text:
    Rodrick SAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2332.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Rodrick Johnson Sams appeals his conviction and sentences for two counts of sexual battery, four counts of lewd assault on a child, and one count of lewd and lascivious conduct on a child. We affirm.

Sams was arraigned on July 7, 2000. On July 11, 2000, he invoked his right to counsel and a public defender was appointed on that date. On March 15, 2001, he filed a pro se demand for a speedy trial which the trial court denied on March 16, 2001. Sams’ counsel, rather than adopt the motion for speedy trial, waived his right to speedy trial on March 23, 2001. On October 30, 2001, Sams filed a pro se motion to dismiss and discharge for failure of the trial court to set trial within the time frame allowed by the speedy trial rule. The trial court denied the motion as well as several subsequent pro se motions to dismiss and discharge.

Trial was held July 30 and July 31, 2002. The prosecution called as witnesses the two alleged victims, Sams’ daughter and step-daughter; two police officers to which the defendant confessed; the examining physician; the Department of Children and Families caseworker to whom the defendant also confessed, and the victims’ grandmother who testified that Sams confessed to her. The defense rested without calling any witnesses and Sams did not testify.

During closing arguments, the prosecutor said:

Finally, with KW.’s testimony really when she testified, when she took that stand she was never once contradicted by any other witness testifying. You have to consider that. And then never once on cross examination did— on cross examination was a prior inconsistent statement brought out; never once. Again, you have to consider that in judging credibility.

Referring to the other victim, S.W.’s, testimony, the prosecutor stated: “They corroborated each other. And like K.W., not once was she contradicted on the stand by anyone else and was she cross examined about any prior inconsistent statements.” Defense counsel made no objection to these remarks. The jury found Sams guilty on all counts and the court sentenced him to two concurrent life sentences and a separate fifteen year term. He now raises two claims on appeal.

First, Sams claims that the trial court erred by denying his demand for speedy trial, and by further denying his motions to dismiss and discharge contrary to the procedures for speedy trial set forth in Rule 3.191(b) of the Florida Rules of Criminal Procedure (Fla.2002). We disagree.

Neither the Federal nor the Florida Constitution’s right to counsel provision embodies a right to hybrid representation. Logan v. State, 846 So.2d 472 (Fla.2003). Florida courts generally treat pro se motions by defendants who have representation as a “nullity, having no legal force or effect.” Thompson v. State, 615 So.2d 737, 741 (Fla. 1st DCA 1993). See also, Lewis v. State, 766 So.2d 288 (Fla. 4th DCA 2000); Corner v. State, 779 So.2d 671 (Fla. 3d DCA 2001). The Florida Supreme Court has recently stated that where such pro se petitions have not been adopted by counsel they cannot be entertained on the merits. Logan, 846 So.2d at 474. The court further stated that “Consistent with long-standing precedent in this state, this court will no longer accept these attempts at “hybrid” representation.” Id. The trial court therefore properly denied Sam’s numerous pro se motions.

Sams also claims that the prosecutor’s remarks during closing arguments constituted fundamental error because they amounted to improper comments on the defendant’s constitutional right to remain silent. The prosecutor’s remarks referred to the uncontroverted nature of the evidence. However, because Sams and the victims were the only witnesses to the alleged crimes, and only Sams could contradict the evidence, the remarks were an impermissible comment on the failure of the defendant to testify. Rodriguez v. State, 753 So.2d 29, 38 (Fla.2000). “However, it is well settled that such erroneous comments do not require an automatic reversal.” Id. at 39.

The issue is whether the error affected the verdict. State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986). In this case, the error was harmless beyond a reasonable doubt. The testimony of two victims, along with the corroboration of four separate confessions, clearly make the error harmless. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    April MERRILL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3136.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Jason R. Smith, Key West, for appellant.
    Charles J. Crist, Jr., Attorney General and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and NESBITT, JJ. .
   GREEN, J.

April Merrill was convicted and sentenced for possession of cannabis with intent to sell and possession of drug paraphernalia. She appeals the denial of her motion to suppress evidence obtained during a search of her residence pursuant to a warrant and asserts that the supporting affidavit failed to establish probable cause. We disagree and affirm.

The affidavit utilized by the police to obtain the search warrant in its entirety reads as follows:

On 13 August 2001 at approximately 1630 hours, Officer Tara Koenig of the Key West Police Department was working in an undercover capacity with Detectives Frank Zamora, Craig Karch, and your affiant on a narcotics purchase.
Officer Koenig was provided with an audio listening device and given $160.00 pre recorded currency in order to purchase marijuana from a subject known as Zachery Seubarran. At about 1700 hours, officer Koenig met with Seubar-ran at “Stitches” (553 Duval Street) and he stated that he was not currently in possession of the marijuana but that he could call his “supplier” and have some within the hour. This would be an ounce of marijuana for $140.00.
Officer Koenig accompanied Seubar-ran to his apartment on the 500 block of Southard Street, where he retrieved the phone number of his supplier. Officer Koenig observed Seubarran while he dialed the nümber and listened to him as he spoke to a female named “April.” April stated that she would be at the store (Stitches, 533 Duval Street) within the hour. Officer Koenig told Seubar-ran to call her when the marijuana was delivered.
At approximately 1805, Officer Koenig approached Stitches and was met outside the store by Seubarran. Officer Koenig followed Seubarran into the store. Officer Koenig gave Seubarran the $140.00 pre recorded currency in exchange for the marijuana. Officer Koenig observed Seubarran take the money to the back of the store where patrons are generally not permitted. Officer Koenig left the store and advised us that the only other person that she saw in the store was a black female and appeared to be a tourist.
As Officer Koenig walked toward a parked vehicle, detectives observed a white female with light brown hair, short dred-locks, and a black backpack leaving the store. She walked directly to and got into the drivers seat of a small white Toyota Echo bearing Florida tag F27EBW that was parked on the 500 block of Southard Street.
Detectives surveilled the vehicle as the female drove directly to a residence located at 1222 Third Street in the city of Key West. A registration check of Florida Tag F27EBW revealed that the vehicle was registered to April Rene Merrill (W/F 09/30/1973) of 1219 Third Street Apt. # 1, Key West, Florida.
The marijuana field tested positive and weighed approximately 30.9 grams.
On 20 August 2001, your affiant observed the listed vehicle (white Toyota Echo, FL tag F27EBW) parked on the property directly in front of the residence.
On 21 August 2001, Detectives Karch and Barber conducted surveillance on the listed residence and. observed the listed vehicle (white Toyota Echo, FL tag F27EBW) parked on the property directly in front of the residence.
On 22 August, 2001, Detective Craig Karch, Detective Frank Zamora, and your affiant conducted a refuse recovery at 1222 Third Street in the city of Key West. Detective Craig Karch and your affiant retrieved three white garbage bags from a trash can located curbside in front of 1222 Third Street. Specifically, the trash was placed on the northeast corner of the property. The placement of the trash was consistent with that of other neighbors in the area. The bags, which had been hand tied, were transported to a well lit location and contents examined by Detective Karch, Zamora, and your affiant.
Out of two of the three plastic bags, the following items were recovered and processed:
-One plastic sandwich baggie containing approximately .5 grams green leafy substance (field test positive for Marijuana)
-One empty sandwich baggie container with ash residue
-One direct mail flyer with the address “1222 Third Street Key West, Florida 33040”
The listed vehicle (white Toyota Echo, FL tag F27EBW) was parked on the property directly in front of the residence.

By conducting a search of Merrill’s residence, the police further averred that they hoped to recover more “marijuana and any records, paraphernalia and proceeds associated with the distribution and sale of marijuana.” The search warrant was issued. After a search of Ms. Merrill’s residence yielded a significant amount of marijuana and drug paraphernalia, she was arrested and charged in the instant case.

The defense filed a motion seeking to suppress the evidence seized in Ms. Merrill’s residence on the grounds that the search warrant was unsupported by probable cause to believe that there was a nexus between her residence and drug activity. The trial court denied the motion and this appeal timely ensued. The appellant’s sole contention here is the same as it was at the trial level, that her motion to suppress should have been granted because the search warrant was not based upon probable cause. We disagree.

Probable cause has been 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. See Schmitt v. State, 590 So.2d 404, 409 (Fla.1991). It is to be based upon the totality of the circumstances. See III. v. Gates, 462 U.S. 218, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As long as a neutral magistrate has a substantial basis for concluding that a search would produce evidence of wrongdoing, the requirement of probable cause is satisfied. See Schmitt, 590 So.2d at 409. In this regard the United States Supreme Court has observed that:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

See Ill. v. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317.

Thus, confining our analysis to the four corners of the affidavit, as we are obligated, see Schmitt, 590 So.2d at 409 (citations omitted), we must determine whether the totality of the sworn factual averments contained therein created a substantial basis for concluding that probable cause existed. We conclude that they did.

The issuance of a search warrant for a private dwelling is governed by section 933.18, Florida Statutes (2001), which provides, among other things, that no search warrant shall be issued under this chapter or under any other law of this state to search any private dwelling occupied as such unless the law relating to narcotics or drug abuse is being violated therein. See Bonilla v. State, 579 So.2d 802, 805 (Fla. 5th DCA 1991). In this case, we believe that the circumstantial evidence of the appellant’s involvement in the sale of marijuana to the undercover police officer at the store coupled with the contraband and other evidence found during the trash pull outside of the appellant’s residence supported the magistrate’s probable cause determination for the issuance of the search warrant. See State v. Gross, 833 So.2d 777 (Fla. 3d DCA 2002); State v. Carbonell 816 So.2d 1169 (Fla. 4th DCA 2002). Lopez v. State, 775 So.2d 1007 (Fla. 3d DCA 2001); State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995); Scott v. State, 559 So.2d 269 (Fla. 4th DCA 1990).

The appellant urges, however, that this case is governed by the holdings in Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999); and Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998). In these cases, the Fourth District found that probable cause did not exist for the issuance of a residential search warrant based upon a single trash pull revealing drugs and no additional surveillance by authorities suggesting drug activities at the subject residences. See State v. Carbonell, 816 So.2d 1169, 1171 (Fla. 4th DCA 2002). In relying upon Gesell and Raulerson, the appellant is obviously advancing the argument that the only evidence of drug activity at her home was the single trash pull, and neither the police nor the magistrate was entitled to consider her prior illicit drug activity at the store for purposes of a probable cause determination. In State v. Gross, 838 So.2d 777, 780 (Fla. 3d DCA 2002), we rejected such an argument and said that “... the existence of probable cause is to be determined from the totality of the circumstances, and a prior history of drug offenses is one factor which may be taken into account.” In fact in that case, we found that the prior drug activities of the defendant at an earlier address were matters which could properly be considered for purposes of the issuance of a search warrant for the defendant’s current residence. Id. The appellant’s reliance upon Gesell and Raulerson is therefore misplaced and we conclude that the lower court properly denied her motion to suppress.

Affirmed.


text:
    Aaron MARSH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1954.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.

      Charles G. White, for appellant.
    Charles J. Crist, Jr., Attorney General and Richard L. Polin, Senior Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   GREEN, J.

Appellant, Aaron Marsh, appeals an order denying his petition for writ of error coram nobis following an evidentiary hearing. We affirm.

Marsh was charged with three counts of aggravated battery, one count of false imprisonment, and two counts of simple battery. Marsh accepted a plea offer from the state by which he agreed to plead guilty in exchange for a sentence of two years incarceration followed by 18 months probation under “Gort Act” status. Shortly before his scheduled release from prison, the state filed a petition seeking the involuntary civil commitment of Marsh as a sexually violent predator pursuant to the “Jimmy Ryce Act” (“Ryce Act”), section 394.910, et seq., Florida Statutes (2001). The lower court found probable cause to believe that Marsh was a sexually violent predator and issued an order authorizing the Department of Children and Families to take Marsh into custody at the conclusion of his prison sentence.

Marsh filed a petition for writ of error coram nobis which sought the withdrawal of his guilty plea based upon the failure of both the trial court and his defense attorney to apprise him of his eligibility for civil commitment or confinement under the Ryce Act. An evidentiary hearing was conducted pursuant to this court’s mandate.

Marsh’s defense counsel testified, at the evidentiary hearing below, that he knew the charges in this ease alone would not render Marsh eligible for civil commitment under the Ryce Act, but did not know that Marsh’s prior convictions could be used to trigger the provisions of the Ryce Act. He also testified that he had no recollection of conversations with the prosecutor regarding Marsh’s eligibility under the Ryce Act.

Marsh testified that he was unaware of the Ryce Act and that he might be held in civil commitment indefinitely. He further stated that he would not have accepted the state’s plea offer had he known that he would not be released upon the completion of his two-year prison sentence.

The trial court denied the petition. Marsh timely took this appeal and makes two arguments.

First, he asserts that the trial court erred in denying his petition where the evidence at the hearing below established that he was affirmatively misled by his counsel about his release from prison. We disagree. Initially, we note that civil confinement under the Ryce Act is a collateral consequence of the plea in this case, and neither the trial court or the defense counsel had a duty to advise Marsh of the potential collateral consequences of his plea. See Major v. State, 814 So.2d 424, 426-27 (Fla.2002) (stating that judge and counsel must only apprise defendant of direct consequences associated with plea agreement, and not of collateral consequences); Watrous v. State, 793 So.2d 6, 8 (Fla. 2d DCA 2001) (finding that failure of trial court and trial counsel to advise defendant of collateral consequence did not provide basis on which to withdraw plea). The law is clear, however, that affirmative misadviee regarding the collateral consequences of a plea may form the basis for the withdrawal of a plea. Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001). See also Watrous v. State, 793 So.2d at 11 (finding that defendant may withdraw guilty plea if he relied on counsel’s affirmative misadvise). In this case though, there is absolutely no record support for Marsh’s contention that he was affirmatively misled either by the trial court or his counsel. The undisputed record evidence indicated that prior to the plea, defense counsel merely opined that Marsh would be released from prison soon based upon the time he already served. Defense counsel never made any representations one way or the other as to Marsh’s eligibility for civil commitment under the Ryce Act based upon prior convictions. Additionally, the trial court never made any factual representations whatsoever to Marsh either regarding the length of time remaining to be served in prison, or as to the potential collateral consequences of his plea. In the absence then of any duty to apprise Marsh of the collateral consequences of his plea or affirmative misrepresentations by either defense counsel or the trial court, Marsh is entitled to no relief.

As his remaining issue on appeal, Marsh nevertheless contends that the state violated its plea agreement when it sought civil commitment under the Ryce Act after he had completed his sentence of incarceration. The state responds, and we agree, that this argument is unpreserved for appellate review because it was never presented to the trial court. See Evans v. State, 808 So.2d 92, 101 (Fla.2001) (finding that defendant did not preserve error on appeal claiming that grand jury testimony was materially different from trial testimony and therefore reversal was required, because defendant failed to raise the issue at trial); Sims v. State, 839 So.2d 807, 812 (Fla. 4th DCA 2003) (finding that defendant failed to preserve his claim that court improperly permitted the state to impeach witness where issue was never raised in trial court). Even if it had been preserved, it lacks merit based upon the Supreme Court’s recent decision in Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d-, 2002 WL 31728885 (Fla. Dec. 5, 2002). In that decision, the court concluded that any bargain struck by a defendant in a plea agreement in a criminal case has no bearing on a subsequent involuntary civil commitment for control, care and treatment. See also Krischer v. Faris, 838 So.2d 600, 603 (Fla. 4th DCA 2003) (concluding that defendant’s involuntary civil commitment was not continued punishment for his criminal offense because it was based upon clinical evaluations of his present state, and not upon the criminal proceedings).

We therefore affirm the order under review.

Affirmed.

      . See § 775.084, Fla. Stat. (2001).

      . See Marsh v. State, 804 So.2d 617 (Fla. 3d DCA 2002).

      . Marsh in fact was released from prison within five months of his plea.

      . In fact, the following portion of the plea colloquy reveals that the trial court precau-tiously informed Marsh that no one could realistically make any promises or predictions as to the length of time to be served.
      [COURT]: Now your sentence is two years with credit for time you've already served. I can't tell you how much more time you will serve. Anyone who has told you that— if anyone made you any promises or predictions — they're only a prediction, not a promise, do you understand that?
      [DEFENDANT]: Yes, ma'am.
      [COURT]: No one can tell you how much time you’re going to do.
      [DEFENDANT]: Yes, ma'am.
      [COURT]: Whatever time the Department of Corrections determined that you need to serve you will serve, do you understand that?
      [DEFENDANT]: Yes, ma'am.
      [COURT]: Do you have any questions for this court in terms of this plea?
      [DEFENDANT]: No ma'am.


author: PER CURIAM.

text:
    George Saint FLORANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-207.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    John H. Lipinski, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, GREEN and FLETCHER, JJ.
   PER CURIAM.

George Saint Florant appeals his convictions for armed robbery, home-invasion robbery, kidnapping, and burglary with an assault. We affirm in part and reverse in part.

The State concedes that the home invasion conviction is subsumed within the conviction for burglary with an assault. Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998). We remand for the striking of the home-invasion robbery conviction, and for a new sentencing hearing on a recalculated guidelines scoresheet.

We find no merit to the claim of discovery error under Richardson v. State, 246 So.2d 771 (Fla.1971). Assuming for purposes of this discussion that the error was chargeable to the State, rather than a failure to communicate between defense co-counsel, the error was in any event corrected when the trial court made provision for the defense to take the deposition of the witness whom the defense had not previously been able to depose. This was an entirely appropriate solution, and there was no defense objection to this procedure.

Affirmed in part, reversed in part, and remanded for resentencing.


author: WARNER, J.

text:
    Brenda J. REYNOLDS, Appellant, v. SV CENTRAL DANIA PROPERTIES, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 4D02-2906.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      Donald R. McCoy of Donald R. McCoy, P.A., Fort Lauderdale, for appellant.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   WARNER, J.

The Unemployment Appeals Commission (“UAC”) affirmed an order of the appeals referee that determined appellant had not timely filed her notice of appeal, filed by fax transmission, from the denial of her unemployment benefits application. The referee found that while the UAC rules require receipt of the notice, appellant’s notice of appeal was not docketed in the UAC office within the time allowed for appeal. However, the record also contains a fax transmission result report that indicates a four page fax was successfully sent to the Office of Appeals within the time for filing an appeal.

We reverse the order affirming the appeals referee’s determination that the appeal was untimely. We adopt the reasoning of Ebersol v. Unemployment Appeals Commission, 845 So.2d 945, 947 (Fla. 5th DCA 2003), which states:

[T]he Commission rules expressly permit a party to file a request for an appeal by facsimile. While as a general proposition, a party such as Ebersol is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that Ebersol did indeed fax a document to the agency on June 28, 2002, or well within 20 days of the date of the appeals referee’s decision. While the Commission did not docket any request for appeal within this 20 day period, the record is completely silent as to whether this was because the fax was not received by the Commission or because the Commission received the fax but was remiss in not docketing the request. To simply accept the Commission’s position that Ebersol bears the risk in either circumstance would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives. We are more inclined to embrace a salutary rule that where a claimant makes an evidentiary showing that he did, in fact, timely and correctly direct a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing.

(Footnote omitted). Applying those principles to this case, appellant produced evidence that she timely and correctly faxed her notice of appeal to the Office of Appeals. Therefore, the referee should have determined that her appeal was timely.

Reversed and remanded for further proceedings.

KLEIN and SHAHOOD, JJ., concur.


text:
    Joseph FABIANI, Appellant, v. Linda J. FABIANI, Appellee.
    No. 4D02-3122.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellant.
    Joy A. Bartmon of The Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellee.
   PER CURIAM.

In this appeal of a dissolution judgment, we conclude that the trial court did not err in distributing marital assets and liabilities, but reverse the alimony award" because the court failed to make the findings of fact required by section 61.075(8), Florida Statutes. Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003). We find no other error and accordingly remand for further proceedings in which the court shall have the discretion to consider additional evidence relating to the issue of alimony.

WARNER, KLEIN and SHAHOOD, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Michael Warren TRUMBOWER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1719.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Michael Warren Trumbower appeals his judgment and sentence for aggravated assault on a law enforcement officer. We affirm the conviction without comment. His ten-year sentence of imprisonment includes a three-year minimum mandatory term, which the trial court imposed over Mr. Trumbower’s objection while Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), was still pending on rehearing in this court.

Based on Taylor and Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), we reverse the minimum mandatory sentence and remand for resentencing in accordance with the valid laws in effect at the time Mr. Trumbower committed his offense. As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and Jones v. State, 27 Fla. L. Weekly D2377, — So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We note that, due to a scrivener’s error, the written sentence does not contain the three-year minimum mandatory term that was orally imposed by the trial court. If the trial court determines that Mr. Trum-bower’s ten-year sentence is lawful and that the only change required by this opinion is to remove the minimum mandatory term, Mr. Trumbower need not be present for resentencing.

Affirmed in part; reversed in part; remanded; conflict certified.

SILBERMAN and COVINGTON, JJ., Concur.


text:
    Osvaldo MORAN, et al., Appellants, v. Bruce SCHURGER, et al., Appellees.
    No. 3D02-1410.
    District Court of Appeal of Florida, Third District.
    July 23, 2003.
    Becker & Poliakoff and Ivan J. Reich and Daniel L. Wallach (Ft.Lauderdale), for appellants.
    Arthur Joel Levine, for appellee.
    Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The final judgment piercing the corporate veil and finding Osvaldo Moran (Moran) personally responsible to pay a judgment the Schurgers had obtained against Osvaldo Moran Associates, Inc. (Corporation) is reversed because the trial court specifically found that there was no intent by Moran to defraud or mislead anyone, and that the Corporation was not organized or used by Moran to mislead creditors or to perpetrate a fraud upon them. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Mason, v. E. Speer & Associates, Inc., 846 So.2d 529 (Fla. 4th DCA 2003); Lipsig v. Ramlawi, 760 So.2d 170 (Fla. 3d DCA 2000); Hilton Oil Transport v. Oil Transport Co. S.A., 659 So.2d 1141, 1152 (Fla. 3d DCA 1995); Veritas Marketing and Research, Inc. v. Entertel, Inc., 641 So.2d 513 (Fla. 5th DCA 1994). See also Resolution Trust Carp. v. Latham & Watkins, 909 F.Supp. 923, 931 (S.D.N.Y.1995)(analyzing Florida law)(“Absent proof of intentionally fraudulent conduct, courts simply do not pierce the corporate veil under Florida law.”).

Additionally, the judgment appealed from premised the imposition of liability upon Moran on a finding that the Corporation was operated by Moran in a manner which violated Section 726.106(2), Florida Statutes (1993) which provides:

A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

Under Section 726.110(3), Florida Statutes(“Extinguishment of cause of action”) a claim under Section 726.106(2) is extinguished unless brought within one year after the transfer was made. The record shows that this action was brought long after the expiration of that time period, and the claim against Moran under Section 726.106(2) is extinguished.

The judgment appealed from is reversed and this matter is remanded with directions that it be dismissed.


author: POLEN, J.

text:
    Paul KERZNER, Appellant, v. Barbara LERMAN, Appellee.
    No. 4D02-4097.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      John Greenfield of Nevel & Greenfield, P.A., North Miami, for appellant.
    Joel D. Kenwood of Joel D. Kenwood, P.A., Boca Raton, for appellee.
   POLEN, J.

Paul Kerzner (“Kerzner”) filed a complaint for an Accounting, Fraud, and Conversion against his aunt, Barbara Lerman (“Lerman”), alleging that she unduly influenced his grandmother to distribute to his cousins money and property to which he was entitled under a trust agreement. That complaint, as well as the amended complaint, was subsequently stricken as a sham pleading and dismissed. Thereafter Lerman filed a motion to tax fees and costs pursuant to section 57.105, Florida Statutes.

The motion specifically requested that the court “enter an award of attorney’s fees and court costs in favor of the Defendant and against the Plaintiff....” The trial court entered an order granting the motion for fees and costs and provided that Lerman shall recover the fees from Paul Kerzner. For the reasons discussed below, we affirm the trial court’s order.

As his initial point on appeal, Kerzner contests the trial court’s entry of the order requiring him to be solely responsible to pay the fees and costs awarded to Lerman. Kerzner contends the trial court should have assessed half of the fees against his attorney.

Section 57.105, Florida Statutes, provides in part as follows:

1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to. the existence of those material facts.

§ 57.105, Fla. Stat. (1999)(emphasis added).

Although the statute provides that fees and costs awarded thereunder will be awarded against the party and the attorney, such a request was not made in this case. The wording of Lerman’s motion, and her arguments before the trial court, specifically sought fees against the party, only. Nor does Lerman argue before this court that the order is improper. For that reason, we hold that Lerman waived her ability to seek fees jointly assessed against the party and counsel as contemplated by section 57.105, Florida Statutes.

Similarly, Kerzner has also waived this argument. There is no indication in the record that Kerzner raised this argument to the trial court. As discussed in more detail below, we recognize the likelihood that Kerzner may not have been aware that such dual responsibility was an option, as we can think of no logical reason for not asking for such division. Nevertheless, the ability to challenge the order in this regard has been waived.

Kerzner next alleges the trial court erroneously included the costs and fees accrued in litigating the fee issue in the amount of the total fee award. Lerman asserts that the fee award does not include such fees and costs. In the absence of a transcript of the fee hearing, and in light of our inability to identify error on the face of the record, we affirm the order in this regard. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Upon review of this issue, we feel compelled to note our concern with the wording of the language of section 57.105, Florida Statutes, in that it appears to set up an inherent conflict between a client and his or her attorney if this particular issue is raised at a fee hearing. A client may not know the statute allows an attorney to bear one half of the burden of such a ruling. In that same vein, clearly the language of the statute provides no encouragement, and certainly no financial incentive, for an attorney to advise a client that a motion may make the client and the attorney jointly liable for the payment of such fees. It seems that an ethical duty may arise on the part of the attorney to bring this matter to the client’s attention and perhaps go so far as to recommend getting independent counsel. The irony of that suggestion, we recognize, is that it necessarily generates additional fees. Although we are confident the legislature was aware of this when drafting the statute, it may behoove the legislature to revisit and clarify this matter to avoid future litigation over such conflicts.

Last, in regard to the motion made seeking appellate attorney fees, the argument presented on appeal was not of such a nature to warrant the award of appellate fees. See generally Visoly v. Sec. Pac. Credit Corp. 768 So.2d 482 (Fla. 3d DCA 2000)(“[A] “frivolous” appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.”) We therefore deny the appellee’s motion for appellate attorney’s fees pursuant to section 57.105, Florida Statutes.

AFFIRMED.

WARNER and GROSS, JJ., concur.


text:
    The INTERNATIONAL BANK OF MIAMI, N.A., Petitioner, v. Ami SHINITZKY; Michael Astel; Amnon and Yael Idelson; Hyla Cass; William and Patricia Miller; Shmuel Shapira; Jeanette Wilson; Boston Securities, S.A.; Bankboston argentina; and Bankboston, N.A., Respondents.
    No. 4D02-4339.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Eric D. Isicoff and Teresa Ragatz of Isicoff, Ragatz & Koenigsberg, P.A., Miami, for petitioner.
    José I. Astigarraga, Edward M. Mullins, Heidi A. Schulz & Annette C. Escobar of Astigarraga, Davis, Mullins & Grossman, P.A., Miami, for respondents BSEC and Fleet National Bank f/k/a BankBoston, N.A., and Peter J. Aldrich of Peter J. Aldrich, P.A., Palm Beach Gardens, for respondent Ami Shinitzky.
   PER CURIAM.

Petitioner, International Bank of Miami, seeks certiorari review of an October 2, 2002 order granting respondent’s, Fleet National Bank f/k/a BankBoston (Fleet), motion to compel production of a Suspicious Activity Report (SAR) in a lawsuit involving claims of investment fraud, conspiracy, and civil theft. Petitioner also seeks certiorari review of an October 31, 2002 order denying petitioner’s motion to vacate the trial court’s orders of February 1, 2001 and October 2, 2002 regarding the SAR. We grant the petition and quash the October 2, 2002 order and the October 31, 2002 order as it pertains to compelling the production of the SAR to respondent Fleet.

The underlying ease involves two consolidated circuit court cases involving virtually identical allegations that, with the exception of petitioner, all defendants, namely respondent Boston Securities, S.A. (BSEC), Mario Rossi, Eduardo Seuderi, Xavier Capdevielle, Patricio Pusso, and respondent Fleet, participated in a fraudulent investment scheme, orchestrated by defendant Pusso, pursuant to which millions of dollars of the plaintiffs’ funds were embezzled. Defendant Pusso opened and maintained an account at petitioner in the name of Boston Investment Holdings. The underlying cases include claims against the defendants for fraud, conspiracy, and civil theft. A single statutory claim is asserted against petitioner for an alleged violation of section 670.207(1), Florida Statutes, relating to the alleged improper acceptance of wire transfer payment orders.

On February 1, 2001, over petitioner’s objection, the trial court granted plaintiff/respondent Ami Shinitzky’s motion to compel production of the SAR prepared by petitioner pertinent to the account of Boston Investment Holdings. The order provided that Shinitzky could furnish copies of the SAR to plaintiff/respondent Michael Astel. The order further provided that the SAR was to be kept confidential and that its contents were not to be disclosed to anyone associated with Boston Investment Holdings or any other defendant without further order of the trial court. Despite its objection, petitioner produced the SAR, thereby fully complying with the order, and did not seek appellate review of the order.

Over a year and a half later, on October 2, 2002, again over petitioner’s objection, the trial court granted respondent Fleet’s motion to compel production of the SAR. The order required that petitioner produce the SAR previously produced by petitioner to Shinitzky, subject to the same confidentiality provisions in the trial court’s February 1, 2001 order. Subsequently, petitioner filed a motion to vacate the trial court’s February 1, 2001 and October 2, 2002 orders. Therein, petitioner alleged that federal law and regulations prohibited the disclosure of SARs or their content, even in the context of discovery in a civil lawsuit. For this proposition, petitioner cited Weil v. Long Island Savings Bank, 195 F.Supp.2d 383 (E.D.N.Y.2001), which was decided on August 22, 2001, after the issuance of the trial court’s February 1, 2001 order. Petitioner further maintained that the trial court was vested with the inherent authority to revisit the issue and vacate both orders. The trial court denied petitioner’s motion noting that petitioner complied with its February 1, 2001 order and did not seek appellate review of the order. The trial court stated that it would be unfair to respondent Fleet, who was the only party not to have seen the document, to be precluded from receiving a document that was produced to nine other parties eighteen months ago.

Initially, we find that any argument as to the production of the SAR pursuant to the trial court’s February 1, 2001 is waived as petitioner fully complied with the order and failed to seek appellate review of the order.

A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari where the non-final order constitutes a departure from the essential requirements of law and thus 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, 1099 (Fla.1987); Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996). Orders granting discovery have traditionally been reviewed by certiorari. Id. (citations omitted). See, e.g., Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999).

The first inquiry is whether petitioner has made a prima facie showing of the element of irreparable harm in the entry of the October 2, 2002 order. If this is not met, then the appellate court lacks jurisdiction and will enter an order dismissing the petition. Bared & Co., 670 So.2d at 157. However, if this is met, then the next inquiry is whether the petition makes a prima facie showing that the order to be reviewed departs from the essential requirements of law. Id.

While it appears at first blush that petitioner would not suffer irreparable harm because the SAR has already been produced to nine other parties in the lawsuit, the unusual situation here is one of the cat being “half-in and half-out of the bag.” Further, the irreparable harm pertinent to petitioner involves the danger to the life of a bank employee generating the report and the potential loss of customers if SARs are deemed discoverable in civil litigation. Thus, despite the fact that the SAR has been produced to nine other parties, we find, under the facts of this case, that petitioner has established irreparable harm that cannot be remedied on appeal. Therefore, the next inquiry is whether the trial court departed from the essential requirements of law in entering the October 2, 2002 order.

Section 5318(g) of Title 31 of the United States Code provides for the reporting by financial institutions of suspicious transactions:

(1) In general. — The Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.
(2) Notification prohibited.—
(A) In general. — If a financial institution or any director, officer, employee, or agent of any financial institution, voluntarily or pursuant to this section or any other authority, reports a suspicious transaction to a government agency—
(I) the financial institution, director, officer, employee, or agent may not notify any person involved in the transaction that the transaction has been reported; and
(ii) no officer or employee of the Federal Government or of any State, local, tribal, or territorial government within the United States, who has any knowledge that such report was made may disclose to any person involved in the transaction that the transaction has been reported, other than as necessary to fulfill the official duties of such officer or employee.

SI U.S.C. § 5318(g) (2000).

The regulations implementing the reporting of suspicious transactions by banks are found at 31 C.F.R. § 103.18. These regulations provide, in pertinent part:

(a) General.
(1)Every bank shall file with the Treasury Department, to the extent and in the manner required by this section, a report of any suspicious transaction relevant to a possible violation of law or regulation....
(b) Filing procedures—
(1) What to file. A suspicious transaction shall be reported by completing a Suspicious Activity Report (“SAR”), and collecting and maintaining supporting documentation as required by paragraph
(d) of this section.
(2) Where to file. The SAR shall be filed with FinCEN in a central location, to be determined by FinCEN, as indicated in the instructions to the SAR.
(3) When to file. A bank is required to file a SAR no later than 30 calendar days after the date of initial detection by the bank of facts that may constitute a basis for filing a SAR....
(e) Confidentiality of reports; limitation of liability. No bank or other financial institution, and no director, officer, employee, or agent of any bank or other financial institution, who reports a suspicious transaction under this part, may notify any person involved in the transaction that the transaction has been reported. Thus, any person subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR, except where such disclosure is requested by FinCEN or an appropriate law enforcement or bank supervisory agency, shall decline to produce the SAR or to provide any information that would disclose that a SAR has been prepared or filed citing this paragraph (e) and 31 U.S.C. 5318(g)(2), and shall notify Fin-CEN of any such request and its response thereto....

31 C.F.R. § 103.18(a),(b),(e)(2002)(empha-sis added).

While all financial institutions are subject to 31 U.S.C. § 5318, the regulations promulgated thereunder applicable to savings associations and service corporations are found at 12 C.F.R. § 563.180. Like the regulations found at 31 C.F.R. § 103.18, these regulations contain a confidentiality provision that provides that “SARs are confidential. Any institution or person subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR shall decline to produce the SAR or to provide any information that would disclose that a SAR has been prepared or filed, citing this paragraph (d), applicable law (e.g., 31 U.S.C. 5318(g)), or both, and shall notify the OTS [Office of Thrift Supervision].” 12 C.F.R. § 563.180(d)(12)(2002) (emphasis added).

In Weil v. Long Island Savings Bank, 195 F.Supp.2d 383 (E.D.N.Y.2001), bank borrowers sued the defendant bank in connection with a purported illegal kickback scheme involving the bank’s chief executive officer. 195 F.Supp.2d at 385. The plaintiffs moved to compel production of any SAR regarding the bank’s CEO that had been filed by the bank with the Office of Thrift Supervision. The court held that 12 C.F.R. § 563.180(d)(12) prohibited the disclosure of SARs or their content, even in the context of discovery in a civil lawsuit, and that the enabling legislation was specific enough to support that purpose. Id. at 389. The court further found that 12 C.F.R. § 563.180(d)(12) created an unqualified discovery and evidentiary privilege that could not be waived by the reporting financial institution. Id.

Facing a similar situation as here because of the disclosure of the instant SAR to nine other parties, the Weil court stated that a “policy of strict confidentiality is intended to support the ostensible goal of the Annunzio-Wylie Anti-Money Laundering Act, that is, to encourage financial institutions to report suspicious activity without fear of reprisal, and/or to protect the people who are the subject of the SARs.” Id. at 390. In the same breath, the Weil court recognized that the facts of the case made the application of the confidentiality requirement artificial because it was apparent that everyone involved knew that a SAR was filed, and, given the CEO’s criminal prosecution and guilty plea, his reputation was not of serious concern. Id. Nonetheless, the court concluded that the SAR may contain information about other individuals that had not been made public, and, in any event, the plain language of the regulation required it to deny the production of the SAR itself. Id.

Subsequent to the Weil decision, Gregory v. Bank One, Indiana, N.A., 200 F.Supp.2d 1000 (S.D.Ind.2002) was decided. Therein, the court addressed a situation where a bank that was a defendant in a civil lawsuit sought to disclose its own filing of a SAR. The plaintiff was a bank employee who asserted defamation and related claims against the bank arising from the bank’s accusations of theft on the part of the employee. The bank sought leave of court to submit, under seal for in camera review, any information that it might have reported pursuant to 31 U.S.C. § 5318(g)(2) in support of an affirmative safe harbor immunity defense. While the court initially granted the bank’s request, upon reconsideration, it vacated its order and returned to the bank the materials it had produced. The court explained:

There is no provision in the Act or the Rule allowing a court-order exception to the unqualified privilege. See, Lee, 166 F.3d at 544 (“even in a suit for damages based on disclosures allegedly made in an SAR, a financial institution cannot reveal what disclosures it made in an SAR, or even whether it filed an SAR at all”). Thus, the Court is not authorized to order or to permit Bank One to make any disclosure, sealed or unsealed, of any information which is privileged under the Act or the Rule, whether in the form of a copy of an SAR or other report submitted in support of an affirmative defense or in the form of a description of privileged information in the pleading of an affirmative defense. Quite the opposite: under the clear, unambiguous terms of the Act and the Rule, courts have an obligation to prevent disclosures of privileged information.

200 F.Supp.2d at 1003 (emphasis added).

Given the particular facts of this case, we conclude that the trial court departed from the essential requirements of the law in compelling petitioner to produce the SAR to respondent Fleet. Therefore, we grant the petition and quash the October 2, 2002 order and the October 31, 2002 order as it pertains to compelling the production of the SAR to respondent Fleet. As to the trial court’s February 1, 2001, we note, however, that the last part of the order provides that the SAR be kept confidential and not be disclosed to anyone associated with Boston Investment Holdings or any other defendant without further order of the trial court. Because the last part of the sentence may properly give rise to respondents Fleet’s and BSEC’s concern that the plaintiffs may try to modify the February 1, 2001 order so as to use the SAR in a pre-trial, trial, or post-trial proceeding, the trial court needs to approach any such future dissemination with caution.

GRANTED in part and DENIED in part.

FARMER, C.J., WARNER and POLEN, JJ., concur.

      .SARs are documents generated by banks, as mandated by federal law, that report any suspicious transaction relevant to a possible violation of law or regulation. See 31 C.F.R. § 103.18(a)(1).

      . On February 1, 2001, the trial court granted plaintiff/respondent Ami Shinitzky’s motion to compel production of the SAR.

      . Ami Shinitzky, Michael Astel, Amnon and Yael Idelson, Hyla Cass, William and Patricia Miller, Shmuel Shapira, and Jeanette Wilson.


author: STONE, J.

text:
    BRIDGEPORT INCORPORATED, a Florida corporation, and CGU Insurance Company, a Foreign Surety Company, Appellants, v. RINKER MATERIALS CORPORATION, d/b/a CSR Rinker Materials Corporation, a Florida corporation; P.C.R. Enterprises, Inc., a Florida corporation; Patrick Roy, individually; and City View Joint Venture, Appellee.
    No. 4D02-4186.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      William L. Grant and Earnest DeLoach, Jr. of Shutts & Bowen LLP, Orlando, for appellants.
    Ronald E. Dobelstein, Alpharetta, GA, for Appellee-Rinker Materials Corporation.
   STONE, J.

We reverse a summary judgment entered in favor of Rinker Materials Corporation on a bond claim for sums owed for materials supplied on a construction project.

Bridgeport, a general contractor, entered into a subcontract with P.C.R. Enterprises, Inc., which in turn subcontracted with Rinker. At the time Rinker commenced its supply of materials, in October 1999, it served both Bridgeport and CGU Insurance Company, the surety, with a notice to owner/notice to contractor. When Rinker did not get paid, it served Bridgeport and CGU with copies of claims of lien.

Rinker then filed a complaint to foreclose a construction lien and for damages in December 2000. Rinker later amended the complaint to include a claim on the bond. Rinker alleged that although CGU furnished a payment bond, it never furnished said bond to Rinker. Bridgeport and CGU alleged, as an affirmative defense, that Rinker had failed to comply with conditions precedent by failing to serve notices of non-payment as required by section 713.23 and that Rinker was not excused by claiming it was not aware of the CGU bond, because Rinker’s initial notice identified CGU as the bonding company and was served upon CGU. It was also alleged that Rinker’s claim was barred by the one year statute of limitations.

Rinker asserts that its claim of lien serves as the statutory notice required under section 713.23, Florida Statutes. Section 713.23(1) provides, in relevant part:

(c) Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with a notice in writing that the lienor will look to the contractor’s bond for protection on the work....
(d) In addition, a lienor is required, as a condition precedent to recovery under the bond, to serve a written notice of nonpayment to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor....
(e) No action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given. No action shall be instituted or prosecuted against the contractor or against the surety on the bond under this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies....

Bridgeport followed with its own motion for summary judgment, alleging that CGU issued the labor and material payment bond pursuant to section 713.23, that Rink-er did not send CGU a notice of nonpayment as required by section 713.23, and that Rinker failed to commence an action on the bond within one year from the performance of the labor or completion of delivery of the materials and supplies pursuant to section 713.23.

There was a hearing and a rehearing of the summary judgment motions. For the rehearing, Bridgeport filed the affidavit of attorney William Grant, who averred that Bridgeport timely served the notice of bond. Also attached was a purported “Notice of Bond” with CGU as surety dated February 23, 2000, which was sent to Rinker. The motion for rehearing was denied.

The trial court erred in entering summary judgment for Rinker and denying Bridgeport’s motion for rehearing. Clearly, Rinker did not comply with the requirements of the mechanics hen law before initiating an action on the bond. The notice requirements of section 713.23 are mandatory. See N. Am. Specialty Ins. v. Hughes Supply, Inc., 705 So.2d 616 (Fla. 4th DCA 1998). Here, Rinker failed to serve a notice of non-payment and failed to file suit within one year from the furnishing of materials in violation of subsections (d) and (e). The trial court should not have entered summary judgment in its favor.

We reject Rinker’s assertions that its claim of hens acted as notice of non-payment. The mechanics hen law is given a strict and hteral meaning. See Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So.2d 1061 (Fla. 3d DCA 1991). In Mursten, the Third District reversed a summary judgment in favor of the material suppher, holding that the suppher had failed to comply with the notice requirements of section 713.23. Id. at 1062. In doing so, the court rejected the argument that the amended complaint satisfied the notice requirements of the statute, recognizing the strict and hteral meaning it was to give to the statute. Id.

Further, Rinker failed to file suit within one year from supplying the materials. Rinker completed its supply of materials in November 1999 and did not institute its suit until December 19, 2000, and it did not file an action on the bond until January 22, 2001. The fact that Rinker filed suit within a year of filing its claim of hen is irrelevant.

Although Rinker also argues that it was exempted from the time limit for bringing an action on the bond because Bridgeport failed to serve the bond, the Bridgeport attorney has sworn that Rinker was served with notice of the bond. In addition, Bridgeport attached a document labeled “Notice of Bond” which was served on February 24, 2000. This is patently an issue that would preclude summary judgment. We need not resolve any dispute as to whether evidence of the notice of bond was of record at the initial summary judgment hearing, as such was properly considered on the motion for rehearing. See Sapphire Condo. Ass’n v. Amerivend Corp., 691 So.2d 600 (Fla. 4th DCA 1997)(revers-ing summary judgment where counter-affidavit submitted with motion for rehearing raised significant issues of material fact); but see Willis v. L.W. Foster Sportswear Co., 352 So.2d 922, 923 (Fla. 2d DCA 1977)(requiring proof of exigent circumstances before a court can consider matters on rehearing of a summary judgment ruling).

In Sapphire, this court reversed the denial of a motion for rehearing after a summary judgment where a counter-affidavit filed with a motion for rehearing revealed material issues of fact. 691 So.2d at 600. In doing so, this court opined, “[wjhile the grant or denial of a motion for rehearing is a matter within the sound discretion of the trial court it is never an arbitrary discretion. Only after it is conclusively shown that the party against whom summary judgment has been entered cannot offer proof to support its position on the genuine and material issues in the cause should its right to trial be foreclosed.” Id. at 601 (citation omitted). Here, where the counter-affidavit filed with the motion for rehearing raised material issues of fact as to Bridgeport’s service of the notice of bond, the motion for rehearing should have been granted.

Additionally, even if the bond was served late, Rinker does not cite to any authority which suggests that it was exempted from the notice and timing requirements of section 713.23 simply because the bond was served late, nor was late service the basis for Rinker’s summary judgment motion. It was Rinker’s position that Bridgeport failed to serve the notice at all.

We note that in Mursten, neither the owner nor general contractor provided a notice of bond when first requested by the material supplier/lienor. It was not until one month after the material supplier filed suit that a notice of bond was filed. Id. at 1062. Nevertheless, the material supplier was still required to comply with the notice requirements of section 713.23. Here, where the notice of bond was filed several months before initiation of the lawsuit, Rinker was still required to comply with the statute.

We recognize that section 713.23(l)(b) provides, in relevant part, that “[a]ny person who fails or refuses to furnish a copy without justifiable cause shall be liable to the lienor demanding the copy for any damages caused by the refusal or failure.” This subsection, however, does not address the lateness of service of a copy of the bond, but instead addresses the remedy of the lienor after the complete failure of the owner, contractor, or surety to furnish a copy of the bond, particularly absent a finding of prejudice. In any event, even under this provision, issues of fact remain as to whether the lateness was justified and whether there were any damages resulting therefrom.

Therefore, the summary final judgment is reversed and we remand for further proceedings.

STEVENSON and MAY, JJ., concur.


author: OWEN, WILLIAM C., Jr., Senior Judge.

text:
    GEICO GENERAL INSURANCE COMPANY, INC., a foreign corporation, Appellant, v. Joann GRACI, Appellee.
    No. 4D02-4947.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, and C. Kennon Hendrix of Hendrix & Brennan, Vero Beach, for appellant.
    Laurence C. Huttman and Guy Bennett Rubin of Rubin & Rubin, Stuart, for appel-lee.
   OWEN, WILLIAM C., Jr., Senior Judge.

In this non-final appeal from an order denying appellant’s motion to change venue to Martin County we are presented with the issue of where the plaintiffs cause of action accrued. Because the gravamen of appellee’s suit against her uninsured motorist insurer is not, as she alleged, for breach of contract occurring in St. Lucie County, but rather is for a determination of her entitlement to, and amount of, damages caused by an automobile collision occurring in Martin County, we reverse on the holding that her cause of action accrued in Martin county.

Appellee Joann Graci (“Graci”), a resident of St. Lucie County, is a named insured under an uninsured motorist policy issued by appellant, Geico General Insurance Company, Inc. (“Geico”). While driving her insured vehicle in Martin County, she sustained bodily injuries as a result of a collision with another automobile. Graci, joined by her husband, initially filed suit in Martin County against the tortfeasors, alleging that the collision was caused by the negligent and reckless manner in which Carolyn Tattrie, while intoxicated, operated a vehicle owned by Hepsy Sherman. Plaintiffs alleged that as a direct result, Graci sustained bodily injury and resulting pain and suffering, disability and disfigurement, mental anguish, and loss of capacity for enjoyment of life, all of which are permanent in nature; further, she had incurred in the past and would incur in the future expenses of hospitalization, medical and nursing care and treatment, and had undergone in the past and will be required to undergo in the future surgery on her spine and knee. Plaintiffs sought compensatory damages against the owner and both compensatory and punitive damages against Tattrie.

Subsequently, plaintiffs amended the complaint to add Geico as a defendant. In the Count against Geico, plaintiffs adopted by reference the allegations of negligence and injury, and further alleged: (1) the existence of the policy which was issued in St. Lucie County, a copy of which was attached as an exhibit; (2) that plaintiffs had exhausted all insurance proceeds available under the tortfeasors’ liability policy and because their damages exceeded the amount of the tortfeasors’ insurance coverage, they were entitled to underinsured motorist benefits up to the limits of Geico’s policy; (3) the nature and extent of the permanent bodily injuries sustained by Graci and the expenses incurred in care and treatment thereof; and (4) that Graci had demanded payment under the policy but Geico had denied coverage and refused to pay.

Shortly before the case was scheduled to go to trial in Martin County, plaintiffs sought a change of venue to St. Lucie County. Upon denial of their motion for change of venue, plaintiffs filed a voluntary dismissal with notice of intent to refile in St. Lucie County. The present case was then filed in St. Lucie county.

With the exceptions noted below, the complaint in this case is identical in all material respects to the amended complaint dismissed in Martin County. Here, Joann Graci is the sole plaintiff, Sherman is no longer a defendant, and the claim against Tattrie is for punitive damages only. As to Geico, the plaintiff added two allegations; one to the effect that Geico employs agents or representatives in St. Lucie County; the other, unsupported by any ultimate facts, that “the cause of action alleged herein accrued in St. Lucie County, Florida” and “the insurance policy was ... breached in St. Lucie County, Florida.” The only breach alleged was that plaintiff had demanded payment under the policy but Geico had denied coverage and refused payment.

In its answer to the complaint, Geico admitted the validity of the policy but denied its breach, and asserted various affirmative defenses. Geico also filed its motion for change of venue to Martin County, supported by an affidavit of its claims adjuster stating that Geico is a foreign corporation authorized to do business in Florida but does not maintain an office in St. Lucie County nor does any agent or representative of Geico reside or have an office in St. Lucie County. The trial court’s order denying the motion for change of venue found that (1) the action against Geico is for breach of contract; (2) venue is proper in the county where the breach occurred; (3) the complaint alleged that the contract of insurance was breached in St. Lucie County; and (4) because the claims adjuster’s affidavit did not refute this latter allegation it would be accepted as correct and plaintiffs venue selection left undisturbed.

Of the several venue selections authorized by either section 47.011 or section 47.051, Fla. Stat., the only one which would be applicable is the county where the cause of action accrued. The trial court was persuaded by Graci’s argument that her cause of action against Geico is for a breach of contract which accrued where the breach was alleged to have occurred, i.e., in St. Lucie County, an argument that she makes here as well. However, with due appreciation for the plaintiffs ingenuity, we find that the allegations of the complaint, when coupled with the clear provisions of the policy attached as an exhibit, simply do not set forth a claim for breach of contract no matter what label is chosen for the cause of action.

The only breach of the contract alleged in the complaint was that “plaintiff has demanded payment under the insurance policy from Geico, but Geico has ... refused to pay.” An insurer’s refusal to meet an insured’s demand for payment under a policy is not a breach if no payment is then due. Because the policy of insurance was attached to the complaint as an exhibit, it is considered a part of the pleadings. See, Fla. R. Civ. P 1.130(b); Nicholas v. Ross, 721 So.2d 1241,1243 (Fla. 4th DCA 1998). When there are conflicts between the allegations and documents attached as exhibits, the plain language of the documents control. Health Application Sys., Inc. v. Hartford Life and Accident Ins. Co., 381 So.2d 294, 297 (Fla. 1st DCA 1980). The plain language of the policy affirmatively established, in two significant aspects, that no payment from Geico is presently due under the policy and, thus, the alleged breach is non-existent.

First, Geico’s obligation under the policy is to pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of the uninsured auto. The amount which Graci is legally entitled to recover from the tortfeasors has yet to be determined, in fact, her counsel admitted to the trial court, during argument on the motion for change of venue, that the amount was unliquidated. Second, the policy provides that if, as here, there are disputes between an insured and Geico as to liability and damages the insured shall sue the owner or operator of the uninsured auto and Gei-co to have the issues of legal entitlement and amount of damages determined. The complaint clearly shows that the present suit is to resolve the dispute as to liability and damages in the precise manner provided by the contract for the resolution of such a dispute. It cannot be successfully argued that Geico breached the policy by invoking its explicit provisions.

Despite Graci’s allegations that the contract of insurance was breached and that the breach occurred in St. Lucie County, we find those allegations are trumped by the policy language referred to above showing that the alleged breach is not, in fact, a breach at all. Without the breach, the failure of Geico’s affidavit to refute Graci’s allegation that the cause of action accrued in St. Lucie County is irrelevant and the basis for the trial court’s finding that Graci’s cause of action accrued in St. Lucie County evaporates.

Although Graci’s action against Geico is, indeed, an action on the contract of insurance, it is not an action for a breach of that contract; rather, it is an action filed pursuant to the contract. A cursory examination reveals that it is for the purpose of having a determination made of the amount of compensatory damages, if any, to which Graci is entitled under the policy. The gravamen of the action, therefore, is the same as that which the insured has against the underinsured third party tort-feasor for damages for bodily injuries. State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla.1982). We know, at least for the purpose of determining when the statute of limitations begins, that the insured’s cause of action for an underinsured motorist claim accrues on the date of the accident. Woodall v. Travelers Indem. Co., 699 So.2d 1361,1363 (Fla. 1997). If the cause of action accrues on the date of the accident, and the right of action stems from the plaintiff’s right of action against the tortfeasor, Kilbreath 419 So.2d at 633, we see no logical reason why the cause of action cannot likewise accrue at the place of the accident. Since the accident occurred in Martin County, we hold that is where the cause of action accrued.

REVERSED.

GROSS and HAZOURI, JJ., concur.


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    Joe Louis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4463.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Joe Louis Brown, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Joe L. Brown (Appellant) appeals an order summarily denying his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, which claimed that his sentence as both a violent career criminal and a habitual felony offender violated double jeopardy.

At the time the motion was filed and the trial court ruled, the trial court lacked jurisdiction, as the trial court’s order summarily denying a prior motion filed pursuant to rule 3.800(a) was then on appeal in this court. In that motion, Appellant challenged his qualification for sentencing as a violent career criminal. See Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002) (noting that “a trial court has no power to rule on an issue which would interfere with the authority of the appellate court”). The instant motion could have been dismissed for lack of jurisdiction, or, as would have been preferable, the trial court could have stayed the instant motion until this court issued the mandate in the prior appeal. See id.

The state’s response to this court’s order to show cause suggests that the order on appeal had the same effect as a dismissal or a denial without prejudice. However, the order of summary denial contained no language indicating it was a dismissal, or that the motion could be refiled. Accordingly, we vacate the order on appeal and direct the trial court on remand to reconsider the motion.

GUNTHER, WARNER and POLEN, JJ., concur.

      . This court affirmed per curiam without opinion, see Brown v. State, 833 So.2d 144, 2002 WL 31757650 (Fla. 4th DCA Oct.30, 2002), and the mandate issued on December 3, 2002.


text:
    Marilyn FRASER-WATSON and Gary Watson, individually, and as natural parents and guardians of Javanni Watson, a minor, Appellants, v. MAXIM HEALTHCARE SERVICES, a foreign corporation, Appellee.
    No. 4D02-4518.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Ralph L. McGrath, Jr. of Benson, McGrath, Douglas, Angione, Phillips & Ross, P.A., Fort Lauderdale, for appellants.
    Valerie Shea of Heinrich, Gordon, Har-grove, Weihe & James, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Appellee, Maxim Healthcare Services, was awarded a judgment for costs after obtaining summary judgment against the appellants. In Fraser-Watson v. Maxim Healthcare Servs., 843 So.2d 983 (Fla. 4th DCA 2003), we reversed the summary judgment in the underlying case. Consequently, we reverse the judgment for costs. See Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA 1999)(“[W]here the judgment on which a cost judgment is predicated is reversed, the original cost judgment also cannot stand.”); Standard Guar. Ins. Co. v. Geeting, 355 So.2d 819 (Fla. 2d DCA 1978)(reversing a cost judgment and remanding to trial court for further consideration where underlying judgment was reversed prior thereto).

REVERSED and REMANDED.

STEVENSON, TAYLOR and MAY, JJ., concur.


author: THOMPSON, J.

text:
    Susan Brown TAAFFE, Appellant, v. Francis Bruce TAAFFE, Appellee.
    No. 5D01-2686.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.

      Debra J. Sutton of Debra J. Sutton, P.A., Bartow, for Appellant.
    Sharon Lee Stedman of Cabaniss, Smith, Toole & Wiggins, P.L., Maitland, for Appellee.
   THOMPSON, J.

Susan Brown Taaffe (“former wife”) appeals the final judgment of dissolution of marriage.

The former wife contends that the court erred in calculating her special equity in the marital home. Before the marriage, the former wife bought a home referred to as the “Rosemont home.” After the marriage, the parties lived in the Rosement home until 1991, when the parties purchased the marital home for $110,000. The former wife testified that there had been $39,254.47 in equity in the Rosemont home. Of the $39,254.47, she testified, $30,000 was used for the deposit on the marital home, and the $9,254.47 balance was spent on improvements to the marital home. According to the former wife, an additional $30,000 was spent on improvements in 1991. The former wife testified that her mother loaned the parties the $30,000 spent on the improvements and that the former wife and the former husband signed a promissory note for the loan. In 1997, the former wife testified, she used $30,000 from her inheritance to make additional improvements to the marital home.

The former wife contends that the court erred in arriving at her special equity because it failed to give her credit for the 1997 investment of $30,000 from her inheritance, and because it miscalculated the special equities formula. In Landay v. Landay, 429 So.2d 1197 (Fla.1983), the court held that the correct formula for determining a special equity could be stated thus:

in addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.

Id. at 1200. The court stated that the percentage approach was fair because the contributing spouse had made a capital investment and deserved an enhanced interest in the property and should be permitted to reap any fruits of the investment. Id. at 1199. The simplicity and fairness of the formula lie in the fact that situations of both appreciation and depreciation are adequately covered. Id.

We must first point out that the trial court mistakenly credited the former wife with an extra $10,000 in connection with the initial 1991 contribution to the house. The court found that the former wife had made a down payment of $39,000 on the marital home with non-marital funds (i.e. the equity in the Rosemont home) and that she had invested $40,000 to improve the marital home using non-marital funds, for a total of $79,000. This was incorrect. The former wife made a down payment of $80,000 rather than $39,000. The former wife’s testimony was that with the $39,254.47 derived from the sale of the Rosemont home, she made a down payment of $30,000 on the marital home, and used the balance of the equity, or $9,254.47, for immediate improvements. During the trial, counsel had rounded up the $9,254.47 to $10,000 and may have inadvertently given the court the impression that there was an investment of $10,000 in addition to the funds derived from the sale of the Rosemont house and the loan from the mother.

Furthermore, the former wife is not entitled to the credit she was given for the 1991 improvements worth $30,000 because the former wife testified that these improvements were made with the $30,000 loan to the parties made by the former wife’s mother. A loan creates a marital debt and does not give rise to a special equity merely because one of the spouses is related to the lender. See Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990) (citing McCarthy v. McCarthy, 528 So.2d 97 (Fla. 2d DCA 1988)) (“trial court abused its discretion in finding a special equity in favor of the wife based on a loan the wife’s mother made to the couple jointly”); Howard v. Howard, 310 So.2d 430 (Fla. 4th DCA 1975) (“if the trial court determines that the loan from the wife’s parents was made to the parties jointly, then the prayer for a special equity should be denied”); Portuondo v. Portuondo, 570 So.2d 1338 (Fla. 3d DCA 1990). The former wife testified that she was executor of her mother’s estate and sole heir, but that does not give her a special equity either. Landay explains that special equities are awarded to give the donating spouses the benefit of their investments. Since the wife did not invest $30,000 in non-marital funds in the 1991 improvements, she is not entitled to a special equity in connection with that investment.

The trial court gave the former wife a credit for $79,000 in contributions made in 1991, but that figure must be reduced by the extra $10,000 mistakenly given and the $30,000 representing the loan proceeds. The former wife claims that she made improvements in 1997 with $30,000 she inherited and that the court erred in failing to take this into account. The former husband suggests that the court did not believe the former wife’s testimony on this issue because she did not provide any documentation of the alleged investment. We have no way of knowing whether the former husband is correct, or whether the omission was an oversight. On remand, the court should make a finding on this question. We note that the burden of proof is on the person claiming the special equity. § 60.075(5)(a)5., Fla. Stat.

Because we do not know if the omission of the 1997 alleged investment was an oversight, we cannot calculate the parties’ respective interests. We point out, however, that in applying the Landay formula, the “total consideration” is the cost of the marital home, plus any improvements. If the trial court believes that improvements were made in 1991 and 1997, the “total consideration” paid for the marital home is $110,000, plus the 1991 improvements worth $9,254.47 (funded by the former wife) and $80,000 (funded by the loan proceeds). Although the former wife is not entitled to credit for the 1991 investment of $30,000 because the funds were derived from a loan, it still represents part of the acquisition cost and must be added to the $110,000 sale price of the home. If the court finds that additional improvements were made in 1997, the value of the improvements should be added to arrive at the “total consideration.” If the court believes that any 1997 investment was made with the former wife’s separate funds, then the amount should be included when calculating the former wife’s special equity. We would also point out that the percentage interests of the parties should be applied to the market value of the home at the time of dissolution. See, e.g., Romano v. Romano, 632 So.2d 207, 212 (Fla. 4th DCA 1994); Griffiths v. Griffiths, 563 So.2d 773, 775 (Fla. 3d DCA 1990); Donaldson v. Donaldson, 481 So.2d 101, 102 (Fla. 2d DCA 1986). It appears that the trial court incorrectly applied these percentages to the net equity, i.e., the value of the home less the mortgage indebtedness.

Accordingly, we reverse the final judgment and remand for a determination of the former wife’s special equity and for any necessary re-distribution of marital assets. We find no abuse of discretion with respect to the other matters raised by the former wife, see Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), and affirm the final judgment in all other respects.

AFFIRMED in part; REVERSED and REMANDED with instructions.

SAWAYA, C.J., and TORPY, J., concur.


text:
    Kim L. BUCKNAM, f/k/a Kim L. Shelton, Appellant, v. Leonard C. SHELTON, Appellee.
    No. 5D02-107.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2003.

      Kenneth D. Morse and Heather Mor-croft of Kenneth D. Morse, P.A., Orlando, for Appellant.
    Robert J. Wheelock, Orlando, for Appel-lee.
   THOMPSON, J.

Kim Leslie Bucknam (“former wife”) appeals the final judgment of dissolution of marriage. We agree that the court abused its discretion in determining the alimony award and reverse.

For most of this long term marriage, the former wife was a homemaker. She had worked part time at jobs that entailed little skill and minimal pay, while the former husband earned a master’s degree during the marriage and was an engineer at Lockheed Martin. After the petition for dissolution was filed, the parties stipulated that the former husband would remain in the marital home and have primary residential responsibility for the parties’ two children. The older of the children reached her majority before entry of the final judgment, and the younger child reached his majority a few months after the final judgment was rendered.

The former wife was taking medication for a mental illness and had physical disabilities. She thought her mental illness was the ultimate cause of her children’s estrangement from her. Her testimony that the mental illness prevented her from working full time was supported by her expert’s testimony, but the court credited the testimony of the former husband’s expert, who said the former wife was doing well on the medication and that nothing prevented her from working full time.

The parties’ major assets consisted of 401K plans, the marital home in Orlando, and a house in Cleveland that had been a marital home, with a total value of approximately $250,000. The court split the parties’ assets equally and ordered the former husband to pay the former wife $1,000 per month in permanent alimony. The court imputed to the former wife a 40-hour week of wages calculated at the rate paid by a Publix supermarket in Orlando, where the former wife worked when the petition was filed, rather than the dollar or so less per hour she was earning at a Wal-Mart in Virginia, where she was working when the trial ended. In contrast to the former wife, whose earnings were at or near the minimum wage, the former husband earned $90,000 or more per year.

In its initial ruling, the court stated “[t]he need for alimony is the Former Wife’s apparent disability.” This was an incorrect premise upon which to base the alimony award. Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). Permanent alimony is appropriate where the income of the spouse seeking alimony cannot support that spouse in accordance with the life-style established during the marriage. Webb v. Webb, 659 So.2d 336, 337 (Fla. 1st DCA 1995). The trial court need not equalize the financial position of the parties, but the trial court must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be shortchanged. Canakaris, 382 So.2d at 1204. In the instant case, the wife’s need for alimony derives not only from her disorders but from her inability to support herself “in accordance with the life-style established during the marriage.” Webb, 659 So.2d at 337.

“It is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household,” Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989), but the award in the instant case shortchanges the former wife. In Winn v. Winn, 669 So.2d 1155 (Fla. 5th DCA 1996), the wife, who had a high school diploma, earned $7.00 an hour as a clerical worker. The husband, who was a Navy pilot with a Masters degree, had a net monthly income of $4,425, while the wife’s net monthly income was $1,330. The trial court found that the parties’ standard of living during this marriage had been upper middle class. After the dissolution, the court found the husband’s standard of living would be mid-middle class and the wife’s lower-middle class, unless she were awarded permanent periodic alimony. As in the instant case, the husband stipulated that the wife was entitled to permanent alimony, but the court awarded only $350 per month. We held that the $350 per month alimony was “woefully inadequate” and an abuse of discretion. See also Thrift v. Thrift, 632 So.2d 202 (Fla. 1st DCA 1994) (reversing as inadequate alimony award of $300 per month where it was unlikely wife would ever earn more than a net of $675 per month, and where the husband earned a net of $2,150 monthly); Atkins v. Atkins, 611 So.2d 570 (Fla. 1st DCA 1992) (reversing as inadequate alimony award of $750 per month where husband’s net monthly income was $7,668 and wife’s was $1,050 per month); Wright v. Wright, 577 So.2d 1355 (Fla. 1st DCA 1991) (reversing as inadequate alimony award of $2,000 per month where wife was capable of earning $10,000 to $12,000 annually and where husband’s after-tax income was between $132,000 and $143,000 per year).

We do not agree with the former wife that the former husband should be required to provide her health insurance. Compare Spangler v. Spangler, 470 So.2d 732 (Fla. 5th DCA 1985). Further, the issue of visitation is moot. See WFTV, Inc. v. Robbins, 625 So.2d 941 (Fla. 4th DCA 1993) (holding that mootness occurs when the issues presented are no longer alive or when the parties lack a legally cognizable interest in the outcome). We do not disturb the trial court’s finding that the former wife was able to work full time because there was substantial competent evidence to support the finding. See Schriefer v. Schriefer, 831 So.2d 1284, 1286-87 (Fla. 5th DCA 2002).

Accordingly, we reverse the final judgment, except that portion dissolving the marriage, and the cause is remanded for further consideration. Because the distribution of marital assets was conditioned on the selling price of the house in Ohio, testimony regarding the status of the house may be taken. Compare Winn. Furthermore, additional testimony may be taken regarding the value of the home furnishings retained by each party, so that those values can be allocated as part of the distribution of marital assets. See Schriefer, 831 So.2d at 1286 (marital estate includes home furnishings). The order on remand should be specific about the parties’ gross incomes and the derivation of their net incomes.

REVERSED.

PETERSON and PALMER, JJ., concur.