author: WARNER, J.

text:
    DEPARTMENT OF CHILDREN & FAMILIES, Petitioner, v. Asmar HARRISON, Respondent.
    No. 4D03-168.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Deborah Guller, John J. Copelan, Jr. and Douglas Greenbaum, Ft. Lauderdale, for petitioner.
    Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Ft. Lauderdale, for respondent.
   WARNER, J.

The Department of Children and Family Services petitions this court to quash the trial court’s order finding respondent incompetent to stand trial in a criminal case and ordering him to receive treatment at specific facilities. The Department argues that the trial court departed from the essential requirements of law by failing to comply with section 916.301, Florida Statutes (2002), regarding the appointment of the experts for the respondent’s incompetency evaluations and in ordering the Department to provide the treatment from a particular facility. The respondent concedes that the trial court erred in failing to comply with section 916.301 by failing to include the Department in the evaluation. On this ground, we quash the trial court’s order.

The trial court appointed two psychologists to determine whether the respondent, a criminal defendant, was mentally retarded or autistic and, if so, whether he was competent to proceed to trial. Although the court found the respondent incompetent to stand trial, it found he did not meet the statutory criteria for involuntary commitment pursuant to section 916.302(1). The court ordered conditional release and required the respondent to receive training regarding competency to proceed as well as any necessary support services necessary to allow him to remain in the community. It specifically ordered Dynamic Health Care in Fort Lauderdale to provide the training. While the order does not indicate, it is apparent that the court intended the Department to provide these services.

The unilateral manner in which the trial court appointed the psychologists and ordered the type of treatment for the respondent violated section 916.301. That section provides, in pertinent part,

(1) The department shall provide the courts annually with a list of retardation and autism professionals who are qualified to perform evaluations of defendants alleged to be incompetent to proceed due to retardation or autism. The courts may use professionals from this list when ordering evaluations for defendants suspected of being retarded or autistic.
(2) If a defendant’s suspected mental condition is retardation or autism, the court shall appoint two experts, one of whom must be the developmental services program of the department, each of whom will evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is competent to proceed.
(3) At the request of any party, the court may appoint one additional expert to evaluate the defendant. The expert appointed by the court will evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is competent to proceed.
(4) The developmental services program shall select a psychologist who is licensed or authorized by law to practice in this state, with experience in evaluating persons suspected of having retardation or autism, and a social service professional with experience in working with persons with retardation or autism to evaluate the defendant.
(a) The psychologist shall evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is incompetent to proceed due to retardation or autism.
(b) The social service professional shall provide a social and developmental history of the defendant.

(Emphasis added). While the court appointed two psychologists, one was not from the Department’s developmental services program as required by statute. This is important because upon finding the respondent incompetent to proceed, the experts were required to recommend “training for the defendant to attain competence to proceed.” § 916.3012(4). Specifically, the expert’s report must include recommendations on the appropriate training for the respondent, the availability of acceptable training in the community, the likelihood of the respondent attaining competency, and the probable duration of his attaining competency. See § 916.3012(4)(a)-(d). When the developmental services program of the Department is represented by its appointed expert in preparing the report, the recommendations will take into account services available through the Department. Without the involvement of the Department’s representative, the Department has no opportunity to influence the recommendations it is expected to carry out.

We do not address the second issue raised as it may be rendered moot if the Department is involved in the assessment and community-based training plan.

The petition is granted, and the order under review is quashed.

KLEIN and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: FARMER, C.J.

license: Public Domain

text:
    Joseph D’AMATO, Appellant, v. Merry Jo D’AMATO, Appellee.
    No. 4D03-1631.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Robert J. Moraitis of Robert J. Moraitis, P.A., Fort Lauderdale, for appellant.
    Jon D. Newman of Jon D. Newman, P.A., West Palm Beach, for appellee.
   FARMER, C.J.

The parties settled their dissolution of marriage action, and the Circuit Court in Palm Beach County entered a final judgment specifically approving their agreement, including terms pertaining to visitation of their minor child by the father. Later, when disagreements arose as to visitation, the father sought a transfer to the Circuit Court in Broward County, which was granted. The first instance of the file appearing before the newly assigned judge was to approve the settlement of their post judgment disagreement as to visitation. The trial court entered orders (order) approving it.

Some three months later the mother filed a motion for contempt, alleging that the father had failed to pay her attorney’s fees as provided in the final judgment. The father then filed his own motion for contempt, alleging the refusal of the mother to appear for a deposition. In neither motion was there any request to modify the recent order approving the settlement as to the visitation agreement.

At the conclusion of the hearing on the contempt motions, the trial judge entered a “sua sponte” order vacating the earlier order approving the settlement of the visitation disagreement. The sua sponte order stayed all visitation pending compliance with some newly imposed provisions for counseling specified by the court in the order. On appeal the father argues that the trial court improperly addressed matters not mentioned in any notice of hearing and not requested by any party in any pre-hearing filings. We agree and reverse.

There is no transcript of the hearing. The hearing was held on a “Motion Calendar,” which in Broward County does not permit the introduction of evidence. In arguing to sustain the sua sponte order, the mother asserts that without a transcript we do not know what evidence might have been adduced or whether the father consented to the court’s action or instead failed to object to it. The mother does not assert that any evidence was adduced at the hearing or that the father actually consented to the court’s consideration of the issue or, contrarily, failed to object to it. Rather, the mother simply says that without a transcript we do not know what happened at the hearing that resulted in the sua sponte order.

The requirements of a prior pleading, petition or motion seeking relief, and notice that it will be considered by the court at the hearing, are no mere inconveniences easily dispensed with. Except in circumstances of exigency made undeniably clear in the record, these requirements are indispensable to the essential demands of procedural due process. They are conspicuously lacking here, and no necessity for dispensing with them has been suggested. Nor did the trial judge refer to any testimony taken at the hearing or recite in the order that the father had consented or waived objection to a reconsideration of the issue.

As we observed, evidence is not customary in matters heard on Motion Calendars in Broward County, so the failure of a party to have a court reporter present is understandable. Such hearings are ordinarily thought to be “record” hearings in which routine disagreements as to matters of procedure or less complex legal questions apparent in the record can be quickly thrashed out. Having post judgment motions for contempt initially addressed at such a motion calendar hearing also makes some sense. Doing so enables the judge to set a date for an evidentiary hearing and also to make provision for any more formal notices on which a contempt finding must necessarily be predicated.

In this instance, we think the mother’s attempt to place the burden on the father to show in a transcript the absence of consent, or that he objected, is not well taken. Because neither the trial judge nor the mother contends that any evidence was actually adduced, or that the father did in fact consent to a consideration of the matter, or even that he failed to object thereto, we see no necessity for a transcript to resolve whether he might have done something that no one suggests he actually did. The record papers sufficiently establish that before the hearing neither party sought a reconsideration of the visitation order or anything related to it. Neither does anything in any of the papers we have been provided suggest or hint at any emergency requiring such extraordinary procedures by a trial judge.

We therefore reverse the order in question and remand for such further action as may be warranted by the filings of the parties.

STONE and GROSS, JJ., concur.


author: PER CURIAM.

text:
    Lisa B. WALKER, Appellant, v. John SEGRO, Appellee.
    No. 4D02-4627.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.
    No appearance for appellee.
   PER CURIAM.

John Segro (“Segro”) was declared to be the father of appellant Lisa Walker’s (<fWalker”) child in a 1996 judgment of paternity. He was denied any visitation because of criminal problems, some of which involved drug addiction.

In response to a petition to adopt filed by the child’s stepfather, Segro scheduled a hearing on his petition to modify parental responsibility and establish visitation for November 8, 2002. The hearing was cancelled by the judge due to unavailability. On November 14, Segro’s counsel rescheduled the hearing for 2:30 p.m. on November 18, and faxed the only notice of this hearing to Walker’s counsel at 2:26 p.m. Walker’s counsel faxed a response to Segro’s counsel the following day objecting to the short notice, citing her inability to contact Walker and preexisting family obligations on the afternoon of the hearing. The judge was aware of this objection. At hearing, the judge entered a temporary' visitation order. Walker moved to set aside the order, the motion was denied, and this appeal ensued.

Under Florida Rule of Civil Procedure 1.090(d), which applies to family law matters through Florida Family Law Rule of Procedure 12.090, notice of a hearing on a motion “shall be served a reasonable time before the time specified for the hearing.” There is no clearly delineated definition of reasonable time, but the notice requirement envisions at a minimum, actual notice and time to prepare. Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). The Harreld court considered the four days notice given by mail and fax to the husband prior to a final dissolution hearing, and concluded that such was not reasonable notice. Id. The court held that two working days’ notice, notice on Friday for a Tuesday hearing, was insufficient prior to such an important hearing, especially considering that the husband did not reside in Florida. Id.

The present situation is similar to that in Harreld. Here, Walker also received four days notice of the permanent visitation hearing by fax, notice of which also spanned a weekend from Thursday to Monday. Walker’s counsel would also have had at best two working days to prepare for the important hearing. Additionally, the situation was similarly complicated by the fact that counsel was having difficulty contacting Walker to notify her of the hearing and would be forced to rearrange her busy schedule on short notice to accommodate the hearing. Therefore, we hold that the notice given by Segro to Walker was insufficient under the standard set by Rule 1.090(d).

Even if the notice considered alone was not insufficient, one key difference exists between Harreld and the present case— the notice was not properly served on Walker in the first instance. Florida Rule of Civil Procedure 1.080(a) states that service is required for every “other paper” filed in an action. The term “other paper” encompasses notices of motion hearings. HenRY P. Trawicic, JR., Florida Practice and Procedure § 9-7 (1999 ed.). Therefore, Rule 1.080(b) applied to Segro’s service of the notice of hearing on Walker. This rule explicitly requires that when a paper is served by facsimile, “a copy shall also be served by any other method permitted by this rule,” including mail, as in Harreld, and hand delivery. There is no evidence in the record that Segro’s attorney served any other form of notice of the hearing, and consequently, Segro violated this rule.

In sum, the temporary visitation order is reversed and remanded due to insufficient and improperly served notice of the motion hearing that violated Walker’s due process rights. Quay Dev., Inc. v. Elegante Bldg. Corp., 392 So.2d 901, 903 (Fla.1981) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GUNTHER, KLEIN and TAYLOR, JJ., concur.

      . The hearing can be characterized as important because it focused on the hotly contested issue of visitation between the parties. At the time of the hearing, Segro had no visitation rights.


text:
    Leslie HANSEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1446.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Leslie Hansen, Pembroke Pines, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). We herein certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    STATE of Florida, Petitioner, v. M.R.T., A Child, Respondent.
    No. 5D03-1098.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The state petitions for a writ of certiora-ri to review the trial court’s order terminating probation. We grant the petition and quash the order terminating probation, because the trial court was without jurisdiction to modify the defendant’s sentence of probation during the pendency of an appeal.

M.R.T., a juvenile, was found guilty of battery, adjudicated delinquent, and placed on probation for one year. M.R.T. filed a timely notice of appeal on October 23, 2002. On March 6, 2003, while M.R.T.’s appeal was pending, the trial court granted M.R.T.’s motion to terminate probation.

The authority conferred upon the trial court to terminate probation is a matter of grace. § 948.05, Fla. Stat. (2002). Thus, the court’s decision is not appealable. Burgos v. State, 765 So.2d 967 (Fla. 4th DCA 2000). See also, Thompson v. State, 840 So.2d 352 (Fla. 5th DCA 2003). However, where the court is without jurisdiction to exercise that discretion, review by certiorari is appropriate. See, State v. Swett, 772 So.2d 48 (Fla. 5th DCA 2000); State v. Rhodes, 554 So.2d 1229 (Fla. 2d DCA 1990). The filing of M.R.T.’s notice of appeal divested the trial court of jurisdiction to terminate probation. Britt v. State, 687 So.2d 930 (Fla. 5th DCA 1997); Dailey v. State, 575 So.2d 237 (Fla. 2d DCA 1991).

We grant the writ, quash the order terminating probation, and remand with instructions that the trial court reinstate the original sentence.

PETITION GRANTED; ORDER QUASHED.

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


author: PLEUS, J.

text:
    Robert ROSATI, Appellant, v. Nancy B. VAILLANCOURT, et al., Appellees.
    No. 5D02-2961.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.

      Bruce A. Hanna and Robert Taylor Bowling of Cobb & Cole, Daytona Beach, for Appellant.

      Eric S. Zufelt and Scot E. Samis of Abbey, Adams, Byelick, et al, St. Peters-burg, for Appellee, Anthony Rosati.
    No Appearance for Appellee, Nancy B. Vaillancourt.
   PLEUS, J.

Robert Rosati (Robert) appeals from a final order denying his motion for determination of entitlement to attorney’s fees and costs.

Robert rented a car from Alamo. While the Alamo car was being operated by a permissive user, Robert’s brother Anthony, it collided with a car operated by Nancy Vaillancourt.

Vaillancourt sued Anthony, Robert and Alamo for her injuries. Vaillancourt failed to obtain service of process on Robert and the court dismissed the action against Robert. However, Vaillancourt’s action against Anthony and Alamo proceeded, and Alamo brought a third-party complaint against Robert and a crossclaim against Anthony, seeking indemnification from both. Anthony filed a crossclaim against Alamo seeking indemnification. Robert filed a crossclaim against Anthony seeking indemnification, including costs and attorney’s fees.

Vaillancourt settled with Alamo and thereafter voluntarily dismissed with prejudice her complaint as to Alamo. Alamo voluntarily dismissed with prejudice its third-party complaint against Robert and its crossclaim against Anthony. Anthony voluntarily dismissed with prejudice his crossclaim against Alamo. However, Robert did not dismiss his crossclaim for indemnification against Anthony.

Robert filed a motion for determination of entitlement to attorney’s fees and costs based upon a common law theory of indemnification. Robert claimed entitlement to indemnification from Anthony for attorney’s fees and costs incurred in his defense. The trial court denied Robert’s motion on the ground that Robert had not expended any funds for attorney’s fees and costs. The trial court further found that Robert’s insurance carrier, Arbella, expended the funds for attorney’s fees and costs but that Arbella, pursuant to the non-joinder statute, section 627.4136, Florida Statutes (2002), was not a'party to the lawsuit.

Robert asserts that the non-joinder statute did not preclude his claim for recovery of attorney’s fees and costs against Anthony based on principles of common law indemnification. Section 627.4136(1), Florida Statutes, provides the general prohibition against joining a liability insurer as a party:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

The operative provision applicable to the instant case, which was engrafted upon the statute in 1992, is found at subsection (2):

Notwithstanding subsection (1), any insurer who pays any taxable costs, or attorney’s fees which would be recoverable by the insured but for the fact that such costs, or fees were paid by the insurer shall be considered a party for the purpose of recovering such fees or costs.

Under subsection (2), an insurer who pays taxable costs or attorney’s fees which would be recoverable by the insured had the insured paid them, is considered a party for the purpose of recovering such fees or costs. The initial inquiry then concerns whether the sums expended by Arbella for costs and attorney’s fees in defense of its insured Robert would have been recoverable by Robert had he himself actually paid such sums. This requires consideration of principles of common law indemnity.

Indemnity is a right which inures to one who discharges a duty owed by him but which, as between himself and another, should have been discharged by the other. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). To succeed on a claim of common law indemnity, a party must show that it was wholly without fault and that its liability was purely vicarious, derivative or technical. Id.; Doles v. Koden International, Inc., 779 So.2d 609 (Fla. 5th DCA 2001).

Robert asserts that as lessee of the motor vehicle, his liability was purely derivative or vicarious. The dangerous instrumentality doctrine imposes liability on the part of owners and lessees for the negligence of operators of motor vehicles. Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959). Because their liability is purely vicarious, both Alamo and Robert would be entitled to common law indemnity from the actively negligent tortfeasor. Allstate Insurance Co. v. Value Rent-A-Car, 463 So.2d 320 (Fla. 5th DCA 1985). See also McDowell v. Rodriguez, 822 So.2d 14 (Fla. 5th DCA 2002), rev. denied, Case No. 02-1560, 842 So.2d 844 (Fla. Mar. 3, 2003); Budget Rent-A-Car Systems, Inc. v. State Farm Mutual Automobile Ins. Co., 727 So.2d 287 (Fla. 2d DCA 1999). This right to indemnification includes not only the amount of any judgment entered against the indemnitee, but also recovery of reasonable attorney’s fees and costs incurred as a result of the lawsuit brought against the indemnitee due to the indemnitor’s active negligence. American and Foreign Insurance Co. v. Avis Rent-A-Car System, Inc., 401 So.2d 855 (Fla. 1st DCA 1981); Insurance Company of North America v. King, 340 So.2d 1175 (Fla. 4th DCA 1976). See also Continental Casualty Co. v. City of South Daytona, 807 So.2d 91 (Fla. 5th DCA 2002).

Anthony does not quarrel with these general principles of indemnity law but rather argues that he was not the proper target of Robert’s request for recovery of attorney’s fees and costs. Anthony’s position is predicated on a ruling by the trial court that Alamo’s rental contract failed to shift primary liability under Florida’s Financial Responsibility Act to Robert. Under section 627.7263, Florida Statutes, the lessor’s liability insurance is primary unless the rental agreement validly shifts primary responsibility to the lessee. Alamo’s rental agreement was deemed not to satisfy the requirements of the statute so that Alamo had to provide primary liability insurance coverage (the first $10,000). Anthony asserts that since Alamo did not validly shift primary liability coverage to Robert, Alamo was responsible for the duty of defense of Vaillaneourt’s claim, as well as for Vaillaneourt’s claim up to $10,000 (which the damages in this case did not exceed). According to Anthony, if Robert incurred attorney’s fees and costs for his defense, his claim for recovery- is against Alamo and not him. Anthony adds:

Common law indemnity . imposes ultimate liability and duty to defend on an active tortfeasor. However, that doctrine can not apply when it would operate to frustrate the specific purpose or statute which imposes primary liability and duty to defend on a specific party. That is exactly what Fla. Stat. § 627.7263 does. To allow common law indemnity to trump the statute and shift the duty to defend the case with respect to the first $10,000.00 to Anthony, rather than Alamo, renders the statute a nullity. The undisputed facts are that this case never exceeded that initial threshold and has now been settled with no consequence to [Robert], The duty to pay the damages, as well [as] the complete duty to defend, rested with Alamo by the specific language of the statute.

Where properly invoked, section 627.7263 provides that the lessee and not the lessor is responsible for providing primary liability insurance on a leased vehicle and that the lessee’s insurer will defend its insured in any suit against the lessee. Allstate Insurance Co. v. RJT Enterprises, Inc., 692 So.2d 142 (Fla.1997); State Farm Mutual Automobile Insurance Co. v. InterAmerican Car Rental, Inc., 707 So.2d 788 (Fla. 3d DCA 1998). Where a lessor fails to properly invoke the provisions of section 627.7263, the lessor and its insurer (if any) remain primarily responsible for damages caused as a result of negligence in the use of the vehicle. Gray v. Major Rent-A-Car, 563 So.2d 176 (Fla. 5th DCA 1990); Guemes v. Biscayne Auto Rentals, Inc., 414 So.2d 216 (Fla. 3d DCA 1982). In Guemes, the court added that where there is defective compliance by the lessor with the statute, “The lessee necessarily contracted for [the lessor] to provide liability insurance coverage as part of the rental agreement.” 414 So.2d at 218. This statement in Guemes is too expansive and should read instead that “the lessee necessarily contracted for [the lessor] to provide primary coverage,” since the lessor could elect to be a self-insurer and provide liability coverage for the first $10,000 of any damage recovery. See Budget Rent A Car Systems v. Taylor, 626 So.2d 976 (Fla. 4th DCA 1993).

This is more than just a semantic difference, because whether the lessor has a policy of insurance which provides coverage for the lessee may be determinative of the crucial question of whether the lessee was owed a duty of defense in the litigation. The Taylor decision illustrates this point well. That case involved the issue of whether Budget, which validly elected to be a self-insurer for its renters in the amount of $10,000, owed its lessee, Taylor, a continuing duty of defense in the tort action arising out of use of the leased automobile after Budget’s coverage limit was exhausted. The Fourth District ruled that Budget did not, and stated that Budget actually owed Taylor no duty of defense.. The court explained that Budget was not an insurance company under the Florida Insurance Code nor was the lease an insurance policy under the code. The court then explained:

All of the authorities we have found subscribe to the proposition that a duty to defend is purely contractual and if there is no contract to defend, no such duty exists. A sampling of said authorities is 14 Couch on Insurance 2d § 51.35 (1982); 7c Appleman, Insurance Law & Practice § 4682 (1979); All-Star Insurance Corp. v. Steel Bar, Inc., 324 F.Supp. 160 (N.D.Ind.1971); Jones v. Southern Marine & Aviation Underwriters, Inc., 888 F.2d 358 (5th Cir. 1989); Westchester Fire Ins. Co. v. Rhoades, 405 S.W.2d 812 (Tex.Ct.App.1966). In the ordinary insurance contract, the duty to defend is found in the provisions of the insurance policy. [Diversified Svcs., Inc. v. Avila, 606 So.2d 364 (Fla.1992).] However, in this case, we are not dealing with an insurer or an insurance policy, but rather a self-insurer-lessor and a rental contract between the parties. As the court said in Lipof [v. Florida Power & Light Co., 596 So.2d 1005 (Fla.1992) ] providing compliance [with the financial responsibility law] through self-insurance is not the same as issuing a motor vehicle liability policy; therefore, section 627.727 is not applicable, nor does Budget’s status as a self-insurer make it an “insurer” under the Florida Insurance Code.

626 So.2d at 978 (footnote omitted).

The supreme court has subsequently clarified that “in the absence of an express statutory or contractual duty to defend, there is no such duty.” RJT, 692 So.2d at 144.

The Taylor court reasoned that if no contractual duty to defend was contained in the parties’ lease agreement, then no duty to defend existed. The court added that Budget owed Taylor no duty to continue the defense it provided and that Taylor had, in fact, “received more than he was entitled to, i.e., a free defense of his liability to the extent of the coverage he purchased.” Taylor, 626 So.2d at 979.

In the instant case, it appears Alamo was a self-insurer for the first $10,000 of liability and accordingly, undertook no obligation to defend Robert. Further, Alamo brought a third party action against Robert seeking indemnification. Accordingly, Robert was forced to incur defense costs for which he would be entitled to indemnification from the actively negligent tortfea-sor.

The remaining question concerns whether subsection 627.4136(2) of the nonjoinder statute contemplates that the insurer or the insured shall recover a judgment for such amounts.

Anthony argues that the plain language of subsection 627.4136(2) allows the insurer and not the insured to move for and obtain a judgment for those taxable costs and attorney’s fees which the insurer paid on behalf of its insured:

(2) Notwithstanding subsection (1), any insurer who pays any taxable costs or attorney’s fees which would be recoverable by the insured but for the fact that such costs or fees were paid by the insurer shall be considered a party for the purpose of recovering such fees or costs....

(Emphasis added).

Robert counters that the subsection permits recovery of attorney’s fees and costs without the need for the insurer to become a party. Robert asserts that by use of the word “considered,” the legislature intended that the insurer be deemed a party for the purpose of recovery of fees and costs, and that to require an insurer such as Arbella to become a party in order for it to recover such sums is superfluous.

The subsection, in providing that “the insurer shall be considered a party for the purpose of’ recovery of attorney’s fees and costs, would seem to amount to a statutory-recognition that as to such sums, the insurer is the real party in interest, able to prosecute such claims in its own name. Consideration of Florida Rule of Civil Procedure 1.210(a) assists in making this point:

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought....

Subsection 627.4136(2), rather than authorizing the insured to sue for the use and benefit of the real party in interest, the insurer, deems the insurer a party for the purpose of recovery of such fees and costs. Accordingly, it was Arbella, the insurer, which was statutorily entitled to move for a judgment for the attorney’s fees and costs which it paid on behalf of Robert. The trial court’s ruling that Robert could not recover such sums and that Arbella was a non-party to the action pursuant to the non-joinder statute effectively precluded recovery of such sums despite subsection (2) of the statute.

We reject Anthony’s contention that Alamo’s settlement of the underlying tort claim bars Robert’s claim for indemnification. Where a settlement occurs, a party may nevertheless pursue an indemnity claim against the actively negligent party. See GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755 (11th Cir. 1987) (construing Florida law); Maseda v. Honda Motor Co., 861 F.2d 1248 (11th Cir.1988) (construing Florida law). We find it difficult to envision that, given the realities of this case, extensive litigation would be necessary as to the issue of Anthony’s active negligence. Nevertheless, theoretically, Anthony may insist that Arbella adduce proof that Anthony was actively negligent. See generally Maple Chair Co. v. W.S. Badcock Corp., 385 So.2d 1036 (Fla. 1st DCA 1980).

We affirm the order to the extent that it precludes Robert from recovery of such sums but reverse that portion of the order adjudicating that Arbella could not obtain a judgment for such sums because of the non-joinder statute. We remand to permit Arbella to move for an award of fees and costs pursuant to section 627.4136(2).

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

THOMPSON and TORPY, JJ., concur.

      . Attorney's fees incurred in establishing the right to indemnification, however, are not recoverable. Continental Casualty, 807 So.2d at 93.

      . Under section 627.7263, the lessor’s liability insurance is primary unless the rental agreement shifts primary responsibility to the lessee by a notice in at least ten point type on the face of the rental agreement. The “shifting” language appeared on page 11 of Alamo’s master agreement and the trial court found this notice was not on the face of the agreement.

      . This shifting of responsibility for the duty to indemnify to the extent of the financial responsibility requirements of law to the lessee’s insurer does not encompass a duty on the part of the lessee's insurance carrier to defend the lessor. RJT at 145 ("section 627.7263 does not require lessees to provide a defense to lessors after agreeing to assume responsibility for ‘primary coverage’ ”).

      . Section 324.171, Florida Statutes, governs eligibility of a lessor such as Alamo to qualify as a self-insurer.


author: GRIFFIN, J.

text:
    COLLECTORS EDITIONS, INC., Appellant, v. Robert S. PEAK, Appellee.
    No. 5D01-2602.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.

      R. Steven Rawls and Lisa A. Oonk, of Butler Burnette Pappas, LLP, Tampa, for Appellant.
    Michael J. Furbush, of Gronek & La-tham, LLP, Orlando, for Appellee.
   GRIFFIN, J.

This is the appeal of a final order granting a motion for enforcement of a settlement agreement. We reverse.

Robert Peak [“Peak”] and Collectors Editions, Inc. [“Collectors”] entered into a contract for the production of sculpture by Peak to be sold and marketed by Collectors. A dispute arose and Peak filed suit against Collectors. Collectors filed a counterclaim against Peak. Peak and Collectors then entered into discussions regarding a settlement.

On April 21, 2001, Collectors sent a letter to Peak outlining the terms of the agreement reached by the parties. However, the letter also provided that “all parties agree to draft and execute” a “mutually agreeable” settlement agreement and release “including among other things, confidentiality and non-disparagement provisions .... ” As part of the agreement, Collectors was to return various of Peak’s sculptures, while retaining the right to sell its remaining inventory and the right to complete and sell a specified tirage of three statues pursuant to a Power of Attorney.

On May 22, 2001, Collectors sent a proposed settlement agreement and release to Peak. The terms in paragraphs 8.1 through 3.11 of the proposed agreement are substantially the same as the terms outlined in the April 21 letter. Additionally, paragraph 3.12 provided:

To enable Collectors to market and sell the inventory of Peak sculpture it retains and the remainder of the tirages of Dolce Vita, Before the Dawn and Iris Donna granted by this Agreement, Peak grants Collectors, and Collectors’ gallery clients, the right to use his name, likeness and signature, and images of those sculptures previously published by Collectors, to sell and market those sculptures which remain in inventory and which are created pursuant to this Agreement.

The agreement also included a paragraph 3.13 which allows Collectors to assign its rights subject to Peak’s permission.

On the same day, Peak sent via facsimile and email a redline version of his changes to the settlement agreement and release. Peak changed paragraph 3.12 to read:

The copyrights to Dolce Vita, Before the Dawn, and Iris Donna shall be the property of Peak at all times, subject only to the limited license granted to Collectors.

Peak also modified paragraph 3.13 to state Collectors may not assign its rights without Peak’s written consent. Finally, Peak added paragraph 10 to provide for the awarding of attorneys’ fees and costs to the prevailing party.

On May 24, 2001, Collectors responded to the proposed changes and additions to the settlement agreement and release, stating that the only change posing a problem to Collectors was paragraph 3.12:

In order [for] Collectors to sell any of the' artwork to which it retains a license it will need to advertise that work[.] Refusing to permit some sort of use of Mr. Peak’s name and likeness in connection with the marketing of the sculptures renders the license virtually worthless and that certainly was not contemplated by either party to this negotiation.

Peak responded by filing a motion to enforce the “settlement agreement.” The trial court treated the letter as a binding agreement and concluded that since Collectors had failed to include in the letter any details describing Collectors’ retained right to “sell” its remaining inventory, it could not be interpreted to include any right to market the inventory using the identity of the artist.

Given that the letter confirming the parties’ settlement expressly contemplated the drafting and execution of a “mutually agreeable” document that would contain terms not included in the letter, given the extreme disparity in the parties’ respective positions during the drafting of the settlement agreement concerning the meaning of the term “sell” and the centrality of this provision to the parties’ agreement, we conclude that no legally binding agreement had yet been reached between the parties. The trial court erred in ordering enforcement of the letter as a binding contract. The parties failed to agree on an essential term and there was no agreement to enforce.

REVERSED and REMANDED.

SHARP, W., and ORFINGER, JJ., concur.


author: SAWAYA, C.J.

text:
    Jeffrey Lee HAWK, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3734.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Jeffrey Hawk appeals the order denying his motion to suppress, which order was rendered on the ground that Hawk lacks standing to challenge the seizure of the evidence from the hotel room occupied by Hawk and his female friend, Ms. Maturo. On appeal, Hawk asserts that the court erred in determining that because Ms. Ma-turo had the key, had signed for the room and the room was in her name, Hawk had no standing to contest the seizure of cocaine from the room. The State’s position is that the appeal should be dismissed because Hawk, who plead nolo contendere to the charge of possession of cocaine, failed to reserve his right to appeal and failed to obtain a finding by the court that the order below was dispositive. Because Hawk failed to reserve his right to appeal, we must dismiss Hawk’s appeal for lack of jurisdiction.

THE FACTS

While investigating an unrelated disturbance call at a hotel, Deputy Diaz’s attention was drawn to Hawk and Ms. Maturo, who were outside of their room, arguing in loud voices. By the time he reached them, the couple had gone back into their room. Deputy Diaz went to the door and knocked. Hearing the knock, Hawk went to the door, saw an officer standing there and “let the door go.” Deputy Diaz stopped the door from closing completely and asked Hawk and Ms. Maturo to step out of the room. In response to the deputy’s query, Ms. Maturo told the deputy the room was in her name. (She explained at the suppression hearing that Hawk had paid for the room, but the room was in her name because Hawk did not have any identification on him.). A consensual search of Hawk and Ms. Maturo uncovered nothing of an illicit nature. Deputy Diaz then asked Ms. Maturo if anyone else was in the room and whether he could search the room. Ms. Maturo said, “You can look, there’s nobody else here.” She did not, however, tell him that he could not enter the room. Hawk denied the deputy’s request, but the deputy ignored him. The cocaine was located inside the room.

At the close of the defense testimony at Hawk’s suppression hearing, the State asserted that the defense had the burden of establishing standing and had failed to do so. It contended that because the room was in Ms. Maturo’s name and she had a key, only Ms. Maturo had an expectation of privacy. Defense counsel argued that the fact that the room was in Ms. Maturo’s name was not determinative. The court ruled, “I think it’s clear that she had the key, she signed for the room, it was in her name, therefore, the Defendant has no standing and the hearing is concluded.” The trial court then entered the written order denying the motion to suppress.

Hawk subsequently decided to plead nolo contendere to the charge of possession of cocaine. Hawk’s attorney announced at the plea hearing:

Your Honor, at this time Mr. Hawk will be pleading no contest to possession of cocaine. Reason he’s pleading no contest, we had a suppression hearing last week, and at that time, of course, you denied our motion. It would have been dispositive, had the motion been granted, so we’re asking the Court to make a finding that it was dispositive.

Defense counsel made no claim to preserving Hawk’s right to appeal the denial of the suppression motion, nor did counsel obtain any ruling that the order on the suppression motion was dispositive.

Hawk entered the plea in exchange for a recommended 51-week jail sentence. The plea form does not contain a reservation of the right to appeal the order on Hawk’s suppression motion.

NECESSITY OF RESERVATION OF RIGHT TO APPEAL

Section 924.06(3), Florida Statutes (2002) and Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) clearly provide that a criminal defendant has no' right to appeal following his or her entry of a nolo contendere plea in the absence of a reservation of the right to appeal an order which is legally dispositive. Moreover, the courts, including this court, have consistently held that absent an express reservation of the right to appeal at the time a plea is entered, the appeal must be dismissed. See, e.g., State v. Carr, 438 So.2d 826 (Fla.1983); Ward v. State, 585 So.2d 497 (Fla. 1st DCA 1991); Johnson v. State, 449 So.2d 988 (Fla. 1st DCA 1984); Feagin v. State, 438 So.2d 1082 (Fla. 1st DCA 1983); Chapin v. State, 427 So.2d 812 (Fla. 5th DCA 1983); see also McNamara v. State, 357 So.2d 410 (Fla.1978). Herein lies the problem with Hawk’s attempted appeal: Hawk made no such reservation. Specifically, the plea form does not contain any reservation of Hawk’s right to appeal and his oral plea was entered without such a reservation. Accordingly, Hawk’s nolo contendere plea was entered without any reservation of his right to appeal, requiring that this court dismiss Hawk’s appeal for lack of jurisdiction.

THE “DISPOSITIVENESS” REQUIREMENT

Not. only did Hawk fail to reserve his right to appeal, but also Hawk faded to obtain a determination that the ruling on his suppression motion was dispositive. See State v. Carr, 438 So.2d 826, 828 (Fla.1983) (reiterating that “an issue is preserved for appeal on a nolo plea only if it is dispositive of the case.”); Teague v. State, 728 So.2d 1203, 1203 (Fla. 5th DCA 1999) (“When a defendant enters a plea of nolo contendere, absent a showing that the issue challenged on appeal is dispositive of the underlying case, this court lacks jurisdiction to review the issue.”) (citing Benelhocine v. State, 717 So.2d 103 (Fla. 2d DCA 1998); White v. State, 661 So.2d 40 (Fla. 2d DCA 1995)); see also Jones v. State, 806 So.2d 590, 592 (Fla. 5th DCA 2002) (“An issue is legally dispositive only if it is clear that regardless of whether the appellate court affirms or reverses the trial court’s decision, there will be no trial.”) (citations omitted).

In the instant case, the State did not stipulate the suppression order was dispos-itive, and the trial court made no such finding. Regardless, had Hawk reserved his right to appeal, under the facts of this case this court would not have held the lack of a finding of dispositiveness against Hawk. This is so because Hawk’s attorney expressly asked for a finding of disposi-tiveness and it was the trial court’s duty to thereafter rule. See Ramsey v. State, 766 So.2d 397, 397 n. 1 (Fla. 2d DCA 2000) (“It is the trial court’s duty to announce whether preserved issues are dispositive.”) (citing Rust v. State, 742 So.2d 471 (Fla. 2d DCA 1999); Moore v. State, 647 So.2d 326 (Fla. 2d DCA 1994)).

Furthermore, Brown v. State, 376 So.2d 382 (Fla.1979), has been interpreted as holding that in cases where the defendant is charged only with possession, such as in the instant case, an order denying the suppression of the contraband will be presumptively dispositive for purposes of appeal. See Ruiz v. State, 416 So.2d 32, 33 (Fla. 5th DCA 1982) (citing Sommers v. State, 404 So.2d 366, 369 n. 2 (Fla. 2d DCA 1981)); see also Howard v. State, 515 So.2d 346 (Fla. 1st DCA 1987) (holding that a trial court’s denial of a motion to suppress in a drug case is dispositive where the state has no other evidence with which it can proceed to trial against the defendant). Thus, the lack of an express finding of dispositiveness in this case would not have been fatal. As it stands, however, Hawk’s failure to reserve his right to appeal is determinative of this court’s jurisdiction.

CONCLUSION

Hawk’s failure to enter his plea with a reservation of his right to appeal the ruling on his suppression motion is insurmountable. This court lacks jurisdiction and therefore must dismiss the appeal.

DISMISSED.

SHARP, W. and PALMER, JJ., concur.

      . "A defendant who moves to suppress evidence on the ground that it was seized in violation of the Fourth Amendment has the burden of establishing that he or she has standing to object to the seizure.” State v. Bostick, 745 So.2d 496, 497 (Fla. 1st DCA 1999) (citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Singleton, 595 So.2d 44 (Fla.1992)). The issue of standing is not to be decided separately from the substantive issues, however. Dean v. State, 478 So.2d 38, 41 (Fla.1985) ("We hold that the determination of whether the proponent of a motion to suppress is entitled to contest the legality of a search and seizure must take into consideration the substantive fourth amendment issues as well as the concept of standing.”); Sparkman v. State, 482 So.2d 421 (Fla. 5th DCA 1985) (reversing order denying defendant’s suppression motion because the trial court had decided the motion solely on the issue of defendant’s standing); see also Andrews v. State, 536 So.2d 1108 (Fla. 4th DCA 1988) (reversing for a proper suppression hearing where trial court had merely determined that defendant lacked standing to challenge evidence without also making inquiry into substantive Fourth Amendment issues), review denied, 544 So.2d 200 (Fla.1989).

      . Section 924.06(3) provides, "A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo conten-dere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.”

      . Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) likewise states:
      A. Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
      (i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo conten-dere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.

      . We note that the dismissal of Hawk's appeal does not preclude Hawk from raising an ineffective assistance of counsel claim.


author: GRIFFIN, J. SHARP, W., J.,

text:
    Eric GOEBEL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-4040.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Eric Goebel, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner, Eric Goebel [“Goebel”], seeks a writ of habeas corpus for a belated appeal, claiming ineffective assistance of appellate counsel in an interlocutory appeal filed by the State.

Goebel was charged with attempted robbery. His trial counsel filed a motion to suppress evidence seized as a result of the stop of Goebel’s vehicle. The trial court granted the motion and the State filed a notice of appeal on July 12, 2001. A copy of the notice was served on Goebel and his trial counsel. However, no motions were filed by Goebel’s counsel, nor was an answer brief filed. On January 25, 2002, this court reversed the trial court’s order, finding that there was reasonable suspicion justifying the stop of the vehicle. See State v. Goebel, 804 So.2d 1276 (Fla. 5th DCA 2002). No motion for rehearing was filed by Goebel’s counsel.

After the case was remanded, the State filed a second information, charging Goe-bel with attempted burglary of a structure or conveyance and possession of burglary tools. Goebel pled guilty to the charges in both cases, in exchange for concurrent sentences of five years as a Prison Releasee Reoffender. On appeal, the public defender’s office filed an Anders brief on behalf of Goebel and this court per curiam, affirmed without opinion on December 16, 2002, in Case No. 5D02-1927.

In his habeas corpus petition, Goebel alleges that on October 8, 2001, Goebel’s mother paid his trial attorney, Richard Nichols, $1,000, “for the purpose of taking depositions in preparation of appeal,” but no depositions were taken. In addition, Goebel claims that on October 18, 2001, Richard Nichols collected another $1,500 from Goebel’s mother to write an “opposition brief.” As stated previously, no answer brief was filed. The due date of the answer brief was October 15, 2001.

Goebel seeks a belated appeal of the suppression order, arguing that his appellate counsel was ineffective for failing to file an answer brief. He claims that he had an absolute right to effective assistance of appellate counsel in the interlocutory appeal and that his counsel’s abandonment of his case constitutes ineffective assistance of counsel “per se,” without any requirement to show prejudice. The State, in its response, says that it cannot concede or dispute Goebel’s allegation that he paid counsel to file a brief in the interlocutory appeal because Richard Nichols passed away on October 14, 2002. The State contends that it is not necessary to determine whether or not appellate counsel’s performance was deficient because Goebel cannot show prejudice, as “there is no argument which could have been made [by counsel in the interlocutory appeal] which would have, in this instance, resulted in an affirmance of the trial court’s suppression order.”

Goebel relies on U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which was decided on the same day as Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the premier case on ineffective assistance. In Strickland, the United States Supreme Court held that a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. However, in Cronic, the Court acknowledged that:

There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of the Sixth Amendment rights that makes the adversary process itself presumptively unreliable.

In such circumstances, the Court in Cronic held that no specific showing of prejudice is required. 466 U.S. at 658-659,104 S.Ct. 2039.

Goebel argues that counsel’s failure to file an answer brief in the interlocutory appeal deprived him of his constitutional right to counsel at a critical stage of the criminal proceeding and therefore the presumption of prejudice under Cronic applies. He relies on United States ex rel. Thomas v. O’Leary, 856 F.2d 1011 (7th Cir.1988), in which the court applied the presumption of prejudice in Cronic where appellate counsel failed to file an opposition brief in the appeal of an order granting suppression. The court in Thomas expressly found that the interlocutory appeal was a critical stage of the proceedings. We agree, but that does not take us far in attempting to determine whether Goebel is entitled to relief. An important preliminary issue is whether the subsequent guilty plea is fatal to his claim.

We conclude that Goebel may be entitled to a belated appeal, but a necessary first step is with the withdrawal of his guilty plea. Otherwise, even if a belated appeal of the interlocutory order were granted and the suppression order reversed, Goebel would still stand convicted.

In essence, Goebel’s claim must be that his plea was involuntary, because he was not aware when he entered the plea that his right to counsel in the interlocutory appeal had been violated. However, he has not alleged in the trial court that his plea was involuntary or that he was unaware of the relevant facts when he entered his plea. If Goebel does not elect to have his plea set aside in the trial court, he will not be entitled to a belated appeal.

We elect to relinquish jurisdiction to the trial court for a period of thirty days during which time any plea withdrawal motion can be ruled upon. If the State controverts the issue of counsel’s ineffective representation, the trial court should make findings. If the plea is withdrawn and ineffectiveness is established, we will permit Goebel tó file a belated answer brief and we will reconsider the suppression appeal on the merits.

JURISDICTION RELINQUISHED.

SAWAYA, C.J., concurs.

SHARP, W., J., concurs in part and dissents in part, with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

I agree this cause should be remanded to the trial court in order to permit Goebel to move to withdraw his plea. However, I disagree that the trial court, after the plea has been withdrawn, should be required to make findings that Goebel’s counsel was incompetent, or that his incompetence was prejudicial to the interlocutory appeal.

In my view, the complete failure of Goe-bel’s attorney to represent him in the state’s interlocutory appeal of the suppression ruling in Goebel’s favor by not filing a brief or motion or informing Goebel about the proceeding was tantamount to absence of counsel at a critical stage in the criminal case. Thus, it was per se incompetent and prejudicial.

The only finding I think the trial court should be asked to make on remand if Goebel moves to withdraw his guilty plea in this case, is that his entry of a guilty plea was related to the loss of the interlocutory appeal and that it was not due to some other reason or cause.

      .In Fields v. Bagley, 275 F.3d 478 (6th Cir. 2001), the court granted a belated appeal of a suppression order, even though the defendant had entered a no contest plea after the order granting suppression was reversed on appeal. The court, adopting the lower court’s findings, held that the defendant's due process rights and right to counsel were violated when defendant’s counsel failed to notify defendant that the State was appealing the order granting suppression and failed to represent defendant during the interlocutory appeal. The Fields court did not expressly address the effect, of defendant’s subsequent entry of a no contest plea.

      . See Krawczuk v. State, 634 So.2d 1070 (Fla.1994); Williams v. State, 316 So.2d 267 (Fla.1975).

      . The state does not dispute these facts.

      . See U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); U.S. ex rel Thomas v. O'Leary, 856 F.2d 1011 (7th Cir.1988); Fields v. Bagley, 275 F.3d 478 (6th Cir.2001).

      . See Burnside v. State, 720 So.2d 269 (Fla. 5th DCA 1998); Johnson v. State, 719 So.2d 986 (Fla. 5th DCA 1998).


text:
    DEPARTMENT OF SAFETY & MOTOR VEHICLES, Petitioner, v. Brenda L. MARSHALL, Respondent.
    No. 5D03-296.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.

      Enoch J. Whitney, General Counsel, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Petitioner.
    John J. Bonaecorsy, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner, the Department of Highway Safety and Motor Vehicles [“Department”], seeks certiorari review of a circuit court decision which quashed an administrative final order of driver’s license suspension. We grant the writ.

In the final order of license suspension, the hearing officer found that on October 15, 2001, at 3:33 a.m., Corporal Dietrich of the South Daytona Police Department observed Brenda L. Marshall [“Marshall”] driving northbound on Ridgewood Avenue. Corporal Dietrich observed Marshall weaving in her lane and across the center lane divider. As Corporal Dietrich was already involved in another DUI investigation, he called fellow officer Gary MacDo-well to stop' Marshall. Officer MacDowell stopped Marshall and upon contact detected a strong odor of alcohol and noticed that her eyes were very watery. Marshall told Officer MacDowell that she normally does not drink, but that night she drank a beer. Marshall testified that she was driving because her passenger was too intoxicated to drive.

Marshall agreed to perform field sobriety exercises. On the walk and turn exercise, she lost her balance during instructions, did not walk heel to toe and turned incorrectly. On the one-leg stand, Marshall used her arms for balance and put her foot down. Marshall did not follow instructions on the finger to nose exercise, and missed the tip of her nose.

Marshall was arrested for DUI. Marshall was also given a citation for careless driving. The implied consent warning was read, but Marshall refused to take the breath alcohol test. She told Officer Mac-Dowell that she wanted to talk with an attorney before taking the breath test. Marshall was transported to the South Daytona Police Department for processing. Once at the station, Corporal Dietrich again offered Marshall an opportunity to submit to a breath test and she refused, saying that she would not take the breath test without the advice of an attorney.

At the administrative hearing, Marshall’s attorney raised the following issues: (1) the Department documents showed inconsistent dates and times; (2) Marshall was given an improper implied consent instruction, which indicated that her li- ■ cense “may” be suspended, instead of being advised that her license would be suspended if she refused to take a breath test; (3) the DUI citation listed the Florida Highway Patrol when it was not involved in the driver’s arrest, and also stated that there would be a ten-day temporary permit instead of a thirty day permit; (4) the Department documents were contradictory on the issue of intoxication because Marshall had the presence of mind to sign a waiver of liability which stated that the South Daytona Beach Police Department would not be liable if there was any damage to her property, and she signed this waiver only eleven minutes after the field sobriety exercises and the officer’s probable cause determination of DUI; (5) the arresting officer did not observe Marshall’s driving so there was no probable cause for the arrest; (6) the officer’s signature on the arrest affidavit was not legible; (7) there were internal inconsistencies in the forms; and (8) Marshall twice requested an attorney, and she was confused because the officer told her in the field that she could speak to an attorney before taking the breath test but was then told at the police station that she could not talk to an attorney before taking the breath test.

Although Marshall testified at the hearing, the hearing officer found that her testimony was not persuasive. The hearing officer denied all of the motions seeking to invalidate the license suspension filed by Marshall’s attorney. The hearing officer found that the arresting law enforcement officer had probable cause to believe that Marshall was driving while under the influence of alcoholic beverages or controlled substances. The hearing officer also found that Marshall was lawfully arrested and charged with a violation of section 316.193, Florida Statutes (2001). The hearing officer further found that Marshall was informed that if she refused to submit to a breath, blood or urine test, her driving privilege would be suspended for a period -of one year to eighteen months, and that Marshall refused to submit to such tests.

Marshall filed a petition for writ of cer-tiorari in the circuit court and raised the following issues: (1) the arresting officer’s implied consent warning inaccurately informed petitioner that her driver’s license may be suspended for failure to take a breath test; (2) the license suspension should not be sustained because of the inconsistencies in the Department documents considered at the hearing; (3) the hearing officer deprived Marshall of procedural due process by questioning her during the proceedings and by not requiring sworn testimony from the Department to explain the discrepancies in the documents; and (4) the license suspension was invalid because of the confusing and contradictory statements by the police about whether Marshall could speak to an attorney before taking the breath test.

The circuit court issued an opinion granting the petition for writ of certiorari, but that decision was quashed by this court because the circuit court had not first ordered a response from the Department. After issuing a show cause order and considering the Department’s response, the circuit court again issued an opinion granting the petition for writ of certiorari and quashing the final order of license suspension. The circuit court held that the hearing officer’s final order was not supported by competent substantial evidence, as Corporal Dietrich’s observations of Marshall’s driving, including the weaving within her lane and across the center lane divider, did not provide a valid objective basis for Officer MacDowell to conduct a traffic stop.

The circuit court also held that the hearing officer’s finding that Marshall knowingly refused to submit to the breath test was not supported by the record. The circuit court noted that Marshall testified that she was confused by conflicting statements by the police concerning whether she could contact an attorney before deciding to take a breath test.

Finally, the circuit court held that Marshall was not properly advised of the consequences of refusal, as there was evidence she was not told that a refusal will result in the suspension of her driver’s license, instead she was told a refusal may or could result in the suspension of her driver’s license.

The circuit court’s standard of review was limited to a determination whether procedural due process was accorded, whether the essential requirements of law had been observed, and whether the administrative order was supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). In reviewing the circuit court’s decision, this court is limited to determining whether the circuit court afforded procedural due process and applied the correct law. See Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993).

The circuit court first held that there was not sufficient proof that the police had a reasonable suspicion of the driver’s impairment to initiate a traffic stop for DUI. This issue was not before the circuit court. At the administrative hearing, Marshall’s counsel never argued that Marshall’s driving pattern of weaving within and over her lane was inconsequential or of insufficient duration to constitute careless driving, or to create a reasonable suspicion of impairment. Rather, Marshall’s counsel argued that Officer MacDo-well did not personally observe petitioner’s driving, and therefore there was no probable cause for arrest. This issue as framed by counsel was properly rejected because of the fellow officer rule. See State v. Adderly, 809 So.2d 75 (Fla. 4th DCA 2002); Ferrer v. State, 785 So.2d 709 (Fla. 4th DCA 2001). The circuit court review should have been limited to the issues raised before the hearing officer. The issue of whether the driving pattern observed by the first officer was sufficient to constitute careless ■ driving or otherwise raise a reasonable suspicion of impairment was waived. See Scritchfield v. State, Department of Highway Safety & Motor Vehicles, 648 So.2d 1246 (Fla. 2d DCA 1995). Not only was this issue waived at the administrative hearing, Marshall’s counsel did not attempt to raise the issue in the petition for writ of certiorari filed in the circuit court. In the response to this court’s show cause order, counsel states on page 7 of the response, “Respondent concedes that she did not raise the issue of the legality of the stop or arrest.” The circuit court therefore misapplied the law in sua sponte considering an issue not preserved for review or raised in the petition.

Turning to the circuit court’s holding that Marshall was misled and confused regarding her right to speak with an attorney before submitting to a breath test, the circuit court misapplied the law by reweighing the evidence. The circuit court based its holding on Marshall’s testimony, which the hearing officer specifically found to be unpersuasive. None of the Department documents supported Marshall’s claim that she was told in the field by the police that she could consult with an attorney prior to deciding whether to submit to a breath test. The arrest affidavit noted only that Marshall, in the field and at the police station, refused to take the breath test without the advice of an attorney. The arrest affidavit did not state that Marshall was told she had the right to speak to an attorney before taking a breath test. See generally State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995) (administration of breath test does not constitute “a crucial confrontation” requiring the presence of defense counsel). The only evidence that Marshall was misled was her own self-serving testimony, which the hearing officer rejected. Cf. Department of Highway Safety v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995) (finder of fact is not required to believe unrebutted testimony of witness). Although Marshall had the opportunity to subpoena witnesses, she did not subpoena Officer MacDowell to confirm the statements she alleges the officer made to her. It appears that the circuit court substituted its own determination of the facts and evidence for the findings of the hearing officer. Cf. Department of Highway Safety & Motor Vehicles v. Smith, 687 So.2d 30 (Fla. 1st DCA 1997) (circuit court improperly reweighed evidence); Department of Highway Safety & Motor Vehicles v. Satter, 643 So.2d 692 (Fla. 5th DCA 1994).

Finally, the circuit court overturned the final order of license suspension on the basis that Marshall was not properly given the implied consent warnings. There was a conflict in the evidence, which the administrative hearing officer and the circuit court interpreted in different ways. According to the record evidence, Officer MacDowell, in the refusal affidavit, swore that the driver was informed that a refusal to submit to a breath, urine, or blood test will result in the suspension of driving privileges. ■

In addition, the record contained the State of Florida’s implied consent warning form. The implied consent warning form states that “if you refuse to take this test, your driving privilege mil be suspended for a period of one year for your first refusal, or 18 months if your driving privilege has been previously suspended for refusing to submit to a lawful test.”

As evidenced by the implied consent warning form, Officer MacDowell asked Marshall, “Will you take the test?” The box reflecting “No” is then marked. Then Officer MacDowell asked Marshall, “Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year?” The “Yes” box is then marked. Both Officer MacDowell and Marshall signed the implied consent warning form. Based on the foregoing, there was competent substantial evidence to support the hearing officer’s determination that Marshall was properly informed of the penalties for refusal before refusing the breath test. The circuit court misapplied the law by reweighing the evidence.

WRIT GRANTED, DECISION QUASHED AND REMANDED.

SAWAYA, C.J., and PALMER, J„ concur.

      . The South Daytona Beach Police Department DUI form states that a refusal may result in loss of driving privileges. Marshall also testified that Officer MacDowell told her that her license could be suspended. While it is true that the word "may” in the South Daytona Beach Police Department DUI form and Marshall’s testimony conflict with the sworn statement of Officer MacDowell in the refusal affidavit and the statements contained in the signed implied consent warning form, it was the hearing officer's duty to resolve this conflict.


author: THOMPSON, J.

text:
    Jonathan S. DEAN, etc., et al, Appellant, v. Jackie BENTLEY, et al., Appellee.
    No. 5D02-1077.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Jonathan S. Dean of Dean & Dean, LLP, Ocala, for Appellant.
    Reuben S. Williams, IV of Wilson and Williams, P.A., Ocala, for Appellee.
   THOMPSON, J.

Jonathon Dean, as personal representative, and Mario Lamon Williams appeal the order revoking probate and reopening the estate of Cecil Gadson a/k/a Cecil Gasden (“decedent”). We affirm the trial court’s order because there is evidence that the personal representative committed fraud on the court by faffing to disclose to the court the possibility of a subsequent will and an “interested person.”

Cecil Gadson died on 8 June 2000, and on 26 September 2000, the court admitted to probate a 1974 will in which the decedent devised all his property to his step-grandson, appellant Mario Williams. The petition for administration stated that the only assets of the estate were “homestead property valued at $11,775.00 and cash in the amount of $6,000.00.” The court appointed attorney Jonathan Dean personal representative of the estate. On 20 November 2000, attorney Henry J. Prominski contacted Dean stating that in 1999, he had prepared a. power of attorney and a will for the decedent. The will named Jackie Bentley personal representative and sole devisee. Dean informed Promin-ski that a prior will had been admitted to probate, and Prominski, who was not representing Bentley, replied that he would advise Bentley to take appropriate action.

On 28 November 2000, Dean contacted Detective David Byrd of the Marion County Sheriffs Office, alleging that Jackie Bentley had used the power of attorney given to him by the decedent to remove $17,000 from the decedent’s bank account and had used the money to open a bank account in his name. Dean told Detective Byrd that the removal of the funds was beyond the scope of Bentley’s power of attorney and requested that Detective Byrd investigate to determine if any criminal laws had been violated. On 29 November 2000, Dean told Detective Byrd that Bentley may have a new will naming Bentley the beneficiary of the decedent’s entire estate. Detective Byrd telephoned Bentley regarding the 1999 will. Bentley told Detective Byrd that he had possession of the original 1999 will, and Detective Byrd told Bentley to file the original with the clerk of the court and to fax a copy to him. Bentley did as he was told and filed the 1999 will on 1 December 2000. Detective Byrd gave a copy of the 1999 will to Dean. Detective Byrd informed Dean that he had found no criminal violations and stated that the matter should be handled civilly. Dean agreed and Detective Byrd closed the investigation.

Dean filed a petition for discharge without mentioning the 1999 will to the court. In the petition, Dean stated that “[t]he only persons, other than Petitioner [Dean] having an interest in this proceeding ... are: Mario Lamon Williams.” On 28 February 2001, the court entered an order of discharge. On 3 May 2001, Bentley filed a petition for revocation of probate alleging fraud because the personal representative had been aware of the existence of the 1999 will.

The trial court revoked probate of the will and reopened the estate because Dean had misrepresented to the court that there were no other interested parties and did not disclose the 1999 will. On appeal, the appellants contend, in essence, that because Dean “decided” that Bentley was not an interested person, he was not required to disclose that the 1999 will had been filed in the probate case or that Bentley was a possible interested person, and therefore that there had been no fraud on the court. We disagree.

Bentley was an interested person. Section 731.201(21), Florida Statutes, defines an “interested person” as one “who may reasonably be expected to be affected by the outcome of the particular proceeding involved....” If Bentley was the beneficiary of a valid will, he certainly would have been affected by the outcome of the probate proceedings, and the personal representative should have disclosed this possibility to the probate court prior to discharge. See Grimes v. Estate of Stewart, 506 So.2d 465, 466 (Fla. 5th DCA 1987) (holding that a person who alleged she was an heir-at-law, the beneficiary of a pour-over will, and the niece of the decedent was an interested person).

The appellants also argue that the estate should not have been reopened because a petition for revocation of probate must be brought before discharge, and Bentley did not file the petition for revocation until after the order of discharge was entered. Although sections 733.208 and 733.109, Florida Statutes, provide that a petition for revocation of probate should be filed before discharge, fraud is recognized as justification for' reopening an estate, even after an order for discharge has been entered. Liechty v. Hall, 687 So.2d 64, 65 (Fla. 5th DCA 1997); Padgett v. Padgett’s Estate, 318 So.2d 484, 485 (Fla. 1st DCA 1975). Also, Rule 1.540(b), Florida Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: .... fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” The personal representative contends that he committed no fraud under the “standard elements of fraud,” but the Florida Supreme Court defines “fraud on the court” as:

[The] prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from the court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.

DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984), superseded by rule on other grounds, see Lefler v. Lefler, 776 So.2d 319, n. 1 (Fla. 4th DCA 2001).

In the instant case, Dean concedes in his brief that he was informed by attorney Prominski of the alleged existence of the 1999 will. However, Dean did not disclose the information to the court and stated under oath that there were no other interested parties. As the trial court wrote, Dean’s failure to disclose this information prevented the court from addressing what procedures needed to be taken regarding Bentley and the 1999 will. Bentley was an interested person entitled to an opportunity to be heard, and the personal representative prevented this. See Fritsevich v. Estate of Voss, 590 So.2d 1057, 1058 (Fla. 3d DCA 1991) (holding that allegations by appellants that the putative beneficiary knew that she was not entitled to inherit any portion of the estate, if true, denied the appellants access to the proceedings and constituted fraud upon the court). The order stated in part:

Dean, the Personal Representative, is also an attorney licensed to practice law in the State of Florida and, as an officer of the Court, has specific obligations to the Court. In the present case, Dean became aware of the existence of the 1999 Will filed well prior to the filing of the Petition for Discharge and that the 1999 Will completely altered the distribution plan of the 1974 Will. It is not inconceivable that the Testator, after 25 years, may have changed his mind as to the distribution plan since the sole beneficiary in the 1974 Will and the sole beneficiary in the 1999 Will are different and are neither the children, grandchildren, or surviving spouse of the Testator. Rather than giving the predecessor Circuit Judge, prior to closing the Estate, an opportunity to address what, if any procedures should be taken regarding Bentley, the Personal Representative filed a Petition, under oath, representing to the Court that there were no other interested persons in this proceeding other than the Personal Representative and the sole beneficiary under the 1974 Will. In reviewing the totality of the facts and circumstances that were before the Personal Representative at the time he filed his Petition for Discharge, the Court finds that these statements in the Petition were not correct and that Jackie Bentley was an interested person under the statute and was entitled to receive notice on the Petition for Discharge and an opportunity to be heard before the Estate was closed ....

(emphasis added).

Dean argues that “as a matter of public policy, the reasonable decisions of personal representatives should not be subject to ‘Monday morning quarterbacking’ by the courts after the estate is closed and the personal representative discharged.” This stance is troubling because the misstatement of material facts cannot be viewed as a reasonable decision. Dean had been notified about the 1999 will by an attorney and a detective, and Dean was aware that the 1999 will was in the court file. The failure to bring the will to the attention of the trial court and the misstatement of fact are not only violations of the duties of a personal representative, they violate that part of the attorney’s oath which provides: “I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and hon- or, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law.” As the trial court wrote:

“Once he became aware of the 1999 will, under the specific undisputed facts of this case, he had to provide notice of the petition of discharge to the beneficiary under the subsequent will, especially when the subsequent will materially and completely changed the prior distribution plan, prior to seeking the discharge and of equal importance, was obligated to make the court specifically aware of the existence of Bentley to allow the court to make a reasoned and informed decision as to what, if anything, needed to be done regarding Bentley.”

(emphasis added).

The order reopening the estate is affirmed. We also direct the trial court’s attention to Canon 3 D(2), Florida Code of Judicial Conduct, which requires a judge to take appropriate action “when a judge receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar.... ”

AFFIRMED.

PETERSON and PALMER, JJ„ concur.

      . See § 733.301(l)(a)(2), Fla. Stat. In the petition for administration, Dean nominated himself to be personal representative. The personal representative named in the 1974 will had predeceased the decedent, and in the petition for administration, the alternate person relinquished her right to serve in favor of Dean. Also, the beneficiary of the 1974 will, Williams, consented to Dean serving as personal representative.

      . The record shows that Jackie Bentley was the decedent's nephew and apparently had maintained the decedent’s home after the decedent died.

      .At the time that Bentley filed the 1999 will, he was acting pro se and did not retain an attorney until he filed the petition for revocation of probate. In a sworn affidavit, Lisa Booth stated that she was formerly employed by the Probate Division of the Marion County .Clerk’s Office, had received and filed the 1999 will, and had notified the personal representative of the 1999 will.

      . The appellants state in their brief that the usual elements of fraud are:
      1. A false statement concerning a specific material fact;
      2. The maker’s knowledge that the representation is false;
      3. An intention that the representation induces another’s reliance; and
      4. Consequent injury by the other party acting in reliance on the representation.

      . See Oath of Admission, to The Florida Bar.


author: MONACO, J.

text:
    David Allen WORLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2170.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

David Allen Worley appeals a final order adjudicating him guilty of the sale of a controlled substance. Worley contends that the trial court erred in denying his request for a jury instruction on entrapment. We disagree.

The giving or withholding by a trial court of a requested jury instruction is reviewed under an abuse of discretion standard of review. See Palmore v. State, 888 So.2d 1222 (Fla. 1st DCA 2003); Pozo v. State, 682 So.2d 1124 (Fla. 1st DCA 1996), rev. denied 691 So.2d 1081 (Fla. 1997). In a criminal proceeding the discretion of the trial court in this regard is rather narrow, however, because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state. See Mora v. State, 814 So.2d 322 (Fla.2002); Flemmings v. State, 838 So.2d 639 (Fla. 5th DCA 2003). Because Worley’s theory is faulty, we find no error in the court’s decision not to give the entrapment instruction.

Worley sold about 500 pills containing MDMA, aggregating 82.4 grams, to an undercover officer and a confidential informant for $5,500. Worley asserted at trial that the girlfriend of the confidential informant encouraged him to complete the sale by offering to have sex with him. The conversation allegedly took place by phone well in advance of the sale. The girlfriend did not testify. The undercover officer testified that he knew of no communications between Worley and the girlfriend, and that the confidential informant, not the girlfriend, set the price for the pills.

Upon his arrest, Worley wrote out a statement saying that selling the drugs “was an easy way for me to make money.” He pointed out that he had a lot of financial problems and “I don’t do this a lot.” He did not mention in his statement that he had been induced to sell the drugs by the girlfriend’s promises.

The general rule is that entrapment will not lie where the inducement to commit a crime comes from a non-agent private citizen. That is, when a middleman, not a state agent, induces another person to engage in a crime, entrapment is not available as a defense. See State v. Hunter, 586 So.2d 319, 321 (Fla.1991); Prince v. State, 638 So.2d 1022 (Fla. 5th DCA 1994); State v. Perez, 438 So.2d 436 (Fla. 3d DCA 1983). The informant’s girlfriend occupied that position. We conclude, therefore, that the trial court did not abuse its discretion by declining to give an entrapment instruction. Additionally, we conclude that the facts in this case are not outrageous, and do not constitute subjective entrapment under Munoz v. State, 629 So.2d 90, 95 (Fla.1993).

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.


author: SHARP, W., J.

text:
    John David CROCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-701.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    John David Crockett, Monticello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

John David Crockett appeals from the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, which alleges three instances of ineffective assistance of trial counsel. We reverse and remand for further proceedings.

The trial court denied relief below on the ground that Crockett’s motion is successive. However, it failed to include any corroborating attachments of prior Rule 3.850 motions or prior trial court orders denying them. In its response, the state alleges that Crockett filed two earlier versions of the Rule 3.850 motion at issue, but one was stricken for failure to complete a required form and the other was denied as legally insufficient but without prejudice to refíle one which was legally sufficient.

That appears to be what Crockett has done in this instance. The state admits he has sufficiently pled claims of ineffective assistance of trial counsel: that counsel failed to object to the lack of a factual basis for his plea, that counsel failed to argue there was no evidence he used a weapon in committing the alleged armed robbery, and that counsel failed to object to the use of a prior misdemeanor instead of a felony as a predicate offense in habitu-alizing him. The trial court did not attach parts of the record to refute his claims on the merits and the prior orders referenced above were clearly not rendered on the merits.

Accordingly, we reverse and remand to the trial court to attach portions of the record which demonstrate that this motion is successive because the allegations were previously addressed by the trial court on the merits, or to attach portions of the record refuting his allegations on the merits, or to conduct an evidentiary hearing on these allegations. See Ellis v. State, 800 So.2d 761 (Fla. 5th DCA 2001). See also State v. McBride, 848 So.2d 287, 2003 WL 21088088 (Fla. May 15, 2003).

REVERSED and REMANDED.

PLEUS and ORFINGER, JJ„ concur.


text:
    William A. THOMPSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-1829.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.

      William A. Thompson, Orlando, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   THOMPSON, J.

William A. Thompson appeals an order of the Florida Unemployment Appeals Commission. We affirm.

Thompson voluntarily resigned from his employer, Trader Publishing Company (“Trader Publishing”). In filing for unemployment compensation benefits, Thompson alleged that he resigned because Trader Publishing was reducing his income. The claims adjuster awarded Thompson unemployment benefits, and Trader Publishing appealed the agency’s determination and requested a hearing. Trader Publishing argued that it had informed Thompson that although Thompson’s revenue base was declining, Trader Publishing would supplement his income by increasing his commission rate.

A hearing was conducted before an appeals referee who found that Thompson did not quit his job for good cause because his earning power was still available to him. The appeals referee noted that although Thompson’s accounts had been reduced, his earning potential was greater because his commission was increased to 20 percent. The referee further wrote that Thompson did not give himself a fair chance to determine what his true earning potential would have been. After being disqualified from unemployment benefits, Thompson requested a review of the referee’s decision by the UAC, and the UAC affirmed the referee’s decision.

On appeal, Thompson attempts to assert new issues of fact and alleges that he left his employer not because of a reduction in his pay rate, but because of other circumstances including his belief that Trader Publishing was attempting to force him out. Thompson’s version of facts are different from the referee’s findings, and Thompson has not provided a transcript of the hearing. The referee’s determinations are presumed correct where it is impossible to establish error without a transcript. Smith v. Unemployment Appeals Com’n, 828 So.2d 873 (Fla. 5th DCA 2002).

In the instant case, no error has been established. Thompson resigned from his job, and an employee who voluntarily leaves work without good cause attributable to his or her employer is disqualified from receiving unemployment benefits. § 443.101(l)(a), Fla. Stat. “Good cause for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his or her employment.” See Miller v. Unemployment Appeals Com’n, 768 So.2d 1218 (Fla. 4th DCA 2000).

While workplace changes such as a reduction, or a change, in hours or salary may constitute good cause attributable to the employer, see Manning v. State Unemployment Appeals Com’n, 787 So.2d 954 (Fla. 4th DCA 2001), Thompson has not shown a good cause basis for his resignation. The referee found that although Thompson’s accounts had been reduced, his earning potential was greater because his commission was increased to 20 percent. Further, because Thompson resigned a week after Trading Publishing implemented the new policy, Thompson could not prove that his salary would, in fact, decrease.

The UAC’s order affirming the referee’s findings is AFFIRMED.

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


text:
    GENERAL DYNAMICS CORP., et al., Appellant, v. Jeno F. PAULUCCI and Lois Mai Paulucci, Appellees.
    Nos. 5D00-699, 5D00-1466, 5D00-1878.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Rory C. Ryan and Stacy D. Blank, of Holland & Knight LLP, Orlando, for Appellants.
    David H. Simmons, Dale T. Gobel and Daniel J. O’Malley of, Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, Orlando, for Appellees.
   ON REMAND

PER CURIAM.

This cause was remanded to us for further consideration in light of the supreme court’s decision. Paulucci v. General Dynamics Corp., 842 So.2d 797, (Fla.2003).

The facts upon which this action is based are more fully detailed in our original decision. General Dynamics Corp. v. Paulucci, 797 So.2d 18 (Fla. 5th DCA 2001). The dispute centers around the pollution of Appellees’ property by Appellant. After much litigation, the parties reached a written settlement agreement that required, among other things, Appellant to remedy the pollution to Appellees’ property. After an alleged breach of the settlement agreement, the trial court heard evidence and concluded that Appellant had breached the settlement agreement, and it awarded damages (measured by a stipulated sum) and attorney’s fees. On appeal from that order, we held that the trial court did not have subject matter jurisdiction to enforce the settlement agreement. Paulucci 797 So.2d at 21. We certified the question, however, to the supreme court. Alternatively, we held that, even if the trial court had jurisdiction over the subject matter, Appellees did not prove a necessary condition precedent to the award of damages. We also reversed the award of attorney’s fees and costs. Paulucci 797 So.2d at 22-23.

The supreme court quashed our decision as it related to the jurisdictional issue, holding that the trial court did have jurisdiction to enforce the settlement agreement. The court declined, however, to address the issues of whether the trial court erred in awarding damages and attorney’s fees.

Based on our analysis in General Dynamics Corp. v. Paulucci 797 So.2d 18 (Fla. 5th DCA 2001), we hold that the trial court erred in entering judgment for the stipulated rental payments and that the trial court erred in awarding to Appellees’ their attorney’s fees and costs in connection with the enforcement of the settlement agreement. The judgment of the trial court, therefore, is reversed.

REVERSED.

PETERSON, ORFINGER and TORPY, JJ., concur.


author: COVINGTON, Judge.

text:
    Richard Collins MAGANN, Appellant, v. Leonor Ann Compoamor MAGANN, Appellee.
    No. 2D02-2720.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Virginia R. Vetter, Tampa, for Appellant.
    Clifton C. Curry, Jr., and Christopher K. Pegg of Law Offices of Curry & Associates, P.A., Brandon, for Appellee.
   COVINGTON, Judge.

The former husband, Richard Collins Magann, appeals the order enforcing the final judgment of dissolution of marriage. On appeal he submits that because the former wife had not filed a financial affidavit, the trial court erred in increasing the amount of ongoing and retroactive child support. We agree and remand for a new trial so that the appropriate evidence can .be received.

The parties were divorced on January 15, 1998. The final judgment of dissolution of marriage incorporated a marital settlement agreement that the parties had entered into on December 10, 1997. Under the provisions of the agreement, child support payments of $1092 per month would continue for eighteen months at which time the child support would “be recalculated according to the guidelines using the parties’ then-existing income.” The agreement also contained a provision that the parties would seek mediation if they could not together resolve a conflict. On March 1, 2001, the former wife filed a motion for enforcement of the final judgment alleging that the former husband had refused to attend mediation after the eighteen-month period expired.

At the December 18, 2001, hearing on the former wife’s motion for enforcement, several errors occurred. First, the former wife’s financial affidavit was not made a part of the trial record, even though the transcript contains references to the affidavit. It is unclear why the former wife’s financial affidavit is not a part of the record. At the hearing, the former husband objected to the child support award being recalculated without the former wife filing her financial affidavit. The court granted the former wife’s motion to reopen the evidence and admit her affidavit. In fact, the court specifically noted that the financial affidavits of both parties would be received into evidence. Irrespective of whether the former wife’s financial affidavit was formally received into evidence, the record before us does not include it. We agree that without the former wife’s financial affidavit her income and actual child care expenses cannot be determined.

Additionally, while the former husband testified about his gross income for the year 2000, no evidence showed his net income for 1999 or 2000. See Thilem v. Thilem, 662 So.2d 1314, 1316 (Fla. 3d DCA 1995) (holding that “the trial court erred in failing to distinguish gross from net income, which is crucial to properly applying the guidelines”). Finally, in calculating the child support, the trial court erred by failing to take into consideration the $125.04 per month the former husband paid for his own health insurance. See Penalver v. Columbo, 810 So.2d 563, 565 (Fla. 2d DCA 2002) (reversing for failure to permit a deduction from gross income for the cost of health insurance in calculating both retroactive and current child support).

We reverse and remand for a new trial so that the appropriate evidence can be offered and the child support award can be correctly calculated. This opinion is without prejudice for the trial court to order child support retroactive to the expiration of the eighteen-month period mentioned in the settlement agreement.

Reversed and remanded.

ALTENBERND, C.J., and CASANUEVA J., Concur.

      . The parties wisely entered into a settlement agreement that included a mediation provision. Unfortunately, the former husband refused on numerous occasions to attend mediation. Consequently, he left the former wife with no choice but to file the motion to enforce the final judgment. In doing so, she had to retain the services of an attorney to represent her, and the former husband likewise has had to obtain the services of an attorney. As a result, both parties have been obligated to pay legal fees for these services. While we have concluded that this matter should be remanded for a new trial, in no way do we condone the former husband's behavior.