text:
    Cinda SCHULBERG, Appellant, v. Marc SCHULBERG, Appellee.
    Nos. 03-1009, 03-519.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Fred M. Dellapa; Karen J. Haas, Miami, for appellant.
    Chántale L. Suttle and Tammi A. Clear-field, Miami, for appellee.
    Before COPE, GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Cinda Schulberg appeals an order which granted a downward modification of child support and enforced an arbitration agreement. She also appeals an order denying her motion for relief from judgment. We affirm.

I.

Ms. Schulberg, the former wife, and ap-pellee Marc Schulberg, the former husband, divorced in 1996. There are three children of the marriage. There was a marital settlement agreement which provided for $2,500 per month in child support.

The former husband moved for modification, which was tried by the court in 2003. The former husband’s evidence was that he had been the part owner of an Army/ Navy Surplus store where the business had progressively declined, necessitating the sale of his half-ownership interest in the store. The former husband testified that he had diligently searched for work and had located employment in Philadelphia, although at lower pay than he had previously earned.

The former wife contended that the former husband had received more money for his share of the business than he had disclosed, that his search for employment had not been diligent, and that he was voluntarily underemployed.

The trial court found in favor of the former husband. The decline of the business income was reflected in the tax returns and other evidence. The business could no longer provide enough income to support both partners and it was necessary for one partner to buy out the other. The court found that the buyout was done for legitimate business reasons and was reasonable under the circumstances. We conclude that the evidence was legally sufficient to support the trial court’s order.

The court also rejected the former wife’s claim that the former husband was voluntarily underemployed. The former husband testified that he had taken a job as a manager of a furniture business in Philadelphia. His income was higher than his final year at the Army/Navy store, but lower than it had been during prior years in that business. The court pointed out that the former wife had not offered any competent evidence that the former husband realistically could have obtained a higher-paying job in the retail field. The former wife’s main contention appears to have been that the Army/Navy business was doing well and the former husband should not have sold out — a claim that court rejected as not being supported by the evidence. We conclude that the court employed the correct legal standard and its findings are supported by the evidence. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). The credibility determinations were for the trial court. See Cole v. Cole, 723 So.2d 925, 927 (Fla. 3d DCA 1999). The relief fashioned by the court was within its discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

A month after the entry of the modification order, the former wife filed a motion for relief from judgment, asserting the existence of newly discovered evidence. After an evidentiary hearing, the trial court denied the motion.

The former wife contends that there should have been discovery and a more extensive evidentiary hearing. However, as we understand it, it was the former wife who set the motion for relief from judgment for an evidentiary hearing. The former wife did not move to continue the hearing. The request for more discovery was not raised until midway through the hearing, after it became apparent that the trial court was intending to deny the motion. Further, the former husband had brought to the hearing the two lawyers who had handled the sale of the business, who were made available for testimony. However, the former wife opted not to call them as witnesses. Under the circumstances, we find no error in the denial of relief.

II.

The former wife raises a claim of fundamental error with regard to that part of the trial court order which enforces the parties’ arbitration agreement. Although the wife successfully requested enforcement in the trial court, she states that during the pendency of this appeal, it has come to her attention that the arbitration clause may violate Florida law.

The parties’ marital settlement agreement included an arbitration clause to be invoked in the event that the parties could not agree about whether the children should attend private school. The arbitration clause states:

3. The parties shall take the sum of $10,000.00 from their joint monies to pay the children’s private school tuition for the remainder of this year. Next year, the Husband will pay the entire school year expenses in the amount of approximately $15,000.00. For the 1998 school year, the parties will agree whether or not private school is necessary. If they cannot agree, they will go to arbitration. In the event that the arbitrator finds a need for private school for the children, the Husband shall pay 60% of the expenses for private school and the Wife shall pay 40% of said expenses.

The 1996 final judgment of dissolution of marriage approved the marital settlement agreement. With regard to the arbitration clause, the court added that “the parties will make a determination as to private school no later than July 1 of each year. If they are unable to agree, arbitration must be concluded and a binding arbitration decision rendered no later than August 1 of each year.”

In 2002 the former wife requested enforcement of the arbitration clause. She alleged that for the 1998 school year, the former husband refused to pay for private tuition. She stated that one of the children continued in private school paid for by the former wife while the other two children did not.

The former wife requested that the arbitration clause be enforced and that the parties’ dispute be sent to an arbitrator for decision of two issues: (1) For the coming school year, should the children attend private school? (It was the former wife’s position that all three should attend private school.) (2) Should the former husband reimburse the former wife for 60% of the cost of the ninth and tenth grade private school for the one child who had continued in private school at the former wife’s expense?

The trial court granted the former wife’s request, stating that “the parties shall attempt to agree on the issue of private schooling for the children. If they cannot agree, they shall submit to binding arbitration on that issue which must be concluded and a decision rendered on or before August 1 each year, commencing with 2003.”

On this appeal, the former wife argues in substance that the enforcement order is fundamental error. She states that it has come to her attention that there is a statutory prohibition on arbitration of child support. She points to section 44.104, Florida Statutes (2003), which addresses voluntary binding arbitration. Subsection 44.104(14) provides, “This section [44.104] shall not apply to any dispute involving child custody, visitation, or child support....” The former wife reasons that tuition is a form of child support. See Montante v. Montante, 627 So.2d 554, 556 (Fla. 4th DCA 1993). She argues that under subsection 44.104(14), the parties’ arbitration clause is unenforceable.

We conclude that there is no fundamental error here. We reject the former wife’s analysis.

Although not addressed by the parties, we have considerable doubt that section 44.104, Florida Statutes, applies to the parties’ arbitration clause. Subsection 44.104(1) states, “Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration ... in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.” As we read this language, it applies to an existing dispute.

The parties’ arbitration clause, by contrast, was entered into in 1996 to govern possible future disputes about private schooling which might arise in 1998 or thereafter. It appears that the parties’ arbitration clause is outside of the scope of section 44.104.

Assuming for purposes of discussion that section 44.104 applies to the parties’ arbitration clause, the question is whether the parties’ arbitration clause is one which applies “to any dispute involving ... child support....” We do not think so.

Under the parties’ agreement, the issue to be decided by the arbitrator is whether there is a need for private school for one or more of the children. This is a determination based on educational need. If the arbitrator rules in favor of private school, the parties have already decided between themselves how to divide the cost, which will be born 60% by the former husband and 40% by the former wife. If private school is ordered and either party fails to pay the required share, then the aggrieved party must apply to the trial court for enforcement.

The former wife has also requested a determination by the arbitrator that private school was necessary for the ninth grade and tenth grade year for the one child who stayed in private school. Again, as we understand the parties’ agreement, the issue for the arbitrator is whether private school was necessary for this child from the standpoint of educational need for the ninth and tenth grade year. If the answer is no, then the former husband will owe nothing for the ninth and tenth grade years. If the arbitrator’s answer is yes, then the former husband will owe 60% of the tuition cost, as the parties have already decided between themselves how to allocate the cost. If the former husband fails to pay, enforcement is for the court.

Assuming arguendo that section 44.104 is applicable here, the parties’ arbitration agreement is consistent with, and not prohibited by, subsection 44.104(14). The issue reserved for the arbitrator is the question of educational need. The parties have already decided how the expense is to be paid in the event that educational need is found. We therefore affirm the order enforcing the arbitration clause.

We affirm with respect to the remainder of the points on appeal, and the cross-appeal, without further comment.

Affirmed.

      . We note that the modification order provided for retention of jurisdiction to recalculate the father's child support obligation based on his current income and the majority of one of the children in June 2004.

      . The former wife also received the marital home free and clear and $140,000 in lump sum alimony.

      . The arbitration clause appears to fall within the scope of the Florida Arbitration Code. See § 682.02, Fla. Stat. (2003) ("Two or more parties ... may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof.”) (Emphasis added).

      . We suggest that the Legislature revisit section 44.104, Florida Statutes, from two standpoints. First, as presently written, subsection 44.104(14) indicates, "This section [44.104] shall not apply to any dispute involving child custody, visitation, or child support...." While this language would preclude the use of section 44.104 for such a dispute, it leaves open the question whether an arbitration clause excluded from 44.104 might nonetheless be enforceable under chapter 682, Florida Statutes.
      Second, while section 44.104 and chapter 682 are similar, there are some differences. It appears that some arbitration agreements may be subject to both statutes. Compare § 44.104(1), Florida Statutes, with id. § 682.02; see also id. § 718.401(1)©. If so, the statute should be clarified to specify which statute controls in the event of a conflict.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David THOMPSON, Appellant, v. KELLER FOUNDATIONS, INC. and Zurich North American, Appellees.
    No. 1D04-607.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.

      Matthew E. Noyes, Clearwater, for Appellant.
    W. Gregory Lockeby of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Orlando, for Appellees.
   PER CURIAM.

Because the appellant, a traveling construction worker, joined several co-workers playing pool and eating wings at a sports bar for an hour prior to driving to a restaurant for dinner (during which drive the appellant was injured in an accident that was not his fault), the Judge of Compensation Claims (JCC) concluded that the appellant’s injuries were sustained while the appellant was engaged in amusement activities and were therefore not compen-sable. Although the JCC’s findings of fact are supported by competent substantial evidence, we disagree with the JCC’s conclusion that the appellant’s act of driving to dinner, after playing pool for an hour, was not a risk reasonably incidental to the conditions of the appellant’s employment. See Garver v. Eastern Airlines, 553 So.2d 263, 267 (Fla. 1st DCA 1989).

“A traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in ... normal and necessary activities.” See Ramirez v. Parish, 855 So.2d 1182, 1184 (Fla. 1st DCA 2003), citing Leonard v. Dennis, 465 So.2d 538, 540 (Fla. 2d DCA 1985). Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable. See Garver v. Eastern Airlines, 553 So.2d at 267.

Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that this traveling construction worker was not attending to a normal creature comfort and a reasonable necessity — driving to dinner — when his injuries were sustained. See Ramirez, 855 So.2d at 1184. Accordingly, the JCC’s order is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAVIS, BROWNING and HAWKES, JJ., CONCUR.


text:
    TUCKER TRANSPORTATION COMPANY, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 1D03-5042.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.

      R. Scott Traweek, of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Gulf Breeze, for Appellant.
    Patricia Haight, Pensacola, for Appellee.
   PER CURIAM.

Appellee State Farm Mutual Insurance Company filed an action in county court seeking reimbursement for personal injury protection (“PIP”) benefits from the Ap-pellee Tucker Transportation Company, Incorporated, under section 627.7405, Florida Statutes. A bench trial was held with State Farm presenting one of its claims processors, who testified that State Farm paid Tucker’s employee $9,999.80 in PIP benefits after he was involved in an accident while driving one of Tucker’s commercial vehicles. Tucker then moved for a directed verdict on the basis that (i) State Farm failed to state a cause of action because it failed to attach a copy of the insurance policy to the complaint, (ii) Tucker was immune from the operations of section 627.7405 under section 440.11 of the Workers’ Compensation Act, (iii) State Farm failed to allege a statutory right to reimbursement, and (iv) without a required finding of fault, section 627.7405 was unconstitutional.

The trial court entered its final judgment in favor of State Farm, concluding as a matter of law that section 440.11 did not immunize the Appellant from the operation of section 627.7405, accepting and applying the reasoning and holding in American Freight System, Inc. v. Florida Farm Bureau Casualty Insurance Co., 453 So.2d 468 (Fla. 2d DCA 1984). The Court then concluded that section 627.7405 did not require a finding of fault and did not violate the Appellant’s equal protection rights, citing Dealers Insurance Co. v. Jon Hall Chevrolet Co., 547 So.2d 325 (Fla. 5th DCA 1989). The court also concluded that the Appellee was not required to attach the insurance policy to the complaint because the action was not based upon a particular insurance policy, but was instead based upon a statutory right. After entering final judgment in favor of the Appellee, the trial court went on to certify questions of great public importance to this Court in accordance with Fla. R.App. P. 9.160. Tucker appeals the trial court’s rulings, which we affirm on the same grounds as stated by the trial court.

AFFIRMED.

DAVIS, LEWIS and POLSTON, JJ., concur.

      . See also Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 865 So.2d 590 (Fla. 2d DCA 2004) (citing Dealers Ins. and certifying conflict with Fla. Farm Bureau Mut. Ins. Co. v. Tropicana Prods., Inc., 456 So.2d 549 (Fla. 3d DCA 1984)), review granted, SC04-387 (Sept. 10, 2004).

      . The questions are: "A. Is an employer immune under section 440.11, Florida Statutes from suit brought by an insurer under section 627.7405 for reimbursement of personal injury protection benefits paid to an employee of the employer? B. Is section 627.7405 unconstitutional to the extent it allows an insurer reimbursement from an employer for personal injury protection benefits paid to an employee of the employer without regard to fault of the employer?” The answer to both questions is "no.”


text:
    Jose VALDES, Petitioner, v. GALCO CONSTRUCTION and GAB-Robbins, Respondents.
    No. 1D04-1884.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.

      Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zeintz, P.A., Miami, for petitioner.
    Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans & Abel, Hollywood, for respondents Galco Construction and GAJB-Robbins; Walter J. Havers, Staff Counsel, Office of the Judge of Compensation Claims, Division of Administrative Hearings, Tallahassee, for JCC Gerardo Cas-tiello.
   ON MOTION FOR REHEARING

PER CURIAM.

Having considered respondents’ motion for rehearing or clarification and petitioner’s motion for clarification, we withdraw the opinion of July 26, 2004, and issue the amended opinion set forth below. Except as reflected in this opinion, the parties’ motions are denied.

Workers’ compensation claimant Jose Valdes petitions for a writ of mandamus, seeking an order of this court which would compel the Judge of Compensation Claims (JCC) to issue an order on a claim for fees for his attorney, Mark L. Zientz. The employer/carrier agreed that a fee was due and a hearing on the question of the amount of the fee was conducted on December 2, 2003. The JCC directed attorneys for both parties to submit proposed orders, but Mr. Zientz and the JCC became embroiled in a controversy over whether Mr. Zientz would submit a proposed order and, if so, its content. The appendix to the petition for writ of mandamus adequately documents the contentious nature of this dispute, which we find unnecessary to otherwise describe in this opinion.

Although parties do not possess a right to file a proposed order, see Florida Administrative Code Rule 60Q6-6.103(3), a JCC may request that each party submit a proposed order. We recognize that many JCCs, as a method of administering a heavy caseload, have adopted the practice of requesting counsel to prepare a proposed order. The opportunity to submit a proposed order to the JCC is one which a party, including Mr. Valdes as represented by his counsel, may elect to forgo, although he does so at his own peril. For example, some delay in the issuance of the final order might reasonably be expected, because the JCC must prepare a lengthy final order without the benefit of having that party’s position on the relevant facts and law reduced to writing. Further, the resulting order may contain deficiencies which are prejudicial to that party in the event of appellate review. See United States v. Horsfall, 270 F.2d 107 (10th Cir.1959). The JCC, of course, is responsible to ensure that the order reflects his or her findings of fact and conclusions of law, regardless of the proposed orders submitted by the parties. See Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004); Cole Taylor Bank v. Shannon, 772 So.2d 546 (Fla. 1st DCA 2000); Jellison v. Dixie Southern Industrial, Inc., 857 So.2d 365, 367 n. 2 (Fla. 1st DCA 2003). The order must also be rendered in a timely manner. § 440.25(4)(d), Fla. Stat. (2003); Scottie-Craft Boat Corp. v. Smith, 336 So.2d 1150 (Fla.1976).

We find that this is an appropriate circumstance for issuance of a writ of mandamus. Kramp v. Fagan, 568 So.2d 479 (Fla. 1st DCA 1990); Department of Business Regulation, Division of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla.1982). Accordingly, the petition for writ of mandamus is granted and the JCC is directed to issue an order on claimant’s motion for attorney’s fees within a reasonable time, not to exceed 30 days, from issuance of mandate in this cause.

PETITION GRANTED.

WEBSTER, VAN NORTWICK, and POLSTON, JJ., concur.

      . We do not address the questions of whether the JCC has authority to impose sanctions for failure or refusal to submit a proposed order and, if so, what sanctions might be appropriate, because those issues are not before us. We do hold, however, that the JCC may not withhold or unreasonably delay issuance of the order because a party has not submitted a proposed order. See Bean v. Bean, 430 So.2d 619 (Fla. 5th DCA 1983).


author: GROSS, J.

text:
    Kathalina MONACELLI, Appellant, v. Carlos GONZALEZ, Jr., Appellee.
    No. 4D04-560.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Kathalina Monacelli, Miramar, pro se.
    No appearance for appellee.
   GROSS, J.

Kathalina Monacelli appeals a final judgment dissolving a marriage, awarding her $200 per month in alimony, and giving primary residential custody of the four minor children to the husband, Carlos Gonzalez, Jr.

This was a difficult case and the trial judge prepared a detailed and thoughtful final judgment. The wife did not supply this court with a transcript of the trial. “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.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Absent a transcript of the final hearing, this court may reverse the decision “only if an error of law appears on the face of the final judgment.” Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA1999).

We write to address one issue. The wife argues that the trial court erred in awarding primary residential custody of the minor children to the husband, in spite of the husband’s history of domestic violence towards the wife. The final judgment indicates that the husband was on felony probation for hitting the wife with a frying pan.

The final judgment does not indicate that the domestic violence had any impact upon the children. No statute makes a felony conviction of domestic violence an absolute bar to being a primary residential parent. Section 61.13(2)(b)2., Florida Statutes (2003) provides that such a conviction creates a rebuttable presumption of detriment to the child:

[ejvidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence ... creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent.

Because it provides that the presumption of detriment to the children may be rebutted, section 61.13(2)(b)2., contradicts the wife’s claim that the husband’s felony conviction is an automatic, absolute bar to an award of primary residential custody. The trial court’s order supports the conclusion that the husband overcame the presumption of unfitness.

The final order presents a number of reasons that support the decision to award primary residential custody to the husband. The court found that: (1) the love, affection, and other emotional ties existing between the parents and children “appeared] to be significantly greater towards” the husband; (2) the husband had the greater capacity and disposition to provide the children with food, clothing, and medical care; (3) it was desirable to maintain continuity for the children in the “comparatively stable environment” in the home of their paternal grandmother; (4) the children preferred to be with their father; and (5) the Wife suffered from bipolar disorder, for which she had been Baker Acted on three occasions, and she refused to accept any treatment or medication for her illness.

AFFIRMED.

WARNER and SHAHOOD, JJ., concur.


text:
    Keith J. CIPRIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2186.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Keith J. Cipriano, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Keith Cipriano appeals the summary denial of his rule 3.850 motion. We reverse in part and remand for further review of two related claims.

Following a jury trial, appellant was convicted as charged of solicitation to commit first degree murder. According to the evidence at trial, he asked a former neighbor to kill his ex-wife’s live-in boyfriend for $500.

In ground IB of his postconviction motion, appellant asserted that his trial attorney provided ineffective assistance by not investigating the neighbor, Mr. Baio, who was the State’s key witness. Appellant alleged Baio had a motive to give testimony for the State in this case because Baio had a criminal conviction and was on probation at the time of appellant’s trial. In addition, the State failed to disclose that Baio was granted immunity in exchange for his testimony. Baio accepted the money and did not report the solicitation to the police. However, he was not charged with any offense in this case or with a violation of his probation. In ground 1G of his supplemental motion, appellant alleged that his attorney was ineffective for failing to impeach Baio with his probationary status and his violation of probation at the time of trial.

Under the confrontation clause, a defendant has the right to question a witness about his probationary status to reveal possible bias. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The witness’s probationary status could explain his motivation in testifying and in turn affect the witness’s credibility or the weight the jury would place on his testimony. Id. at 316-18, 94 S.Ct. 1105; see also Purcell v. State, 735 So.2d 579, 580 (Fla. 4th DCA 1999)(recognizing “a defendant has a ‘strong interest in discrediting a crucial state’s witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony’ ’’(quoting Auchmuty v. State, 594 So.2d 859 (Fla. 4th DCA 1992)); Perez v. State, 691 So.2d 1190, 1192 (Fla. 4th DCA 1997)(concluding “[a] jury should hear ‘[a]ny evidence which tends to establish that a witness is appearing for the State for any reason other than merely to tell the truth’ ’’Xquoting Holt v. State, 378 So.2d 106 (Fla. 5th DCA 1980)).

In this case, Baio’s testimony was the only direct evidence of solicitation to commit murder. Evidence that Baio was not a disinterested witness, that he was on probation, and that he was granted immunity in exchange for his testimony could have affected the jury’s verdict. Appellant has stated legally sufficient claims that are not conclusively refuted by the ■ records attached to the circuit court’s order.

Accordingly, the order is reversed in part and remanded for an evidentiary hearing or record attachments that conclusively show appellant is not entitled to relief. On remand, the court shall address appellant’s claims that counsel was ineffective for failing to impeach Baio with his probationary status and that the State failed to disclose that Baio was given immunity in exchange for his testimony.

AFFIRMED in part, REVERSED in part, and REMANDED.

KLEIN, STEVENSON and HAZOURI, JJ., concur.


author: STEVENSON, J.

text:
    Bruce McPHEE, Appellant, v. THE PAUL REVERE LIFE INSURANCE COMPANY, Appellee.
    No. 4D02-3748.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Robert J. McFann and Timothy P. Beavers of McFann & Beavers, P.A., Fort Lauder-dale, for appellant.
    John E. Meagher and Jeffrey M. Landau of Shutts & Bowen LLP, Miami, for appellee.
   STEVENSON, J.

Bruce McPhee appeals from a final judgment entered pursuant to a jury verdict in favor of the Paul Revere Life Insurance Company (and related or successor companies, hereinafter collectively referred to as “Paul Revere”) in a suit over benefits under a disability insurance policy. We reverse because, under the facts of this case, the trial court erred in failing to determine, as a matter of law, that McPhee was “regularly engaged” in an occupation at the time of his alleged disability.

The facts

After a five-day trial, a jury determined that McPhee was not totally disabled under the terms of his disability insurance policies with Paul Revere. The essential facts are summarized as follows. In April 1993, McPhee became chief executive officer of hurricane shutter manufacturer Wrono Enterprises under a contract that guaranteed his continued employment in that position until 1999. The contract also provided for Wrono’s paying the cost of a disability insurance policy. The subject insurance policy was issued by Paul Revere on October 15,1993, and an additional policy increasing his monthly benefit on account of the high level of his income was issued in 1994.

McPhee continued to perform his CEO duties over the next several years albeit he had some neck and shoulder injuries from a prior automobile accident, which occurred in 1993. In 1996, Dr. Dan Cohen, his surgeon, expressed the view that appellant could no longer perform gainful employment due to the aforementioned injuries. McPhee was away from his job for more than three months after surgery in 1996, and ten days after returning to work in December of that year, he was terminated. The company asserted several grounds for this action, including that McPhee was unable to work because of health problems.

McPhee maintained that he was not physically disabled at the time of his firing and later won a suit against Wrono for wrongful termination. Believing that he could still work and would find a cure for his condition, McPhee kept looking for related employment and consulted a variety of physicians in different parts of the country. McPhee was treated by Dr. Barth Green in Miami, brachial plexus specialist Dr. Charles Aprill in Louisiana, Dr. David Kline, and Johns Hopkins neurologist Dr. Donlin Long.

One of McPhee’s physicians was pain management expert Dr. Patrick Reynolds of Mt. Sinai Hospital. Reynolds said that McPhee desired to return to work, but the necessary medical ability to do so was lacking. Psychiatrist Dr. Scott Segal, who had been treating him since August 1996, testified that McPhee was upset when he was terminated because he was a proud man who wanted to work but clearly was unable to do so. It was Dr. Segal’s opinion that McPhee was unemployable but had stubbornly attempted to continue working when he really could not.

After a dorsal spinal stimulator, implanted on July 10, 1998, by Dr. Mario Nanes, failed to bring any relief, McPhee accepted the fact that he could not work. In August 1998, McPhee filed a disability claim with Paul Revere, listing July 14, 1998— the date the dorsal spine stimulator was removed — as the date his disability began. At first, Paul Revere made disability payments to McPhee but then later stopped because it determined that McPhee did not qualify for the benefits. This litigation followed on July 2, 1999 when McPhee sued Paul Revere for continuation of the benefits. After the issue of coverage was resolved pre-trial, the case ultimately proceeded to trial with the primary question of whether McPhee was totally disabled.

The policy definitions

According to McPhee’s policies, total disability means the “inability to perform the important duties of the insured’s occupation,” and the insured’s “occupation” is defined as the occupation in which the insured is “regularly engaged at the time disability begins.” Although McPhee last worked for Wrono in December 1996, he listed July 14, 1998, as the date on which his disability began. During the interim between his last day with Wrono and the asserted disability date, McPhee was undergoing medical treatment and was still insisting that he could work. At trial, Paul Revere reasoned that because McPhee had not worked for twenty months before making his claim, there was a jury question as to what was his occupation. McPhee’s position was that there was no actual jury question because it was undisputed that he had not worked at all for eighteen months before filing his claim for benefits.

McPhee requested the trial judge to instruct the jury as a matter of law that his occupation according to the policy definitions, i.e., the occupation in which he was “regularly engaged” at the time his disability began, was that of executive officer of a construction company — the most recent job he had. McPhee argued there was ambiguity in the contract in that nothing in the policy said directly that the insured had to be actively employed at the time he applied for disability benefits; hence, the court should construe the policy liberally in favor of benefits to the insured. In the alternative, McPhee requested the trial judge to instruct the jury that he did not have to be actively employed at the time he applied for disability benefits. The court refused to so instruct the jury, saying that the nature of McPhee’s occupation should be decided by the jury.

Over McPhee’s objections, without further elaboration on its meaning, the court merely read the jury language from the policy itself:

For the purpose of this lawsuit, there are multiple elements to the definition of Total Disability, as quoted below. McPhee must prove by the greater weight of the evidence that he meets all of these elements to be entitled to Total Disability Benefits.
McPhee’s policies contain the following language:
“Your Occupation” means the occupation or occupations in which You are regularly engaged at the time Disability begins.
“Total Disability” means that because of Injury or Sickness:
a. You are unable to perform the important duties of your occupation; and
b. You are receiving Physician’s care .... (underlined emphasis added).

During closing argument, Paul Revere cleverly, but strongly nevertheless, suggested that since McPhee was not employed at the time his alleged disability began, McPhee had no determinable occupation for purposes of the disability policies and, therefore, could not prove entitlement to benefits under the policies. The jury determined that, under the terms of his policies, McPhee was not totally disabled.

Discussion

The interpretation of a contract is a question of law to be decided by the court. See Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000), and cases cited therein. The standard of review when the issue is one of contract interpretation is de novo. See id. Under the circumstances of this case, we find that the trial court erred in failing to instruct the jury that McPhee was regularly engaged in an occupation at the time his disability began despite the fact that McPhee was not actively employed on that date.

The facts in Burriesci v. Paul Revere Life Insurance Co., 255 A.D.2d 993, 679 N.Y.S.2d 778 (1998), are somewhat analogous. There, Burriesci had left her job as assistant administrator of a small company and was receiving unemployment insurance when she failed to find a similar job. During this period of unemployment, she injured her back and her physician determined that she was totally disabled as of August 1991.

Like the present policies, Burriesci’s individual disability policy from Paul Revere provided benefits for total disability if the insured was unable to perform the important duties of her occupation and was under the regular care of her physician. The definition of the term “occupation” — the occupation “in which You are regularly engaged at the time You become Disabled” — was identical to the definition in the present policies. Id. at 778.

Paul Revere denied Burriesci’s initial claim on the ground that she was unemployed. Nevertheless, after she reinjured her back in December 1991, the company paid her three months’ disability payments, only then to deny further benefits on the ground that she had failed to prove continuing disability. Thereupon, Burries-ci sued for damages, breach of contract, breach of the covenant of good faith, infliction of emotional distress and misrepresentation. Paul Revere then moved for summary judgment dismissing the complaint, reasoning that, under the plain language of the policy, she was entitled to no benefits because she was unemployed at the time she became disabled.

The supreme court — New York’s equivalent of our circuit court — granted the motion for summary judgment, but the appellate division — New York’s equivalent of our district court — found that the lower court had erred insofar as the first two counts of the complaint were concerned. The plaintiff had abandoned her challenge to the dismissal of the third and fourth causes of action, so the ruling on those was allowed to stand.

The appellate court held that the policy was ambiguous:

By failing to use language that provides that an insured must be actively working at the time that the disability arises, the policy does not unambiguously exclude coverage for unemployed insureds. “The construction and effect of a contract of insurance is a question of law to be determined by the court where there is no occasion to resort to extrinsic proof.” We reject defendant’s contention that the addition of the term “regularly” to the term “engaged” means only that the policy covers a person who is employed but is not at work when the injury occurs.

Id. at 779 (citations omitted). The court then stated that the occupation in which the plaintiff was “regularly engaged” was that of assistant administrator, and that she could not be denied benefits because of her temporary unemployment. See id.

We acknowledge there is some difference in the circumstances of Burriesci and the instant case. Here, McPhee was out of work for much longer and was in no position to seek employment again, albeit he had tried to find similar employment before he became convinced that his doctors were right and he could no longer work. Yet, as in Burriesci, the policy language at issue is ambiguous when applied to the insured’s circumstances. Significantly, Paul Revere’s arguments at trial suggested to the jury that the policy could be read as not covering McPhee’s disability at all because he had no “occupation” within the meaning of the policy since he was not actively employed when his disability was alleged to have begun. In the instant case, such an interpretation would effectively eliminate any coverage and is clearly contrary to any reasonable construction of this disability insurance contract. Here, there was no reason to require the jury to determine if McPhee was regularly engaged in an occupation at the time his disability began. The reasoning of the appellate division in Burriesci is equally applicable here. The meaning of the policy language was one for the court, but effectively was turned over to the jury.

Additionally, the jury instructions which included the policy definitions of “occupation,” without further comment from the trial court as indicated previously, were misleading and therefore inappropriate. As appellant points out, the test for reversible error arising from an erroneous jury instruction is not whether the instruction misled, but only whether it reasonably might have misled the jury. See Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998), approved, 763 So.2d 276 (Fla.2000). The instruction given, in combination with the arguments presented by Paul Revere, could have easily led the jury to conclude that because McPhee was not employed at the time he filed his claim, he had no occupation and therefore could not be totally disabled within the terms of the policies.

In conclusion, we hold that the trial judge erred in failing to find, as a matter of law, that McPhee was regularly engaged in an occupation at the time his disability began. Of course, the trial court was correct in leaving the jury the task of deciding, as a factual matter, the true nature and scope of McPhee’s “occupation.” See Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830-31 (Fla.1997); see also Hopkins v. N. Am. Co. for Life & Health Ins., 594 S.W.2d 310 (Mo.Ct.App.1980). In sum, the language of the insurance contract should have been interpreted in a reasonable manner, consistent with the objectives and intentions of the contracting parties, i.e., to provide disability benefits in the event McPhee established that he had become physically disabled during the term of the policy.

REVERSED and REMANDED.

WARNER and GROSS, JJ., concur.

      . McPhee continued to pay the premiums for the policy after being terminated by the company and paid them until he started receiving disability benefits under the policy.

      . This is particularly so in light of the fact that McPhee’s employment contract with Wrono Enterprises extended through 1999, and McPhee’s disability allegedly began on July 14, 1998.


author: COPE, J. SCHWARTZ, Chief Judge

text:
    Edward C. JONES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D04-815.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 10, 2004.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo and Linda Katz, Assistant Attorneys General, for respondent.
    Before SCHWARTZ, C J., and COPE and FLETCHER., JJ.
   COPE, J.

The main question before us is whether it is fundamental error for the trial court to order a partial closure of the courtroom under subsection 918.16(2), Florida Statutes (2000) during the testimony of the victim of a sex crime, without making findings under Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). We conclude that such a closure does not amount to fundamental error. A contemporaneous objection is required to preserve the issue for appellate review.

I.

Defendant-petitioner Edward Jones was found guilty of fifteen counts of lewd and lascivious acts on a minor, his stepdaughter, in violation of section 800.04, Florida Statutes (1997). The case came to trial in October, 2000.

Prior to trial the State moved for an order partially closing the courtroom during the testimony of the victim. The victim, who had been fifteen at the time of the charged offenses, was seventeen at the time of trial. At the time of the trial, subsection 918.16(2), Florida Statutes (2000) provided:

(2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the victim’s age or mental capacity, except that parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney may remain in the courtroom.

Id.

In response to the State’s motion, the following transpired:

THE COURT: Any objection to that?
[DEFENSE COUNSEL]: I’d like to see some legal authority.
THE COURT: The Court has authority. At this time that motion is granted.

Prior to the testimony of the victim, the court announced, “Ladies and gentlemen, only family members can remain in the courtroom. Everyone else is going to have to leave the courtroom at this time.” The defense made no objection to this procedure. We assume for present purposes that one or more members of the audience left the courtroom, although the defense put nothing on the record in this respect.

The defendant was convicted and his convictions were affirmed on appeal. Jones v. State, 814 So.2d 1051 (Fla. 3d DCA 2002) (affirmance without opinion).

The defendant filed the instant petition alleging ineffective assistance of appellate counsel. In it he alleges that his appellate counsel was ineffective for failing to argue on appeal that the trial court erred by partially closing the courtroom without making the findings required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Alonso v. State, 821 So.2d 423 (Fla. 3d DCA 2002). The defendant contends that his trial counsel adequately preserved the objection in the trial court, and if not, then appellate counsel should have raised the issue as being fundamental error.

For the reason stated below, we reject the defendant’s arguments.

II.

In Alonso v. State, this court addressed the procedure to be applied where the State seeks partial closure of the courtroom under section 918.16, Florida Statutes. First, the court must determine if the statutory criteria are satisfied. Second, the court must determine whether the four-part test of Waller v. Georgia, 467 U.S. at 48, 104 S.Ct. 2210, is satisfied. See Alonso, 821 So.2d at 426. In Alonso the defense objected to closure of the courtroom without the constitutionally-required findings, thus preserving the issue for appellate review. Id. at 425.

In the present case, we reject the defendant’s claim that defense counsel made a proper objection to the partial closure of the courtroom in the trial proceedings. “In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.” Occhicone v. State, 570 So.2d 902, 905-06 (Fla.1990) (quoting Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987)).

When the State moved for the closure order, defense counsel said, “I’d like to see some legal authority.” That bare statement did not constitute an objection and did not inform the trial court of the legal theory now being advanced, namely, that in order to have a partial closure of the courtroom, it would be necessary to make findings under Waller. Subsequently, when the actual closure occurred, there was no objection, nor any statement for the record that anyone actually left the courtroom. Thus, the point was not preserved for appellate review.

III.

The defendant’s main contention in this petition is that the failure to make findings under Waller is fundamental error and that his appellate counsel should have raised the issue on appeal, even in the absence of a proper objection in the trial court.

The en banc Fourth District Court of Appeal has recently rejected such an argument. The Fourth District held that where the partial closure takes place without objection this does not constitute fundamental error.

The majority view across the country is that a failure to object to a closure of the trial waives the right to a public trial. Furthermore, in Dixon v. State, 191 So.2d 94, 96 (Fla. 2d DCA 1966), the second district summarily rejected the appellant’s claim of a violation of his right to a public trial because no objection was made. Most recently, our supreme court pointed to the lack of objection as a reason why there was no reversible error in the partial closure of a courtroom during voir dire. See Evans v. State, 808 So.2d 92, 105 (Fla.2001).

Alvarez v. State, 827 So.2d 269, 274 (Fla. 4th DCA 2002) (en banc) (citations omitted).

We’ agree with the Fourth District and align ourselves with the majority rule. A proper contemporaneous objection in the trial court is necessary to raise the need for Waller findings in connection with a request for partial closure of the courtroom under section 918.16, Florida Statutes. The absence of Waller findings is not fundamental error.

We also add a practical consideration. Partial closure of the courtroom under this statute is frequently done in child sexual abuse cases. Where a timely request for Waller findings is made, that can readily be accomplished. Where, however, the defendant and his counsel make no objection to the partial closing of the courtroom, that is a good indication that at the time and under the circumstances, the defendant and his counsel did not think the issue to be particularly important. That is hardly a situation which calls for application of the fundamental error doctrine.

The defendant argues that under federal precedent, an error of this type is a structural error which is not subject to waiver. That is incorrect. The United States Supreme Court has said, “The most basic rights of criminal defendants are ... subject to waiver. See, e.g., ... Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960) (failure to object to closing of courtroom is waiver of right to public trial) .... ” Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see Alvarez v. State, 827 So.2d at 274 (quoting Peretz); see also Luda v. State, 860 So.2d 457, 458 n. 1 (Fla. 4th DCA 2003).

Petition denied.

FLETCHER, J., concurs.

SCHWARTZ, Chief Judge

(dissenting).

I believe that Williams v. State, 736 So.2d 699 (Fla. 4th DCA 1999), rather than Alvarez v. State, 827 So.2d 269 (Fla. 4th DCA 2002)(en banc), review denied, 845 So.2d 887 (Fla.2003), which overruled Williams, correctly decides the issue in this case. The only authority cited by Alvarez which purports to justify a departure from the fundamental error analysis in Williams is Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In Peretz, however, the Supreme Court specifically held that the error involved there, the absence of the district judge from voir dire proceedings conducted by a magistrate, was not structural. See Peretz, 501 U.S. at 937, 111 S.Ct. 2661 (“we are convinced that no such structural protections are implicated by the procedure followed in this case”). In contrast, I think the partial closure of the courtroom is just such an error. See Williams, 736 So.2d at 701 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991))(White, J., dissenting and specially concurring). As Williams, I believe correctly, states:

The fact that the denial of the right to a public trial concerns plain error cognizable for the first time on appeal is best understood with reference to the significance of this right. The right to a public trial has been recognized as arising out of ‘the distrust for secret trials ... variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French Monarchy’s abuse of the lettre de cachet.’ In re Oliver, 333 U.S. 257, 268-269, 68 S.Ct. 499, 92 L.Ed. 682 (1948). ‘[A]t the time of the adoption of the Sixth Amendment the common law concept of a public trial had come to be regarded as an essential guarantee against any attempt to employ the courts as instruments of persecution.’ United States v. Kobli, 172 F.2d 919, 921 (3d Cir.1949). The several essential purposes served by the public trial guarantee include: ‘allowing the public to see that a defendant is fairly dealt with, encouraging trial participants to perform their duties more conscientiously, discouraging perjury, and bringing forth witnesses who might not otherwise testify.’ Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir.1984).

Williams, 736 So.2d at 701. I would reverse and certify conflict with Alvarez. That having failed, I would certify the case as one involving a question of great public importance. Since that has failed as well, I just dissent.

      . The charged crimes occurred in 1998.

      . Since the statute regulates trial procedure, the version in effect at the time of the trial is controlling, not the version in effect at the time of the defendant's crime.

      . The Alonso court said, in part:
      "The appropriate analysis to follow to determine whether a particular case warrants closure is set forth in Waller [v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)]. There are four prerequisites that must be satisfied before the presumption of openness may be overcome. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure. Waller, 467 U.S. at 47, 104 S.Ct. at 2215.”
      821 So.2d at 426 (quoting Pritchett v. State, 566 So.2d 6, 7 (Fla. 2d DCA 1990)).

      . In so ruling, the Fourth District receded from Williams v. State, 736 So.2d 699 (Fla. 4th DCA 1999), which had held that an unob-jected-to closure without Waller findings was fundamental error.

      . I confess that, probably because of my headlong descent into (at least) constitutional senility, I have been unable to grasp the concept espoused in Alvarez of a structural defect— which by definition goes so much to the heart of the criminal process that it cannot be tolerated, much less waived — which may nonetheless be subject to waiver by a mere failure appropriately to object.

      . It is true that Peretz’s favorable citation of Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), is to the contrary of this view. However, Levine long preceded both Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and the line of cases which analyzes the waiver issue in terms of whether a structural defect is involved. Because of this fact, and particularly considering Justice Black’s dissent, I have the temerity to believe that, if directly faced with the question again, the Supreme Court would reach an opposite conclusion. Whether or not this is true, however, I believe that this result is the correct one, which should be adopted as the law of Florida.


author: PER CURIAM. KLEIN, J.,

text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Petitioner, v. Harvey D. BENNETT, as Personal Representative of the Estate of Sandra L. Bennett, deceased, Respondent.
    No. 4D04-606.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Oct. 28, 2004.
    Janis Brustares Keyser of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for petitioner.
    Michael B. Davis of Paxton & Smith, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Liberty Mutual seeks certiorari review of an order requiring production of part of its file, in this statutory bad faith action, arguing it is work product. The trial court adopted the special master’s recommendation that Liberty Mutual did not begin to treat the claim as one for bad faith until it forwarded the file to a lawyer to defend the bad faith claim, citing Allstate Indemnity Company v. Ruiz, 780 So.2d 239 (Fla. 4th DCA), rev. granted, 796 So.2d 535 (Fla.2001). The court required the production of the file predating that event.

In Ruiz we relied on our earlier decision in Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984), explaining:

In Cotton, we considered federal decisions as persuasive authority because Florida’s rule of civil procedure pertaining to work product privilege is substantially similar to the federal rule. See Fed.R.Civ.P. 26(b)(3). See also Carver v. Allstate Ins. Co., 94 F.R.D. 131 (S.D.Ga.1982). According to Carver, the key inquiry is whether the probability of litigation is “substantial and imminent.” 94 F.R.D. at 134.
We recognize that our position conflicts with decisions from other districts finding that statements are privileged and protected as work product when they were taken at a time when it was foreseeable that litigation would arise. See, e.g., Prudential, 694 So.2d at 774; McRae’s Inc. v. Moreland, 765 So.2d 196 (Fla. 1st DCA 2000). We nevertheless adhere to our ruling in Cotton that work product privilege attaches to documents prepared in contemplation of litigation and not for “mere likelihood of litigation.” Cotton, 444 So.2d at 596. Accordingly, we affirm the order insofar as it requires the items detailed above to be produced.

Ruiz, 780 So.2d at 241.

Liberty Mutual argues that the work product privilege should have attached five months earlier, when counsel for claimant informed Liberty Mutual that if it did not settle within the policy limits, a lawsuit would be filed which would include a claim for bad faith. Applying Ruiz, we conclude that the finding that bad faith litigation did not become substantial and imminent until Liberty Mutual forwarded its file to counsel to defend the bad faith claim is not a departure from the essential requirements of law. We accordingly deny the petition.

SHAHOOD and HAZOURI, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority because we are bound by Ruiz. I question the correctness of Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984), which we followed in Ruiz. My concern with Cotton States is with the emphasized sentence in the following paragraph:

The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. See Alachua General Hospital, Inc. v. Zimmer USA Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Shawmut Van Lines, Inc. v. Small, 148 So.2d 556 (Fla. 3d DCA 1963). Mere likelihood of litigation does not satisfy this qualification. Because the applicable rule, Florida Rule of Civil Procedure 1.280(b)(2), closely resembles Federal Rule of Civil Procedure 26(b)(3), we look to federal case law for guidance, [emphasis added.] Cotton States, 444 So.2d at 596.

That sentence, which is not supported by authority, conflicts with decisions of our sister courts, which, as we noted in Ruiz, have held that “statements are privileged and protected as work product when they were taken at a time when it was foreseeable that litigation would arise.” Ruiz, 780 So.2d at 241 (citing Prudential Ins. Co. of Am. v. Fla. Dep’t. of Ins., 694 So.2d 772, 774 (Fla. 2d DCA 1997); McRae’s Inc. v. Moreland, 765 So.2d 196 (Fla. 1st DCA 2000)).

The view we have adopted, from Carver v. Allstate Insurance Co., 94 F.R.D. 131 (S.D.Ga.1982), that the probability of litigation must be “substantial and imminent,” was rejected by the Fifth Circuit Court of Appeals in United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.Tex.1981):

It is admittedly difficult to reduce to a neat general formula the relationship between preparation of a document and possible litigation necessary to trigger the protection of the work product doctrine. See Kent Corp. v. NLRB, 5 Cir. 1976, 530 F.2d 612, 623, cert. denied, 1976, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287; In re Grand Jury Investigation (United States), 3 Cir.1979, 599 F.2d 1224, 1229. We conclude that litigation need not necessarily be imminent, as some courts have suggested, see, e.g., Home Insurance Co. v. Ballenger Corp., N.D.Ga.1977, 74 F.R.D. 93, 101; In re Grand Jury Investigation (Joseph B. Sturgis), E.D.Pa.1976, 412 F.Supp. 943, 948, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation. See Osterneck v. E.T. Barwick Industries, Inc., N.D.Ga.1979, 82 F.R.D. 81, 87, citing 8 C. Wright & A. Miller, Federal Practice and Procedure s 2024, at 198 (1970).

I believe that Davis is correct, but somehow this court, starting with Cotton States got off track. I am not suggesting that we recede from Cotton States and Ruiz because the Florida Supreme Court has granted review in Ruiz, and heard oral argument on March 5, 2002. The conflict should accordingly be resolved soon. Liberty Mutual can seek review of our decision which is based on Ruiz.


author: MAY, J.

text:
    DOUG HAMBEL’S PLUMBING, INC., Appellant, v. Miles V. CONWAY, Vero Ventures, etc., et al, Appellees.
    No. 4D04-130.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for appellant.
    Howard W. Poznanski, Boca, for appel-lee, Miles V. Conway.
   MAY, J.

The plaintiff appeals from an order denying its motion for attorney’s fees in a mechanic’s lien action. The issue is whether the motion was timely when filed within thirty days of the judgment entered upon a reversal and remand from this court. We hold that it was, and therefore reverse the order denying attorney’s fees.

On August 24, 2001, the trial court entered a judgment for the plaintiff, Doug Hambel’s Plumbing, Inc., which awarded damages, but denied its request for a mechanic’s lien. The plaintiff appealed the denial of the mechanic’s lien. This court reversed and remanded the case to the trial court. See Doug Hambel’s Plumbing, Inc. v. Conway, 831 So.2d 704 (Fla. 4th DCA2002).

The plaintiff then moved for entry of a final judgment consistent with this court’s decision. On June 13, 2003, the trial court entered a final judgment imposing a mechanic’s lien and retained jurisdiction for consideration of costs and attorney’s fees. On July 11, 2003, the plaintiff filed a motion for attorney’s fees, pursuant to section 713.29, Florida Statutes (2003). On November 10, 2003, the trial court entered an order finding the plaintiff to be the prevailing party and entitled to attorney’s fees, but denied the motion because it was not filed within thirty days of the original August 24, 2001 final judgment.

Florida Rule of Civil Procedure 1.525 provides: “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” The question is which judgment in this case triggered the 30-day requirement for filing the motion for attorneys’ fees.

The basis upon which the plaintiff sought fees was section 713.29, Florida Statutes (2003), which provides for attorney’s fees in actions seeking to impose a mechanic’s lien. When the August 24, 2001 judgment was entered, the plaintiffs request for a mechanic’s lien had been denied. Therefore, the court could not award fees under section 713.29 at that time.

It was not until this court reversed the denial of the lien in Doug Hambel’s Plumbing and the trial court entered a judgment on the lien that the entitlement to fees under this statute ripened. The plaintiff filed its motion within thirty days of the judgment in which the lien was imposed. Thus, its motion was timely.

We hold the trial court erred when it used the date of the original judgment to determine the timeliness of the motion. We reverse the order and remand the case for further proceedings consistent with this opinion.

POLEN, J„ and GOLD, MARC H., Associate Judge, concur.


author: SHAHOOD, J.

text:
    David EPSTEIN, Appellant, v. PRECISION RESPONSE CORPORATION, a Florida corporation, Appellee.
    No. 4D03-3046.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Joseph A. DeMaria and Peter F. Valori of Tew Cardenas, L.L.P., Miami; and Bruce David Green of Bruce David Green, P.A., Fort Lauderdale, for appellant.
    Alan G. Greer of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., Miami; Michael H. Steinberg of Sullivan & Cromwell, L.L.P., Los Angeles, CA; and Bradley A. Harsch of Sullivan & Cromwell, L.L.P., New York, NY, for appellee.
   SHAHOOD, J.

Appellant, David Epstein, appeals the order dismissing his Complaint to Stay Arbitration. We hold that the trial court erred by dismissing the complaint without first holding an evidentiary hearing, and reverse and remand for the trial court to conduct such a hearing.

David Epstein (Epstein) is the chief executive officer of Precision Response Corporation (PRC), appellee herein. He is also a shareholder in a company called Avaltus, Inc. (Avaltus). PRC acquired Avaltus pursuant to a Merger Agreement (agreement), which Epstein did not sign, but which secured his position as one of three directors of the surviving corporation. The agreement contained the following arbitration provision:

In the event of a dispute hereunder or relating to the transaction contemplated hereby, including under or with respect to any of the agreements to be executed and delivered pursuant hereto ..., arbitration will be the sole and exclusive method of resolving the dispute, except that a party may seek a preliminary injunction, temporary restraining order, or other preliminary judicial relief if, in its judgment, the action is necessary to avoid irreparable damage or harm.

After the agreement was executed, New River Holding Limited Partnership (New River), a party to the agreement because it was one of the entities holding Avaltus shares, brought an arbitration claim against PRC alleging a violation of the agreement. PRC answered and filed a third-party complaint against Epstein on the basis of his involvement in promoting the sale of Avaltus to PRC. PRC sought to enforce the arbitration agreement against Epstein.

Epstein filed a Complaint to Stay Arbitration, asserting that he was not bound by the arbitration clause because he was not a signatory to the agreement. He asked the court to “summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, ... grant or deny the application.” PRC moved to stay or continue its obligation to respond to the complaint on the basis that the exact issue of whether Epstein was bound to arbitrate was pending before an arbitration panel.

The arbitration panel subsequently issued its opinion concluding that PRC’s claim against Epstein was arbitrable and denying his challenge to the panel’s jurisdiction. Thereafter, the circuit court entered an order dismissing Epstein’s complaint to stay arbitration, which is the subject of this appeal.

Epstein filed a motion for rehearing, reconsideration or clarification and a stay of the order pending appeal. He argued that the order should be vacated because it was entered without an evidentiary hearing and was based solely on the allegations in PRC’s pleadings. In a footnote, he asked the court to clarify whether the complaint was dismissed with or without prejudice.

At the hearing on the motion the court explained that even though such relief was not requested, the complaint was dismissed because “as a matter of law ... [Epstein] was so intertwined with the arbitration and underlying players that he could be forced to go to arbitration.” The trial court acknowledged having entered a judgment on the pleadings stating, “a memo of law is just as good as an eviden-tiary hearing.”

On appeal, Epstein argues that it was error for the court to dismiss his complaint after addressing the arbitration issue on the merits without an evidentiary hearing. He points out that the relief requested was only his motion for default and PRC’s motion for stay pending resolution by the arbitration panel.

Epstein’s complaint sought only a stay of the arbitration proceedings pursuant to section 682.03(4), Florida Statutes (2003). In requesting a stay of the arbitration proceedings, he requested that the court “summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.” This language tracks the statute, which states:

On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

§ 682.03(4), Fla. Stat. (2003); see generally Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (holding that in ruling on a motion to compel arbitration, a court must consider: (1) whether the parties have entered into a valid arbitration agreement, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration has been waived).

In Jalis Construction, Inc. v. Mintz, 724 So.2d 1254 (Fla. 4th DCA 1999), this court interpreted the above statutory language as requiring the trial court to resolve the question of whether there is a valid arbitration agreement as part of the ruling on a motion to compel arbitration (or stay arbitration as in this case). Id. at 1254. Thus, it was held:

If the court discerns that there are no disputed issues, it is required to enter an order compelling arbitration pursuant to the terms of the parties’ agreement. On the other hand, if the court finds disputed issues regarding the making of the agreement or the failure, neglect, or refusal to perform the same, the court is mandated to “summarily hear and determine the issue.... ” In our view, the latter requirement contemplates an expedited evidentiary hearing.

Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 129 (Fla. 4th DCA 1982). Thus, in Jalis Construction, this court held, “[w]e read the statute as requiring a preliminary summary disposition even where, as here, the complaint seeks a judicial determination of the existence of the agreement.” Jalis Constr., Inc., 724 So.2d at 1255.

In this case, the court was bound to summarily determine the arbitration issue. The issue here is whether, in doing so, the court should have held an evidentiary hearing or, more specifically, whether it was appropriate for the trial court to rely upon the parties’ memoranda of law in assessing the facts relevant to the arbitration issue. The trial court concluded that, although there was a valid agreement to arbitrate to which Epstein was not a party, he was nevertheless bound based on an agency relationship and the fact that the issues relating to him were intertwined with the issues already being litigated. While these theories might, if proved, subject Epstein to the authority of the arbitration clause, see generally Seifert v. U.S. Home Corp., 750 So.2d 688 (Fla.1999); Qubty v. Nagda, 817 So.2d 952, 957-58 (Fla. 5th DCA 2002), the facts supporting the issues of arbitration were disputed and the trial court should have held an eviden-tiary hearing to resolve them. See Sanchez v. Woemer Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004) (holding that an unsworn memorandum is a pleading and not an evidentiary document; therefore, it had no evidentiary value and should not have been admitted as an exhibit).

We accordingly reverse and remand for the trial court to conduct an evidentiary hearing. Because we are reversing and remanding on this issue we decline to address any other issues raised.

REVERSED AND REMANDED.

POLEN and MAY, JJ., concur.


text:
    GIBSON TRUST, INC., Goldstar Financial Systems, Inc., Patrick J. O’Toole, Donna Canty O’Toole and Martha V. Allen, Appellants, v. OFFICE OF THE ATTORNEY GENERAL, Department of Legal Affairs State of Florida, Appellee.
    No. 4D03-2540.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Thomas H. Wright, III of Silver, Wright & Siegel, LLP, Boca Raton, for appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal challenges entry of a default final judgment. We reverse because the defendants met their burden for setting aside the default.

On November 27, 2002, the Florida Attorney General’s office sued the defendants in a single-count complaint for permanent injunction, restitution, civil penalties, and other relief, pursuant to the Florida Deceptive and Unfair Trade Practices Act. Essentially, the complaint alleged that the defendants were running a credit repair scam.

Clerk’s defaults were entered against each defendant. On March 25, 2003, the defendants moved to vacate the defaults. The motion was supported by the affidavit of Defendant, Patrick O’Toole, who stated that he was served on December 2, 2002, and retained the law firm of Silver, Wright & Siegel, LLP. According to the affidavit, soon after service, O’Toole’s attorney spoke with an attorney in the Attorney General’s office, who agreed that no answer would be immediately due until the increasing number of claims from alleged victims had leveled off. The motion to vacate also alleged that the defendants had meritorious defenses. On April 7, 2003, the defendants filed their Answer.

The Attorney General moved for default judgment against the defendants. On April 10, 2003, the trial court denied the defendants’ motion to vacate the clerk’s default and entered final judgment, which included a permanent injunction and $1.34 million civil penalty.

On April 17, 2003, the defendants moved for rehearing, again arguing that the final default judgment should be set aside due to excusable neglect and meritorious defenses. In support of the motion for rehearing, they attached an affidavit of Thomas H. Wright, Esq., a law partner in Silver, Wright & Siegel, LLP. Wright stated that his firm was retained to represent the defendants on December 5, 2002. He further alleged:

4.Immediately thereafter, I contacted Marta Moakley, counsel for the Plaintiff, to advise that I have been retained by the Defendants and to discuss the issues of the case.
5. At that time we discussed the possibility of a large number of potential complaints as a result of the number of former clients of the Defendant corporations.
6. It was further discussed that based upon the growing number of complaints an answer would not be due until incoming complaints leveled off.
7. At the end of the discussions I provided Marta Moakley with all my relevant contact information and was left with the impression that an extension of time had been granted until further notice and that defaults would not be entered against my clients.
8. Between December 2002, and March 13, 2003 I received no further contact from Marta Moakley as to whether the number of complaints had in fact leveled off.

The affidavit further described a letter that Wright sent Moakley on March 13, 2003, wherein he “referenced our agreement to temporarily hold off on filing a responsive pleading,” and her response denying that any such agreement existed. That correspondence was attached to the motion for rehearing.

Finally, Wright’s affidavit referenced a Proposed Amended Answer. The proposed answer includes sixteen affirmative defenses asserting that the defendants’ actions were not deceptive, misleading, unfair or unconscionable, that the public interest was not served by the lawsuit, that the defendants had no intent to defraud, and that they did not know that their representations were false.

In response to the defendants’ assertions regarding an agreement to extend the time for filing responsive pleadings, the Office of the Attorney General, through an Assistant Attorney General, filed a Memorandum in Opposition. Though the memorandum denied that any extension agreement had been made, the denial was neither sworn to nor made under oath. The trial court denied the motion for rehearing without a hearing.

An order denying a motion to vacate a default is reviewed under an “abuse of discretion” standard of review. See Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001); George v. Radcliffe, 753 So.2d 573, 575 (Fla. 4th DCA 1999).

Florida courts have a liberal policy of vacating defaults so that cases can be decided on the merits. See N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 853 (FIa.1962); Coquina Beach Club Condo. Ass’n v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002). In the case of an interlocutory order of default, any reasonable doubt should be resolved in favor of vacating it. Id. at 1064. To be relieved of a default, a party must show excusable neglect, a meritorious defense, and due diligence. Id. at 1063.

In Somero v. Hendry General Hospital, 467 So.2d 1103 (Fla.4th DCA 1985), we stated:

[W]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits. It is a gross abuse of discretion for the trial court to rule otherwise.

Id. at 1106 (emphasis supplied).

In Evans v. Hydeman, 168 So.2d 183, 189-90 (Fla. 2d DCA 1964), the second district held that the plaintiffs were entitled to have the default order and final judgment on the individual defendant’s counterclaim set aside because of mistake and misunderstanding between counsel. There, the plaintiffs claimed that, based upon correspondence and telephone conversations between counsel for the parties, they assumed that there was an agreement for an indefinite extension of time for filing responsive pleadings to the counterclaim. In Evans, the sworn motion to vacate was unrefuted, just as the affidavits presented by defendants are unrefuted in this case.

Here, appellants, through defendant O’Toole and attorney Wright, were the only parties to give sworn testimony (by affidavit) concerning the failure to file a responsive pleading and an agreement for an extension. No evidentiary hearing was held subsequent to the motion for rehearing. Because the defendants’ affidavits were uncontradicted and established that there was a “misunderstanding” regarding whether an extension had been agreed upon, we conclude that excusable neglect was shown.

The Office of the Attorney General next argues that the answer and proposed amended answer were deficient as they were unsworn and contained only general denials. However, we have held that a meritorious defense may be shown by an unverified pleading or an affidavit. See Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So.2d 582, 584 (Fla. 4th DCA 1986); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1348 (Fla. 3d DCA 1981); see also Coquina Beach Club Condo., 813 So.2d at 1064.

Where a default judgment has been entered, mere conclusory assertions or general denials are insufficient without sufficient allegations of supporting ultimate fact. See Mathews Corp. v. Green’s Pool Serv., 584 So.2d 1006, 1007 (Fla. 3d DCA 1990). However, in Moore v. Powell, 480 So.2d 137, 138 (Fla. 4th DCA 1985), we held that a different rule applies to an interlocutory order of default where no final judgment has been entered. In such a case, a general denial will suffice. See Westinghouse Elevator Co. v. DFS Constr. Co., 438 So.2d 125, 127 (Fla. 2d DCA 1983)(distinguishing Barber, 143 So.2d at 849).

In this case, a general denial was contained in the O’Toole affidavit attached to the original motion to vacate the default, before the final judgment of default was entered. This suffices under the above authorities. In any event, the proposed amended answer attached to the motion for rehearing was more than a general denial, which would also be sufficient to warrant reversal. See City of Hollywood v. Cordasco, 575 So.2d 301, 302 (Fla. 4th DCA 1991)(reversing based on failure to grant motion for rehearing); Arnold v. Massebeau, 493 So.2d 91 (Fla. 5th DCA 1986)(same).

For the reasons stated above, we reverse and remand with directions to vacate the default judgment and allow further proceedings on the merits.

REVERSED and REMANDED.

WARNER, KLEIN and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Immanuel KIRKLAND-EL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1909.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

After having agreed to delete a jury-instruction on the duty to retreat in appellant’s trial for aggravated battery with a deadly weapon, the trial court changed its mind and instructed the jury that appellant had such a duty, undermining the defense’s closing argument. We conclude that this change denied appellant a fair trial and reverse.

Appellant, Immanuel Kirkland-El, was charged with aggravated battery of his wife while using a machete. Kirkland-El and his wife were in their home at the time of the incident. Kirkland-El contended at trial that his wife was the aggressor and actually attacked him with the weapon. At the charge conference, the parties were in general agreement on the jury instructions except for the instructions on justifiable use of deadly force. Those instructions include the duty to retreat as well as the defense of home. See Fla. Std. Jury Instr. (Crim.) 3.6(f). Kirkland-El was concerned that giving both instructions would mislead the jury. The court agreed to delete the first portion of the instruction on duty to retreat and give only the defense of home instruction.

During closing arguments, Kirkland-El’s attorney told the jury that the judge would read the instruction on defense of home. He told the jury that Kirkland-EI had no duty to retreat in his own home. After the state commenced its closing argument, the court interrupted, excused the jurors, and announced that the deletion of the first portion of the jury instruction on duty to retreat was erroneous. The court stated that it would now read the instruction on defense of home against a co-occupant instead of the defense of home instruction. Under this instruction, if a defendant is attacked in his own home by a co-occupant, he has a duty to retreat within the home to the extent reasonably possible. Id. Thus, the instruction contradicted Kirkland-El’s statement to the jury that the judge would instruct the jury that Kirkland-El had no duty to retreat.

The state then argued this instruction to the jury, stressing what a person could do to retreat within his home to avoid using deadly force. In rebuttal, all defense counsel could argue was that Kirkland-El would have no duty to retreat if to do so would increase his level of danger.

The jury found Kirkland-El guilty of aggravated battery with a deadly weapon. His motion for new trial was denied and he was sentenced to fifteen years imprisonment. He timely appeals.

Kirkland-El was denied a fair trial when, in the middle of closing arguments, the trial judge determined that he would instruct the jury completely differently than what was determined at the charge conference. This case is similar to King v. State, 642 So.2d 649 (Fla. 2d DCA 1994). There, prior to closing arguments, King requested and was wrongly denied a jury instruction on a lesser included crime. After closing arguments, the judge reversed himself and gave the jury the instruction. King appealed, and the appellate court noted, “Closing arguments are the last and best opportunity trial counsel have to directly address the jury on what they should or should not decide within the parameters of the proper instructions the jury is about to receive from the trial judge.” 642 So.2d at 650. The court determined that even though the instruction was ultimately given, it did not cure the error that occurred, depriving King of his right to a fair trial. Id.

Likewise, in Knuth v. State, 679 So.2d 22 (Fla. 2d DCA 1996), Knuth requested, in his DUI manslaughter trial, a jury instruction that required a finding that the negligent operation of a motor vehicle was a contributing cause to the death of the victim in order for a conviction to be obtained. The request was denied, and the court informed the jury it needed only to find that Knuth’s operation of the vehicle caused the death of the victim. After Knuth’s counsel gave his closing argument, and over Knuth’s objection, the trial court then instructed the jury it must find Knuth caused or contributed to the cause of the victim’s death. 679 So.2d at 23. Citing King, the appellate court found that even though the court ultimately gave an appropriate instruction, “the failure to give the instruction before the defendants had their final say generated prejudice that can only be remedied by retrial.” Id.

The state distinguishes King and Knuth by noting that in those cases the jury instruction was changed after the completion of the closing arguments, so counsel was not given an opportunity to argue the change. Here, the court changed the instruction in the middle of the state’s closing argument, thus giving defense counsel the opportunity to address it in rebuttal.

This simply ignores the reality of the magnitude of the damage done to the presentation of Kirkland-El’s case. Relying on the trial court’s rulings at the charge conference, counsel argued that Kirkland-E1 had no duty to retreat in his own home. Then, after the trial court reversed its position, the state was able to argue consistently with what the jury would hear from the jury instructions. Thus, the jury would have to conclude that defense counsel was either trying to purposely mislead it or was ignorant of the law. Because the instruction was central to the defense of the case on a hotly contested issue, Kirkland-El was prejudiced by the actions of the trial court. We must reverse.

Reversed and remanded for a new trial.

KLEIN and TAYLOR, JJ., concur.


text:
    Albert Eugene CODERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3276.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant was found guilty of committing a lewd act in the presence of his six-year-old granddaughter. He appeals the conviction, raising four issues. We affirm on all issues, writing only to address the final issue raised.

The victim, who was eleven years old at the time of trial, testified about an incident in which her grandfather, appellant, sat next to her on the couch in her father’s home and “rubbed his private part on [her] leg.” She clearly recalled that appellant was facing her, on his knees beside her on the couch, when he unzipped his pants, removed his private part and rubbed it between her legs.

It was not until several months later that the victim told her parents about the incident. The victim’s father attempted to locate appellant to confront him, but was unable to find him. Appellant later sent a letter to the victim’s father in which appellant apologized, proclaimed that he was a sick man and was trying to get help, told his son that he loved him, and stated that he would not spend time in jail.

Appellant argues in the final issue raised that the trial court erred in denying his motion for judgment of acquittal based on the state’s failure to show that the act was committed during the time frame alleged. The state maintains that any failure in proof was merely a technical variance between the allegations and the proof, which did not negate the fact that appellant committed the act. We agree and affirm.

The information charged appellant with committing a lewd, lascivious or indecent act December 1, 1997 through February 28, 1998. The state’s Statement of Particulars reiterated that the crime took place “on or between December 1, 1997[and] February 28,1998.”

Florida Rule of Criminal Procedure 3.140(o) states:

(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoin-der of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Interpreting that rule, the supreme court in Tingley v. State, 549 So.2d 649, 651 (Fla.1989), noted that the date and time is ordinarily not a substantive part of an indictment or information and that there may be a variance between the dates proved at trial and those alleged in the indictment as long as: “(l)the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither ... surprised nor hampered in preparing his defense.” The court added, “[t]he better-reasoned rule appears to us to be that unless time is a specific element of a certain crime, it is not a substantive, essential part of the indictment.” See also State v. Dell’Orfano, 651 So.2d 1213, 1214 (Fla. 4th DCA 1995) (“To be legally sufficient, an information can neither be so vague or indefinite as to mislead or embarrass the accused, or subject him or her to multiple prosecution.”).

Although the victim could not remember the exact date of the incident, there was evidence tending to show approximately when the incident occurred. For example, the victim’s mother testified that the crime occurred after she and the victim’s father had already divorced. The victim and her parents all agreed that the crime occurred during a three-month period of time, after the divorce, when appellant was living with the victim’s father in a mobile home. More important, appellant has not asserted that he was in any way surprised or hampered in preparing his defense. On these facts, the safeguards established in Tingley have been met and the trial court properly denied appellant’s motion for judgment of acquittal.

Based on the foregoing, we affirm appellant’s conviction.

AFFIRMED.

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


text:
    George REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1590.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Carey Haughwout, Public Defender, Peggy Natale, Assistant Public Defender, and Christine Geraghty, Certified Legal Intern, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted of aggravated fleeing and eluding, leaving the scene of an accident, resisting without violence, and driving without a valid driver’s license. He contends that the trial court admitted irrelevant and prejudicial evidence at trial. We conclude that the evidence was not improperly admitted and that, in any event, the alleged error was harmless.

Detectives observed a vehicle circling a restaurant parking lot where several robberies had occurred. The detectives found this suspicious, so they followed the vehicle in an unmarked police car and called for backup to initiate a traffic stop. A deputy in a marked patrol car arrived, turned on the car’s lights and sirens, and attempted to stop the vehicle. The vehicle accelerated to about eighty miles an hour in a thirty-mile per hour zone with both police vehicles in pursuit. It did not slow at intersections and ran some red lights. As the vehicle turned at an intersection, the detectives noticed a dark piece of clothing being thrown from the passenger side of the vehicle. Very soon thereafter, they saw a solid metallic, item thrown from the passenger window. The detectives could not tell whether the item was a gun.

The chase ended when the vehicle crashed into a taxicab while turning a corner. Two of the officers witnessed the passenger of the vehicle jump out of the car and run away. As the officers exited their car and approached the crashed vehicle, they saw the driver climb out of the passenger side of the vehicle. They identified the driver as appellant George Reed. Reed ran from the officers who chased and captured him.

Crime scene technicians investigated the scene and retraced the path of the vehicle. At approximately the place where the detectives saw dark cloth being thrown from the vehicle, a ski mask and gloves were found. The ski mask and gloves matched another ski mask and pair of gloves found in the vehicle. A gun was found at the approximate location where the officers saw a shiny object being thrown from the passenger side of the vehicle.

Defense counsel moved in limine to prevent admission of the ski masks and gloves, the set found in the vehicle and the set found on the ground at the location where the officers saw the passenger of the vehicle throw some dark clothing. Defense counsel claimed that these items were irrelevant and their probative value was outweighed by their prejudicial effect. The court denied the motion, concluding that the ski masks and gloves corroborated the detectives’ testimony, particularly with respect to the gun. As Reed was also charged with possession of a firearm by a convicted felon, the court found the evidence was relevant and its probative value was not outweighed by its prejudicial effect.

After presentation of the state’s case at trial, Reed moved for a directed verdict on the gun possession charge, which the court granted. The state’s evidence showed that Reed was the driver of the vehicle, and the gun had been thrown out of the passenger window. Therefore, the state could not prove Reed had actual or constructive possession. In the defense case, Reed testified and admitted to being in the vehicle but claimed that he was the passenger and did not flee from the police. The jury found Reed guilty of all remaining charges.

Reed argues that evidence of the ski masks and gloves was not relevant and, even if relevant, any probative value from this evidence was outweighed by its prejudicial impact. He contends the evidence regarding the ski masks and gloves was evidence of a collateral bad act because the jury would infer from this evidence that Reed committed a robbery.

A “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Heath v. State, 648 So.2d 660, 664 (Fla.1994) (citation omitted). “However, a trial court’s discretion is limited by the rules of evidence.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (citation omitted). All relevant evidence, which is evidence tending to prove or disprove a material fact, is admissible, except as provided by law. §§ 90.401-402, Fla. Stat. (2001). If the probative value of relevant evidence is “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,” the evidence is inadmissible. § 90.403, Fla. Stat. (2001).

When ruling on the motion in li-mine, the trial court stated that it was admitting the evidence because it corroborated the detectives’ testimony that a metallic item was thrown from the vehicle. The detectives testified that they saw a cloth object thrown from the car as well as a metallic object. A firearm was later found at the approximate location where the detectives saw the metallic object thrown. Also found in the same general area was a ski mask and two gloves. A matching ski mask and pair of gloves were found in the vehicle. While this evidence is circumstantial and does not definitively demonstrate that the firearm found on the ground came from the vehicle, it does tend to prove a connection between the firearm and the vehicle, thus intimating a connection between Reed and the firearm, which was an issue in controversy until the court directed a verdict on the firearm charge. Thus, the evidence had “a logical tendency to prove or disprove a fact which [was] of consequence to the outcome of the action,” Charles W. Ehrhardt, Florida Evidence § 401.1 (2004 ed.), and was, therefore, relevant.

Reed argues the evidence of the ski masks and gloves is not relevant to the issue of whether he was in possession of the firearm because the items were not found near the firearm, and the condition of the firearm, which was inoperable and rusty, indicated it may have been in that location for a long period of time. These facts do not diminish the relevance of the evidence of the ski masks and gloves; the facts go only to the weight of the evidence. See New v. State, 211 So.2d 35, 36 (Fla. 2d DCA 1968) (“Relevance is not determined by conclusiveness of inference; it is enough that it may tend even slightly to elucidate the inquiry.”); Astrachan v. State, 158 Fla. 457, 28 So.2d 874, 875 (1947) (quoting Mobley v. State, 41 Fla. 621, 26 So. 732, 733 (1899)) (“ ‘The competency of a collateral fact to be used as the basis of legitimate argument is not to. be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.’ ”).

Furthermore, we cannot conclude that the trial court abused its discretion in determining that the prejudicial effect did not outweigh the probative value of the evidence, again remembering that the evidence was presented in the state’s case to prove the possession of a firearm charge. After the court directed a verdict on that charge, no further mention of the gun or the ski masks and gloves was made either in Reed’s case or in closing argument. While the evidence might have suggested the potential that the occupants of the vehicle were planning a robbery, there was no question that the vehicle was fleeing the police in a highly reckless manner. The only issue in the case for the jury to decide was whether Reed was the passenger or driver of the vehicle and whether he resisted arrest when exiting from the vehicle. The admission of evidence regarding the ski masks and gloves had no effect on this issue.

We therefore affirm Reed’s conviction and sentence.

KLEIN and TAYLOR, JJ., concur.