text:
    SKFW MANAGEMENT CORP., etc., et al., Petitioners, v. DEPARTMENT OF REVENUE, Respondent.
    No. 5D04-524.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Eric J. Stockel, Esq. and Allen H. Li-bow, Esq, Libow & Muskat L.L.P., Boca Raton, for Petitioners.
    No Appearance for Respondent.
   PER CURIAM.

SKFW Management Corporation and Royal Palace Hotel Associates seek a writ of prohibition or certiorari in their challenge to the assessment of certain sales and use taxes. The trial court denied their motion for alternative security arrangements, and determined that petitioners were not entitled to a waiver of the bond posting requirement of section 72.011, Florida Statutes. Because we conclude thát neither prohibition nor certiorari is an appropriate remedy, we deny the petition.

The facts, as set forth in the trial court’s order, are as follows:

Plaintiffs filed suit against the Florida Department of Revenue (“Department”) challenging the assessment of sales and use taxes. On April 5, 2000, Plaintiffs requested that the Department waive the bond posting requirements enumerated in section 72.011, Florida Statutes. Plaintiffs argued that according to their financial statements, they clearly had the financial resources to satisfy any possible judgment in favor of the Department. Plaintiffs’ request was denied on April 18, 2003.
The Department advised Plaintiffs that in order to determine whether a taxpayer’s financial resources are sufficient to warrant a waiver under section 72.011, it is necessary to ensure that the taxpayer will have the resources to pay the Department in full if it prevails in the litigation. The Department concluded that it was unable to make such a determination based on the information provided by Plaintiffs. Specifically, the Department noted that Plaintiffs’ total tax assessment was in excess of $350,000.00, that they had only $174.00 in liquid assets for tax years 1996 through 1998, and that although Plaintiffs’ net income was $996,300.00 in 1998, they failed to retain that income and made almost $1.1 million in distributions.
Plaintiffs now seek an alternative security arrangement pursuant to section 72.011(3)(b)(2), Florida Statutes. Under section 72.011, a taxpayer who challenges the legality of a tax assessment in circuit court must pay the amount of the uncontested tax and either: (1) deposit the contested amount of the assessment into the court’s registry with the complaint; or (2) file with the complaint a cash or surety bond for the contested amount endorsed by a surety company, or by any other security arrangement approved by the court. § 72.011(3), Fla. Stat. (2004).
Plaintiffs state, “Based upon the financial condition of the Plaintiffs as well as the statutory right on the part of the [Department] to lien the property in question whose value exceeds [$500 million], there should be no question that the [Department] will have no problem collecting any upheld assessment in this action.” (Pis.’ Mot. ¶ 10.) Plaintiffs claim that they generate over $60 million per year in revenue and that their property is valued at over $500 million. They also claim that the Department’s statutory lien on that property significantly exceeds the amount of the assessment. Thus, Plaintiffs argue “the Department has an extremely secure position concerning its ability to satisfy any final judgment upholding the assessment of tax, penalty, and interest” in the event it prevails in the litigation. (Pis.’ Mot. ¶ 7.)
The Department, on the other hand, argues that Plaintiffs have failed to present any evidence to establish that they are financially stable enough to allow the Department to grant a bond waiver. The Department also argues that Plaintiffs have submitted nothing thus far that will assure that it will be made whole at the end of the litigation. It claims that Plaintiffs did not present any testimony from a corporate executive, accountant or financial officer to verify their financial resources and, in fact, did not present any evidence at the hearing. Furthermore, the Department argues that any statutory lien it has on Plaintiffs’ property does not guarantee it will be made whole. It states that based on the lack of evidence in the record, it is unaware of who actually owns- the property and of who may have a prior secured interest in the property.
Moreover, the Department árgues that it has been willing to accept other forms of alternative security from Plaintiffs, such as an irrevocable letter of credit issued by a bank naming the Department as beneficiary, or a guarantee by a financially stable entity. Plaintiffs had the opportunity to provide such documentation prior to, and at, the hearing, but have continually failed to do so.

The court then found that plaintiffs “failed to provide sufficient evidence ■ of financial viability to warrant a waiver under section 72.011.” Petitioners now seek review of the circuit court’s order.

Petitioners request that this court grant a writ of prohibition restraining the circuit court from requiring them to post a bond or make any other financial security arrangement in favor of respondent when, according to them, section 72.011 is “silent as to whether any security arrangement is required when a taxpayer files, and is denied, a refund of tax concurrently with its challenge to an assessment on the very same tax issue as the one assessed.” In the alternative, petitioners seek from this court a writ of certiorari. . In this regard, they argue that the circuit court departed from the essential requirements of law by denying .their motion for an alternative security arrangement and effectively, ruling that absent compliance with section 72.011, it is without subject matter jurisdiction to hear their challenge to the assessment.

There is simply no basis for prohibition and petitioners fail to point to one. Also, it is well-settled that the writ of prohibition is preventive rather than curative in nature, so that it cannot be utilized to revoke an order already entered. Spark-man v. McClure, 498 So.2d 892 (Fla.1986); State ex rel Sarasota County v. Boyer, 360 So.2d.388 (Fla.1978); English v. McCrary, 348 So.2d 293 (Fla.1977). In the instant case, the circuit court has already ruled on petitioners’ motion, denying it.

Further, there is no basis for a writ of certiorari. Certiorari requires both a departure from the essential requirements of law and a showing of irreparable harm. See, e.g., Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000). In the instant case, neither component of certio-rari is present. There is no departure from the esséntial requirements of law because the ruling was pursuant to the terms of section 72.011(3), which provides in part as follows:

(3) In any action filed in circuit court contesting the legality of any tax, interest, or penalty assessed under a section or chapter specified in subsection (1), the plaintiff must:
(a) Pay to the. applicable department or county the amount of the tax, penalty, and accrued interest assessed by the department or county which is not being contested by the taxpayer; .and either
(b) 1. Tender into the registry of the court with the complaint the amount of the contested assessment complained of, including penalties and accrued interest, unless - this requirement is waived in writing by the executive director of the applicable department or by the county official designated by ordinance; or
2. File with the complaint a cash bond or a surety bond for the amount of the contested assessment endorsed by a surety company authorized to do business in this state, or by any other security arrangement as may be approved by the court, and conditioned upon payment in full of the judgment, • including the taxes, costs, penalties, and interest, unless this requirement is waived in writing by the executive director of the applicable department or by the county official designated by ordinance.

Section 72.011(3) clearly applies in the instant case, as it covers “any” action challenging a tax. The statute is constitutional. See Don’s Sod Co., Inc. v. Dept. of Revenue, 661 So.2d 896 (Fla. 5th DCA 1995); Dept. of Revenue v. Nu-Life Health and Fitness Center, 623 So.2d 747 (Fla. 1st DCA 1992). It is clear that under the terms of the statute, particularly in light of the clause “as may be approved by the court,” the circuit court has the discretion to approve or reject an alternative security arrangement. As indicated, the -circuit court decided to reject the alternative security arrangement proposed by petitioners. In light of the facts set forth in the order, we think that the court acted fully within its discretion in denying their motion.

To the extent petitioners challenge the circuit court’s determination that they failed to present sufficient evidence of financial viability to warrant a waiver, it is welhsettled that an appellate court is not entitled to reweigh the evidence. See, e.g., Hicks v. State, 852 So.2d 954 (Fla. 5th DCA 2003). Further, contrary to petitioners’ position, nothing on the face of the circuit court’s order-purports to rule that it lacks subject-matter jurisdiction to hear petitioners’ underlying claim; rather, as indicated, the order merely denies their motion for alternative security arrangements. Finally, there is no irreparable harm .to petitioners for purposes of certio-rari because any' error that the circuit .court might have committed in denying their motion can be remedied on direct appeal.

Accordingly, we deny the petition.

DENIED.

SHARP, W., PETERSON and PLEUS, JJ., concur.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Derrick Dewon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1193.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The sole issue presented for our determination in this appeal is whether the trial court erred in denying the appellant his right to self-representation. We conclude that as the appellant failed to make an unequivocal request to represent himself, and as the potential for trial disruption was great if he had been permitted to self-represent, the trial court acted properly, given the difficult circumstances of this case.

The appellant, Derrick Dewon Thomas, was charged with robbery. Because of a conflict on the part of the Public Defender, a private attorney was appointed to represent Mr. Thomas on this charge. Initially, the appellant was determined to be incompetent to stand trial. After commitment for treatment, however, he was eventually found to be competent to proceed, and the usual pretrial discovery ensued.

On September 30, 2002, Mr. Thomas came before the trial court and asked the court to remove his appointed counsel. The court conducted a Nelson hearing, found that counsel was rendering effective assistance, and told Mr. Thomas in great detail that he would not appoint another “free” lawyer for him. Mr. Thomas said he would hire his own lawyer with the help of his family, and wanted to dismiss his court-appointed counsel. The trial court granted his request and removed counsel, but told him, essentially, that while he would continue the case for a few months, he expected him either to have new counsel or to be prepared to represent himself at trial. Mr. Thomas readily agreed. A month later, however, Mr. Thomas had a change of heart, and wrote the trial judge, requesting that the lawyer he earlier dismissed be placed back on his case. The judge complied.

The case proceeded to trial in February, 2003. After the jury was sworn and after the first witness had testified, Mr. Thomas blew up in court because he was angry that counsel was not asking specific questions that he had requested. After some very heated debate outside of the presence of the jury, and after a number of attempts to calm Mr. Thomas, the judge threatened to bind and gag him because of his very disruptive behavior. Mr. Thomas made it clear that he no longer wanted the appointed attorney to represent him. When the State asked whether the trial court would allow Mr. Thomas to' represent himself, the judge indicated that he would not “allow him to proceed without an attorney.”

Binding and gagging proved to be unnecessary, and the trial proceeded. Mr. Thomas took the stand and testified in his own defense, and the case concluded without further incident. The jury returned a verdict of guilty of robbery, as charged in the information. Mr. Thomas appeals.

Unquestionably the right of self-representation is conferred by the Sixth Amendment to the United States Constitution. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To exercise that right, however, a defendant must clearly and unequivocally ask to do so. See Howell v. State, 707 So.2d 674 (Fla.1998). Here, Mr. Thomas failed to ask. The right of self-representation does not “attach unless and until it is asserted.” Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982).

While Mr. Thomas now argues that the trial court did not inform him of his right to self-representation, the transcript reflects that he was, in fact, informed of that right at the September 22nd hearing. Better practice would clearly have been to give that advice in a more explicit manner, but the trial court did unquestionably tell him that if he chose to dismiss his appointed counsel, he would have to either hire a lawyer at his own expense, or be prepared to represent himself. At no time did Mr. Thomas indicate any preference for self-representation. Instead,' he made it abundantly clear that he wanted a different lawyer. The Sixth Amendment right to self-representation can only be exercised by giving up another fundamental right— the right to counsel. See Buhl v. Cooksey, 233 F.3d 783 (3d Cir.2000). The record reflects no instance when Mr. Thomas showed any inclination to waive this valuable right.

Mr. Thomas also argues that he should have been apprised of his right of self-representation after trial began, at the time that he expressed strong dissatisfaction with his attorney. He asserts that the trial judge was obligated to conduct a Far-etta hearing to determine whether he was knowingly and voluntarily waiving his right to counsel. Once again, however, Mr. Thomas never indicated that he wanted to give up his right to counsel. He just wanted a different lawyer.

The State also argues that Mr. Thomas’ outburst seeking a new attorney after trial began came too late. While the State relies on federal cases holding that the right to self-representation is waived if not asserted before trial (the per se rule), we note that other federal cases hold that the trial judge should balance the right of the defendant to represent himself against the potential disruption of the trial proceedings (the abuse of discretion rule).

We need not address that issue at present, however. As in -Lambert v. State, 864 So.2d 17 (Fla. 2d DCA), review denied, No SC03-1786 (Fla.2003), Mr. Thomas’ request was “made at a time in the trial when there was a clear potential for disruption of the proceedings.” Moreover, Mr. Thomas demonstrated both vocally and physically that trial disruption was very likely to occur. In order to be entitled to self-representation, a defendant must show that he or she has the ability and willingness to abide by the rules of procedure and courtroom protocol. Cf., McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834, 95 S.Ct. 2525. Even under the more flexible abuse of discretion standard of review, therefore, the trial court committed no error, in view of the obstreperous behavior of Mr. Thomas.

AFFIRMED.

SHARP, W., and TORPY, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . See, e.g., United States v. Young, 287 F.3d 1352 (11th Cir.2002).

      . See, e.g., United States v. Kosmel, 272 F.3d 501 (7th Cir.2001).


author: THOMPSON, J.

text:
    T.J., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1927.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      James B. Gibson, Public Defender, and Kevin R. Holtz, 'Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

T.J., a minor, appeals the withheld adjudication of delinquency for disrupting an educational institution. We affirm.

On the day of the incident, T.J. was placed out of his classroom for being dis ruptive and reported to Leon Rogers. Rogers was a learning community assistant who assists disruptive students by attempting to return them to class once they have been removed. Rogers testified that T.J. continued to be disruptive when T.J. reported to him:' “he never calmed down; he kept cursing, rapping, and being irate for’ at least 20 minutes.” 'After spending about 20 minutes trying to calm T.J., Rogers called security because he felt he was unable to control T.J. by himself. The security officer attempted to calm T.J., but T.J. would not comply, and ultimately, T.J. was arrested.

T.J. contends that there was insufficient evidence that he interfered or disrupted a normal school function. Section 877.13, Florida Statutes, provides:

(1) It is unlawful for any person:

(a) knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.

“The statute seeks to prohibit acts which are ‘specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.’ ” T.H. v. State, 797 So.2d 1291 (Fla. 4th DCA 2001) (quoting M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997)).

Here, T.J. was removed from his classroom for being disruptive and continued that behavior before the person assigned to assist him. Rogers testified that he tried to calm T.J. by calling his name, explaining that his behavior was not appropriate, and asking him to take a seat. T.J. interrupted anyone who came to the common area where Rogers was located, and Rogers was unable to assist two other students who were placed out of class. When the security officer explained what would happen if he did not calm down, T.J. said that he did not care and did not want to be in that school anyway. This behavior constitutes the disruption of an educational institution. Compare M.C. v. State, 695 So.2d 477 (Fla. 3d DCA 1997) (holding that appellant’s conduct amounted to prohibited conduct under section 877.13 where secretaries and aides in the office were temporarily unable to perform their clerical duties, the school police officer was drawn away from completing an arrest of appellant’s brother, and students who joined in protest were distracted from their classes or other school activities).

Next, T.J. argues that he did not disrupt any normal school function because Rogers’s job description included addressing behavioral problems of disruptive students. Assuming this argument is preserved for review, we disagree. Although Rogers assists students with behavioral problems, Rogers explained that “processing” a student meant that after a student is removed from a classroom, he would speak with the student in the common area, attempt to find out why the teacher placed the student out of the class, and assist in returning the student to the class. Instead of taking advantage of the second chance offered him and allowing Rogers to help him return to the classroom, T.J. continued his disruptive behavior by preventing Rogers from “processing” him and by preventing Rogers from assisting the two other students who were placed out of class.

AFFIRMED.

GRIFFIN and PLEUS, JJ., concur.


author: PER CURIAM.

text:
    CJC PROPERTIES, LTD., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 1D04-0070.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    L. Lee Williams of Williams, Bryant & Gauthier, Tallahassee; and George H. Gwynn of Oven, Gwynn & Strickland, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee; and Teri L. Donaldson, General Counsel, Department of Environmental Protection, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 26, 2004, the Court has determined that the order on appeal is not final. See Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991); see also Pagenet, Inc. v. Department of Revenue, 843 So.2d 1027 (Fla. 1st DCA 2003). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

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


author: STEVENSON, J.

text:
    James Wallace McELROY and Progressive Insurance Company, Appellants, v. Alisha WHITTINGTON, by and through her parent and guardian, Petrina Whittington, and Petrina Whittington, individually, Appellees.
    No. 4D02-3698.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Christopher N. Bellows and Daniel S. Pearson of Holland & Knight LLP, Miami, for Appellants.
    Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, and Eric Hewko of The Hewko Firm, North Palm Beach, for Ap-pellees.
   STEVENSON, J.

Appellants, James Wallace McElroy and Progressive Insurance Company, challenge an order of the circuit court assessing attorney’s fees and costs in favor of appel-lees, Alisha Whittington and her mother, Petrina Whittington, after the Whitting-tons prevailed in a personal injury claim against McElroy. Because the proposal for settlement upon which the attorney’s fee award was based did not comply with the rule, we reverse.

Procedural Background

The complaint was brought for Alisha Whittington, by and through her parent and guardian, Petrina Whittington, and by Petrina Whittington, “individually.” Count I was brought on behalf of Alisha Whittington and alleged that she suffered personal injury and other damages as a result of McElroy’s negligence. Count II was brought by Petrina Whittington for past and future medical expenses due to Alisha’s medical treatment as a result of the accident.

On December 1, 2000, the Whittingtons served McElroy with a demand for judgment in the amount of $300,000.00, which included attorney’s fees. Specifically, the settlement proposal stated in part:

2. The party mating this proposal is the Plaintiffs, ALISHA WHITTING-TON, by and through her parent and guardian PETRINA WHITTINGTON, and PETRINA WHITTINGTON, individually, and is mating this proposal and demand to the Defendant, JAMES WALLACE McELROY, to resolve any and all claims for damages and injuries of the Plaintiffs, ALISHA WHITTING-TON, by and through her parent and guardian PETRINA WHITTINGTON, and PETRINA WHITTINGTON, individually, arising out of the cause of action which is the subject of the above styled action, (emphasis added).

A year later, on January 2, 2002, and shortly before trial, McElroy moved to strite the demand on the basis that it was “defective” because “[t]he amount was in the single, total figure of Three Hundred Thousand Dollars ($300,000.00) with no differentiation between the individual claims of the Plaintiffs.” The motion was never set for hearing.

By the time trial commenced on January 15, 2002, Alisha was over eighteen years of age and entitled to pursue her own claim. The trial court indicated that it would state the caption of the case as Alisha "Whitting-ton and Petrina Whittington. Neither party objected to this procedure. The final judgment subsequently entered awarded a recovery to both Plaintiffs, stating “IT IS ADJUDGED that Plaintiffs recover the sum of One million, five hundred and six thousand, two hundred fifty-four and 12/100 dollars ($1,506,254.12) from Defendants, JAMES WALLACE McELROY, and PROGRESSIVE AMERICAN INSURANCE COMPANY ....” (emphasis added).

The Whittingtons timely served a motion for fees under section 768.79, Florida Statutes, and rule 1.442. McElroy objected to any fee entitlement because the Whittingtons’ settlement offer did not specify an amount for each individual. The trial court granted the motion and awarded attorney’s fees on August 7, 2002. We reverse.

Discussion

After the trial court’s ruling, the Florida Supreme Court settled conflict between the First, Third and Fifth Districts on the question of whether offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). The court, noting that rule 1.442 was amended in 1996 to require greater detail in settlement proposals, stated that

“A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.”

Id. at 278 (quoting amended rule 1.442(c)(3) (emphasis added), and citing In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 107 (Fla.1996)(effective Jan. 1, 1997)). The court further held that

This language must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that -each party pay its own fees. A strict construction of the plain language of rule 1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror. We therefore hold that under the plain language of rule 1.442(c)(3), an offer from multiple plaintiffs must apportion the offer among the plaintiffs.

Id. at 278-79 (citations omitted).

To parry the holding in Willis Shaw, appellees cite Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003). There, Barnes filed a lawsuit against The Kellogg Company and Albertson’s, Inc., after she allegedly ate a bowl of cereal containing live insects. Kellogg and Albertson’s presented a joint proposal for settlement to Barnes. Barnes did not accept the settlement and the trial court ultimately dismissed the case with prejudice because it determined that Barnes had committed a fraud upon the court. Subsequently, the trial court awarded fees pursuant to the offer of settlement rule.

On appeal, Barnes argued that the proposal for settlement was defective because the two defendants made a unified offer, which prevented. her from accepting the offer from one defendant or the other. See id. at 569. The Second District recognized that typically a proposal to or from two or more plaintiffs, each having a separate claim of their own, or a plaintiffs collective proposal to two or more defendants who have varying degrees of liability and may have rights to contribution between or among one another, would be unenforceable if not apportioned. See id. at 571. However, the court held that, under the facts of the case, the unified offer was permissible because the damages sustained by the plaintiff could not be apportioned ■ between the two defendants. See id.. The court reasoned:

There is no rational-method to apportion fault between the strictly liable retañer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer’s liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves. They are jointly and severally liable for all damages. Under these circumstances, we see nothing improper with a joint offer.

Id. at 571-72.

We find Barnes distinguishable from the instant case. Here, no legal theory of liability prevents the separation of the Whittingtons’ claims. Although the damages claimed by Petrina and Alisha Whittington were potentially overlapping, they were not coextensive. See Crespo v. Woodland Lakes Creative Retirement Concepts, Inc., 845 So.2d 342, 343-44 (Fla. 2d DCA 2003)(finding that individual proposals for settlement sent by each defendant to the husband and wife were defective for failure to comply with the offer of judgment statute, while plaintiffs were married and pled their claims in the same counts, no theory of liability prevented apportioning the amount offered between them).

Lastly, we reject the Whitting-tons’ argument that any defect in the form and content of the proposal was waived because McElroy faüed to set his motion to strike the offer for hearing prior to trial. Nothing in section 768.79 or rule 1.442 requires that an offeree object to a defective settlement proposal, or set the issue for hearing prior to trial. Indeed, rule 1.442 only provides that the offer is deemed rejected if not responded to within thirty days of service. See Fla. R. Civ. P. 1.442(f)(1). Moreover, by filing the motion objecting to the proposal, McElroy put the Whittingtons on notice that there was a defect in the proposal prior to trial. We find that as long as the offeree makes the claim that the offer does not comply with the requirements of rule 1.442 prior to the trial court’s entry of the final judgment awarding costs and fees, the issue is preserved for appeal.

Accordingly, we reverse and remand with instructions that the award of fees pursuant to the proposal for settlement be vacated.

REVERSED and REMANDED.

POLEN and SHAHOOD, JJ„ concur.

      . Additionally, there is no certainty that the trial judge would have been willing to address an issue pre-trial which could potentially be a non-issue post-trial.


author: HAZOURI, J.

text:
    GENERAL MOTORS CORPORATION, a foreign corporation, Appellant, v. Robert J. McGEE, individually; Constance McGee, individually; Kelly Amber McGee, a minor, through her parents and natural guardians, Robert J. McGee and Constance McGee; and Robert J. McGee and Constance McGee, as Personal Representatives of the Estate of Shane McGee, deceased, Appellees.
    No. 4D03-2198.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.

      Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Sheldon J. Schlesinger, Robert W. Kelley and John J. Uustal of Sheldon J. Schlesinger, P.A., Fort Laud-erdale, for appellees.
   HAZOURI, J.

On July 3, 1991, Robert and Connie McGee, their two children, and another family member were involved in a tragic car accident. The vehicle they were driving in, an Oldsmobile Cutlass Cruiser station wagon, was struck by a pick-up truck operated by Curtis Cayton. The collision, described as a “tap” and “not an impact situation” pierced the station wagon’s gas tank, causing the tank to leak fuel, ignite, and explode. The entire family suffered severe burns and one of the children, Shane McGee, died as a result of the burns. The recovery period for the rest of the family was extremely painful and traumatic.

The McGees settled their case with the driver of the pick-up truck. They then pursued a claim against General Motors Corporation (General Motors) based on theories of negligence and products liability. A jury trial was held.' The testimony at trial described the horror of the accident and its aftermath. In addition, there was extensive testimony regarding the defect in the station wagon manufactured by General Motors. On May 18, 1998, the jury found that there was negligence on the part of General Motors and awarded the McGees compensatory damages of $60,000,000. Pursuant to the verdict form, the jury allocated 55% of the fault to General Motors and 45% of the fault to Cay-ton, a non-party. A Judgment was entered' against General Motors in -the amount .of $33,000,000.

General Motors appealed the Final Judgment to this court and the McGees cross-appealed. This court affirmed the amount of the verdict and affirmed in all respects as to the issues raised by General Motors. However, this court found merit in the issue raised by the McGees in their cross-appeal. See Gen. Motors Corp. v. McGee, 837 So.2d 1010 (Fla. 4th DCA 2002), as modified on clarification (Mar. 5, 2003), review denied 851 So.2d 728 (Fla.2003). This court determined that the trial court should not have reduced the jury’s award based on the comparative fault assigned to Cayton. This determination was based on a finding that the recent holding in D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001), was controlling.

This court issued a mandate to the trial court to conduct further proceedings in accordance with our opinion. Prior to the entry of the Amended. Final Judgment, General Motors argued , to the trial court that it should not be required to pay interest on the portion of the verdict that had originally been attributed to Cayton (45% or $27,000,000) from the date of the verdict. Instead, General Motors argued that interest should only begin to run from the date that the D’Amario decision became final, January 22, 2002. The trial court disagreed and on May 6, 2003, the trial court entered an' Amended Final Judgment against Géneral Motors for the total jury verdict of $60,000,000 along with interest from the date of the verdict, May 18, 1998. We agree with the trial court and affirm.

An award of interest from the date of the verdict was entered in accordance with Florida Rule of Appellate Procedure 9.340(c) which states:

If a judgment of reversal is entered that requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

This rule provides an exception to the general rule that interest is not awardable for the period after the verdict but before the judgment. See Ford Motor Co. v. Jimenez, 28 Fla. L. Weekly D1872, — So.2d -, 2003 WL 21919264 (Fla. 3d DCA Aug.13, 2003).

General Motors acknowledges that rule 9.340(c) provides for the award of interest in the instant case, but argues that the award is inequitable due to the circumstances in the instant case. General Motors argues that requiring it to pay interest on the entire amount is inequitable because, prior to the Florida Supreme Court’s decision in D’Amario, apportionment of fault and liability in crashworthiness eases was appropriate under Florida law. Therefore, at the time the original judgment was entered, the apportionment of fault was appropriate and remained appropriate until the supreme court issued its opinion in D'Amario.

General Motors cites no case law in Florida to support this proposition and we decline to read this exception into rule 9.340(c).

AFFIRMED.

STONE and GROSS, JJ., concur.

      . In D 'Amano, the Florida Supreme Court held that principles of comparative fault involving the causes of the first collision do not generally apply in crashworthiness cases. See D’Amario, 806 So.2d at 441.

      . The interest rate percentage has not yet been ruled on by the trial court.


author: STONE, J.

text:
    HODGSON RUSS, LLP, Petitioner, v. James B. TRUBE, Personal Representative of the Estate of Margaret Ott Jones, Deceased, and Carol Ott, Personal Representative of the Estate of Charles Thomas Ott, Respondents.
    No. 4D03-4291.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.

      Brett C. Powell, Mark Hicks and Gary Magnarini of Hicks & Kneale, P.A., Miami, and the Law Firm of Douberley & Ciero, Boynton Beach, for Petitioner.
    Theodore J. Leopold and Benjamin Sal-zillo of Ricci, Leopold, P.A., West Palm Beach, for Respondent-James B. Trabe.
   STONE, J.

We deny a petition for writ of certiorari, seeking relief from an order compelling discovery. Petitioner contends that the order, compelling interrogatory responses, forces a disclosure that will constitute a breach of the attorney-client privilege.

The subject of the interrogatory is a comment made to an attorney by his client in the course of the client’s bitter legal dispute with his sister over their mother’s estate. The client allegedly threatened to kill his sister to end the dispute if it was not resolved favorably. Some weeks after the threat, while waiting for a deposition to begin, the client shot and killed his sister. He then turned his gun against himself.

The sister’s estate filed this wrongful death suit against the brother’s estate. In the course of discovery, the sister’s éstate inquired whether the brother ever made threats against his sister. Upon discovering that the brother’s attorney knew about the threat and failed to warn, the sister’s estate amended its complaint to include the law firm. The sister’s estate then submitted the interrogatories now under review to the law firm, seeking information surrounding the alleged threat.

The interrogatory asks the law firm to reveal: (1) who was present at the time the threat was made, (2) what was the brother’s demeanor at the meeting, (3) what did the lawyer say in response to the threat, and (4) what did the brother say concerning the threat. The trial court order modified the interrogatory, limiting its scope to the threat and nothing else discussed during the meeting, and compelled an answer.

While there is some discussion as to whether the criminal act exception to the attorney-client privilege of section 90.502(4)(a), Florida Statutes has been met, the trial court order is not based on a conclusion that the threat fell within that exception. Rather, Respondent’s argument is that the client’s threat was not made incident to seeking or receiving legal aid.. Specifically, the privileged discussion between the attorney and client, regarding the chent’s insistence on a favorable termination of the litigation, did not extend to the client’s threat to end the matter by killing his sister, which was expressed at the very conclusion of the conference, as the client was leaving the office. Accordingly, the threat is not protected by the privilege because it was not intended as a disclosure by the client necessary or. incident to obtaining informed legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

To the contrary, Petitioner relies upon this court’s holding in Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), to suggest the brother’s comment to his lawyer was protected by the attorney-client privilege.

.In Kleinfeld, the defendant went through a bitter divorce and killed his wife’s attorney. Afterwards, Kleinfeld telephoned his own lawyer to complain about the pleadings filed by his attorney in the divorce, and said he knew the police had him on the murder and that he should just kill his own attorney (the person to whom he was speaking) and himself. While the trial court allowed the threatened attorney to testify as to this conversation, this court reversed, holding that it was error to admit the lawyer’s testimony.

We distinguish Kleinfeld because the conversation there was introduced to prove an admission (made to the defendant’s attorney), indicating that the client had committed the earlier homicide, clearly a privileged communication. Here, however, the underlying communication would be offered to prove that the client intended to commit a future murder. While Kleinfeld dealt with communications concerning a crime already committed, here, the murder had not yet been committed. Accordingly, if Kleinfeld had proceeded to kill his own attorney, the threat would not be privileged as to that act.

On the present facts, the trial court found that the threat was extraneous and was not a communication incident or necessary to obtaining legal advice. We cannot conclude on these facts that such a conclusion is a departure from the essential requirements of law. See generally Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)(the privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege”)(citing In re Horowitz, 482 F.2d 72, 81 (2d Cir.1973)). We note that, assuming the threat is credible and believed, the privilege would not have stood in the way of the attorney warning of the impending danger to the sister. See rule 4-1.6, Rules Regulating the Florida Bar.

POLEN and MAY, JJ., concur.

      . There is no issue before us concerning whether these facts support a cause of action.


text:
    P.G., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D03-2717.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Rehearing Denied March 17, 2004.

      Mitchell Cohen, Hallandale Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Lori R. Shapiro and Jeffrey P. Bassett, Assistant Attorneys General, Fort Lauderdale, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny rehearing but withdraw our prior opinion and substitute the following in its place.

P.G., a minor child, appeals the trial court’s order dismissing a Petition for Adjudication of Dependency filed on his behalf by private counsel. We affirm the dismissal, but on different grounds.

P.G. is a citizen of El Salvador. He entered the United States illegally in June 2001. The Immigration and Naturalization Service apprehended him, but subsequently released him into the custody of his uncle who lives in North Lauderdale, Florida. P.G. has been residing with his uncle since that time. In January 2003, counsel representing P.G. filed a private Petition for Dependency seeking to have P.G. declared dependent. As the basis for the Petition, counsel alleged that P.G. was neglected and abandoned by his parents. At the time of the Petition, P.G. was bound over in immigration removal proceedings. The trial court determined that P.G. was not dependent within the meaning of Chapter 39, Florida Statutes, was not eligible for long term foster care, and was not eligible for special juvenile immigration status. The trial court dismissed the Petition on these grounds.

Appellee, the Department of Children and Family Services, contends that the dismissal was appropriate because the trial court lacked jurisdiction over the matter. We agree. Since P.G. is bound over in immigration removal proceedings, under § 1101 of the Immigration and Nationality Act, the Attorney General must,consent to the trial court’s jurisdiction over the dependency , proceeding. 8 U.S.C. § 1101(a)(27)(J)(iii) states in relevant part:

(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status; except that-
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction ...

We find that P.G.’s status qualifies as constructive custody due to the fact that he is subject to the conditions outlined in 8 C.F.R. § 212.5 (2003). Subsection (d) places the following conditions on the parole:

Conditions. In any case where an alien is paroled under paragraph (b) or (c) of this section, those officials listed in paragraph (a) of this section may require reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so. Not all factors listed need be present for parole to be exercised. Those officials should apply reasonable discretion. The consideration of all relevant factors includes:
(1) The giving of an undertaking by the applicant, counsel, or a sponsor to ensure appearances or departure, and a bond may be required on Form I-352 in such amount as may be deemed appropriate;
(2) Community ties such as close relatives with known addresses; and
(3) Agreement to reasonable conditions (such as periodic reporting of whereabouts).

In addition, subsection (e) provides for the circumstances under which the parole may be terminated.

There was no evidence in the instant case that the Attorney General consented to the trial court’s jurisdiction. Therefore, under section 1101, the trial court lacked jurisdiction. See also M.B. v. Quarantillo, 301 F.3d 109 (3d Cir.2002); Gao v. Jenifer, 185 F.3d 548 (6th Cir.1999). Affirmed.

WARNER, GROSS and HAZOURI, JJ., concur.

      . If P.G. is declared dependent, he will be eligible for special immigration status under 8 U.S.C. § 1101(a)(27). This provision allows juvenile immigrants who have been declared dependent by a juvenile court, and meet other conditions, to apply for a special immigrant visa and avoid deportation.


author: GROSS, J.

text:
    Edward P. MAILLY and Claire T. Duffy, Appellants, v. Ken JENNE as Sheriff of Broward County, Florida, and Broward County, Appellees.
    No. 4D03-2195.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.

      Ellen M. Feld of Bell & Bell, Fort Laud-erdale, for appellants.
    Beverly A. Pohl and Bruce Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for appellee Ken Jenne as Sheriff of Bro-ward County, Florida.
   GROSS, J.

Edward Mailly and Claire Duffy appeal an adverse summary judgment entered in their actions against the Sheriff of Broward County for false arrest. We affirm the trial court’s ruling that there was probable cause for the arrests, which operates as a complete bar to the actions. See Bolanos v. Metro. Dade County, 677 So.2d 1005 (Fla. 3d DCA 1996).

On February 16, 1999, the state charged Mailly and Duffy with engaging in lewdness, contrary to section 796.07(2)(e), Florida Statutes (1999), and remaining in a place for the purposes of prostitution, lewdness, or assignation, in violation of section 796.07(2)(g). The arrests arose from conduct that occurred at an adults-only swingers club. On July 20, 2000, the state nolle prossed the charges.

By an amended complaint, appellants sued the sheriff for false arrest and four claims under 42 U.S.C. § 1983 (1998). The sheriff removed the case to federal court. Appellants voluntarily dismissed two civil rights counts. The federal district court granted summary judgment in favor of the sheriff on the remaining civil rights counts and remanded the case to state court.

Both sides moved for summary judgment concerning the false arrest claim. The trial court granted summary judgment for the sheriff, concluding that at the time of the January 1999 arrests, the officers had probable cause to arrest appellants.

Probable cause is an affirmative defense to a false arrest claim. See Jackson v. Navarro, 665 So.2d 340, 342 (Fla. 4th DCA 1995). As the first district has written:

To show probable cause in a false arrest situation, it is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged; probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.

Fla. Game & Freshwater Fish Comm’n v. Dockery, 676 So.2d 471, 474 (Fla. 1st DCA 1996); see also Schmitt v. State, 590 So.2d 404, 409 (Fla.1991) (holding that probable cause defined as “a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged”) (citing Dunnavant v. State, 46 So.2d 871 (Fla.1950)).

Probable cause is judged by the facts and legal state of affairs that existed at the time of the arrest. “Hindsight should not be used to determine whether a prior arrest or search was made with probable cause. Events that occur subsequent to the arrest cannot remove the probable cause that existed at the time of the arrest.” Dockery, 676 So.2d at 474 (citations omitted).

For example, in Boca Raton v. Coughlin, 299 So.2d 105, 107 (Fla. 4th DCA 1974), we observed that the “great weight of authority” holds that a valid arrest made by a police officer for an ordinance violation does not subject the officer to liability for false arrest if the ordinance is later “held void,” unless the officer knew or had reason to know “that the ordinance [was] invalid or inapplicable.”

Five years later, the United States Supreme Court held that a “good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality.” Michigan v. DeFillippo, 443 U.S. 31, 33, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

While this case does not involve an ordinance that has been held unconstitutional after an arrest, it does involve statutes where the elements of the crime have been the subject of discussion. Compare State v. Willets, 4 Fla. L. Weekly Supp. 586 (Fla. 15th Cir.Ct.1997), with State v. Silvers, 7 Fla. L. Weekly Supp. 592 (Fla. 17th Cir.Ct. 2000) and State v. Altice, 7 Fla. L. Weekly Supp. 222 (Fla. Broward Cty. Ct.1999). Silvers noted that “[w]hether a law enforcement officer may be the sole person offended to establish the offensiveness element required to prove lewdness has not been specifically addressed in any Florida case.” 7 Fla. L. Weekly Supp. at 592 (emphasis added). This is a case where the sheriffs proposed statutory interpretation is at least “arguable,” and not “cockeyed.” Northen v. City of Chicago, 126 F.3d 1024, 1028 (7th Cir.1997).

“What facts and circumstances constitute probable cause is a pure question of law; whether they exist is a pure question of fact.” LeGrand v. Dean, 564 So.2d 510, 512 (Fla. 5th DCA 1990). Taking'the facts in the light most favorable to appellants, we hold that at the time the arrests occurred, the officers had probable cause to arrest appellants for violation of section 796.07(2)(g), remaining in a place for the purposes of prostitution,' lewdness, or assignation.

STONE and HAZOURI, JJ., concur.


author: GUNTHER, J.

text:
    V & M ERECTORS, INC., a Florida corporation, Appellant, v. The MIDDLESEX CORPORATION, a Massachusetts corporation, John Yeager and Judy Yeager, Janssen & Spaans Engineering, Inc., a Florida corporation, and JCA Engineering, Inc., a Florida corporation, Appellees.
    No. 4D03-512.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.

      Mark C. Burton of the Law Offices of Paul F. Clark, Hollywood, for appellant.
    Daniel L. Koch of Herzfeld & Rubin, Miami, for appellee The Middlesex Corporation.
   GUNTHER, J.

This case concerns the meaning of a release entered into by the parties. The Middlesex Corporation and V & M Erectors, Inc. entered into a subcontract agreement for a bridge installation project on U.S. Highway 27 in Moore Haven, Glades County, Florida. The agreement included an indemnification clause.

On October 9, 1998, while Y & M was positioning a concrete bridge girder, it fell and crashed onto a barge. The barge was damaged and a worker on the barge, John Yeager, was injured. As a result of the accident, the barge owner, Dixie Towing, sued Middlesex and V & M for damages. A settlement was reached. Yeager later filed suit against Middlesex in Broward County and Middlesex cross-claimed against V & M for indemnity. Middlesex settled the claim with Yeager and filed an independent suit for economic damages against V & M in Glades County. The Glades County claim was settled and a release, which is the subject of this appeal, was executed.

Middlesex’s indemnity cross-claim against V & M remained pending, and both parties filed motions for summary judgment. Middlesex premised its summary judgment motion on the presence of the indemnity agreement and lack of fault for the accident. V & M premised its summary judgment motion on the execution of the release in the economic damages suit, which it believed addressed all claims arising from the accident. Middle-sex countered that the release was not intended to address claims related to the Yeager personal injury suit.

The trial court found the release ambiguous and ordered discovery to aid in resolution of the motions for summary judgment. Middlesex then presented parol evidence in the form of affidavits and testimony by attorneys for both parties concerning the intended effect of the release, that being to address only economic losses arising from the accident. The trial court then granted final summary judgment to Middlesex. This appeal ensued.

The standard of review applicable to the question of whether a contract is ambiguous is de novo. See Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003); Lab. Corp. of Am. v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002). Because contract construction is a question of law, the appellate court need not defer to the trial court. Dows, 846 So.2d at 601. In reviewing the trial court’s construction, the appellate court is “guided first by the language of the contract itself and where the contract is clear and unambiguous there is no reason to go further.” McKown, 829 So.2d at 313. In such a situation, the intent of the parties must be determined from only the four corners of the document, and not parol evidence. Dows, 846 So.2d at 601; McKown, 829 So.2d at 313.

The language of the release at issue is as follows:

HEREBY remises, releases, acquits, satisfies and forever discharges the said second parties of and from any and all manner of action and actions, cause and causes of action, damages, judgments, claims and demands whatsoever, known or unknown, which said first party ever had, now have [sic], hereafter can, shall or may have, against said second parties, for, upon or by reason of the accident on October 9, 1998, as described in that certain lawsuit pending in the Circuit Court of the 20th Judicial circuit in and for Glades County, Florida, Case number: CA 99-119, wherein THE MID-DLESEX CORPORATION is the Plaintiff and V & M ERECTORS, INC., JCA, ENGINEERING, INC., and JANSSEN AND SPAANS, ENGINEERING, INC., are the Defendants. All medical bills, medical liens, costs, workers’ compensation liens, attorney’s liens, attorney’s fees, pre-judgement interest, delay penalties or other penalties imposed by the State of Florida, or other related expenses, known or unknown, related to the October 9, 1998 incident, have been or will be paid from the proceeds received in settlement of this case, and the first party hereby agrees to indemnify and hold harmless the second parties from any and all such claims.

Additionally, the release stated that V & M did not admit liability and intended “merely to avoid litigation and buy [its] peace.”

■ Considering the language of the release, we conclude that it is in no way ambiguous. The release very clearly addresses all claims “for, upon, or by reason of’ the October 9 accident. The reference to the Glades County economic damages suit is solely for the purpose of defining the accident and pointing the reader to a factual exposition of the accident. See, e:g., Belle-fonte Ins. Co. v. Queen, 431 So .2d 1039, 1040 (Fla. 4th DCA 1983) (in which a release was found to be unambiguous where it released “all claims and demands” and referred to a January 9 accident). Because the release was unambiguous, the trial court erred by allowing parol evidence as to the parties’ intent. Therefore, the release applied to the Yeager personal injury claims addressed in Middlesex’s indemnification counterclaim, and the trial court should have awarded summary judgment to V & M, not Middlesex. As a result, we reverse and remand for entry of final summary judgment in favor of V & M.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

FARMER, C.J. and TAYLOR, J., concur.


author: STEVENSON, J. WARNER, J.,

text:
    Marvin CASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4202.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.

      Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and-Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In 1994, after being charged with lewd assault on a child under sixteen, Marvin A. Castro entered into a negotiated plea that resulted in a jail sentence followed by probation. A trial judge found that Castro willfully and substantially, violated the terms - and conditions of that probation by failing to file the required monthly report for nearly a year. We affirm.

The evidence at the VOP hearing established that when Castro reported to his probation officer in February 1998, he was arrested and taken into custody by INS for deportation. In May of 1998, however, Castro was released on bond. Despite having been five times instructed on the terms and conditions of his probation, including the reporting requirement, Castro failed to file any monthly reports after being released. In fact, Castro had no contact with his probation officer until the probation officer sought him out in August 2000.

Castro did not testify at the probation violation hearing. The probation officer indicated that Castro had explained his failure to report by stating that his parents had spoken with someone at the probation office who told them that if their son had bonded out with INS, he was now an INS ease and “had no responsibility with us.” Castro could not, however, provide the name of the person that his parents had spoken with and acknowledged that he never attempted to verify the information. Further, there were no notations in Castro’s progress notes reflecting any such call or visit. The probation officer did acknowledge that the progress notes included a notation that read “TR to non reporting status,” but explained that this was an internal record notation and not something that Castro would have been made aware of.

In order for a defendant’s probation to be revoked, the violation of the terms and conditions must be willful and substantial. See, e.g., Stevens v. State, 823 So.2d 319, 320 (Fla. 2d DCA 2002). As our supreme court recently noted in State v. Carter, 835 So.2d 259, 261 (Fla.2002), “probation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation.” The failure to file the required monthly reports for a year clearly constitutes a substantial violation.

The only question, then, is whether the violation was willful. On this issue, the trial judge was faced with weighing the credibility of Castro’s claim that his parents had been told that he was no longer required to report against (1) Castro’s inability to provide the name of the person who allegedly relieved him of his obligation to report; (2) the absence of any notation or record in Castro’s probation file of the inquiry allegedly made by Castro’s parents; and (3) Castro’s having previously been instructed five times that he was required to file a monthly report. The trial judge resolved this credibility determination against Castro and we will not interfere with that decision on appeal. See Riggins v. State, 830 So.2d 920, 921 (Fla. 4th DCA 2002).

AFFIRMED.

STONE, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I dissent, as I do not think any evidence supported a finding that appellant Castro’s violation of the technical reporting requirements was willful or substantial. He was taken into custody by INS when he reported to his probation officer in 1998. Prior to that time, he had not violated his probation and had regularly reported. The notes in the probation file indicated that the file had been converted to a non-reporting status.

Unfortunately for Castro, the probation officer to whom he was assigned died. His next probation officer was assigned in September 1998 but only continued to contact INS as to Castro’s status. He did not attempt to contact Castro. When INS finally reported to the officer in August 2000 that Castro had been released in 1998, the officer contacted Castro at his address. Castro came in just a few days later and explained that his parents had been told that he did not have to report as long as he was an INS case.

As the probation file itself contained a notation that the case had become a non-reporting case, I see no evidence that Castro committed a willful violation of probation. Obviously, the probation officer believed that Castro would not be reporting; otherwise, the notation in his file would not have been made. Castro reported promptly when notified by the probation officer.

I see no other conclusion from this evidence than that this case was the result of a misunderstanding due to his INS case. While the trial, judge’s finding will not be reversed on appeal when supported by the evidence, see Riggins, 830 So.2d at 921, I do not find any of the evidence presented proved, either directly or .circumstantially, a willful violation of probation.

      . The testimony of the probation officer on direct examination surrounding the notation was as follows:
      Q: .,. [C]ould you explain to the judge what [TR to non reporting] means?
      A: .TR refers to transaction, transaction register and that is a document which results in an entry into the computerized record, indicating in this case that he was in a non reporting status. And we do that when someone goes into custody.
      Q: Okay. Does that mean that the defendant was told on that day, that he was in a non reporting status?
      A: No, it doesn’t.
      Q: And what does it mean, specifically, then?
      A: Well, after, well, within like twenty four hours after the day that he was arrested in the office, that notation was completed, it's a records keeping, you know, notation. And there would be no reason to notify anyone about that. It's just our records.


author: BROWNING, J.

text:
    Sherry DeCUBA, Appellant, v. INDIAN RIVER COMMUNITY COLLEGE and Gallagher Bassett Services, Inc., Appellees.
    No. 1D02-2876.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    J. Michael Brennan, Ft. Pierce, for Appellant.
    Jane E. McGill of Hayes, Schloss & Alcocer, P.A., Palm Beach Gardens, for Appellees.
   BROWNING, J.

Appellant seeks reversal of an order denying her workers’ compensation claim for a heated home pool because the judge of compensation claims (JCC) relied in part on the testimony of an independent medical examiner who was paid more than permitted by section 440.13(14)(b), Florida Statutes (1999). Because the independent medical examiner is disqualified from testifying in this case, we reverse.

Dr. Davidson performed an independent medical examination (IME) for $750 in 1999. Because section 440.13(14)(b) limits IME fees to $400, the carrier moved for a second IME. The JCC ruled that Dr. Davidson could perform the second IME, and he did so on December 4, 2001, charging $937. At his December 7, 2001, deposition, Dr. Davidson was told that opinions from the first IME were inadmissible, and was told to limit his opinion to his second IME. This deposition was considered by the JCC at the final hearing; a prior deposition from Dr. Davidson was excluded. Accordingly, the JCC reversibly erred.

Appellees argue for affirmance that section 440.13(14)(b) was amended on July 1, 2002, to exclude an IME from the $400 limit and that such amendment should be applied here. See Ch.2002-236, § 9, at 14, Laws of Fla. We disagree. Such amendment does not apply to IMEs taken before its effective date, although it applies to all IMEs taken after that date, including those taken in cases where the injury occurred before that date. Cf. Paulk v. Sch. Bd. of Palm Beach County, 615 So.2d 260, 261 (Fla. 1st DCA 1993) (in considering the limit imposed on witness fees in section 440.13(2)(k), holding that “where the claimant’s entitlement to a service is not diminished, a limitation on the amount paid for the service does not impact a substantive right and may apply to services rendered after the effective date of the statutory limitation”). Accordingly, the amendment does not apply to either IME conducted by Dr. Davidson and, thus, the fee cap applied.

Because Dr. Davidson violated that statutory cap on fees, he is disqualified as an individual from testifying as an independent medical examiner at any time in Appellant’s case. See Alpizar v. Star Styled Dancing Co., 808 So.2d 286 (Fla. 1st DCA 2002); City of Riviera Beach v. Napier, 791 So.2d 1160 (Fla. 1st DCA 2001). Accordingly, Dr. Davidson remains disqualified under the statute as amended, regardless of what he charged for the second IME, or what he may charge for any future IME performed for this case. Although Appellees may now choose to pay any amount for a new IME, they have lost the opportunity to use Dr. Davidson.

For this reason, the JCC erred in relying on Dr. Davidson’s testimony to deny Appellant’s claim. Accordingly, we REVERSE the Order on the Merits, and REMAND to the JCC for reconsideration consistent with this opinion. •

BOOTH and PADOVANO, JJ., CONCUR.


text:
    Diane CHENEY, Appellant, v. CHANGES INTERNATIONAL and Zurich, Appellee.
    No. 1D03-1248.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Arthur H. Lester, Esquire, of Woodburn S. Wesley, Jr., & Associates, Fort Walton Beach, for Appellant.

      Christopher D. White, Esquire, Era-clides, Johns, Hall Gellman, Eikner & Jo-hannssen, LLP, Pensacola, for Appellee.
   PER CURIAM.

Claimant Diane Cheney appeals the Judge of Compensation Claim’s (“JCC”) order awarding her attorney’s fees. She argues that the JCC erred in downwardly departing from the presumptively fair fee determined in section 440.34(1), Florida Statutes (1999). We agree and, therefore, reverse. The findings the JCC made in support of the downward departure are not supported by competent substantial evidence. See Alderman v. Fla. Plastering, 805 So.2d 1097, 1099-1100 (Fla. 1st DCA 2002) (stating that a JCC’s determination that a particular section 440.34(1) factor exists and should be applied to support a downward departure must be supported by competent substantial evidence). On remand, the JCC is directed to award claimant the presumptively fair fee.

REVERSED and REMANDED with directions.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


author: POLSTON, J.

text:
    Charles E. MOCK and Ora E. Mock, Appellants, v. Adam E. BIGALE and Sharon A. Bigale, Appellees.
    No. 1D03-284.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    V. McFadyen, Esquire, of V. MeFadyen, P.A., Key West, for Appellants.
    Thomas M. Ervin, Jr., Ervin, Chapman & Ervin, Tallahassee, for Appellees.
   POLSTON, J.

Appellees brought this action, seeking an accounting of an alleged partnership with appellants involving various real estate, damages, and specific performance of a contract for the sale of 100 acres of farmland. After a bench trial, the trial court found that the parties breached a written agreement and verbal agreements, an “enterprise” existed, an accounting would be “futile” because of appellants’ actions, and there “is no equitable way to decide this case along strict contract law.” Appellants appeal the trial court’s final judgment requiring them to convey ten of their lots on the east side of the Chipóla River to appellees and allowing appellees to select the ten lots they wish to possess, hold, or resell as they see fit. No counter-appeal was filed by appellees.

Appellants argue that the trial court attempted to achieve what was believed to be a fair result, but the remedy awarded was improper. In response, appellees state that the trial court fashioned a proper, equitable remedy by dividing the assets. We agree with appellants that it appears the trial court improperly attempted to wind up the affairs of the partnership and distribute its assets without request by the parties or record support. See Fellman v. Southfield Farms Corp., 747 So.2d 1035, 1036-37 (Fla. 4th DCA 1999) (rejecting an argument for partition of partnership property because neither party requested it).

Therefore, we reverse the trial court’s ruling requiring the distribution of appellants’ ten river lots, without prejudice to subsequent proceedings on claims not yet brought by the parties under the Revised Uniform Partnership Act of 1995, chapter 620, Florida Statutes. See generally Ortega Travel Servs., Inc. v. Pearson, 765 So.2d 931 (Fla. 1st DCA 2000) (describing dissolution, termination, and winding up of partnership); Shephard v. Ouellete, 854 So.2d 251 (Fla. 5th DCA 2003) (describing ownership of partnership property and partition); Horizon/CMS Healthcare Corp. v. S. Oaks Health Care, Inc., 732 So.2d 1156, 1159 n. 4 (Fla. 5th DCA 1999) (stating that RUPA, effective January 1, 1996, for general partnerships formed on or after that date, applies retroactively to general partnerships whenever they were initially formed, beginning January 1, 1998).

REVERSED and REMANDED.

WOLF, C. J., and PADOVANO, J., concur.


author: WEBSTER, J. BENTON, J.,

text:
    Flossie BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1450.
    District Court of Appeal of Florida, First District.
    March 18, 2004.

      Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of a conviction, following a non-jury trial, for stopping payment on a check with intent to defraud in violation of section 832.041(1), Florida Statutes (2002). Her only argument is that the evidence presented was legally insufficient to support the trial court’s determination of guilt. We disagree, and affirm.

The testimony of the state’s witnesses was irreconcilable with that of appellant. Appellant claimed that she did not form the intent to stop payment on the check until after she had presented it as payment for automotive repairs. However, if believed, testimony from the state’s witnesses was legally sufficient to contradict appellant’s account, and to support a finding that appellant did intend to stop payment (and thereby defraud the auto repair shop) at the time she presented the check. The trial court chose to believe the state’s witnesses rather than appellant. Because the trial court’s determination is supported by legally sufficient evidence, we may not reweigh that evidence and arrive at a different conclusion. See State v. Coney, 845 So.2d 120, 133 (Fla.2003) (noting that “[cjompetent, substantial evidence is tantamount to legally sufficient evidence, and a reviewing court must assess the record evidence for its sufficiency only, not its weight”). Accordingly, we affirm.

AFFIRMED.

ALLEN, J., concurs; BENTON, J., dissents with written opinion.

BENTON, J.,

dissenting.

The state called three witnesses: Nick Elkins, the owner of Elkins Automotive, Jo Elkins, his wife, and Jeff Powell, a used car dealer’s general manager, who testified that Mrs. Byrd traded her car in the day after she retrieved it from Elkins Automotive, which was also the day she stopped payment on the check. Mr. Elkins testified that he had given Mrs. Byrd a verbal estimate of approximately $1200 to install new heád gaskets, but had told her more work might be needed, and in fact found, after he replaced the head, two “weak cylinders,” which he estimated would require an additional $800 to repair. He testified he told her, “We needed to either go in and replace the rings in it, or from there, she could drive the vehicle as was,” and that she responded that she did not have funds with which to pay for additional repairs.

Mr. Elkins was not present when Mrs. Byrd came for the car and paid his wife for the repairs with a check in the amount of $1,272.00. “She was just happy to come get the ear. It was ready,” Mrs. Elkins testified. None of the state’s witnesses contradicted Mrs. Byrd’s testimony that she returned to the garage after discovering, among other things, that the air conditioning no longer worked, then got into a heated argument with the Elkinses’ son, and decided only then to stop payment on the check, even though she had $1,873.55 in her checking account at the time.

This evidence was insufficient to prove that Mrs. Byrd “with intent to defraud ... delivered a] ... check ... and [so] secure[d] ... goods or services ... and ... pursuant to and in furtherance of such intent to defraud, stop[ped] payment on such check ... [worth] $150 or more,” in violation of section 882.041, Florida Statutes (2001).

Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed.1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept.

Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (parallel citation omitted). Contrary to the majority opinion’s conclusory assurance that “if believed, testimony from the state’s witnesses was legally sufficient,” the state’s evidence was inadequate, even if fully credited.

The crucial factual issue at trial was Flossie Byrd’s intent when she gave Jo Elkins a check for the car repairs. As defense counsel argued to the trial judge, the defense position was that no intent to defraud was proven “as of the moment of presentation of the check ... and that the stop payment request ... the following day was because of legitimate consumer dissatisfaction.” The state sought to prove delivery with felonious intent to defraud by circumstantial evidence.

A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Jammillo v. State, 417 So.2d 257 (Fla.1982). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954).

State v. Law, 559 So.2d 187, 188 (Fla.1989). The unrefuted, reasonable hypothesis here is that Mrs. Byrd decided to stop payment only after her return to Elkins Automotive and the ensuing argument with Elkins fils, “because of legitimate consumer dissatisfaction.” As I read the record, moreover, it is simply not the case that the “testimony of the state’s witnesses was irreconcilable with that of appellant.”

Accordingly, I respectfully dissent.


text:
    Yoslen BARRIOS, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY and Gallagher Bassett Services, Inc., Appellees.
    No. 1D03-3700.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Jay M. Levy, Miami, for appellant.

      Edward D. Schuster of Massey, Coican & Schuster, Fort Lauderdale, for appel-lees.
   PER CURIAM.

The parties and the Judge of Compensation Claims have certified that no transcript of the hearing can be prepared and that efforts to reconstruct the evidence have been unsuccessful. We must therefore reverse and remand the cause for a hearing de novo. Arnold Lumber Co. v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

REVERSED and REMANDED.

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


text:
    Jonathan R. ZACHEM, Appellant, v. PARADIGM PROPERTIES MANAGEMENT TEAM, INC., Appellee.
    No. 1D03-1951.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Stephen C. Bullock of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellant.
    Carl B. Schwait and Elizabeth M. Collins, of Dell Graham, P.A., Gainesville, for Appellee.
   PER CURIAM.

The trial court committed no abuse of discretion in determining that appellee’s offer of judgment was not made in bad faith and, after making such a determination, allowing attorney’s fees against appellant. Here, appellee obtained a summary judgment of no liability, which has now been affirmed by this court. Zachem v. Paradigm Props. Mgmt. Team, Inc., 861 So.2d 1160 (Fla. 1st DCA 2003) (table). A nominal offer is appropriate where the of-feror has-a reasonable basis to believe that exposure to liability is minimal. See, e.g., Dean v. Vazquez, 786 So.2d 637, 640 (Fla. 4th DCA 2001) (“[A]s confirmed by the jury verdict the Defendants had a reasonable basis to conclude their exposure was nominal.”); Deltona House Rentals, Inc. v. Cloer, 734 So.2d 586,-588 (Fla. 5th DCA 1999) (“In. light of the manifest lack of liability, [appellant] was not obliged to offer more than a nominal amount for its offer to be in good faith.”); City of Neptune Beach v. Smith, 740 So.2d 25, 27 (Fla. 1st DCA 1999) (acknowledging, the “widely accepted view that even a nominal offer may be made in good faith”).

AFFIRMED.

BARFIELD, KAHN and HAWKES, JJ., concur.

       Although not dispositive, the ultimate outcome of the proceedings is certainly a consideration in determining whether an offer was made in good faith. See McMahan v. Toto, 311 F.3d 1077, 1084-85 (11th Cir.2002) (finding the argument that the offeror lacked a reasonable belief that it would prevail to be "illogical’' and "unreasonable,” in light of the fact that the offeror prevailed on summary judgment).


text:
    Joan HARRIMAN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-4066.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Appellant, Pro se.
    John R. Perry, Assistant District Legal Counsel, Department of Children and Families, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Joan Harriman appeals the Department of Children and Families’s dismissal of her hearing after the termination of her Medicaid benefits. At her hearing, appellant argued in part that despite an amended statute, which changed the income requirements for option medical assistance payments, she was still entitled to benefits under another statute. She also argued that under state and federal case law, once she qualified for Medicaid, she was protected from termination of her benefits. The hearing officer dismissed the hearing in accordance with 42 C.F.R. section 431.220(b) (2002), which states: “The agency need not grant a hearing if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all recipients.”

It is clear that appellant was, at least in part, challenging the termination of her benefits for reasons other than the change in law automatically affecting her benefits. Appellant, therefore, was entitled to a hearing on these issues. See 42 C.F.R. § 431.220(a)(2) (stating that an agency must hold a hearing when a recipient requests a hearing “because he or she believes the agency has taken an action erroneously”). Accordingly, we reverse and remand with directions to hold a hearing at which appellant may contest DCF’s allegedly erroneous termination of her Medicaid benefits.

REVERSED and REMANDED with directions.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.

2


author: ORFINGER, J.

text:
    Donna DEKLYEN, Appellant, v. TRUCKERS WORLD, INC., Appellee.
    No. 5D03-1480.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.

      H. Clay Parker of Parker & Associates, P. A., Orlando, for Appellant.
    Robert E. Bonner and Donald L. O’Dell of Meier, Bonner, Muszynski, Doyle & O’Dell, P. A., Orlando, for Appellee.
   ORFINGER, J.

Donna Deklyen appeals the denial of her motion for a new trial following a jury verdict in her personal injury action against Truckers World, Inc. The jury awarded Deklyen substantial past and future economic damages, but no past or future noneconomic damages. Based on the evidence presented, Deklyen contends that the verdict was inadequate or against the manifest weight of the evidence. We agree and reverse for a new trial on damages.

Deklyen, a truck driver, was injured when she tripped and fell at the Truckers World truck stop. Deklyen suffered a fractured wrist, causing the bone to protrude through her skin. She was required to undergo three surgeries involving the placement of screws, pins and plates to stabilize the fracture as well as other procedures in an effort to alleviate the pain caused by her injury. Despite the medical care, Deklyen was left with a painful, misshapen hand, and an extremely limited range of motion in her wrist.

Because of her occupation as a truck driver, Deklyen’s injuries were unusually troublesome. It was undisputed that as a result of her residual impairment, she was unable 'to return to trucking. Even the doctors retained by Truckers World concluded that Deklyen has significant impairment in her left hand and wrist. One doctor retained by Truckers World concluded: '“[Djespite attempts by physicians to treat her effectively, [it] has not resulted in a good outcome. And she has some residual restrictions with the hand.” Another doctor retained by Truckers World opined that Deklyen’s condition would never completely resolve, and “clearly it’s going to impose on her life considerably and will never go away.”

The jury verdict found Truckers World seventy percent (70%) comparatively negligent and Deklyen thirty percent (30%) at fault. The jury awarded $100,000 for past medical expenses and lost income, and an additional $60,000 for future medical expenses and loss of income, but no noneco-nomic damages. No objection was made to the verdict at trial, however, Deklyen filed a timely motion for a new trial, contending that the damage award was inadequate or against the manifest weight of the evidence. Following the trial court’s denial of that motion, this appeal ensued.

As a threshold question, Truckers World argues that the verdict, if flawed, was inconsistent, not inadequate. If Truckers World is correct, Deklyen’s argument is not preserved for appeal. To preserve the issue of an inconsistent verdict for review on appeal, the party claiming inconsistency must raise the issue before the jury is discharged. If the trial court agrees, the trial court may reinstruct the jury and send it back for further deliberations. See Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d DCA 2002). Therefore, our analysis must begin by determining whether this verdict was inconsistent, requiring Deklyen to have asserted it prior to the jury being discharged.

In Crawford v. DiMicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968), the fourth district court defined an inconsistent verdict thusly:

Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereon is erroneous.

“A verdict is not necessarily inconsistent because it fails to award enough money, or perhaps no money at all, for future noneco-nomic damages after awarding past and future medical expenses and past lost earnings. Under such circumstances, the issue is the adequacy of the award, not its consistency with any other award by the verdict.” Avakian v. Burger King Corp., 719 So.2d 342, 344 (Fla. 4th DCA 1998).

Applying those principles to the facts found in the record, we see no inconsistency in the verdict. The jury made no finding of fact that was inconsistent with any other finding it made. As a result, we find no merit in the contention that Deklyen failed to preserve the issue for appellate review.

Because the verdict was not inconsistent, Deklyen was correct in challenging it in a post-trial motion for a new trial. See McCloud v. Sherman Mobile Concrete Co., Inc., 579 So.2d 773 (Fla. 2d DCA 1991). A verdict comes to an appellate court clothed with a presumption of regularity and should not be disturbed if supported by the evidence. Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109, 110 (Fla. 3d DCA 1992). Our standard for reviewing the trial court’s denial of Deklyen’s motion is abuse of discretion. Accordingly, if reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion, and the order must stand undisturbed by-the appellate court. See DeLong v. Wickes Co., 545 So.2d 362, 366 (Fla. 2d DCA 1989). However, the trial judge has a duty to grant a motion for a new trial when it appears the jury has been influenced by extraordinary considerations, misled by the force and credibility of the evidence, or when the verdict, as in this case, fails to comport with the manifest weight of the evidence. Surety Mortgage, Inc. v. Equitable Mortgage Resources, Inc., 534 So.2d 780, 782 (Fla. 2d DCA 1988).

Here, there was considerable evidence of noneconomic damage that should have been considered by the jury. This is especially true considering that both the plaintiff and the defense experts testified that Deklyen suffered from chronic pain syndrome, carpal tunnel syndrome and a permanent disability as a result of the fall. There was no credible evidence submitted other than that demonstrating Deklyen sustained some measure of noneconomic damages.

When a damage award is clearly inadequate and the issue of liability was eontested, it gives rise to a suspicion that the jury may have compromised its verdict. Cowen v. Thornton, 621 So.2d 684, 687 (Fla. 2d DCA 1993) (citing Watson v. Builders Square, Inc., 563 So.2d 721 (Fla. 4th DCA 1990)). We do, however, agree that an award of economic damages, including future damages, does not, as a matter of law, require an award of noneco-nomic damages. As Judge Klein observed:

Future damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow, in my opinion, that an award of future medical expenses requires an award of noneconomic damages. Our standard jury instructions do not require consistency in these verdicts. They allow a jury to return a verdict finding a permanent injury, but do not require an award of damages.

Allstate Ins. Co. v. Manasse, 681 So.2d 779, 785 (Fla. 4th DCA 1996) (Klein, J., dissenting), dissent approved, 707 So.2d 1110 (Fla.1998).

But where, as here, a jury awards the plaintiff past and future economic damages, including extensive medical expenses incurred by her, and zero damages for either past or future pain and suffering “despite indisputable evidence that the plaintiff suffered at least some pain from her injury, and uncontroverted evidence that the pain continued and would continue well after the injury, the damage award is grossly inadequate, and a new trial on the issue of damages is required.” Stevens v. Mount Vernon Fire Ins. Co., 395 So.2d 1206, 1207 (Fla. 3d DCA 1981) (citing Short v. Grossman, 245 So.2d 217 (Fla.1971); Griffis v. Hill, 230 So.2d 143 (Fla.1969); Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980); Pichel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968)).

REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES.

PETERSON and PALMER, JJ., concur.

      . Final judgment was entered in the amount of $112,000 after the reduction for Dekylen's comparative negligence.

      . By enacting section 768.74, Florida Statutes (1986), the Legislature shed further light on the factors to be considered by the court in considering the adequacy of a verdict. Section 768.74(5) provides:
      In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
      (a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
      (b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to' the amounts of damages recoverable;
      (c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
      (d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
      (e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

      . Our concern that the verdict may have been comprised is buttressed by the fact that despite an order in limine, Truckers World failed to instruct one of its physician experts not to mention Deklyen’s worker's compensation claim. Although the court instructed the jury to disregard any evidence of a worker’s compensation claim, we must wonder whether that consideration played into the jury’s failure to award noneconomic damages in this case.


author: PLEUS, J.

text:
    ST. PAUL GUARDIAN INS. CO., Appellant, v. SYLVIA BUKAUSKAS, et al., Appellees.
    No. 5D03-3140.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Griffith J. Winthrop, III, and Julianne J. Flynn of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellant.
    Robert T. Burger of Robert T. Burger, P.A., Melbourne, for Appellees.
   PLEUS, J.

Appellant, St. Paul Guardian Insurance Company, filed its “Notice of Appeal of Partial Final Judgment” pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.110(k) of an “Order Granting Plaintiffs’ Motion to Set Aside Settlement Agreement, Denying Defendants’ St. Paul Guardian Insurance Company Motion to Enforce Settlement Agreement and Denying Petition for Attorney’s Fees and Costs and/or to Disburse Monies Held in the Registry of the Court.” The order under review is not a final order, partial final judgment or other appealable order.

We have also considered appellant’s request to review this matter as a petition for writ of certiorari. A certiorari review of an interlocutory, non-appealable order is appropriate only when the order departs from the essential requirements of law and causes material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). The mere expense and inconvenience of further litigation does not constitute harm sufficient to permit certiorari review. H.L.O.T. Family Limited Partnership v. Magnolia Plantation Property Owners Association, Inc., 801 So.2d 292 (Fla. 1st DCA 2001). We conclude that certiorari relief is not appropriate under the facts of this case because the issues raised in this proceeding are renewable on direct appeal. See, e.g., Caruso v. Super Vision International, Inc., 845 So.2d 947 (Fla. 5th DCA 2003). Accordingly, we dismiss the appeal, alternatively deny the petition and cancel oral argument.

APPEAL DISMISSED.

PALMER and ORFINGER, JJ., concur.


text:
    SUNSHINE COMPANIES and Specialty Risk Services, Inc., Petitioners, v. Michael AGOO, Respondent.
    No. 1D04-0250.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Rex A. Hurley and Bryan A. Lowe of Hurley, Rogner, Miller, Cox, Waranch & Westcott, Winter Park, for petitioners.
    Philip Anderson of Anderson & Anderson, Port St. Lucie, for respondent.
   PER CURIAM.

Petitioners have failed to demonstrate any injury which cannot be remedied by an appeal from a final order. Accordingly, the petition for writ of certiorari is denied.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Aaron AUGUSTUS, f/b/o, Estate of Juanita Augustus, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD and F.A. Richard & Associates, Appellees.
    No. 1D03-3186.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Patricia E. Thorne, Delray Beach, for appellant.
    Robert L. Teitler of Walton, Lantaff, Schroeder & Carson, Miami, for appellees.
   PER CURIAM.

DISMISSED. Section 440.25(4)®, Florida Statutes (2003).

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


text:
    Xaviar WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4820.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Xaviar Walker, pro se, petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 15, 2003, order denying motion for postconviction relief in Nassau County Circuit Court case number 01-289-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


text:
    Isabel SOLA, Appellant, v. HERNANDO COUNTY SCHOOL BOARD, et al., Appellee.
    No. 1D03-0970.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Jimmie Butler, Esq. of Barbas, Koenig, Nunez, Sanders & Butler, Tampa, for Appellant.
    Nancy A. Blastic, Esq. of Moore, Peterson & Zeitler, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Diana v. HLS Cos., 670 So.2d 125 (Fla. 1st DCA 1996); Imperial Elec., Inc. v. Reeves, 647 So.2d 199 (Fla. 1st DCA 1994); Townsend & Bottom v. Bonds, 610 So.2d 619 (Fla. 1st DCA 1992); Marvin. v. Rewis Roofing, 553 So.2d 314 (Fla. 1st DCA 1989).

BARFIELD, BROWNING and LEWIS, JJ., concur.