text:
    Robert MICHNAL, Appellant, v. PALM COAST DEVELOPMENT, INC., Appellee.
    No. 4D01-3118.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Rehearing Denied May 7, 2003.

      Jack J. Aiello and Gregor J. Schwin-ghammer, Jr., of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    Tim B. Wright, William R. Ponsoldt, Jr., of Wright, Ponsoldt & Lozeau, Stuart, and Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellee.
   POLEN, C.J.

Appellant Robert Michnal timely appeals a final judgment entered in favor of Palm Coast Development on its action for breach of a construction contract and foreclosure of a hen. Palm Coast was awarded its attorneys’ fees below, which Michnal also appeals. We affirm the lien foreclosure, reverse the breach of contract claim in part for a remittitur, and reverse the attorneys’ fees award in part.

FACTUAL BACKGROUND

In the spring of 1996, Michnal began to seek bids from several builders for the construction of his “dream home” on a piece of property located in Sailfish Point. Palm Coast, a relatively young construction company, came in as the low bid at $2,865,000. Michnal told them they needed to lower the cost. Palm Coast proceeded to revise the plans for the house and came up with a number of cost-saving ideas, including a suggestion to change the house’s support structure from an Epicore-composite system to a wood floor truss system. Michnal and Palm Coast ultimately entered into a written contract on December 4, 1996, whereby Palm Coast would build the house for $2,075,000. Although the actual blueprints for the house had not been revised, the contract included an addendum which provided the home would be built with a wood floor truss system, and not the Epicore system (as provided in the blueprints).

Construction commenced in early 1997. Aside from a temporary halt caused by a disagreement with a neighbor, construction progressed through late spring of 1997. Specifically, Palm Coast had completed the pilings, the laying of the slab, and had completed the structural work for the first floor. Palm Coast was now ready to bid out the truss system; although the bid price had reflected the use of a wood truss system, the original design plans, which contained the Epicore system, had never been altered. Palm Coast contacted Michnal’s original architect and engineer and asked if they would design a wood floor truss system to replace the originally designed Epicore system. They refused. Palm Coast then contacted an independent structural engineer to look at the wood truss proposal on a preliminary basis. This engineer opined a wood truss was doable for this structure, and sent a proposal to do the necessary design work for $2,300, provided the original engineer and architect would sign releases. Palm Coast Vice President Bob McNally then forwarded the independent engineer’s proposal, and his request for releases, to Michnal in a letter dated June 6, 1997. The original engineer and architect agreed to grant a release to use and adapt their plans provided Michnal would grant them a plenary release from any liability connected with the home. Michnal refused. Then, on June 27, 1997, the original architect sent Palm Coast a letter which provided since Michnal had refused to grant the releases, they would not allow the use of their drawings to redesign the structure. Palm Coast now realized they would not be able to build the home with the wood truss system and they would have to revert to using the originally designed Epicore system. Since the original bid price had reflected usage of the wood truss system, they would have to re-bid all work related to the truss.

Meanwhile, Jack Behrens, Palm Coast’s qualifying agent, had parted ways with Palm Coast on June 6, 1997. Palm Coast duly notified Michnal of Behrens’s resignation in a letter dated June 9.

July 10, 1997, Bob McNally held a meeting with Michnal. A number of issues regarding the construction of the house were discussed, including the need to switch back to the Epicore support system. At trial, the two men provided conflicting accounts of what had been discussed, and agreed upon, relative to this issue. Mich-nal testified McNally had represented the cost of the Epicore system should be the same. McNally testified he had quoted Michnal an estimated price increase of $6,000-$7,000 for reverting back to the Epicore system, but that that figure was only an estimate since the final bids were still pending.

Construction was ground to a halt by the outstanding truss issue; the last date Palm Coast performed physical construction work on the premises was July 16, 1997. Then, on July 21, McNally faxed Michnal a letter outlining the Epicore cost breakdown, as a follow-up to their July 10 meeting. This letter stated the extra cost for reverting back to the Epicore system totaled $30,473.74. The letter requested a response as soon as possible, so that Palm Coast would be able to take advantage of the Epicore contractor’s schedule. Mich-nal was not happy. Though he had tendered a check in the amount of $59,304.60 as partial payment, he stopped payment after receiving the July 21 fax. He also orally advised Palm Coast of the termination and sent a letter to McNally on July 22, which provided the July 21 fax ran contrary to assertions made at the July 10 meeting and Palm Coast was to cease all activity on the job. Thereafter, Palm Coast returned to the job site to remove all of its materials and equipment.

Attempts to peacefully resolve the matter failed. Michnal initially offered to settle up any amounts owed for work actually done, yet Palm Coast maintained it was entitled to full profits on the job. Ultimately, on October 17, 1997, Palm Coast filed a construction lien against Michnal in the amount of $59,304.60. The lien provided Palm Coast had first furnished services to Michnal on January 23, 1997, and the final furnishing of services had occurred on July 23, 1997. The lien was not satisfied and litigation ensued.

Palm Coast filed dual causes of action for breach of contract and foreclosure of a construction lien. Michnal counterclaimed that Palm Coast had breached the contract, alleging defective construction. The parties agreed the matter would be bifurcated: a jury would hear the breach of contract cross-claims and the construction lien claim would later be heard in a bench trial. Michnal subsequently moved for summary judgment on Palm Coast’s claim, asserting Palm Coast could not recover on either claim since it did not have a qualifying agent when the contract was terminated, since Behrens, Palm Coast’s sole qualifier, had left Palm Coast back on June 6, 1997. See § 489.119(3)(a), Fla. Stat. (1997). This motion was denied; the trial court found section 489.128 salvaged the legality and enforceability of the contract between Michnal and Palm Coast up to the date of the termination, regardless of Palm Coast’s lack of a qualifying agent.

THE TRIALS

The jury trial on the breach of contract claims commenced in July of 2000. The court had previously ruled Palm Cpast could not seek lost profits for the entire job, only compensation for the work it had actually done. The jury found Michnal had breached the contract by wrongfully terminating Palm Coast, and awarded Palm Coast damages of $80,654.40. The jury found against Michnal on his cross-claim. Michnal moved for a directed verdict and new trial, alleging, inter alia, the damages awarded by the jury were excessive and contrary to the weight of the evidence. Michnal’s motions relating to the excessive damages were denied.

Then, the bench trial on the lien claim was held in October of 2000. The majority of the trial focused on whether or not Palm Coast’s lien had been timely filed. § 713.08(5), Fla. Stat. (2000)(lien must be filed within 90 days of “final furnishing” of labor, services, or materials). Since Florida’s lien law only provides a 90 day window within which to file a lien, for Palm Coast’s lien, filed October 17, 1997, to be timely, its “final furnishing” had to have occurred on or after July 19, 1997. Mich-nal raised two arguments, one legal and one factual, arguing Palm Coast’s lien had not been timely filed. Legally, Michnal contended Palm Coast could not furnish labor, sendees or materials within the 90 day window, since its sole qualifier, Beh-rens, had undisputedly departed before that date. Factually, Michnal contended no labor, services, or materials had been furnished within the 90 day window, where the last date physical construction occurred on the property had been July 16, 1997. Consistent with its previous ruling on Michnal’s summary judgment, the trial court found the legality of Palm Coast’s lien was salvaged by s. 489.128. The court also found the lien was timely filed within the meaning of s. 713.08(5). Since Palm Coast’s lien claim was held to be enforceable, Palm Coast was deemed the prevailing party for purposes of attorneys’ fees under chapter 713.

Michnal subsequently filed a motion for reconsideration, arguing the testimony established the lien had not been timely filed. A hearing was then held on this motion, where the trial court affirmed its earlier rulings, yet this time with more specificity, finding two specific activities, the July 21 fax and Palm Coast’s post-termination retrieval of its equipment, constituted “final furnishings” under s. 713.08(5).

A hearing on attorneys’ fees was held in April of 2001. The trial court’s determination of the number of hours billed and the rate to be applied has not been challenged on appeal. However, the parties argued below, and continue to do so on appeal, over the applicability of a multiplier. Specifically, Palm Coast sought a multiplier of 2.5, whereas Michnal requested a negative multiplier of .5. The trial court ruled a multiplier was appropriate and applied a multiplier of 1.75 to the lodestar, resulting in a fee award of $317,128.19.

This case appears to be an example of the proverbial tail wagging the dog. Although similar (in this case identical) damages are recoverable in a breach of contract or foreclosure of a construction lien claim, here the lien has taken on paramount importance, because the lien, and only the lien, allows for the recovery of prevailing party attorneys’ fees. As such, we have two parties fighting over a $317,128.19 fee award, by way of a lien award totaling $58,952.45 after set-offs. But such is our system. Notwithstanding, this case presents novel issues, both legal and factual, regarding Florida’s Construction Lien Law, chapter 713. The following analysis is highly fact specific, and this court’s ultimate holdings should be narrowly construed.

LEGAL ABILITY TO PURSUE LIEN

Under Florida law, a construction company must apply for a certificate of authority (i.e., a license) through a qualifying agent. § 489.119(2), Fla. Stat. (1997). Where a construction company loses its sole qualifier, as Palm Coast did when Behrens resigned, it may not engage in contracting until another qualifying agent is employed unless the company has been granted a temporary nonrenewable certificate. § 489.119(3)(a), Fla. Stat. (1997). Although Palm Coast hired a new individual to replace Behrens in July of 1997, that individual’s license was inactive at the time, and was not reactivated until September of 1997. Palm Coast had no qualifying agent after Behrens’ departure, nor was it ever granted a temporary certificate. Palm Coast was not licensed to engage in contracting after July 17, 1997 at the latest. If Palm Coast engaged in work as a contractor after July 17, 1997, a factual occurrence it must indulge in in order for its construction lien to have been timely filed, it could have been subject to disciplinary sanctions by the DPR. See § 489.129(1)®, Fla. Stat. (1997). However, failure to maintain its license (through a qualifying agent) does not render Palm Coast’s lien on Michnal’s home unenforceable.

The controlling version of section 489.128, Florida Statutes (1999), provides:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply. (Emphasis supplied.)

It is undisputed Palm Coast reinstated its license before it filed the instant lien. As such, the enforceability of Palm Coast’s contract with Michnal was salvaged. See also Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537 (Fla. 2d DCA 2000)(finding contractor’s attempt to cure past licensing defect by filing of fictitious name registration after termination of contract, but before filing of lien, was ineffectual under section 489.128, since the contractor failed to obtain or reinstate its license). Since the contract was enforceable, and Palm Coast was licensed at the time it filed the lien, the lien was legally enforceable, provided the additional requirements (e.g., timeliness) were met. See Viking Communications Corp. v. Peeler Const. Co., 367 So.2d 737 (Fla. 4th DCA 1979)(since a contract is essential to any mechanic’s [contractor’s] lien, the court must look first to the enforceability of the basic contractual obligation); § 713.02(7), Fla. Stat. (1997).

TIMELINESS — “FINAL FURNISHING”

Still, Michnal contends even if Palm Coast’s lien could have been legally enforceable, the filing-of the lien was untimely, and hence the lien is unenforceable. See § 713.08(5), Fla. Stat. (1997); Stunkel v. Gazebo Landscaping Design, 660 So.2d 623, 625-26 (Fla.1995)(lien law is a creature of statute and must be strictly construed; strict adherence to the lien law’s time requirements are necessary since contracting parties need certainty about when time periods for notification begin). This issue, when the “final furnishing” of labor, services, or materials has occurred, is one to be resolved by the trier of fact. See Aronson v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980); Wolford v. Sapp, 448 So.2d 1113 (Fla. 1st DCA 1984). The test to be applied in determining whether particular work constitutes a “final furnishing” under s. 713.08(5) is whether the work was done in good faith, within a reasonable time, in pursuance of the terms of the contract, and whether it was necessary to a “finished job.” Aronson, 386 So.2d at 823. Applying the Aronson test, we concur with the trial court’s determination that Palm Coast’s “final furnishing” occurred within the 90' day window, i.e., after July 19, 1997.

There are no steadfast rules to apply in making this determination; rather courts are to apply the Aronson test, while recognizing the determination whether particular services performed are within the contemplation of the construction lien law for purposes of the limitation period will depend upon the circumstances of each particular case. In this vein, a sister court has noted, upon its review of the pertinent case law, the salient question seems to be whether the challenged labor, services, or materials were related directly to the property, or were merely incidental to it. See Robert M. Swedroe, Architect/Planners, A.I.A, P.A. v. First Am. Inv. Corp., 565 So.2d 349, 353 (Fla. 1st DCA 1990) (citations omitted). On these facts, we find the July 21 fax from Palm Coast to Michnal constitutes the “furnishing” of a “service” for purposes of the limitation period. We hold this service rendered by Palm Coast, an attempt by the contractor to resolve the outstanding truss issues under the facts of this case, satisfies the four-prongs of the Aronson test. First, we find the July 21 letter was prepared and transmitted in good faith; per the contract and addendum, switching to the Epicore system would constitute a change order, a change which would have to be accepted in writing by Michnal before Palm Coast could proceed. We note the July 21 fax was sent before Michnal terminated the contract, and there is no reason to presume this fax was anything but a genuine attempt to resolve the outstanding truss issue. Second, we are convinced the provision of this service was done within a reasonable time, where the letter was faxed shortly after the parties’ July 10 meeting. Third, we find this service was provided in pursuance of the terms of the contract. As discussed, supra, Palm Coast could not make a change without Michnal’s written authorization. Furthermore, resolution of the truss issue was needed before Palm Coast could proceed with the construction of the second floor. Similarly, this service was necessary to a “finished job” — construction of a two-story residence. Unlike the services rendered in Swedroe, this service was directly related to the improvement of the property, i.e., construction of the second story of a two-story home. Cf. Swedroe, 565 So.2d at 353 (architect sought a lien for services rendered as the property owner’s expert witness in arbitration proceedings). Since we are affirming the timeliness of the lien based on the July 21 fax, we need not address whether or not Palm Coast’s clean-up and retrieval activities, on these facts, constituted a “final furnishing” for lien law purposes. The lien foreclosure in Palm Coast’s favor, and the concomitant finding that Palm Coast was the prevailing party for attorneys’ fees purposes, is thus affirmed.

We agree with Michnal’s contention a remittitur should have been entered on the jury’s award of damages on the breach of contract claim. No evidence was presented below of damages above and beyond the final bill submitted by Palm Coast for $59,304.60. Accordingly, we reverse for the trial court to enter an order of remittitur. We find Michnal’s challenge of certain evidentiary rulings by the trial court in the jury trial unconvincing.

ATTORNEYS FEE MULTIPLIER

We also agree with Michnal’s contention the final judgment on attorneys’ fees must be reversed. In pondering the applicability of a multiplier in this case, the trial judge stated:

An issue is whether or not a case that, when filed, does not merit a multiplier can become one that does during the progress of the case. The Court determines that it can, that this case did, and in this case that is “fair.” If, as in this case, a party elects a “scorched earth” defense, raises some defenses with little or no merit, over does discovery and relitigates issues, without a multiplier a plaintiff could be economically overwhelmed. .. .Without a risk reward mechanism, faced with the defense in this case, plaintiff would have to surrender. The Court finds that a multiplier is appropriate so that attorneys may continue in a meritorious case that has more risk and difficulty as a result of the defense. The Court has found no law that allows or prohibits the Court from doing the following. The Court determines that a multiplier is applicable....

With all due respect to the trial court, we find all multiplier jurisprudence prohibits a trial court from doing what it did in the instant case.

As our Supreme Court laid out in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990), trial courts are to consider the following factors in determining whether a multiplier should be applied to a fee award: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985) are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and the client. Further expounding on this issue, the Supreme Court has noted a primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not afford it. See Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 (Fla.1999)(“The importance of this policy consideration is highlighted by the fact that the very first factor listed in Quanstrom ... is ‘whether the relevant market requires a contingency fee multiplier to obtain competent counsel.’ ”). Multipliers are intended to level the playing field, to provide litigants, who may otherwise lack the resources, to obtain competent counsel, as a means of access to the legal system. As discussed in Quan-strom and its progeny, the appropriate time frame for determining whether a multiplier is “necessary” is when the party is seeking the employ of counsel. See, e.g., Simmons v. Royal Floral Distributors, Inc., 724 So.2d 99 (Fla. 4th DCA 1998)(there must be evidence that a contingent fee agreement was necessary in order for the prevailing party to have obtained competent counsel if a multiplier is to be imposed on the nonprevailing party).

Here, the trial court found a multiplier was not warranted at the time the Palm Coast’s case was filed, an event which occurred after Palm Coast had already obtained counsel, the same counsel that followed this case through to its completion. There is no precedent for using a multiplier as an incentive for a party’s counsel to “stay on a ease.” While we address only the instant case, we recognize allowing such could set a dangerous precedent; one can imagine a whole new arena of fee litigation, attorneys arguing they are entitled to a multiplied fee award in practically every case that is litigated to the end, asserting the case “became” harder than anticipated, and the incentive of a multiplier was needed to stay on the case. This is certainly not the case for expanding multiplier jurisprudence, and awarding a multiplier on this basis. Both sides were represented by well-known, and well-respected counsel immediately after the dispute arose; we are fairly certain each side knew what they were up against at the outset of the case. While as a general rule, both parties in a lawsuit share responsibility for protracted litigation, we note a number of the issues in the instant case, which Mich-nal vigorously defended, were novel and complex, and had been Palm Coast’s own creation (e.g., lack of qualifying agent, timeliness of hen). Since the findings in the final judgment on attorneys’ fees do not support the application of a multiplier, we hold the application of a multiplier was inappropriate, and reverse for entry of a non-multiplied fee award. See Speer v. Mason, 769 So.2d 1102 (Fla. 4th DCA 2000).

CONCLUSION

In sum, the trial court’s denial of the remittitur on the jury award for breach damages is reversed, the lien foreclosure in Palm Coast’s favor is affirmed and the attendant prevailing party attorneys’ fee award is affirmed in part, but the trial court’s application of a contingency fee multiplier is reversed. Palm Coast, as the prevailing party on the lien claim on appeal, is entitled to its appellate attorneys’ fees. § 713.29, Fla. Stat. (2001). Michnal’s prayer for appellate attorneys’ fees is denied.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

GUNTHER and MAY, JJ., concur.

      . This statutory provision was amended in 2000, removing the curative language on which the trial court had relied in finding the enforceability of the contract had been salvaged. See Ch.2000-372, § 35, Laws of Fla., eff. July 1, 2000. We find the trial court properly applied the pre-2000 version of this statute, since the amendment constitutes a substantive change of the law, not to be applied retroactively. See The Palms v. Magil Constr. Fla., Inc., 785 So.2d 597 (Fla. 3d DCA 2001).

      . Although Behrens testified he had parted ways with Palm Coast on June 6, 1997, Palm Coast testified Behrens had let them "hang his license” until July 17, 1997. Department of Professional Regulation ("DPR") records reflected Behrens’ license at Palm Coast was classified as active until July 17, 1997. Though this issue has no bearing on this court’s ultimate ruling, we note all evidence before this court suggests Behrens performed no supervisory functions on behalf of Palm Coast after his resignation on June 6. Any attempt by Palm Coast to "hang his license” after this date seems to run directly contrary to the purpose of chapter 489, and we are mindful sanctions may be imposed by the DPR against parties that enter into improper qualifier arrangements. See 489.129(1)(e), Fla. Stat. (1997). That, however, did not affect Palm Coast's ability to seek payment under the mechanic's lien laws, pursuant to the "salvaging statute,” § 489.128, Fla. Stat. (1999), discussed, infra.

      . See FN2. This fact served as the basis for the trial court's ruling that Palm Coast could not sue for lost profits on the job on its breach claim; Palm Coast could not recover for profits for work it would not have been licensed to undertake. However, the trial court found Palm Coast’s lien claim, as a whole, was salvaged by s. 489.128.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark Lee DACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-481.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Rehearing Denied April 30, 2003.
    Mark Lee DaCosta, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of relief, without prejudice to appellant presenting his gain-time challenge to the Department of Corrections. If appellant is not satisfied with the Department of Correction’s ruling, then he can file a petition for writ of mandamus with the appropriate circuit court. See Taylor v. State, 780 So.2d 955 (Fla. 4th DCA 2001); Black v. State, 771 So.2d 1281, 1232 (Fla. 4th DCA 2000).

FARMER, KLEIN, and GROSS, JJ., concur.


text:
    D.S. and G.S., Appellants, v. S.A.W., Appellee.
    No. 1D02-1937.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Rehearing Denied April 22, 2003.
    Mark R. Miller of Ford, Miller & Warner, P.A., Jacksonville; and Ruth Ann He-pler of The Hepler Law Firm, Jacksonville, Attorneys for Appellants.
    Dale G. Westling, Sr., Jacksonville, Attorney for Appellee.
   PER CURIAM.

AFFIRMED. O'Bryan v. Doe (In re Adoption of Baby James Doe), 572 So.2d 986 (Fla. 1st DCA 1990); In the Interest of 548 So.2d 906 (Fla. 1st DCA 1989).

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: BARFIELD, J. ERVIN, J.,

text:
    B.M., paternal grandmother of D.M. and N.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-0880.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    Rehearing Denied April 22, 2003.

      Connie Renee Clay, Jacksonville, for Appellant.
    Donna Houghton Thames, Assistant General Counsel, Department of Children and Families, Jacksonville, for Appellee.
   BARFIELD, J.

B.M., the legal guardian of two minor children, appeals from a final order of dependency. We affirm all issues, commenting only on the contention that the trial judge erred by not informing B.M. of available services as required by section 39.502(15), Florida Statutes (2000).

B.M. is the legal guardian of D.M. and N.M. As such she is not a party as defined in section 39.01(51), but a participant as defined in section 39.01(50). It does not appear the legislature has extended the notice requirement of section 39.502(15) to participants such as B.M. Were we to massage other provisions of chapter 39, such as sections 39.01(33) and (49), to suggest that participants should have been included in section 39.502(15) and, therefore, were intended to be included, we would still find no reversible error.

This issue was not presented to the trial judge and, therefore, was not preserved for appellate review. As B.D. is not a parent of these children, there is no fundamental liberty interest of a parent involved in these proceedings. Even if it were determined that appellant is entitled to review on this issue, and that the trial judge should have advised appellant of available advocacy services, such omission would be harmless in this case. The court appointed counsel for appellant. She was under psychiatric care. She had been hospitalized under the Baker Act. She was found physically unable to care for the children. Appellant’s custodial rights were not terminated, but were suspended for a period of time during which she is to undertake a plan which would restore the children to her custodial care.

AFFIRMED.

WOLF, J., concurs; ERVIN, J., concurs and dissents with written opinion.

ERVIN, J.,

concurring and dissenting.

I concur with all aspects of the majority’s opinion except that which affirms the trial court’s failure to inform B.M., a person identified as having a mental illness, of available advocacy services as required by section 39.502(15), Florida Statutes (2000). As to it, I would reverse the dependency adjudication and remand the case for further proceedings.

Section 39.502(15) provides:

A party who is identified as a person with mental illness or with a developmental disability must be informed by the court of the availability of advocacy services through the department, the Association for Retarded Citizens, or other appropriate mental health or developmental disability advocacy groups and encouraged to seek such services.

The record is clear that B.M. was not advised of her advocacy rights, despite the fact that the Department of Children and Families, appellee, had alleged in its dependency petition that B.M. “suffers from depression.” Appellee, however, replies that B.M., as the children’s legal guardian, is not a “party,” which is defined in section 39.01(51), Florida Statutes (2000), as “the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program ... and the child.” The Department points out that a legal custodian, such as B.M., is included in the definition of “participant” under section 39.01(50), and is thereby specifically excluded from party status. Thus, from an examination of only subsections (50) and (51), section 39.502(15) does not appear to obligate a trial court to inform a legal custodian defending a dependency petition of available advocacy services. I would decline, however, the Department’s invitation to read chapter 39 so narrowly.

I note that other provisions of the chapter, notably subsections 39.01(33) and 39.01(49), which define “legal custody” and “parent,” respectively, make the following identical statement:

For purposes of this chapter only, when the phrase “parent or legal custodian” is used, it refers to rights or responsibilities of the parent and, only if there is no living parent with intact parental rights, to the rights or responsibilities of the legal custodian who has assumed the role of parent.

Accordingly, the above statutes clearly imply that a legal custodian stands in the shoes of the parent if no parent is involved.

My conclusion in this regard is reinforced by numerous references in the statutes to the terms “parent or legal custodian” in the specific context of dependency proceedings. See § 39.401(1)(b)(2) & (3), Fla. Stat. (2000). Additionally, section 39.01(14), Florida Statutes (2000), defines a “child who has been found to be dependent” as one who has been abandoned, abused or neglected by its “parent or parents or legal guardian.” In my judgment, it is apparent from my review of the pertinent statutes and the Florida Rules of Juvenile Procedure that the full panoply of rights available to a parent under section 39.502, relating to notice, process and service in dependency proceedings, must similarly be accorded a legal custodian who stands in the shoes of a parent.

In this case there is no living parent having intact parental rights, because the mother, although alive, surrendered legal custody to B.M. in 1991, and does not have contact with the children. I therefore conclude that section 39.502(15), when read in pari materia with sections 39.01 and 39.401, should be construed as requiring the trial court to have informed B.M., as legal custodian, of the advocacy services available to her, based upon the allegation in the petition that she suffered from depression. By not being afforded her procedural due process right to such benefit, appellant was deprived of the same fundamental liberty interest as that of a parent to the care and custody of his or her child. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991) (noting that parental rights constitute a fundamental liberty interest).

      . See, e.g., Fla. R. Juv. P. 8.245(b)(1) (granting discovery rights to legal custodians when the child has no living parent with intact parental rights).

        . The children’s biological father is deceased.


text:
    Daniel M. EDELMAN, Appellant, v. ESTATE OF Allen Kent BREED, Appellee.
    No. 5D02-2824.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2003.
    Rehearing Denied April 14, 2003.
    Joseph A. Frein of Law Offices of Joseph A. Frein, Orlando, and Charles P. Pillans, III of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, for Appellant.
    Alan B. Taylor and Richard C. Swank of Litchford & Christopher, P.A., Orlando, and Vernon Swartsel of Carlton Fields, P.A., Orlando, for Appellees.
   PER CURIAM.

AFFIRMED. See Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 217 (1940).

THOMPSON, C.J., ORFINGER, J., and COBB, W.H., Senior Judge, concur.


author: WARNER, J.

text:
    Robert ARGUELLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-1602.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Rehearing Denied May 8, 2003.

      Carey Haughwout, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.
    Charle J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

WARNER, J.

Appellant contests his conviction and sentence for trafficking in cocaine and conspiracy to traffic in cocaine, raising five issues on appeal. His main contention concerns the trial court’s admission of alleged hearsay statements to his co-defendant, Jose Gajate. Because some of the statements constituted non-hearsay verbal acts and those statements, when combined with the other non-hearsay evidence, sufficiently established appellant’s participation in a conspiracy to traffic in cocaine, the trial court did not err in admitting Gajate’s other co-conspirator hearsay statements. We thus affirm as to that issue and all other issues raised.

While working as a confidential informant (“Cl”), Harold Gomez was paged by an old acquaintance, Gajate, who inquired about buying a kilo of cocaine with the possibility of buying nine more. Gomez advised his controlling agent of the page, and they set up a meeting between Gomez and Gajate the next day to conduct the sale.

Gajate and Gomez met as planned in a parking lot. They talked about the quantity, price, and location of the deal. Gajate told Gomez that the money belonged to his “buddy” who would accompany him later when the transaction was conducted. Once Gajate purchased the first kilo, he said the “other people” would then have to approve the purchase of the other nine kilos. During their conversation, Gajate’s “buddy” paged him, and Gajate used Gomez’s cellular phone to return the page. Gomez overheard Gajate advise the caller that everything was ready for the transaction and that they should all meet at the caller’s house to return and complete the deal. After finishing the call, Gajate told Gomez that his “buddy” (appellant) was the middleman (like Gajate) and another guy (Michael Green) was their client who owned the money. A BellSouth records custodian verified that the number Gajate dialed on Gomez’s phone belonged to Olga Arguelles at 1001 Northwest 25th Avenue in Miami.

Gajate then traveled to this residence. After twenty minutes inside, Gajate exited the residence with appellant; neither man carried anything. Gajate eventually returned to the previous parking lot with Green in the passenger seat and appellant in the backseat, parking on the right side of Gomez’s SUV.

Gajate informed Gomez that he had the money for the deal. Gomez then told Ga-jate that the others had to remain behind, and Gajate agreed, stating that he could not have brought the money alone. Gajate returned to his car and leaned into the back seat where appellant handed him a bag full of groceries containing an open box with the money inside. It appeared to one of the surveillance agents that Gajate directed appellant to give him the bag.

After Gajate showed Gomez the money, the two men traveled across the street to a different location where the cocaine was located. Meanwhile, Green and appellant drove up and down several aisles in a nearby mall parking lot, passing several open spaces, and then returned to the original parking lot; the whole drive took five to seven minutes. One of the agents opined that “they were checking the area to see if anybody was watching them.”

Upon arriving at a residential area close to the parking lot, Gomez and a second Cl showed Gajate the kilo of cocaine. After testing the cocaine, Gajate said that it was good, but needed to show the kilo to his “buddy” and Green because they were the ones that had the last word on it. Gajate took possession of the cocaine and began walking back to Gomez’s vehicle. Law enforcement agents then moved in, capturing Gajate after he attempted to flee over a wall.

Other agents arrested Green and appellant after receiving word that the transaction had occurred and Gajate was in custody. Without anyone mentioning drugs, appellant said “[w]hy am I being arrested, I don’t have anything to do with drugs.” The officers found $8,000 in cash on appellant, and at the police station, appellant gave his address as 1001 Northwest 25th Avenue, Miami. While in the holding cell, appellant told Green, “[t]hen why didn’t you leave. We should have run.” He later asked Green, “Mike, how much do you think they’ll give us for conspiracy.”

The state charged appellant, Gajate, and Green by collective information with trafficking in cocaine and conspiracy to traffic in cocaine. Gajate was also charged with resisting arrest without violence. After a trial where Gajate did not testify, the jury returned a verdict of guilty on both the trafficking and conspiracy counts. The court then adjudicated appellant guilty and entered a written judgment and written sentence for those two counts only.

If out-of-court statements are offered to prove the making or terms of a conspiratorial agreement, then they are “verbal acts” not excluded under the hearsay rule. See Charles W. Ehrhardt, Florida Evidence § 801.6 n. 4 (2001 ed.). These verbal acts prove the nature of the act, as opposed to proving the truth of the alleged statements. See Harris v. State, 544 So.2d 322, 323 (Fla. 4th DCA 1989) (en banc); Decile v. State, 516 So.2d 1139, 1140 (Fla. 4th DCA 1987). For example, the statements “I need eight” followed by the response “[n]o problem, come inside, I get you rocks,” were verbal acts because they constituted part of the underlying transaction. See Decile, 516 So.2d at 1139-40; also Stevens v. State, 642 So.2d 828, 829 (Fla. 2d DCA 1994) (“I need a dime.”). On the other hand, a statement to a police officer that a specific person is dealing cocaine at a specific place is not a verbal act because it is not part of the transaction. See Harris, 544 So.2d at 323-24.

The supreme court recently addressed the “verbal acts” exception in Banks v. State, 790 So.2d 1094 (Fla.2001). The court explained:

One category of extrajudicial statements excluded from the hearsay rule is referred to as “verbal act” evidence. “Verbal act” evidence has been defined as:
A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it.
For utterances to be admissible as verbal acts, (1) the conduct to be characterized by the words must be independently material to the issue; (2) the conduct must be equivocal; (3) the words must aid in giving legal significance to the conduct; and (4) the words must accompany the conduct. ■

Banks, 790 So.2d at 1097-98 (citations omitted). Banks discussed Stevens, 642 So.2d 828, and noted that the statement “I need a dime” was not offered for its truth or falsity, but rather “to explain the defendant’s reaction to the statement, ie., the defendant promptly acting to provide the illegal drugs to complete the transaction.” Banks, 790 So.2d at 1098.

Here, some of the admitted hearsay statements were verbal acts, and some were not. Appellant objected on hearsay grounds to Gajate’s statements concerning (1) the initial set up of the drug deal at the first meeting with Gomez, (2) the money he had at the second meeting, and (3) the necessity to show the cocaine to Green and appellant before the transaction was completed because they had the last word. These statements were all part of the transaction and thus verbal acts, not inadmissible hearsay. However, some of Ga-jate’s statements were not verbal acts and were offered for the truth of the matter asserted: (1) appellant was the middleman, and (2) the money belonged to appellant or Green and he could not have brought it alone. Admission of these latter hearsay statements is justified under a different theory.

Section 90.803(18)(e), Florida Statutes (2000), is the co-conspirator hearsay exception, and it provides that the following hearsay is admissible:

A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

The evidentiary rule thus “requires (1) that these statements be made during and in furtherance of a conspiracy, and (2) that independent evidence establish the conspiracy before the statements are allowed.” Brooks v. State, 787 So.2d 765, 773 (Fla.2001).

This court explained the review of co-conspirator hearsay statements in Christie v. State, 652 So.2d 932, 933 (Fla. 4th DCA 1995):

The threshold question to address is whether there was competent, independent evidence, without consideration of any hearsay statements of co-conspirators, to establish defendant as a participant in a conspiracy to traffic in cocaine. Before the jury could consider any hearsay evidence of the co-conspirators, the state must have established, by a pre ponderance of the evidence, through defendant’s actions or his statements or through other competent, independent evidence that defendant participated in a conspiracy. This court must examine whether there was “substantial evidence, free from the taint of hearsay, upon which the court could find, at least preliminarily, that a conspiracy existed and the person objecting to the hearsay statements was an active participant.”

(Citations omitted) (emphasis added) (quoting Verni v. State, 536 So.2d 1162, 1164 (Fla. 2d DCA 1988)).

To establish a conspiracy and appellant’s participation in it, the state must prove “an express or implied agreement or understanding between two or more persons to commit a criminal offense,” and an intention to commit that offense. Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001). Direct proof of the agreement is not necessary; it may be inferred from the circumstances. See Harris, 450 So.2d at 513-14. However, this circumstantial evidence must be consistent with a hypothesis of guilt and inconsistent with every reasonable hypothesis of innocence. See McClain v. State, 709 So.2d 136, 138 (Fla. 1st DCA 1998). Thus, a defendant cannot be a conspirator by merely being present at the scene of the offense, driving to the scene knowing the purpose of the journey, or aiding and abetting in the commission of the offense. See Sheriff, 780 So.2d at 921; Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994) (reversing conspiracy conviction where defendant merely aided and abetted); Pennington v. State, 526 So.2d 87, 88 (Fla. 4th DCA 1987) (reversing conspiracy conviction where defendant was merely present at the scene and aided in its commission without knowing the nature of the contraband transferred).

In this case, there was more than mere presence at the scene. The non-hearsay evidence, including Gajate’s verbal acts, established the existence of the conspiracy and appellant’s participation in it by a preponderance of the evidence. Gajate’s statement that appellant and Green needed to approve of the deal before it was complete, a verbal act, provided competent evidence from which the trial court could have concluded that appellant participated in the conspiracy. Admitting Gajate’s remaining co-conspirator statements was thus justified pursuant to section 90.803(18)(e).

Appellant also challenged his trafficking and conspiracy convictions, but competent, substantial evidence supports the jury’s verdict on each count. Further, the trial court did not abuse its wide discretion in refusing to give the standard accomplice jury instruction as to Gajate because he did not testify. See Machado v. State, 787 So.2d 112, 114 (Fla. 4th DCA 2001). While appellant argues on appeal the instruction should have been given because the confidential informant, Gomez, testified, this argument was never made below and any error was not fundamental.

Appellant’s final contention is that the trial court improperly convicted him for the uncharged offense of resisting arrest. The trial court did mistakenly accept appellant’s plea to that charge, but no harmful error occurred as a result of this extraneous action. See generally State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Appellant was never adjudicated on that count, the court never entered an oral or written judgment or sentence, and no sentencing points will be assessed against him in the future based on that count.

Affirmed.

TAYLOR, J., and DELL, JOHN W., Senior Judge, concur.


author: BENTON, J.

text:
    Christopher M. MARCELL, Appellant/Cross-Appellee, v. Meredith W. MARCELL, Appellee/Cross-Appellant.
    No. 1D01-4373.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Rehearing Denied April 23, 2003.
    Glenn M. Swiatek, Esquire of Glenn M. Swiatek, Attorney at Law, Fort Walton Beach, for Appellant/Cross-Appellee.

      Joseph D. Lorenz, Esquire, Fort Walton Beach, for Appellee/Cross-Appellant.
   BENTON, J.

The former husband appeals a final judgment of dissolution of marriage, insofar as it treated his United States Air Force reenlistment bonus as a marital asset and distributed the parties’ marital assets. We approve the trial court’s designation of the reenlistment bonus, including installments not yet paid, as a marital asset, but we reverse the judgment’s distribution of marital assets, with directions that any duplication be eliminated. On the former wife’s cross-appeal, we vacate the attorney’s fee award she challenges as insufficient, and direct that the question of fees be reconsidered once the question of equitable distribution has been revisited on remand.

Before filing his petition for dissolution of marriage, the former husband reenlisted in the Air Force for another five years, and so became eligible to receive a bonus under the Aviator Continuation Pay Program. See 37 U.S.C. § 301b(a) (2003) (authorizing a retention bonus for aviation officers who agree to extend active duty for at least a year). He chose to receive half of the bonus in a lump sum, and the remainder in yearly installments for five years. Even though he had not received all the installments as of the date on which marital assets were valued, the trial judge awarded half of the entire bonus to the former wife.

The trial court did not err in ruling that the former husband’s reenlistment bonus is a marital asset. Although the bonus can be forfeited, see 37 U.S.C. § 301b(g) (2003), entitlement to the bonus vested upon reenlistment, which occurred before the petition for dissolution was filed. See 37 U.S.C. § 301b(e) (2003); United States v. Larionoff, 431 U.S. 864, 877, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977); Ford v. United States, 33 Fed. Cl. 560, 564 (1995) (noting that the Air Force insisted that, under 37 U.S.C. § 308, “the service members’ entitlement to bonuses vested at the time ... they had obligated themselves to reenlist”); Di Clemente v. Di Clemente, No. 531597, 1995 WL 404954, at *4 (Conn.Super.Ct. June 26, 1995) (unpublished opinion) (distributing a reenlistment bonus payable after the action for dissolution of marriage was filed, 40% to the wife and 60% to the husband).

The former husband contends that awarding the former wife any part of the bonus he had not already received violates federal law. But the decree does not purport to require the Air Force to make payments directly to the former wife. As an accommodation to the former husband, the trial court allowed him to make partial distribution of the bonus in annual installments within ten days of each date an annual bonus payment was due, rather than reducing future bonus payments to present value and requiring immediate payment. We approve the trial court’s treatment of the resigning bonus in this regard.

The former husband also complains that some assets in his name were counted more than once, partly because different assets were valued at different dates. See § 61.075(6), Fla. Stat. (2001) (“Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.”). We find no fault with the trial court’s valuation of the IRA accounts as of February 28, 2001, and of the investment accounts as of March 2, 2001, but we share the former husband’s concern that valuing his bank accounts at a much earlier date (March 20, 2000) made it likely that funds shifted from a bank account to an IRA or other investment account were counted twice. The statute giving the trial court latitude in picking dates for valuation contemplates the use of reasoned discretion in making a determination which is “just and equitable under the circumstances.” § 61.075(6), Fla. Stat. (2001). Given the other valuation dates used in the present case, it was an abuse of discretion to choose the date that was used for valuing the former husband’s bank accounts.

Similarly, the former husband testified that, when he received the first annual bonus payment of $10,560.00 in 1999, he placed it in a bank account, and that the $15,000.00 “cash in bank” which he listed in his financial affidavit included this amount. The wife does not contend otherwise. The former husband thus proved that charging him with both the bonus and the $15,000.00 in his account was a duplication. This duplication may well have led to an inequitable distribution, a question the trial court will have to decide on remand.

Finally, after the accounting problems are resolved and the assets are equitably (re)distributed on remand, the trial court must decide whether any resulting “disparity in the parties’ incomes and financial positions” requires an award of the former wife’s reasonable attorney’s fees, in whole or in part. See Rossi v. Garner, 724 So.2d 603, 603 (Fla. 1st DCA 1998).

Reversed and remanded, with directions.

ERVIN and DAVIS, JJ„ CONCUR.


author: WHATLEY, Judge.

text:
    BILTMORE CONSTRUCTION CO., INC., and Central-Allied Enterprises, Inc., a continuing joint venture, by and through Biltmore Construction Co., Inc., and Central-Allied Enterprises, Inc., its coventurers, Appellants, v. OWNERS INSURANCE COMPANY and Auto-Owners Insurance Company, Appellees.
    No. 2D01-5770.
    District Court of Appeal of Florida, Second District.
    March 21, 2003.
    Rehearing Denied April 21, 2003.

      Dennis P. Thompson of Thompson & Foote, P.A., Clearwater, and Charles W. Pittman of Maefarlane, Ferguson & McMullen, Tampa, for Appellants.
    Burke Lopez and Michael S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees.
   WHATLEY, Judge.

Biltmore Construction Company and Central-Allied Enterprises challenge a final summary judgment that determined Owners Insurance Company and Auto-Owners Insurance Company (Owners) were not obligated to defend against a claim brought by Bayshore Heights Associates. We reverse because the claims made in Bayshore’s complaint were potentially covered under the terms of the insurance policy issued by Owners.

Biltmore Construction Company and Central-Allied Enterprises formed a joint venture (Biltmore) that constructed an assisted congregate living facility for Bay-shore. Biltmore is a general contractor and Owners was Biltmore’s general liability insurance carrier. The basic insuring agreement provides: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages.”

Bayshore filed a complaint against Bilt-more for damages arising from the construction of its facility. Biltmore informed Owners of the complaint, and Owners denied a duty to defend or indemnify Bilt-more for the claims made in Bayshore’s complaint. Thereafter, Biltmore filed a complaint against Owners seeking to recover fees and costs incurred in defending the Bayshore lawsuit. Biltmore alleged that Owners had a duty to defend Biltmore pursuant to the insurance contract.

Competing motions for summary judgment were filed. After a hearing, the trial court granted Owners’ motion for summary judgment, finding that Owners did not have a duty to defend Biltmore based on the allegations in Bayshore’s original complaint.

We first note that the applicable standard of review is de novo as the interpretation of an insurance contract is a question of law. Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d DCA 2001). An insurer’s duty to defend a complaint depends solely on the allegations in the complaint filed by a third party against the insured. Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527, 528 (Fla. 3d DCA 1996).

On appeal, Biltmore argues that Owners was obligated to provide a defense for the second count in Bayshore’s complaint. Count two of the complaint alleged that Biltmore furnished and installed defective windows and that the windows, window sills, and exterior walls were improperly constructed, painted, and sealed, which permitted severe water infiltration. Bayshore further alleged that, as a result of the severe water infiltration, it suffered “damage in its business and property.”

Owners argues that the claim was not covered by the policy because it fell under the following policy exclusion:

j. “Property damage” to:
(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

Owners argues that there is nothing in the complaint to indicate that the “property” that was damaged was anything other than the property requiring repair due to faulty construction. See La-Marche v. Shelby Mut. Ins. Co., 390 So.2d 325, 326 (Fla.1980) (“[T]he purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.”). We reject this argument because an insurance company must defend if “the complaint alleges facts that create potential coverage under the policy....” Grissom v. Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992). “All doubts as to whether a duty to defend exists in a particular case must be resolved against the insurer and in favor of the insured.” Id. Here, the allegation that there was damage due to severe water infiltration could obviously include damage to property other than the improperly constructed windows and exterior walls, as it could include damage to carpeting and drywall. Therefore, there was potential coverage under the policy, and Owners had a duty to defend the claim.

Additionally, there is an exception to paragraph six of the exclusions, which provides that the exclusion does not apply to a completed product. Owners argues that this exception does not apply to create coverage here because there was no allegation in Bayshore’s complaint that the defective work caused damage to a completed project. We disagree. The complaint specifically reads, “[Sjince the date of substantial completion, plaintiff has experienced severe water infiltration problems at the project through and around the windows and through the exterior elas-tomeric coating and stucco.” Therefore, as the complaint alleged damage to a completed product, the exception to the exclusion applied, and Owners was obligated under the insurance agreement to provide a defense to count two of Bayshore’s complaint. Thereafter, if it were learned during discovery that there was no coverage under the policy, Owners could have moved to withdraw.

Accordingly, we reverse and remand this cause for further proceedings consistent with this opinion.

Reversed.

STRINGER and COVINGTON, JJ., Concur.

      . The insurance agreement at issue provides broad form products/completed operations coverage.

      . Subsequently, Bayshore served an amendment to the complaint against Biltmore, and Owners acknowledged liability for the claims of Bayshore and settled those claims. However, Owners continued to refuse to pay Bilt-more the fees and costs incurred before Owners acknowledged liability for Bayshore’s claims.


text:
    Ralph Edward CROMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5025.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Rehearing Denied April 23, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Although the trial court was incorrect to dismiss the appellant’s second postconviction motion on the basis that it lacked jurisdiction to entertain the claim therein, we affirm the trial court’s order because the appellant’s second motion was not filed within two years of the date that his judgment and sentence became final, and, despite the appellant’s assertion to the contrary, the facts upon which the present motion is based do not meet the test for newly discovered evidence. See Jones v. State, 709 So.2d 512, 521 (Fla.1998).

AFFIRMED.

ALLEN, C.J., WEBSTER and BROWNING, JJ. concur.


text:
    Harold HALIBURTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4125.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied May 8, 2003.
    Harold Haliburton, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

This appeal is dismissed as untimely filed. Rehearing does not toll the time to appeal the denial of an order on a rule 3.800(a) motion. See King v. State, 754 So.2d 85 (Fla. 4th DCA 2000).

POLEN, C.J., WARNER and KLEIN, JJ., concur.


author: GROSS, J.

text:
    FLORIDA RESIDENTIAL PROPERTY & CASUALTY JOINT UNDERWRITING ASSOCIATION, a Florida corporation, Appellant, v. Patricia W. ANTHONY, Appellee.
    No. 4D01-3472.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied April 29, 2003.
    David W. Grossman and Misty C. Schlatter of Vernis & Bowling of Miami, P.A., North Miami, for appellant.
    Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach, for appel-lee.
   GROSS, J.

We reverse a summary final judgment finding coverage for the appellee, Patricia Anthony, under a homeowner’s insurance policy issued to her sister. We hold that Anthony was not a resident of her sister’s household so as to entitle her to coverage as an insured under the policy.

Anthony was a defendant in a dog-bite suit. The bite occurred on property Anthony owned in Hollywood, Florida. Her adult son was living at the property when the dog attack occurred. Anthony agreed that a $100,000 judgment be entered against her in the dog-bite suit.

Anthony brought this suit against appellant, Florida Residential Property & Casualty Joint Underwriting Association (“Florida Residential”), which had denied coverage for the dog bite incident. Florida Residential issued a homeowner’s insurance policy to Anthony’s sister, Jacqueline Tucker, for a house Tucker owned in Clew-iston, Florida. The policy provided coverage to Tucker, the named insured, and to “residents of your household who are [your] relatives.” Anthony contended that she was a resident relative of her sister’s household, and was therefore entitled to coverage of the dog attack at the Hollywood property.

Tucker never lived in the Clewiston house in the years prior to the dog injury. She never lived in the property through the date of sale, almost six years after the dog injury. She never spent more than a few nights at the house prior to Anthony moving in. She infrequently came by to visit when Anthony lived in the house. Anthony was never a resident of her sister’s household within the meaning of the policy.

The trial court granted Anthony’s motion for summary judgment and denied that of Florida Residential.

This case is controlled by Philbin v. American States Insurance Co., 729 So.2d 484 (Fla. 4th DCA 1999).

In Philbin, a son sought coverage under his parent’s homeowner’s policy for injuries caused by his pit bull at his parent’s home. The son leased the property from his parents. See id. at 484. The parents did not live at the property at the time of the dog attack. Id. The wording of the policy definition of an “insured” was similar to that in this case. We held that the son was not entitled to coverage, declaring that, “[w]hile [the son] may have resided in a house owned by his parents, he was not a resident of their household.” Id. at 485. Thus, despite residing in the house covered under the policy, the son was denied coverage because he “was not a resident relative of his parents’ household.” Id.

Anthony argues that Philbin does not control this case because the son was paying rent to his parents; here, Anthony paid some bills and helped to remodel some rooms, but she did not pay any rent to her sister. Philbin did not turn on the existence of a landlord and tenant relationship. The critical aspect of our holding was not the rental agreement, but the living arrangement and how it fit into the policy’s definition of an insured.

This case is reversed and remanded to the circuit court with directions to enter judgment in favor of Florida Residential.

KLEIN and TAYLOR, JJ., concur.


author: MAY, J.

text:
    Hillary N. GOLDBERG, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 4D01-4519.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied April 29, 2003.

      Hillary Nan Goldberg, Delray Beach, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for appellee.
   MAY, J.

The claimant appeals the dismissal of her appeal to the Unemployment Appeals Commission based on untimeliness. We reverse and remand for an evidentiary hearing to determine whether the claimant received the referee’s decision in time to appeal in accordance with due process.

The claimant applied for unemployment compensation benefits after she was terminated from her employment. Her claim was denied on May 14, 2001. On May 27, 2001, she appealed the adverse determination. The referee determined that the claimant’s refusal to sign a warning notice she believed to be inaccurate was not an “intentional disregard of her employer’s interests.” The referee reversed the determination of ineligibility.

The claimant’s former supervisor then requested a new hearing because she had been unable to find the location and had missed the first hearing. The claimant advised the appeals referee by letter, dated June 28, 2001, that she would be in Michigan from July 15, 2001, to September 30, 2001, or early October. She asked that the new hearing be set accordingly, or that she be able to participate by phone. She included her local and long distance telephone numbers and address in Michigan.

On July 11, 2001, the same appeals referee heard the claimant’s case. Both the claimant and her former supervisor were present. This time, the referee upheld the denial of unemployment compensation benefits. Based on the deputy clerk’s certificate, a copy of the decision was mailed to the claimant at her last known local address on July 11, 2001.

The decision included the requisite notice that the decision would become final unless a written application for review was mailed within twenty (20) calendar days from the mailing date of the decision. On September 13, 2001, sixty-four days after the decision had been mailed, the claimant appealed the decision. The claimant wrote: “I was out of town because of the birth of a new family member. My mail was not forwarded, and I just recently read the decision, which surprised me greatly.” The Unemployment Appeals Commission dismissed the claimant’s appeal as untimely filed.

Due to the compulsory language of the applicable rule and statute and the administrative nature of the agency, the Unemployment Appeals Commission had no choice but to dismiss the appeal. This court and others are not bound by the same restrictions. We “have created exceptions to the rule and the statute in certain individual circumstances.” Holmes v. City of West Palm Beach, 627 So.2d 52, 53 (Fla. 4th DCA 1993); Livingston v. Unemployment Appeals Comm’n, 620 So.2d 1103 (Fla. 4th DCA 1993); Robinson v. Unemployment Appeals Comm’n, 526 So.2d 198 (Fla. 4th DCA 1988).

Here, the claimant notified the Commission of her absence from her residence in advance of the hearing. She provided the Commission with an alternative address during her absence from the state. While the mailing date may have allowed for the decision to reach the claimant prior to her departure, this fact cannot be assumed. We therefore reverse and remand this case for an evidentiary hearing to determine whether the claimant received the decision in time to file an appeal in accordance with procedural due process. If it is determined that she did not, then she should be afforded that opportunity.

REVERSED and REMANDED.

STEVENSON and GROSS, JJ., concur.


text:
    Harold INGRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3095.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied April 30, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The narrow issue in this case is whether the trial judge “imposed a sentence” at a plea conference. We hold that a sentence was imposed, triggering double jeopardy protection. Therefore, the court was precluded from enhancing appellant’s sentence for breaching a furlough agreement.

Appellant entered a guilty plea that contemplated a 36.45 month prison sentence. The state and the defendant agreed to a three-month furlough for medical reasons. Appellant signed a Guideline Sentence Waiver/Presentencing Release Agreement that provided, inter alia, that if he failed to return to court on a specified date, then the court would have the “total and com-píete discretion” to sentence him to seventy-two months incarceration instead of the 86.45 months set forth in the plea agreement.

At the end of the plea conference, the trial judge said: “Accept each plea, adjudge you to be guilty, and impose the agreed 36.45 months, to run concurrent on each count with agreed credit. I stay and suspend execution of those sentences until Friday, February 28rd, of the year 2001.” On the same day, the court entered a written judgment adjudicating appellant to be guilty; the court also entered a written sentence committing appellant to the Department of Corrections for a term of 36.45 months.

Ultimately, appellant failed to surrender as ordered and the trial court imposed enhanced concurrent sentences of forty-eight months incarceration.

Appellant challenges the enhanced sentences on double jeopardy grounds. Jeopardy “attaches when a court imposes a sentence, after which the double jeopardy clauses protect the defendant from receiving a punishment greater than the sentence already imposed.” Joslin v. State, 826 So.2d 324, 326 (Fla. 2d DCA 2002). What constitutes a “sentence” for double jeopardy purposes? “The term sentence means the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty.” Fla. R.Crim. P. 3.700(a). Contemplating oral pronouncement of a sentence under the subheading “Pronouncement and Entry,” the rule states that “[ejvery sentence ... shall be pronounced in open court....” Fla. R.Crim. P. 3.700(b).

Here, the trial judge orally pronounced the sentence at the plea conference. Under Joslin and Robie v. State, 807 So.2d 781 (Fla. 2d DCA 2002), jeopardy attached at that point, precluding the later enhancement of the 36.45 month sentence. This is not a case where the court deferred sentencing until appellant returned from his furlough. See Joslin, 826 So.2d at 326; Robie, 807 So.2d at 783. Nor is it a case where the state moved to vacate the plea pursuant to Florida Rule of Criminal Procedure 3.170(g).

We distinguish Adams v. State, 780 So.2d 955 (Fla. 4th DCA 2001). Although the facts are very similar to this case, the crucial difference is that the trial judge in Adams “never pronounced the sentence.” Id. at 958. We ruled that where no oral sentence had been pronounced, the written sentence was invalid. Id. at 959. We held that because “no sentence was imposed at the plea hearing,” double jeopardy did not bar the later enhancement of the defendant’s sentence for failure to honor the furlough agreement.

Here, the court’s oral pronouncement of the sentence at the plea conference necessitates the finding that the sentence was imposed at the plea conference. As in this case, the Adams court orally stayed and suspended the execution of the sentence. Adams did not accord that statement any legal significance. Jeopardy attaches when a sentence has been imposed; the stay and suspension of execution of the sentence came after it was imposed, when jeopardy had already attached.

The two enhanced concurrent sentences imposed are reversed and the case is remanded to the trial court with directions to impose the concurrent 36.45 month sentences contemplated by the plea agreement.

STEVENSON, GROSS and MAY, JJ., concur.


author: POLEN, C.J.

text:
    Paul S. PIETRAS, Appellant, v. Sharon L. PIETRAS, Appellee.
    No. 4D01-4841.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied May 7, 2003.

      Harry D. Dennis, Jr., of Law Offices of Harry D. Dennis, Jr., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellant.
    Douglas H. Reynolds of Douglas H. Reynolds, P.A., Fort Lauderdale, for ap-pellee.
   POLEN, C.J.

Paul Pietras timely appeals a final judgment of dissolution from his ex-wife, Sharon Pietras. We find there are a number of mathematical errors, and some legal errors, in the final judgment, and reverse and remand for further proceedings.

Paul and Sharon were married in July of 1974. Paul was an insurance adjuster and Sharon was a teacher; neither party had substantial assets. Paul started his own insurance agency in early 1980; Sharon quit teaching the following year and worked full-time with Paul at the agency thereafter. The parties accumulated substantial assets over the life of the marriage, including a large number of insurance policies. On December 31, 1998, Sharon informed Paul that she had taken a number of credit card cash advances and that she was filing for divorce. Sharon stayed in the marital home and Paul moved out. Paul continued to pay Sharon’s direct household expenses, but did not provide any additional support.

A few months later, Sharon filed a motion for temporary relief which came before Judge Vonhof in August of 1999. Paul was ordered to continue paying Sharon’s household expenses, plus an additional $2,500 a month. Paul was also ordered to pay Sharon a lump sum of $46,000, covering her attorney’s fees and costs, and expert witness fees and costs. Thereafter, Paul filed a motion for rehearing and a motion to pay Sharon’s fees and costs ($46,000 award) from certain joint marital accounts. These motions were denied in strongly worded orders, and Paul was ordered to directly pay the fees and costs award.

Paul’s counsel withdrew in July of 2001 and he retained substitute counsel. Although the parties were unable to resolve all their disputes in mediation, a large number of issues were stipulated to before trial, and only a few issues were presented for judicial resolution. The parties agreed the Wife had played a large role in the financial success of the insurance agency, and consequently the marriage, and that their marital assets should be equally divided. They agreed Paul, by way of his control of the insurance agency, had a significantly greater earning potential than Sharon; they were in near agreement in calculating Paul’s salary, yet disagreed over the valuation of a number of assets and the amount of alimony Sharon would be entitled to. Paul also challenged Sharon’s request to stay in the marital home and maintained there would be no need to secure any court-ordered support award by life insurance. Both parties, predictably, sought entitlement to their respective attorney’s fees and costs pursuant to chapter 61.

The matter proceeded to a bench trial before a successor judge in November of 2001. The trial was relatively nonconten-tious, and the majority of the testimony presented was that of each party’s respective expert CPA. During the course of the trial, before Paul testified, Sharon’s counselor submitted a proposed final judgment. Then, at the end of Sharon’s case, her lead attorney testified that he and his co-counsel were entitled to the payment of all of their costs and fees by Paul, because he had “added to the effort of the lawyers in this case ... caused a lot of problems ... and filed many motions that were frivolous.”

A final judgment of dissolution of marriage was ultimately entered which adopted all of Sharon’s valuation figures as reflected in her proposed final judgment. The court denied Paul’s petition for partition and allowed Sharon to retain control and possession of the marital home. Sharon was also awarded $14,000 a month as permanent periodic alimony. Finally, the court ordered Paul to pay all of Sharon’s attorney’s fees and costs, noting his “litigious behavior.”

On appeal, Sharon concedes the final judgment of dissolution contains a number of duplicative entries, which should be corrected. See Noone v. Noone, 727 So.2d 972, 974 (Fla. 5th DCA 1998)(notwith-standing trial court’s wide discretion in dissolution matters, appellate court must correct mathematical errors made by the trial court). Paul also contends a number of assets were treated incorrectly, in effect failing to effectuate an even division of the marital assets as the parties had intended. Each asset will be addressed individually. State Farm Growth Fund Investment # 60005SS7

An $82,855 withdrawal from this account was charged as an asset to Paul. The record reflects this charge actually consists of two sub-charges: $46,000 withdrawn by Paul to pay Sharon’s costs and fees per the 1999 order on Sharon’s motion for temporary relief (“Temporary Order”), and $36,855 withdrawn by Paul to pay off a number of bills that were incurred prior to the filing of the dissolution petition. Paul concedes the $46,000 was properly charged to him since he was ordered to pay such per the Temporary Order. However, he contends the $36,855 should not have been charged to him, where the money was .used in January of 1999 to pay off credit card cash advances taken by Sharon before she filed her dissolution petition. We agree. Sharon’s cash advances before the filing of her petition constitute a marital liability; Paul paid off this liability by withdrawing funds from a marital asset. See Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. 3d DCA 1992). This amounts to a “wash,” and where the parties agreed to use the most recent valuation dates for the marital assets, should not have been included in the equitable distribution. On remand the trial court shall deduct $36,855 from the marital net worth (assets) and deduct this same sum from Paul’s award of assets under the equitable distribution.

Merrill Lynch Account # 29S 99220

(A) A $32,876 withdrawal charged as an asset to Sharon. The record reflects this sum was withdrawn by Sharon and used as a means of support during the pendency of the dissolution action. Though contrary to his financial interests, Paul acknowledges this money, used by Sharon as temporary support, should not have been included in the equitable distribution. See Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991). We agree. On remand the trial court shall deduct $32,876 from the marital net worth (assets) and deduct this same sum from Sharon’s award of assets under the equitable distribution.

(B) A $48,497 withdrawal charged as an asset to Paul. The record reflects this sum was withdrawn by Sharon to pay her attorneys and expert witness. Sharon concedes this charge is duplicative since Paul was already charged with payment of these fees and costs, i.e., the $46,000 withdrawn from State Farm Growth Fund # 60005337. On remand the trial court shall deduct $48,497 from the marital net worth (assets) and deduct this same sum from Paul’s award of assets under the equitable distribution.

Credit card charges

A $7,135 marital liability, factored into Sharon’s net worth under the equitable distribution. The record reflects this sum represents charges Sharon incurred on credit cards she had opened, in her own name, after the filing of her petition for dissolution. We find these accounts, and the amounts charged on such, are non-marital, and should not have been included in the equitable distribution. See § 61.075(6), Fla. Stat. (2001)(eut-off date for determining marital assets and liabilities is earliest of the date the parties entered into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of the petition for dissolution). We reject Sharon’s contention that the trial court “implicitly” ordered Paul to pay these charges at the 1999 hearing on her motion for temporary relief. On remand the trial court shall remove this $7,135 liability from the parties’ marital net worth, and remove this liability from Sharon’s award under the equitable distribution.

State Farm Life Insurance Accounts # 0759-9279 & 0759-928S

Account # 0759-9279 was charged as a $71,581 asset to Paul; account # 0759-9283 was charged as an $8,127 asset to Paul. On appeal, Sharon concedes these accounts were double counted since they were included as part of the Paul S. Pietras Profit Sharing Plan. On remand the trial court shall remove these accounts from the parties’ marital net worth (assets) and deduct these sums from Paul’s award of assets under the equitable distribution.

State Farm Life Insurance Policy # 0713-8511

A $34,800 marital asset, charged to Paul. This sum represents an imputation of payments, $1,200 per month x 29 months, that Paul “failed” to make on his universal life insurance policy (on which Sharon was the beneficiary) from May 1999 until the date of the final hearing. This asset was treated too simplistically and remand is needed.

In the Temporary Order, Paul was ordered to continue to pay all of Sharon’s household expenses, including “all insu-raance [sic] bills.” As of May 1999, Paul stopped paying the premium on a universal life insurance policy on which Sharon was the beneficiary. At trial, Sharon argued Paul’s failure to continue to make premium payments on that policy depleted the policy’s cash value, a marital asset. While this argument is technically correct, usage of the $1,200 figure for imputation purposes was not.

Universal life insurance is a “hybrid” form of life insurance-part insurance and part investment. Generally speaking, a universal life insurance policy allows the insurer to choose his or her own “premium.” A portion of that premium is used to pay account expenses and maintain insurance coverage; the remainder is placed in an interest bearing account, known as the policy’s “cash value.” Even if an insured stops making premium payments on a universal life policy, as Paul did here, the insurance coverage will remain in effect as long as the policy has enough cash value to cover the account expenses, ie., the account expenses will be debited from the policy’s cash value. See Farhard Aghdami, Income, Gift, and Estate Tax Planning with Life Insurance, in ALI-ABA CONTINUING LEGAL EDUCATION (Oct. 24-26, 2001). This is precisely what occurred here.

We note Paul was obliged to continue to make some payment on this insurance policy, since his failure to do so depleted a marital asset-the policy’s cash value that had accumulated by the date the petition was filed. However, on the record developed below, it is unclear to what extent Paul’s failure to continue to make premium payments on this account depleted the policy’s cash value. The Wife’s CPA simply stated that Paul should have continued to make $1,200 premium payments on this policy, since he had previously been doing so. However, she was unable to say what portion of that $1,200 premium payment would have paid for account expenses, and what portion would have added to the policy’s cash value. Paul notes any excess funds deposited into the cash value of the policy, which was in his name, would have been a non-marital asset. Paul should only have been charged imputed missed premium payments on his universal life insurance policy to the extent he depleted the policy’s cash value from the time period from May 1999 to the November 2001. On remand the trial court shall deduct $34,800 from the parties’ marital net worth (assets), and deduct that same sum from Paul’s award of assets under the equitable distribution. If the parties are unable to stipulate to the amount of such, the trial court may need to receive additional evidence to determine the extent to which Paul depleted the cash value of this policy; this depleted amount should be imputed back to the parties’ marital net worth (assets) and to Paul’s award of assets under the equitable distribution.

Insurance reimbursements

On her cross-appeal, Sharon contends the trial court included $7,634 in the parties’ marital net worth (assets), representing insurance reimbursements on Sharon’s medical expenses that Paul received but never forwarded to her, but failed to include that sum when determining Sharon’s award under the equitable distribution. We note the final judgment does seem to contain an inconsistency in this regard; however, given the dearth of findings by the trial court, it is simply unclear what the trial court’s true intent was with regards to this sum. As such, Sharon’s request for this court to deduct this entire sum from Paul’s cash award, which served as the equalizer in the equitable distribution, is denied. Sharon is not foreclosed from raising this issue before the trial court on remand; the trial court may rely on the record or receive additional evidence relating to this issue within its discretion.

Alimony

Paul also contends the trial court erred in awarding Sharon $14,000 a month in permanent periodic alimony. We agree.

First, Paul contends the trial court erred in awarding Sharon the marital home, and should have ordered its sale, and a split of the proceeds, instead. We disagree, and find the trial court was well within its discretion in awarding Sharon the marital home as a cross-award as part of the equitable distribution. See Tronconi v. Tronconi, 466 So.2d 203 (Fla.1985). However, Paul’s contention that he should not have to pay all of Sharon’s attendant expenses with staying in the marital home has some merit. As of the date of the final hearing, Paul was living in an apartment, while Sharon remained in the marital home, which the parties acknowledged was worth $450,000. Sharon should bear some degree of financial responsibility for her decision to remain in the sizeable marital home, where there are no children of the marriage, and her reasons for staying in that home are, admittedly, sentimental. On remand, the trial court shall determine, within its discretion, what portion of Sharon’s household expenses Paul shall be accountable for.

Second, Paul contends Sharon’s needs were improperly inflated, where the trial court included a universal life insurance policy premium she had been paying as one of her monthly expenses. We agree. As discussed, supra, universal life insurance is a hybrid form of insurance, with both an insurance and a savings component. As our supreme court held in Mallard v. Mallard, 771 So.2d 1138 (Fla.2000), alimony may not contain a savings component. Applied to this case, Paul cannot be ordered to pay insurance premiums on Sharon’s behalf to the extent those payments would increase the cash value of the policy. On remand, the trial court shall deduct this $2,201 monthly expense in recalculating Sharon’s alimony award.

We find no error in the trial court’s determination that Sharon was entitled to life insurance as a means of securing her support award. In this vein, the trial court may require Paul to continue to make payments on Sharon’s universal life insurance policy to the extent those payments only keep the policy’s insurance coverage in effect (and don’t add to its cash value). See Sobelman v. Sobelman, 541 So.2d 1153 (Fla.1989). However, the trial court must make findings concerning the cost of these premiums, or premiums on any other policy ordered to secure Sharon’s award, and then take this cost into account when determining Paul’s ability to pay, and the ultimate amount of the alimony award. See id. at 1154 n. 2. That provision of the final judgment, which holds Paul is to maintain $1,000,000 of life insurance as security of Sharon’s award, yet fails to contain any findings regarding the cost of such insurance (and its effect on the alimony award itself), is reversed. On remand the trial court may receive additional evidence relating to this issue, and, within its discretion, order a reasonable amount of security for Sharon’s support award, to be in force for a reasonable amount of time.

Attorney’s Fees

Finally, Paul contends the trial court erred in charging him with all of Sharon’s attorney’s fees and costs. We agree.

In the final judgment, the trial court found, “[Sharon] is entitled to an award of attorney’s fees and costs in this matter, especially considering [Paul’s] litigious behavior during the pendency of this litigation as contained in the testimony at trial.” Although trial courts are empowered with broad discretion to charge attorney’s fees under chapter 61, we find there was no testimony of “litigious behavior” at trial to an extent warranting payment of 100% of Sharon’s fees and costs by Paul. Opposing counsel’s testimony regarding this “litigious behavior” was rather nebulous; no specific instances of “litigious behavior” by Paul or his trial counsel were recounted. From our review of the record, it appears Paul originally engaged in some hard-line tactics, which caused Sharon to file her motion for temporary support. Yet, in its Temporary Order, the predecessor judge awarded Sharon $35,000 in attorney’s fees alone, $15,500 of which represented prospective fees which she had not yet incurred. Subsequent to entry of this order, Paul filed two pleadings which the trial court viewed as superfluous and without merit. However, aside from the filing of these pleadings, there is no record evidence of any “litigious behavior” on Paul’s behalf warranting a charge of all of Sharon’s fees and costs, especially where he had already been ordered to pay $15,500 of her fees to be incurred after entry of the Temporary Order. Opposing counsel admitted that Paul’s previous “misbehavior” had been greatly alleviated since his hiring of replacement counsel. Furthermore, as noted above, the parties were able to stipulate to most matters in dispute, and only a few issues were even presented for judicial resolution. As evidenced in the foregoing opinion, a large number of the positions advanced by Paul below were meritorious (e.g., treatment of universal life insurance policies), and this court can not discern any “additional work” caused by Paul from the face of the record. See Mettler v. Mettler, 569 So.2d 496, 498 (Fla. 4th DCA 1990)(holding where fees are imposed for abuse of the system, they are not awarded as a punitive measure, but rather are based on the additional work made necessary by the abusive party). We further note there was no evidence of the parties’ relative need and ability to pay after the equitable distribution was effectuated. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Moreover, the large number of corrections that must be made in the equitable distribution alone would necessitate reconsideration of the parties’ relative need and ability. See Brock v. Brock, 690 So.2d 737, 740 (Fla. 5th DCA 1997). The attorney’s fee award as it stands is reversed. On remand the trial court may apportion a reasonable amount of Sharon’s attorney’s fees based on a finding that Paul’s “litigious behavior” caused some additional work, for which Sharon’s attorneys have not already been compensated (via the Temporary Order). In addition, the trial court may award Sharon her fees under § 61.16, as it deems just, after reconsideration of the parties’ adjusted relative need and ability to pay.

Sharon has moved for her appellate fees under section 61.16. Sharon’s motion for appellate fees is conditionally granted, as provided in White v. White, 695 So.2d 381, 382-83 (Fla. 4th DCA 1997)(remand for trial court to determine relative need and ability to pay appellate fees).

AFFIRMED in part, REVERSED in part and REMANDED for proceedings consistent with the foregoing opinion.

GUNTHER and HAZOURI, JJ., concur.

      . As alluded to above, the trial court’s final judgment adopted in whole Sharon’s proposed final judgment, including its errors. This court is somewhat troubled by the fact the trial court failed to make a single change or correction to Sharon’s proposed final judgment, especially where that proposed judgment was submitted before trial was even concluded. See Thomas v. Thomas, 781 So.2d 540 (Fla. 5th DCA 2001)(findings in final judgment must be examined to see if they are supported by competent substantial evidence).

      . We note the $1,200 premium figure was relatively arbitrary itself. The record reflected at one time during the marriage the parties were paying as much as $3,900 a month as a premium on this policy. Moreover, Paul notes he could have argued he was entitled to a special equity for $1,200 premium payments made from the filing of the petition to May of 1999. However, Paul has expressly waived such claim.


author: STEVENSON, J.

text:
    Joseph MAGNOTTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-300.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied May 7, 2003.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Appellant, Joseph Magnotti, was tried by jury and convicted of strong arm robbery of a bank. On appeal, Magnotti claims that the robbery conviction cannot stand because the evidence was legally insufficient to demonstrate the crucial element of taking by putting in fear. Mag-notti argues that a reasonable person in the bank teller’s position would not have been placed in fear of harm during the robbery because the teller’s booth was located in a secure area behind a bulletproof glass window. We affirm.

The charges in this case arose out of appellant’s robbery of a First Union Bank. On July 13, 2001, Sally Wood was a teller-trainee at First Union, having worked there for less than two months. In the bank, a thick bullet-proof glass pane, with a small opening where money can pass through, separates the teller station from the customer. At around 3:30 p.m., appellant approached Wood’s window and stated, “This is a hold-up, I want your hundreds, fifties and twenties, now.” Wood responded, “Pardon me?” According to Wood, Magnotti repeated the same words “very firmly,” — “This is a hold up, I want your hundreds, fifties and twenties, now.” Ultimately, Wood piled about $10,000 on the counter and gave it to Magnotti. Mag-notti put the money in a brown paper bag and walked aggressively out of the bank. Wood testified that, despite being behind the protective glass and knowing that she “could not be hurt because of that wall,” she was “deathly afraid.” She further stated that, although she did not see Mag-notti carrying any weapons, she did not know for sure whether he was actually carrying one. At the time, there were about fifteen other customers in the line.

“Robbery requires proof of a taking by ‘the use of force, violence, assault or putting in fear.’ ” Smithson v. State, 689 So.2d 1226, 1228 (Fla. 5th DCA 1997)(quoting § 812.13(1), Fla. Stat. (1993)). Section 812.13(1), Florida Statutes (2001), provides:

“Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Here, the State relied on taking by “putting in fear” to establish the robbery. There was no evidence that Magnotti actually had a firearm or other weapon.

“The fear contemplated by the statute is the ‘fear of death or great bodily harm.’ ” Smithson, 689 So.2d at 1228 (quoting Brown v. State, 397 So.2d 1153, 1155 (Fla. 5th DCA 1981)). The rule in this regard is that if the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be proved. See State v. Baldwin, 709 So.2d 636 (Fla. 2d DCA 1998). Thus, the controlling factor is not necessarily the victim’s subjective state of mind, but whether a jury could conclude that a reasonable person, under like circumstances, would have felt sufficiently threatened to accede to the robber’s demands. See Woods v. State, 769 So.2d 501 (Fla. 5th DCA 2000).

In the instant case, not only did the victim testify that she was afraid, but the circumstances of the crime were also such that the jury could conclude that fear of death or great bodily harm under the circumstances was objectively justifiable. In ordinary parlance, the phrase “hold-up” connotes a forcible theft accomplished at gun-point or through the use of any other weapon available to the assailant. See Brown, 397 So.2d at 1155 (“The expression ‘holdup,’ in its ordinary significance, means a forcible detention of the person held with the intent to commit robbery, and implies the necessary force to carry out that purpose.”).

In discussing the reasonableness of a bank teller’s fear of great bodily harm during a robbery where the teller did not see the defendant with a gun, the court in State v. Baldwin, 709 So.2d 636, 638 (Fla. 2d DCA 1998), noted that:

[A bank is] a place generally known to have taken extraordinary security precautions — including armed guards— against precisely this sort of occurrence. Moreover, there was potentially much at stake, in light of the fact that banks have large amounts of cash on the premises. Certainly, given the realities of the day, a reasonable person could fear that someone brazen enough to plan and execute a daylight theft from a bank, at the risk of severe or even fatal injury, would have armed himself in advance. Thus, in this case, the fact that the perpetrator did not openly display a weapon was not as important as the teller’s inability to discern that he did not possess one.

Here, too, the jury could conclude that an ordinary person in the victim’s place would have reasonably feared that Magnotti had a gun or other weapon which he would have used if he did not get the money he demanded.

Lastly, contrary to appellant’s argument, we do not believe that the fact that Wood was stationed behind bullet-proof glass disposes of the “fear” question. We believe that the jury could conclude that the prospect of putting a presumed bulletproof glass shield to the test by standing behind it when a gun is fired would ordinarily place a reasonable person in fear. Indeed, even though Wood testified that she was confident that the shield would protect her, she nevertheless maintained that she was “deathly afraid” during the robbery. We conclude that the victim’s inarticulate, subjective fear coupled with the objective circumstances attendant to this robbery more than satisfy the taking “by putting in fear” element of the robbery statute.

Accordingly, the trial court properly denied the motion for judgment of acquittal and the conviction on review is AFFIRMED.

GROSS and MAY, JJ., concur.

      . On redirect examination, Wood stated: "It’s just the mere fact of somebody coming up to you and saying 'Give me your money.’ It scares you to death. Of course you’re going to do exactly what they say.... Yes, I was in fear.”

      . At least one Florida case suggests that the victim's fear that the assailant will injure a third party in the vicinity if the assailant's demands are not met may be a legitimate, qualifying "fear” under the robbery statute. See Flagler v. State, 198 So.2d 313, 314 (Fla.1967). Here, although Wood may have been protected, if Magnotti had discharged a firearm in the bank, he could have injured other customers and employees not located behind the bullet-proof glass.