author: SHARP, W., J.

text:
    T & G CONSTRUCTORS, INC., Appellant, v. PRO-TECH CONDITIONING AND HEATING SERVICE, INC., Appellee.
    Nos. 5D01-3546, 5D02-353.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2002.
    Rehearing Denied Jan. 15, 2003.

      Kimberly A. Ashby of Akerman, Senter-fitt & Eidson, P.A., Orlando, for Appellant.
    Rosemary Hanna Hayes of Hayes & Associates, Orlando, for Appellees.
   SHARP, W., J.

T & G Constructors, Inc. appeals from a final summary judgment against it in favor of Pro-Tech Air Conditioning and Heating Service, Inc. T & G was the general contractor on a construction project known as “Rolling Hills Elementary School Renovation.” Pro-Tech subcontracted to do the HVAC work on the project. It completed phase I of the work in August 1999 and Phase II (the final phase) in February 2000. T & G refused to pay an outstanding balance owed Pro-Tech of $18,000.00 in connection with Phase I. Later payments reduced the balance to $16,000.

Two lawsuits were filed to resolve this matter. The first was filed on July 17, 2000, by Pro-Tech against Reliance Insurance Company, the surety on a payment bond obtained by T & G pursuant to section 255.05, Florida Statutes, in conjunction with this construction project. T & G was not a party to that lawsuit. The second suit (this one) was filed on December 19, 2000, by T & G against Pro-Tech for breach of contract relating to the same construction project.

The case against Reliance went to trial on August 2, 2001, before any ruling had been made on Pro-Tech’s motion for summary final judgment in this case. In the first suit the court granted Pro-Tech a directed verdict and final judgment was entered in favor of the subcontractor, against the surety in the amount of $18,986.00 on August 28, 2001. On October 25, 2001, after a hearing, the trial court entered summary final judgment in favor of Pro-Tech in this case.

On appeal, T & G argues that it should not be bound by the judicial doctrines of res judicata or collateral estoppel regarding the first lawsuit and that, although not expressly stated by the trial judge in the summary judgment ruling, they were the only grounds for its summary judgment, given the existence of disputed issues of fact raised by the pleadings. We affirm for the reasons stated below. In both lawsuits, the same issue was raised: that the subcontractor, Pro-Tech, had failed to perform the work in accordance with the plans and specifications because it installed cast iron AHU stands, while the specifications provided for vertical-mounted units with zinc coated, galvanized steel sub-base with baked enamel finish. This omission allegedly caused damage and necessitated repair or replacement of the stands.

In this tale of two lawsuits, it is still unclear to this court why T & G, the general contractor, did not intervene in the first lawsuit or why the two lawsuits were not consolidated. In our view, failure to do so unnecessarily complicated this litigation over a comparatively small sum of money. We have been asked to take judicial notice of both records in the two cases, since both are currently on appeal in this court, and we have done so.

Pro-Tech contends the final summary judgment should be affirmed in this case because T & G’s claims against it constituted grounds for a compulsory counterclaim in the suit against Reliance. Thus, the claim cannot now be asserted. We reject this theory. Florida Rule of Civil Procedure 1.170, which governs compulsory counterclaims, applies only to parties. T & G was not a party in the case against the surety, Reliance.

Pro-Tech also argues the summary judgment against T & G can be sustained on grounds of collateral estoppel or res judicata. However, for res judicata to apply, four identities must occur simultaneously: 1) identity of the things sued for, 2) identity of the cause of action, 3) identity of the parties, and 4) identity of the quality or capacity in the person for or against whom the claim is made. InterActive Services, Inc. v. Heathrow Master Ass’n., 809 So.2d 900, 902 (Fla. 5th DCA 2002). As noted above, T & G was not a party to the suit against Reliance. With regard to collateral estoppel, the relationship between a surety and its principal does not under established caselaw necessarily bind one as to a judgment against the other. See California Bridge & Constr. v. United States, 50 Ct.Cl. 40 (1915); Pye v. Department of Transp., 513 F.2d 290 (5th Cir.1975); Park v. Ensign, 66 Kan. 50, 71 P. 230 (1903).

Certain judgments involving sureties and principals are given preclusive effect. Section 68 Restatement of the Law (Third) Suretyship and Guaranty (1996) describes the preclusive effect of the judgments against sureties in later actions against principals. Restatement of the Law (Third), Suretyship and Guaranty § 68(1) (1996). Subsection (2) addresses the situation where the creditor sues the surety and wins. The comments describe circumstances which bind the principal in a subsequent suit against it brought by the surety.

In this case, however, the suit is being brought by the principal against the successful creditor (Pro-Tech). We have found no case in which the doctrine of collateral estoppel was applied to give pre-clusive effect to issues litigated in a prior action between the surety and the creditor, in a later suit between the principal and the creditor. By way of dictum in Lathan Construction Corp. v. McDaniel Grading, Inc., 695 So.2d 354 (Fla. 5th DCA 1996), this court indicated no collateral estoppel effect would be given to a judgment in favor of a subcontractor and against the surety in a separate action brought by the contractor against the subcontractor. That case suggests no preclusive effect should be given to the judgment in this case obtained by Pro-Tech against Reliance in T & G’s later suit against Pro-Tech.

However, in the documents submitted to this court there was an indemnification agreement entered into between T & G and Reliance. It states that T & G agrees:

FOURTH: To assign, transfer and convey, and each of the Undersigned does by these presents assign, transfer and convey to the Surety, as of the date of execution of said Bond or Bonds, as collateral security for the full performance of the covenants and agreements contained and the payment of any other indebtedness or liability of the Undersigned to the Surety, whether heretofore or hereinafter incurred, the following:
(b) All rights, actions, causes of action, claims and demands of the undersigned in, or arising from, or out of, said contract or any extensions, modifications, changes, or alternations thereof or additions thereto;
(c) All rights actions, causes of action, claims and demands whatsoever which the Undersigned or any of them may have or acquire in any subcontract in connection with said contract, ■ and against any subcontractor or any person, firm or corporation furnishing or agreeing to furnish or supply labor, materials, supplies, machinery, tolls or other equipment in connection with or on account of said contract, and against any surety or sureties of any such material-men, subcontractor, laborer or other person, firm or corporation .... (emphasis supplied)

It appears from this document that Reliance was given the right to settle any claim on behalf of T & G arising out of this project and any disputes with subcontractors, and that settlement would bind T & G. Further, pursuant to the document, T & G assigned to Reliance this cause of action or claim arising out of the subcontract with Pro-Tech. That clearly deprives T & G of standing or right to bring this second lawsuit and also, because of this assignment gives the judgment against Reliance res judicata effect against T & G. See Rhyne v. Miami-Dade Water and Sewer Authority, 402 So.2d 54 (Fla. 3d DCA), rev. denied, 412 So.2d 469 (Fla.1982); Southeastern Fidelity Ins. Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987); Gerardi v. Carlisle, 232 So.2d 36 (Fla. 1st DCA 1969). Accordingly, we affirm the final summary judgment, with the observation that this judgment will have no preclusive effect on the first lawsuit against the surety, Reliance, in the event this court reverses that case.'

AFFIRMED.

THOMPSON, C.J., and SAWAYA, J„ concur.

      . Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963).


source: Caselaw Access Project

author: BROWNING, J.

license: Public Domain

text:
    SANTA ROSA ISLAND AUTHORITY and Sunset Holding Company, Inc., a Florida corporation, Appellants, v. PENSACOLA BEACH PIER, INC., Appellee.
    No. 1D02-0558.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2002.
    Rehearing Denied Jan. 16, 2003.

      J. Nixon Daniel, III, and Charles Wiggins of Beggs & Lane, Pensacola, Attorney for Appellant Santa Rosa Island Authority; and Sharon D. Regan, Attorney for Appellant, Sunset Holding Company, Inc., Pensacola.
    George R. Mead, II, and Jesse W. Rig-by, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appel-lee.
   BROWNING, J.

Appellant Santa Rosa Island Authority (Authority) appeals a final judgment requiring it to reinstitute negotiations for a contract with Pensacola Beach Pier, Inc. (Appellee), after Authority rescinded its selection of Appellee as the firm of first preference pursuant to a request for proposal (RFP) for the construction, maintenance, and operation of a concession building. Authority argues for reversal because it rescinded its negotiations with Appellee when faced with threatened litigation it deemed non-frivolous, readver-tised for proposals, and then designated Appellant Sunset Holding Company, Inc. (Sunset), as the firm of first preference. We agree with Appellants and reverse and remand.

The facts of this case are undisputed. Thus, we review the trial court’s final judgment application of the law to the facts de novo. Graham v. State, 822 So.2d 576 (Fla. 1st DCA 2002); Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999).

The decision of a public agency such as Authority is not subject to judicial interference, provided the decision’s correctness is debatable by reasonable persons, even though the decision reached may appear to some persons to be erroneous. Sys. Dev. Corp. v. Dep’t of Health & Rehab. Servs., 423 So.2d 433, 434 (Fla. 1st DCA 1982), quoting Volume Servs. Div. v. Canteen Corp., 369 So.2d 391, 395 (Fla. 2d DCA 1979); S. Fla. Limousines, Inc. v. Broward County Aviation Dep’t, 512 So.2d 1059, 1062 (Fla. 4th DCA 1987) (“As long as the decision was made in good faith, the courts will not generally interfere where the agency reaches a conclusion on facts upon which reasonable men may differ.”). The remedy in such cases is at the ballot box and not in the courts. Liberty County v. Baxter’s Asphalt & Concrete, 421 So.2d 505 (Fla.1982) (stating judicial interference is warranted when the process is tainted by “illegality, fraud, oppression, or misconduct”); Town of Riviera Beach v. State, 53 So.2d 828, 831 (Fla.1951). None of these bases exist here.

The trial court specifically found that “the record is entirely devoid of any evidence which would suggest oppression or misconduct.” Furthermore, the parties do not contend otherwise. Appellee rests its case on breach of an implied covenant of fair dealing, and the trial court agreed by ordering Authority to reinstate negotiations with Appellee to the exclusion of Sunset. Such principle does not support the trial court’s judgment. Absent evidence of illegality, fraud, oppression, or misconduct, Appellee is without a remedy for Authority’s readvertising for proposals and rearranging the preference order of the parties. See Liberty County, 421 So.2d at 507. Any change in such principle must come from the legislature, or the particular agency by rule adoption.

REVERSED and REMANDED.

BARFIELD and KAHN, JJ., concur.


author: PER CURIAM.

text:
    Mireya PRIO, f/k/a Mireya Barouh, Appellant, v. Henry BAROUH, Appellee.
    No. 3D01-3323.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Rehearing Denied Jan. 15, 2003.
    Fred M. Dellapa, Coral Gables; Karen J. Haas, Miami, for appellant.

      Bofill & Vilar and Jose C. Bofill, Miami, for appellee.
    Before JORGENSON, LEVY, and GREEN, JJ.
   PER CURIAM.

In a post-dissolution proceeding, the former wife appeals from an order adjusting the former husband’s financial obligations. For the following reasons, we reverse and remand.

The parties were married in 1981 and had one son, born in 1982. They were divorced in 1986. Both parties were represented by counsel when they signed a marital settlement agreement that was incorporated into the final judgment of dissolution of marriage. The wife was awarded custody of the child; the husband retained the marital residence and various properties. The husband was obligated to hold as trustee for the son real property in Ocala, Florida, until the child attained the age of 21. He was to make all mortgage payments and other obligations on that property and hold the wife harmless for any liability arising from that property. If the husband sold the property, he was to hold the funds in trust for the son. The father never made the payments; that property went into foreclosure. The wife had to refinance and has been paying the mortgage on that property for sixteen years.

The husband also agreed to open an interest-bearing trust account for the child and deposit $2,000.00 yearly, from 1986 until the child turned 18, for the child’s education beyond high school; the corpus was to be delivered to the son when he turned 21. The current record does not clearly indicate how many, if any, of those payments the former husband made.

The wife received a lump sum settlement of $115,000.00; the husband was obliged to pay $500.00, then $700.00 per month in child support, as well as all costs of private schools, summer camps, health and dental insurance. Again, the record is not clear as to how many, if any, of those payments were made.

In 1989, the former wife brought an enforcement proceeding; the husband was represented by counsel, although he himself was in prison on drug trafficking offenses. Following a number of hearings the court determined that the husband owed over $125,000.00 in support payments. The court ordered that arrearage, as well as future support obligations of approximately $173,012.00, to be secured by an equitable lien of $300,589.93 against the former marital home. However, that property was seized by the federal government because of the husband’s drug trafficking; the wife received only a portion of the proceeds. The court made a factual finding that the wife’s efforts at enforcement of the final judgment had been fruitless because of the husband’s shielding himself behind the Fifth Amendment. In addition, in the 1989 order the court specifically found that the husband had shown an intent to convey or conceal his assets.

The husband spent four years in prison on trafficking convictions. When he was released, he filed a petition for modification of the final judgment alleging that he worked at minimum wage. His child support obligations were reduced to $150.00 per month. The wife then discovered that he had apparently misrepresented his income; the court increased the child support to $350.00 per month and instituted an income deduction order. By means that are not entirely clear, through an ex parte proceeding in 1996 the husband and his counsel caused the Central Depository to reflect the balance of his arrearage in child support payments as zero.

On May 1, 2000, the husband moved to terminate child support, as the child would be turning 18 on May 11, 2000. The wife moved to enforce the 1989 judgment for arrearages, which she alleges to be $528,090.00, consisting of principal and interest. The court entered the order on appeal, modifying — to the husband’s considerable advantage — many of the husband’s support obligations contained in the final judgment of dissolution of marriage and reiterated in the 1989 judgment.

We reverse, as the trial court erred in holding that child support payments owed by the husband between the date of the dissolution of marriage and January, 1997 were barred by laches and res judicata. “Support obligations accruing under a court order in a domestic case become vested rights of the payee and vested obligations of the payor which are not subject to retroactive modifications.” Puglia v. Puglia, 600 So.2d 484, 485 (Fla. 3d DCA 1992). The right to the previously determined child support vests at the time the payments are due. Id. Unpaid support obligations are subject to a set-off only when “compelling equitable criteria and considerations” are present. See Waldman v. Waldman, 612 So.2d 703, 704 (Fla. 3d DCA 1993). No such circumstances are present in this case, and there is no legal or equitable reason for the trial court to have effectively nullified the judgment of January 18, 1989. As a matter of fact and of law, the doctrines of laches and res judicata do not apply to this proceeding.

In sum, we reverse the order under review and remand for an evidentiary proceeding in which the parties shall present the accountings necessary for the trial court to determine the proper amount of the husband’s support arrearage from the date of the final judgment of dissolution of marriage until the date of that evidentiary hearing, and to establish an appropriate payment schedule. See Puglia, 600 So.2d at 486 (“A trial court has discretion as to the manner in which the arrearage is to be repaid.”). On remand, the arrearage is to be determined without regard to the “zero balance” erroneously listed by the Central Depository.

REVERSED AND REMANDED WITH DIRECTIONS.

      . Some of the support obligations were to continue until the child turned 21.


author: KLEIN, J.

text:
    Randy L. GARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3067.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 22, 2003.

      Richard L. Rosenbaum of the Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant and a co-defendant, Cameron Tindal, were tried together and convicted of first degree murder. A different panel of this court reversed Tindal’s conviction for a new trial based on improper closing arguments by the prosecutor. Tindal v. State, 803 So.2d 806 (Fla. 4th DCA 2001). Because that same issue is raised in this case, and we agree with Tindal, we reverse for a new trial. We also address the issue of whether a report prepared by an agent of the government is admissible against the government as an admission by a party opponent, an exception to the hearsay rule.

The facts as reflected in our opinion in Tindal show that appellant, Tindal, and Tony Hayes drove together to the area in which the shooting occurred. According to the testimony of a witness named Robinson, appellant pulled out a gun and shot the victim. Hayes also identified appellant as the shooter.

The first officer to arrive at the crime scene, after gathering information, identified Hayes as the shooter in his report. A detective had taken a sworn statement from Hayes as well as gunshot residue swabs. A Florida Department of Law Enforcement technician tested the gunshot residue swabs taken from Hayes and prepared a report stating that trace amounts of gunshot residue were present, but that the amount was not “forensically significant.”

The state did not introduce this report in evidence; however, Tindal did attempt to introduce the FDLE report into evidence under the exception to the hearsay rule provided by section 90.803(18)(d), Florida Statutes (2001)(ad-mission by an agent of a party-opponent). The court did not allow it in, and in Tindal we determined that this was at most harmless because the contents of the report were discussed by witnesses and the jury was aware of what was in the report. Because the admissibility of the report is likely to again arise on retrial, we address the issue.

The ruling is supported by a minority of federal courts, which have held that, in a criminal case, the government is not a party-opponent so as to make an admission of an agent of the government admissible as an exception to the hearsay rule. United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.l979)(“Beeause the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign, their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party.”); United States v. Santos, 372 F.2d 177 (2d Cir.1967).

Most federal courts, however, hold such statements admissible. United States v. Kattar, 840 F.2d 118 (1st Cir.1988); United States v. Barile, 286 F.3d 749 (4th Cir.2002); United States v. Ramirez, 174 F.3d 584 (5th Cir.1999); United States v. Reed, 167 F.3d 984 (6th Cir.1999); United States v. Morgan, 581 F.2d 933 (D.C.Cir.1978); United States v. Van Griffin, 874 F.2d 634 (9th Cir.1989).

This issue has not been decided in Florida in a criminal case; however, statements of government employees have been held admissible in civil cases in which the government is a party. Lee v. Dep’t of Health & Rehabilitative Servs., 698 So.2d 1194 (Fla.1997); Costa v. Sch. Bd., 701 So.2d 414 (Fla. 4th DCA 1997).

In Guittierez v. State, 704 So.2d 161 (Fla. 4th DCA 1997), the majority affirmed without opinion, but Judge Gross specially concurred, explaining that the trial court was correct in not allowing the defendant to testify as to oral statements made to him by unidentified law enforcement agents because the proffer was too vague.

We conclude that the majority view, which admits such evidence, is the better view. It is supported by Professor Younger who suggested that it is consistent “with the most deeply rooted of common-law traditions.” Irving Younger, Sovereign Admissions: A Comment on United States v. Santos, 43 N.Y.U. L.Rev. 108, 115 (1968). As Professor Younger has written:

The evenhandedness of justice as between subject and sovereign is a reassuring doctrine, and especially so its corollary: that, at a minimum, the law of evidence regulates the mode of proof impartially for the subject and for the sovereign. The hearsay rule that troubles the former equally vexes the latter; the exceptions to the hearsay rule that ease the latter equally comfort the former.

Before admitting this type of evidence, however, a trial court must first determine that there is “sufficient independent indicia of reliability” to justify admitting it. United States v. Durrani, 835 F.2d 410, 425 (2d Cir.1987). The fact that the report in this case shows only trace amounts of gunshot residue which were not “forensically significant,” does not mean it is not reliable, but rather goes to the weight to be given this evidence by the jury-

In this case the essence of the defense was, as our opinion in Tindal reflects, that Hayes was the shooter. Hayes was also a key witness who identified appellant as the shooter and testified that he had not used a firearm. This report showing gunshot residue on Hayes was relevant not only as to whether he was the shooter, but also as to his general credibility and should have been admitted.

Reversed.

GROSS and TAYLOR, JJ., concur.

      . We have not overlooked the state's argument that it was only Tindal, and not appellant, who attempted to put the report in evidence. However, this case must be retried irrespective of this issue. Counsel for appellant and Tindal were presenting a unified defense in which they were avoiding duplication. Once the court ruled that the report was not admissible, it would have served no purpose for appellant to belabor the point. See Young v. State, 664 So.2d 1144 (Fla. 4th DCA 1995)(the law does not require a useless act).


text:
    Robert J. CLEMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4013.
    District Court of Appeal of Florida, First District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 15, 2003.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Westerheide v. State, 27 Fla. L. Weekly S866, 831 So.2d 93(Fla.2002).

KAHN, BENTON and LEWIS, JJ., concur.


text:
    Henry Joseph SORGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-1704.
    District Court of Appeal of Florida, First District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 10, 2003.

      Nancy A. Daniels, Public Defender; Steven Been, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Henry J. Sorge, Appellant, challenges his conviction and sentence for first-degree murder and raises two issues on appeal. First, Appellant alleges that the trial court erred in denying a continuance for the purpose of evaluating his sanity at the time of the offense. Second, Appellant alleges that the trial court erred in denying defense counsel’s motion for judgment of acquittal based on insufficient evidence of premeditation. We find merit as to the first issue and reverse and remand for a new trial, but find the second issue merit-less and affirm as to it without further comment.

On June 22, 2000, Appellant was charged with the premeditated murder of his ex-girlfriend. The trial court granted a defense motion for the appointment of a medical expert to examine Appellant and to determine his sanity at the time of the offense and his competence at the commencement of trial. The forensic mental-health evaluation addressed current competence but did not address Appellant’s sanity at the time of the offense. Appellant filed a motion for continuance, and a hearing was held on March 22, 2001. At the hearing, defense counsel argued that further investigation may reveal that a past closed-head injury suffered by Appellant affects his volitional acts, which may, in turn, affect his ability to distinguish right from wrong. The medical expert also testified that certain prefrontal lobule damage could have affected Appellant’s ability to know the difference between right and wrong when the offense was committed. An alternate judge presided over the hearing and denied the motion. Following a jury trial, Appellant was convicted of first-degree premeditated murder.

On appeal, Appellant argues that the trial court abused its discretion by denying a continuance for the purpose of evaluating Appellant’s sanity at the time of the offense. Sanity is determined in Florida by the M’Naghten Rule; under that rule, a person is insane if the person is incapable of distinguishing right from wrong as a result of a mental infirmity, disease, or defect. Hall v. State, 568 So.2d 882, 885 (Fla.1990). The expert’s indication at the hearing that a defect in Appellant’s brain could have affected his ability to distinguish right from wrong at the time of the offense confirmed the need for a continuance. Because the expert indicated that Appellant may have been legally insane at the time of the offense, the continuance was not sought as a means of delay, and the question of sanity at the time of the offense goes to the heart of the case against Appellant, we agree with Appellant that the motion for continuance should have been granted.

Appellant’s due process rights were violated by the trial court’s denial of the motion for continuance even though Appellant did not file a notice of intent to rely on an insanity defense. See Morgan v. State, 453 So.2d 394 (Fla.1984). Florida Rule of Criminal Procedure 3.216(c) requires a defendant to “give notice of [an] intent to rely on the defense of insanity no later than 15 days after the arraignment or the filing of a written plea of not guilty .... ” However, this rule is not set in stone; if a defendant has failed to file the notice, “the court may in its discretion grant the defendant 10 days to comply with the notice requirement.” Fla. R.Crim. P. 3.216(h). Therefore, the trial court would have had the discretion to permit Appellant to provide the State with notice of his intent to rely on an insanity defense after further evaluation, and Appellant’s failure to file such notice does not bar his claim.

The denial of the motion for continuance prejudiced Appellant by foreclosing the possibility of his producing evidence that he was insane at the time of the offense. Therefore, the trial court abused its discretion in denying the motion for continuance.

Accordingly, we affirm in part, reverse in part, and remand for a new trial consistent with this opinion.

LEWIS and POLSTON, JJ., CONCUR.


text:
    The CITY OF LAKELAND and the Claims Center, Appellants, v. James SMITH, Appellee.
    No. 1D01-4677.
    District Court of Appeal of Florida, First District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 13, 2003.

      Dennis A. Ross, of Ross, Vecchio & Trussed, P.A., Lakeland, for Appellants.
    Bradley Guy Smith, of Smith, Feddeler, Smith & Miles, P.A., Lakeland; and Susan W. Fox and Brendan M. Lee, of MacFar-lane Ferguson & McMullen, for Appellee.
   PER CURIAM.

The record in this workers’ compensation case contains competent, substantial evidence that supports the implicit findings of the judge of compensation claims (JCC) that prior to his retirement on March 23, 1999, the claimant suffered injury to his back caused by repetitive trauma resulting from his driving a street sweeper for the employer, that he was unable to continue in his employment as a street sweeper driver due to the back condition, and that the employer failed to offer him work which was within his physical limitations. The record also contains the testimony of an orthopedic surgeon (Dr. Baker) who performed independent medical examinations of the claimant in October 2000 and in July 2001, that claimant did not reach maximum medical improvement from this back condition until July 27, 2001. In his order, the JCC found that the chiropractor who treated the claimant following the reported October 1997 incident which resulted in a low back injury “released the Claimant at maximum medical improvement with no residual impairment as of 11/19/97.” The JCC also stated in the order that he accepted “only that portion of Dr. Baker’s testimony” which restricted the claimant from sitting for prolonged periods.

Absent a finding that claimant did not reach maximum medical improvement (MMI) from his back injury caused by the repetitive trauma of his work conditions prior to 104 weeks after the date of his retirement, the award of temporary partial disability benefits for 104 weeks from the date of the claimant’s retirement is improper, in view of the order’s recitation of a November 1997 date of MMI and the JCC’s apparent rejection of Dr. Baker’s opinion that the claimant did not reach MMI until July 2001. See Orange County School Board v. Melman, 721 So.2d 1183 (Fla. 1st DCA 1998), and the cases cited therein.

Because we are of the opinion that this internal inconsistency is most likely the result of an oversight on the part of the JCC, the order is REVERSED and the case is REMANDED to the JCC for further proceedings.

ERVIN, BARFIELD and WOLF, JJ., concur.


author: JACOBUS, BRUCE W., Associate Judge.

text:
    Charlie SINGLETON, Appellant, v. Kathleen J. SINGLETON, Appellee.
    No. 4D02-1174.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 30, 2003.

      Charlie Singleton, Deerfield Beach, pro se.
    Kenneth Gordon, and Ross Baer, Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellee.
    Jeffrey Dana Gillen, West Palm Beach, for Amicus Curiae Department of Children and Families.
   JACOBUS, BRUCE W., Associate Judge.

Appellant, Charles Singleton, appeals the trial court’s non-final order holding him in contempt of court for failing to pay child support. Appellant alleges that the trial court deviated from section 61.30, Florida Statutes (2001), in calculating the child support. We conclude that this court has no jurisdiction to entertain a challenge as to the amount of child support awarded considering this appeal was filed more than thirty days after rendition of the dependency order assessing the amount of child support to be paid by appellant. See Fla. R. Civ. P. 9.110(b); P.B. v. Dep’t of Children & Family Services, 709 So.2d 590, 591 (Fla. 4th DCA 1998).

Appellant also alleges that the trial court abused its discretion by holding him in contempt of court. Appellant provided no record of the contempt proceedings. As explained in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), “[wjithout a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”

AFFIRMED.

STONE and MAY, JJ., concur.


author: PLEUS, J.

text:
    Tommy PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3151.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Tommy Phillips assaulted an elderly man in the restroom of a Hardee’s restaurant and tried to steal his wallet. He was convicted, as charged, of attempted robbery and battery upon a person over 65 years of age and sentenced as a Prison Releasee Reoffender (“PRR”). He argues that the trial court erred in rejecting his argument that it was double jeopardy to convict him of both offenses where the battery was committed solely in furtherance of the attempted robbery. He also asserts the trial court erred in revoking his designation and sentence as a PRR upon his bringing to the trial court’s attention the illegality of imposing consecutive PRR sentences for two crimes committed in a single criminal episode. We affirm.

On November 7, 1999, 70-year-old Donald Behrens went to breakfast with his wife at a Hardee’s restaurant on Route 27 in Marion County. Behrens went to the restroom after breakfast and was accosted by a man who grabbed him from behind and put him in a choke/bear-hold. Beh-rens thought the man whispered, “Give me your wallet,” or “Give me your money.” Behrens tried to step back and the man spun him to the ground. The assailant attempted to reach into Behrens’ pockets. Behrens yelled for help. His wife, with another man, raced into the restroom and Behrens’ wife yelled to the assailant, “Get off of him.” The assailant fled. Police returned with the appellant a few minutes later, whom Behrens identified as the person who attacked him.

As a result of this incident, the appellant was charged with attempted robbery and battery of a person over 65 years of age. The jury found Phillips guilty on both counts and the court sentenced him to two consecutive five year terms of incarceration as a PRR pursuant to the provisions of section 775.082(9), Florida Statutes (2000). Following the denial of his motion for new trial, the appellant timely filed an appeal of his judgment and sentence.

While the appeal was pending, the appellant filed in the trial court a motion to correct his sentence. In his motion, the appellant argued- that, having been adjudicated and sentenced as a PRR, he could not also receive consecutive sentences for two offenses that were committed in the course of one criminal transaction.

At the hearing on the appellant’s motion, the 'State conceded that the appellant could not be treated as a PRR and receive consecutive sentences for crimes committed in the course of a single transaction. The state further asserted, in light of the sentencing error, it was no longer recommending or requesting a PRR designation so that the five year sentences could be imposed consecutively. The court noted that if the PRR was omitted, the appellant would be able to get gain time and that, thus, if the PRR was omitted, “he gains a year-and-a-half there.” The trial court thereupon resentenced appellant to two consecutive five year terms with the PRR designation specifically removed.

We address the double jeopardy question of the dual convictions first. Relying on Harrison v. State, 755 So.2d 820 (Fla. 5th DCA), rev. denied, 776 So.2d 277 (Fla.2000), the appellant argues the battery conviction must be vacated because the only battery that was committed was used to support the robbery conviction. In Harrison, the defendant was charged and convicted of robbery and battery where he stole clothes from a store and, when confronted by a security guard, pushed the guard out of his way. This court found the conviction for battery could not stand under such facts because the jury made a specific finding that the force used to elevate the theft into a robbery was the battery. No such finding was made by the jury in the instant case. The information, in fact, charged that appellant committed an attempted robbery by the use of “force, violence, assault or [by] put[ting] the [victim] in fear.” The jury was capable of convicting appellant of a robbery through the use of an assault, or by otherwise putting the victim in fear without finding that the appellant committed a battery. The crime of battery, thus, was not subsumed by the attempted robbery. See Hamrick v. State, 648 So.2d 274 (Fla. 4th DCA 1995); accord Maultsby v. State, 688 So.2d 1010 (Fla. 3rd DCA 1997). Because the battery was not necessary to prove the robbery and the battery did not require proof of a theft, appellant was correctly convicted of both offenses.

Secondly, the appellant argues that the state attorney, subsequent to a PRR sentence being imposed, no longer has authority or discretion to seek removal of the , PRR designation. PRR sanctions, however, are invoked solely at the discretion of the state. State v. Cotton, 769 So.2d 345 (Fla.2000). Section 775.082(9)(a)3., Florida Statutes, specifies that “the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender.” We conclude the state attorney can choose to request the removal of a PRR designation on a defendant, when the defendant, in a 3.800(b) motion to correct his sentence, points out that he cannot receive both the enhancement of PRR punishment and consecutive sentences.

The resentence imposed, moreover, is consistent with the underlying objective of the PRR Act. In Cotton, 769 So.2d 345 (Fla.2000), the Florida Supreme Court noted the PRR Act is designed to increase, not decrease the potential punishment of those who qualify for PRR status:

[W]hen the Act is properly viewed as a mandatory minimum statute, its effect is to establish a sentencing “floor.” If a defendant is eligible for a harsher sentence “pursuant to [the habitual offender statute] or any other provision of law,” the court may, in its discretion, impose the harsher sentence.

Cotton, 769 So.2d at 354. Paragraph 775.082(9)(c) of the PRR specifically provides: “Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.” The statute’s purpose is not furthered by limiting the ability of the court or the state to opt out of the PRR designation when it recognized, post-sentencing via a defendant’s 3.800(b) motion to correct his or her sentence, that choosing to maintain the PRR designation could result in a lesser sentence.

Rejecting both the resentencing and double jeopardy challenges, we affirm appellant’s judgment and sentence.

AFFIRMED.

PETERSON and PALMER, JJ., concur.

      . Florida Rule of Criminal Procedure 3.800(b)(2) permits such a motion to be filed in the trial court if filed and served by a party “before the party's first brief is served."

      . The appellant additionally argues his resen-tence "suggests a form of double jeopardy.” In his special concurrence in State v. Ackerman, 785 So.2d 1229, 1231 (Fla. 4th DCA 2001), Judge Klein noted that increasing a defendant's sentence after sentencing violates the prohibition against double jeopardy. Here, in contrast to the case in Ackerman, the initial error did not favor the defendant. The correction of the error had to, and did, result in a lesser sentence being imposed.


author: SAWAYA, J.

text:
    Shannon L. McROY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3102.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Shannon L. McRoy appeals the final judgment rendered following return of the jury’s verdict finding him guilty of possession of cocaine with intent to sell. Because we conclude that the several issues McRoy raises relating to his conviction are without merit, we affirm McRoy’s conviction. Of the issues McRoy raises relating to his sentence, the only issue that warrants discussion is whether the fifteen-year sentence imposed on him is vindictive.

Defendant was arrested and charged by information with trafficking in cocaine. Before trial, the prosecutor offered McRoy a three-year prison sentence in exchange for a guilty or nolo contendere plea. The trial court, however, modified the offer made by the State to include a lengthy term of probation to follow McRoy’s prison sentence. The following dialogue took place between the trial judge and McRoy prior to trial:

THE COURT: Okay. Now, I’ve given people 30 years for selling a $20 rock of cocaine. You know, you’re involved in some kind of big time manufacturing scheme here it appears, and you have more trouble than you probably realize. You could do 30 years on this case if— except for the fact that you have such an awful record, you’re a Habitual Felony Offender, which means you could do 60 years.
THE DEFENDANT: Okay, sir.
THE COURT: Now, I think that what the — if I understand the State’s position, I think what they’re saying is that if you wanted to — that if you agreed to enter your plea of guilty or no contest to this, they would come off the Habitual Felony Offender and not ask me to sentence you as a Habitual Felony Offender, but to sentence you otherwise, which still means you could do 30 years.
THE COURT: I don’t know that I would take a regular three year sentence on this anyway, given the facts of the case as I understand them to be.
THE COURT: [Defendant], did you want to take that three years if it had been available to you?
THE DEFENDANT: No, sir.
THE COURT: Okay. That’s — then that takes care of it. All right.
THE COURT: ... I might consider letting you take three years with a lot of probation after that, if that’s what you wanted to do.
THE DEFENDANT: I never knowed [sic] anything about that deal, sir.
THE COURT: That’s what I’m telling you now, is that because you didn’t know anything about it, I may let you take that now. I’m not — I don’t — I’m not happy about that, but if you want to go to trial in this case, you’re looking at 60 years. And I just told you I sent a guy to prison for 30 years for selling a $20 rock. Now, if you want to have your trial, we’re going to start it right now. In fact, we ought to have a jury — it’s about outside right now. So do you want to take that three year offer?
THE DEFENDANT: No, sir.
THE COURT: You don’t?
THE DEFENDANT: (No verbal response)
THE COURT: That’s fine. Have a seat. Okay. Let’s go ahead, please, and bring our jury.

What the quoted part of the record reveals is that the trial judge was a participant in the plea bargaining process, a practice that is not prohibited under current Florida law. See State v. Warner, 762 So.2d 507 (Fla.2000). The court in Warner did, however, establish some guidelines and restrictions. Specifically, the court warned that “[t]o avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. at 514. Violation of this admonition allows that which is forbidden by well-established constitutional principles: in order to prevent a defendant’s fear of retribution in the sentencing process from chilling the exercise of his or her right to trial by jury, courts must not be permitted to take into account a defendant’s refusal to accept a plea offer when determining the appropriate punishment if the defendant is ultimately convicted.

We conclude that the trial judge advocated far too strongly the plea offer and exceeded the permissible bounds of what the court in Warner found to be “‘[t]he judge’s neutral and impartial role’ ” in the plea bargaining process. Id. (quoting People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208, 212 (1993)). Accordingly, we affirm McRoy’s conviction, reverse his sentence, and remand for imposition of a sentence of three years’ incarceration, followed by probation.

AFFIRMED, in part; REVERSED in part; REMANDED.

THOMPSON, C.J. and SHARP, W., J., concur.


text:
    Carl WALKER, Appellant, v. NEW SMYRNA BEACH POLICE DEPARTMENT, Appellee.
    No. 5D01-3488.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Rehearing Denied Jan. 10, 2003.
    Carl Walker, Madison, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Carl Walker appeals the trial court’s order denying his petition for the return of $1,718 seized by the police at the time of his arrest. We affirm. As the appellant, Walker has the burden to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). At the hearing on his motion, Walker offered no evidence or argument in support of his claim for the return of the cash allegedly seized from him at the time of his arrest. As such, Walker failed to demonstrate that the money was improperly retained by the New Smyrna Beach Police Department.

AFFIRMED.

HARRIS, GRIFFIN and ORFINGER, J.J., concur.


author: THOMPSON, C.J.

text:
    Larry SQUIRES, Appellant, v. Catherine DARLING, Appellee.
    No. 5D01-2656.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Rehearing Denied Jan. 8, 2003.
    Larry Squires, Gainesville, pro se.
    Catherine Darling, Bluffton, S.C., pro se.
   THOMPSON, C.J.

Larry Squires, pro se appellant, appeals the amended final judgment of injunction for protection against repeat violence pursuant to section 784.046, Florida Statutes. He argues that the trial court committed error by depriving him of due process. We affirm.

Squires contends that the final judgment, which prohibited him from seeing, contacting, or being in the vicinity of Catherine Darling, was entered without Squires having had the opportunity to present evidence at a full evidentiary hearing. He argues this is a violation of sections 784.046(6)(c), 784.046(7)(d)(3)., Florida Statutes. The appellant claims error in the proceedings, yet he has not provided this court with a transcript of the proceedings below. Without a transcript, this court is unable to determine if there was error. Thus, the presumption of correctness which attached to the final judgment is preserved. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). In Applegate, the supreme court held that:

In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.
When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Id. at 1152. Compare, Calle v. Calle, 625 So.2d 988 (Fla. 2d DCA 1993) (affirming award of fees where record did not show lack of notice and opportunity to be heard).

This court ordered the appellant to provide a record of the proceedings pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) if no court reporter was present at the hearing. Although the appellant provided a purportedly accurate statement of the proceedings, it was not served upon the appellee for corrections or amendments, as required by Rule 9.200(b)(4). The rule also requires that after being served upon the appellee for corrections or amendments, the statement “shall be submitted to the lower tribunal for settlement and approval.” Id. We have stricken the statement because the appellant did not comply with the rule. Because appellant has not met his burden of proving error, we affirm.

AFFIRMED.

PETERSON and PLEUS, JJ., concur.


text:
    Paul Jerome SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4453.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Rehearing Denied Jan. 31, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Allen v. State, 666 So.2d 259 (Fla. 4th DCA 1996).

STONE, SHAHOOD and GROSS, JJ., concur.


author: KELLY, Judge.

text:
    Jane JONES, as Personal Representative of the Estate of Annie P. McCoy, Appellant, v. VOLUNTEERS OF AMERICA NORTH AND CENTRAL FLORIDA, INC., a Florida nonprofit corporation d/b/a a Florida adult congregate living facility, and Kimberly S. Cullen, Appellees.
    No. 2D01-4261.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2002.
    Rehearing Denied Jan. 21, 2003.
    ■ Kenneth R. Cate of Richard Mulholland and Associates, Tampa, for Appellant.
    Kimberly M. Reid of' Alvarez, Sambol, Winthrop & Madison, P.A., Orlando (withdrew after briefing); James B. Thompson of Thompson, Goodis, Thompson, Grosec-lose & Richardson, P.A., St. Petersburg (substituted as counsel of record), for Ap-pellee Volunteers of America North and Central Florida, Inc.
    Edward O. Savitz of Bush, Ross, Gardner, Warren & Rudy, P.A., Tampa, for Appellee Kimberly S. Cullen.
   KELLY, Judge.

Jane Jones appeals from the trial court’s order granting the motions to dismiss for lack of prosecution filed by the defendants, Volunteers of America North and Central Florida, Inc., and Kimberly S. Cullen. The trial court, in its order, found that the cause was not at issue as to both defendants at the time the notice for trial was filed and, therefore, the notice was insufficient record activity to prevent dismissal. We agree and affirm.

Ordinarily, an action is not subject to dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) if the plaintiff has noticed the case for trial. Young v. Mobile Dental Health, Inc., 730 So.2d 766 (Fla. 2d DCA 1999). However, a notice for trial will not protect the plaintiff from dismissal if the case is not “at issue” when the notice is filed. Gen. Guar. Ins. Co. v. Bolivar, 460 So.2d 1011 (Fla. 2d DCA 1984). An action is at issue when the pleading process is completed. Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986). Here, Cullen’s failure to file an answer or other responsive pleading was sufficient to prevent this case from being at issue. See Bennett v. Cont’l Chems., Inc., 492 So.2d 724, 726-27 (Fla. 1st DCA 1986) (noting that the case was not at issue at the time the notice for final hearing was served, as “no answer had yet been filed crystallizing the issues”). The case had to be at issue as to both defendants before it could be set for trial.

When Cullen failed to answer the complaint, Jones’ proper course of action would have been to move for a default judgment against Cullen or to dismiss Cullen from the suit. Instead, Jones did nothing and Cullen continued to be a party to the action. The entire action was subject to dismissal, not just the inactive defendant. Williams v. Susquehanna Veal Farms, Inc., 828 So.2d 420 (Fla. 1st DCA 2002) (holding that dismissal for failure to prosecute under rule 1.420(e) is a remedy that is available only as to an entire case); Magers v. Walker’s Cay Air Terminal, Inc., 451 So.2d 867 (Fla. 4th DCA 1983) (same).

Because there was no record activity in the case for over a year, other than the invalid notice for trial, the trial court did not abuse its discretion in granting the motions to dismiss. Accordingly, we affirm the order dismissing the action.

Affirmed.

BLUE, C.J., and DAVIS, J., concur.

      . Rule 1.420(e) states:
      All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.


author: BLUE, Chief Judge.

text:
    Patricia A. MYERS, Appellant, v. Wendy WILLIAMS, Appellee.
    No. 2D01-4062.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 21, 2003.

      Patricia A. Myers, pro se.
    Sheldon L. Wind of Sheldon L. Wind, P.A., Tampa, for Appellee.
   BLUE, Chief Judge.

Patricia A. Myers, pro se, appeals the partial final summary judgment in favor of Wendy Williams on Williams’ claim to quiet title. She also appeals an adverse summary judgment on Williams’ claim for partition. We affirm the summary judgment on the quiet title claim but dismiss the partition appeal.

Briefly stated, Myers and her son owned property as tenants in common. Beginning in 1986, the Internal Revenue Service (IRS) assessed taxes against the son and recorded federal tax liens on the son’s one-half interest in the property. • In 1996, the IRS levied on the son’s property and sold it to Williams at public auction. On October 1, 1996, the IRS issued a quitclaim deed to Williams, who later filed this quiet title and partition action.

On cross motions for summary judgment, the trial court ruled in Williams’ favor and granted her claim to quiet title. Myers argues that the IRS improperly levied on, seized, and sold the property. We affirm the quiet title summary judgment because these claims should have been raised in a civil action against the IRS in the nine-month period following the allegedly wrongful levy. See 26 U.S.C. §§ 7426, 6532(c) (establishing a civil action for wrongful levy by any person, other than the taxpayer, who claims an interest in property that the IRS has levied on or sold).

But the partition summary judgment is not appealable at this time because the trial court’s order merely appointed commissioners to report on partition. See Banks v. Guinyard, 63 Fla. 334, 58 So. 229, 230 (1912) (“A decree in a partition suit, adjudicating the rights and interests of the respective parties in the lands sought to be partitioned, ordering partition thereof, and appointing commissioners to make the same, is interlocutory merely, and not final.... ”). Accordingly, we dismiss this’portion of the appeal.

Affirmed in part; dismissed in part.

CASANUEVA and KELLY, JJ., concur.


author: ROUSE, R. K., JR., Associate Judge.

text:
    Ethel Thompson SWEITZER, Appellant, v. Dawn M. THOMAS, Appellee.
    No. 5D02-34.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 15, 2003.
    Scott Turner of Turner & Layman, L.L.C., Melbourne, and Sharon Lee Sted-man of Cabaniss Smith Toole & Wiggins, PL, Maitland, for Appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach and Karla T. Torpy and Robert M. Moletteire of Graham, Moletteire & Torpy, P. A., Melbourne, for Appellee.
   ROUSE, R. K., JR., Associate Judge.

This appeal of a final judgment arises from Appellee’s negligence action for injuries sustained in an automobile accident. None of Appellant’s five issues on appeal merit reversal; however, Appellant’s challenge to the jury instructions given by the trial court, and the damages awarded pursuant to those instructions, merit discussion.

Because Appellant admitted responsibility for causing the accident, the trial was conducted on the issues of causation and damages. Appellee claimed a shoulder injury requiring surgery. Appellant’s entitlement to the exemption from liability afforded by section 627.737, Florida Statutes (1999) was not disputed.

The trial court instructed the jury to award economic damages. Over the objection of Appellant’s counsel, the court further instructed the jury to consider awarding noneconomic damages for disability, physical impairment, disfigurement, and loss of capacity for the enjoyment of life caused by the accident, even if it found no permanent injury.

The jury returned its verdict awarding damages in the amount of $30,640.68 in economic damages based on past medical expenses and lost wages, and $25,000 for past and future noneconomic damages due to physical impairment, disfigurement, and loss of capacity for the enjoyment of life. After finding that Appellee sustained a permanent injury, the jury awarded additional noneconomic damages for past and future pain, suffering, and inconvenience.

Appellant complains that the trial court erred in instructing the jury that some noneconomic damages — those for disability, physical impairment, disfigurement, and loss of capacity for the enjoyment of life — may be recovered from a defendant who enjoys exemption from liability pursuant to section 627.737, even when the permanency threshold of that statute is not met. Further, Appellant suggests that even when an injured plaintiff is determined to have sustained a permanent injury, recovery of noneconomic damages should be limited to the elements specifically mentioned in the statute: pain, suffering, mental anguish, and inconvenience. Therefore, asserts Appellant, Appellee’s recovery should be reduced by the $25,000 awarded for elements of noneconomic damages not specifically referenced in section 627.737(2).

At the time of the trial in May, 2001, the trial court did not have the guidance of subsequently published decisions of other district courts addressing this issue, including, e.g., Loving v. Winters, 802 So.2d 335 (Fla. 2d DCA 2001), Gill v. McGuire, 806 So.2d 629 (Fla. 4th DCA 2002), and Giles v. Luckie, 816 So.2d 248 (Fla. 1st DCA 2002). Those decisions hold that an injured plaintiff must satisfy the threshold requirements of • section 627.737(2) in order to be entitled to recover any noneconomic damages against an exempt defendant. This interpretation of section 627.737 is consistent with the purpose of the statute, which is to permit the speedy recovery of major and salient economic damages, reduce the incidence of overpayment for relatively minor injuries, lessen court congestion and reduce delay, and reduce automobile insurance premiums. See Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974). This interpretation is also consistent with the general practice in bodily injury cases of classifying and grouping all elements of noneconomic damages together. See Fla. Std. Jury Instr. (Civ.) 6.2(a).

We agree with this interpretation. Furthermore, we agree with the conclusion of Giles that the language in section 627.737(1), specifically mentioning pain, suffering, mental anguish, and inconvenience, was merely intended to emphasize that noneconomic damages would be recoverable only where the threshold had been met. Giles, 816 So.2d at 249. We note that the opinion in Lasky mentions only “pain and suffering,” even when it is obviously referring to all noneconomic damages recoverable under common law. Lasky, 296 So.2d at 14. Moreover, we fail to appreciate how the purpose of the statute would be furthered by permitting a permanently injured plaintiff to recover for mental anguish, but not for loss of capacity for the enjoyment of life. To so interpret the statute may also call into question its constitutionality. See id. at 15-16. The statute must not be arbitrary, and must be “reasonably related to ... permissible legislative objectives....” Id.

Therefore, we conclude that in the absence of a threshold injury, as defined in section 627.737(2), there can be no recovery for any noneconomic damages. Conversely, in cases involving a threshold injury, the plaintiff may recover all non-economic damages recoverable under common law. Accordingly, because the jury in this case found that Appellee did sustain a permanent injury, she was entitled to recover all of her noneconomic damages, and the challenged instruction did not result in harm to Appellant.

AFFIRMED.

COBB and SHARP, W., JJ., concur.

      . These elements of noneconomic damages are not specifically referenced in section 627.737(2), Florida Statutes (1999).


author: SILBERMAN, Judge.

text:
    Wolfgang H. BEHM, Lieselotte M. Behm, and Insurance Company of North America, Appellants, v. CAPE LUMBER COMPANY, d/b/a Fort Myers Lumber and Supply Co., a Florida corporation, Appellee.
    Nos. 2D01-3044, 2D01-4311.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 22, 2003.

      Jon D. Parrish of Parrish, White & La-whon, P.A., Naples, for Appellants.
    J. Jeffrey Rice of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers, for Appellee.
   SILBERMAN, Judge.

Wolfgang and Lieselotte Behm and Insurance Company of North America (ICNA) appeal a final judgment awarding damages and an order taxing costs and attorney’s fees in favor of Cape Lumber Company. We reverse because the Behms should have been permitted to conduct discovery as to information relevant to the claims and defenses that were at issue. Additionally, a directed verdict should have been entered in favor of the Behms on Cape Lumber’s claim of unjust enrichment. ■ The other issues raised by the Behms do not require reversal, and we do not address them further.

In 1997 the Behms entered into a contract with a builder, Handcrafted Homes of Lee County, Inc., for the construction of their new house. Pursuant to an account between Cape Lumber and the builder, Cape Lumber provided trusses and lumber for the project. After the builder declared bankruptcy, the Behms hired another general contractor to complete the project, and Cape Lumber filed a claim of lien asserting that it had not been fully paid for the materials. ICNA posted a surety bond that transferred the hen to the bond, as permitted under section 713.24, Florida Statutes (1997).

Eventually, Cape Lumber filed suit to obtain payment from the bond and, in the alternative, to recover damages against the Behms pursuant to a claim for unjust enrichment. The Behms raised several affirmative defenses including that Cape Lumber was fully paid and that the Behms properly made payment to the builder for all sums claimed by Cape Lumber.

The Behms sought discovery relating to financial transactions between Cape Lumber and the builder. The requested discovery included the production of canceled checks and information concerning the builder’s account with Cape Lumber. The Behms asserted that they made their required payments to the builder, that the payments made by the builder to Cape Lumber included funds for the materials supplied by Cape Lumber to the project, and that Cape Lumber applied payments that were for the project to other debts owed by the builder. The Behms contended that the requested discovery would reveal whether the builder’s checks or other documents contained designations as required under section 713.14, Florida Statutes (1997), identifying the items and projects for which the payments were being made. They also wanted to obtain information and documents to determine whether Cape Lumber and the builder complied with the requirements of chapter 713, Florida Statutes (1997), whether the claim of lien was enforceable, and whether Cape Lumber had been paid for the materials supplied to the project.

The trial court denied the discovery requests. At trial, Cape Lumber presented testimony about its account with the builder, that Cape Lumber properly applied payments made by the builder to debts for various projects, and that Cape Lumber followed the account designations made by the builder. Cape Lumber’s witnesses referred to information shown on the checks and other documents even though the trial court did not permit the Behms to obtain that information through pretrial discovery.

A key issue in this case was whether the builder paid Cape Lumber for material used in constructing the Behms’ house. The Behms argue that by denying their discovery requests, the trial court precluded them from establishing that Cape Lumber had been paid but had failed to give credit for the payments relating to the Behms’ project. We agree that the trial court erred by not allowing the Behms to fully conduct discovery relating to the payments Cape Lumber received from or on behalf of the builder and whether the payments were properly credited.

Florida Rule of Civil Procedure 1.280(b)(1) allows parties to obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action. Even information that is inadmissible at trial is subject to discovery if it appears to be reasonably calculated to lead to the discovery of admissible evidence. Id.; see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Proper discovery includes records and information that are relevant to the calculation of damages. See Fla. Gaming Corp. of Del. v. Am. Jai-Alai, Inc., 673 So.2d 523, 524 (Fla. 4th DCA 1996).

The record reveals no proper basis to support the trial court’s denial of the requested discovery, particularly as the information appears to be directly related to Cape Lumber’s claim and the Behms’ defenses. As a result, the denial of discovery requires our reversal of the final judgment and a new trial once discovery is completed.

The Behms also claim that the trial court erred by not granting a directed verdict against Cape Lumber on its claim for unjust enrichment. We agree. The Behms correctly argue that a directed verdict was required because they made the payments due under their agreement with the builder for the benefits that had been conferred to them. A directed verdict should have been granted even though the builder may have failed to pay Cape Lumber or may have improperly directed Cape Lumber to apply payments to other debts incurred by the builder. See Commerce P’ship v. Equity Contracting Co., 695 So.2d 383, 388-90 (Fla. 4th DCA 1997); Blum v. Dawkins, Inc. 683 So.2d 163, 164 (Fla. 5th DCA 1996); Gene B. Glick Co. v. Sunshine Ready Concrete Co., 651 So.2d 190, 190 (Fla. 4th DCA 1995).

Accordingly, we reverse the final judgment and the order taxing costs and attorney’s fees that was entered as a result of the final judgment, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND and FULMER, JJ„ concur.


author: WHATLEY, Judge.

text:
    Saundra G. HEALY, Appellant/Cross-Appellee, v. Joseph E. HEALY, Appellee/Cross-Appellant.
    No. 2D01-3319.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
    Rehearing Denied Jan. 21, 2003.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Stephen D. Thompson of Thompson & Schreiber, P.A., Fort Myers, for Appellant/Cross-Appellee.
    Victoria M. Ho and Jennifer J. Cohen of Asbell & Ho, P.A., Naples, for Appel-lee/Cross-Appellant.
   WHATLEY, Judge.

Saundra G. Healy, the Former Wife, appeals, and Joseph E. Healy, the Former Husband, cross-appeals the order modifying alimony and child support. We reverse the order and remand for further proceedings.

In 1997, the parties’ marriage was dissolved in New Jersey by a final judgment that incorporated a property settlement agreement. The provisions of that agreement pertinent to this appeal provided that the Former Wife was to be the primary residential custodian of the parties’ minor daughter, and the Former Husband was to pay child support of $45,000 a year, which amount was to be adjusted every three years using the consumer price index. The Former Husband was also to pay alimony in the amount of $125,000 per yéar for the first four years and, beginning on April 1, 2001, $175,000 per year thereafter. The decreased initial amount was in exchange for the Former Husband assuming all of the marital liabilities. In addition, the Former Husband was to pay the Former Wife $1,000,000 as equitable distribution in exchange for the Former Wife relinquishing her rights in all of the marital property.

In 2000, the Former Husband filed a petition to modify his child support and alimony obligations due to a substantial change in circumstances. After a hearing, the trial court entered an order on June 25, 2001, finding that the Former Husband had shown a substantial change in circumstances in that his income had declined 26% from 1994 to 2000. The Former Husband is an insurance broker who owned his own business selling and administering group health insurance policies and self-insured health plans. The trial court found that since-1994 the Former Husband has been negatively impacted by changes in the health care system and the insurance industry’s response. Although the court found that the Former Husband reached his economic peak in 1997, it stated that he testified that demand for his product and services declined in the second half of the 1990s and he experienced internal problems at his business. Further, although the court found that the Former Husband derives his business income from servicing a smaller client base and working only a day and a half a week, he derives “substantial income” from this effort and his investment capital has grown. In addition, the court found that the decisions made by the Former.. Husband in attempting to preserve his business were earnest and neither reckless nor imprudent, and it could not fault the Former Husband “for the shrinkage of his business foundation.” However, the court also found that the Former Husband “has failed to apply himself in the insurance business. He has the potential to recover to his prior level of earnings in the insurance industry.”

In calculating the Former Husband’s income¿ the trial court stated in its order that it compared his income from 1994, 1995, and 1996, the three years before the property settlement agreement was signed, with the four years since 1996. In doing so, it used exhibits from both parties. The court then stated that the Former Husband’s average net income from 1994 to 1996 was $559,470, and his average net income from 1997 to 2000 was $415,250, a 26% decline. The court found that the Former Husband’s income from employment declined 30% between 1998 and 2000 and is showing a trend of further decline in the future. The court concluded its findings regarding the Former Husband’s income by stating that it:

[Cjhooses to average the higher incomes from 1997 and 1998 with the lower incomes of 1999 and 2000 as an income imputation consideration due to the lack of time and effort the Former Husband has been putting into his insurance business of late. This Court believes that the Former Husband should be doing some retooling and reapplying himself more in the field where he has made his fortune in the first instance.

Regarding the imputation of income, the court also stated in the order that it was imputing income to the Former Husband based on available capital, but it did not specify the amounts being imputed and correlate those amounts with their sources.

The court then reduced the Former Husband’s alimony and child support obligations by 26%. Specifically, it reduced the alimony obligation from $175,000 to $129,500 per year and the child support obligation from $45,000 to $33,300 per year.

The parties agree that New Jersey law governs this appeal. Like Florida, New Jersey requires a showing of a permanent and substantial change in circumstances to support a modification of support obligations. Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45, 51 (1980) (noting that “[cjourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.”). Further:

In an application brought by a supporting spouse for a downward modification in alimony ... the central issue is the supporting spouse’s ability to pay. A supporting spouse’s potential to generate income is a significant factor to consider when determining his or her ability to pay alimony. Although the supporting spouse’s income earned through employment is central to the modification inquiry, it is not the only measure of the supporting spouse’s ability to pay that should be considered by a court. Real property, capital assets, investment portfolio, and capacity to earn by “diligent attention to ... business” are all appropriate factors for a court to consider in the determination of alimony modification....
Additionally, courts have held that a supporting spouse cannot insulate his or her assets from the alimony calculus by investing those assets in a non-income producing manner.

Miller v. Miller, 160 N.J. 408, 734 A.2d 752, 758-60 (1999) (citations omitted).

The trial court’s compliance with New Jersey law cannot be determined because its order is ambiguous and lacks key factual findings. First, although the trial court found a substantial change in the Former Husband’s circumstances, it did not make sufficient findings to support that conclusion. Specifically, the court erred in averaging the Former Husband’s incomes and comparing the averages from one set of years with the averages from another set of years. See Connor v. Connor, 254 N.J.Super. 591, 604 A.2d 158 (App.Div.1992). Rather, in order to evaluate whether the Former Husband has experienced a substantial change in circumstances, the court must make findings regarding the Former Husband’s incomes as of the date of the property settlement agreement and as of the date of the hearing on the petition for modification. In determining the Former Husband’s income as of the date of the hearing on the petition for modification, the trial court must also set forth specific findings of fact regarding the amount of income it determines is appropriate to impute to the Former Husband due to investment income and human capital income. See Schwarz v. Schwarz, 328 N.J.Super. 275, 745 A.2d 592, 596 (App.Div.2000) (noting that it is trial court’s duty to make findings of fact and conclusions of law “on every motion decided by written orders that are appealable as of right”); Halliwell v. Halliwell, 326 N.J.Super. 442, 741 A.2d 638 (1999) (holding that imputation of speculative amount of income cannot be countenanced); Miller, 160 N.J. 408, 734 A.2d 752 (holding that it is appropriate to impute income based on payer’s investments as well as payer’s human capital).

Second, if the trial court finds that the change in circumstances is substantial, it must then determine whether that change is permanent. We cannot determine from the order whether the court made this finding. The order is ambiguous as to whether the court was finding that the decline in the Former Husband’s income is a permanent result of changes in the health insurance industry or whether it is a temporary situation caused by his failure to apply himself. The latter situation will not support a modification of the Former Husband’s support obligations. See Lepis, 83 N.J. 139, 416 A.2d 45. On remand, if the trial court determines that the Former Husband has experienced a substantial change in circumstances, it must clarify whether it finds that change to be permanent.

In light of our reversal of the order on appeal and our directions to the trial court, we reverse the denial of the Former Wife’s motion for attorney’s fees and costs. That motion should be reconsidered in light of whatever findings the court makes on the modification issues.

Reversed and remanded with directions consistent with this opinion.

ALTENBERND and SILBERMAN, JJ., Concur.

      . The parties also have two emancipated children.

      . The marital property included a house on Sanibel Island, two condominiums in Lee County, two properties in New Jersey, and the Former Husband’s business.

      . In 2001 the New Jersey court adjusted the child support obligation to $48,036 per year. This is the figure that should be used by the trial court as the starting point if it decides to again modify the Former Husband's child support obligation.

      . The parties agreed in their property settlement agreement that ''[t]he issue of ... any modification of his [the Former Husband's] support obligations ... shall be dealt with according to the law of New Jersey at the time any such application is made.” The parties thus allowed for the filing of a modification action in another state.


text:
    Mario GONZALEZ, Appellant, v. Aurora GONZALEZ, Appellee.
    No. 3D02-1922.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2002.

      Perez-Abreu & Martin-Lavielle and Javier Perez-Abreu, Coral Gables, and Andy W. Acosta, for appellant.
    Maurice Jay Kutner, Miami, and Rand S. Lieber, Sanford, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

Mario Gonzalez appeals a temporary support order. We conclude that the amount is supported by the record and that the order is sufficiently specific for purposes of review here. See Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001).

The appellant argues that reversal is required by the decision in Fleischfresser v. Accursio, 833 So.2d 803(Fla. 3d DCA 2002). We disagree. In that case, the trial court’s order failed to differentiate between child support and temporary alimony. More particularized findings were needed in order to permit appellate review. There is no child support issue in the present case and, in our view, the record adequately supports the amount awarded.

Affirmed.


text:
    Byron HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4362.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Byron Harvey, Quincy, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001).

KLEIN, GROSS and HAZOURI, JJ., concur. ■


author: ■ SHAHOOD, J.

text:
    David Lee RANDOLPH, a/k/a Henry Stone, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2634.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Rehearing Denied Jan. 23, 2003.

      Carey Haughwout, Public Defender, Jeffrey Anderson, Assistant Public Defender, and Samuel A. Walker, Assistant Public Defender, Certified to Practice as a Member of an OuWof-State Bar, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee. -
   ■ SHAHOOD, J.

Appellant in this case was convicted of grand theft, fleeing or attempting to elude an officer, possession of marijuana less than 20 grams, and burglary of an occupied dwelling. As a result of the conviction of burglary of an occupied dwelling, appellant was sentenced as a prison releas-ee reoffender. ' We affirm his convictions and sentences on all charges. We write only to discuss the final issue raised by appellant — whether the trial court committed fundamental error in giving an inaccurate jury instruction on the burglary charge.

In this case, the evidence showed that, in the middle of the night, the victim awoke to find a heavy-set, black gentleman, approximately six feet tall, standing at the sliding glass door as if he were going to enter the house. ' The man’s hand was on the door and the door was approximately six inches open. The victim later realized that the man had already been in the house and was just leaving. The victim chased the man away and went back inside his home to call the police. He later discovered that some cash, a watch, a piece of furniture, a cell phone; and some blank checks had been taken.

A few hours after the burglary, appellant was apprehended driving a stolen car. The items which had. been taken from the victim’s apartment were found in the car which appellant was driving.

In Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2001), this court reviewed the propriety of instructing the jury that appellant could be found guilty of burglary of an occupied dwelling if it was> found that he entered or remained in the dwelling with an intent to commit an offense therein. We stated,

In Florida, burglary of a dwelling is committed in two different ways: (1) by entering a dwelling without permission with an intent to commit an offense; or (2) by remaining in a dwelling surreptitiously, after a consensual entry, with an intent to commit an offense. See Tinker v. State, 784 So.2d 1198, 1199 (Fla. 2d DCA 2001). Where the facts demonstrate that entry was without permission, the burglary instruction may not include the phrase “remaining in,” as it wrongly allows conviction based on an intent to commit an offense formed after entry. Id.

Id. at 42.

Under the facts in Lopez, the error was deemed fundamental. There, the appellant, who was the former boyfriend and roommate of the victim’s neighbor, had entered the victim’s apartment one night, stood by her bed and poked her while she slept. Because there was no evidence of a consensual entry, this court held that giving the “remaining in” instruction could only serve to confuse or mislead the jury by suggesting “that the jury could convict appellant if he either entered the victim’s home with the intent to commit an offense or did not form the intent until after he ‘remained in’ her home.” Id. at 42.

In subsequent cases, we have held that the issue of whether it is fundamental error to include the “remaining in” language in á burglary instruction turns on the facts of each case. See Miller v. State, 828 So.2d 445 (Fla. 4th DCA 2002); Couzo v. State, 830 So.2d 177 (Fla. 4th DCA 2002). Specifically, if, based on the facts, there can be no innocent explanation as to why the defendant is in the building, there can be no misconception by the jury that he formed his intent only after remaining in the structure. See Miller. Thus, where the method of entry leaves no room for doubt as to when the defendant formed his intent, there could be no chance that the jury could erroneously convict the defendant for remaining in the structure. See, e.g., Miller, 828 So.2d 445, 448 (finding no error in including “remaining in” language where defendant was on the grounds of a country club in the early morning hours and entered the screened-in porch area next to the golf pro shop armed with a crow bar); Couzo, 830 So.2d 177, 180 (finding no error in including “remaining in” language where defendant punched a hole in the roof of a check cashing store in the middle of the night, cut the store’s phone lines and activated the alarm).

As in Miller and Couzo, the present case is distinguishable from Lopez and the facts do not support a conclusion that giving the “remaining in” language in the instruction amounted to fundamental error. In this case, the only evidence was that appellant was seen standing at the sliding glass door, apparently on his way out. It was later ascertained that he had pried the door open and robbed the victim. Thus, based on appellant’s manner of entry, which demonstrates an obvious lack of consent to enter, as well as the lack of evidence that appellant remained in the apartment, there could be no confusion as to when the intent to commit an offense was formed. Consequently, any error in including the “remaining in” language in the burglary instruction was not fundamental.

We affirm as to all other issues raised.

AFFIRMED.

STEVENSON and MAY, JJ., concur.


author: MAY, J.

text:
    Robert SPIEGEL, Appellant, v. H. ALLEN HOLMES, INC., a Florida Corporation and H. Allen Holmes, individually, Appellee.
    Nos. 4D02-152, 4D02-467.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Rehearing Denied Jan. 31, 2003.

      Steven M. Selz of Law Offices of Selz & Muvdi Selz, P.A., Palm Beach, for appellant.
    John L. Avery, Jr. of Law Offices of John L. Avery, Jr., Jupiter, for appellee.
   MAY, J.

A trial court’s ability to enforce a settlement is questioned as the plaintiff appeals an order that enforced a settlement agreement against him. The plaintiff has raised four issues and the defendant/counter-claimant has cross-appealed. We affirm on all issues but one in the direct appeal, and reverse on the attorney’s fees issue raised in the cross-appeal.

The plaintiff, a homeowner, filed suit against the defendant, alleging claims for breach of contract, breach of warranty, and fraud in the inducement concerning an agreement for the provision of decorating services. The defendant counter-claimed for breach of contract, account stated, and foreclosure of a mechanic’s lien.

The case proceeded to a non-jury trial. At the close of the first day of testimony, the parties met in an attempt to resolve their dispute. After negotiating a deal, the parties’ attorneys left to prepare the written settlement agreement.

The next day, both lawyers advised the court’s judicial assistant that a settlement had been reached and that a written settlement agreement was being prepared and would be filed. On the same day, the plaintiffs lawyer drafted two documents, a stipulation for settlement and a confidential settlement agreement. He forwarded them to the defendant’s attorney.

Both attorneys signed the stipulation for settlement. The stipulation provided that upon complete performance of the agreement’s terms, each party would file “a dismissal with prejudice of all claims and counterclaims, pled or which may have been pled in the action and shall further exchange general releases.” Paragraph 3 provided for attorneys fees and court costs incurred in the enforcement of the settlement agreement. And, paragraph 5 provided for the trial court to

retain jurisdiction for purposes of enforcing the terms and conditions of this Stipulation and of the Agreement and for that purpose further agree that the terms of this Stipulation shall be deemed an Order of this Court. To effectuate same, the parties shall submit an agreed order providing that this Court shall retain jurisdiction in this matter for purposes of enforcement.

The confidential settlement agreement was signed by the plaintiffs counsel, the defendant, and his attorney. Although the plaintiff did not sign the confidential settlement agreement, on the same date he prepared and signed a check made payable to the trust account of John L. Avery, Jr. P.A. (defendant’s counsel) in the amount of $13,250.00, the amount agreed to in settlement of the dispute. Plaintiffs counsel retained the original check, but delivered a copy to the defendant’s counsel When the defendant’s counsel called about the original check, plaintiffs counsel advised him that the plaintiff wanted certain window screens, which he was paying for in the settlement, but-had not received.

When the check did not arrive, the defendant moved to compel enforcement of the settlement agreement. As no written settlement agreement had been filed with the court, the trial judge sent the parties to mediation. It was unsuccessful. The trial court then held a hearing on the defendant’s motion to compel settlement, at which only the attorneys testified.

The court granted the defendant’s motion, and ordered the plaintiff to pay the defendant $13,250.00 within five (5) days. It further directed the parties to file dismissals of their respective claims with prejudice. The order did not retain jurisdiction for enforcement of the terms of the confidential settlement agreement and did not include all of its terms. The court denied the defendant’s request for attorney’s fees.

Settlement agreements are favored as a means to conserve judicial resources. Courts will enforce them when it is possible to do so. See Long Term Mgmt., Inc. v. Univ. Nursing Ctr., Inc., 704 So.2d 669, 673 (Fla. 1st DCA 1997). They are interpreted and governed by the law of contracts. Williams v. Ingram, 605 So.2d 890 (Fla. 1st DCA 1992). The party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. Carroll v. Carroll, 532 So.2d 1109 (Fla. 4th DCA 1988), rev. denied, 542 So.2d 1332 (Fla.1989).

To compel enforcement of a settlement agreement, its terms must be sufficiently specific and mutually agreed upon as to every essential element. Don L. Tullis and Assoc., Inc. v. Benge, 473 So.2d 1384 (Fla. 1st DCA 1985). Uncertainty as to nonessential terms or small items will not preclude the enforcement of a settlement agreement. A client’s express authority given to his attorney to settle a cause of action must be clear and unequivocal. See Jorgensen v. Grand Union Co., 490 So.2d 214 (Fla. 4th DCA 1986). However, “[t]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.” Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404, 407 (Fla.1974)(quoting Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1967)).

A trial court’s finding that there was a meeting of the minds must be supported by competent substantial evidence. Long Term Mgmt. When that evidence exists, this court will affirm. A review of this record reveals that it contains competent substantial evidence to support the trial court’s determination that the parties entered into an enforceable settlement agreement. We therefore affirm the trial court’s decision to enforce the settlement.

We reverse the order, however, to the extent that it failed to mirror the terms of the actual settlement agreement. See Sinclair v. Clay Elec. Co-op., Inc., 584 So.2d 1065 (Fla. 5th DCA 1991)(error to include in an order enforcing settlement agreement terms and conditions not included in the agreement). The order requires payment by the plaintiff within five (5) days and directs the parties to file dismissals with prejudice. The confidential settlement agreement, however, required the execution of mutual releases, and included additional terms absent from the court’s order. We therefore reverse the order as written and remand the case for entry of an order that directs the parties to comply with the terms of the settlement agreement.

With regard to the cross-appeal, we also reverse that part of the order denying the defendant’s motion for attorney’s fees. The stipulation specifically provided that “[e]ach party shall bear their own attorney’s fees and court costs in this matter, excepting therefrom such attorneys fees and court costs incurred in the enforcement of the Agreement.” As the defendant was forced to file a motion to compel and participate in an evidentiary hearing to enforce the settlement agreement, it is entitled to attorney’s fees.

The order is therefore affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings consistent with this opinion.

STONE, and HAZOURI, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. J.H.K., III, Father of O.K., a child, Appellee.
    No. 5D02-858.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Charles D. Peters, Orlando, for Appellant.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
   SHARP, W., J.

The Department of Children and Family Services appeals from an order dismissing its petition to terminate the parental rights of J.H.K. to his daughter O.L.K. Based on this court’s recent opinion in Department of Children and Families v. V.V., 822 So.2d 555 (Fla. 5th DCA 2002), we reverse and remand for a new hearing.

On December 5, 2001, the Department filed the amended petition for termination of parental rights in this case. It alleged the child had been abused, abandoned and neglected by both parents and that the parental rights of the mother and J.H.K. to two other children had been involuntarily terminated in New Mexico on December 2, 1998. The Department requested that the court take judicial notice of motions and affidavits filed in the New Mexico termination proceedings, and the court agreed.

J.H.K. testified via telephone from the correctional facility in New Mexico where he was incarcerated. He testified he had not written the child letters because she is only three years old and that he lacked money or access to purchase articles for her birthday or other holidays. He had been incarcerated since July 1998, six months before the child’s birth, but was scheduled to be released soon.

A witness for the Department testified nine letters had been written by J.H.K. inquiring about the child from November 2000 through. December 2001. The current counselor assigned to the case testified she had had no contact with J.H.K., even though she had written to him giving him her name and address and informing him she had been assigned to the child’s case. Two witnesses testified the child was bonded with her foster family, is very happy, and that her foster family wishes to adopt her.

The judge concluded that the Department failed to carry its burden of proof to establish a legal basis to terminate J.H.K’s parental rights. She said evidence of abandonment was insufficient because

J.H.K. had been incarcerated for the child’s entire life time and had written letters to the case worker 'early in the proceedings. She also found the termination of J.H.K.’s parental rights to his two other children in New Mexico was insufficient to sustain termination in this case. She relied on Department of Children and Families v. V.V., 26 Fla. L. Weekly D2717 (Fla. 5th DCA Nov.16, 2001).

Section 39.806(l)(i) provides that parental rights to one child may be terminated when parental rights to a sibling have been terminated involuntarily. This statute is facially constitutional and has created, in effect, a presumption sufficient to support termination which is subject to rebuttal by the parents. Dept. of Children & Families v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002); A.B. v. Dept. of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002).

In V.V., this court originally held a trial judge correctly refused to consider a termination of parental rights in Mississippi, or the facts surrounding the Mississippi action in a Florida proceeding for dependency and termination of a mother’s parental rights to another child. Apparently the mother was not afforded counsel in the Mississippi proceedings.

However, in July 2002, and after this case had been heard below, this court granted the Department’s motion for rehearing in V.V. We withdrew the prior opinion and issued a new one. Dept. of Children and Families v. V.V., 822 So.2d 555 (Fla. 5th DCA 2002). We said the trial judge should recognize the termination of parental rights in Mississippi for purposes of section 39.806(l)(i). “Principles of comity and full faith and credit demand that the judgment be recognized. No paramount rule of public policy dictates otherwise.” 822 So.2d at 558.

Accordingly, we reverse the order dismissing the Department’s petition for termination and remand for a new hearing. At that hearing, both the Department and J.H.K. can offer additional evidence surrounding the New Mexico termination and subsequent events which may rebut, alter or strengthen the presumption arising from the prior termination, as well as other matters which may be relevant.

REVERSED and REMANDED.

COBB and PLEUS, JJ., concur.

      . 26 Fla. L. Weekly D2717 (Fla. 5th DCA Nov.16, 2001).