author: STEVENSON, J.

text:
    LUNDSTROM REALTY ADVISORS, INC. and Senior Housing Solutions, Inc., Appellants, v. SCHICKEDANZ BROS.-RIVIERA LTD., a Florida Limited Partnership, and Schickedanz Enterprises, Inc., the corporate general partner of Schickedanz Bros.-Riviera Ltd., Appellees.
    No. 4D02-3594.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Michael J. Ryan, Tequesta, for appellants.
    Rod Tennyson of Rod Tennyson, P.A., West Palm Beach, for appellees.
   STEVENSON, J.

Appellants, Lundstrom Realty Advisors, Inc. and Senior Housing Solutions, Inc., both owned by Daniel Lundstrom, brought suit against Schickedanz Bros.-Riviera Ltd. and Schickedanz Enterprises, Inc. (hereinafter collectively referred to as Schickedanz), as a result of a series of failed real estate-related transactions. Lundstrom challenges the trial court’s dismissal of counts I through VI of the first amended complaint; the dismissal of count I of the second amended complaint; and the grant of summary judgment as to count II of the second amended complaint in favor of appellees. For the reasons which follow, we affirm in part and reverse in part.

A review of the procedural history of this case is helpful. The first amended complaint contained six counts: counts I through IV dealt with a parcel of property known as “Parcel F” at the Woodbine subdivision in Riviera Beach (the Woodbine property); and counts V and VI dealt with property located in Port Charlotte, Florida (the Port Charlotte property). Counts I and II were brought by Lund-strom Realty, while counts III through VI were brought by Senior Housing Solutions.

Count I claimed that Schickedanz breached an oral contract for a real estate commission after Lundstrom Realty procured a buyer for the Woodbine property. Count II was an alternative claim to count I for breach of a written contract, alleging that the writings between the parties, “although not a formal fisting agreement per se, taken together constitute a written fist-ing agreement.”

Count III alleged that, in failing to close on the Woodbine property, Schickedanz breached an oral contract for Senior Housing Solutions to perform developer/consulting services in relation to the property. Count IV was an alternative claim for breach of a written contract, alleging that the writings between the parties sufficiently defined their rights and duties so as to constitute a written agreement.

Count V alleged that Schickedanz breached its fiduciary duty of an oral partnership agreement in connection with the Port Charlotte property. Like the other counts, count VI was an alternative claim for breach of fiduciary duty regarding a written partnership agreement.

Without discussion, the trial court dismissed the first amended complaint with leave to amend. Lundstrom thereafter filed its second amended complaint, which was modified to include only two counts: the claim for the alleged breach of an oral contract for real estate commission by Lundstrom Realty relative to the Woodbine property (count I), and the claim by Senior Housing Solutions for breach of fiduciary duty of an oral partnership agreement in connection with the Port Charlotte property (count II). Thus, only counts I and V of the first amended complaint were re-alleged.

Schickedanz moved to dismiss the second amended complaint. The trial court granted the motion to dismiss as to count I (the oral real estate commission claim), but denied it as to count II (the oral partnership agreement claim). Thus, only Senior Housing Solutions remained as plaintiff. Count II, however, was soon disposed of by motion for summary judgment. With final orders issued disposing of both counts of the second amended complaint, this appeal followed.

As it relates to the claim that the trial court erred in dismissing the first amended complaint, we find that some of the claims have not been preserved for appeal. Though the trial court granted Lundstrom leave to amend, in the second amended complaint, Lundstrom re-alleged only two of the six claims: the oral real estate commission claim and the oral partnership agreement claim. Where leave to amend is granted and an amended complaint is filed without an attempt to re-allege the claims dismissed without prejudice, those claims are considered abandoned. See Feigin v. Hosp. Staffing Servs., Inc., 569 So.2d 941 (Fla. 4th DCA 1990). Thus, we will consider error only as it relates to the claims re-alleged in the second amended complaint.

The Oral Real Estate Commission Claim

We find that the trial judge erred in dismissing Lundstrom Realty’s cause of action for breach of an oral contract to pay a real estate commission. While the trial court did not state the grounds upon which it granted the motion to dismiss, we can find no legal impediment to the cause of action as pled. The complaint alleged that Lundstrom Realty, a real estate brokerage firm, owned by Daniel Lundstrom, a registered real estate broker licensed to do business in Florida, had an oral agreement to perform real estate brokerage services for Schickedanz by soliciting a Letter of Intent from Merrill Gardens, L.L.C., to purchase the Woodbine property. According to the complaint, if the Letter of Intent was obtained with the conditions specified, Schickedanz agreed that it would sell the property to Merrill Gardens and pay Lundstrom a commission of $27,000. Lundstrom alleged that it obtained this Letter of Intent from Merrill Gardens, but Schickedanz refused to sign it. According to the complaint, “[t]his refusal was contrary to the promise of Waldemar Schicke-danz as agent for Defendants that they would agree to the Letter of Intent if it was presented.”

It is well established in Florida that a commission for services rendered as a real estate broker may be based upon an oral agreement. See Coral Gates Props. v. Hodes, 59 So.2d 630 (Fla.1952); Kerdyk v. Hammock Oaks Estates, Inc., 342 So.2d 838 (Fla. 3d DCA 1977). Generally, a real estate broker employed to effect the sale of property is not entitled to a commission until the broker procures a binding contract of purchase in the terms specified by the principal or actually effects a sale of the property. See MacGregor v. Hosack, 58 So.2d 513 (Fla.1952); Price v. Rogers Enters., 418 So.2d 1243 (Fla. 4th DCA 1982); Texaco Boca Del Mar, Inc. v. Sentinel Dev. Corp., 402 So.2d 576 (Fla. 4th DCA 1981). The instant contract is a bit unorthodox since, according to the allegations, Lundstrom was required only to obtain a Letter of Intent in order to earn his commission. Nevertheless, we can find no authority suggesting that a licensed broker and principal are not free to tailor their contract in such a way as to meet their particular needs and preferences. Accordingly, it was error for the trial court to have dismissed count I of the second amended complaint.

The Oral Partnership Agreement Claim

We also conclude that the trial court erred in granting summary judgment as to count II of the second amended complaint since there exist genuine issues of fact with regard to this claim. Daniel Lundstrom’s affidavit in opposition to the motion for summary judgment provided in pertinent part as follows:

2.... Waldemar Schickedanz and I made a deal to develop own and operate Adult Living Facilities (hereinafter “ALF(s)”), together, through our respective companies, and we were to be 50/50....
3.I presented the Port Charlotte project property (later to be known as Lexington Manor) to Waldemar Schickedanz based on the information provided by John Goode. Mr. Schickedanz was unequivocal that he had no interest in pursuing this site as a potential ALF site for our venture. This happened prior to May 14,1998....
4. [Later], Mr. Goode and Mr. Schicke-danz made some sort of agreement to agree without me prior to August 18, 1998....
5. Between February, 1998 and August 18, 1998, my company pursued the investigation of more than fifty (50) possible sites for our venture at cost of time and money.... This was done with the knowledge of Waldemar Schickedanz; and Mr. Schickedanz knew I was acting exclusively on our behalf and in our interest because I told him verbally and in writing.
8.... The Port Charlotte site that is now the site of Lexington Manor ALF was presented to Waldemar Schickedanz by me as an ALF site for consideration by our partnership.... Mr. Schickedanz said he had no interest; but then he dealt directly with Mr. John Goode and cut me out of the deal. There is no question that this site now boasts a completed project owned in part by an affiliate company of Mr. Waldemar Schicke-danz.
9. By August 18, 1998, it was clear that Wally Schickedanz had decided to end our relationship.

Lundstrom’s cause of action in count II of the second amended complaint sounds in breach of fiduciary duty stemming from an alleged partnership relationship. See § 620.8404, Fla. Stat. (2002)(partner owes partnership fiduciary duty of loyalty). In granting the motion to dismiss, the trial judge cited a number of different reasons why, in the court’s view, this cause of action was legally untenable. We will consider those reasons in turn. First, the trial court correctly noted that the alleged oral partnership agreement is governed by the 1995 Revised Uniform Partnership Act, chapter 620, Florida Statutes. The trial court then went on to reason that since the Partnership Act gave Schicke-danz the unqualified right to dissociate himself from Lundstrom, and there were no tangible assets in the partnership at this time (August 18, 1998), Lundstrom would have no right to any damages or a share in assets or profits. In this regard, we believe that the trial court mis-per-ceived the gravamen of Lundstrom’s cause of action. Lundstrom sought damages for Schiekedanz’s alleged breach of fiduciary duty in cutting him out of the deal while the partnership was still viable; Lund-strom did not claim an ownership interest in any partnership assets.

The trial court also ruled that the statute of frauds was applicable and precluded the claim since the agreement had “no limit in time.” This too, was error. Florida’s statute of frauds provides in relevant part:

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, ... shall be in writing. ...

§ 725.01, Fla. Stat.

When an oral agreement is silent as to time, yet capable of performance within one year, the parties’ intent will control to determine whether the statute of frauds bars enforcement:

[W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937). Additionally, to be within, and thus barred by, the provision in the statute of frauds concerning agreements “not to be performed within the space of one year from the making thereof,” it must be shown that neither party’s performance was intended to be complete within one year. See Fla. Pottery Stores of Panama City, Inc. v. Am. Nat’l Bank, 578 So.2d 801 (Fla. 1st DCA 1991).

In the instant case, Lundstrom argues that the object of the agreement was capable of performance within one year as it merely required the identification of a building site, a period of due diligence, and then an agreement to take title and develop the property. On the other hand, ap-pellee maintains that the alleged agreement was to last indefinitely and was not intended to be performed within one year. While the complaint could be read as suggesting an ongoing business relationship, because it is unclear, a factual question exists as to the intent of the parties, precluding summary judgment. On remand, the finder of fact must determine, “from the object to be accomplished” by the agreement and the “surrounding circumstances,” whether the parties intended that the agreement was not to be performed within the space of one year. See Yates, 181 So. at 344; see also § 725.01, Fla. Stat.

Next, we conclude that the trial judge erred in finding that the claim was barred by the statute of limitations. The trial court found that the claim was barred by the two-year limitations period under Florida Statutes section 95.11(4)(c)(action to recover wages) and the one-year limitations period under section 95.11(5)(a)(ac-tion for specific performance of a contract). This point requires little discussion as it is evident from the allegations in the complaint that sections 95.11(4)(e) and (5)(a) are not applicable to the instant case. As Lundstrom correctly points out, he neither seeks payment of wages nor specific performance of the oral agreement. Instead, either section 95.11(3)(k)(breach of contract) or section 95.11(3)(o)(intentional tort) is applicable here as the action is for breach of fiduciary duty stemming from a partnership agreement. In either event, Lundstrom had four years to bring the action, not the one and two years found by the trial court.

We have reviewed the other arguments advanced by appellees in support of the trial court’s order granting summary judgment, but find no merit in them. Accordingly, the final orders on appeal (1) dismissing count I of the second amended complaint with prejudice and (2) granting summary judgment as to count II of the second amended complaint in favor of the appellees are reversed. This case is hereby remanded for further proceedings consistent with this decision.

AFFIRMED in part, REVERSED in part and REMANDED.

GUNTHER and STONE, JJ., concur.

      . Lundstrom alleged that the Letter of Intent contained all of the essential terms of a standard real estate transaction, including description, price, provision for the payment of closing costs, and other details. In essence, Lundstrom argues that the Letter of Intent was the functional equivalent of an offer to purchase the property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kathleen CROCKER, Appellant, v. Sean MARKS and Jamie Marks, his wife, Appellees.
    No. 4D02-2629.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Carl A. Cascio and Gary S. Gaffney of Carl A. Cascio, P.A., Boynton Beach, for appellant.
    Peter M. Armold of Gary, Dytrych & Ryan, P.A., North Palm Beach, and Ronald L. Bornstein of Kramer, Ali, Fleck, Carothers, Hughes, Gelb & Bornstein, Jupiter, for appellees.
   PER CURIAM.

Appellant, Kathleen Crocker, filed her complaint for declaratory and injunctive relief against appellees, Sean and Jamie Marks, alleging that appellees violated certain covenants and restrictions that applied to their property, a building in which both parties own residential units adjacent to each other. Upon appellees’ motion to dismiss for failure to state a cause of action, the trial court dismissed the complaint with prejudice.

In Bell v. Indian River Memorial Hospital, 778 So.2d 1030 (Fla. 4th DCA 2001), this court stated the standard of review upon a motion to dismiss:

A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmov-ing party.

Id. at 1032 (citations omitted).

We have reviewed the complaint and find that it does state a cause of action. We, therefore, reverse and remand for further proceedings.

REVERSED AND REMANDED.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Jonathan NEELEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2978.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Michael Salnick of Law Offices of Sal-nick & Fuchs, P.A., West Palm Beach, and Ira D. Karmelin, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was sentenced as a prison re-leasee reoffender under section 775.082(9), Florida Statutes (2002). He also received a ten-year mandatory minimum sentence under section 775.087(2)(a)l., Florida Statutes (2002), because of the jury’s finding that he was in actual possession of a firearm during the commission of a robbery. In this direct appeal, appellant challenges the ten-year sentence.

Appellant failed to bring any sentencing error to the court’s attention either at sentencing or in a rule 3.800(b) motion to correct sentence. Therefore, this sentencing issue may not be reached on direct appeal. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003); Reese v. State, 763 So.2d 537, 538-39 (Fla. 4th DCA 2000).

We affirm without prejudice for appellant to seek post-conviction relief on this sentencing issue. On the remaining point, we observe that no ineffectiveness of assistance of counsel is apparent on the face of the record. See Gore v. State, 784 So.2d 418, 437-38 (Fla.2001); Henley v. State, 719 So.2d 990 (Fla. 4th DCA 1998); Dennis v. State, 696 So.2d 1280, 1282 (Fla. 4th DCA 1997).

AFFIRMED.

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


text:
    Alvin MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2798.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Cuc v. State, 834 So.2d 378 (Fla. 4th DCA 2003).

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


author: TAYLOR, J.

text:
    SOUTHERN INTERNET SYSTEMS, INC., by and through Deborah MENOTTE, as Chapter 7 Trustee, as Proper Party in Interest Pursuant to 11 U.S.C. § 541, and not individually, Appellant, v. James S. PRITULA, Appellee.
    No. 4D02-1959.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Morris G. (Skip) Miller of Adorno & Yoss, P.A., West Palm Beach, for appellant.

      James S. Pritula, Palm Beach Gardens, Pro Se.
   TAYLOR, J.

Southern Internet Systems, Inc. appeals from an amended final judgment awarding appellee, James S. Pritula, liquidated damages for Southern Internet’s failure to comply with a settlement agreement entered into between the parties. We reverse, because the settlement agreement was never approved by the board of directors of Southern Internet and the board of directors of Cabletron, as required by the agreement.

Southern Internet hired appellee as its financial advisor for a five-year term. About a year later, Southern Internet hired appellee as its President and CEO pursuant to a written agreement. Subsequently, Southern Internet gave notice to appellee of its intention to terminate his employment and financial advisory position.

Appellee filed suit against Southern Internet. His complaint included claims for breach of contract, breach of employment agreement, action on promissory note, and breach of stock option agreement. Southern Internet filed an answer and affirmative defenses, alleging, among other things, failure of consideration, breach of fiduciary duty, and fraud. Southern Internet also filed an eighteen-count counterclaim.

The parties agreed to mediation and negotiated a settlement agreement on March 30, 2000. Kevin Calderbank, the current president and CEO of Southern Internet, attended the mediation on the company’s behalf and signed the settlement agreement. Under the settlement agreement, appellee was required to cancel all notes to him from Southern Internet and to deliver all his Southern Internet stock (approximately 3,800,000 shares). In turn, Southern Internet agreed to pay appellee $500,000 on May 1, 2000 and to give appel-lee a $250,000 promissory note maturing May 1, 2001 and a $1,250,000 three-year subordinated convertible note.

Section 6 of the Settlement Agreement further provided:

Conditions Precedent. The terms and conditions of this Agreement will be subject to the final approval of a majority of the board of directors of the Company and Cabletron.

Cabletron, or Cabletron Systems, Inc., is a company with which Southern Internet had two stock purchase agreements. Pursuant to those agreements, Southern Internet was required to obtain approval from Cabletron before purchasing, redeeming, or acquiring its stock, including repurchasing common stock from its founders.

The Settlement Agreement also contained a default provision, Section 10, which stated:

In the event of a default in the payment of the initial Five Hundred Thousand Dollar ($500,000.00) payment required herein, Pritula shall be entitled to enter final judgment against the Company in the amount of One Million Dollars ($1,000,000.00). A Stipulation for Judgment shall be prepared, executed and held in escrow....
In the event of a default in the payment of the initial Two Hundred Fifty Thousand Dollar ($250,000.00) payment required by Section “3b” herein, Pritula shall be entitled to enter final judgment against the Company in the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00). A Stipulation of Judgment shall be prepared, executed and held in escrow.

Appellee filed a Motion for Judgment based upon Southern Internet’s failure to pay the first installment of $500,000 on May 1, 2000. Before the hearing on the motion, the parties filed memoranda of law in support of their respective positions and depositions of both appellee and Calder-bank. Additionally, Southern Internet filed the affidavits of the three members of its Board of Directors: John Palace, Ed Ruth, and Graham Morrison. Each affidavit stated that Calderbank presented the settlement agreement to each of them shortly after it was executed. Each stated that Southern Internet could not approve the Agreement unless it had the financial means to perform. Furthermore, each director stated:

Had I been asked to vote to approve, or consent to, the Agreement at any time prior to May 1, 2000 (the proposed date of closing), or thereafter, I would not have done so, primarily because Southern Internet did not have the financial means necessary to fund the initial payment under the Agreement. Consequently, I never gave my approval or consent for the Agreement.

Graham Morrison was not only on the board of directors of Southern Internet, but was also Cabletron’s director of business development. He stated in his affidavit that Cabletron would not have considered approval of the agreement unless and until such time as Southern Internet had the financial ability to fund the agreement. Furthermore, in Calderbank’s deposition, he stated that he presented the settlement agreement at separate times to each director individually. However, he did not call a board meeting, as he thought it would be futile due to the lack of financing.

After a hearing on the matter, the trial court entered an order granting appellee’s Motion for Judgment. Essentially, the court determined that Southern Internet had the exclusive control and responsibility to perform the condition precedent to the settlement agreement, i.e., obtain board approval, but in bad faith elected not to do so. In its Amended Final Judgment, the trial court found that “[according to [Southern Internet’s] testimony and affidavits, neither Cabletron nor the Board of Directors of Southern Internet were ever asked to approve the settlement agreement.” The court further reasoned that there was nothing in section 6 that made the settlement agreement conditional upon Southern Internet’s financial position, and that financing was in place at the time Calderbank signed the agreement. Accordingly, the court ordered Southern Internet to pay the sum of $3,110,833.38 to appellee.

In Insurance Concepts and Design, Inc. v. Healthplan Services, Inc., 785 So.2d 1232, 1234-35 (Fla. 4th DCA 2001), we discussed the concept of implied covenants of good faith and fair dealing, stating:

Florida contract law recognizes the implied covenant of good faith and fair dealing in every contract. This covenant is intended to protect “the reasonable expectations of the contracting parties in light of their express agreement.” However, there are two restrictions on causes of action for the breach of good faith and fair dealing. First, the implied covenant of good faith should not be invoked to override the express terms of the agreement between the parties. Second, a claim for breach of the implied covenant of good faith and fair dealing cannot be maintained under Florida law absent an allegation that an express term of the contract has been breached.

We concluded that allowing such a claim “ ‘where no enforceable executory contractual obligation’ remains would add an obligation to the contract that was not negotiated by the parties.” Id. at 1235 (citing Hospital Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998)).

Appellee argued that Southern Internet breached the implied covenant of good faith and fair dealing by not making a good faith effort to gain approval of the settlement agreement by the board of directors and the Cabletron board. For appellee’s argument to succeed, appellee must have attached the implied covenant to an express term of the contract. Furthermore, appellee’s assertion presupposes that the settlement agreement was already a binding and enforceable contract. We conclude that it was not.

In Carson v. Fishtail Marine of Naples, Inc., 697 So.2d 1222 (Fla. 2d DCA 1997), the parties entered into a contract for the sale of a boat. One of the conditions of the sale was U.S. Coast Guard inspection and approval of the boat for commercial use. Neither party disputed that the Coast Guard’s approval was not obtained. The court concluded that there was no enforceable contract because all of the conditions were not satisfied:

The established case law in Florida is that “[a] written document, complete on its face and delivered to one of the signatories, does not become an enforceable contract if it was delivered subject to a condition or with a reservation until that condition is satisfied.”

Id. at 1223 (citing Sun Bank of Tampa Bay v. Bryan, 527 So.2d 290 (Fla. 2d DCA 1988)); see Meekins-Bamman Prestress, Inc. v. Better Constr., Inc., 408 So.2d 1071 (Fla. 3d DCA 1982)(holding that a document which specifically conditions the contractual effectiveness of a proposal by a projected seller upon its own subsequent approval, constitutes no more than a solicitation to the prospective purchaser to make an offer itself); see also Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983) disapproved on other grounds by Gibson v. Courtois, 539 So.2d 459 (Fla.1989)(holding that a contract was unenforceable because it was executed by only three stockholders and contract was conditioned upon execution by all six stockholders before it became enforceable).

Settlement agreements, like contracts for purchase and sale, are determined and governed by contract law. See Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001). Here, the settlement agreement was conditioned upon approval of the board of directors of Southern Internet and the board of directors of Cabletron. Neither board ever approved of the settlement agreement’s terms. Therefore, the condition precedent to the formation of a contract was never met. Hence, no contract was ever fully formed.

According to appellee, Southern Internet waived the condition precedent contained in Section 6 of the settlement agreement by failing to seek approval of the contract from either board. Apparently agreeing with this position, the trial court ruled that Calderbank breached the covenant of good faith and fair dealing when he “failed to call a board meeting at which the members [of the board] could have accepted or rejected the Agreement.” In so holding, the court cited Ward v. Branch, 429 So.2d 71 (Fla. 4th DCA 1983).

In Ward we explained that:

It is a well-established principle of law that one who prevents the happening of a condition precedent upon which his liability is made to depend, cannot avail himself of his own wrong and thereby be relieved of his responsibility to perform under the contract.

Id. at 74.

The trial court s ruling that Cal-derbank’s failure to call a board meeting prevented the condition precedent from occurring overlooks the undisputed evidence that neither the Southern Internet nor the Cabletron board of directors would have approved the settlement agreement had it been formally presented to them. Every member of Southern Internet’s board provided an affidavit which stated that Calderbank presented him with the settlement agreement, that each director determined that Southern Internet did not have the financing to comply with the settlement terms, and that each would have voted against approval had an official meeting been called. Morrison’s affidavit further stated that the board of Cabletron would not have approved of the agreement. Furthermore, just as there is nothing in Section 6 which states that the agreement was conditioned upon Southern Internet’s financial position, there is also nothing in the agreement which required Calderbank to officially call a meeting of the board of directors to vote on whether to approve of the agreement’s terms. Based upon the responses that Calder-bank received from speaking with the board of directors, it appears that calling a formal meeting would have been futile.

Without a valid and enforceable settlement agreement, and consequently no express term or provision upon which ap-pellee could properly attach the implied covenant of good faith and fair dealing, the trial court erred in entering judgment against Southern Internet. We therefore reverse the trial court’s order. Because we hold that no valid and enforceable contract existed between the parties, we need not decide Southern Internet’s remaining points on appeal.

REVERSED.

SHAHOOD and MAY, JJ., concur.


text:
    Homer THOMAS, Appellant, v. DOCTORS ASSOCIATES, INC., d/b/a Subway Restaurants, Inc., Appellee.
    No. 4D02-743.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Kenneth D. Cooper of Kenneth D. Cooper, P.A., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


text:
    WALKER, SLOSBERG AND GALLEGO, Susan Walker, individually, and as representative of the Estate of Margaux Schehr; Irving Slosberg, individually, and as parent and natural guardian of Emily Slosberg, and as representative of the Estate of Dori Slosberg; Ligia Gallego, individually, and as representative of the Estate of Carolina Gil, Appellants, v. Nicholas Frank COPERTINO and Nicholas T. Copertino, Appellees.
    No. 4D02-501.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Brian J. Glick of Glick Law Offices, Boca Raton, for appellants Brian J. Glick, Susan Walker, et al.
    Philip M. Burlington of Caruso & Burlington, P.A., and Louis M. Silber of Silber & Valente, West Palm Beach, for appellee Louis M. Silber.
   PER CURIAM.

AFFIRMED. See Moakley v. Smallwood, 826 So.2d 221, 224 (Fla.2002).

STEVENSON, SHAHOOD, JJ„ and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Michael Scott KROHN, Appellant, v. Brittany Lauren FOSTER, Appellee.
    No. 1D02-4344.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Barry Richard of Greenberg, Traurig, P.A., Tallahassee and Elliot B. Kula of Greenberg, Traurig, P.A., Miami, for Appellant.
    Alexa K. Alvarez, Fernandina Beach, for Appellee.
   PER CURIAM.

Appellant seeks review of an order modifying his visitation rights with his minor daughter. He argues that the order con-statutes a denial of due process of law because visitation was neither raised as an issue by the pleadings nor tried by consent, and that the order is not supported by competent, substantial evidence. Having carefully reviewed the record, we conclude that it contains no evidence sufficient to establish either a substantial or material change in circumstances since the entry of the final judgment which initially established Appellant’s visitation rights, or that changing Appellant’s visitation rights would be in the child’s best interest. See, e.g., Teta v. Teta, 297 So.2d 642, 646 (Fla. 1st DCA 1974) (when considering a petition for modification of custody or visitation, a court has less discretion than when entering an original decree; the party requesting the modification must establish that there has been a substantial or material change in circumstances since the entry of the prior order, and that modification will promote the best interest of the child); Perkins v. McKay, 460 So.2d 581, 532 (Fla. 2d DCA 1984) (same; citing Teta). Accordingly, we reverse that portion of the order which modifies Appellant’s visitation rights, and remand with directions to vacate that portion of the order and to reinstate the prior visitation provisions. In light of this disposition, we find it unnecessary to address Appellant’s due process argument.

BOOTH, WEBSTER, and POLSTON, JJ., concur.


author: HAWKES, J.

text:
    Lee Ann Dodson STACPOOLE, Appellant, v. Peter Wallace STACPOOLE, Appellee.
    No. 1D02-3853.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.

      Stephen K. Johnson, Law Offices of Stephen K. Johnson, Gainesville, for Appellant.
    Allison E. Folds, Folds & Walker, LLC, Gainesville, for Appellee.
   HAWKES, J.

The Former Wife appeals the trial court’s: 1) limitation of her cross examination of the Former Husband; 2) finding that the trust account inherited by the Former Husband was non-marital property; and 3) failure to consider how disbursements from the Former Husband’s non-marital assets during the marriage affected the parties’ standard of living, for the purpose of calculating alimony. We find the first two issues to be without merit and affirm. On the third issue, we reverse and remand for further findings by the trial court.

One of the criteria used in establishing the amount of permanent alimony is the standard of living established by the parties during the course of the marriage. See § 61.08(2), Fla. Stat. (2002); see also McCarty v. McCarty, 710 So.2d 713 (Fla. 1st DCA 1998). Where the parties’ standard of living required invading the principal of non-marital assets, the trial court must look to all the financial resources of the parties, including the invaded non-marital assets, when determining the amount of an alimony award. See Goodman v. Goodman, 797 So.2d 1282 (Fla. 4th DCA 2001)(holding that the husband’s $3.1 million inheritance which elevated the couple’s standard of living from “comfortable, middle class” to “affluent” during the final two years of the marriage, was relevant in determining the amount of the alimony award).

Unlike Goodman, in this case, the record does not indicate the non-marital assets were used to drastically alter the parties’ lifestyle, nor that they were used as the parties’ primary source of income. However, a question remains as to the extent the non-marital assets may have been used as an ongoing source of funds during the marriage. There was some evidence that indicated the Former Husband may have routinely paid the parties’ credit card bills and paid other expenses each month out of non-marital assets. If these routine payments were for debts incurred to pay everyday expenses, and as a consequence, the parties’ standard of living was enhanced, it would impact the amount of an appropriate award of alimony.

We conclude further factual findings are necessary to determine the amount of funds withdrawn from the trust account, the length of time over which these withdrawals occurred, and the extent to which these withdrawals were used to enhance the parties’ standard of living during the marriage. If the trial court finds that non-marital assets were used to enhance the parties’ standard of living, then the amount of alimony should be appropriately adjusted. Likewise, if non-marital assets were not used to enhance the standard of living, then no adjustment of alimony is necessary.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WOLF, C.J., and BROWNING, J„ concur.


text:
    Anthony McAuthur LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3488.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.

      Ted A. Stokes, Milton, for Appellant.
    Charlie Crist, Attorney General and Robert R. Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

At issue in this appeal is the validity of a police search of the appellant’s motel room. The appellant moved to suppress the evidence seized from the room, but the trial court denied the motion. Subsequently the appellant entered a plea of nolo contendere reserving his right to appeal. Because the trial court erred in ruling that exigent circumstances justified a warrant-less entry into the motel room, we reverse the denial of the motion to suppress.

A confidential informant notified police that Phillip Dumas, a man known to Pensacola police as a drug dealer, had told the informant about a supply of cocaine that was being delivered to a local motel. Based on this information, the police arranged for the informant and the drug dealer to go to the motel and purchase cocaine from the suppliers. Although the police had a plan for the operation, events did not unfold as they had anticipated.

The police staked out the motel, fitted the informant with a wire and gave him a cell phone. They also gave him $2500 with which to purchase a quantity of cocaine. The police planned for the informant to travel together with Dumas to the motel by taxi, but, at the last minute, Dumas decided to drive separately in his own vehicle. The informant took a taxi and met him at the motel.

Although the officers expected the suppliers to be in room 305 of the motel, Dumas went instead to room 306 and then to room 309. Observing this movement, the officers inferred that all three rooms may be involved in the drug transaction. In fact, only room 309 was involved and there were only two suppliers, the appellant herein, Anthony Lee, and his cohort, Johnny Curtis.

The purchase took place in room 309. Over the wire the informant was wearing, the officers monitored the conversation between the informant, Dumas, Lee and Curtis, as a large quantity of cocaine was purchased for $2500. The informant said a prearranged code word over the wire to notify the police that the deal was taking place. According to the taped conversation, money was being counted out, and a quantity of cocaine was being kept on the counter by the sink next to the bathroom.

Originally, the officers had planned to allow the drug transaction to take place, wait for the informant and Dumas to leave together in a taxi, stop the taxi and arrest Dumas and (purportedly) the informant. They also had intended to maintain security on the room where the deal had occurred and to obtain a warrant to search the room. However, faced with circumstances different from those anticipated by their plan, the officers decided to enter room 309 without a warrant.

Officers went to the door, knocked and announced that law enforcement was present, then broke open the door with a battering ram. Upon entering, they observed cocaine and money in plain view. Four men were inside the room: the informant, Dumas, Lee and Curtis. The police asked for permission to search the room, advising them that, if they did not consent, the officers would obtain a warrant. The room occupants, including Lee, consented to a search of the room.

After seizing the drugs and other items, the officers arrested Lee and charged him with trafficking in cocaine, in violation of section 893.03(2)(a)4., Florida Statutes. Lee moved to suppress the cocaine, drug paraphernalia and other items seized from his motel room, along with any statements he had made to police. He contended that the warrantless entry into the room violated his Fourth Amendment rights and that, therefore, all evidence seized incident to the illegal entry should have been suppressed.

At the hearing on the motion, the trial court found that there was probable cause to enter the room and that exigent circumstances justified entering without a warrant. On that basis the trial court denied the motion. We review de novo the trial court’s application of the law to the facts in ruling on a motion to suppress. See Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999); Sims v. State, 805 So.2d 44, 46 (Fla. 1st DCA 2001); State v. T.W., 783 So.2d 314, 315 (Fla. 1st DCA 2001).

Law enforcement officers may not enter a legally occupied motel room without a warrant. “[F]or Fourth Amendment purposes, a motel room is considered a private dwelling where the occupant is legally there, has paid for the room, and has not been asked to leave.” Gilbert v. State, 789 So.2d 426, 428 (Fla. 4th DCA 2001); see also United States v. Standridge, 810 F.2d 1034, 1036 (11th Cir.1987); Gnann v. State, 662 So.2d 406, 408 (Fla. 2d DCA 1995). Thus, legal occupants of a motel room are entitled to the strictest Fourth Amendment protections from illegal entry, searches and seizures. Green v. State, 824 So.2d 311, 314 (Fla. 1st DCA 2002) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)); see also Gnann, 662 So.2d at 408; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Sheff v. State, 329 So.2d 270, 272 (Fla.1976); Roundtree v. State, 544 So.2d 1101, 1102 (Fla. 1st DCA 1989); Engle v. State, 391 So.2d 245, 246 (Fla. 5th DCA 1980). In the instant case, the trial court found that Lee was a legal guest in the motel room, because the evidence showed that he had paid rent on the room and a bag containing his clothes and personal items was found in the room.

Warrantless searches or arrests conducted in a constitutionally protected area like a motel room are per se unreasonable unless they fall within one of the five established exceptions to the search warrant requirement. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The five exceptions are for searches (1) with the occupant’s consent, (2) incident to lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, or (5) pursuant to a stop and frisk. See Gnann at 407.

In the instant case the trial court found that there was probable cause combined with exigent circumstances, in the form of “[ijssues relating to officer safety, control over the suspects, control of the rooms in question, destruction of controlled substances, and loss of control over police buy money constituted exigent circumstances justifying entry into the room in question.” However, a review of the record reveals that these circumstances did not amount to exigencies, either alone or taken together.

There is no exhaustive list of what constitutes exigent circumstances to permit a warrantless entry of a constitutionally protected space. See Gilbert, 789 So.2d at 428; Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Rather, the reasonableness of an entry by police onto private property without a warrant depends on the totality of the circumstances. See Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003). Some set of facts must exist that precludes taking the time to secure a warrant. See Levine v. State, 684 So.2d 903, 904 (Fla. 4th DCA 1996).

Factors indicating exigent circumstances include (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. See United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987).

The officers in the instant appeal claimed to have been concerned that they might lose control over Dumas and the other suspects. Because Dumas had traveled to the motel in his own vehicle, the officers feared that he might flee in his car, potentially setting off a dangerous high-speed car chase or causing the police simply to lose contact with him if they waited to obtain a warrant. Indeed, the police were allegedly worried about any and all of the then unknown number of suspects potentially leaving during the time it would have taken to secure a warrant.

However, given that there were at least eight or nine officers with four police vehicles on the scene to cover only three suspects plus the informant, these nine officers should have been able to maintain control over the individuals at the motel safely. Any fears that it would not have been possible to control the suspects were not reasonable, given that the suspects were so outnumbered and did not know that police were outside. See, e.g., Graham v. State, 406 So.2d 503, 505 (Fla. 3d DCA 1981) (holding that warrantless arrest of robbery suspect in his motel room three days after robbery had occurred was not justified on theory of exigent circumstances, where eight officers were at scene, greatly reducing risk that defendant would escape); Alvarado v. State, 466 So.2d 335, 337 (Fla. 2d DCA 1985) (holding that no exigent circumstances existed to allow warrantless entry into apartment containing suspect, where four officers were covering the three exits to the apartment, and the officers did not know when the suspect was going to leave).

Moreover, it was mere speculation to assert that a car chase would have ensued if Dumas left in his own vehicle, or even that Dumas would leave imminently. In fact, speculation formed the basis of most of the officers’ reasons for foregoing a warrant in this case. Because conjecture does not amount to an objectively reasonable fear that there is no time to secure a warrant, the claim that the officers could not control the suspects did not form a legitimate exigent circumstance sufficient to justify warrantless entry into a constitutionally protected space.

The police also claimed to be concerned about keeping control over the confidential informant, because he had possession of the purchased drugs, and because it was important for the officers to keep track of him for purposes of future prosecution of the suspects. Again, the fact that there were nine officers on the scene substantially undermines the state’s argument. The officers outnumbered the suspects and informant more than two-to-one. This calls into question the reasonableness of any concern the police could have had about being able to control or keep track of all the persons involved in the operation, including the informant, during the time it would have taken to get a warrant.

Another reason given for the war-rantless search was that it appeared that more than one motel room may have been involved in the transaction, a situation that police had not anticipated. This suggested to the police that the drug operation was larger than they had expected, and the officers believed that they may not have been able to maintain control over both rooms during the time it would have taken to obtain a search warrant.

However, the officers did not actually know that two rooms were being used; again, it was mere speculation that more than one room was involved. As it turned out, Lee and Curtis occupied only one room that night. They had spent the previous night in one room, then had moved to room 309 the following day.

Neither a lack of knowledge nor sheer speculation or guesswork about the situation at hand translates to exigent circumstances. Police must have a factual basis to forego a warrant and enter a constitutionally protected area; it is not enough that they are uninformed and subjectively afraid the situation may be worse than anticipated. Therefore, the claim that there may have been more than one room involved and that the officers may have been unable to control both rooms was not an exigent circumstance justifying warrantless entry into the room.

Another factor that the trial court found prompted the police to enter the room without a warrant was the concern that evidence would be destroyed or lost before they could secure a warrant. The officers allegedly were concerned that the suspects in the room would be tipped off to their presence and flush the drugs down the toilet if the officers tried to detain anyone coming out of the room. Also, if any of the suspects left the room, the police believed that they may not be able to keep track of the drugs. In order to ensure that they could recover all of the drugs, the police decided to enter the room before anyone left, so as to have all the suspects and evidence in one room.

But the possibility that the drugs might be destroyed was not a valid exigency, because that possibility did not actually exist until the officers knocked on the door and announced their presence. Where the actions of the police themselves cause the imminent destruction of the evidence, warrantless entry into a motel room to seize that evidence is not justified. See Hornblower v. State, 351 So.2d 716 (Fla.1977). The Florida Supreme Court has held that exigent circumstances exist where the occupants of a house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence. See Benefield v. State, 160 So.2d 706 (Fla.1964). The facts of the instant case do not rise to this level. Here, the suspects were unaware that police officers were outside the motel, nor were they doing anything at the time that would have reasonably led the officers to believe that they were trying to destroy evidence or escape. See Rebello v. State, 773 So.2d 579 (Fla. 4th DCA 2000); Levine, 684 So.2d at 904; State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970); Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979); State v. Johnson, 372 So.2d 536 (Fla. 4th DCA 1979) (holding that police may enter without a warrant where the facts show reasonable grounds to fear destruction of the evidence).

Moreover, in order to justify a warrantless entry into a residence to prevent the imminent destruction of evidence, the police must have an objectively reasonable fear that the evidence will be destroyed before a warrant can be obtained. See Burt v. State, 821 So.2d 437, 439 (Fla. 2d DCA 2002); United States v. Rivera, 825 F.2d 152, 156 (7th Cir.1987).

The facts of the instant case do not show that the officers’ fears were objectively reasonable. There was no evidence that any of the three suspects inside the motel room knew that there were police outside, that the informant was wearing a wire and working with police, or that the police intended to arrest the suspects. In addition, as in Burt and Gnann, an officer could have been posted outside the motel room door while the other officers secured a search warrant. The state did not show that there was insufficient time to secure a warrant or that there were any circumstances indicating that the drugs were about to be destroyed. Based on the foregoing, the fear of destruction of the evidence in the instant case was not a valid exigent circumstance to justify entering the room without a warrant.

Nor does the state’s assertion that the police were concerned for officer safety qualify as a legitimate exigency under the facts of this case. The state asserts that there is always an issue of officer safety when multiple suspects are present and moving within a public area like a motel room. Also, because drug dealers are generally known to be violent and to use firearms commonly, the state argued that the concern for officer safety was heightened in the instant case. Therefore, had any of the suspects been alerted to the presence of police at the motel, the state maintains that officer safety would have been at great risk, regardless of whether the officers outnumbered the suspects. Further, the state contends that the officers needed to avoid a potential car chase by preventing the suspects from leaving the room or going to their cars, because car chases posed yet another risk to officer safety.

These fears were based on generalizations about drug cases and not on any specific risk presented by the facts of this case. As we have noted, the possibility of a high speed car chase is speculative. There is no evidence to suggest that it was more likely to occur in this case than it would be in any other. Likewise, the fear that the suspects might be dangerous was based on general conclusions about drug dealers and not on any facts or circumstances relating to this case in particular. Although the officers claimed to know that Dumas was a violent criminal, they did not assert that he was doing anything at the time that threatened their safety or the safety of others.

In the instant case, the police were simply dealing with a number of unknowns they had not anticipated in setting up the buy, including how many suspects were in the room, how many people were involved in the operation at the motel, or whether someone might present a threat from another room. They speculated that there could be a large operation at hand, that one or more of the suspects could leave the room, and that, if any of the suspects left in a car, a dangerous high-speed chase might occur. Again, all of these suppositions were mere conjecture, not known fact. Nor did they have any reason to believe that anyone inside the room was in danger. The officers’ subjective speculation and the various unknowns did not create an exigent circumstance reasonably compelling entry into the room without a warrant.

The court also found that an exigency was created by the fact that the officers were concerned about keeping track of and recovering the money they had given the informant with which to purchase the drugs. But there was no basis for the police to be so concerned, since they had the motel surrounded, thus minimizing the risk that the informant or any of the suspects could flee with the money. See Alvarado, 466 So.2d at 337 (holding that there were no exigent circumstances where the police had four men covering three exits to the apartment containing the suspect and officers did not know when the suspect was going to leave).

Finally, the police asserted that officer safety was threatened by the fact that drug dealers often carry guns. But the fact that the officers knew that suspects inside the motel room may have guns is not, in itself, sufficient to justify warrant-less entry into the room. They expressed no concern that the suspects were going to shoot either a bystander inside the room or any of the officers. Indeed, they could not argue that the officers were in danger of being shot, as the suspects did not even know that the police were at the motel. Only when the police made their presence known to the suspects by knocking on the door and then breaking it down did the danger of officers being shot arise. This was another exigency created by the police officers’ own conduct, so it cannot justify the warrantless entry.

None of the arguments advanced by the state are sufficient — either alone or taken together — to justify a warrantless entry into a constitutionally protected area. Therefore, we conclude that the motion to suppress should have been granted.

Reversed.

BENTON, PADOVANO and BROWNING, JJ., concur.


text:
    VILLAGE APARTMENTS and Protegrity Services, Inc., Appellants, v. Santiago HERNANDEZ, Appellee.
    No. 1D02-2427.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.

      Cord Byrd, Rigell, Ring & Ardman, P.A., West Palm Beach, for Appellants.
    Sandra L. McAuley, Findler & Findler, P.A., and Helene Hvizd Morris, West Palm Beach, for Appellee.
   HAWKES, J.

In this workers’ compensation appeal, Appellants, Employer/Carrier (E/C), argue the claimant should be denied benefits pursuant to section 440.09(4), Florida Statutes (Supp.1998). This provision sanctions workers’ compensation claimants by denying benefits to which they might otherwise have been entitled, if a claimant, in seeking benefits, knowingly provides any false, misleading, fraudulent or incomplete information as set forth in section 440.105, Florida Statutes (Supp.1998). Because the JCC appears to have misunderstood the law, we reverse and remand.

Section 440.09(4), has frequently been referred to as the “fraud defense.” This misnomer appears to have narrowed the application of the sanction beyond that intended by the legislature. In interpreting any statute, full effect must be given to the language chosen by the legislature. Section 440.09(4), provides that the commission of any act prohibited by section 440.105, results in the sanction. For instance, section 440.105(4)(b)2., Florida Statutes (Supp.1998), which doesn’t use the word “fraud,” imposes the sanction if the claimant, in support of his claim for benefits, makes an oral statement concerning a material fact that he knows is false, incomplete or misleading. However, at the merits hearing, when the E/C sought to invoke the provisions of section 440.09(4), the JCC asked “Well, where’s the written representation that you feel was false?” By focusing only on written misrepresentations, the JCC clearly misconstrued the requirements necessary to invoke the sanctions provided by section 440.09(4).

Under most circumstances, accurate medical histories, evidence of prior accidents, and statements regarding the extent of current injuries are relevant and material to a workers’ compensation claim. These statements are relevant and material whether made to health care providers, or during testimony given at depositions or the merits hearing. In a workers’ compensation case, a claimant’s responses to inquiries regarding his prior accidents, current injuries, or medical history are made in support of his claim for benefits.

Here, the E/C refer to numerous places in the record where the claimant makes oral statements at deposition, during the merits hearing, and to health care providers, that appear false, misleading or, at the very least, incomplete. Regardless of whether the claimant was under oath, if, at the time he made any of these statements, he knew they were false, incomplete or misleading, then the statements fall within the scope of section 440.105(4)(b)2., and, pursuant to section 440.09(4), result in the loss of workers’ compensation benefits.

We are particularly concerned with the claimant’s testimony regarding his involvement in prior automobile accidents. Evidence of prior accidents in the discovery phase is relevant to determine whether the accidents may have caused or contributed to current injuries. Similarly, evidence of dishonesty in responses to discovery questions about prior accidents is relevant in the trial phase to establish the previous deception.

The record indicates the claimant testified three times during two depositions that he had no prior automobile accidents. The claimant had a qualified Spanish interpreter during these depositions, and there was no indication that the claimant misunderstood the questions. Moreover, automobile accidents tend to be memorable.

The E/C proffered records indicating the claimant had been involved in at least three prior accidents, the most recent of which occurred only eight months prior to his first deposition. The JCC refused to admit this evidence of the claimant’s prior accidents, reasoning she would be required to make an “intellectual leap” to conclude these accidents contributed to the claimant’s current injuries. However, evidence of the accidents was not offered to show they contributed to the current injury. Rather, they were offered to show the claimant had misrepresented facts material to his claim for benefits. “Honesty is not a luxury to be invoked at the convenience of a litigant.” Baker v. Myers Tractor Servs., Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000) (quoting trial court’s order). The workers’ compensation system is designed to be efficient and self-executing. See § 440.015, Fla. Stat. (1997). It cannot depend on an adversary’s ability to investigate and discover false testimony. The parties have a right to expect that all statements, whether written or oral, are truthful, responsive, and complete. Accordingly, we remand for the JCC to conduct a hearing to address whether the claimant, in support of his claim for benefits, made any oral or written statements concerning facts material to his claim that he knew were false, misleading or incomplete at the time the statements were made. Although the JCC’s inquiry is not limited to prior accidents, on remand, the JCC should allow evidence of any prior accidents in which the claimant has been involved. If the JCC finds the claimant knew he had been involved in prior accidents when he testified he had not, that would constitute a false statement involving a material fact.

REVERSED and REMANDED with instructions.

WOLF, C.J., and BROWNING, J., Concur.

      . Section 440.105(4)(b)2., provides:
      (b) It shall be unlawful for any person:
      * * * *

        2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.

      . The E/C stated at the hearing that the evidence of the accidents was discovered too late to include in the pre-trial stipulation. This late discovery illustrates the problem that the sanctions provided through section 440.09(4), attempts to deter.


author: POLEN, J.

text:
    Bryann ACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3974.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final adjudication of guilt after a jury found Bryann Acosta guilty of Burglary. Acosta raises three arguments on appeal. Acosta first contends the trial court erred in denying his request for a Richardson hearing. Acosta next alleges the trial court erred by assessing him $14,581 in restitution. Because we agree with Acosta on the first two issues, we need not address the third.

Acosta correctly contends the trial court erred in denying his request for a Richardson hearing. In Barrett v. State, 649 So.2d 219 (Fla.1994) the Florida Supreme Court reiterated that:

When a defendant elects to participate in the discovery process, the State has an ongoing duty to disclose and provide discovery. Fla.R.Crim.P. 3.220®. When the State’s failure to comply -with the rules of discovery is brought to the court’s attention, the court must conduct a Richardson hearing to determine if that failure has prejudiced the defendant. While the trial court has discretion to determine whether a discovery violation would result in harm or prejudice to the defendant, “the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.”

Id. at 221-22 (footnote omitted) (quoting Richardson, 246 So.2d at 775 (Fla.1971) (emphasis added)).

One of the pieces of physical evidence in this case was a footprint recovered at the crime scene. Thomas Hill compared the prints with Acosta’s shoe. Hill testified that he identified seven points of identification that were unique to that shoe. Hill concluded that Acosta’s shoe positively made the mark left at the scene. During defense counsel’s voir dire of Hill, counsel asked if Hill could name any other experts in this field. Hill said he would have to refer to his notes. Later, during Hill’s direct testimony, while Hill was explaining the footprint identification process to the jury, he explained that after he has found points of identification on a print, another person reviews his work. He stated that Bud Haemmerle was an expert in the field who reviews his work. Defense Counsel objected and asked for a Richardson hearing. That objection was denied and the court advised Hill not to testify further about Bud Haemmerle.

Defense counsel had informed the jury during opening statements that the expert who evaluated the shoe print evidence never had his work reviewed. This, Acosta asserts, was based on the fact that no such contrary evidence was received during discovery. In Richardson, the Florida Supreme Court held that:

if it is evident from the record that the non-compliance with the Rule by the State resulted in harm or prejudice to a defendant through failure to furnish the names of witnesses, and such witnesses were permitted to testify in behalf of the State, or if it should affirmatively appear that the State failed to furnish to the defendant the name of a witness known to the State to have information relevant to the offense charged against the defendant, or to any defense of the defendant with respect thereto, and the latter situation resulted in harm or prejudice to the defendant, appellate court reviewing his conviction must reverse.

Richardson, 246 So.2d at 774.

Based on the language of Richardson, if it appears the State failed to furnish to Acosta the name of a witness known to the State to have information relevant to the offense charged against Acosta and that failure resulted in prejudice, reversible error has occurred.

In Portner v. State, 802 So.2d 442 (Fla. 4th DCA 2001) this court explained that when a discovery violation occurs, Richardson requires at minimum an inquiry into the circumstances of the discovery violation, including: (1) whether the violation was inadvertent or willful, (2) whether it was trivial or substantial, and (3) whether noncompliance with this rule has prejudiced the opposing party’s ability to properly prepare for trial. The court continued by explaining that although the failure to conduct a Richardson hearing is not per se reversible error, harmful error is presumed when a Richardson inquiry is not conducted. Only if the appellate court can say, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless. Id. at 446 (internal citations and quotations omitted).

In Loisell v. State, 703 So.2d 534 (Fla. 4th DCA 1997), this court reversed a conviction and held that the failure to conduct a Richardson hearing could not be said to be harmless error where it was reasonably possible that the change in appellant’s strategy between opening statement and closing argument was caused by the admission of the undiscovered statement. The same can be said about the case at bar.

As alleged in Acosta’s motion for a new trial, and supported by the record, as a result of Hill’s testimony Acosta had to alter his strategy at trial. During defenses opening statement, defense counsel explained to the jury that they were going to hear testimony from one of the state’s witnesses claiming to be an expert in footwear. Defense counsel argued that “he never bothered to have his work checked by anybody, never got a second opinion, never asked anybody else to check his work to make sure it was right.” It is clear that this line of argument had to be abandoned after Hill’s testimony.

It was reasonably possible that the change in appellant’s strategy was caused by the testimony regarding Bud Haem-merle. Therefore, we can not say beyond a reasonable doubt, that Acosta was not procedurally prejudiced by the discovery violation. As a result, we hold that the trial court erred in failing to conduct a Richardson hearing. As a result we reverse Acosta’s conviction and remand for a new trial.

Acosta next alleges the trial court erred by assessing him $14,581 in restitution. Acosta asserts that this order is contrary to the jury’s finding that Acosta was guilty of the lesser included offense of petit theft of property worth less than $300. We agree.

In Cooley v. State, 686 So.2d 732 (Fla. 2d DCA 1997), the Second District held that “[a] court cannot order the defendant to pay restitution for damages arising out of a crime for which he was acquitted.” In Cooley, the defendant was charged with aggravated battery, but found guilty of only battery. The court explained that although the injury to the victim, a fractured leg, would satisfy the element of great bodily harm for aggravated battery, the jury did not find the defendant guilty of that crime.

In this case, the jury returned a verdict finding Acosta guilty of petit theft of property with a value of less than $300. Although given the option on the verdict form, the jury did not find Acosta guilty of grand theft of property with a value of $20,000 or more but less than $100,000 or grand theft of property with a value of $300 or more but less than $20,000.

The transcripts make clear that when determining the amount of restitution the trial court looked at the testimony of the victim regarding the value of the property taken. However, the jury did not find Acosta guilty of a crime where property of such a value was taken. As a result, the trial court erred in entering an order of restitution in an amount greater than the value of the property of the crime Acosta was convicted of.

REVERSED.

WARNER and STEVENSON, JJ„ concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author:
KLEIN, J.
      POLEN, J.,

text:
    STATE of Florida, Appellant, v. Rolisa FORBES, Appellee.
    No. 4D02-1567.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Marey K. Allen, Assistant Public Defender, West Palm Beach, for appellee.
   KLEIN, J.

The state appeals a sentence, contending that it was below the minimum permissible sentence with no reason given for a departure. We reverse.

After appellant entered an open plea to one count of possession of cocaine with intent to sell or deliver, the trial court sentenced her to 13.8 months in prison, which was the lowest permissible sentence under the scoresheet. The court then vacated the sentence because appellant requested time to find someone to care for her child and advised appellant that it would impose the same sentence if she turned herself in two weeks later.

When appellant timely appeared to be sentenced, the state informed the court that the scoresheet was incorrect, as it omitted another charge, and under the corrected scoresheet the minimum permissible sentence was 17.7 months. The trial court felt bound to impose the 13.8 month sentence, and did so without stating a reason for departure under section 921.0024(2), Florida Statutes (2001).

Appellee argues that we should affirm because this was, in essence, a departure based on a valid plea bargain. As we noted earlier, however, this was an open plea. See State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003) (guilty plea made without an agreement with the state does not constitute a valid departure reason). AL though the error may be a ground on which appellee can have her plea vacated, she was not eligible for the lower sentence, where the mistake was discovered before she was sentenced, unless there is a basis for departure. We therefore reverse for imposition of a sentence reflecting the corrected scoresheet.

STEVENSON, J., concurs.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the result reached by the majority. I write separately to express my understanding of the phrase “unless there is a basis for departure” in the next to last sentence, as allowing the trial court to enter a downward departure sentence if there are valid grounds other than plea agreement upon which to do so.


text:
    Michael Alan GATES, Appellant, v. Janice B. GATES, Appellee.
    No. 4D01-3959.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Granted Oct. 29, 2003.

      Robert L. Bogen of the Law Offices of Robert L. Bogen, Boca Raton, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, Lawyers, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING/CLARIFICATION

STEVENSON, J.

We grant appellant’s motion for rehearing/clarification in part, withdraw our prior opinion, and issue the following in its place.

The parties to the instant appeal, Michael and Janice Gates, were divorced in 1999. Shortly after rendition of the final judgment, both parties filed a variety of motions seeking enforcement of the terms of the marital settlement agreement regarding distribution of the marital assets and the husband’s financial obligations with respect to the couple’s minor children. In a single order, the trial court resolved the pending motions, ruling that (1) the husband had failed to timely pay the sums due the wife under the settlement agreement and, thus, the wife was entitled to $27,428.50 in attorney’s fees and costs incurred in her efforts to secure payment; (2) the husband was required to reimburse the wife the amount of $1,258.64 for the children’s medical expenses and prescriptions not covered by insurance; (3) the husband had failed to pay the 2000 and 2001 premiums on the children’s health insurance as required by the settlement agreement and was required to reimburse the wife for the same; and (4) the husband was to reimburse the wife $816 that she spent to purchase plane tickets for the children after the husband cancelled his visit without providing the required noticed.

The husband has appealed, challenging nearly every aspect of the lower court’s ruling. We reverse as to the amount of the attorney’s fee award to the wife and the reimbursement for the children’s health insurance premiums; on all other issues, we affirm.

The Amount of the Attorney’s Fee Award to the Wife

The trial court awarded the wife $27,428.50 in fees and costs. Included in this amount is $6,720 in fees and costs billed by attorney Russo. The husband contends that this portion of the fee award must be reversed because it includes amounts that relate to an earlier contempt proceeding for which the wife was already awarded fees. We agree.

In December 1999, attorney Russo filed a motion for contempt on behalf of the wife, citing the husband’s failure to pay child support and the children’s health insurance premiums. Thereafter, the wife filed a second motion seeking an income deduction order. The wife sought the award of fees connected with both motions. By order dated March 9, 2000, the trial court denied the wife’s motion for contempt, finding that the failure to pay was not willful. The court nonetheless awarded the wife a portion of her attorney’s fees, declining to award fees for some discovery that the court found to be unnecessary.

During the proceeding below, attorney Russo submitted her bill for $6,720. A cursory review of the bill indicates that the $6,720 total includes charges for fees incurred in connection with the earlier contempt proceedings. Since the wife has already been awarded fees for the matters raised in the December 1999 motions for contempt, it was error for the trial court to include these hours in a second fee award. Consequently, we reverse that portion of the fee award pertaining to the charges billed by attorney Russo and remand with instructions that the court eliminate charges that were the subject of the earlier contempt proceeding and March 2000 fee award.

The Children’s Health Insurance Premiums

The marital settlement agreement requires that the husband “pay for health insurance coverage for the minor children.” The trial court found that the husband had failed to comply with this provision, ordering the husband to pay $1,706.28 in unpaid premiums for the year 2000 and $2,599.21 in unpaid premiums for the year 2001. These totals represent the combined premiums on a number of insurance policies. The husband argues that the trial court erred in requiring him to reimburse the wife for these premiums because (1) the court had previously determined that the husband was responsible for the premiums on only a single policy— not the multiple policies for which the wife sought reimbursement and (2) the evidence as to the amount of the premiums was insufficient. Both arguments have merit.

First, in the earlier March 2000 order, the court clearly ruled that the terms of the settlement agreement required the husband to pay the premiums on only a single health insurance policy. This ruling was never appealed. Second, to prove the amount of the premiums, the wife sought to introduce into evidence exhibit 6, which included a summary and copies of the bills from the various insurance companies. The trial judge, however, ruled that exhibit 6 was inadmissible and the wife offered no additional evidence on the issue. Thus, we are compelled to reverse that portion of the order requiring the husband to pay the wife $4,805.49 in health insurance premiums.

AFFIRMED in part, REVERSED in part and REMANDED.

WARNER and HAZOURI, JJ„ concur.

      . As a consequence of our reversal, the former wife is no longer the prevailing party on this issue. Thus, on remand, attorney's fees awarded to the wife for litigation of this issue must be deducted.


author: HAZOURI, J.

text:
    M. Ross SHULMISTER, as Chairman of and on behalf of the Mayor-at-Large Initiative Committee, Appellant, v. E. Patrick LARKINS, Minnie I. Campfield, Samuel Jackson, James L. Jones, Carolyn McDougal, Hazel K. Armbrister, Charles E. Hunt, Rosie Evans, Marguerite K. Luster and City of Pompano Beach, Florida, a Florida municipality, Appellees.
    No. 4D03-2275.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Denied Nov. 6, 2003.

      M. Ross Shulmister, Pompano Beach, pro se.
    W. George Allen of Law Office of W. George Allen, Fort Lauderdale, for appel-lees E. Patrick Larkins, Minnie I. Camp-field, Samuel Jackson, James L. Jones, Carolyn McDougal, Hazel K. Armbrister, Charles E. Hunt, Rosie Evans and Marguerite K. Luster.
   HAZOURI, J.

M. Ross Shulmister, as Chairman of, and on behalf of the Mayor-At-Large Initiative Committee (Committee), appeals a Final Judgment of Injunctive Relief permanently enjoining implementation of a proposed amendment to the Pompano Beach City Charter on the basis that the proposed amendment violates a single-subject provision contained in the city charter. We reverse the trial court and hold that the single-subject provision located in the city charter does not apply to amendments proposed by the electorate through an initiative petition.

The Initiative Petition containing the proposed amendment was circulated by the Committee pursuant to section 166.031(1), Florida Statutes (1997). Section 166.031(1) provides in relevant part:

The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter-(emphasis added).

The Petition received the requisite number of signatures of registered voters and was filed with the Pompano Beach City Clerk on August 31,1998. The proposed amendment was placed on the November 5, 2001 general election ballot and passed. However, in January 2002, prior to the City Commission officially adopting the amendment, Appellees, nine residents of the City of Pompano Beach, filed an Amended Sworn Complaint for Injunction and Declaratory Judgment. The trial court reviewed the proposed amendment and determined that it violated the single-subject provision located in the city charter. The trial court entered a Final Judgment of Injunctive Relief permanently enjoining implementation of the proposed amendment.

The single-subject provision that the trial court relied on is located in section 22 of the city charter, which states in relevant part: “Every proposed ordinance or resolution shall be introduced in written or printed form and shall not contain more than one subject....”

Section 22 by its clear language applies only to ordinances and resolutions. It does not include petitions. The trial court determined that section 22, when read in conjunction with other provisions of the city charter, created an ambiguity which was open to construction. The trial court reasoned that the omission of petitions from section 22 was inadvertent. We disagree. The language in section 22 is plain and obvious. Therefore, we are precluded from construing it in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. See Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1150 (Fla.2000). If the Commissioners had intended to include petitions in section 22, they could have done so by clear language.

Neither the Florida Constitution nor Florida Statutes applies the single-subject rule to proposed amendments to county or city charters. See Charter Review Comm’n of Orange County v. Scott, 647 So.2d 835 (Fla.1994). Therefore, any limitation must be found within the city charter itself. The city charter on its face does not apply a single-subject limitation to initiative petitions.

REVERSED.

WARNER and GROSS, JJ., concur.

      . The delay in placing the proposed amendment on the ballot was due to a suit between Shulmister and the City of Pompano Beach. The issues in that case were eventually resolved by this court in Shulmister v. City of Pompano Beach, 798 So.2d 799 (Fla. 4th DCA 2001), review denied, 821 So.2d 293 (Fla.2002).

      . Section 166.041(l)(a), Florida Statutes (1997) defines 'ordinance' as "an official legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law." Section 166.041(l)(b) defines 'resolution' as “an expression of a governing body concerning matters of administration, an expression of a temporary character, or a provision for the disposition of a particular item of the administrative business of the governing body."


text:
    Toriano ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3139.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny appellant’s motion for rehearing, but withdraw our prior opinion and substitute the following in its place.

Affirmed. As to the issue that appellant’s plea was involuntary because of misinformation as to the length of the sentence, appellant did not raise this in a motion to withdraw the plea. Our affir-mance is without prejudice to raise issue in a post-conviction motion.

STONE, WARNER and HAZOURI, JJ., concur.


text:
    Raymond SMITH v. Don Carnell LAWHORN, The Honorable Larry Cager, and The Honorable W. Fox McKeithen, in their Official Capacities Only.
    No. 2003-CC-2591.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Don Carnell Lawhorn, applying for Reconsideration of this court’s action dated September 17, 2003, from Orleans Parish Civil District Court, No. 2003-13064, to the Fourth Circuit Court, Nos. 2003-C-1610 and 2003-CA-1615.

Reconsideration denied.

CALOGERO, C.J., concurs in the denial and assigns reasons.

LCALOGERO, Chief Justice, concurs in the denial of the application for reconsideration.

The law and our corresponding rule, La. Rev.Stat. 18:1409(G) and La. Sup.Ct. Rule X, § 5(c), specifically require that the application for certiorari be filed in this court within forty-eight hours after judgment is rendered by the court of appeal. The court of appeal in this case rendered its judgment on September 10, 2003, and that judgment was stamped filed by the clerk of court at 4:40 p.m. that date. Relator filed his application in this court at 5:06 p.m. on September 12, 2003. Thus, his application was not timely filed and was not considered. Smith v. Lawhorn, 03-2591 (La.9/17/03), 853 So.2d 612.

In his application for reconsideration, relator contends the court of appeal’s judgment was faxed to him at 5:04 or 5:05 p.m. on September 10, 2003, as revealed by the facsimile date/time stamp from the court of appeal, and that this was his official notification of the judgment. Thus, he argues that he timely filed his application in this court at 5:04 p.m. on September 12, 2003. However, the statute and our rule require that the application be filed within forty-eight hours of the rendition of the court of appeal’s judgment. Relator knew or should have known that the court of appeal judgment had been rendered at some time prior to the time the judgment was faxed to him by the court of appeal, and it was incumbent upon relator | gto ascertain the time of rendition so as to file his application in this court in a timely manner pursuant to the statute and our rule. Accordingly, I concur in the denial of relator’s application for reconsideration.


text:
    In re Billy R. CASEY.
    No. 2003-B-1939.
    Supreme Court of Louisiana.
    Sept. 24, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that respondent, Billy R. Casey, Louisiana Bar Roll number 17931, be and he hereby is reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.