author: FARMER, C.J.

text:
    J.R.D. MANAGEMENT CORP., a New York corporation, and Robert R. Weiner, Appellants, v. Heather DULIN, Appellee.
    No. 4D02-5111.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Rehearing Denied Oct. 28, 2004.

      Robert D. Soloff of Robert D. Soloff, P.A., Fort Lauderdale, for appellants.
    Michael J. Kennedy of Boose Casey Cik-lin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellee.
   On Motion fob Rehearing

FARMER, C.J.

We grant the motion for rehearing, withdraw our previous opinion, and substitute in its place the following.

Plaintiff sued defendant J.R.D. Management (JRD) for breach of an employment contract. She also sued both JRD and defendant Weiner, a principal of the corporate entity, for fraud in the inducement of her employment. A jury found that an enforceable contract existed, and that JRD breached the contract by terminating her without good cause, entitling her to damages of $15,000 under a severance pay clause in the agreement. The jury also found that defendant Weiner, but not JRD, fraudulently induced her employment, from which she suffered non-contractual damages of $31,875. The trial court entered judgment accordingly. We affirm.

JRD’s principal argument on the breach of contract claim is that this was at-will employment and that plaintiff is barred from seeking any damages under the contract. We agree that the contract fails to state any period (or term) of employment, so the agreement is to employ her for an indefinite period. On the other hand, the contract also provides: “If I [plaintiff] am terminated for any reason other than good cause at any time during the first twelve months I will be given a severance payment of $15,000.” JRD argues that even the foregoing clause is lost in the rule of at-will employment. We disagree.

Defendant argues that plaintiffs breach of the severance pay clause turns on whether the agreement has a “sever-ability” clause. We think defendant misstates the actual rule. In a decision we find particularly apposite, the court explained the proper analysis. In Robbins v. Frank Fehr Brewing Co., 284 S.W.2d 680 (Ky.1955), the employment contract provided for employment for a stated term, provided for a specific salary, and provided for an annuity when employment was terminated. It turned out that the annuity was unenforceable under the applicable law, but the salary was not. The court thus found it necessary to determine whether the contract “was of a severable nature.” 284 S.W.2d at 682. As the court held:

“The essential test is simple. Did the parties give a single assent to the whole transaction, or did they assent separately to several things? The answer is ascertained by viewing the contract as a whole and gathering the intention of the parties from it.”

Id. In other words, the question of sever-ability is one of legal construction of the agreement itself. It is not a matter of separate pleading. The court went on to hold that the salary provision was divisible from other parts of the employment agreement that were unenforceable. 284 S.W.2d at 684; see also Quarton v. Am. Law Book Co., 143 Ia. 517, 121 N.W. 1009 (1909) (“The question whether a given contract is entire or separable is very largely one of intention, which intention is to be determined from the language the parties have used and the subject-matter of the agreement.”) (quoting Timber Co. v. Windmill Co., 135 Ia. 308, 112 N.W. 771 (1907)).

In this case, we see no evidence of an intent to make the severance pay clause dependent on the validity of the employment clause. The liability for severance pay does not seem to us dependent on whether plaintiff could enforce a promise of employment for an indefinite term. If she could enforce the covenant of employment, there would have been no need to consider the severance pay issue, for her employment would not be severed. Thus, the issue is not whether plaintiff pleaded a severability clause but instead whether the alleged agreement betrays an intent that it be treated as divisible. We conclude that the severance pay clause is severable from the covenant to employ.

The contract principle, known as the rule of validity, further supports a conclusion that severance pay was independent of the promise of employment. That principle holds that in the interpretation of contracts judges will presume that the parties intended a binding, valid agreement, at least in some respect, even if not in all that a party may claim. See James v. Gulf Life Ins. Co., 66 So.2d 62, 63 (Fla.1953) (“Where the language of an agreement is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred.”); Foster v. Jones, 349 So.2d 795, 799 (Fla. 2d DCA 1977) (“If the language of a contract is contradictory, obscure, or ambiguous, or its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, and such as a prudent man would naturally execute, while the other makes it inequitable, unnatural, or such as a reasonable man would not be likely to enter into, then the reasonable, logical, and rational interpretation should be adopted.”); Bacon v. Karr, 139 So.2d 166 (Fla. 2d DCA 1962) (contracts duly executed for a lawful purpose should, if legally possible, be upheld); City of Orlando v. Murphy, 84 F.2d 531 (5th Cir.1936) (when possible, contract should receive such construction as will uphold it, rather than render it nugatory). The law assumes that parties have made an agreement for some lawful, enforceable purpose, that courts should not apply a strained or unusual meaning so as to render it entirely unenforceable. Diversified Enters. Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962).

In Florida a contract that fails to specify a period of time for employment is terminable by either party at any time. See Savannah, F. & W.R. Co. v. Willett, 43 Fla. 311, 31 So. 246, 247 (1901) (“No action can be maintained for the breach of a contract to employ unless there is some stipulation as to the length of time for which the employment shall continue. If a term of employment be discretionary with either party, or be indefinite, either party may terminate it at any time.”); Knudsen v. Green, 116 Fla. 47, 156 So. 240, 242 (1934) (“An agreement to serve and be served at so much per month, with no stipulation as to the term of the services, is terminable at the end of any month at the pleasure of either party to the contract, because a contract for employment fixing an amount to be paid at stated intervals, but with no time limit for its ending, must be construed as a contract terminable at the end of any month by either party at pleasure.”); DeMarco v. Publix Super Mkts., Inc., 384 So.2d 1253, 1254 (Fla.1980) (“[W]here the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.”) (quoting DeMarco v. Publix Super Markets, Inc., 360 So.2d 134, 136 (Fla. 3d DCA 1978)); Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182 (Fla.1983) (“The established rule in Florida relating to employment termination is that ‘[W]here the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract’.”). So it is true that one may not sue for breach of at-will employment.

But the unstated premise of defendant JRD’s argument is that at-will employees are barred from enforcing severance pay agreements when the promise of employment is unenforceable. As Knudsen shows, however, it is only an action for breach of employment that is barred when the contract of employment is terminable at will; other contractual provisions may not be affected by the at-will employment rule. 156 So. at 243 (holding, under a complaint alleging that an employer entered into a contract of employment with a servant for an indefinite period of time at a monthly salary, that upon a breach of the contract the servant’s measure of damages is the worth of the bargain upon which the action is based; not the loss of advantages derived from another contract between the servant and a previous employer, which contract the servant terminated as an incident to entering into the contract alleged to have been broken). In the present case, the damages were awarded for breach of the severance pay clause, not for breach of any agreement to employ plaintiff. Therefore the at-will rule does not apply, and there is no error in the final judgment awarding damages for breach of the severance pay provision. This kind of provision, we dare say, not only makes at-will employment fairer to employees but also makes it easier for employers to attract qualified, talented employees under the at-will doctrine.

We disagree with JRD’s argument that the severance pay clause itself fails to state a term and is therefore unenforceable. Even assuming that some fixed duration of liability for severance pay were required by an established principle of contract law — and JRD has not cited to us any authority for such a requirement — the words “twelve months” undeniably refer to a specific and definite period of liability for such pay. Hence there is no reason why the severance pay clause may not be enforced independently of any agreement to employ.

The evidence shows that plaintiff was in fact terminated during the first 12 months of her employment and that good cause was not shown. The fact that the employment itself had no stated period, and is thus at will, does not logically have any effect on a clear agreement to pay severance pay if, during the first year, the employer should exercise its prerogative to terminate employment.

We reject defendants’ argument that plaintiff failed to plead a breach of the severance pay clause and that she raised the issue of this breach for the first time during closing argument at trial. Count one of the complaint alleges breach of contract. There she alleged that the failure to pay severance pay as one of several specified breaches of the employment agreement upon which she sued. This count alleges that her termination was made without good cause and that no cause was stated for her termination, an allegation uniquely related to the severance pay claim. In her prayer for relief she asks for judgment:

“for all damages sustained as a result of these breaches of the Employment Agreement, including but not limited to severance compensation per the Employment Agreement .” [e.s.]

We think this is clearly a sufficient pleading for breach of the severance pay provision. See Fla. R. Civ. P. 1.110(a) (providing that forms of action and technical forms for seeking relief in pleadings are abolished), and Fla. R. Civ. P. 1.110(g) (party may set up two or more statements of same cause of action in one count; all pleadings shall be construed to do substantial justice).

Defendant JRD argues that she did not argue the severance pay issue until after the close of the evidence during closing argument. But the record shows that she had previously argued the severance pay claim in opposition to a motion for summary judgment. Although plaintiff may have claimed a breach of employment, as well as a breach of the severance pay clause, there is no rule against a plaintiff simply abandoning alternative claims or theories of the same cause of action during trial — here, breach of contract — and relying solely on the one she believes has the best chance of succeeding. Winnowing claims is what trials are all about. The record does not show that she ever abandoned her claim for severance pay.

We also affirm the final judgment against defendant Weiner for damages on the fraud-in-the-inducement claim. The jury found that plaintiffs employment had been fraudulently induced. We disagree with defendant’s argument that fraud in the inducement cannot lie when employment is at will and terminable at any time. There is no reason why even at-will employment cannot be fraudulently induced. Moreover, we think defendant has misread Dewachter v. Scott, 657 So.2d 962 (Fla. 4th DCA 1995). In that case, the problem was that the fraud claim was used as a device to avoid the at-will rule. The claimant there had alleged a breach of a promise of employment for life. The claimant also sought to recover by a cause of action for fraud the same damages that she sought for breach of contract. 657 So.2d at 962-63 (“Even though Dewachter couched her complaint as fraud in the inducement rather than breach of contract, we believe her claim is still barred as it attempts to circumvent the bar to a breach of contract action based on an oral contract terminable at will.”). In this case, the fraud claim properly afforded damages to plaintiff not covered by a breach of employment claim. We have reviewed the record and find competent substantial evidence to support the verdict in all respects.

AFFIRMED.

GUNTHER and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Edwin LOVETT, Appellant, v. Howard C. FORMAN, as Clerk of Court, Broward County, Florida, and Ken Jenne, as Sheriff of Broward County, Florida, Appellees.
    No. 4D03-2048.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Hugh L. Koerner of Hugh L. Koerner, P.A., Fort Lauderdale, for appellant.

      Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Ft. Lauderdale, for appellee Howard C. For-man.
    Robert D. Yates and Robert C. Buschel of Buschel, Carter, Schwartzreich & Yates, Ft. Lauderdale, for appellee Ken Jenne.
   KLEIN, J.

Appellant plaintiff, after being charged with a crime by information, did not appear in court at a status conference, because neither he nor his attorney received notice of the conference. As a result of his failure to appear, a capias was issued for his arrest. Plaintiffs counsel then moved to set aside the capias, and the court granted the motion, but the Clerk of the Circuit Court neglected to provide this information to the sheriffs office. As a consequence, plaintiff was wrongfully arrested and incarcerated for over two months. We conclude that sovereign immunity bars the plaintiffs claims against the clerk and the sheriff, because they did not owe him a special duty which was different from the duty owed the public in general.

Under procedures established by the clerk, when a capias for arrest is withdrawn, an employee of the clerk makes an entry in a computer and provides the sheriff with a daily report listing all such withdrawals. Upon receipt of the daily report the sheriff removes the capias from certain data bases. In this case the clerk failed to make the computer entry, which resulted in the daily report not indicating that the capias for plaintiffs arrest had been withdrawn. The capias remained active, which resulted in the wrongful arrest and incarceration of the plaintiff.

The trial court dismissed plaintiffs complaint seeking tort damages against the clerk and the sheriff because of sovereign immunity, holding that there was no duty owed plaintiff which was different from the duty owed the public in general. Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912 (Fla.1985) (tort claim against city for negligence of building inspector barred by sovereign immunity because there was no duty to enforce the building code for the benefit of a specific group of individuals).

Plaintiff recognizes that our decision in Holodak v. Lockwood, 726 So.2d 815 (Fla. 4th DCA 1999), would require affirmance, but argues that we should recede from it. In Holodak, the claimants, after receiving traffic citations, had paid the fines pursuant to section 318.14, Florida Statutes (1995), by mailing a payment to the clerk. The clerk, however, failed to timely record the payments, and claimants’ driver’s licenses were wrongfully suspended. They were also assessed late fees. The claimants sued the clerk, but we concluded that the complaint did not state a cause of action because the clerk did not owe them a special duty different from the duty owed the general public to keep proper records, relying on Trianon Park.

In Holodak we agreed with Layton v. Florida Department of Highway Safety & Motor Vehicles, 676 So.2d 1038 (Fla. 1st DCA 1996) in which a claim was made against the Florida Department of Highway Safety & Motor Vehicles for negligence in failing to keep accurate records leading to the wrongful arrest of the claimant for driving with a suspended license. Relying on Trianon Park, the Layton court held that the maintenance of records was a function undertaken by the government for the public generally, and there was no special duty.

Plaintiff also disagrees with Harris v. Kearney, 786 So.2d 1222 (Fla. 4th DCA 2001), in which a person was wrongfully arrested for food stamp fraud because of a mistake made by the state, and Moore v. Department of Corrections, 833 So.2d 822 (Fla. 4th DCA 2002), in which a person was wrongfully arrested because a Department of Corrections officer negligently failed to revoke an outstanding warrant for her arrest after her probation was terminated. We concluded in both cases that there was no special duty owed which would permit recovery against the government.

Plaintiff argues that these cases requiring a special duty have misinterpreted Florida Supreme Court decisions. He relies primarily on the federal decision of Lewis v. City of St. Petersburg, 260 F.3d 1260 (11th Cir.2001). After the briefs were filed in this case, however, the Florida Supreme Court reiterated that there must be a special duty owed to plaintiff, different from the duty owed the general public, in order to recover against the government. Pollack v. Dep’t of Highway Patrol, 29 Fla. L. Weekly S287 (Fla. June 10, 2004). Pollack, not Lewis, controls. Miles Laboratories v. Eckerd, 73 So.2d 680 (Fla.1954) (Florida courts are not bound by federal court decisions construing Florida substantive law). Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Holodak, one of our decisions which would require affirmance here, but which plaintiff argues is wrong, was cited by the Florida Supreme Court in Pollack for the proposition that there must be a special duty in order to recover for a government tort. Pollack also clarified that internal operating procedures or policies cannot create an independent duty to individual members of the public.

In First American Title v. Dixon, 603 So.2d 562, 564 (Fla. 4th DCA 1992), also cited by plaintiff, we held that sovereign immunity did not bar a claim for negligently maintaining public records relating to real property. In Dixon, however, the clerk conceded that he had a statutory duty to properly record and index real property records, and he also conceded that the recording statutes “generally protect the rights of those claiming an interest in land, including bona fide purchasers of property and creditors of property owners.” We concluded that the statutory recording scheme was for the benefit of a specific class of individuals, not just the general public, allowing recovery from the clerk. Our holding in Dixon was narrow, limited to the public records pertaining to real property, and may well have been based on the clerk’s concessions.

We therefore conclude that neither the clerk nor the sheriff owed plaintiff a special duty. Affirmed.

WARNER and HAZOURI, JJ., concur.

      . It is difficult to reconcile Dixon with Holo-dak, because they both involved public records. Dixon is the only case in which recovery has been allowed against the government for a public records error, and no other court has either agreed or disagreed with the Dixon finding of a special duty. On the other hand, Holodak was recently cited by our supreme court in Pollack.


author: STONE, J.

text:
    D.H., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-4114.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Rehearing Denied Aug. 25, 2004.

      Lori D. Shelby, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   STONE, J.

ON MOTION FOR REHEARING

We deny a motion for rehearing, but withdraw our decision of May 5, 2004, and substitute the following opinion.

We affirm an order terminating the parental rights of D.H., the mother. D.H. argues that the minor nature of her failure to fully cooperate is insufficient to support termination based on a lack of compliance with a case plan. She relies upon cases where this court reversed orders terminating parental rights where, despite evidence of improvement, the terminations were based solely on the parents’ past conduct. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003)(re-versing termination of parental rights as to seventh child where parental rights to previous six children had been terminated). See also J.F. v. Dep’t of Children & Families, 866 So.2d 81 (Fla. 4th DCA 2004)(holding that evidence did not support termination of parental rights to two children, despite mother’s prior conviction for killing her step-child). We have considered these and similar cases and find them distinguishable.

D.H.’s first child, A.Y., born in July 1999, was sheltered and adjudicated dependent in July 2000. At that time, D.H., an adjudicated dependent minor herself, was on runaway status and failed to appear at hearings concerning A.Y. A second child, MY, born in May 2000, was sheltered a month later, when D.H. was Baker Acted for a mental disorder. Thereafter, M.Y. was also adjudicated dependent.

A case plan was adopted in November 2000 and, shortly thereafter, the trial court entered an order finding that D.H. was not in substantial compliance with the case plan. D.H. was allowed only supervised visitation with the children. Thereafter, the Department of Children & Families (DCF) filed a petition to terminate D.H.’s parental rights. Since D.H. made attempts to comply with the case plan, however, the trial court continued the adjudicatory hearing.

In July 2001, over DCF’s objection, D.H. was granted unsupervised visits to allow her to participate in parenting classes with the children. Thereafter, DCF sought relief from the court order allowing D.H. unsupervised visitation, stating, among other things, that the mother had not shown any capacity to appropriately parent the children while the children were in her sole care. The DCF counselor also questioned D.H.’s attention span and DCF asserted concerns about D.H.’s psychological evaluation because the evaluator reported having serious concerns about D.H.’s ability to provide a stable, calm and safe environment for the children.

Due to DCF’s continuing concerns about D.H.’s inability to parent her children while they were in her sole care, and the findings of a psychological evaluation in September 2001, D.H. was ordered to undergo a psychiatric evaluation and to participate in an assortment of services. Meanwhile, D.H. was allowed unsupervised visits with the children for four hours each Sunday.

In a November 2001 status report, DCF cited ongoing concerns about D.H.’s inability to comply with the case plan based on her failure to look for work and to provide for a family without financial assistance from friends. Moreover, D.H. regularly returned the children to the foster home hungry and with wet diapers, despite knowing that she was responsible for caring for the children and feeding them dinner during the unsupervised visitation. Moreover, contrary to court orders and DCF’s instructions, D.H. admitted that she continued to drive without a valid license.

Notwithstanding the foregoing, the trial court, in December 2001, found D.H. was working on the tasks in the case plan and she was working toward additional unsupervised visits with her children. Due to DCF’s continuing concerns about D.H.’s ability to care for the children in an unsupervised capacity, the court ordered D.H. to receive additional parenting instruction, to continue therapy, to find employment, and to remain in compliance with Florida law when transporting the children.

On January 2, 2002, the case plan was amended and continued concurrent goals of either reunification or termination of parental rights. The new case plan required D.H. to complete parenting, psychological and substance abuse evaluations, and comply with all follow-up treatment recommendations. Moreover, to gain the ability to care for her children on her own, D.H. was required to participate in in-home services from Family Builders and obtain stable housing and employment.

Six months later, due to the trial court’s ongoing concerns about D.H.’s ability to care for the children without supervision, the court ordered that custody of the children remain with DCF. Further, D.H. was, among other things, ordered to ensure the children were always transported using car seats. Meanwhile, the trial court asked for further input from the guardian ad litem.

The record reflects D.H. made some progress with her case plan. However, when reunification with the children was attempted and D.H. had unsupervised visitation with the children, she failed to both comply with the court’s directives and to cooperate with in-home services offered by DCF to safely effectuate a goal of reunification. D.H.’s failure to comply with court orders and cooperate with the in-home services remained a constant concern. Despite some progress when the children were not in D.H.’s custody, she could not adequately care for the children when they were in her custody.

By September 2002, the attempt at reunification progressed to the point that the children were conditionally placed in D.H.’s home. Soon thereafter, however, the primary service provider, Family Builders, terminated its required services to D.H. because she would not cooperate by allowing them into her home. During one attempted visit by Family Builders and after several unsuccessful attempts to provide scheduled services, D.H. was so uncooperative that she refused to lower the volume of music that she was playing during the scheduled visit so that the in-home service could be conducted. The Family Builders counselors further maintained that progress was dependent upon consistent services and D.H.’s repeated refusals and cancellation of scheduled visits rendered their efforts futile. The counselors testified that D.H. made no progress over the four intermittent visits that were conducted.

Also in September 2002, the DCF counselor, during an unscheduled visit to D.H.’s home, observed a pick-up truck at D.H.’s home. The children’s ear seats were in the back bed of the truck. D.H. admitted a friend loaned her the truck and claimed that she had obtained a valid driver’s license. Upon verification, it was established that despite court orders for D.H. to comply with Florida laws when transporting the children, D.H. still did not have a valid driver’s license.

The trial court, in October 2002, found that the children were at risk in the mother’s custody, ordered supervised visitation, and changed the case plan goal to termination of parental rights.

Unlike the authorities upon which D.H. now relies, there is no showing that D.H.’s parental rights were terminated due to her prior conduct. Instead, it was her conduct during the crucial period of attempted reunification, when the children were actually in her care, that any prior compliance with court orders and cooperation with assistance offered by DCF ceased. D.H.’s noncompliance occurred despite extensive efforts by DCF to assist in every way with the reunification. Furthermore, the decision D.H. relies on, F.L., was recently reversed by the Florida Supreme Court in DCF v. F.L., 880 So.2d 602 (Fla.2004), holding constitutional the statute providing for termination of parental rights based upon a showing of both prior conduct (involuntary termination of rights to a sibling) and a substantial risk of significant harm to the current child. Id. at 609.

In November 2002, DCF filed an amended petition for termination of parental rights, alleging that D.H. continued to demonstrate poor parenting skills and failed to substantially comply with court ordered tasks despite all efforts by DCF to provide services and assistance.

At trial, D.H. tried to explain away her failure to comply with her case plan during the attempted reunification period to no avail. Additionally, some of her testimony was impeached. D.H. admitted that during the attempted reunification with her children, she refused the required in-house services.

At trial, the foster mother testified that the children were virtually potty-trained when they went to live with D.H. When the children were returned to the foster mother after the reunification failed, however, both children had regressed to wearing diapers. A DCF counselor also testified that during a visit to observe D.H. with the children, D.H. actually lost track of the youngest child, who had wandered out into the street.

Even after the failed reunification, but before the trial, D.H. made no effort to visit with her children during their 60-day referral to a supervised visitation center. Notably, the visitation center offered its services, as a special exception to its policy, notwithstanding that D.H. had exhausted her previous referral.

Unlike the facts here, in F.L., the testimony indicated that F.L. was accepting services, was cooperative, attended programs on her own volition, was a good mother, and was providing appropriate care for her latest child. 849 So.2d at 1117. In F.L., the child was only removed because the office’s policy dictated that a child be removed where the parent had a prior involuntary termination. Id. Further, in F.L., unlike here, DCF relied solely on F.L.’s history and not on any new allegations of neglect. Id. In fact, in F.L., the guardian had first recommended that DCF offer F.L. a case plan for reunification; the guardian changed her mind only after meeting with the program’s attorney and recognizing F.L. had made similar promises to change with respect to another child, but had failed to follow through. Id.

Similarly unavailing is D.H.’s reliance on J.F., where this court reversed the final order terminating J.F.’s parental rights, explaining, “[a]t a minimum, we find that this evidence did not support a finding that the mother’s behavior was beyond her control, likely to continue, and would place the children at risk if parental rights were not terminated.” 866 So.2d at 88. There, the record showed that the mother had substantially completed her case plan, but was unable to complete some programs because of various problems not attributable to her. Id. at 86. In J.F., shortly before the termination proceedings began, the mother paid for and obtained therapy herself. Id. Also, there, the record reflects that DCF’s evidence offered in support of termination of J.F.’s parental rights was based upon interviews and incidents that occurred prior to the mother beginning therapy, and an evaluation revealed that she had no psychological impairments that would pose a threat to her children. Id. at 86-87.

None of the above facts are present here. Instead, the only time D.H. showed any progress in completing her case plan was when D.H. had limited and supervised contact with the children. Meanwhile, the trial court and DCF repeatedly expressed concerns about D.H.’s parenting abilities and, thus, ordered extensive services for D.H. in order to address concerns for the safety of the children during the attempted reunification. Unlike F.L. and J.F., D.H. made no individual effort on her own to obtain and comply with services. In fact, she refused, or failed, to cooperate with the services arranged by DCF as well as violated court orders.

Therefore, the motion for rehearing is denied and the final order of termination of parental rights is affirmed.

STEVENSON and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Biagio MENTO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D04-1163.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.

      Biagio Mentó, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Biagio Mentó petitions this court for a writ of mandamus compelling the circuit court to rule on his motion for postconviction relief, which he had reason to believe was still pending. We grant the petition.

In April 2002, Mentó filed a motion for postconviction relief, which the circuit court (the Honorable Kenneth D. Stern) denied in an order dated February 25, 2003. If the order was rendered on the same date, Mentó had until March 27, 2003, in which to appeal. Prior to that date, however, two other things transpired: on March 12, he filed his reply to the State’s response and, in an order dated March 21, the circuit court noted that it had received and reviewed Mento’s reply and ordered the State to file another response. Thus, it would have been reasonable for Mentó to assume that the circuit court was treating his reply as a motion for rehearing (for which it was timely filed, see Fla. R.Crim. P. 3.850(g)), deferring rendition of the order of denial until the circuit court should rule again, see Fla. R.App. P. 9.020(h)(1).

Not only did the circuit court order a response, but it granted the State no fewer than three extensions of time in which to respond. Finally, in December 2003, the State responded that it had no further argument. Nevertheless, the circuit court took no further action on the motion, and in March 2004, Mentó filed the instant petition for writ of mandamus with this court, seeking to compel the circuit court to rule. As he explained in a recent letter to the currently assigned circuit court judge, the Honorable Jorge Labarga, he had filed his motion two years earlier, believing a corrected scoresheet would entitle him to a non-prison sanction, he had obtained no relief from his prison sentence, and still he could not appeal.

Rather than entering a new ruling on the postconviction motion, the successor judge instead issued an order and then an amended order, both purporting to deny the petition for writ of mandamus which remains before this court, in which the successor judge explained that the predecessor judge’s order requiring a second State response was issued in error and that the February 2003 denial was meant to be the final disposition of his motion. With all due respect to the successor judge’s analysis, that is not at all apparent, especially in view of the extensions of time which the predecessor judge granted, none of which would have been necessary if the March 21, 2003 order actually had been issued in error.

We agree that Mentó is entitled to a new ruling on his postconviction motion, so that if it is again adverse he may file a timely notice of appeal. We therefore grant the petition and direct the circuit court forthwith to treat Mento’s reply as a timely motion for rehearing and issue an order resolving that motion.

STEVENSON, SHAHOOD and MAY, JJ., concur.

      . Mentó has stated under oath that he filed no petition for writ of mandamus in the circuit court, and the State has not disputed that statement.

      . We also treat Mento's petitions to strike the two orders with which the circuit court judge purported to resolve the instant mandamus petition as motions to vacate those orders and grant them, since the lower tribunal did not have the authority to rule on a petition pending before this court.


text:
    Leonte MARTINEZ and Sandra Martinez, Appellants, v. POLY-PLY CORP., Appellee.
    No. 3D04-502.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 2004.

      Friedman & Friedman, P.A. and Gary A. Friedman; Lauri Waldman Ross, Miami, and John Sullivan, Coral Gables, for appellant.
    Charles M-P George and Clinton D. Flagg, Coral Gables, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Appellants, Leonte Martinez and his wife, Sandra (“Martinez”), plaintiffs below, appeal from the trial court’s order granting Poly-Ply Corporation’s (“Poly-Ply”), defendant below, motion for new trial, which came after a jury verdict in Martinez’s favor. Martinez also appeals the denial of his motion for directed verdict on the issue of comparative negligence. For the following reason, we reverse the order granting a new trial and affirm the order denying the motion for a directed verdict.

The appellants filed a personal injury action against Poly-Ply for injuries sustained as a result of Leonte Martinez being struck in the knee by a metal loading ramp. He had been employed as a truck driver and was injured while picking up a delivery from Poly-Ply’s facility. He claims that Poly-Ply’s employee negligently operated a forklift in such a manner that a metal ramp was inadvertently removed and struck his left knee causing him permanent injury. Poly-Ply answered the complaint and raised Martinez’s comparative negligence as an affirmative defense.

Prior to trial, Martinez filed various motions in limine seeking to exclude any reference to his prior injuries, accidents, workers compensation claims and/or alleged drug use. In addition, Martinez moved to have a bifurcated trial on the issues of liability and damages. The court, without initial objection, granted Martinez’s motion for the bifurcation of the trial. Thereafter, by agreed motion, the trial court ordered that:

[liability will be tried first. A second jury will decide the damages issue, if necessary, on the court’s calendar in approximately three months following the liability trial.

In addition, the court ruled on the majority of Martinez’s motions in limine during the trial, and ultimately granted Poly-Ply permission to question and/or impeach Martinez about five separate incidents of past injuries.

During the trial on the issue of liability, Martinez presented two witnesses, both of whom were Poly-Ply employees. Both testified that forklifts are regularly used on their job to load and unload large rolls of plastic. One of these witnesses testified that Poly-Ply had no designated safety area where outside drivers, such as Martinez, were directed to stand while waiting for their trucks to be loaded. The other employee, a supervisor, testified that Poly-Ply did indeed have such an area and that it was Poly-Ply’s standard practice to instruct drivers to wait in that designated area. This witness acknowledged, however, that he didn’t know whether Martinez knew about or was instructed to stand in, the designated safety area. The supervisor further acknowledged that if the Poly-Ply forklift operator had injured Martinez while attempting to remove a “stuck” ramp with a forklift, the operator would have been at fault. Martinez rested r>his case without taking the stand.

Poly-Ply indicated that it would call Martinez as a witness in its own case in chief, but asked for a recess until the following morning. The next day, instead of calling Martinez, Poly-Ply moved for a directed verdict claiming that Martinez’s failure to take the stand had defeated his claim. The trial court denied the motion but apparently hinted that it might grant the motion if Martinez didn’t take the stand. The following colloquy between the court and Martinez’s counsel then transpired:

The Court: I think I have made it clear that I look forward to listening to the plaintiff in this cause.
Plaintiffs Counsel: The defense says they are not going to call the plaintiff, Judge.
The Court: I just said something to you. That’s all I said.

Thereafter, in its case in chief, Poly-Ply read portions of a deposition, and rested without calling and/or impeaching Martinez.

Martinez then moved for a directed verdict on both liability and comparative negligence. These motions were denied. The jury returned a verdict of liability against Poly-Ply finding it fifty-six percent (56%) responsible for Martinez’s injuries, and Martinez forty-four percent (44%) comparatively negligent.

Poly-Ply moved for a new trial on the grounds that: the verdict was contrary to the evidence and law; the court erred in failing to grant a direct verdict in Poly-Ply’s favor; the court erred in granting the motion in limine regarding the areas in which Poly-Ply could impeach Martinez; and the bifurcation of this case was error. The court granted the motion for new trial based upon its conclusion that it had:

erred in granting Plaintiffs Motion to Bifurcate the Trial of this cause and that the bifurcation prejudiced the Defendant’s ability to obtain a fair trial by unfairly limiting Defendant’s ability to effectively cross-examine and impeach the Plaintiff, Leonte Martinez.

Martinez appeals and argues that the trial court abused its discretion in ordering a new trial based upon unpreserved error. Essentially, Martinez asserts that where Poly-Ply had the opportunity to call Martinez to the stand as an adverse witness and impeach him, but elected no to do so, it cannot now complain that it was unduly prejudiced. We agree and reverse.

The court here found that Poly-Ply was unduly prejudiced from fully impeaching Martinez by its previous orders. The court’s previous rulings, however, had specifically permitted Poly-Ply to question Martinez on five (5) different “questionable” incidents of previous injury, yet Poly-Ply chose not to call Martinez as an adverse witness. Poly-Ply, therefore, waived this issue when it made the tactical decision to not call Martinez as a witness. The order for new trial was accordingly based on unpreserved error, and cannot stand. See KMart Corp. v. Hayes, 707 So.2d 957, 958 (Fla. 3d DCA 1998) (“That [a party’s] strategy backfired neither requires nor permits the court to allow [it] a new trial.”). See also Celentano v. Banker, 728 So.2d 244, 245 (Fla. 4th DCA 1998) (holding that trial court lacked jurisdiction to grant new trial on grounds that were not preserved for review or fundamental error.).

Martinez also appeals the denial of his motion for directed verdict. On this issue, we affirm. A trial court may direct a verdict only when the evidence and all reasonable inferences preclude a verdict for the nonmoving party. See Martinolich v. Golden Leaf Mgmt., Inc., 786 So.2d 613, 614 (Fla. 3d DCA 2001) (“In determining a motion for directed verdict, the evidence, and all reasonable inferences [sic] therefrom, must be viewed in a light most favorable to the non-moving party.” (quoting Woods v. Winn Dixie Stores, Inc., 621 So.2d 710, 711 (Fla. 3d DCA 1993))), rev. denied, 814 So.2d 439 (Fla.2002). See also Scott v. TPI Restaurants, Inc., 798 So.2d 907, 908 (Fla. 5th DCA 2001) (“A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.”) (quoting St. Johns River Water Mgmt. Dist. v. Femberg Geological Servs., 784 So.2d 500, 504 (Fla. 5th DCA 2001)). Here, based upon the evidence presented, we conclude that the question of whether there was an area of safety for drivers such as Martinez to stand while waiting for their trucks to be loaded was one for the jury. From the evidence, a jury could reasonably infer or conclude that there was indeed an area for drivers to sit or stand while their trucks were being loaded. Viewed in the light most favorable to Poly-Ply, the non-moving party, there was sufficient evidence for a jury to conclude that Martinez was comparatively negligent.

Accordingly, we reverse the order granting a new trial, affirm the denial of Martinez’s motion for directed verdict, and remand for the trial court to reinstate the jury verdict and to proceed with the trial on the issue of damages.

Affirmed in part, reversed in part and remanded.

      . In a subsequent motion for rehearing, Poly-Ply sought to withdraw its agreement to the bifurcation of the trial and object to the same, but the trial court denied the motion.

      . Apparently, this decision was based upon Poly-Ply's belief that its motion for directed verdict would be granted if Martinez did not testify at all in this case.


author: HAWKES, J.

text:
    J P MORGAN CHASE BANK, as Trustee for etc., Appellant, v. Lynn A. COMBEE, a/k/a Lynn A. Holmes Combee, etc., Appellee.
    No. 1D03-2950.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Rehearing Denied Oct. 8, 2004.

      Robert Garven, Coral Springs, for Appellant.
    None, for Appellee.
   HAWKES, J.

J P Morgan Chase Bank appeals the trial court’s order dismissing with prejudice its complaint against Appellee, Lynn Combee. We affirm.

A trial court has broad discretion to impose sanctions on litigants for their conduct before the court. See Riley v. Assoc. Home Equity Servs., Inc., 850 So.2d 661, 662 (Fla. 1st DCA 2003). Thus, we review a trial court’s imposition of sanctions for an abuse of discretion. See id. Because dismissal with prejudice is a harsh sanction, it should be used only sparingly. See e.g., Queen v. Adams Mark Hotel, 728 So.2d 804, 805 (Fla. 1st DCA 1999).

However, a trial court’s findings and judgment come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error. See e.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). The burden is on the appellant to demonstrate reversible error and present an adequate record for review. See e.g., Applegate, 377 So.2d at 1152; Lafaille, 837 So.2d at 604. Without an adequate record of the proceedings below, the appellate court cannot properly resolve factual issues to conclude the trial court’s judgment is not supported by evidence or an alternate theory. See Applegate, 377 So.2d at 1152. Moreover, “[w]ithout knowing the factual context, neither can an appellate court reasonably conclude that the trial court so misconceived the law as to require reversal.” Id. The trial court’s decision “could well be supported by evidence adduced at trial [or hearing] but not stated in the judge’s order or otherwise apparent in the incomplete record on appeal.” Id.

Here, the record indicates Morgan, a sophisticated party-plaintiff, received an order scheduling a case management conference for February 19, 2003. The order, in bold italicized language, stated that a failure to attend may result in dismissal of the case. Morgan attended that conference wherein the parties informed the court an agreement had been reached, but Morgan was unable to verify whether Combee completed the terms of the agreement as she claimed. Morgan, again, a sophisticated party-plaintiff, was informed that the court would reschedule the conference to be held within 60 days.

The order scheduling the second case management conference was identical to the first (i.e., contained the same warning of dismissal, and listed Morgan’s counsel as being copied), and scheduled the hearing for 64 days after the first hearing. Morgan failed to attend the second hearing and, in its motion for rehearing following receipt of the order of dismissal, argued it did not receive the order scheduling the second hearing. That the second order lists Morgan as being copied creates a rebuttable presumption that Morgan received the order. See Reich v. Dep’t of Health, 868 So.2d 1275, 1276 (Fla. 1st DCA 2004). Morgan’s denial of receipt of the order does not automatically overcome this presumption, but it does create a question of fact to be resolved through an evidentia-ry hearing. See id.

A hearing was held. However, Morgan failed to provide this court with a transcript from that proceeding. Thus, we are without any information as to what steps Morgan may have taken to inquire about the scheduling of the case management conference, whether the court found Morgan had actual notice of the conference, whether a settlement was reached and later breached, any prejudice either party may have suffered, or any number of other findings the trial court may have made, or argument the parties may have presented.

In essence, we are left with only one question: Could anything that would justify the dismissal with prejudice have occurred in any of the case management conferences or during rehearing? The answer to that question is “Yes.” Because the trial court’s order of dismissal comes with a presumption of correctness, without an adequate record, we must presume, as did the court in Applegate, that it was based on evidence adduced at the hearing. Consequently, the trial court’s order of dismissal with prejudice is AFFIRMED.

BROWNING, J., concurs; WOLF, C.J., concurs in result without opinion.


author: SILBERMAN, Judge.

text:
    Jason G. ZOOK, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-327.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   SILBERMAN, Judge.

Jason G. Zook appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Zook entered an open plea of guilty in seven cases to a total of six counts of burglary of a conveyance, one count of grand theft of a motor vehicle, one count of third-degree grand theft, one count of burglary of a dwelling, one count of dealing in stolen property, and four counts of petit theft. He was adjudicated guilty and received enhanced sentences as a prison re-leasee reoffender (PRR).

Zook raised six claims for relief in his rule 3.850 motion, one of which was also encompassed in the claim raised in his motion to correct illegal sentence. Because the trial court erred in denying Zook’s rule 3.850 claim that he was improperly sentenced as a PRR, we reverse and remand for resentencing. We affirm, without comment, the denial of Zook’s other claims.

In denying the PRR claim in case number 01-10927, the trial court concluded that Zook was properly sentenced as a PRR because he pleaded guilty to burglary of a dwelling. However, at the time that Zook committed that offense, the PRR statute did not specify that burglary of an unoccupied dwelling was a qualifying offense. See § 775.082(9)(a)(l)(q), Fla. Stat. (2000). In State v. Huggins, 802 So.2d 276, 276 (Fla.2001), the Florida Supreme Court approved the decision of the Fourth District Court of Appeal “which held that the Prison Releasee Reoffender Act is not applicable to a defendant who is convicted of burglary of an unoccupied dwelling.” See also Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001). Although section 775.082(9)(a)(1)(q) was amended in 2001 to reflect that burglary of a dwelling, whether occupied or not, would be a qualifying offense, the amendment did not take effect until July 1, 2001, and it could not be retroactively applied. See Downs v. Crosby, 874 So.2d 648, 651 (Fla. 2d DCA 2004); State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001). Because Zook’s offense took place before the effective date of the statutory amendment, the amendment does not apply to him and his sentence must be reversed.

Even though the trial court analyzed Zook’s claim in light of his conviction for burglary of a dwelling, the sentencing documents actually reflect that in case number 01-10927 the PRR sentence was imposed for the conviction of dealing in stolen property. If that was the offense for which the trial court intended to impose the PRR sentence, the sentence must still be reversed because dealing in stolen property is not a qualifying offense under the PRR statute. See § 775.082(9)(a)(l). Accordingly, in case number 01-10927, we reverse Zook’s sentence and remand for resentencing without the PRR enhancement.

Finally, the sentencing documents reflect that in case numbers 01-9953, 01-9954, 01-9955, 01-10083, and 01-10084, Zook was sentenced as a PRR for burglary of a conveyance. In case number 01-9956, Zook was sentenced as a PRR for both burglary of a conveyance and grand theft. Because none of the offenses qualify Zook for sentencing as a PRR under section 775.082(9)(a)(l), we reverse the sentences in those cases and remand for resentenc-ing without the PRR enhancement.

Accordingly, we reverse the denial of relief solely as to Zook’s sentences and remand for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.

      . The trial court case numbers are 01-9953, 01-9954, 01-9955, 01-9956, 01-10083, 01-10084, and 01-10927.

      . Zook actually filed two rule 3.850 motions for postconviction relief and a rule 3.800(a) motion to correct illegal sentence. In a cover letter accompanying his second rule 3.850 motion, Zook requested that the earlier motion be stricken. In the order denying relief, the trial court treated Zook’s letter as a request for voluntary dismissal of the first rule 3.850 motion, and the court dismissed the first motion. The trial court then denied the remaining rule 3.850 motion and the rule 3.800(a) motion.


text:
    Roger A. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3525.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2004.
    Rehearing Denied Oct. 13, 2004.
    Roger A. Miller, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    Moises BURYN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D04-315.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Rehearing Denied Oct. 13, 2004.

      John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Creech v. Orlando Leasing Sys., 765 So.2d 223 (Fla. 2d DCA 2000).


author: GERSTEN, J. SCHWARTZ, Chief Judge

text:
    Rosa Lee FISHER, individually and as Personal Representative of The Estate of Mark Anthony Fisher, Deceased, Appellant, v. MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 3D03-1176.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Rehearing Denied Oct. 13, 2004.
    Jay Rothlein, Miami Beach, for appellant.
    Robert A. Ginsburg, Miami Dade County Attorney, and Stephen A. Stieglitz, Assistant County Attorney, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   GERSTEN, J.

Rosa Lee Fisher, individually (“plaintiff’), and as the personal representative of Mark Anthony Fisher (“Fisher”), appeals the trial court’s order granting Miami-Dade County’s (“County”) motion for summary judgment. We affirm.

The pertinent facts are undisputed. In the early morning hours of January 17, 1997, Fisher was a passenger in a car driven by his friend, Robert Williams (“Williams”). At approximately 1:00 a.m., three men observed Williams’ car speeding through an intersection on N.W. 27th Avenue at about 100-120 miles per hour. A marked Miami-Dade police vehicle was in pursuit.

The three men attempted to follow the two cars but lost sight of the vehicles. When the men reached the intersection of N.W. 71st Street and N.W. 27th Avenue, they observed Williams’ car wrapped around a concrete metro-rail support pole. There were no police officers in sight. One of the men called 911 to report the accident. Williams died on the scene and Fisher was airlifted to Jackson Memorial Hospital, where he died.

It was later determined that Williams, who had several prior DUI convictions and multiple license suspensions, had a blood alcohol level of .23%. Fisher, meanwhile, had a blood alcohol level of .09%.

As determined in discovery, the Miami-Dade Police Department’s pursuit policy permits officers to engage in pursuits when they have a reasonable belief that the fleeing suspect has committed or attempted to commit a violent felony. All other pursuits are prohibited. There is no evidence, however, indicating: any calls to the Miami-Dade communications bureau from any police officers reporting a pursuit, the identity of the police officer or police vehicle involved in this pursuit, or how or why this pursuit commenced. There is also no evidence as to whether the officer knew or should have known that there was a passenger in the car he was pursuing. Furthermore, there is no evidence to show whether or not the officer abandoned the pursuit prior to the accident.

The plaintiff filed a complaint against the County for negligently conducting a pursuit contrary to sound police procedures and their own policy. The County sought summary judgment asserting that the police did not owe a duty to Fisher as a passenger in a fleeing vehicle.

The trial court determined that a police officer does not owe a duty to a passenger in a fleeing vehicle unless an officer knew or should have known of the passenger’s presence in the vehicle. This appeal followed.

Although Florida courts have addressed whether a duty is owed to innocent bystanders and whether a duty is owed to the drivers of fleeing vehicles, they have not addressed whether a police officer owes a duty to a passenger in a vehicle being pursued by the police. We determine there is no duty.

The Supreme Court, in City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992), held that the police owe a duty to innocent bystanders or third parties injured as a result of high speed chases of fleeing suspects. In City of Pinellas Park, the police initiated pursuit of a car that ran a red light. Between fourteen to twenty other police cars joined the pursuit at speeds up to 120 miles per hour. The vehicle being pursued struck another vehicle killing both female occupants of the other car. The Court held that the pursued vehicle “engaged in such reckless conduct primarily because he was being chased by the police, and that this misconduct would have ceased had the police discontinued the pursuit.” City of Pinellas Park, 604 So.2d at 1228.

However, in Bryant v. Beary, 766 So.2d 1157 (Fla. 5th DCA 2000), the Fifth District Court of Appeal held that the police do not owe a duty of care to active law breakers who are injured as the result of high speed chases. The court rationalized that “[cjommon sense and all rational notions of public policy dictate that a violator fleeing law enforcement who injures himself as a result of his own criminal misconduct should not be able to bring an action for negligence against the law enforcement officer trying to detain him.... ” Bryant, 766 So.2d at 1160. These cases distinguish a duty owed to an innocent bystander and the duty owed to the driver of a fleeing vehicle. The question raised in this case falls somewhere in between these two scenarios: Do the police owe a duty of care to the passenger of a fleeing vehicle, who is also involved in the chase.

Courts in other states have dealt with this issue yielding mixed results. In Michigan, Tennessee and North Carolina, the courts have held that the police do not owe a duty of care to a voluntary passenger in a car fleeing from the police. See Fawcett v. Adreon, 2001 WL 950159 (Tenn.Ct.App. 2001); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999); Robinson v. City of Detroit, 225 Mich.App. 14, 571 N.W.2d 34, 36 (1997). But a Texas court held that the police owed a statutory duty to the passenger in a fleeing vehicle based on a statute which provided drivers of emergency vehicles have a duty to drive with due regard to the safety of all persons. See City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994). The statute, however, has since been repealed.

We therefore must weigh the countervailing obvious considerations the Robinson court faced, to wit:

In police chase, civil liability cases, there seems to be no optimal judicial solution to the perplexing question of how to simultaneously protect the public from (1) victimization by suspects who flee the scene of the crime and (2) accidents that may result from the chase to apprehend the criminal suspect. To impose liability upon the police for accidents attendant to the chase may have the undesirable chilling effect upon law enforcement to the detriment of public safety. Yet, to refrain from imposing civil liability may expose innocent citizens to an increased risk of harm from accidents.

Robinson v. City of Detroit, 571 N.W.2d at 35.

We agree with the Robinson analysis, yet add an additional factor. This factor is the overwhelming burden placed on the police to perform the impractical, if not impossible task of determining, even if they knew a passenger was in a car, whether that passenger was a participant in a crime. By requiring police officers to first determine if there was a passenger and then determining if the passenger was involved in a crime would essentially halt any police pursuit. That result makes no sense considering that the police are our thin blue line protecting society.

Accordingly, we affirm the trial court’s order granting summary judgment.

AFFIRMED.

WELLS, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

While I agree with affirmance, I wish to emphasize that my opinion does not stem, as portions of the majority opinion indicate, from any thought that an appraisal of the officer’s conduct may be influenced by the presence of a passenger in the vehicle she is (arguendo negligently) pursuing. Her conduct will be deemed negligent or not — certainly with respect to an innocent third party on the highway — whether there is or is not a passenger and whether she is or is not aware of his presence. Thus, the dispositive issue of whether a passenger in a fleeing vehicle is owed a “duty” of care by the pursuer is determined, as I have previously suggested, simply by a consideration of whether we believe that one should. See Poleyeff v. Seville Beach Hotel Corp., 782 So.2d 422, 425 (Fla. 3d DCA 2001)(“a common law duty exists when a court says it does because it thinks it should”), review denied, 817 So.2d 849 (Fla.2002). Balancing the competing interests, see Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), I agree with the conclusion that the line of duty should be drawn on the other side of a voluntary passenger. Accord Fawcett v. Adreon, 2001 WL 950159 (Tenn.Ct.App.2001); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999). Applying that principle to this case, in which the deceased passenger was apparently on a mutual personal excursion involving alcohol with the driver, see Loftin v. Bryan, 63 So.2d 310 (Fla.1953), results in affirmance.

      . Not to draw the line too fine, however, I point out the real possibility of a different result if it is shown, even after the accident and unknown to the officer, that a child or un willing, perhaps kidnapped adult, has been present. Cf. Robinson v. City of Detroit, 462 Mich. at 439, 613 N.W.2d at 307 (extending duty to innocent passenger, but placing burden on passenger to establish innocence).
      Query: Whether the fleeing driver is a proper Fabre defendant in an action by such a passenger or in an innocent bystander case such as City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992).


author: COVINGTON, Judge.

text:
    BELCHER CENTER LLC, Appellant, v. BELCHER CENTER, INC.; Connie M. Geiger; William Z. Geiger, Jr.; and William Z. Geiger Irrevocable Trust, Appellees.
    No. 2D04-1113.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.

      Thomas G. Hersem, Clearwater, for Appellant.
    Murray B. Silverstein and Monique E. Parker of Law Offices of Murray B. Silver-stein, P.A., St. Petersburg, for Appellees.
   COVINGTON, Judge.

Belcher Center LLC filed a complaint to quiet title to property conveyed by deed to a corporation that did not exist at the date of the conveyance. On the motion of the grantee, Belcher Center, Inc., asserting estoppel by deed and equitable estoppel, the circuit court dismissed with prejudice the complaint and related lis pendens. We reverse.

The Division of Corporations declined to incorporate Belcher Center, Inc., on the date of the conveyance due to a similar name issue. It was incorporated the following year. The complaint did not include a copy of the challenged warranty deed.

When considering an order granting a motion to dismiss, the de novo standard of review applies. Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001). On a motion to dismiss for failure to state a cause of action, a trial court is confined to the four corners of the complaint, and the material allegations of the complaint must be taken as true. Davidson v. Iona-McGregor Fire Prot. & Rescue Dist., 674 So.2d 858, 859 (Fla. 2d DCA 1996). If the court is required to consider matters outside of the four corners of the complaint, then the cause is not subject to dismissal on the basis of an affirmative defense. Value Rent-A-Car, Inc. v. Grace, 794 So.2d 619, 621 (Fla. 2d DCA 2001).

The complaint states a cause of action. Belcher Center LLC correctly asserts that a deed from the owner to a nonexistent entity is a nullity, see Daniels v. Berry, 513 So.2d 250, 251 (Fla. 5th DCA 1987), and a deed not containing the names of the grantees is void, see Simpson v. Hirshberg, 159 Fla. 25, 30 So.2d 912, 912 (1947). We, therefore, must reverse the dismissal with prejudice for further proceedings to consider the application of the affirmative defense of the doctrine of es-toppel by deed or equitable estoppel.

Either doctrine, if applicable, would preclude Belcher Center LLC from asserting any right in derogation of the deed or from denying the truth of any material fact asserted in the deed. See Trs. of the Internal Improvement Fund v. Lobean, 127 So.2d 98, 102 (Fla.1961). Legal estop-pel or estoppel by deed is determined by the intention of the parties as expressed in the deed, and whether or not legal estop-pel may be applied in a given case is dependent entirely on the language used in the deed or which appears on the face of the instrument. Id. Because the circuit court looked outside the four corners of the complaint in ruling on the motion to dismiss, we reinstate the complaint and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


text:
    Charles MOGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3735.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 2004.
    Rehearing Denied Oct. 29, 2004.
    Benedict P. Kuehne and Susan Dmitrov-sky of Sale & Kuehne, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant’s 3.850 motion for post-conviction relief, which was summarily denied, asserted that his counsel was ineffective for having misadvised him as to the maximum sentence he could receive and other things which induced him to plead guilty. Attached to his motion was his trial counsel’s response to the complaint appellant made to the Florida Bar. Counsel’s response refuted appellant’s allegations of misadvise; however, the response, which was not sworn, was not part of the record. Accordingly, the court should not have relied on the response to refute appellant’s factual allegations. Gholston v. State, 648 So.2d 192 (Fla. 1st DCA 1994); Flores v. State, 662 So.2d 1350 (Fla. 2d DCA 1995). Reversed.

WARNER, POLEN and KLEIN, JJ., concur.


text:
    JS IMPORTS, INC. d/b/a West Palm Kia, Kia Motors Corp., and Kia Motors America, Inc., Appellants, v. Miriam CINTRON, as Personal Representative of the Estate of Angeline Christine Cintron, deceased, Appellee.
    Nos. 4D03-583, 4D03-584.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 2004.
    Rehearing Denied Oct. 29, 2004.
    Julissa Rodriguez, Arthur J. England, Jr. and Charles M. Auslander of Green-berg Traurig, P.A., Miami, and Karl E. Pearson, Millette E. Webber of Roth, Powell, Pearson & Hosley, P.A., Winter Park, for appellants.

      Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, Theodore Babbit of Babbit, Johnson, Osborne & LeClainche, P.A., West Pam Beach, and C. Tab Turner of Turner & Associates, P.A., North Little Rock, AR, for appellee.
   PER CURIAM.

We find no error in the trial court’s denial of JS’s attorney’s fees and costs. JS should not have a second opportunity to prove up fees and costs that should have been apportioned at the fee hearing.

AFFIRMED.

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


author: WARNER, J.

text:
    Dennis SHIMKO, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-4468, 4D03-18.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 28, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Dennis Shimko, appeals his conviction for indecent assault of his two step-granddaughters. We reverse the conviction because the trial court erred in permitting the state to insinuate impeaching facts in the questioning of a defense witness without having evidence of those facts. As the entire case was a credibility-contest between the victims and Shimko, the error was not harmless.

Shimko was charged with multiple counts of indecent assault of his step-granddaughters. During a period of their childhood, the granddaughters lived with their mother, grandmother, and Shimko, their step-grandfather. At the time, the children were four and six years old.

About ten years later, one of the daughters told her high school friend that Shim-ko had inappropriately touched her and her sister when they were little. The mother of the friend told the girls’ mother who reported it to the police.

The girls both testified at trial to multiple incidents, occurring over several years, of Shimko inappropriately touching their genitals and breasts. The older daughter remembers one occasion when Shimko digitally penetrated her vagina. The only evidence of the crime was the statements of the children. No physical evidence, confessions, or other corroborating details were present.

Credibility of the witnesses was the only issue at trial. Either the girls, or Shimko, who testified to his innocence, were telling the truth. To impeach the girls’ testimony, the defense put on witnesses who testified as to the girls’ bad reputation for truth and veracity, and to the fact that they made false allegations of sexual misconduct against others.

One witness was the assistant principal at the high school the girls attended. He was accused by the older girl of opening her jacket and looking at her breasts. He testified that when a complaint is made against a school employee, the complaint must be “immediately referred to the principal who immediately refers it to the school board’s Special Investigative Unit for investigation.” He was questioned by a school board investigator and the allegation was determined to be unfounded.

On cross-examination, the state elicited testimony from the assistant principal that the investigation of complaints may be conducted within the school or by the school board. The witness testified that his investigation was conducted by the school board. The following colloquy took place:

State: Have you ever heard of the name Ruth Goldstein?
Witness: Never, never.
State: Okay. Do you know anybody that works over in the office of the Professional Standards Administrative Office, the Special Investigative Unit?
Witness: Sure, I know several people.
State: Would it surprise you to know that they have absolutely no record of this—
Defense: Objection, hearsay.
State: Would it surprise you to know that they have absolutely no record of the investigation?
Defense: Objection, hearsay, your Hon- or.
Court: Overruled.
Defense: And calling in a question to something that’s not testified to.
State: I’m asking him if he knows.
Court: Overruled.
State: Would it surprise you to know [that] fact? ... Would it surprise you to know that the School Board Office, the Office of Professional Standards and the Special Investigative Unit have absolutely no record of this investigation? Defense: Your Honor, I’m going to object, because I believe that Counsel is testifying.
Court: Overruled.
Defense: And this is not in evidence. Unless they have some documentation to show that. Could we approach, your Honor.
Court: Overruled, not this time.

After establishing that the school principal and the assistant principal have a friendly relationship, the state suggested through questions that the principal would have an interest in doing an in-house investigation of the charges against the assistant principal. The assistant principal testified that allegations of sexual misconduct are generally investigated by the school board.

During closing argument, the prosecutor actually quoted the objected to questions again regarding whether the assistant principal would be surprised to know that the school board had no record of the investigation. He then proceeded to suggest to the jury that the witness’s statement that he was investigated by the school board was inconsistent with his testimony that some allegations were investigated by the school itself. The prosecutor said the witness’s credibility was in question because of this discrepancy. He asserted that the fact that a finding that the allegations were unfounded did not mean that they were untrue. The prosecutor spent a considerable amount of time in closing dealing with the assistant principal’s testimony. The jury convicted Shim-ko, and he appeals.

It is impermissible for the state to insinuate impeaching facts while questioning a defense witness without evidence to back up those facts. See Smith v. State, 414 So.2d 7, 7 (Fla. 3d DCA 1982). Although this rule has most often been applied when the state seeks to impeach a witness by questioning him about criminal convictions even though the state does not have proof of the convictions, see, e.g., Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977), its application has not been limited to this context. See Marsh v. State, 202 So.2d 222 (Fla. 3d DCA 1967) (ordering new trial where state asked defendant on cross-examination whether it was true that he bragged to a barmaid about his plans to break into a building in order to steal a safe and then failed to present testimony of barmaid to this effect). In this case, the state did not present evidence at trial that the school board had no record of any investigation of the allegation against the assistant principal. Therefore, it was error for the trial court to overrule Shimko’s objection to the state’s question.

The state counters that Shimko opened the door to the complained of question by having the assistant principal testify that there was an investigation. As Shimko counters in reply, his questioning of the witness as to the investigation did not “open the door” to the state to insinuate incriminating facts without supporting evidence. The state could have called a representative of the school board to testify that no record of any such investigation existed. The prosecutor could not simply tell the jury that “fact” through his questioning.

We do not deem this to be harmless error. The credibility of the accusers was central to the entire case. Whether the accusers made false allegations against others was a key part of the defense. Through the insinuation of this impeaching evidence, the prosecutor deflated the credibility of the defense witness, using this same insinuating statement in closing argument to attack the witness’s credibility.

The conviction and sentence are reversed. The case is remanded for a new trial.

KLEIN and GROSS, JJ., concur.


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    AVATAR DEVELOPMENT CORPORATION, Appellant, v. DePANI CONSTRUCTION, INC., Appellee.
    No. 4D03-3244.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 28, 2004.
    John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    Robert E. Ferencik, Jr. and Lisa K. North of Ferencik Libanoff Brandt Busta-mante and Williams, P.A., Fort Lauder-dale, for appellee.
   WARNER, J.

Avatar Development Corporation appeals from a trial court order denying it prevailing party attorney’s fees in a breach of contract and construction lien litigation, even though Avatar had prevailed on significant issues in the litigation. Because appellee DePani Construction, Inc. also prevailed on one claim, the trial court refused to award attorney’s fees. We conclude that under the particular facts of this case, where the parties treated the two claims as separate, and DePani actually recovered fees on the claim on which it prevailed, the court erred in refusing to award attorney’s fees to Avatar on the claim on which it prevailed.

DePani, a stucco contractor, entered into a contract with Avatar to perform stucco work on a residential development. The contract contained a termination clause allowing Avatar to terminate DePani’s services “at any time for any reason by giving at least ten (10) days prior written notice.” Upon termination DePani was “entitled to payment for work finished, installed, or in process which is acceptable to the Company.”

Avatar terminated the contract pursuant to this clause, and DePani sued for breach of contract, foreclosure of a construction lien for nonpayment of materials and services already performed, and a declaratory judgment to interpret the termination clause. The court held a bench trial on the declaratory judgment count and ruled in favor of DePani, finding that the termination clause was not enforceable. Before the court resolved the remaining issues, Avatar and DePani settled the construction lien foreclosure count, including the attorney’s fees awardable to DePani under that count. The case went to jury trial on the issue of lost profit damages during the remaining term of the contract, on the theory that Avatar had breached the contract by exercising the termination clause. The jury returned a substantial verdict in favor of DePani for lost profits.

Avatar appealed the final judgment, and this court reversed the lower court’s underlying declaration that the termination clause was not enforceable. See Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876 (Fla. 4th DCA 2002), rev. denied, 848 So.2d 1153 (Fla.2003). This court conditionally granted attorney’s fees on appeal pending the trial court’s determination of which party prevailed following further proceedings. In the interim, DePani sought relief in the Florida Supreme Court. The supreme court denied review but granted Avatar’s motion for attorney’s fees and awarded it $2,500.

The matter returned to the trial court, and both parties filed motions for attorney’s fees and costs and motions for entry of final judgment in their favor. At the hearing, the trial court expressed reluctance to grant Avatar fees when the trial judge believed that Avatar had taken unfair advantage of DePani, even though this court ruled that the termination clause was enforceable. It therefore vacated all prior judgments and awarded Avatar $22,000 for fees from the appeal to this court, appellate costs, and $2,500 for fees relating to DePani’s request for supreme court review. Noting that both parties prevailed on significant issues in the litigation, the court did not award Avatar trial court fees or costs.

Avatar argues that DePani’s breach of contract claim, which hinged on the validity of the termination clause and sought future damages, was separate and distinct from the construction lien claim seeking damages for completed work. Thus, there could be a prevailing party on each claim within the lawsuit. The determination of whether multiple claims within a lawsuit are separate and distinct for purposes of an award of attorney’s fees is a matter of law to be reviewed de novo. Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002).

In Folta v. Bolton, 498 So.2d 440, 442 (Fla.1986), the court held that in a multicount complaint, where each claim is separate and distinct, the prevailing party on each distinct claim is entitled to an award of attorney’s fees incurred in connection with that claim. The court explained that claims are separate and distinct when they could support an independent action and are not simply alternative theories of liability for the same wrong. 493 So.2d at 442. The medical malpractice claims in Folta involved different medical providers performing different procedures. Id. at 441.

We applied Folta to a single contractual relationship in Fielder v. Weinstein Design Group, Inc., 842 So.2d 879, 880 (Fla. 4th DCA 2003). There, an interior designer sued a client for unpaid merchandise. The client counterclaimed for improper charges of supervision, overhead, and profit on previously paid invoices. Both claims arose out of the single contractual relationship regarding interior design services on the home. Our court found that these constituted separate and distinct claims under Folta. 842 So.2d at 880. The trial court found that the homeowner had not prevailed on her counterclaim, but we concluded that she had prevailed on the interi- or designer’s claim and was entitled to attorney’s fees for defending that claim. Id.

In this case, DePani sued to foreclose a construction lien for completed work. This was settled prior to trial, and the parties agreed to DePani’s attorney’s fees in connection with the foreclosure of the lien. DePani was entitled to statutory fees for this claim. In a separate count, which was the subject of the jury trial, DePani also sued for future lost profits pursuant to the contract. It recovered a judgment for the future lost profits, not for the completed work. We reversed that judgment based upon the termination clause, and judgment was entered in favor of Avatar. Thus, Avatar was the prevailing party as to the claim for future profits.

Consistent with Fielder, we conclude that the construction lien foreclosure claim was separate and distinct from the claim for loss of future profits. The prevailing party on each claim was entitled to attorney’s fees. Therefore, pursuant to Folta, DePani was entitled to attorney’s fees on the construction lien foreclosure action, and Avatar was entitled to attorney’s fees on the contractual claim for future lost profits. DePani actually recovered fees on the construction lien foreclosure action, but the trial court erred in denying fees to Avatar for the claim on which it prevailed.

We reverse the denial of attorney’s fees to Avatar for the defense of the claim for future lost profits. We remand for further proceedings.

KLEIN and TAYLOR, JJ., concur.


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    HOUSEHOLD FINANCE SERVICES, INC., et al., Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D03-3439.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      William S. Graessle of William S. Graes-sle & Assoc., P.A., Jacksonville, for appellant.
    Victor H. Veschio of Nixon Firm, LLC, Tampa, for appellee.
   WARNER, J.

At issue in this appeal is whether a junior mortgagee, joined as a defendant in a foreclosure action and against whom a default has been entered, may later claim entitlement to the surplus funds remaining after a foreclosure sale. Specifically, we consider whether that junior mortgagee has priority to the surplus over an assign-ee of the mortgagor. We hold that a junior mortgagee has priority and affirm.

Federal Home Loan Mortgage instituted a mortgage foreclosure action against mortgagor Marcus Kostolich and others, including Bank of America. Federal alleged that the Bank had a mortgage interest in the subject property inferior to its lien. After receiving service of process, the Bank defaulted by failing to file an answer. Federal proceeded to judgment of foreclosure, and the property was sold in a foreclosure sale. Federal was paid the amount of its judgment, and the remaining proceeds were ordered to be retained by the clerk pending further order of the court.

Kostolich filed an objection to the sale but later withdrew it after executing an assignment of his interest in the surplus funds to appellant, Household Finance Services. Household then filed a motion to disburse the surplus funds to it. Before that motion was heard, Bank of America filed a notice of appearance and motion to disburse the surplus funds to it, alleging that its second mortgage entitled it to the surplus generated from the foreclosure sale. The trial court held a hearing after which the court ordered disbursement to the Bank as its lien was superior to Household’s claim. Household appeals that order.

In determining who is entitled to surplus funds in a mortgage foreclosure, the general rule is that all encumbrances on mortgaged premises inferior to the mortgage on which the sale is based must be paid in order of time in which they respectively became liens, unless some equitable right demands a different order of payment. Tucker v. Crown Corp., 136 Fla. 517, 183 So. 740, 745 (1938); Waybright v. Turner, 129 Fla. 310, 176 So. 424, 428 (1937). The lien of the junior mortgage is not extinguished in the foreclosure but is instead transferred from the property to the fund that stands in the place of the property. Waybrigkt, 176 So. at 428.

Household contends that the default against the Bank precludes the Bank from claiming entitlement to the surplus. A default admits only the well pled allegations of the complaint. Thus, when the Bank defaulted, all it admitted was the superiority of Federal’s lien to its own and Federal’s right to foreclose the Bank’s lien interest in the property. In Schroth v. Cape Coral Bank, 377 So.2d 50, 51 (Fla. 2d DCA 1979), the court held that a property owner who did not appear in a mortgage foreclosure action until after the sale could still assert a claim to any surplus. The court remanded with directions to the trial court to hold a hearing “to determine the rights to the excess proceeds of all claimants who were defendants in the foreclosure suit, irrespective of whether they filed responsive pleadings.” Id. (emphasis added). See also Hamilton v. Hughes, 737 So.2d 1248 (Fla. 5th DCA 1999).

Bank of America was named as a defendant in the mortgage foreclosure as a junior mortgagee. It was entitled to assert its claim to the surplus proceeds. We affirm the order of the trial court.

KLEIN and HAZOURI, JJ., concur.


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    Michael I. ROSE, Appellant, v. Rona ROSE, Appellee.
    No. 3D03-1213.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Michael I. Rose, in proper person; and Martin Feigenbaum, Miami, for appellant.
    Nancy A. Hass; and Mark Bain, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Michael Rose (“husband”) appeals an order granting his wife, Roña Rose (“wife”), temporary attorneys fees and costs in a dissolution proceeding. We affirm.

After eight years of marriage and one child, the wife, a thirty-six year old full-time homemaker, sought a dissolution of marriage from her fifty-seven year old husband. Thereafter, the wife filed a motion for an interim award of attorney’s fees and costs. At the time of the temporary fee hearing, the husband, a successful attorney, listed assets on his financial affidavit in excess of $2,700,000.00. These assets included the parties’ marital residence ($2,500,000) and the husband’s Bentley ($80,000).

During the course of the three day temporary fee hearing, evidence was presented that the husband’s annual income from his law practice was approximately $400,000. The wife had no income or assets. Both parties presented expert witness testimony from forensic accountants. At the conclusion of the proceedings, the trial court awarded the wife $120,000 in attorney’s fees, and $15,000 in accounting costs.

Section 61.16, Florida Statutes (2003), authorizes interim awards of attorney’s fees, suit money, and costs. The purpose of Section 61.16, is to make certain that both parties to a dissolution proceeding have similar access to counsel. See Pefaur v. Pefaur, 617 So.2d 425 (Fla. 3d DCA 1993)(“[T]he law does not permit one party with substantial means to overpower the other by denying that party the right to equal representation.”). As emphasized by the Florida Supreme Court, interim awards of attorney’s fees and costs are required “to mitigate the harm an impecunious spouse would suffer where the other spouse’s financial advantage accords him or her an unfair ability to obtain legal assistance.” Nichols v. Nichols, 519 So.2d 620, 621-22 (Fla.1988).

Trial courts have broad discretion in ordering the payment of temporary fees and costs based upon the parties’ respective need and ability to pay. See Pedraja v. Garcia, 667 So.2d 461 (Fla. 4th DCA 1996). In the present case, we find no abusé of discretion in the trial courts well-reasoned order which requires the husband to pay the wife’s temporary attorney’s fees and costs in order to equalize the representation of the parties.

The record amply supports the trial court’s findings based upon the significant disparity in the parties’ overall financial circumstances and earning capacities. Moreover, the wife met her burden of proving the reasonableness of the fees and the necessity of the fees sought. See Safford v. Safford, 656 So.2d 485 (Fla. 2d DCA 1994). Accordingly, we affirm the order below in all respects. See 61.16, Fla. Stat. (2003); Nash v. Nash, 688 So.2d 428 (Fla. 3d DCA 1997); Piluso v. Piluso, 622 So.2d 117 (Fla. 4th DCA 1993).

Affirmed.

      . Evidence was also presented that the husband had a pattern of borrowing from credit cards, credit lines and banks to pay his bills. The husband used his credit card to pay his own attorney and accountant in the amount of $47,000 and $9,000. Just prior to the temporary fee hearing, the husband received $480,000 in settlement monies from an arbitration proceeding. The husband used these fund to pay his personal debts.


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    Rodney HOLMES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D02-3426, 3D02-3425.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    John M. Weinberg, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

Rodney Holmes appeals his convictions and sentences in Miami-Dade County Circuit Court case number 01-18524 (“the 2001 case”) and his revocation of probation in Miami-Dade County Circuit Court case number 98-28785 (“the 1998 case”). We affirm.

In the 2001 case, defendant-appellant Holmes argues that the trial court abused its discretion in granting a thirteen-day delay between the first and second day of voir dire examination of the prospective jurors. He argues that such a delay is impermissible under this court’s decision in McDermott v. State, 383 So.2d 712 (Fla. 3d DCA 1980).

The defendant had demanded a speedy trial, with the last day of the fifty-day period being May 28, 2002. See Fla. R.Crim. P. 3.191(b). The trial court granted a thirty-day extension for exceptional circumstances. See id. R. 3.191(i).

The court also (apparently in an abundance of caution) commenced jury selection on May 28, the final day of the fifty-day period. Upon the swearing of the prospective jurors for voir dire examination, this constituted a commencement of trial for purposes of the speedy trial rule. See id. R. 3.191(c). Thus, the trial commenced timely for purposes of the speedy trial rule.

The defendant argues, however, that a gap in the proceedings of thirteen days is impermissible. We reject the defendant’s argument on authority of Johnson v. State, 660 So.2d 648 (Fla.1995). In that case a twenty-four-day delay was found permissible between the conclusion of voir dire and the commencement of trial. Id. at 660. The court said:

We further find that the delay between voir dire and trial was entirely justified because there was a genuine problem in trial scheduling due to the variety of charges pending against Johnson. Moreover, we distinguish the present case from McDermott v. State, 383 So.2d 712 (Fla. 3d DCA 1980), upon which Johnson principally relies. The problem addressed in McDermott and similar cases was lengthy delays after the final jury panel is sworn. The record here clearly reflects that the jury was not sworn until the day trial commenced, which is a reasonable procedure when a trial court faces scheduling problems such as occurred here. The swearing in of jurors marks the point at which jeopardy attaches, which raises distinctly different problems than would exist beforehand. Thus, we see nothing unlawful in the procedure used here, particularly in light of today’s docketing problems and speedy-trial requirements.

Id. at 661.

In the present case, the thirteen-day delay is shorter than the delay involved in Johnson. In this case, as in Johnson, there was good cause for the continuance of the proceedings. There has been no showing of any legally cognizable prejudice to the defendant on account of the delay. See also Hernandez v. State, 572 So.2d 969, 972 n. 2 (Fla. 3d DCA 1990) (eleven-day delay; no showing of prejudice); Compo v. State, 525 So.2d 505, 506 (Fla. 2d DCA 1988) (twelve-day delay; no showing of prejudice).

In this case, as in Johnson, the defendant’s reliance on the McDermott decision is misplaced. See Johnson, 660 So.2d at 661. In this case, as in Johnson, the delay occurred before the jury was sworn for the trial. See id.

The defendant next argues that the trial court should have sustained defense objections that three preemptory challenges exercised by the State were pretextual. We conclude that the trial court’s rulings were consistent with Melbourne v. State, 679 So.2d 759, 764 (Fla.1996).

The defendant challenges the sentences he received in the 2001 case under the ten-twenty-life law. While the trial court’s oral pronouncement was for consecutive life sentences, the written sentencing order reflects concurrent sentences in the 2001 case. The State concedes that the written sentencing order is correct in light of later case law. See Green v. State, 845 So.2d 895 (Fla. 3d DCA 2003).

We find no error in the revocation of the defendant’s probation in the 1998 case.

Affirmed.

       The State may be correct that in an earlier hearing on April 29, the defendant had already waived the speedy trial demand. In view of the fact that jury selection began in any event within the speedy trial period, we need not consider the waiver issue any further.

       The oral pronouncement, and written order, both provide that the sentences in the 2001 case are consecutive to those in the 1998 case.