author: PLEUS, J. SAWAYA, C.J., ORFINGER, J.,

text:
    O’DONNELL’S CORPORATION, Appellant, v. Himrod AMBROISE, Appellee.
    No. 5D03-324.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Christopher C. Cathcart of Ossinsky & Cathcart, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PLEUS, J.

This is an appeal of an “Order Remanding Petition for Relief from an Unlawful Employment Practice.” We conclude it is not an appealable order.

Section 120.68(1), Florida Statutes, states:

A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

Final agency action is that which brings the administrative adjudicatory process to a close. Hill v. Div. of Ret., 687 So.2d 1376 (Fla. 1st DCA 1997). “ ‘The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order....’ ” Id., quoting Prime Orlando Props., Inc. v. Dept. of Bus. Regulation, etc., 502 So.2d 456, 459 (Fla. 1st DCA 1986). Because the order on appeal simply remands the petition back to the administrative law judge for further proceedings (i.e., a formal hearing), it is not a final order. Furthermore, O’Donnell’s has not established the alternative ground for review under section 120.68. Review of the final agency action would provide an adequate remedy. Consequently, we do not have jurisdiction to review it under section 120.68 and Florida Rule of Appellate Procedure 9.110.

APPEAL DISMISSED.

SAWAYA, C.J., concurs, and concurs specially with opinion.

ORFINGER, J., dissents with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

I fully concur in the majority opinion. I write to respond to the assertion in the dissent that prohibition is an appropriate remedy in this case. The order under review remands the case to the administrative law judge (ALJ) to conduct a hearing and is thus a non-final order. Because the order does not fit within any of the categories of appealable non-final orders listed in rule 9.130(a)(3), Florida Rules of Appellate Procedure, this court does not have jurisdiction to review it. In order to avoid this jurisdictional bar, the dissent argues that the notice of appeal should be treated as a petition for a writ of prohibition. This raises the issue of whether it is appropriate to issue a writ of prohibition in these proceedings. In my view it is not and, therefore, I agree with the majority that the appropriate disposition here is to dismiss this appeal for lack of jurisdiction.

The historical underpinnings of the extraordinary remedy of prohibition help define its present contours. Emanating from rather early decisions of the English courts, the remedy of prohibition was conceived as a way to prevent encroachments on the authority and jurisdiction of the kings’ courts by other courts, i.e., ecclesiastical courts, during a time of conflict between church and state. Hence it was intended to be applied as a preventative rather than a remedial measure.

American courts accepted the remedy of prohibition as an integral part of the common law, as developed by the English common law courts, and the remedy became firmly ingrained in American jurisprudence. Staying true to the historical development of the remedy, the Florida courts have consistently held that “[t]he writ is very narrow in scope and operation and must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy.” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992). Thus, prohibition is the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction. Mandico; English v. McCrary, 348 So.2d 293 (Fla.1977). Because prohibition is preventative, it may not be used to revoke an order already entered. English; State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla. 1974); State ex rel. R.C. Motor Lines, Inc. v. Boyd, 114 So.2d 169 (Fla.1959); Department of Children & Family Servs. v. In terest of J.C., 847 So.2d 487, 491-92 (Fla. 3d DCA 2002); Larcher v. Department of Highway Safety & Motor Vehicles, 736 So.2d 1249 (Fla. 5th DCA 1999); Morse v. Moxley, 691 So.2d 504 (Fla. 5th DCA 1997). Prohibition is also inappropriate if the parties have the right to remedy the wrong by direct appeal. English; Broward County v. Florida Nat’l Props., 613 So.2d 587 (Fla. 4th DCA 1993); Bondurant v. Geeker, 499 So.2d 909 (Fla. 1st DCA 1986). Application of these general principles makes it abundantly clear that prohibition is not an appropriate remedy in the instant case.

The dissent concludes that issuance of the writ is appropriate because section 120.569(2)(e), Florida Statutes (2002), provides that “[a] petition shall be dismissed if ... it has been untimely filed.” The dissent reasons that excusable neglect is not an exception to the dismissal requirement and that the Commission erred in remanding the case to the ALJ on that basis. The dissent also reasons that it is not necessary to determine whether the doctrine of equitable tolling is applicable because the requirements for that doctrine are not met in the instant case. However, even assuming that excusable neglect has been eliminated as an exception to the dismissal requirement of the statute, equitable tolling remains as a viable exception. See Machules v. Department of Admin., 523 So.2d 1132 (Fla.1988); Whiting v. Florida Dep’t of Law Enforcement, 849 So.2d 1149 (Fla. 5th DCA 2003); see also Cann v. Department of Children & Family Servs., 813 So.2d 237 (Fla. 2d DCA 2002). Application of equitable tolling as an exception to the dismissal requirement of section 120.569(2)(c) clearly indicates that the provisions of the statute are not jurisdictional.

This court, in Whiting, provided another clear indication that the dismissal requirement of the statute is not jurisdictional when we held that “[l]ate filing is presumed to constitute a waiver of rights.” 849 So.2d at 1151 (citing Appel v. Florida Dep’t of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999)). In Appel, the court held that the petitioner “is entitled to rebut that presumption at an evidentiary hearing.” 734 So.2d at 1182 (citation omitted). If late filing is jurisdictional under section 120.569(2)(c), there would be no presumption of waiver and Florida courts would not have jurisdiction to determine whether the presumption had been rebutted.

Moreover, the courts have consistently held that late filing of a request for an administrative hearing is not jurisdictional, but is analogous to a statute of limitations which is subject to equitable exceptions. Machules; Appel; Abusalameh v. Department of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 627 So.2d 560 (Fla. 4th DCA 1993); Castillo v. Department of Admin., Div. of Ret., 593 So.2d 1116 (Fla. 2d DCA 1992); Stewart v. Department of Corr., 561 So.2d 15 (Fla. 4th DCA 1990). Prohibition is inappropriate to review an order determining the time limitations under a statute of limitations. In Panagakos v. Laufer, 779 So.2d 296 (Fla. 2d DCA 1999), the court held:

This court lacks jurisdiction to review the denial of a motion to dismiss based on a statute of limitations defense by either a writ of certiorari, see Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977), or a writ of prohibition. This court has no authority through a writ of prohibition to review a trial court’s denial of a defendant’s motion to dismiss based on the defendant’s affirmative defense of statute of limitations. Prohibition is an extraordinary writ that is extremely narrow in scope and operation. It exists to prevent “an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction.” English v. McCrary, 348 So.2d 293, 297 (Fla.1977). When a trial court makes an erroneous ruling on a statute of limitations defense, that error, like any other error concerning an affirmative defense, can be corrected on appeal from a final order. Cf. Mandico v. Taos Constr., 605 So.2d 850 (Fla.1992) (holding that prohibition may not be used to raise affirmative defense of workers’ compensation immunity). Although this court in Swartzman v. Harlan, 535 So.2d 605 (Fla. 2d DCA 1988), issued a writ of prohibition because an action was barred by the statute of limitations, that opinion does not specifically address the appropriateness of prohibition. Nonetheless, to the extent that it suggests that prohibition is the appropriate remedy, we believe that the reasoning of the supreme court in Mandico requires a contrary conclusion.

Id. at 297.

The decision in Bondurant is also analogous. There, the court refused to issue a writ of prohibition to review an order denying a motion to dismiss based on the statute of limitations. The court held that it would not review an interlocutory order through the issuance of a writ of prohibition because the petitioner had the right to have the order reviewed on direct appeal. The court stated:

Prohibition is an extraordinary remedy which is only available to prevent an inferior tribunal from acting in excess of its jurisdiction; it is not available to prevent an erroneous exercise of jurisdiction; and it is not available to cure an error when there is an adequate remedy by appeal. English v. McCrary, 348 So.2d 293 (Fla.1977). The challenged order was entered in a proceeding in which the trial court had both subject matter and personal jurisdiction. The order is nothing more than one rejecting an affirmative defense, and, consequently, denying a motion to dismiss. Petitioner is, at best, attempting to prevent an alleged erroneous exercise of jurisdiction, and the grounds raised in this petition may be raised on direct appeal if petitioner suffers an adverse judgment below. Under English v. McCrary, prohibition is inappropriate in these circumstances.

Bondurant, 499 So.2d at 910. Therefore, prohibition is inappropriate to review what is, by analogy, a statute of limitations defense that is subject to equitable exceptions.

When the ALJ entered the order of dismissal, it entered a recommended order. It was then the Commission’s responsibility to review it and accept, reject, or modify the conclusions of law made by the ALJ. See § 120.57(0, Fla. Stat. (2002). When the Commission entered its order remanding the case to the ALJ for a hearing, the Commission simply rejected the conclusions of law regarding the ALJ’s decision to dismiss based on the untimely filing of the request for an administrative hearing. Because the untimely filing of a request for an administrative hearing is not a jurisdictional defect that deprives the ALJ or the Commission of jurisdiction from proceeding to hear the petitioner’s complaint, the Commission had jurisdiction to enter the order under review. Therefore, prohibition is inappropriate in the instant case.

It is also obvious that the Commission entered the order under review before this appeal was ever filed. Even if the Commission’s order is erroneous as the dissent contends, prohibition is not the proper remedy to revoke an order that has already been entered. In this instance, any error made by the Commission may be corrected on appeal when appellate review of this matter is appropriate. Furthermore, there is absolutely nothing in the record to remotely indicate that there is any emergency that necessitates issuance of the writ. The only reason to issue the writ is to correct what is perceived to be an erroneous non-final order that is not reviewable under the rules of appellate procedure. In my view, this court should “not condone use of the extraordinary writ procedure to circumvent established appellate rules.” J.C., 847 So.2d at 492. Moreover, to allow the use of prohibition in the instant case would, in my view, completely vitiate the limitations placed upon use of the writ and convert it from an extraordinary writ to a commonly used method to appeal any erroneous order.

ORFINGER, J.,

dissenting.

Because I believe that allowing further consideration of Ambroise’s untimely petition for an administrative hearing would be in excess of the Commission’s jurisdiction, I believe we should consider this matter as a petition for writ of prohibition and preclude the Commission from taking any further action on Ambroise’s petition. See, e.g. Dep’t of Health & Rehabilitative Servs. v. Career Serv. Comm’n, 448 So.2d 18, 19 (Fla. 1st DCA 1984) (holding that district courts have power to issue writs of prohibition to administrative agencies to prevent them from exceeding their jurisdiction). As a result, I respectfully dissent.

Himrod Ambroise filed a discrimination complaint with the Florida Commission on Human Relations (Commission), alleging that his former employer, O’Donnell’s Corporation, engaged in unlawful employment practices. After an investigation, the Commission found no reasonable cause to believe that an unlawful employment practice had occurred and advised Ambroise in its determination letter that he could request an administrative hearing by “filing a petition for relief within 35 days of the date” of the determination letter. The determination letter further advised Am-broise that if he failed to file a timely request for an administrative hearing, his claim would be dismissed pursuant to section 760.11, Florida Statutes (1992). Thirty-six days later, Ambroise mailed his request for an administrative appeal.

In dismissing Ambroise’s request for an administrative hearing, the Administrative Law Judge (ALJ), in a well reasoned order, concluded:

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. (All references to Sections and Chapters are to the Florida Statutes. All references to Rules are to the Florida Administrative Code.)
17. Section 760.11(7) provides:
If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
(Emphasis supplied).
18. The statute plainly requires that a request for hearing must be “made” within 35 days or “the claim will be barred.” Accordingly, an untimely Petition must be dismissed. See Garland v. Dept. of State, DOAH Case No. 00-1797 (July 24, 2000) (dismissing petition for relief filed 14 days after deadline, and citing other cases in which petitions were dismissed in similar circumstances), adopted in toto, FCHR Case No. 97-1074 (Feb. 8, 2001). And see Section 120.569(2)(c) (“A petition shall be dismissed if ... it has been untimely filed.”) (Emphasis supplied).
19. The Commission apparently construes the term “made” to mean “filed.” See Debose v. Columbia North Florida Regional Medical Center, FCHR Case No. 97-1298 (Order of Remand in DOAH Case No. 00-3426, dated Feb. 8, 2001), writ of prohibition denied, 793 So.2d 931 (Fla. 1st DCA 2001) (table). However, the effect of the Commission’s decision in Debose is that a petition for relief is timely in most instances if it is mailed within 38 days after the determination, no matter when the Commission receives the petition. Accord Carter v. I Drive GC, Inc., FCHR Case No. OS-2228 (Order of Remand in DOAH Case No. 01-2408, dated Apr. 17, 2002) (citing Debose).
20. In reaching its decision in De-bose, the Commission relied on its procedural rules, not the Uniform Rules adopted pursuant to Section 120.54(5). Specifically, the Commission relied upon Rules 60Y-4.004(1) and 60Y-4.007(2) which provide:
60Y-4.004 Filing and Copies.
(1) “Filing” or “file” with the Commission, means actual receipt of a document by the Clerk of the Commission at its office, except that during the course of a hearing, a hearing officer or presiding officer may accept a document for filing, in which event the hearing or presiding officer shall note thereon the filing date and shall transmit it to the Clerk. When a document is received by mail, the date of filing shall relate back to the date of the postmark.
60Y-4.007 Computation of Time Periods.
(2) Whenever a party has a right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon that party and such notice or paper is served by mail, 3 days shall be added to the prescribed period.
(Emphasis supplied).
21. Rules 60Y-4.004 and 60Y-4.007 were adopted in 1978 and apparently have not been amended since. One of the statutes identified as the specific authority for and law implemented by the rules — Section 120.53 — has since been substantially amended to the point that it no longer could serve as the basis for the rules. See Chapter 96-159, Laws of Florida, at section 5 (deleting those provisions in Section 120.53 which authorized agencies to adopt procedural rules to supplement the former model rules).
22. More importantly, the Commission’s procedural rules are in direct conflict with the Uniform Rules. See Rule 28-106.104 (defining filing to mean receipt by the agency clerk with no exception for mailed documents) and Rule 28-106.103 (excepting requests for hearing from the rule that extends deadlines by five days after service by mail).
23. The Uniform Rules became effective on April 1, 1997, and as of that date, the Uniform Rules “shall be the rules of procedure for each agency subject to [Chapter 120] unless the Administration Commission grants an exception to the agency ...” See Section 120.54(5)(a)l. All agencies subject to Chapter 120 were required to follow the Uniform Rules by July 1, 1998. Id. The Commission is not exempted from these requirements.
24. The Commission does not appear to have received an exception from the Administration Commission for its procedural rules in Rule Chapters — 60Y-4 or 60Y-5. There is no separate chapter in the Commission’s rules identifying such an exception. See Section 120.54(5)(a)3. (exceptions approved by the Administration Commission must be published by the agency in a separate rule chapter in the Florida Administrative Code that clearly delineates the exceptions).
25. As a result, the commission’s procedural rules — at least to the extent that they conflict with the Uniform Rules — have not been effective since at least July 1, 1998. See Dept. of Corrections v. Saulter, 742 So.2d 368, 369-70 (Fla. 1st DCA 1999) (characterizing the effect of Section 120.54(5)(a) as a “legislative repeal” of agency procedural rules in conflict with the Uniform Rules). And cf. Crawford v. Dept. of Children & Families, 785 So.2d 505 (Fla. 3d DCA) (certifying conflict with Saulter, but only on the issue of whether an agency’s procedural rule is superceded even if the Uniform Rules do not address the substance of the agency rule), rev. dismissed, 761 So.2d 328 (Fla.2000); Gaston v. Dept. of Revenue, 742 So.2d 517, 521-22 (Fla. 1st DCA 1999) (holding that the Uniform Rules became binding on all agencies on April 1, 1997, and not a later date when the agency gave notice that it was following the Uniform Rules). Accordingly, a determination as to whether the Petition is timely filed must be based upon the Uniform Rules, not the Commission’s procedural rules.
26.The pertinent Uniform Rules are Rules 28-106.103, 28106.104, and 28-106.111, which provide:
28-106.103 Computation of Time
In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Section 110.117, F.S. Except as provided in Rule 28-106.217, five days shall be added to the time limits when service has been made by U.S. mail. One business day shall be added when service is made by overnight courier. No additional time shall be added if service is made by hand, facsimile telephone transmission, or other electronic transmission or when the period of time begins pursuant to a type of notice described in Rule 28-106.111. 28-106.104 Filing
(1) In construing these rules or any order of a presiding officer, filing shall mean received by the office of agency clerk during normal business hours or by the presiding officer during the course of the hearing. 28-106.111 Point of Entry into Proceedings and Mediation
(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

(Emphasis supplied).

27.Section 760.11(7) provides a 35-day period within which to request a hearing, as compared to the 21-day period described in Rule 28-106.111(2). The language of the statute and the language of the Commission’s notice of determination in this case clearly suggest that the 35-day period runs from the date of the determination, not the date that the petitioner receives notice of the determination. See Section 760.11(7) (request for hearing must be made within 35 days of “the date of determination of reasonable cause”). But cf. Joshua v. City of Gainesville, 768 So.2d 432, 438 (Fla. 2000) (“[T]he Legislature chose to make the limitations period [in Section 760.11(8) ] contingent on the receipt of a reasonable cause determination.”) (emphasis supplied); Henry v. Dept. of Administration, 431 So.2d 677, 680 (Fla. 1st DCA 1983) (“An agency seeking to establish waiver based on the passage of time following action claimed as final must show that the party affected by such action has received notice sufficient to commence the running of the time period within which review must be sought.”); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92-93, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (period for filing a claim under federal law counterpart to Chapter 760 runs from receipt of the determination from the Equal Employment Opportunity Commission (EEOC) by the petitioner or his or her attorney, but unlike Section 760.11(7) the federal statute specifically refers to “receipt” of the determination as the triggering event).

28. The Commission’s prior orders also compute the 35-day period from the date of the notice of determination, not the date that Petitioner receives that notice. See Debase, supra; Carter, supra. And cf. Garland, Recommended order, at 3 (computing 35 days from the date of the notice of determination).

29. In this case, it is undisputed that the Notice and the determination were dated May 8, 2002; that the Petition was not even mailed until June 13, 2002, which is 36 days after the determination; and that the Commission did not receive the Petition until July 9, 2002, which is 62 days after the Notice. Accordingly, the Petition is untimely.

30. Even if the 35-day period is computed from the date that Petitioner received the Notice, the Petition in this case is still untimely. By his own admission at the telephonic hearing, Petitioner received the notice of the Commission’s determination by at least May 13, 2002. Although the Petition was mailed within 35 days after that date, it was not received by the Clerk of the Commission until July 9, 2002, which is 57 days after Petitioner received the notice of the Commission’s determination.

31. Despite the language in Section 760.11(7) which states that an untimely claim “will be barred” if not timely filed, the 35 day filing period is not jurisdictional and is subject to equitable tolling. See Irwin, 498 U.S. at 95-96, 111 S.Ct. 453 (filing period in federal law counterpart to Chapter 760 is not jurisdictional); Donald v. Winn-Dixie Stores, Inc., 19 F.A.L.R. 4357, 4371 (FCHR 1995) (noting that the “period for filing the Petition for Relief is not jurisdictional but is subject to equitable tolling”) (citing Clark v. Department of Corrections, 8 F.A.L.R. 679 (FCHR 1985)). And cf. Rule 60Y-5.008(2) (not implicated in this case, but purporting to authorize the Executive Director of the Commission to extend the deadline for filing a petition for relief “for good cause shown”). However, the circumstances of this case do not implicate the principle of equitable tolling or the related principle of excusable neglect.

82. Specifically, there are no allegations that either the Respondent (or the Commission) lulled Petitioner into inaction or otherwise prevented him from timely asserting his rights. See Machules v. Dept. of Administration, 523 So.2d 1132, 1134 (Fla.1988). The Notice clearly informed Petitioner that his request for an administrative hearing must be “filed” within 35 days of the date of the Notice, and further informed Petitioner that the request “will be dismissed” if it is not filed within that period. The Notice contained the commission’s new address, and a blank petition for relief was included with the Notice.

33. Petitioner’s response to the Order to Show Cause confirms that his delay in filing the Petition was not attributable to any action or inaction by Respondent or the Commission. Instead, the delay was due to Petitioner’s own action or inaction — i.e., his inability to obtain a lawyer. That is an insufficient basis to excuse the late filing of the Petition. See Jancyn Manufacturing Corp. v. Dept. of Health, 742 So.2d 473, 476 (Fla. 1st DCA 1999) (lack of legal representation does not excuse inaction that results in an untimely petition for hearing); Irwin, 498 U.S. at 96, 111 S.Ct. 453 (equitable tolling not implicated where delay in filing was attributable to the petitioner’s attorney being out of the country when his office received the determination letter from the EEOC).

34. The fact that Petitioner mailed the Petition to the Commission’s old address rather than its new address might constitute excusable neglect, cf. Electric Engineering Company, Inc. v. General Electric Canada, Inc., 610 So.2d 51, 52 (Fla. 3d DCA 1992) (finding excusable neglect sufficient to set aside a default where registered agent forwarded complaint to defendant’s old address), but only if the 35-day period is computed from the date that Petitioner received the Notice. But cf. Cann v. Dept. of Children & Families[Family Services], 813 So.2d 237, (Fla. 2d DCA 2002) (excusable neglect no longer saves an untimely request for an administrative hearing).

35. If, however, the 35-day period is computed from the date of the determination (as Section 760.11(7), the commission’s prior orders, and the Notice provide that it is), the Petition was already untimely when it was mailed because it was mailed on the thirty-sixth day after the date of the determination. Therefore, the fact that Petitioner misaddressed the letter would be of no consequence.

36. Simply put, the circumstances of this case are similar to those in Environmental Resource Associates of Florida, Inc. v. Dept. of General Services, 624 So.2d 330 (Fla. 1st DCA 1993), where the court commented:

There is nothing extraordinary in the failure to timely file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a [party] failing to meet a filing deadline. Id. at 331. See also Cann, 813 So.2d at 238 (affirming dismissal of petition which was mailed prior to the filing deadline but received one day after the deadline); Vantage Healthcare Corporation v. Agency for Health Care Administration, 687 So.2d 306 (Fla. 1st DCA 1997) (finding the doctrine of equitable tolling inapplicable where petition was sent via overnight courier but was not timely received by agency).

The Commission rejected the ALJ’s recommendation that the petition be dismissed as untimely, concluding that Am-broise’s failure to timely file was attributable to excusable neglect. I believe the Commission’s view is unavailing and the ALJ’s conclusion is correct. Section 120.569(2)(c), Florida Statutes (2002), provides: “a petition shall be dismissed if ... it has been untimely filed.” (emphasis added.) This language, requiring the dismissal of an untimely request, was added by Chapter 98-200, section 4, at 1881, Laws of Florida. I agree with the conclusion reached in Cann v. Department of Children and Family Services, 813 So.2d 237, 239 (Fla. 2d DCA 2002), that this amendment overruled prior case law that held that an untimely administrative appeal could proceed if the delay was a result of excusable neglect. We need not determine whether equitable tolling might preserve Ambroise’s rights as the requirements for equitable tolling were not demonstrated. See Machules v. Dep’t of Admin., 523 So .2d 1132 (Fla.1988).

      . We considered the possibility of treating this appeal as a petition for writ of prohibition. See, e.g., Dept. of Health and Rehab. Servs. v. Career Serv. Com’n, 448 So.2d 18 (Fla. 1st DCA 1984) (holding that district courts have power to issue writs of prohibition to administrative agencies to prevent them from exceeding their jurisdiction). However, prior opinions uniformly hold that the untimely filing of a request for an administrative hearing is not a jurisdictional defect. Machules v. Dep't of Admin., 523 So.2d 1132 (Fla. 1988); Appel v. Fla. Dep’t of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999).


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    Sandra G. RUBERG, Appellant/Cross-Appellee, v. David C. RUBERG, Appellee/Cross-Appellant.
    Nos. 2D01-2139, 2D01-4224, 2D02-1067.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Appellant/Cross-Appellee.
    David A. Maney and Patricia F. Kuhl-man of Maney, Damsker, Jones, Kiely & Kuhlman, P.A. Tampa, for Appellee/Cross-Appellant.
   CANADY, Judge.

In these consolidated appeals, the appellant/cross-appellee, Sandra G. Ruberg, challenges the following: the equitable distribution scheme set forth in a final judg-merit of marital dissolution; an order that only partially grants her motion for attorney’s fees and costs with respect to the marital dissolution; and an order that denies her request for an increased alimony award. On cross-appeal, the appel-lee/cross-appellant, David C. Ruberg, challenges a provision of the final judgment of marital dissolution that requires him to maintain a $1,000,000 life insurance policy for the benefit of Mrs. Ruberg and an order that denies his request for a decrease in Mrs. Ruberg’s alimony award. We affirm in part and reverse in part.

I. BACKGROUND

The parties were married in 1976. They have three adult children. During the marriage, the parties relocated several times to different parts of the country due to Mr. Ruberg’s employment. The Ruberg family moved to Tampa in 1993, when Mr. Ruberg was hired as president and chief executive officer of Intermedia Communications, Inc.

On September 17, 1998, Mrs. Ruberg filed for divorce. A final judgment dissolving the parties’ marriage was entered on October 18, 2000. The equitable distribution of the parties’ marital assets did not occur, however, until April 5, 2001, when a second final judgment of marital dissolution was entered. That judgment reaffirmed and incorporated by reference the October 2000 dissolution judgment, awarded Mrs. Ruberg permanent monthly alimony, and divided and distributed the parties’ marital assets.

A. Equitable Distribution

The April 2001 judgment awarded Mrs. Ruberg marital assets with a net value of $1,126,971. Those assets included, among other things, the marital home; a second residence the parties purchased for Mrs. Ruberg’s elderly father; retirement, investment, and bank accounts that had been jointly owned by the parties; and $360,000, which Mr. Ruberg paid to Mrs. Ruberg during the pendency of the dissolution proceedings.

The April 2001 final judgment also provided for an equal division of 675,301 shares of Intermedia stock. That stock had been awarded to Mr. Ruberg in a series of option and restricted share grants during his employment with Intermedia. The trial court determined that one of those grants was awarded as a signing bonus when Mr. Ruberg began his employment with Intermedia and that the others constituted long-term incentive compensation to Mr. Ruberg. It was established that the block of 675,301 shares had vested and become exercisable prior to the filing date of Mrs. Ruberg’s dissolution petition. The trial court determined those shares to be marital property subject to equitable distribution. The trial court, however, found that another 299,370 shares of stock options and 170,482 shares of restricted stock were unvested and constituted non-marital property.

B. Alimony

The trial court went on to award Mrs. Ruberg $18,000 in permanent monthly alimony. The final judgment contains an extensive discussion of the testimony adduced by the parties concerning the economic factors to be considered under section 61.08(2), Florida Statutes (2001), in determining alimony. In its discussion, the trial court makes reference to evidence adduced by Mrs. Ruberg pointing to a monthly need — based on the parties’ lifestyle during the marriage — in excess of $45,000 (pretax). The trial court did not, however, make any specific findings regarding the amount of alimony needed by Mrs. Ruberg to maintain the standard of living she enjoyed dining the marriage.

As security for the payment of the alimony, Mr. Ruberg was ordered to “maintain a $1,000,000 [term] life insurance policy (death benefits), of which Mrs. Ruberg [was] to be a beneficiary so long as [Mr. Ruberg was] obligated to pay Mrs. Ruberg permanent alimony.” The judgment contains no findings related to the life insurance requirement.

The trial court reserved jurisdiction to revisit and reevaluate the alimony issue, if necessary. The trial court did so because, when the alimony award was entered, a merger between Intermedia and World-Com, Inc., was pending. The merger agreement specified that WorldCom’s purchase price for Intermedia would be based on a stock price of thirty-nine dollars per share. Due to the volatility of the stock market at the time of the equitable distribution of the parties’ marital assets and the uncertainty of whether the sale of In-termedia to WorldCom would actually close — or what the share price would be if it did close — the trial court indicated that “the [p]arties may or may not receive substantial value in the assets distributed to them.” The trial court thus reserved jurisdiction “to adjust the amount of the permanent alimony award once the sale of Intermedia to WorldCom [was] concluded and th[e][c]ourt [was] able to determine the value of those assets received by Mrs. Ruberg as equitable distribution of marital assets.” The trial court also reserved jurisdiction to determine Mrs. Ruberg’s claim for attorney and expert witness fees and costs. On May 9, 2001, after the denial of the parties’ respective motions for rehearing, Mrs. Ruberg timely appealed the final dissolution judgment, and Mr. Ruberg cross-appealed.

C. Attorney’s Fees

On August 2, 2001, the trial court ruled on Mrs. Ruberg’s fee motion. After considering each of the parties’ financial resources and determining that Mr. Ruberg’s future “earning ability [was] substantially superior to that of [Mrs. Ruberg],” the trial court entered an order directing Mr. Ruberg to pay a total of $241,949.15 toward Mrs. Ruberg’s fees and costs. That sum was in addition to significant sums Mr. Ruberg had previously contributed to Mrs. Ruberg’s attorney’s fees during the pendency of the dissolution proceedings. The fee order provided that Mrs. Ruberg “shall be responsible for any other outstanding balances of fees and costs,” and that her “request for reimbursement of any other fees and/or costs paid by her is denied.” On August 28, 2001, Mrs. Ruberg timely appealed the trial court’s fee order to this court.

D. Alimony Modification

Thereafter, the merger of Intermedia and WorldCom successfully closed. Thus, on November 12, 2001, this court relinquished jurisdiction as to the appeal from the final dissolution judgment to allow the trial court to consider the parties’ respective motions for modification of the original alimony award in accord with the reservation of jurisdiction set forth in the final dissolution judgment.

On March 11, 2002, the trial court entered its order denying Mrs. Ruberg’s motion to increase and Mr. Ruberg’s motion to decrease the alimony award. Upon determining that the then-current net value of Mrs. Ruberg’s WorldCom stock was $2,417,246 — based on a share price of fifteen dollars — the trial court refused to increase her monthly alimony award. The trial court likewise refused to decrease Mrs. Ruberg’s alimony, despite Mr. Ru-berg’s argument that the proceeds of Mrs. Ruberg’s WorldCom stock would warrant the imputation of significant income to her. The trial court ultimately found that Mr. Ruberg failed to produce “evidence of a prudent investment portfolio for [Mrs. Ru-berg].” The trial court nonetheless determined that Mrs. Ruberg was entitled to attorney’s fees and costs in the post-judgment proceedings, based on the disparity of the parties’ respective incomes and assets. Mr. Ruberg was ordered to pay a total of $45,060.92 for the fees and costs incurred by Mrs. Ruberg in litigating the reconsideration of her alimony award. Mrs. Ruberg timely appealed the order denying her request for modification of the alimony award, and Mr. Ruberg cross-appealed.

II. ANALYSIS

The parties raise certain issues which are without merit and do not warrant discussion. We limit our comments to the following issues.

A. Equitable Distribution of Stock Options and Restricted Shares

Mrs. Ruberg contends the trial court erred in failing to find that Mr. Ruberg’s unvested Intermedia stock options and restricted shares constituted marital property subject to equitable distribution. She argues that those unvested shares were marital assets, because they were rewards for Mr. Ruberg’s past job performance— that is, his job performance during the course of the parties’ marriage — and thus constituted deferred compensation. We disagree with Mrs. Ruberg’s argument, because we conclude that the stock options and restricted shares at issue were granted in consideration of Mr. Ruberg’s future job performance and not based on his past efforts.

Section 61.075(5)(a)4 defines “[m]arital assets” to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in ... deferred compensation ... plans and programs.” As the term implies, deferred compensation consists of funds already earned but for which payment is deferred. For equitable distribution purposes, a deferred compensation account is considered marital property to the extent it consists of contributions from funds earned during the marriage. Boyett v. Boyett, 708 So.2d 451, 452 (Fla.1997); Thibault v. Thibault, 668 So.2d 237, 238 (Fla. 1st DCA 1996). Stock options and restricted shares may be given as deferred compensation for past services, but they may also be given as compensation for present or future services. See Seither v. Seither, 779 So.2d 331, 333 (Fla. 2d DCA 1999) (stating that when a stock “option is given as compensation, it can be deferred compensation for past services, compensation for present services, or compensation for future services”). Under section 61.075(6), the “eut[]off date for determining assets ... to be identified or classified as marital assets [may be established as] the date of the filing of a petition for dissolution of marriage,” as was the case here.

In the April 2001 final dissolution judgment, the trial court specifically found that the unvested stock options and restricted shares constituted incentives that looked to future labor and “continued superior performance” by Mr. Ruberg — not past performance. The trial court’s finding in that regard was based primarily on the provisions of the Intermedia 1992 stock option plan document, the 1996 long-term incentive plan document, and the individual “incentive” stock option and restricted share agreements executed by Mr. Ruberg and Intermedia.

Intermedia’s 1992 plan document provided that Intermedia’s board of directors or a compensation committee composed of at least three board members was authorized to offer stock options for the purpose of “attract[ing] and retaining] the best personnel available ... and to provide additional incentive to such employees to exert their maximum efforts toward the success of the [cjompany and its subsidiary corporations.” When Mr. Ruberg was hired by Intermedia, he was awarded — pursuant to the 1992 plan — an initial stock option grant that was intended as a signing bonus for coming on board with the company and to augment his starting salary, which was lower than the industry standard. That grant — which is not at issue in this appeal — was specifically set forth in Mr. Ru-berg’s employment contract.

All subsequent option and restricted share grants to Mr. Ruberg were awarded in separate agreements executed pursuant to either Intermedia’s 1992 stock option plan or Intermedia’s 1996 long-term incentive plan. The stated purpose of the 1996 plan, like that of the 1992 plan, was “to attract and retain and provide incentives to employees, officers, directors[,] and consultants of [Intermedia], and to thereby increase overall shareholder value.” Each of the individual stock option agreements executed between Intermedia and Mr. Ru-berg recited that the option grant was intended “as an incentive for [Mr. Ruberg] to advance the interests of the company.” In each case, the agreement provided that the options would vest in specified monthly increments and that “vesting [would] cease to continue upon any termination of [e]m-ployment.”

The decision in Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002), deals at length with the issue of whether stock options granted during a marriage but yet unvested on the filing date of a dissolution petition constitute marital property. In Jensen, the husband, during the marriage, was “granted several thousand stock options” by his employer, Cisco Systems. Id. at 316-17. The contract pursuant to which those options were granted indicated that they were awarded “in recognition of past commendable service [but were] contingent upon [the husband’s] continued service with either Cisco Systems or any of its subsidiaries.” Id. at 317. The trial court determined that the unvested options constituted marital property and were to be equally divided between the husband and wife. The First District affirmed, concluding that the unvested stock options were a form of deferred compensation under section 61.075(5)(a)4. The court based that conclusion on its determination that the options were awarded for the husband’s past performance, despite the fact that he had to remain with the company if he wished to exercise them. The First District thus held that, notwithstanding that the husband’s options were contingent on continued service, it was the date on which the options were granted and not the vesting date that was disposi-tive as to the character of the options as marital or nonmarital property.

Although the factual circumstances in Jensen appear to be similar to those involved in the instant case, there is a critical dissimilarity. The Jensen court focused on a circumstance that is not present in the instant case — namely, the fact that the options granted to Jensen “represent [Jensen’s] past commendable employment service to Cisco Systems that he provided during the marriage.” Id. at 318-19. We agree that options can be a form of deferred compensation. We also agree that options granted prior to the cutoff date for the determination of marital assets may — depending on the circumstances — be marital property even if they remain unvested as of the cutoff date. But not all options granted prior to the cutoff date for the determination of marital assets are deferred compensation. The critical factor in determining the nature of options that have not vested by the cutoff date is the predominant purpose for which the options were given. The dispositive issue is whether the grant was made in consideration for actions undertaken during the marriage and before the applicable cutoff date.

We agree with various cases from other jurisdictions which hold that the status of such unvested options turns on the factual issue of whether the unvest-ed stock options and restricted shares were primarily awarded as deferred compensation for past service or as an incentive for future services. See, e.g., Wendt v. Wendt, 59 Conn.App. 656, 757 A.2d 1225, 1285 (2000) (stating that determination of purpose for which stock options were awarded is question of fact); In re Marriage of Miller, 915 P.2d 1314, 1318 (Colo.1996) (stating that, in determining character of stock options for purposes of equitable distribution, courts must consider whether options were awarded for past, present, or future services); In re Marriage of Short, 125 Wash.2d 865, 890 P.2d 12, 16 (1995) (stating that, in characterizing as marital or nonmarital unvested stock options granted during marriage, courts must look to circumstances under which options were granted and determine whether they were rewards “to compensate the employee for past, present, or future employment services”); In re Marriage of Hug, 154 Cal.App.3d 780, 201 Cal.Rptr. 676, 685 (1984) (approving the use of a time rule to apportion stock options awarded during the marriage but unvested at the time of the divorce petition but stating “we stress that no single rule or formula is applicable to every dissolution case involving stock options”). Stock option or restrictive share grants constitute compensation for future services — and not-deferred compensation — when they are awarded as an incentive to an employee to render continued and future services to a company and as incentive for future productivity. Miller, 915 P.2d at 1319-20; Short, 890 P.2d at 18; Hug, 201 Cal.Rptr. at 680; see also Thomas P. Malone, Employee Stock Options & Restricted Shares: Determining & Dividing the Marital Pot, 25 Colo. Law. 87, 91 (Oct.1996).

We acknowledge that there is an element of compensation for future services in all option grants that are subject to vesting contingent on continued employment. The requirement of continued employment indicates that future services are to some extent in view when the grant is made. But that does not mean that all options that are subject to such future vesting are awarded for future services and are thus not deferred compensation. See Jensen, 824 So.2d at 316-17 (concluding that stock options granted in recognition of past performance but contingent on continued service constituted deferred compensation). The issue is whether at the time the grant is made the primary purpose of the grant is to provide compensation for past services or for future services. If the primary purpose is to compensate for past services, the award is a form of deferred compensation. If the primary purpose is to compensate for future services, the award is not a form of deferred compensation. The primary purpose of an option grant is, of course, a factual question that depends on the pertinent circumstances. And the expressed purpose of the employer is an important factor in determining that factual question.

In the instant case, the record shows that the plan documents clearly provided for option and restricted share grants to employees for future services. Likewise, the individual agreements which made the grants clearly indicate that the grants were intended as incentives for Mr. Ruberg to remain employed with the company, to render future services, and to otherwise advance the future interests of the company. Further, the monthly incremental vesting schedules for the stock options and restricted shares suggest that each monthly increment of stock options and restricted shares vested as it was earned. All the pertinent circumstances support the conclusion that the trial court correctly determined that the stock options and restricted shares that remained unvested as of the filing date of the dissolution petition constituted separate, non-marital property that were mere expectancies for Mr. Ruberg until he earned them. See Miller, 915 P.2d at 1318. In short, the stock options and restricted shares at issue were not deferred compensation, and the trial court did not err in classifying them as nonmarital property.

B. The Alimony Award

1. Monthly Alimony

Mrs. Ruberg also contends that her $18,000 monthly alimony award is inadequate. She claims she established her monthly need as $35,000 — after taxes. While the final judgment discusses some of the alimony evidence presented by the parties — and the quality thereof-it does not make express factual findings as to Mrs. Ruberg’s need to support the $18,000 award. The trial court thus failed to comply with the requirement of section 61.08(1), that “[i]n all dissolution actionsQ the court shall include findings of fact relative to [the statutory factors] supporting an award or denial of alimony.” A trial court’s failure to make specific factual findings with regard to alimony “may preclude meaningful appellate review[] and result in a case having to be reversed and remanded.” Walsh v. Walsh, 600 So.2d 1222, 1223 (Fla. 1st DCA 1992) (citation omitted). Because the trial court made no specific factual findings to support the $18,000 alimony award and we have an inadequate basis for determining if the award was proper, we conclude that the award of monthly alimony must be reversed and the matter remanded for further proceedings. On remand, the trial court may consider the parties’ then-current circumstances in determining the amount of alimony. See McLean v. McLean, 652 So.2d 1178, 1182 (Fla. 2d DCA 1995) (stating that on remand “[t]he trial court is free to consider the parties’ present economic circumstances”).

2. Life Insurance Requirement

On his cross-appeal from the final dissolution judgment, Mr. Ruberg contends the trial court erred in requiring him to maintain a $1,000,000 life insurance policy for the benefit of the wife as a way of insuring her alimony needs. Without explanation, the final judgment states that the husband is required to maintain the policy “so long as he is obligated to pay Mrs. Ruberg permanent alimony.” Mr. Ruberg argues there is no basis for the life insurance requirement and that the payment of $1,000,000 at his death in essence requires him to continue paying alimony from the grave.

Section 61.08(8) provides:

To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with other assets which may be suitable for that purpose.

We conclude that the requirements of the statute have not been met because the instant record contains nothing to establish that the $1,000,000 life insurance policy was “necessary to protect [the] award of alimony.”

In Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla.1989), the supreme court held “that section 61.08(3) permits the trial court to order an obligated spouse, as an integral part of the equitable distribution and support schemes, to purchase life insurance or other security either to satisfy [arrears] or to otherwise protect the receiving spouse in appropriate circumstances.” The Sobelman court did not delineate the particular circumstances in which the imposition of such an insurance requirement would be “appropriate.” The court did, however, refer to “protecting] the financial well[-]being of the other spouse.” Id. at 1154. And the So-belman court favorably cited the decisions in Clark v. Clark, 509 So.2d 364 (Fla. 4th DCA 1987), and Fiveash v. Fiveash, 523 So.2d 764 (Fla. 1st DCA 1988), describing them as eases where “the wives were in ill health and for all practical purposes unable to obtain employment,” and the trial courts “were concerned with the possibility of the husbandsf] predeceasing the wives, leaving them without financial resources.” Id. at 1154 n. 1.

In Sasnett v. Sasnett, 679 So.2d 1265, 1268 (Fla. 2d DCA 1996), we focused on circumstances similar to those present in Clark and Fiveash and held that the facts of the case “clearly demonstrate^] the ‘appropriate circumstances’ to require some form of security [for] the alimony award.” The relevant circumstance was identified as the ill health of the receiving spouse. In justifying the imposition of a security requirement, the court observed that “[t]he husband’s sudden demise would seriously jeopardize the wife’s well[-]being, both financially and healthwise.” Id.

The Fifth District reached a similar conclusion in Richardson v. Richardson, 722 So.2d 280, 281 (Fla. 5th DCA 1998), where the wife was “not in good health and ha[d] been advised not to get a job,” The Richardson court indicated that the wife’s desperate financial circumstances in the event of the husband’s death would “jeopardize the wife’s very existence.” Id. at 282.

We have held that a life insurance or other security requirement is only appropriate where “special circumstances” are shown to exist. See Pinion v. Pinion, 818 So.2d 557, 557 (Fla. 2d DCA 2002) (“In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing alimony obligations.”) (citations omitted); Solomon v. Solomon, 28 Fla. L. Weekly D1960, D1961, 2003 WL 21990208 (Fla. 2d DCA 2003); Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002). The statute does not contemplate that a requirement for life insurance or other security will be standard and customary in dissolution proceedings whenever periodic alimony is awarded. The presence of special circumstances is thus required to establish that the provision of life insurance or other security is “necessary to protect [the] award of alimony” under section 61.08(3). See also Lapham v. Lapham, 778 So.2d 487, 489 (Fla. 5th DCA 2001) (stating that life insurance requirement or other security “is not required or automatic ... [but] ‘it is [instead] justified only if there is a demonstrated need to protect the alimony recipient’ ”) (citation omitted). Such special circumstances are present when the receiving spouse is faced with being plunged into “dire economic straits upon the untimely death of [the paying spouse].” Baker v. Baker, 763 So.2d 493, 495 (Fla. 4th DCA 2000) (citing Richardson, 122, So.2d at 281, and Sasnett, 679 So.2d at 1268-69); see also Forgione v. Forgione, 845 So.2d 968, 970 (Fla. 4th DCA 2003) (holding that where wife “was of limited employability,” had few assets, and “husband was scheduled for open[-]heart surgery ... the wife demonstrated a special circumstance to require the husband to maintain life insurance on her behalf’).

In the present case, as the trial court specifically found, there is no evidence of arrearage. There is also no record evidence to establish that Mrs. Ruberg is disabled or suffers from any serious health problems. In fact, the trial court expressly found both parties to be in good health. There is no evidence that Mrs. Ruberg is unemployable or that her financial assets will be insufficient to sustain her in the event of Mr. Ruberg’s untimely death. There is thus no basis in the record for concluding that Mrs. Ruberg would face dire economic circumstances if Mr. Ruberg died. And there is nothing in the record to show that Mrs. Ruberg demonstrated any other special circumstances that would justify the trial court’s imposition of the life insurance requirement. Thus, because there is no basis in the record to support the requirement that Mr. Ruberg maintain a $1,000,000 life insurance policy to secure the alimony award, we reverse on this point and strike the life insurance provision from the final dissolution judgment. See Solomon, 28 Fla. L. Weekly at D1961; Lapham, 778 So.2d at 489.

C. Attorney’s Fees

Mrs. Ruberg challenges an order that partially denies her request for attorney’s fees and costs expended as a result of the trial court proceedings. The record shows that Mr. Ruberg has contributed enormously to Mrs. Ruberg’s litigation fees and costs. The record also shows that Mrs. Ruberg has sufficient assets to pay her attorney’s fees-as this court previously found in an order issued on June 11, 2002, reversing a trial court order granting Mrs. Ruberg temporary appellate attorney’s fees. See also Stoler v. Stoler, 679 So.2d 837, 838 (Fla. 2d DCA 1996) (reversing order requiring husband to pay all of wife’s attorney’s fees where record showed that wife had sufficient assets to pay a portion of her own fees and costs). We conclude that the trial court correctly determined that Mrs. Ruberg failed to establish sufficient need for additional attorney’s fees. We therefore affirm the trial court’s order on fees.

D. Modification of Alimony

Mrs. Ruberg contends the trial court erred in failing to increase her alimony award. On cross-appeal, Mr. Ruberg contends the trial court erred in failing to decrease the alimony award. Because we have determined that remand is necessary to revisit Mrs. Ruberg’s alimony award, we need not address this issue. Our affir-mance of the trial court’s denial of the motions for modification submitted by both Mrs. Ruberg and Mr. Ruberg is without prejudice to the further consideration on remand of the issues they each raised with respect to modification.

III. CONCLUSION

Accordingly, the final judgment of marital dissolution is reversed only with respect to Mrs. Ruberg’s monthly alimony award and the provision that requires Mr. Ruberg to maintain a $1,000,000 life insurance policy to secure the alimony award. The issue of monthly alimony is therefore remanded for further proceedings. The final dissolution judgment is affirmed in all other respects, as are the order partially denying Mrs. Ruberg’s request for attorney’s fees and costs and the order denying the parties’ respective motions to modify the alimony award.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

FULMER and CASANUEVA, JJ., Concur.

      . In this case we are not called on to address the circumstance in which the pertinent facts do not establish either that the grant was primarily for past service or primarily for future service. See, e.g., Wendt, 757 A.2d at 1235-36 (involving situation where certain unvested stock options were awarded for past, present, and future services and thus required the application of a "coverture factor” to allocate marital portions of those options).

      . We note that the division and classification of the particular options and restricted shares as marital and nonmarital was simplified in this case by the fact that the options and restricted shares vested monthly as they were earned. It has therefore not been necessary for us to address the appropriate methodology for allocating options that were earned before the applicable cutoff date but remained un-vested. See, e.g., In re Marriage of Short, 890 P.2d at 17 (applying a "time rule” for determining each spouse's respective interest in stock options that vest after the parties are " 'living separate and apart’ " but which are in part attributable to efforts expended both during and after the marriage); In re Marriage of Hug, 201 Cal.Rptr. at 685 (applying a time rule to certain stock options as they were paid after the marriage to allocate the portions of those options which were attributable to efforts expended during the marriage).


author: SALCINES, Judge. ALTENBERND, Chief Judge,

text:
    Klaus ROESSLER, Appellant, v. Russell W. NOVAK, M.D.; Sarasota Surgical Specialists, P.A., a Florida corporation; Richard J. Lichtenstein, M.D.; SMH Radiology Associates, P.A., a Florida corporation; and Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital, Appellees.
    No. 2D02-1670.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Hector R. Rivera of Duane Morris LLP, Miami, and Dr. Joel S. Cronin, Esq., of Romano, Eriksen & Cronin, West Palm Beach, for Appellant.
    Kathleen T. Hessinger of Deacon & Moulds, P.A., St. Petersburg, for Appebee Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital.
    Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., for Appellees Russell W. Novak, M.D., and Sarasota Surgical Specialists, P.A.
    No appearance for Appellees Richard J. Lichtenstein, M.D.; and SMH Radiology Associates, P.A.
   SALCINES, Judge.

Klaus Roessler timely appeals a summary final judgment entered in favor of Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital (Sarasota Memorial). Because genuine issues of material fact exist as to Sarasota Memorial’s vicarious liability for the alleged negligent acts of the radiologist who rendered services to Mr. Roessler while he was a patient at the hospital, the trial court erred in granting the summary final judgment. Accordingly, we reverse.

On September 19, 1996, Mr. Roessler was examined by a physician at the Sarasota Family Walk-In Clinic. The physician took chest and abdominal x-rays of Mr. Roessler. After viewing the x-rays, the physician diagnosed Mr. Roessler as suffering from a perforated viscus and pneumonia. A perforated viscus is a potentially acute life-threatening condition requiring immediate surgical intervention. The physician immediately made arrangements for Mr. Roessler to go to Sarasota Memorial’s emergency room to be seen by a surgeon for evaluation of the perforated viscus and surgery. Mr. Roessler went from the family clinic directly to Sarasota Memorial’s emergency room. After being evaluated in the emergency room, Mr. Roessler was admitted to the hospital.

The next day, on September 20, 1996, scans of Mr. Roessler’s abdomen were taken in Sarasota Memorial’s radiology department while he was an inpatient. Dr. Richard J. Lichtenstein, a board certified radiologist, analyzed and interpreted those scans because he was the radiologist on duty at Sarasota Memorial at the time the scans were brought to be interpreted. Dr. Lichtenstein was not acquainted with Mr. Roessler at that time.

After Mr. Roessler had been admitted to Sarasota Memorial for six days, an operation was performed on his perforated viscus. Although he survived, Mr. Roessler developed serious complications which required approximately a two and one-half month admission in Sarasota Memorial. During that time, Mr. Roessler developed renal failure, a heart condition, systemic sepsis, and multiple brain abscesses which had to be surgically removed.

Mr. Roessler subsequently filed an action against Sarasota Memorial for medical malpractice based upon vicarious liability as well as for negligent destruction of evidence. The present appeal concerns only the summary judgment entered on Mr. Roessler’s claim for medical malpractice. In that claim, Mr. Roessler alleged that Dr. Lichtenstein misinterpreted the scans taken in Sarasota Memorial’s radiology department and was negligent in failing to include an abdominal abscess in his differential diagnosis of Mr. Roessler’s abdominal scans. He further alleged that Dr. Lichtenstein did so while an agent of Sarasota Memorial, that he did so within the scope of the agency, and that the hospital was, thus, vicariously liable for Dr. Lichtenstein’s alleged negligence.

In response, Sarasota Memorial asserted in its answer, among other affirmative defenses, that Dr. Lichtenstein was an independent contractor and was not an agent, servant, or employee of Sarasota Memorial. Sarasota Memorial filed a motion for summary judgment which asserted, in relevant part, that it was not liable for the acts of Dr. Lichtenstein because he was not an employee or agent of Sarasota Memorial. The trial court granted Sarasota Memorial’s motion for summary judgment and entered a final judgment thereon.

In this appeal, we are asked to determine whether Sarasota Memorial satisfied its burden to establish that no genuine issues of material fact existed regarding its vicarious liability, thereby entitling it to summary judgment as a matter of law. We find that Sarasota Memorial did not satisfy that burden.

As a general rule, a principal may be held liable for the acts of its agent that are within the course and scope of the agency. Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985). Although some agencies are based upon an express agreement, a principal may be liable to a third party for acts of its agent which are within the agent’s apparent authority. See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 747 (2003) (discussing agency principles generally and in the context of medical malpractice actions). Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing. Taco Bell of Cal. v. Zappone, 324 So.2d 121, 123 (Fla. 2d DCA 1975). The rationale for the doctrine of apparent authority is that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party’s reliance upon that appearance of authority as if it were actually conferred upon the agent. Liberty Mut. Ins. Co. v. Sommers, 472 So.2d 522, 524 (Fla. 1st DCA 1985); see also Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. 4th DCA 1982).

An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995). Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. Id.

While some hospitals employ their own staff of physicians, others enter into contractual arrangements with legal entities made up of an association of physicians to provide medical services as independent contractors with the expectation that vicarious liability will not attach to the hospital for the negligent acts of those physicians. See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 751-52 (2008). Indeed, Sarasota Memorial and the professional association of radiologists with which Dr. Lichtenstein was affiliated had entered into such an independent contractor agreement.

Under certain circumstances, however, a hospital may be held vicariously hable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital. Cuker v. Hillsborough County Hosp. Auth., 605 So.2d 998, 999 (Fla. 2d DCA 1992). The doctrine of apparent authority has been applied to physicians who rendered care and treatment to individuals treated in hospital emergency rooms, see Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990), as well as in hospital departments other than emergency rooms, see Cuker, 605 So.2d 998. The question of a physician’s apparent authority to act for a hospital is often a question of fact for the jury. See Cuker, 605 So.2d at 999 (Fla. 2d DCA 1992); Chmielewski, 573 So.2d at 876.

In the present matter, evidence presented to the trial court for the purpose of the summary judgment proceeding demonstrated that Sarasota Memorial maintained a radiology department which was physically located within the hospital’s grounds. Sarasota Memorial contracted with SMH Radiology Associates, P.A., for it to be the exclusive provider of professional radiological services at the hospital. Dr. Lichtenstein was an employee of SMH Radiology on the date he interpreted Mr. Roessler’s scans. Neither Dr. Lichtenstein nor SMH Radiology had offices outside of Sarasota Memorial’s hospital grounds. The radiologists employed by SMH Radiology, including Dr. Lichtenstein, worked at Sarasota Memorial to provide all professional radiological services twenty-four hours a day, seven days a week, to Sarasota Memorial’s inpatients and outpatients.

Mr. Roessler sought the services offered by Sarasota Memorial when he went to Sarasota Memorial’s emergency department. He was admitted to Sarasota Memorial as an inpatient through Sarasota Memorial’s emergency department. Once Mr. Roessler arrived at Sarasota Memorial and was admitted as an inpatient, the hospital provided him with the health care services and providers it determined to be necessary. Such services included inpatient professional radiological services, which were provided by Sarasota Memorial through its radiology department. After abdominal scans were taken in its radiology department, Sarasota Memorial assigned Dr. Lichtenstein to interpret them. Like the plaintiff in Cuker, 605 So.2d 998, Mr. Roessler did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital.

During a trial, other facts might be developed which could negate a conclusion that Sarasota Memorial should be vicariously liable under an apparent agency theory. However, as presented to the trial court the foregoing facts created a jury question concerning whether Sarasota Memorial, through its actions, represented that Dr. Lichtenstein was its apparent agent. Therefore, the entry of the summary judgment was improper.

Reversed and remanded for further proceedings consistent herewith.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge,

Concurring.

I concur because precedent requires me to do so. I believe, however, that our twenty-year experiment with the use of apparent agency as a doctrine to determine a hospital’s vicarious liability for the acts of various independent contractors has been a failure. Patients, hospitals, doctors, nurses, other licensed professionals, risk managers for governmental agencies, and insurance companies all need to have predictable general rules establishing the parameters of vicarious liability in this situation. Utilizing case-specific decisions by individually selected juries to determine whether a hospital is or is not vicariously liable for the mistakes of a radiology department, an emergency room, or some other corporate entity that has been created as an independent contractor to provide necessary services within the hospital is inefficient, unpredictable and, perhaps most important, a source of avoidable litigation. Our society can undoubtedly function well and provide insurance coverage to protect the risks of malpractice if there is either broad liability upon the hospital for these services as nondelegable duties or if liability is restricted to the independent contractor. The uncertainty of the current system, however, does not work. The supreme court or the legislature needs to simplify the rules of liability in this area.

As well explained in the majority opinion, in the context of tort law, apparent agency was intended to create vicarious liability for a principal who retains an independent contractor and then represents to the world that the independent contractor is an agent whom the principal has the authority to control. When a specific plaintiff actually relies upon the misrepresentation to his or her detriment, the plaintiff is entitled to recover from the principal for the negligence of the independent contractor. See generally Fla. Std. Jury Instr. (Civ.) 3.3(b)(2). To some extent, apparent agency can be viewed as a form of vicarious liability for personal injuries and property damage that is warranted because of false information negligently supplied by the principal for the guidance of others. See generally Fla. Std. Jury Instr. (Civ.) 8.2. This theory works reasonably well to create vicarious liability for isolated cases of negligence involving motor vehicles or premises liability. See Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995) (no jury question where reliance not established by plaintiff); Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 493-94 (Fla.1983), receded from on other grounds by Mobil Oil Corp., 648 So.2d 119 (jury question whether franchisor liable for incident on franchisee’s premises); Mather v. Northcutt, 598 So.2d 101 (Fla. 2d DCA 1992); Font v. Stanley Steemer Int’l, Inc., 849 So.2d 1214 (Fla. 5th DCA 2003) (jury question whether franchisor is liable for automobile accident involving franchisee); Dalia v. Elec. Realty Assocs., Inc., 629 So.2d 1075 (Fla. 3d DCA 1994) (same). It has not worked well to establish responsibility for torts in the context of a complex institution like a hospital that has many interrelated independent contractors working side-by-side for the same customers.

It appears that Florida first utilized apparent agency in the context of medical malpractice in the early 1980s. See Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982); Irving v. Doctor’s Hosp. of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982). I suspect that the doctrine arose at that time because that is when hospitals first began spinning off their departments into separate corporations. Over the last twenty years, the apparent agency theory has not allowed the law to establish predictable, general rules of liability because a theory that requires a representation by the principal and reliance by the plaintiff is inherently case specific. Thus, after twenty years of precedent, if a hospital were sued by two different patients for two identical acts of malpractice occurring on the same day and committed by the same doctor in the radiology department, the hospital’s vicarious liability would be a fact question for resolution by two different juries. Because such liabibty is based on case-specific representations by the defendant and reliance by the plaintiff, the two juries would be free to decide that the hospital was vicariously liable for one act but not the other.

More than a century ago, Oliver WendeU Holmes theorized that trial by jury should be a practical way to obtain greater certainty in the law. Juries could take the “featureless generality” of the standards announced in negligence law and create narrower, more precise rules through a “process of specification.” Oliver Wendell Holmes, The Common Law 89-90 (1881). That process may have succeeded to some extent in other areas of tort law, but it has failed in the area of vicarious hability for the acts of medical professionals.

Two recent cases, which are admittedly distinguishable from today’s case, seem to favor a theory of nondelegable duty over that of apparent agency in the context of medical negligence. See Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D2027, — So.2d -, 2003 WL 22023474 (Fla. 1st DCA Aug.29, 2003); Carlisle v. Carnival Corp., 28 Fla. L. Weekly D1991, — So.2d -, 2003 WL 22014591 (Fla. 3d DCA Aug.27, 2003). This trend suggests that hospitals should be vicariously liable as a general rule for activities within the hospital where the patient cannot and does not reahstically have the ability to shop on the open market for another provider. Given modern marketing approaches in which hospitals aggressively advertise the quality and safety of the services provided within their hospitals, it is quite arguable that hospitals should have a nondelegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital. The patient does not usually have the option to pick among several independent contractors at the hospital and has little ability to negotiate and bargain in this market to select a preferred radiology department. The hospital, on the other hand, has great ability to assure that competent radiologists work within an independent radiology department and to bargain with those radiologists to provide adequate malpractice protections for their mutual customers. I suspect that medical economics would work better if the general rule placed general vicarious liability upon the hospital for these activities. Thus, I would consider adopting a theory of non-delegable duty, similar to the approach used in Shands, if it were not for the existing precedent that employs the theory of apparent agency.

      . The summary final judgment in favor of Sarasota Memorial was entered only as to one count of a two-count complaint filed against it. The partial final summary judgment was an appealable final order because the causes of action set forth in count one (the hospital’s vicarious liability for the alleged negligence of certain health care providers) and count two (the hospital’s spoliation of evidence) were distinct claims which were not interrelated under the facts of the present case. See, e.g., S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974).

      . In the record before this court, the abdominal scans taken of Mr. Roessler by the radiology department at Sarasota Memorial are sometimes referred to as CT (computerized tomographic) scans, and at other times are referred to as CAT (computerized axial tomographic) scans.

      . In the portion of its motion for summary judgment addressing Mr. Roessler's medical malpractice claim, Sarasota Memorial did not contest Mr. Roessler’s reliance or change of position based upon that reliance and, rather, asserted only that it did not represent that Dr. Lichtenstein acted as its agent. In this appeal, Sarasota Memorial suggests that Mr. Roessler’s claim should fail on the latter two elements required for a showing of apparent agency. It reasons that where Mr. Roessler never spoke to Dr. Lichtenstein, there was no reliance and since there was no reliance, there was no change in position on Mr. Roes-sler’s part.
      The crucial issue as to the latter two elements, however, is not what interaction transpired between Dr. Lichtenstein (the agent) and Mr. Roessler (the third party), but rather what representations were made by Sarasota Memorial (the principal) which would have led Mr. Roessler (the third party) to rely upon it to provide radiological services.
      We note that the Fifth District, addressing whether these latter elements had been established by the plaintiffs in the case before it, stated:
      In this case, it was shown without dispute that the Chmielewskis came to the ORMC [Orlando Regional Medical Center] emergency room because of ORMC’s name and reputation as a hospital and that Boleslaus [Chmielewski] allowed himself to be treated there. The injuries he suffered (if casually connected to the treatment he received) were clearly a "detriment.” These additional elements of reliance and detriment appear to us to be subsumed in the scenario of proof in this cause, justifying the trial court’s refusal to direct a verdict for ORMC.
      However, we note that the Restatement (Second) of Torts quoted above requires no separate proof of "reliance” and "detriment,” and further that illustration three of the comments to Restatement (Second) of Agency, section 267 (1958), also does not require these elements, in addition and apart from the initial representation....
      The fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient.

        Orlando Reg’l Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876, 879-80 (Fla. 5th DCA 1990) (citations omitted).

      . Apparent agency is also used to impose responsibility upon principals for claims that are not based on negligence theories. See Nat'l Indem. Co. v. Consol. Ins. Servs., 778 So.2d 404 (Fla. 4th DCA 2001) (holding liability not established for insurance broker under apparent agency).

      . Other jurisdictions have attempted to solve this problem by narrowing the doctrine of apparent agencies and establishing general rules that place liability primarily upon the independent contractor. For example, under Kentucky law the fact that a patient reads and signs an admission form containing an independent contractor clause regarding medical personnel is determinative on the issue of ostensible agency. Floyd v. Humana of Va., Inc., 787 S.W.2d 267, 270 (Ky.Ct.App.1989). Even if a patient is unconscious at the time of admission, if the hospital has taken action to notify the public about the status of physicians, an apparent agency is not created. Roberts v. Galen of Va., Inc., 111 F.3d 405, 413 (6th Cir.1997), rev’d on other grounds, Roberts v. Galen of Va., Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). In Kentucky, the test is not whether the patient read and signed the form containing the disclaimer; the test is whether the hospital took steps to notify the public about the status of the physicians.

      . See generally Restatement (Second) of Torts § 416 (1965); William L. Prosser, Handbook on the Law of Torts at 468 (4th ed.1971).


author: STRINGER, Judge.

text:
    Richard A. CONTE, Appellant/Cross-Appellee, v. Mary Beth CONTE, Appellee/Cross-Appellant.
    Nos. 2D02-4419, 2D03-556.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Joryn Jenkins of Joryn Jenkins & Associates, Tampa, for Appellant/Cross-Appel-lee.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appel-lee/Cross-Appellant.
   STRINGER, Judge.

In case number 2D02-4419, Richard A. Conte, the.Former Husband, filed an appeal seeking review of the final judgment on issues involving the minor child and child support. Mary Beth Conte, the Former Wife, cross-appealed the final judgment on issues involving child support. In case number 2D03-556, the Former Husband filed an appeal seeking review of the order awarding the Former Wife attorney’s fees and costs, and the Former Wife cross-appealed this same order. Because the trial court erred in failing to address the issue of outstanding temporary support in the final judgment in case number 2D02-4419, we reverse and remand for reconsideration of this issue. We affirm the remainder of the issues raised by both parties in both cases without comment.

During the course of the proceedings, the Former Wife had primary residential care of the parties’ five-year-old son. In September 2000, the parties entered into a mediation agreement requiring the Former Husband to pay the Former Wife $3000 per month in unallocated family support beginning on October 1, 2000. In July 2001, the court entered an order reducing the Former Husband’s support payment to $1500 per month. The Former Husband filed a motion for reduction or termination of temporary support in October 2001. In January 2002, the Former Wife filed a contempt motion seeking unpaid temporary support from August 2001. The court ordered that the two motions would be addressed at the final hearing.

At the July 2002 final hearing, the Former Wife testified that the Former Husband made his last support payment to her in August 2001. The Former Husband testified that he had too many other financial obligations to pay child support. The court agreed to rule on the temporary support issue in the final judgment, but the final judgment does not address temporary support or reserve jurisdiction for consideration of that issue.

“Nonpayment of temporary child support and alimony during the pendency of a dissolution action should be addressed at the final hearing so that the trial court may fix the amount of any prejudgment arrearage and, if necessary, make an appropriate adjustment in the distribution of assets and liabilities in the final judgment.” Sims v. Sims, 846 So.2d 1188, 1188 (Fla. 4th DCA 2003). Once a court enters a final judgment, temporary support orders are no longer enforceable unless a claim for arrearages is addressed in the final judgment or the court reserves jurisdiction to consider the claim. Id. at 1188-89; Scott v. Scott, 643 So.2d 1124, 1127 (Fla. 4th DCA 1994). Accordingly, we reverse and remand with directions for the trial court to address the issue of nonpayment of temporary support in the final judgment. The final judgment in case number 2D02-4419 and the order awarding the Former Wife attorney’s fees in case number 2D03-556 are otherwise affirmed.

Reversed and remanded.

FULMER and DAVIS, JJ., concur.


author: VILLANTI, Judge.

text:
    Dennis Dale GREMMELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4673.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Following his conviction for resisting arrest with violence, a third-degree felony, see § 843.01, Fla. Stat. (2001), Dennis Dale Gremmels was sentenced to one year in county jail followed by five years’ probation. As the State properly concedes, because the combined sentence exceeds the five-year statutory maximum, the sentence was illegal. See § 775.082, Fla. Stat. (2001); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Baker v. State, 652 So.2d 431 (Fla. 2d DCA 1995). However, the State argues that this court need only remand with directions for the trial court to impose a Villery sentence, as the trial court’s intent was to make the county jail sentence a special condition of the five years’ probation. See Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107 (Fla.1980). We decline to do so for two reasons.

First, the trial court declined the opportunity to impose a Villery sentence when Gremmels filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B). Second, the record is clear that the trial court intended to impose the exact illegal sentence being appealed. We are not free to order a specific corrected sentence that is inconsistent with the trial court’s intent simply because the corrected sentence would be legal. Cf. Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993) (ordering correction of orally pronounced sentence to comport with intent, clearly established in record, of trial court and counsel for the State and defendant). We therefore reverse and remand for imposition of a lawful sentence.

Reversed and remanded.

SALCINES and DAVIS, JJ., concur.


author: CASANUEVA, Judge.

text:
    Jerry Glynn MOORE, Appellant, v. Leslie Anne MOORE, Appellee.
    No. 2D02-5751.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Jean Marie Henne, Winter Haven, for Appellee.
   CASANUEVA, Judge.

Jerry Glynn Moore, the Husband, appeals the final judgment of dissolution of marriage that awarded Leslie Anne Moore, the Wife, $750 per month permanent alimony and made equitable distribution of the marital assets and liabilities. The Husband contends that the trial court erred in making the permanent alimony award by considering a future or anticipated event and by using the wrong income figure from the Wife’s financial affidavits. We disagree and affirm the trial court’s ruling.

The Moores were married 9.7 years. At the time of trial, the Husband was 43 years old and the Wife was 32, with no children from the marriage. Two years prior to being married, the Wife was diagnosed with a debilitating disorder, Crohn’s disease. Her condition worsened during the marriage, and she suffered periods of disability and inability to work. Because of her Crohn’s disease, she had a number of surgeries and other treatments. However, at the time of trial the Wife was in remission, the duration of which could not be predicted "with any certainty. Despite her illness, she was employed full-time as an administrative assistant at the time of the dissolution.

In making its determination to award the Wife permanent periodic alimony, the trial court found that the Wife had a gross income of $1542 per month, $533 monthly disability benefits scheduled to be suspended if she continued employment for roughly another month, and expenses of $2281 per month. The Husband was employed as a lineman for the power company. His gross monthly income was $6107 and net income was $8991. The trial court assessed the parties’ relative financial resources and found a permanent alimony award of $750 per month reasonable. As a factor in making this award, the trial court said that it gave “major consideration to the Wife’s debilitating illness and the testimony that she will undoubtedly suffer periods of remission and exacerbation of her illness which will, more than likely, result in her inability to fully support herself.”

The Husband argues that the trial court’s consideration of any potential progression of the disease violated the “well-settled rule” that the court could not consider future or anticipated events because of their speculative nature. See Mallard v. Mallard, 771 So.2d 1138, 1141 (Fla.2000). Whether the trial court violated this “future event” rule of law is a legal issue and this court’s review is de novo. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). As for the trial court’s decision to award permanent alimony and the amount, this court’s review is for abuse of discretion. See Lowman v. Lowman, 724 So.2d 648, 649 (Fla. 2d DCA 1999); Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992).

It is clear that the trial court made its decision to award permanent alimony based on the statutory framework of section 61.08, Florida Statutes (2001), and not upon the occurrence of a future event. The court enumerated the factors and associated factual findings it considered, including the duration of the marriage, the couple’s lifestyle, each party’s physical and emotional health, and their respective financial resources, among others. Although the court’s reference to the progressive nature of the Wife’s Crohn’s disease may have been misleading, her present medical condition was appropriately considered in accordance with section 61.08. We hold that substantial, competent evidence demonstrated the Wife’s needs and the Husband’s ability to pay and the trial court did not abuse its discretion in making the award of permanent periodic alimony.

Next, the Husband contends that the trial court used an erroneous income figure for the Wife in its calculation of her projected earnings deficiency. The record contained substantial, competent evidence supporting use of the $1542 gross income figure. While the record also contained evidence of the Wife’s higher income figure, we will not substitute our judgment for that of the trier of fact. Therefore, we do not find the trial court abused its discretion in its determination of the monthly award of $750.

Affirmed.

SALCINES and WALLACE, JJ., concur.


text:
    Patricia A. FARLEY, Appellant, v. Emanuel Dean FARLEY, Appellee.
    No. 2D02-4940.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      M. Katherine Ranters of M. Katherine Rainers, P.A., Dunedin, for Appellant.
    Carl T. Boake of the Law Offices of Carl T. Boake, P.A., St. Petersburg, for Appel-lee.
   STRINGER, Judge.

Patricia Farley, the Former Wife, seeks, review of the amended final judgment of dissolution of marriage in which, on remand from this court, the trial court awarded the Former Wife $2350 per month permanent periodic alimony. We reverse in part and remand for the trial court to enter an award of alimony in the amount of $3350.

The trial court entered a final judgment of dissolution of marriage on November 8, 2000. The parties had been married for twenty-four years and had a minor child aged seventeen at the date of filing the petition for dissolution of marriage. The Former Wife did not work during the marriage based on an agreement between the parties, and the Former Husband, Emanuel Farley, was the sole wage earner. After approving the parties’ partial mediation agreement that addressed equitable distribution, the trial court awarded the Former Wife $2350 per month permanent periodic alimony. To support its award, the trial court made the following findings: (1) income should be imputed to the Former Wife in the. amount of $1250 per month; (2) the Former Wife’s “baseline expenses” were $3600 per month; and (3) the Former Husband had the ability to pay, and the Former Wife had the need for, permanent periodic alimony in the amount of $2350 per month.

■ The Former Wife appealed the trial court’s award of alimony, and this court reversed and remanded “for entry of a final judgment of dissolution of marriage containing the required statutory findings to support the award of alimony and which addresses the tax implications of the alimony award.” Farley v. Farley, 800 So.2d 710, 712 (Fla. 2d DCA 2001); see § 61.08(1), (2), Fla. Stat. (1999). This court further stated that the final judgment of dissolution did not address the standard of living the parties enjoyed during the marriage, did not state the Former Husband’s income, and did not consider the Former Wife’s postdissolution expenses. Farley, 800 So.2d at 712.

On remand, the trial court entered an amended final judgment setting forth findings of fact as to each of the section 61.08 statutory elements. The trial court found in part that the Former Wife had sustained herself throughout the three years of litigation on $2400 temporary alimony and $1200 child support; the Former Wife’s “total needs are $8600 per month, including tax liability” on her income and alimony; the Former Wife has the ability to contribute to her own needs in the amount of $1250 per month; and the Former Husband’s income was $100,848 in 1995, $124,505 in 1996, $168,071 in 1997, and $154,689 in 1998. Finally, the trial court again found that the Former Husband has the ability to pay and that the Former Wife has the need for $2350 permanent periodic alimony per month.

The primary criteria in awarding alimony are the needs of the spouse and the ability of the other spouse to meet those needs given the standard of living established during the marriage. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). In determining the appropriate amount of alimony, the trial court shall consider tax implications when such evidence is presented. Lutgert v. Lutgert, 362 So.2d 58, 62 (Fla. 2d DCA 1978); Miller v. Miller, 625 So.2d 1320, 1321 (Fla. 5th DCA 1993). The trial court’s award of alimony is subject to an abuse of discretion standard of review, Canakaris, 382 So.2d 1197; and where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award. Wendroff v. Wendroff 614 So.2d 590 (Fla. 1st DCA 1993).

The trial court’s finding that the Former Wife’s total needs are $3600 per month, including tax liability on her income and alimony, is not supported by the record. In its amended final judgment, the trial court summarily stated that the Former Wife’s total needs are $3600 per month, “including the tax liability she will incur,” making no adjustments on remand to reflect the evidence presented regarding tax implications. The trial court found the Former Wife’s needs were met by $3600 per month because she was able to sustain herself during litigation on temporary support in the amount of $3600. However, the Former Husband’s CPA testified that the temporary support was set up in such a way that the Former Wife incurred no tax liability by virtue of jointly filed tax returns. Furthermore, the trial court’s calculation of needs does not include postdissolution expenses that the Former Wife will incur in the form of health insurance premiums of approximately $200 per month.

Accordingly, we reverse the permanent periodic alimony award of $2350 per month and direct the trial court on remand to increase the alimony award. While it is normally not the function of this court to direct the trial judge to enter a specific amount of alimony award, we believe a specific direction is appropriate in this case which, now on its second appeal, has been pending for three years. See, e.g., Lutgert, 362 So.2d at 63. Therefore, based on the record evidence, we have determined the appropriate amount of alimony to be $3350 per month, considering tax implications, the Former Wife’s health insurance premiums, and $1250 per month income imputed to the Former Wife. Such an award is well within the ability of the Former Husband to pay based on the trial court’s findings as to the Former Husband’s income. The adjustment in alimony should be applied retroactively, as of October 12, 2000, the date of the initial determination of entitlement to alimony. See Olds v. Olds, 584 So.2d 646 (Fla. 2d DCA 1991). In all other respects, the amended final judgment of dissolution is affirmed.

Affirmed in part, reversed in part, and remanded.

FULMER and DAVIS, JJ., Concur.