that was defective because it lacked a safety switch to prevent it from being started while in gear and that the appellees should have provided warnings that the tractor did not have a safety switch. We agree with Miller that the trial court erred in granting final summary judgment in favor of Appellees Lee Ransom and Cody Trent d/b/a Trent Auto Sales because there are disputed issues of fact.

Appellees’ motion for summary judgment did not address the defective product claim. Whether or not the absence of a safety start switch rendered the tractor defective is an issue of fact that needed to be determined by the trier of fact.

Summary judgment was also improper regarding the lack of warnings. See Giddens v. Denman Rubber Mfg. Co., 440 So.2d 1320, 1322 (Fla. 5th DCA 1983) (reversing judgment for defendant tire manufacture and holding that whether the existence of warnings on the tire would have alerted the plaintiff, who was injured while installing a tire, to the fact that he was installing a 16-inch tire, rather than a 16.5-inch tire, was a question for the jury); Brown v. Glade and Grove Supply, Inc., 647 So.2d 1033, 1035-36 (Fla. 4th DCA 1994) (discussing adequacy of warning).

REVERSED and REMANDED for further proceedings.

DAVIS, LEWIS and POLSTON, JJ., CONCUR.


author: STRINGER, Judge.

text:
    James P. NAULT, Jr., Appellant, v. Su NAULT, Appellee.
    No. 2D04-1801.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2004.
    Allison M. Perry of Allison M. Perry, P.A., Tampa, for Appellant.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellee.
   STRINGER, Judge.

James P. Nault, Jr., the Husband, seeks review of the trial court’s order awarding Su Nault, the Wife, temporary attorney’s fees of $25,000. We conclude that the trial court did not abuse its discretion in making the award and affirm.

At the time of the fee hearing, the Wife’s counsel asserted that she had already paid $15,000 and needed an additional $45,000 for attorney’s fees just to get the case to mediation. The parties had been married approximately two years at the time of separation. They earn substantially similar incomes, but the Husband has a substantial ownership interest in nineteen mobile home parks. Although the Wife conceded that the parks are non-marital property, her counsel asserted that she intends to procure costly appraisals of each of the parks in the course of determining whether there was a marital enhancement of those assets. The trial court awarded the Wife $25,000 in attorney’s fees and required her to pay the remaining $20,000. However, the court asserted that the parties were engaging in gamesmanship and warned the Wife that she could ultimately end up “bearing the impact” of the attorney’s fee award.

We think it would have been more reasonable for the Wife to litigate the legal question of whether there was a marital enhancement of the Husband’s mobile home parks prior to obtaining appraisals of the parks. However, we cannot say that the trial court abused its discretion in awarding the Wife attorney’s fees. We echo the court’s concern regarding the parties’ conduct and note that the court may credit the Husband for his litigation expenses should it ultimately determine that the appraisals were avoidable. See Walker v. Walker, 827 So.2d 363 (Fla. 2d DCA 2002); Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991).

Affirmed.

ALTENBERND, C.J., and DAVIS, J., Concur.


author: DAVIS, Judge.

text:
    Johnny J. HARRISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-876.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2004.
   DAVIS, Judge.

Johnny James Harrison, Jr., challenges the order of the trial court denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Harrison raised three grounds for relief in his motion. We affirm, without comment, the trial court’s order as it relates to two of the grounds. We reverse the trial court’s order as it relates to the remaining ground.

Harrison pleaded guilty to trafficking in cocaine, 28 grams or more but less than 200 grams, and possession of cocaine with intent to deliver. He was sentenced as a habitual offender to thirteen years’ prison concurrent on each offense. The offenses were committed on June 4, 1996. In ground one of his motion, Harrison alleged that neither offense was subject to habitual offender sentencing under the guidelines in effect at the time. Harrison is correct in this assertion, and he has presented a facially sufficient ground for relief. See Virgil v. State, 2004 WL 2008501, 884 So.2d 373 (Fla. 2d DCA Sept.10, 2004).

Section 893.135(l)(b)(l)(a), Florida Statutes (1995), “provides that if the quantity of the cocaine involved is 28 grams or more but less than 200 grams, the defendant shall be sentenced pursuant to the sentencing guidelines.” Virgil, 884 So.2d at 374. Furthermore, “[p]ursuant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual offender for violating section 893.13 relating to the purchase or the possession of a controlled substance.” Id. As noted in Virgil, “[t]his includes the offense of possession of cocaine with intent to sell or deliver.” Id.

We therefore reverse the trial court’s denial of this claim and remand for further proceedings. If, as it appears, Harrison entered a negotiated plea to the habitual offender sentences imposed in this case, “the trial court must permit the State either to agree to resentencing or to withdraw from the plea agreement and proceed to trial.” Id. Otherwise, the trial court must resentence Harrison on each offense pursuant to the guidelines in effect at the time of the offense. See Virgil, 884 So.2d at 374.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

      . In ground one of his motion, Harrison actually presented two grounds for relief.

      . The trial court did not specifically address this claim in its order denying Harrison's motion.


author: FLETCHER, Judge.

text:
    John H. FARO, Appellant, v. CORPORATE STOCK TRANSFER, INC., Appellee.
    No. 3D03-1683.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      John H. Faro, in proper person; Robert H. Cooper, Aventura, for appellant.
    Berliner McDonald and Martin M. Berliner (Greenwood Village, Colorado); Bruce C. King, Maria C. McGuinness, Carlton Fields, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

John H. Faro, who was the plaintiff in the circuit court, appeals that court’s final judgment in favor of Corporate Stock Transfer, Inc, [CST] and an order denying Faro’s motion to amend his complaint. We reverse and remand for amendment of the pleadings.

This matter began when a company named Music Tones, Ltd., Inc., entered into a reverse merger with Simplex Medical Systems, Inc. [Simplex Florida]. Upon merger the successor corporation changed its name to Simplex Technologies, Inc. [Simplex Colorado], Pursuant to a share exchange agreement shareholders of Simplex Florida were entitled to submit their stock certificates in exchange for Simplex Colorado shares. CST was engaged by Music Tones as the transfer agent for the stock exchanges.

Faro submitted three Simplex Florida certificates (representing thousands of shares) to CST for exchange. CST complied as to two of the certificates by issuing stock to Faro. As to the third certificate, however, CST refused to acknowledge Faro’s ownership interest on the stated basis that the corporate records did not reflect Faro’s ownership of these shares. Faro filed suit, which ultimately resulted in our decision determining that Faro was the owner of the disputed certificate (thus was entitled to a writ of mandamus compelling the exchange for the Simplex Colorado stock). CST ultimately issued the stock.

On return to the circuit court Faro sought to amend his complaint to seek damages from CST. In opposition, CST contended that as a transfer agent it was only a deliverer and is not liable for any damages. The circuit court agreed with CST, declined the amendment, and entered judgment for CST, finding that the Florida Statutes governing the obligations of transfer agents did not place a duty on CST to comply with Faro’s request for the stock exchange.

Chapter 678, Florida Statutes (1999) is part of the Uniform Commercial Code [U.C.C.] (Article 8) relating to investment securities. Part TV thereof, comprised of sections 678.4011-678.4071 (1999), governs security transfer registrations. Section 678.4011(2) provides:

“If an issuer is under a duty to register a transfer of a security, the issuer is liable to a person presenting a certificated security or an instruction for registration or to the person’s principal for loss resulting from unreasonable delay in registration or failing or refusal to register the transfer.”

Under similar language of former section 678.401(2), Florida Statutes (repealed by Ch. 98-11, sec. 25), the Fourth District Court of Appeal in Burtman v. Technical Chemicals and Products, Inc., 724 So.2d 672, 675-76 (Fla. 4th DCA 1999) concluded that “a proper reading of the statute is that the right to compel registration and the right to recover damages from the delay or refusal to register are cumulative remedies.” Faro I, therefore, does not preclude an action for damages. Section 678.4011(2), however, only deals with “the issuer.” CST is a “transfer agent.” The question then is whether a transfer agent may be liable for its own delay, failure, or refusal. In that regard section 678.4071, Florida Statutes (1999) provides:

“A person acting as authenticating trustee, transfer agent, registrar, or other agent for an issuer in the registration of a transfer of its securities, in the issue of new security certificates or uncertifi-cated securities, or in the cancellation of surrendered security certificates has the same obligation to the holder or owner of a certificated or uncertificated security with regard to the particular functions performed as the issuer has in regard to those functions.”

On CST’s urging the trial court held that section 678.4071 does not apply to CST. This had the effect of placing CST in the realm of the common law, pre-Uniform Commercial Code. At common law a transfer agent could not be held liable to a stockholder for damages for wrongful refusal to transfer shares, the theory being that the transfer agent serves only as agent for the corporation. See Kenler v. Canal Nat’l Bank, 489 F.2d 482 (1st Cir. 1973); Welland Investment Corp. v. First Nat’l Bank of Jersey City, 81 N.J.Super. 180, 195 A.2d 210 (1963).

Florida’s and other states’ adoption of the U.C.C., however, abrogated common law where adopted, thus having the salutary effect of encouraging more honesty and fair dealing by transfer agents (and others). Common law having been abrogated, numerous states that have adopted the same U.C.C. provisions as adopted by Florida have concluded that a coextensive duty (with the issuer) has been placed upon the transfer agent, and that wrongful refusal by the transfer agent to register a requested transfer makes the agent liable to the damaged shareholder. See Kenler, supra (Maine); Welland, supra (New Jersey); Cohen v. Bankers Trust Co., 445 F.Supp. 794 (S.D.N.Y.1978)(Delaware & New York); Cowen & Co. v. Atlas Stock Transfer Co., 695 P.2d 109 (Utah 1984)(Utah). See also 12 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations, § 5525 (perm.ed., rev.vol.2004).

We see no basis for a contrary interpretation and result here. Accordingly we reverse the final judgment and remand the case to the circuit court with instructions to permit Faro to amend his pleadings.

Reversed and remanded with instructions.

      . Faro v. Simplex Med. Sys., Inc., 748 So.2d 342 (Fla. 3d DCA 1999) [Farol].

      .Faro contends that the actual delivery time was such that the stock value had decreased from its value on the date it should have been delivered, a fact unknowable until actual delivery, thus he should have been permitted to amend his pleadings.

      .Although Simplex Colorado is a Colorado corporation, therefore Colorado law might have governed Faro I, see American Sec. Transfer, Inc. v. Pantheon Indus., Inc., 871 F.Supp. 400 (D.Colo.1994), the parties relied upon Florida law. This court in Faro I applied Florida law.

      . It has not always been sufficient encouragement. See, for example Bender v. Memory Metals, Inc., 514 A.2d 1109, 1112 n. 4 (Del.Ch.1986) wherein U.C.C. compliance was withheld for inappropriate personal gain. This attempt at unfairly advancing personal interests echoes Groucho Marx' coincidental observation: "The secret of life is honesty and fair dealing — if you can fake that, you've got it made.”


author: SHEPHERD, J. GODERICH, J.

text:
    Ernesto MONCALEANO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D03-718.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Ernesto Moncaleano, in proper person.
    John D. Maher, for appellees.
    Before COPE, GODERICH, and SHEPHERD, JJ.
   SHEPHERD, J.

We are confronted here with a claimant seeking unemployment compensation benefits after violating his hotel-employers policy by secretly smoking in non-designated areas and eating food and beverage created for guest use. We affirm the decision of the Unemployment Appeals Commission which found no error with the findings of the Appeals Referee.

In this case, the claimant, Ernesto Moncaleano, was a hotel banquet waiter. The hotel had policies barring employee use of guest items without permission from hotel authority, as well as smoking in non-designated areas and the taking of unauthorized breaks. The hotel strictly prohibited employees from taking food items created for guest use, and even accommodated employees needs by providing an employees cafeteria. The claimant concedes that group meetings were held, and handbooks distributed in which he was made aware of these policies.

The claimants first warning came in 1994 as a result of smoking in a non-designated area. The claimant was again apprised of hotel policy in March 2002, when he was caught eating food designated for hotel guests. As a consequence of claimants conduct, he was suspended for two days. Three months later, a supervisor found the claimant taking an unauthorized break in a nearby stairwell. A soiree from that evening was winding down, and the claimant made for himself a cola in a high ball glass from the party. He was sitting on a guest towel, with the cola in one hand and an unlit cigarette in the other. He was told to go home by his supervisor, and was subsequently fired.

In his defense, the claimant explained to the Appeals Referee that he had neither sipped the cola nor inhaled the cigarette braced between his fingers. The claimant maintained that he was an incidental beneficiary of a soft guest towel left in the stairwell for days by an unknown factor. He also tried absolution by pointing to other waiters with whom he had previously congregated in the dark recesses of the hotel, taking cigarette breaks in violation of known company policy. The claimant believed he was being singled out, but could not name one single employee who had not been discharged as a result of the same conduct. The Appeals Referee found that the claimant was discharged due to misconduct, and denied him unemployment compensation benefits. The Unemployment Appeals Commission affirmed the ruling. This appeal follows.

Moncaleano’s “consistent refusal to abide by his employers appropriate instructions was properly found in deliberate violation or disregard of standards of behavior which the employer had the right to expect ... ”’ Zorrilla v. Florida Unemployment Appeals Comm’n, 645 So.2d 1078 (Fla. 3d DCA 1994), citing § 443.036(26), Fla. Stat. (1993). This court has held that failure to follow the requests and admonitions of immediate supervisors is a legitimate basis for discharge on the basis of misconduct. Bozzo v. Safelite Glass Corp., 654 So.2d 1042 (Fla. 3d DCA 1995). See also Rubido v. Brinks, Inc., 601 So.2d 1298 (Fla. 3d DCA 1992) (deliberate violation of company rules deemed misconduct). In this case, the claimants actions were clearly more than an isolated incident of poor judgment. In fact, Moncaleanos case can be distinguished by his running history of repeated warnings, as opposed to the cases for first-time, usually trivial violation of company policy. Zorrilla, 645 So.2d at 1078. Claimant admits that he was aware of the hotels policy on non-designated-area smoking and consuming guest food and beverages. Claimant admits that he was previously warned about the cigarettes and placed on a two-day suspension regarding the ingestion of an hors d’oeuvre. Despite said notice, the claimant bypassed hotel policy by making his next violation more spectacular than his last. And, if these three instances were not enough, claimant certainly does not help his cause by admitting to the Appeals Referee that he and other waiters would, on occasion, abuse the employers policies by fraternizing and smoking in the stairwell. His protest that he “neither sipped nor inhaled,” but was just pondering options while resting on a conveniently found guest towel, are hardly the ruminations of one guilty of a thoughtless mishap. Moncaleano’s confessions prove that he was familiar with the expectations of his employer, yet he knowingly disregarded same.

Unemployment Appeals Commission decisions are entitled to a presumption of correctness on appeal and will not be disturbed if supported by competent, substantial evidence. See Garcia v. Florida Unemployment Appeals Comm’n, 872 So.2d 966, 969 (Fla. 3d DCA 2004); Nisbet v. Publix Super Markets, Inc., 769 So.2d 1120, 1121 (Fla. 2d DCA 2000). “In reviewing whether the record contains substantial competent evidence to support the appeals referee’s findings, the District Court of Appeal cannot make determinations as to credibility or substitute its judgment for that of the referee.... Thus, the appeals referee’s decision must be upheld where there is substantial competent evidence to support it.” Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 502 (Fla. 4th DCA 2004); San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93, 95 (Fla. 4th DCA 1998). We find that there is substantial competent evidence to support the decision of the Unemployment Appeals Commission. See Florida Industrial Commission v. Nordin, 101 So.2d 890, 891 (Fla. 1st DCA 1958).

Affirmed.

COPE, J., concurs.

GODERICH, J.

(dissenting).

I respectfully dissent.

The employer hired the claimant in May of 1993 to work as a hotel banquet waiter. In June 1994, the claimant was issued a warning for smoking in a non-designated area. In March 2002, the claimant was reprimanded for eating food that was designated for the use of guests — one hors d’oeuvre.

On June 1, 2002, the claimant was serving at a high school function. As the event was winding down, a hotel supervisor found the claimant in a stairwell with an unlit cigarette and a soda. Moreover, the claimant was sitting on a hotel guest towel. The claimant was later discharged for this incident.

After he was discharged, the claimant filed for unemployment compensation benefits. The appeals referee found that the claimant was disqualified from receiving benefits because he was discharged for misconduct connected with work as defined in section 443.036(29), Florida Statutes (2002). The Unemployment Appeals Commission [UAC] affirmed the decision of the appeals referee. The claimant filed this timely appeal.

“In determining whether misconduct has occurred, the statute should be liberally construed in favor of the claimant.” Crosby v. Unemployment Appeals Comm’n, 711 So.2d 260, 262 (Fla. 5th DCA 1998) (citations omitted); accord Bivens v. Trugreen LP, 845 So.2d 347 (Fla. 2d DCA 2003). Moreover, “[mjisconduct serious enough to warrant an employee’s dismissal is not necessarily serious enough to warrant the forfeiture of compensation benefits.” Benitez v. Girlfriday, Inc., 609 So.2d 665 (Fla. 3d DCA 1992); accord Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235 (Fla. 2d DCA 2003); Bivens; Rodriguez v. Svinga Bros. Corp., 802 So.2d 455 (Fla. 3d DCA 2001).

In contrast to the majority, when considering whether the claimant’s conduct constitutes misconduct connected with work, I would not place any emphasis whatsoever on the 1994 cigarette smoking incident that took place approximately eight years prior to the incident for which he was discharged. Although the claimant had been given a warning about smoking in a non-designated area eight years earlier, the prior smoking incident “is too remote in time” to elevate the second smoking incident “into more than an isolated occurrence for this longtime, well-regarded employee.” Jackson v. Unemployment Appeals Commission, 730 So.2d 719 (Fla. 5th DCA 1999)(“Even though [claimant] had been given a warning about fighting nine years earlier, the prior incident is too remote in time to elevate the second fight into more than an isolated occurrence for this longtime, well-regarded employee.”). Therefore, when determining whether the claimant’s conduct constitutes misconduct connected with work, the 1994 incident cannot be considered.

Following the 1994 incident, the claimant’s employment record was flawless until reprimanded in March of 2002, for eating, out of the sight of hotel guests, a single hors d’oeuvre that had fallen from a tray. Thereafter, in June 2003, the claimant was discharged because he was found in a stairwell with an unlit cigarette and a soda.

When taking these incidents into account, I do not believe that the claimant’s conduct constitutes misconduct connected with work. The March 2002 incident was, in my opinion, trivial — eating a single hors d’oeuvre that .had fallen from a tray. The June 2002 incident, when looked at in light of the fact that the claimant had worked for several hours straight without taking a break and that the claimant’s actions in no way interfered with the high school event, was not serious enough to disqualify the claimant from receiving benefits, although possibly serious enough to warrant his dismissal. Accordingly, I would reverse the order of the UAC.

      . The claimant testified that he found the towel in the stairwell and there was no evidence presented that contradicted this testimony.


author: WARNER, J.

text:
      Guerry Jean JACQUES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-11.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Guerry Jean Jacques, pro se, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The issue presented in this appeal from convictions of attempted first degree murder and shooting into an occupied vehicle is whether the trial court’s remarks rebuking the defense attorney for what the court thought was an erroneous recitation of evidence amounted to fundamental error. Because the trial court’s comments went to the very heart of the defense, we hold that fundamental error occurred and reverse.

Appellant, Guerry Jean Jacques, was charged with attempted first degree murder of both Sonny Hilaire and his girlfriend Natacha Fondrose. The incident in question occurred when Hilaire and Fondrose went to a house party at which Jacques was in attendance. Both Fond-rose and Hilaire were drinking at the party. Fondrose was told by another partygoer that Hilaire and Jacques were arguing. She confronted Jacques who told her not to worry about it. Fondrose and Hilaire left shortly thereafter in Fondrose’s vehicle. As she drove away, Fondrose stated that she did not see Jacques, but in a statement to the police the day after the incident, she said that as she turned at an intersection, she saw Jacques get out of his truck and stand by the door with something in his pocket. Fondrose then heard shots. Hilaire told her that he had been shot and instructed her to get down and drive him to the hospital. On the way to the hospital, Fondrose was stopped by a police officer. She told the officer, “This guy Guerry shot my boyfriend,” at which point the officer called 911.

At trial, Fondrose testified that although it was dark at the time and she did not see Jacques, she told the police that Jacques was the shooter because of the argument that had occurred earlier in the evening. However, after all the hysteria died down, Fondrose decided she was not sure who the shooter was. She testified to this in a deposition taken by defense counsel four months after the shooting.

For two months prior to the trial, Fond-rose was living with the long-time girlfriend of Jacques, Tatiana Florisma. On cross-examination by the state, Fondrose denied that the fact she and her baby were living with Jacques’s girlfriend had any bearing on her testimony. She said no one threatened her to change her story; her change of mind occurred before she moved in with Florisma. Fondrose also stated that prior to the deposition, Hilaire told her that he was not sure who the shooter was.

On re-direct the court granted the state’s request to have Fondrose declared a hostile witness. The state impeached Fondrose’s change of testimony with her statement given to police. In that statement, Fondrose said the shooter was a couple of feet away. Now she claimed that she did not remember anything about the shooter. Although she testified on cross-examination that Hilaire was probably drunk on the night of the incident, she told the police that night that he did not appear drunk to her.

Hilaire also testified at trial and identified Jacques as the shooter. The officers who investigated all testified that Fond-rose and Hilaire each identified Jacques as the perpetrator of the crimes against them.

After the state rested, Jacques called his girlfriend, Florisma, who testified that she picked Jacques up from the party on the night of the incident and they went to a club and then to a restaurant. They were together until 5:30 a.m. A friend who accompanied them to the bar that night also testified that they were all together.

In closing argument, Jacques’s counsel was discussing Fondrose’s testimony. Fondrose’s recantation of her statements identifying Jacques to police the night of the shooting was obviously crucial to his defense. The following unobjected-to comment was made:

Now one of the fundamental things that [Fondrose] said and I think that you believed her, she said she was drinking too. She said that everybody at the party was having fun and the liquor was just going down. And the State called Natacha Fondrose and the State doesn’t like what she has to say, she’s a hostile ... witness to them, but did the State give you any real reason to demonstrate that honest reflection of what she observed ... that night. Remember she was drinking at the party too. She suffers from impairment from drinking just as anyone else does. Even Detective Healey said that he could tell that she had been partying that evening.
Now the difference between [Fondrose] and [Hilaire] is when [Fondrose] sobers up [she] considers what she saw and more importantly what she didn’t see. She says, wait a minute. I’m not sure. That was an honest assessment by a person who frankly has no reason to lie, no reason to lie, no bias at all, no bias to help him out, no bias to hurt [Hilaire]. Remember, she first went on record and said she wasn’t sure who the shooter was in August of 1999, and at that time she was still [Hilaire’s] girlfriend. She was in fact pregnant with her now eight month old baby that is also [Hilaire’s] baby, and at the time she wasn’t living with the Defendant’s girlfriend. This a year prior to her moving in with Tatia-na. What is her basis to say in August of 1999, I’m not sure who the shooter is. There is no bias. There is no bias to help out the Defendant at that point in time. The whole suggestion that she’s moved in with the girlfriend and how her story—
The Court: That’s not what she said and that’s not what the record shows.
[Defense]: August of 1999, she was already saying, hold on I’m not so sure. She — even though their suggestion is that they discussed the case with Tatia-na as [the State] suggested. ' That doesn’t change the fact that she had already said that she wasn’t sure who the shooter was in August of 1999. I suggested that if there’s anybody’s testimony to believe in this case who testified from this, that witness stand as non expert or as witnesses is Natacha Fond-rose is because she doesn’t have anything to gain with her testimony before you.

(Emphasis added).

Appellant claims that the court’s improper comment was a critical comment on evidence going to the foundation of the defense and amounted to fundamental error. The state disagrees, indicating that the trial court was merely preventing a mischaracterization of the evidence from coming before the jury. We agree with appellant.

The defense was not mischaracterizing the evidence at all. Fondrose testified that she was still Hilaire’s girlfriend when she gave the deposition at which she first stated that she was unsure of who the shooter was. She did not move in with Jacques’s girlfriend for another year. For the trial court to accuse defense counsel of misrepresenting the evidence not only cast counsel in a poor light in front of the jury but, more importantly, supported the state’s argument by implying to the jury that, in the court’s view, Fondrose was a biased witness.

Section 90.106, Florida Statutes (1999), states that a trial “judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” As we noted in Brown v. State, 678 So.2d 910, 911 (Fla. 4th DCA 1996),

The Law Revision Council’s Note accompanying this provision of the Evidence Code explains as follows:
“The basis for this section was expressed in Hamilton v. State, 109 So.2d 422, 424 (Fla. 3d DCA 1959):
‘The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments ... overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of the accused, it thereby destroys the impartiality of the trial....’”

While a judge may take some initiative to clear up uncertainties in the issues in a case, it is error for the judge to make any remark in front of the jury that might be interpreted as conveying the judge’s view of the case or an opinion on the weight, character, or credibility of the evidence. See Simmons v. State, 803 So.2d 787 (Fla. 1st DCA 2001) (finding judge’s comment, made while overruling defense counsel’s mischaracterization of evidence objection, that “it is accurate and dead on point” prejudiced the jury because it appeared to validate the state’s argument).

In Brown, we found a trial court’s comment in closing argument to be reversible error even absent an objection. In commenting on the evidence presented, defense counsel argued that the state’s witnesses had lied. Without objection from the state, the judge interrupted and .told defense counsel it was improper to call anyone a liar. The judge then said, “There is no evidence that anybody is a liar.” 678 So.2d at 911. We concluded that the comments went directly to the credibility of the prosecution witnesses. Id When the entire case rested on the credibility of the prosecution witnesses, the trial judge commented on the very issue to be decided by the jury. We said:

For the trial judge to say in open court during final argument that there is no evidence that either witness had lied amounted to the trial judge’s assessment of the very issue reposed in the jury. There is nothing in this record from which we could deduce that this comment had no effect on the jury.- Indeed, given the preeminent role of the judge in the courtroom and the nature of the factual dispute given to the jury to resolve, it seems clear to us that his comment might well have affected the outcome.

Id. at 912 (footnote omitted). We think the comment in the present case is similar. The trial judge’s comment, “That’s not what she said and that’s, not what the record shows,” was a comment on the weight of the evidence and credibility of the witness. Just as in Brown, this was a case based on the credibility of the witnesses, and Jacques’s defense was predicated 'entirely on the believability of Fondrose’s recantation of her statement identifying Jacques as the shooter. The trial court’s comment indicated to the jury that there was evidence of bias on Fond-rose’s part. This comment supporting the state’s position might well have affected the outcome of the case.

We conclude that in this case, in which the sole issue was the credibility of the witnesses, the trial court’s improper commenting on the credibility of a witness constitutes fundamental error. “Fundamental error, which can be considered on appeal even without a proper objection or preservation in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.” McKenzie v. State, 830 So.2d 234, 238 (Fla. 4th DCA 2002). As was noted in Kellum v. State, 104 So.2d 99, 104 (Fla. 3d DCA 1958), a case in which the court reversed because of prejudicial comments by the trial court that were not objected to at trial:

Regardless of the proper intention of the court in making such remarks, in determining their effect on the jury we must consider that the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by the judge, to which he himself may not attach particular importance. Thus, remarks of the court which the jury may consider as expressing the judge’s view or feeling about the case, or about the defendant or the testimony or credibility of a witness, may be prejudicial error, where the credibility of the defendant and the witnesses is especially material, as it was here, in view of the strong conflicts in the evidence.

We therefore reverse for a new trial. We affirm as to the other issues raised.

-GUNTHER and TAYLOR, JJ., concur.


text:
    Harry BATES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3578.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2004.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Harry Bates, Jr., challenges his conviction for improper exhibition of a firearm, arguing that he only displayed the barrel of a shotgun, not the entire shotgun, and that the trial court gave improper jury instructions regarding self-defense. While we find no merit in Bates’ argument that he did not improperly display a firearm, we reverse and remand for a new trial because we conclude that the self-defense jury instruction that the trial court gave amounted to fundamental, reversible error.

Bates was initially charged with three counts of aggravated assault, and the jury found him guilty of three counts of the lesser included charge of improper exhibition of a firearm. Two of the three counts were later vacated for reasons not relevant to this appeal.

These proceedings arose out of events that occurred in a Wal-Mart parking lot on the day after Thanksgiving. After shopping, Aretha Welsh, her son, and her nephew had gotten into her car in the parking lot when they discovered that Bates’ truck was blocking their egress from the parking spot. Welsh honked her horn, and Bates came up to her car window. When Welsh asked Bates to move his truck, Bates called Welsh a name; Welsh and the two boys then exited the vehicle. A dispute ensued that included a great deal of yelling and name-calling. Although Bates subsequently got into his truck and moved it forward slightly, he then put it into reverse and began pointing what appeared to be a shotgun covered with a white towel at Welsh and the two boys through the truck’s window while he threatened them verbally. They could see the two holes of the barrel of a double-barreled shotgun beneath the white towel. Bates then drove away but returned soon afterwards, at which point the police officers who had responded to the scene arrested him. Bates was charged with three counts of aggravated assault.

It was determined at trial that what Bates had pointed at Welsh and the two boys was not a complete shotgun; it was only the barrel of a shotgun covered with a white towel. Bates claimed at trial that he was acting in self-defense when he pointed the barrel of the shotgun at them because he became afraid when the teenage boys exited the car and approached him.

The offending jury instruction read as follows: “The use of nondeadly force is not justifiable if you find the following: One, the defendant was attempting to commit, committing or escaping after the commission of Aggravated Assault.”

Although Bates’ trial counsel did not object to the trial court giving this instruction, it has been held that this instruction should be given only when the person claiming self-defense was engaged in another independent forcible felony at the time, not the forcible felony as to which the defendant claims self-defense. “Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim.” Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002); see also Baker v. State, 877 So.2d 856, 29 Fla. L. Weekly D1617 (Fla. 2d DCA July 9, 2004).

Although Bates was initially charged with three counts of aggravated assault, all three counts stemmed from the same act occurring at the same time. Therefore, the act that formed the basis for Bates’ offense, aggravated assault, was the same act that Bates claimed demonstrated that he was acting in self-defense. As such, giving the jury instruction here had the effect of improperly negating Bates’ self-defense claim. Because giving this instruction under such circumstances has been held to be fundamental error, Rich, 858 So.2d 1210; Giles, 831 So.2d 1263, we must reverse and remand for a new trial.

Reversed and remanded.

SILBERMAN and CANADY, JJ., Concur.

      . See State v. Ware, 253 So.2d 145 (Fla. 2d DCA 1971); State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983).

      . Aggravated assault is a forcible felony. § 776.08, Fla. Stat. (2003).


author: ALTENBERND, Chief Judge.

text:
    Valentine RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2120.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2004.

      Valentine Rodriguez, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Valentine Rodriguez entered a negotiated plea of guilty to one count of aggravated assault and three counts of felony battery, with the understanding that he would be sentenced to a total of ten years’ imprisonment, minimum mandatory, as a prison releasee reoffender (PRR). See § 775.082(9), Fla. Stat. (2001). Because each offense was a third-degree felony, this was accomplished by imposing five-year terms of imprisonment on each count as a PRR, with the terms of imprisonment on the three felony battery counts to run concurrently to each other but consecutively to the five-year term imposed for the aggravated assault. Thereafter, the circuit court granted Mr. Rodriguez’s motion for postconviction relief, which pointed out that these consecutive sentences were illegal because the crimes occurred in a single criminal episode. See Smith v. State, 824 So.2d 263 (Fla. 2d DCA 2002). To remedy this, the circuit court resen-tenced Mr. Rodriguez, with the State’s consent, by merely removing the PRR enhancement from the sentences for the three counts of felony battery. Thus Mr. Rodriguez’s current sentences reflect a five-year minimum mandatory term of imprisonment for aggravated assault, followed by concurrent standard five-year sentences for three counts of felony battery — in other words, a ten-year total sentence with a five-year minimum mandatory term. Based on Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004), and Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004), we conclude that these consecutive sentences, which arise from one criminal episode and together exceed the maximum incarceration permitted for any individual count under the Prison Releasee Reoffen-der Punishment Act, see § 775.082(9)(a)(3)(d), remain illegal and must be reversed.

In Daniels v. State, 595 So.2d 952 (Fla.1992), the Florida Supreme Court held that a court sentencing a defendant for two or more crimes occurring in a single criminal episode could not enhance the sentences pursuant to the habitual violent felony offender statute and then also order the sentences to run consecutively. In Hale v. State, 630 So.2d 521 (Fla.1993), the Florida Supreme Court extended the holding of Daniels to apply to consecutive habitual offender sentences. The supreme court concluded that the legislature’s intent to increase the punishment for such offenses “is satisfied when the maximum sentence for each offense is increased.” Hale, 630 So.2d at 524. The court found nothing in the language of these enhancement statutes to suggest that the legislature intended to permit a court to enhance the individual sentences from a single criminal episode under these statutes and then further increase the total penalty by ordering that the sentences run consecutively. Id.

The Prison Releasee Reoffender Punishment Act was enacted after the supreme court decided Daniels and Hale, see ch. 97-239, Laws of Fla., but contained no language designed to avoid the application of the holdings in Daniels and Hale to the new statute. Thus, this court and other district courts have applied the reasoning of Daniels and Hale to prohibit consecutive sentences imposed under this Act when the sentences arise from crimes committed in a single criminal episode. See Smith, 824 So.2d 263; Smith v. State, 800 So.2d 703 (Fla. 5th DCA 2001); Philmore v. State, 760 So.2d 239 (Fla. 4th DCA 2000).

In this case, the circuit court sought to avoid the proscriptions of Hale and Daniels by imposing standard Criminal Punishment Code sentences consecutive to a PRR sentence. In doing so, however, the circuit court combined the sentences to impose a total sentence in excess of what Mr. Rodriguez could have received if each individual sentence was enhanced and imposed concurrently to the remaining sentences pursuant to the Prison Releasee Reoffender Punishment Act. Other courts have held that sentences similar to those imposed on Mr. Rodriguez, which combine or blend enhanced and unenhanced sentences to impose a total sentence that exceeds the sentence permitted under the applicable enhancement statute, are illegal. See Kiedrowski, 876 So.2d 692; Fuller 867 So.2d 469.

We see no reason to conflict with Kied-rowski and Fuller and, accordingly, reverse the sentences imposed on Mr. Rodriguez. We note that Mr. Rodriguez’s initial sentences were the result of a negotiated plea and that the State consented to the current resentencing scheme. Although Mr. Rodriguez may not be bound by his agreement to accept these illegal sentences, see Almenares v. State, 882 So.2d 493 (Fla. 5th DCA 2004), the reversal of these sentences may vitiate the State’s intent in the agreement. Thus on remand, the State can either consent to an alternate sentencing scheme for these crimes or withdraw from the plea agreement and proceed to trial. See Casey v. State, 788 So.2d 1121 (Fla. 2d DCA 2001); Wallen v. State, 877 So.2d 737 (Fla. 5th DCA 2004).

Reversed and remanded.

FULMER and STRINGER, JJ., Concur.

      . See § 784.021, Fla. Stat. (2001).

      . See § 784.03(2), Fla. Stat. (2001).

      . Although these cases hold that enhanced sentences cannot run consecutively in a case involving a single criminal episode, there is nothing in the Criminal Punishment Code that prohibits the imposition of consecutive standard sentences, even when the sentences arise from offenses committed in a single criminal episode. See § 921.0024(2), Fla. Stat. (2001); ch. 97-194, Laws of Fla.


text:
    In the Interest of A.N.D., a child. T.L.D., mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-4501.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2004.

      Donald J. Frenette of Donald J. Fren-ette, P.A., Lake Wales, for Appellant.
    Douglas B. Sherman, Department of Children and Family Services, Bartow, for Appellee.
   ALTENBERND, Chief Judge.

T.L.D. appeals a judgment terminating her parental rights to her child, A.N.D. The judgment was entered based upon T.L.D.’s implied consent to the termination, which resulted from her failure to appear at the adjudicatory hearing. See § 39.801(3)(d), Fla. Stat. (2002). Because we conclude the trial court applied the wrong analysis in ruling on T.L.D.’s motion to set aside her implied consent, we reverse the judgment and remand for further proceedings. Our reversal on this issue renders the other issue raised by T.L.D. moot.

On April 16, 2002, the Department of Children and Family Services filed a petition to terminate T.L.D.’s parental rights to A.N.D. and three other children. The petition also sought to terminate the parental rights of the fathers of these children. As grounds for terminating T.L.D.’s parental rights, the petition alleged that she had abandoned the children, had engaged in unspecified conduct toward the children that demonstrated that her continued involvement with them would threaten their life or well-being without regard to the provision of services, and had refused to substantially comply with her case plan regarding the children after they had been declared dependent. See § 39.806(l)(b), (c), (e), Fla. Stat. (2002).

Sometime after the petition was filed, the Department located the biological father of three of the children and began pursuing reunification of this father and his children. As a result, the Department dismissed that portion of the petition for termination involving these three children. See, e.g., § 39.811(6), Fla. Stat. (2002). The Department proceeded only on that portion of the petition that sought to terminate T.L.D.’s parental rights to A.N.D.

T.L.D., through appointed counsel, filed an answer to the petition, denying the substantive allegations against her. There were numerous pretrial hearings held on this petition. The adjudicatory hearing was first set for August 27, 2002, then continued twice and rescheduled for June 9, 2003. T.L.D. appeared at every required hearing from April 16, 2002, when the petition was filed, until June 5, 2003, when she appeared voluntarily at the pretrial conference. T.L.D. was ordered to appear at the adjudicatory hearing on June 9, 2003, and warned that if she failed to appear, she would be “considered to have agreed to terminate” her parental rights.

On the morning of June 9, 2003, T.L.D. contacted her counsel and indicated that she was unable to attend the adjudicatory hearing. She informed her attorney that she had suffered second-degree sunburns at the beach on Sunday, June 8, as a result of remaining in the sun without sunscreen lotion for an extended period of time. Although the hearing held on June 9 was not transcribed, our record contains a “memo of court hearing” which indicates that T.L.D.’s counsel appeared at the adjudicatory hearing and relayed this information to the trial judge. This memo of court states: “Consent by default for failure to appear at today’s hearing. . Court will entertain a motion to set aside default if and when mother appears before the court.... Motion must be filed, within 10 days or final judgment will be filed.”

On June 12, 2003, T.L.D. filed a “motion to set aside default.” The motion explained that on the night of June 8,- she had sought treatment for her extreme sunburns at a local hospital and had received prescriptions of anti-inflammatory and pain medications. In support of her allegations, the motion attached the “patient instructions for aftercare” that 'T.L.D. received from the hospital.

At the evidentiary hearing on T.L.D.’s motion to set aside her consent, the trial judge expressed understandable confusion over what procedure he was required to follow when faced with a parent’s motion to set aside a consent to a termination of parental rights when that consent was entered by “default.” At the time of this hearing, there was no case law specifically addressing the analysis to be applied to such a motion. The trial judge indicated that rather than approach the issue with the supposition that a motion to set aside a default should be liberally granted, he was going to consider the context of the proceedings and “approach it from the standpoint of whether I think this is a very good excuse and whether I think that it [is in the] best interest of the child.” The court concluded that T.L.D.’s extreme sunburn was not a good excuse for T.L.D.’s failure to appear. The court also noted that the child’s best interest would be served by refusing to vacate the consent because this would permit a speedier resolution to a permanent placement for the child. However, there was no evidence regarding any permanency plans available for this child, nor any other evidence regarding whether a termination of parental rights by way of the. mother’s implied consent was in the child’s best interest. The trial court denied the motion to set aside the consent and thereafter entered the final judgment terminating T.L.D.’s parental rights to A.N.D. T.L.D. appeals this final judgment.

Pursuant to section 39.801(3)(d), “[i]f a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said, hearing, then failure of that parent to. personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” See also Fla. R. Juv. P. 8.525(d); J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060 (Fla.2000). The purpose of this “default” provision is to ensure that the object of the termination petition is not defeated by the parent’s neglect of the proceeding. J.B., 768 So.2d at 1067. Here, there is no question that T.L.D. was ordered to appear at the adjudicatory hearing and that she did not. Thus, the trial court was authorized to find that she had impliedly consented to the termination.

When the circuit court entered the consent, it delayed entering the final judgment and provided T.L.D. the opportunity to move to set it aside. T.L.D. filed an appropriate motion three days later. See Fla. R. Juv. P. 8.270(b)(1) (permitting extraordinary relief from orders, upon such terms as are just, based upon mistake, inadvertence, surprise, or excusable neglect). Although case law has recognized a parent’s right to seek to set aside such a “consent by default,” see, e.g., M.C. v. State, Dep’t of Children & Families (In re W.C.), 797 So.2d 1273 (Fla. 1st DCA 2001) (holding trial court did not abuse discretion in denying motion to set aside termination based upon implied consent); A.J. v. Dep’t of Children & Families, 845 So.2d 973 (Fla. 4th DCA 2003) (holding trial court abused discretion in failing to set aside dependency based upon implied consent), neither the statutes nor the rules of juvenile procedure provide any guidance as to how a trial court should address such a motion.

After the trial court rendered its decision in this case, the Third District addressed this issue in E.S. v. Department of Children & Family Services, 878 So.2d 493 (Fla. 3d DCA 2004). In E.S., the Third District held that the “usual three-part test for vacating a default” would apply to a request to vacate a consent entered pursuant to section 39.801(3)(d). Id. at 496. Thus, the party seeking to vacate the consent must act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense. Id. (citing R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986 (Fla. 3d DCA 2003)); see also S.C. v. Dep’t of Children & Families, 877 So.2d 831 (Fla. 4th DCA 2004). The moving party carries the burden of persuasion. E.S., 878 So.2d at 496-97.

Further, while section 39.801(3)(d) does authorize constructive or implied consent in termination cases, courts should ordinarily refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control. R.P. v. Dep’t of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003); S.C., 877 So.2d at 833; see also G.A. v. Dep’t of Children & Family Servs. (In re I.A.), 857 So.2d 310, 312 (Fla. 2d DCA 2003). Florida public policy favors an adjudication on the merits over the entry of a default, and thus a properly filed motion to vacate a consent by default should be liberally granted. R.H., 860 So.2d at 988. This public policy is particularly implicated in cases involving a parent’s fundamental right to the care, custody, and control of a child. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

We adopt the reasoning of E.S. and conclude that the trial court should have applied these principles to analyze T.L.D.’s request to set aside the consent entered as a result of her nonappearance. In this case, the trial court specifically indicated that it was not presuming that this type of motion should be “liberally granted” nor was it considering the public policy of deciding cases on the merits. There is no question that T.L.D. exercised poor judgment the day before and the day of the scheduled adjudicatory hearing. However, in light of her attendance at all prior hearings and her diligence in seeking to set aside the consent, it is not clear that the trial court would have denied her request to set aside the consent under the proper analysis. Further, we note that the Department did not have immediate permanency plans for this child, but was waiting to determine whether the child could be placed with the half-siblings and their father. Thus it is not clear that the Department or the child would have been prejudiced by the trial court permitting T.L.D. an opportunity to defend against the termination petition.

We therefore reverse the judgment terminating T.L.D.’s parental rights to A.N.D. On remand, the trial court shall reconsider T.L.D.’s motion to set aside the consent. Our reversal of the judgment on this basis renders moot the remaining issue raised by T.L.D.

Reversed and remanded.

STRINGER and DAVIS, JJ., Concur.

      . The father of A.N.D. is unknown. The order on appeal also terminated the rights of this unknown father. See § 39.803(4), Fla. Stat. (2002). At the time the judgment on appeal was entered, the Department was considering placing A.N.D. with the father of her three half-siblings if these siblings were reunified with their father.

      . As this court has previously noted, based upon the statutes and rules of juvenile procedure the term "default” is not the appropriate term to use in this context. See S.B. v. Dep’t of Children & Family Servs. (In re B.B.), 858 So.2d 1184, 1186 (Fla. 2d DCA 2003); G.A. v. Dep’t of Children & Family Servs: (In re I.A.), 857 So.2d 310, 311-12 (Fla. 2d DCA 2003); P.C. v. Dep’t of Children & Family Servs. (In re S.C.), 857 So.2d 217, 218 (Fla. 2d DCA 2003). Rather, the statutes and rules refer to a parent’s "consent.” Because this consent occurs through implication, it may be referred to as "presumed consent,” "implied consent,” or "constructive consent.”

      . We caution that the third part of this test, “existence of a meritorious defense,” may require a slightly different analysis in a termination case than in a typical civil case. In a typical civil case, a default cannot be entered when the party's counsel attends the hearing. Thus, a default is entered when no one appears to defend the case. In this context, a default should not be set aside unless the defendant establishes some defense or line of evidence that would have had some chance of changing the outcome.
      In dependency or termination cases, a party is deemed to have consented to the entry of the judgment, even though his or her counsel is present and prepared to defend. Given the fundamental nature of a parent's rights to the care, custody, and control of a child, see Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and a parent's potential role in assessing the manifest best interests of the child and the least restrictive means of protecting the child, we are not entirely convinced that the showing required to establish a meritorious defense in such a case can be compared to that in other civil cases. At a minimum, a "meritorious defense” should include any meritorious arguments regarding the grounds for termination, the manifest best interest of the child, and the least restrictive means of protecting the child.

      . R.H., and S.C. were also issued after the trial court's ruling in this case.

      . We emphasize that our holding is limited to those consents implied by section 39.506(3), Florida Statutes (2002) (involving dependency), and section 39.801(3)(d) (involving termination of parental rights). It does not apply to cases in which a parent voluntarily executes a written surrender of the child and consents to the entry of an order giving custody of the child to the Department. See § 39.806(l)(a), Fla. Stat. (2002); W.T. v. Dep’t of Children & Families, 846 So.2d 1278 (Fla. 5th DCA 2003).