author: STEVENSON, J.

text:
    Freda L. SANDERSON, Appellant, v. Jeanne L. HUDLETT, Summit Private School of Fort Lauderdale, Inc., and American National Bank, Appellees.
    Nos. 4D01-1748, 4D01-2159.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Jan. 16, 2003.

      Thomas D. DeCarlo of Cameron, Davis & Gonzalez, P.A., West Palm Beach, for appellant.
    Robert Smoley of Robert Smoley, P.A., Aventura, for appellee Jeanne Hudlett.
   STEVENSON, J.

The instant appeal arises from a simple sale of real estate, which was financed in a very complicated way. In this foreclosure action, the trial judge found that appellant/seller, Freda Sanderson, had in essence accepted a deed in lieu of foreclosure and that title to the land and the mortgage merged, extinguishing all mortgages, debts, and guaranties, including those executed by defendant, Jeanne Hudlett. Final summary judgment was entered in favor of Hudlett and against Sanderson. On appeal, we write only to address Sander-son’s claim that the trial court incorrectly applied the doctrine of merger. We find merit in Sanderson’s argument and reverse.

Freda and Owen Mark Sanderson formed a corporation called “Coventry Place” for the purpose of developing real property. To that end, Coventry Place purchased a five-acre townhouse project. According to Mr. Sanderson, in late 1993, he was approached by Jeanne Hudlett and William Player, husband and wife, concerning the possible purchase of two Coventry Place units and the remaining land. Hudlett and Player brought in a third person, Alan Feldman. In early 1994, Coventry Place entered into a sales contract with Bee Bee Medical Center, Inc. The suggestion in the record is that Bee Bee Medical is actually Feldman, Player, and Hudlett.

The purchase price for the Coventry Place property was $700,000. Bee Bee Medical paid $100,000 in cash; the remainder was financed by three notes, each secured by a separate mortgage. First, Bee Bee Medical signed a promissory note in the amount of $225,000 in favor of Freda Sanderson, secured by a second mortgage on the Coventry Place property. Second, Bee Bee Medical executed a note in favor of Sanderson in the amount of $275,000, secured by a second mortgage on real property located in Ft. Myers. When title problems arose with the Ft. Myers property, a mortgage on real property in Iowa owned by Feldman was substituted. Third, Hudlett signed a promissory note in favor of Sanderson, secured by a second mortgage on real property located in Mar-gate, Florida. In addition, Feldman and Player executed a guaranty of each note and mortgage, and Hudlett executed a guaranty of the Coventry Place and Iowa notes and mortgages, limited to $175,000 of the loan amount and the interest thereon. Under the terms of the documents, all became in default if there was a default on any one.

This house of cards began to fall when timely payment was not made on the first mortgage on the Coventry Place property. The holder of that mortgage, Mark Lan-ger, filed a foreclosure suit in Palm Beach County (case number CL 95-7392 AE) and named Freda Sanderson and Bee Bee Medical as defendants. Sanderson then filed a cross-claim against Bee Bee Medical and brought defendants Hudlett and Player into the litigation. Sanderson sought to foreclose her second mortgage on the Coventry Place property, to foreclose the Margate mortgage, and to obtain a money judgment against Hudlett and Player for the amounts due on the Mar-gate and Iowa properties notes. The trial court entered summary judgment in favor of Sanderson on all counts and Hudlett appealed. On appeal, this court found that there were genuine issues of material fact on a number of the affirmative defenses raised and that summary judgment was improper. See Hudlett v. Sanderson, 715 So.2d 1050 (Fla. 4th DCA 1998). In addition, the court found merit in Hudlett’s contention that the Palm Beach County court lacked jurisdiction to foreclose on real property located solely within Bro-ward County and ordered that claim dismissed.

As a consequence of the dismissal of the action to foreclose on the Margate property, Sanderson initiated a separate lawsuit against Hudlett in Broward County (case number CACE 99-11952 09); the instant appeal stems primarily from this Broward County suit. In this Broward County suit, Sanderson sought to (1) enforce Hudlett’s guaranty; (2) enforce the note secured by the mortgage on the Margate property; and (3) foreclose the mortgage on the Mar-gate property. To make matters more difficult, during the pendency of the Palm Beach County action, Bee Bee Medical had conveyed the vacant land portion of the Coventry Place Property to a third party, Edward Hanson.

At the trial below, Mr. Sanderson explained that the transfer of the vacant land by Bee Bee Medical to Hanson was part of a deal that he and his wife had made with Hanson. Hanson and his wife owned a home in Palm Beach and Sanderson and his wife owned a home in Palm Beach. The Sandersons and Hansons agreed to swap residences. The Hansons’ home, however, was valued at considerably more than the Sandersons’. Hanson developed real property in Virginia and was looking for more land. Sanderson called Feldman and asked if Bee Bee Medical would be willing to convey the Coventry Place vacant land to Hanson. The difference in values between the Sanderson and Hanson homes was to be made up by Bee Bee Medical’s conveyance of the vacant land to Hanson. The Sandersons’ attorney represented that the land was worth approximately $270,000 and Sanderson testified that, by this time, the note on the Coventry Place property had been substantially paid .down. According to Mr. Sanderson, Hanson took the vacant land subject to the Sandersons’ mortgage on the same. In exchange for Bee Bee Medical’s conveying the vacant land to Hanson, the Sandersons gave Bee Bee Medical and Feldman a covenant not to sue. And, after all of this, the Sandersons agreed to subordinate their mortgage and permit Hanson to give a first mortgage to a third party. Hanson defaulted on the first mortgage.

At the hearing, the Sandersons’ attorney argued that, in essence, Bee Bee Medical had deeded the property back to the Sand-ersons in lieu of the Sandersons foreclosing their mortgage on the Coventry Place property. Instead of deeding the property to Sanderson and Sanderson then deeding it to Hanson, Bee Bee Medical simply deeded it to Hanson directly. The Sander-sons’ attorney conceded that Hudlett was entitled to a credit of $270,000, representing the value of the vacant land transferred to Hanson for the benefit of the Sandersons; nonetheless, he contended that Hudlett remained liable on her $175,000 guaranty. According to the Sandersons’ attorney, a total of $310,000 was owed (the principal on the Coventry Place note was $225,000, plus the $40,000 that the Sandersons were required to spend to redeem the first mortgage on the property, plus the accrued interest) and, thus, even if Hudlett was credited $270,000 for the value of the vacant land, there was still a deficiency and it was this amount that the Sandersons were seeking to recover. Ultimately, the judge ruled that when the Sandersons accepted the deed to the property in lieu of foreclosure (via the transfer of the property from Bee Bee Medical to Hanson), “there was a merger of both estates in Plaintiff, and, as a matter of law, all the mortgages, debts, guaranties, and liabilities associated with said transaction were extinguished, satisfied and discharged.” Judge Andrews ordered the note and mortgage on the Margate property discharged, absolved Hudlett of liability as guarantor or surety on any of the notes, mortgages, or guaranties, and entered judgment in favor of Hudlett. Then, Judge Wessel in the Palm Beach County action entered judgment in favor of Hudlett and Player, finding that the facts and causes of action were identical to those in the Broward County case and directing that any further proceedings be consolidated with the Broward action and transferred to that county. This case represents the consolidated appeals of both final orders.

“[A] transfer of the interest of a mortgagor in mortgaged property to a mortgagee generally operates as a merger of the legal and equitable estates which results in a discharge of the mortgage and a satisfaction of the debt.” Gourley v. Wollam, 348 So.2d 1218, 1220 (Fla. 4th DCA 1977).

But this is not always and necessarily the result. Whether it is or not, depends upon the intention of the person in whom the interests are united, and that intention is to be determined by his declarations at the time, or, in the absence of these, by his interest, as shown in the condition of things then existing, or by the attending circumstances. When there is no evidence of the intention of the owner in uniting the legal and equitable estates in himself, it is proper to presume that he intended that effect which is the most beneficial to him.

Jackson v. Relf, 26 Fla. 465, 8 So. 184, 185 (1890), quoted in Gourley, 348 So.2d at 1220. “There can be no merger at law, without a union of titles in the same person; nor, in equity unless, also, there is an express or presumed intention on the part of those concerned in the transaction that it should operate as a merger.” Polk Bond & Mortgage Co. v. Dwiggins, 109 Fla. 443, 147 So. 855, 857 (1933). And, it is the mortgagor’s burden to establish that the mortgagee intended the merger and release of the mortgage. Gourley, 348 So.2d at 1220.

Returning to the instant case, Judge Andrews certainly seemed aware that Sanderson’s intent was the critical issue in assessing whether there was a merger of the estates and, as a consequence, extin-guishment of the associated debts and liabilities:

7.... [I]t was the clear intent of Plaintiff for the two estates, namely plaintiffs interest in the mortgage and her interest in the property, to merge. The Plaintiffs husband testified, and their counsel argued that said transfer of property to third party ... was a shortcut or accommodation for convenience, to avoid the necessity of first transferring the subject property back to Plaintiff and then for the Plaintiff to transfer her merged interests to Hanson.
8. Furthermore, the clear intent of Plaintiff to merge the two estates was demonstrated by the fact that she received the ultimate benefit from the transfer of the subject property....

These findings, however, address only whether Sanderson intended that the property actually be returned or conveyed to her, despite the reality that it was actually conveyed to Hanson. The salient issue here, though, is whether Sanderson intended that the encumbrances on the land be wiped out. See Jackson, 8 So. at 185 (refusing to find merger where mortgagee had purchased property to prevent it from being sold at a tax sale and stating, “[ujnder such circumstances it would be extremely unreasonable to infer an intention to extinguish his mortgage ”)(emphasis added); Janus Props., Inc. v. First Fla. Bank, N.A., 546 So.2d 785 (Fla. 2d DCA 1989)(affirming the trial court’s finding that there had been a merger of the two estates in the First Florida Bank when the mortgagors/purchasers conveyed the property to the bank and the bank executed and recorded a satisfaction of its mortgage).

All of the evidence before the trial judge suggested that Sanderson did not have the intent that the estates merge and that the associated debts be deemed satisfied. First, assuming that the vacant land was worth $270,000, receipt of such amount would not have made Sanderson whole. Consequently, it would be contrary to Sanderson’s best interests to wipe out her mortgage and the related guaranties. Second, the mortgagor’s husband testified that Hanson took the vacant land subject to Sanderson’s mortgage. Third, in exchange for Bee Bee Medical transferring the vacant land to Hanson, Sanderson gave Bee Bee Medical not a release or any documentation stating that the note and mortgage were deemed satisfied or discharged, but a covenant not to sue Bee Bee Medical or Feldman. See Rosen v. Fla. Ins. Guar. Ass’n, 802 So.2d 291, 295 (Fla.2001)(“ ‘A release is an outright cancellation or discharge of the entire obligation as to one or all of the alleged joint wrongdoers. A covenant not to sue recognizes that the obligation or liability continues but the injured party agrees not to assert any rights grounded thereon against a particular covenantee.’ ”)(quoting Atl. Coast Line R.R. v. Boone, 85 So.2d 834, 843 (Fla.1956)); see also Paul E. RobeRts, A.L.I. — A.B.A. ContinuiNG Legal Educ., Deeds in Lieu of FORECLOSURE (July 17,1989)(recognizing the possibility of non-merger with a deed in lieu of foreclosure and suggesting that a covenant not to sue, rather than a release, may be utilized to preserve the mortgage). Under these circumstances, we must conclude that the trial judge erred in entering summary judgment finding that there was a merger of estates in Sanderson such that all debts and liabilities associated with the Coventry Place property were discharged. Accordingly, we reverse the final judgments in both the Broward and Palm Beach County cases and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

. POLEN, C.J., and TAYLOR, J., concur.

      . The discussion at the trial below suggested that Bee Bee Medical had already sold the developed units portion of the Coventry Place property, that Sanderson had provided Bee Bee Medical a release with respect to those units, and that the proceeds from the sale of the units went to the first mortgage holder, Langer.

      . The only "evidence” on this issue was Sand-erson’s attorney's representation to that effect during argument to the judge.

      . The fact that, here, Sanderson gave Bee Bee Medical and Feldman a covenant not to sue rather than a release distinguishes the instant case from the facts present in Prigal v. Kearn, 557 So.2d 647 (Fla. 4th DCA 1990), relied upon heavily in Hudlett's memorandum of law, which was incorporated by reference into Judge Andrews' final judgment.

      . The final judgment in the Palm Beach County action rested entirely upon the judgment entered by Judge Andrews in the Bro-ward County case.


source: Caselaw Access Project

author: PER CURIAM. HAZOURI, J.,

license: Public Domain

text:
    Robert CARRATELLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-2714.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Jan. 15, 2003.

      Roy Black and Christine M. Ng of Black, Srebnick & Kornspan, P.A., Miami, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Carratelli was tried by jury, convicted of six counts of vehicular homicide, and sentenced to fifteen years in prison. The charges arose from an accident that occurred on June 4, 1999, when Carratelli drove his Mercedes Benz at a high rate of speed through a red light and into a 1994 Mercury Grand Marquis LS. All six passengers in the Grand Marquis died at the crash scene.

On appeal, we address two of Carratel-li’s claims and hold that: (1) Carratelli failed to preserve error arising from the denial of his juror challenges for causes and (2) there was no error in admitting in evidence of expert accident reconstruction testimony and a diagram which formed a part of the basis for that testimony.

Jury selection

The jury selection process was lengthy and difficult due to extensive pretrial publicity. During the voir dire, defense counsel moved to exclude a number of potential jurors for cause.

We find that the trial court abused its discretion in denying the defense’s attempted strikes for cause as to jurors Nes-bitt, Johnson, and Lott.

Nesbitt had worked for fifteen years in law enforcement and for five years as a fireman. When initially asked by the trial judge whether he could be a fair and impartial juror, Nesbitt responded that he was not sure. He vacillated between indicating that he could be fair and that he might not. Nesbitt admitted that he had seen television and news reports concerning the accident and that at the time of the accident, he had read many stories about it every day in the newspaper.

When asked if he could set aside what he had heard or read, Nesbitt responded, “I believe, I could.” He stated that he had talked about this case with his law enforcement friends; they specifically discussed the speed of appellant’s vehicle and appellant’s diabetic condition. In addition, the following colloquy took place regarding any preconceived opinions Nesbitt may have had:

Defense: In terms of your police officer relationships and the discussion and the publicity, is it a fair statement to say that the defense is not starting on an equal playing field?
Nesbitt: As far as me?
Defense: Yeah.
Nesbitt: I would hope to say that you would be. But it’s a little hard for me to answer that question, because I don’t know if I really formed an opinion or not. I try not to. But if I had—
Defense: If you have, what is it?
State: I object to him giving his opinion.
Court: Overruled.
Nesbitt: There could be a matter of guilt there, but that’s my opinion, but I can’t say for sure that I can’t be convinced with evidence.
Defense: In other words, you are saying I might be able to talk you out of that?
Nesbitt: With evidence, I’ve got to see the evidence. I have to see the evidence and if the evidence is there, beyond a reasonable doubt, I believe I can make the right decision but — reject my opinion, whatever it may be, but I have to go strictly by the evidence.
Defense: You are saying the evidence could convince you to reject the opinion that you have?
Nesbitt: Yeah, yeah. If there is a— guilty beyond a reasonable doubt, okay, I would have to go one way.
Defense: What way?
Nesbitt: Guilty, but if it is not there, I can’t, in all honesty, vote guilty for somebody that it wasn’t proven against.
Defense: It happens. The last question for you: Is it a concern in your mind, though, that it might take more of a defense or more evidence to help convince you to find Mr. Carratelli not guilty than it might otherwise take if you weren’t who you are, having discussed this case and having read what you read?
Nesbitt: I don’t think it would take more. Whatever evidence is presented in the ease, I am going to have to go with that evidence and I don’t think I would be coming back and say, I need more.
Defense: Now, would you suggest might it be more difficult for Mr. Carratelli to be acquitted with you as a juror than with a juror that didn’t have the preconceived opinion as it were, as you described it?
Nesbitt: The way you put that, in all fairness to him probably it would, but that’s — I don’t want to sit here and say, you know, no, but — .

Subsequently, the State asked Nesbitt if he could set aside the conversations he had had with his friends, view the evidence on the facts, apply the law to the facts, and not prejudge the defendant. Nesbitt responded that he could.

Juror Lott initially expressed doubts as to whether she could keep her feelings out of her decision. She mentioned that a friend had recently lost a child in an ATV accident.

Lott: I know my emotions would come into play because I would think, you know, if I am to think about that child, this doesn’t even involve kids. I know my emotions will come into it.
Defense: And will it — will that then serve to the detriment of Bob Carra-telli?
Lott: It could possibly, and I wouldn’t want it to be, so I would honestly say that in fairness to him, I don’t think you — I would be good for him, you know, emotional wise. I don’t think I’m there yet.
Defense: Because of the recency of that tragedy, do I hear you saying that you feel that you do not believe that you could be as fair and impartial as the law would want you to be on this particular case?
Lott: Yes, and as he deserves.
Defense: So you would rather not sit because of that?
Lott: I would, because I would want someone sitting here in a reverse role to be totally, you know, I would want them to be totally, out of a hundred percent of themselves, and I am not. And just don’t think I would be fair to him.

The state asked Lott if she would follow the law and listen to the facts, and she responded, “uh-hum.” The trial judge also asked Lott if she could do the job and be emotional and logical at the same time, and she stated, “I’ll try, yeah, yes, I would think I would.”

Juror Johnson initially told the trial judge that she would not have any problems being fair and impartial, but when questioned by the defense indicated otherwise.

Defense: Are you concerned that because of the magnitude of this accident that you can’t really concentrate and be fair?
Johnson: I don’t think I could be fair. I just—
Defense: It’s okay too, I just need to know.
Johnson: I don’t have the words.
Defense: Are you overwhelmed by the tragedy?
Johnson: Yeah, I feel sorry for the six people that lost their lives.
Defense: Do yon feel because of that, that you are just not going to be able to be fair to Mr. Carratelli in case [sic]?
Johnson: Yeah.
Defense: Even though you[’d] like to be?
Johnson: Yes.
•Defense: You just know, no matter what the judge tells you, you are not going to be able to be fair?
Johnson: No.
Defense: Do you agree with that statement?
Johnson: Yes.
Defense: And you would rather not be seated because you can’t be fair—
Johnson: Right.
Defense: — to Mr. Carratelli?
Johnson: Yes.

When questioned by the State, Johnson indicated that after listening to all of the evidence, she “probably could” be fair to both sides.

An appellate court reviews a trial judge’s decision on a for-cause challenge for an abuse of discretion. See Singleton v. State, 783 So.2d 970, 973 (Fla.2001). “ ‘The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.’” Street v. State, 592 So.2d 369, 371 (Fla. 4th DCA) (on clarification) (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984)). “A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to render an impartial verdict.” Singleton, 783 So.2d at 973. “Because impartiality of the finders of fact is an absolute prerequisite to our system of justice, we have adhered to the proposition that close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality.” Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994).

Consistent with the foregoing principles, the courts have held that the mere fact that a juror eventually acquiesces and asserts that he or she can be fair does not necessarily resolve doubts initially raised as to that juror’s ability to sit as a fair and impartial fact-finder:

The rehabilitation of prospective jurors is a tricky business that often leads to reversal. Although Florida law allows for the rehabilitation of prospective jurors whose responses during voir dire examination raise questions concerning their impartiality, “[a] juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Price v. State, 538 So.2d 486, 489 (Fla. 3d DCA 1989). As the Florida Supreme Court has observed:
It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?
Johnson v. Reynolds, 97 Fla. 591, 599, 121 So. 793, 796 (1929).

Martinez v. State, 795 So.2d 279, 283 (Fla. 3d DCA 2001).

Here, the record demonstrates reasonable doubts concerning Nesbitt’s, Johnson’s, and Lott’s abilities to be fair and impartial. Those doubts were not dispelled during subsequent questioning. Each of these jurors expressed significant reservations about their suitability to sit as jurors in this case. While a prospective juror’s own perception of his or her unfitness to sit as a fair and impartial juror in a particular case does not end the inquiry, such an assessment cannot easily be disregarded. Because Nesbitt’s, Johnson’s, and Lott’s responses created a reasonable doubt as to their ability to sit as fair and impartial jurors, the trial court abused its discretion in denying- appellant’s, challenges for cause to this ■ trio. See Williams, 638 So.2d at 978 (holding that juror’s response to the judge that “I’ll be impartial because that’s my character” was not sufficient to erase the doubt created -by his other comments and, thus, the trial court abused its discretion in refusing to strike the juror for cause); Brown v. State, 728 So.2d 758, 759 (Fla. 3d DCA 1999) (holding that juror’s response to judge’s question regarding whether juror could set aside personal feelings of crime: ‘‘Yeah, I think so,” was equivocal).

The defense failed to preserve the issue regarding cause challenges

To say that the trial court erred in failing to grant cause challenges does not end the inquiry.

“[T]o preserve for appellate review a claim that the trial court improperly denied a cause challenge to a juror, a defendant must exhaust his peremptory challenges, request an additional peremptory challenge from the court, and demonstrate that an objectionable juror was seated.” Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002).

The trial judge understood the state of the law. During voir dire, he' allowed each side two additional peremptory challenges. The next day the judge denied a defense request for additional challenges, observing that the defendant still had “a strike left.” Later that afternoon, the judge denied a defense request for additional challenges immediately after a discussion that confirmed that the defendant still had one challenge remaining.

At that point, the request for additional challenges was not ripe, because the defendant had not yet exhausted his peremptory challenges. The existence of additional peremptory challenges is crucial because of the reason why appellate courts reverse when a trial judge has erroneously refused to grant a cause challenge. The erroneous refusal to grant a cause challenge abridges a defendant’s right to peremptory challenges

by reducing the number of those challenges available [to] him. Florida and most other jurisdictions adhere to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.

Id. (quoting Hill v. State, 477 So.2d 553, 556 (Fla.1985)). This language from Hill indicates that a request for an additional challenge should follow a party’s exhaustion of peremptory challenges.- There is no legal reason for allowing additional challenges if a party has peremptory challenges remaining, because no prejudice has yet occurred.

The defendant used his last peremptory challenge to strike prospective juror Berry. The state accepted the jury. The court turned to defense counsel:. “Those six jurors unless additional challenges from the defense, [defense counsel],” Defense counsel responded: “If — if there are others, I would challenge including Mr. Inman, and others, if you granted me more peremptories.”

The trial court did not respond to defense counsel’s statement. There is no indication that the judge even heard it. Throughout the trial, the court was careful to rule on the record on other objections and motions. The judge’s very next question concerned the alternate juror. After the state struck an alternate, the defense accepted the next alternate seated “without waiving the challenge to the jury itself.”

Defense counsel’s statement quoted above was neither a motion nor a request for additional peremptory challenges. Even if counsel’s statement was an adequate communication of the desire for an additional strike, the defense did not preserve the issue for appellate review because it failed to pursue the motion and obtain a ruling on it.

This point is controlled by Richardson v. State, 437 So.2d 1091, 1094 (Fla.1983). In that case, the defendant moved to strike certain testimony at a sidebar conference. The judge did not rule and the defendant “did not pursue his motion to strike” to obtain a ruling from the court. Id. Under those circumstances, the supreme court held that the defendant had not preserved the issue for appeal. Id. Here, defense counsel’s failure to obtain a ruling on his “request” for additional challenges similarly failed to preserve the issue regarding cause challenges. See Armstrong v. State, 642 So.2d 730, 740 (Fla.1994) (citing Richardson with approval).

A plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review. See Rose v. State, 787 So.2d 786, 797 (Fla.2001), cert. denied, 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed.2d 252 (2002) (noting that as a general rule, the failure of a party to get a timely ruling by a trial court constitutes a waiver of thé matter for appellate purposes; citing with approval to Richardson); Bush v. State, 809 So.2d 107, 117 (Fla. 4th DCA 2002) (holding that the defendant failed to preserve for appellate review one prosecutorial closing argument comment because she did not object at all and failed to preserve a second prosecuto-rial closing argument comment because she “failed to secure a ruling on her objection ... and failed to move for a mistrial”) (emphasis added); Filan v. State, 768 So.2d 1100, 1101 (Fla. 4th DCA 2000) (where this court wrote that “[a]n issue or objection is ‘preserved’ within the meaning of [§ 924.051(3) ] if it was timely raised and ruled on by the trial judge and if the objection was ‘sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.’ ” (Emphasis added) (quoting § 924.051(l)(b), Fla. Stat. (1999))); LeRetilley v. Harris, 354 So.2d 1213, 1214 (Fla. 4th DCA 1978) (observing that “failure to secure a ruling on an objection waives it, unless the court deliberately and patently refuses to so rule”); Willingham v. State, 781 So.2d 512, 513 (Fla. 5th DCA 2001) (defendant who moved for a directed verdict both at the end of state’s case and at the end of his own case, arguing that the evidence was insufficient to support conviction, failed to preserve this issue for appeal because the court merely reserved a ruling on these motions but never made a ruling); Newton v. S. Fla. Baptist Hosp., 614 So.2d 1195, 1196 (Fla. 2d DCA 1993) (failure to obtain clear ruling from trial court waives for appellate review issue of whether comment in closing argument was improper); Schreidell v. Shoter, 500 So.2d 228, 233 (Fla. 3d DCA 1986) (finding waiver where party objected to the opponent’s comment in closing argument and moved for a mistrial, but “the trial judge made no response to either request”) (emphasis added); Coffman v. Kelly, 256 So.2d 79, 80 (Fla. 1st DCA 1972) (holding that a party’s failure to secure a ruling on a motion was fatal: “The trial court can hardly be held in error for a ruling it did not make.”).

A superficial reading of one case from this court appears to depart from this weight of authority, but that case is not truly inconsistent and is distinguishable from the case at bar. In the personal injury case of Colvin v. Williams, 564 So.2d 1249, 1250 (Fla. 4th DCA 1990), this court held that the appellant/plaintiff preserved for appeal an objection to evidence concerning the plaintiffs prior litigation experience, even though the trial court did not make a specific ruling on the issue. This court wrote:

It is the trial court’s responsibility to make a dispositive ruling on all objections or motions that are properly brought before it. We can hardly fault a litigant, once a proper objection has been lodged with the court, if the court’s response is something other than a clear “sustained” or “overruled.” In this case, it appears that the trial court responded to appellant’s objection by simply saying “fine. ”

Id. (emphasis added).

Colvin is distinguishable for two reasons. First, the plaintiff in Colvin made a “proper objection.” Id. The defendant here did not actually move for additional peremptory challenges. Second, the trial judge in Colvin responded to the plaintiffs objection by saying “fine”; the judge’s failure to take further action allowed the disputed matters into evidence, so his conduct was tantamount to a ruling. The trial court in this ease made no response to Carratelli’s “motion or request” for additional challenges. A ruling on that issue cannot therefore be inferred from the record.

The second district in Newton disagreed with the language of Colvin suggesting that a party does not need to seek a specific ruling to preserve an issue for appellate review. 614 So.2d at 1196. The second district held that a party must obtain a “clear ruling” on an objection in order to preserve it. Id.

A better reading of Colvin is not that it receded from the general and well-settled rule that a party must secure a ruling on an objection to preserve it for appeal. Rather, Colvin was a case where the judge’s verbal response to the objection and his subsequent conduct left no doubt as to his ruling. The law in this district is still that the burden is on a party to secure a ruling where the trial court has made no response at all to an objection. See also U.S. v. Alejandro, 118 F.3d 1518, 1520 (11th Cir.1997) (holding that it is “incumbent” for a party to seek clarification of an ambiguous ruling for preservation purposes).

Requiring the record to demonstrate preservation of an objection to an erroneous denial of a cause challenge is justified by the severity of the sanction for such a mistake. In such cases, reversal is automatic, even where the trial is otherwise perfect, even if the questioned juror actually served with the wisdom of Solomon.

The evidence at trial

The evidence was undisputed that Car-ratelli ran a red light at a high rate of speed and collided with a Mercury, which was preparing to make a left turn onto Yamato Road. Carratelli did not dispute that he ran the light but attempted to establish that he had become disoriented and may have passed out behind the wheel just prior to the collision due to complications from his diabetic condition.

Carratelli relied on the defense that as a Type I, insulin-dependent diabetic, he suffered from a medical condition called syncope, which caused him to lose consciousness and run the red light. According to the expert medical testimony presented by thé defense, syncope is defined as the transient loss of consciousness (fainting). Syncope is common in people with diabetes. The person having a syncope episode may lose the ability to reason, react or control his actions, and if the episode continues, may eventually pass out. Carratelli was not diagnosed as having syncope until after the accident and now takes medication for it.

The state did not attempt to refute appellant’s defense with medical testimony of its own. Instead, the state advanced the theory that Carratelli took action at the last minute to avoid the accident; therefore, he could not have been unconscious or seriously disoriented at the time. The very existence of a skid mark, a disputed fact at trial, was contrary to Carratelli’s theory of the case. This factual dispute boiled down to the credibility of the evidence, a matter within the exclusive province of the jury.

Several witnesses either observed the accident or saw Carratelli’s vehicle shortly before the collision. Eyewitness accounts varied as to whether Carratelli applied the brakes or took any other evasive action as he went through the light. Florida Highway Patrol (FHP) Corporal Timothy Watts was the assigned investigator and arrived on the scene shortly after the crash to take witness statements and measurements.

Two trained witnesses responded to the accident scene and testified to the existence of skid marks left by the defendant’s Mercedes just before impact. Both witnesses testified at trial.

Lieutenant Roy Rogers was a twenty-nine year veteran with the FHP who arrived at the accident scene as a supervisor. He had investigated about 3,000 traffic accidents and 100 traffic homicides. He reconstructed how crashes had occurred and testified in court as an expert. Rogers opined that the Mercedes’ “brakes were applied” prior to impact. The evidence on the roadway of braking was “a mark in the right-hand.” Rogers characterized the mark as “a tire mark left by the Mercedes braking and steering to the left.” The mark was a solid mark; although very light, it was not difficult to see.

With the FHP for over twenty-two years, Sergeant Richard Davis was in charge of the traffic homicide division in Palm Beach County. He was a trained traffic homicide investigator who had investigated over 100 homicides himself. He had testified in court concerning traffic accident reconstruction. Davis responded to the accident scene on the night of the collision.

Davis observed skid marks that “indicated braking.” The marks were “east of the established zero point, east of the actual collision on the westbound lane.” The marks were “very light”; Davis said that “you had to almost get down into the road to look at them kind of level to see them because you couldn’t hardly see them, which was indicative of skid marks from a vehicle that were braking, and they lined up straight with the collision area.” Davis thought there were two marks that led to the point of collision; one that was very distinct, which one could see by “just getting down and looking,” and the other which was “very, very light” off to the south side of it. Davis said that this type of skid mark was consistent with an anti-lock brake system. He reviewed Corporal Perry Allen’s finished accident report and found it to be “consistent with the physical evidence” that he observed at the scene on the night of the accident.

On a videotape taken at the scene on the night of the collision, Davis showed the jury the “very light skid” mark that he described.

The state’s final witness in its case-in-ehief was Corporal Allen. Allen had been a traffic homicide investigator with the FHP for fourteen years. He had investigated several thousand accidents and 132 traffic fatalities. He attended over 800 hours of schooling concerning the investigation of motor vehicle crashes. He testified in court four times as an accident reconstruc-tionist. Allen was assigned the case in August, 1999, after the death of Corporal Watts, the initial investigator.

In reconstructing how a crash occurred and which vehicle caused a crash, Allen generally relied on mathematical formulas, physical evidence, and witness statements. In this case he reviewed photographs of the scene taken by Watts and visited the crash scene seven or eight times to “verify evidence that [he] received,” such as measurements. He reviewed the videotape which Sergeant Davis narrated for the jury. He interviewed two witnesses and reviewed the witness interviews conducted by Corporal Watts. Allen relied on measurements taken by Watts and other troopers and verified those measurements during his visits to the crash scene.

Allen completed a homicide report, a reconstruction diagram, and a final rest diagram of the accident. The state attempted to introduce Allen’s reconstruction diagram into evidence as State Exhibit 30. The defendant objected; his primary concern was Watts’ measurements of the skid mark. The judge sustained the objection and required the state to proffer Allen’s testimony on the skid mark measurements.

During the proffer, Allen testified that' he went to the accident scene with Sergeant Davis to measure the skid marks. He measured from the area of collision “to where the skid marks would have been.” He determined where to measure from Sergeant Davis’s indication of the location of the skid marks. He physically measured “from the area of impact to the stop bar where Sergeant Davis has testified he saw the mark.” These measurements were consistent with the skid mark' measurements made by the deceased Corporal Watts. On cross-examination, Allen conceded that the precise length of the skid mark depicted on Exhibit 27 was based on Watts’s earlier measurement. The court asked Allen several questions:

The Court: ... Corporal, is there anything indicated on exhibit 30 [the reconstruction diagram] that you did not independently verify?
Allen: Both of them [Exhibits 27 and 30] have the skid mark on them and I did measure and verify the measurement that I received when I went there and the actual skid mark wasn’t there. The Court: But you went with Trooper Davis?
Allen: Yes.
The Court: Who indicated from where to where he recalled it being?
Allen: Yes, sir.
The Court: And you remeasured that?
Allen: Yes.
The Court: And on 27 [the final rest reconstruction diagram], what is the difference on 27?
Allen: They both have the skid marks. The Court: And the same answer would be true then as far as everything else you independently verified?
Allen: Yes, sir.

At the end of the proffer, the judge decided to admit the final rest and reconstruction diagrams into evidence.

When direct examination resumed, Allen utilized the reconstruction diagram to describe the collision and what happened to the vehicles after it. Using measurements derived from the crush damages to the victims’ car, the angles of impact and departure, post impact speeds, and the weights of the cars, Allen testified that the defendant’s Mercedes was traveling at sixty-six miles per hour at impact.

The prosecutor asked Allen his opinion concerning the speed of the Mercedes when it entered the intersection prior to impact. The defendant objected. During a long bench conference, the court overruled the objection, observing that his previous ruling had precluded the prosecutor from getting into “any length of the skid mark” based on the deceased Corporal Watts’s measurements. The following testimony was then elicited:

State: Corporal Allen, in your opinion did the Mercedes brake prior to impact? Defense Attorney: Objection for the same reasons.
Court: Overruled.
State: You may answer.
Allen: Yes.
State: Did you factor in that braking period?
Allen: Yes.
State: And when you factored that in, what speed did you come up with at the time the brakes were applied?
Defense attorney: Objection, for all the reasons previously stated. Do I have to restate them?
Court: No, sir. Overruled.
Allen: Minimum speed of 76 miles per hour when it entered the intersection.

On the state’s direct examination, it is clear that Allen abided by the court’s ruling and did not disclose Watts’ measurements of the skid mark. There are no measurements on the final rest and reconstruction diagrams admitted into evidence. The state did not introduce the sketch removed from Corporal Watts’ home.

On cross-examination, the defense explored in detail the basis for Allen’s use of the disputed skid mark. Allen said that although the skid mark appeared for two seconds on the video, he would have taken photographs to document it had he been at the scene on the day of the collision. Allen conceded that he could not “recreate” the skid mark with only the information he obtained from Sergeant Davis. He said he also relied on the Watts diagram, which the defense then had marked as Defense Exhibit 5. Allen found the Watts diagram in a file inside Watts’ house. The sketch contained numbers and measurements. In response to defense questions, Allen testified that the diagram supported his opinion that there was a single skid mark sixty-three feet long, which started at the stop bar and stopped ten feet before the collision site.

On redirect examination, Allen asserted that his own measurements taken at the scene “were consistent” with those recorded by Corporal Watts. The state desired to question Allen about the contested sketch,' Defense Exhibit 5. The defense agreed to admit that exhibit into evidence as State’s Exhibit 42. Defense counsel noted that this stipulation was in response to the court’s earlier, disputed ruling on Allen’s testimony, which forced him to “show what Watts did and didn’t do.” The state then asked Allen to explain Watts’ sketch. Allen demonstrated how he obtained the skid mark length from the measurements and marks on the sketch. He explained that to formulate his opinion he often relies on what other troopers tell him.

Corporal Allen’s testimony and reconstruction sketch were properly admitted into evidence pursuant to section 90.704, Florida Statutes (2001)

Florida courts have admitted expert opinions of accident reconstruction experts to evaluate factors in traffic accidents. See Bryant v. Buerman, 739 So.2d 710, 712 (Fla. 4th DCA 1999) (concerning testimony about speed of vehicle at time of collision); Andrews v. Tew, 512 So.2d 276, 279-80 (Fla. 2d DCA 1987); Sikes v. Seaboard Coast Line R.R. Co., 429 So.2d 1216, 1222 (Fla. 1st DCA 1983). As Judge Klein has observed, “it is well settled that an expert in accident reconstruction can render an opinion about the speed of a vehicle and force of impact. Whether that issue can be the subject of expert testimony is not controversial.” Bryant, 739 So.2d at 713 (Klein, J., concurring).

The trial judge’s handling of Allen’s testimony is a textbook example of how section 90.704, Florida Statutes (2001) is intended to operate. That section.allows an expert to give an opinion based on facts or data that are not admissible in evidence, if “the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed.” Id. Here, the field measurements of Corporal Watts are the type of information reasonably relied upon by an accident re-constructionist to formulate an opinion of how an accident occurred. The trial court did not err in admitting Allen’s opinion.

To avoid the situation where an expert was a conduit for inadmissible evidence, the judge required the state to have Allen give his opinion without disclosing the disputed facts from Watts’ sketch. Section 90.705(1), Florida Statutes (2001) allows an expert to “testify in terms of opinion or inferences ... without prior disclosure of the underlying facts or data.” Where on direct examination an expert does not specifically describe the data upon which an opinion is based, “the expert may be asked on cross-examination about the underlying facts and data. During cross-examination, the expert may be required to disclose all of the evidence relied upon regardless of whether it is otherwise admissible.” CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 704.1 (2002 ed.). In this case, the disputed sketch was not disclosed to the jury until cross-examination. The defendant was permitted to cross-examine Allen to attempt to demonstrate that his opinions were based on shaky foundations.

This case is similar to Sikes. There, an “accident reconstructionologist” prepared a model for the jury demonstrating his opinion of “how he believed the accident may have occurred.” 429 So.2d at 1222. The expert based his opinion on the depositions of the deceased victim’s son, “train personnel, statements of apparently disinterested witnesses, surveys of the accident site, two visits to the site, pictures of the site and a homicide report, among others.” Id. The appellant in Sikes objected because the opinion was “based on information either not in evidence or that was inadmissible.” Id. Citing to section 90.704, the first district rejected this argument, because the sources of information identified above on which the expert based his opinion were “the types of information [upon which] such an expert would normally rely.” Id.

Carratelli’s reliance on Riggins v. Mariner Boat Works, Inc., 545 So.2d 430 (Fla. 2d DCA 1989) is misplaced. The essence of Riggins is that section 90.704 “does not ‘typically permit an expert to render an opinion exclusively upon inadmissible facts or data.’ ” Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995) (emphasis added) (quoting Riggins, 545 So.2d at 432); see Bender v. State, 472 So.2d 1370, 1371 (Fla. 3d DCA 1985) (observing that “the hearsay rule poses no obstacle to expert testimony premised, in part ... upon tests, records, data, or opinions of another, where such information is of a type reasonably relied upon by experts in the field”) (citations omitted). Giving an example of an expert opinion not based exclusively upon inadmissible facts, the Riggins court observed that “[w]hen a doctor renders an opinion based upon an inadmissible laboratory report, that opinion is usually buttressed by additional facts which are in evidence or by an examination of a patient whom the jury has also observed.” 545 So.2d at 432.

An example of improper bolstering under section 90.704 occurs when an accident reconstruction expert testifies to point of impact based only on the hearsay statements of bystanders who do not testify at trial. See Sikes, 429 So.2d at 1222-23. This situation occurred in Maklakiewicz, a case involving a pedestrian-car collision. 652 So.2d at 1209. To reconstruct the accident, the expert relied exclusively on the hearsay statements of the only eyewitness, “a homeless person who was never found for deposition or trial” and the testimony of a medical examiner who was not deposed and did not testify. Id. Other than the witnesses’ testimony, there was no physical evidence that would explain how the accident occurred. Following Riggins, the third district held that the expert’s opinion was inadmissible because it was “exclusively” based upon inadmissible facts or data. Id.

This case differs from Riggins and Mak-lakiewicz in an important respect. Allen’s opinion was not based exclusively on inadmissible data. The crucial fact in this case was the existence of a skid mark attributable to the defendant, not its length. Two experienced witnesses — Lieutenant Rogers and Sergeant Davis — testified about observing the skid mark on the night of the collision. Davis pointed out the skid mark on the videotape played for the jury. The basis of the trial court’s ruling admitting Allen’s testimony, which was apparent during the excerpt from the proffer quoted above, was that Allen relied on information given by witnesses who testified at trial to formulate his opinion about the skid mark.

This case is much closer to Capehart v. State, 583 So.2d 1009 (Fla.1991), a case decided after Riggins. Capehart was a homicide case where the medical examiner who performed the autopsy on the victim died before the defendant’s trial. Id. at 1012 n. 6. The deceased examiner’s autopsy report was not admitted into evidence. The defendant objected to another medical examiner testifying at trial “regarding the cause of death and the condition of the victim’s body.” Id. at 1012. Although there was no objection to the new medical examiner’s qualifications as an expert, the defendant argued that there was not a “proper foundation” for her testimony. Id.

The supreme court in Capehart held that under section 90.704, there was a proper predicate for the medical examiner’s testimony, even though she relied on facts or data not in evidence, because such information was of “‘a type reasonably relied upon by experts in the subject to support the opinion expressed.’ ” Id. (quoting § 90.704, Fla. Stat. (1987)). The court observed that the expert “formed her opinion based upon the autopsy report, the toxicology report, the evidence receipts, the photographs of the body, and all other paperwork filed in the case.” Id. at 1013.

Similar to CapehaH, this was a case where the expert who did the hands-on work died before trial. Like the autopsy report in Capehart, the Watts sketch of the scene was not admissible in evidence on the state’s direct case, but it was the type of information that Allen could reasonably rely on to form his opinion. As did the medical examiner in Capehart, Allen relied on the inadmissible evidence in conjunction with other facts to develop his opinion. The trial court’s ruling precluded disclosure of Allen’s measurements of the skid mark on direct examination. Based on Capehart, the trial court did not abuse its discretion in overruling the defense objection to Allen’s testimony.

AFFIRMED.

STEVENSON and GROSS, JJ., concur.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurs specially with opinion.

I concur, but write to identify a fourth juror, who when challenged for cause, should have been excused. This fourth juror is juror Inman who was identified by defense counsel as the juror he would peremptorily challenge if the trial court granted him more peremptory challenges. Juror Inman stated that he received information about this case from the television and the newspaper. In addition, he stated that he discussed it with a group at his local barbershop, and the group “pretty much all decided that Carratelli was probably guilty of the charge.” Carratelli’s defense concerning the diabetes was felt to be an excuse. Inman claimed, however that he did not participate in the conversations but only overheard these conversations. Inman also read an article in the Palm Beach Post concerning the case; however, he stated that the article really did not do that much for him because he thought it was more of an editorial than an objective article. In addition, the following colloquy took place:

Defense: Would you say that this is a fair statement that you have an opinion about the defense but it’s not — you have not positively made up your mind?
Inman: That’s correct.
Defense: But it would certainly be more difficult for Mr. Carratelli to convince you of his innocence now than if you had not read the article had not been involved in that discussion?
Inman: I believe that’s a fair statement.
Defense: Even though, of course, you know, we know that in a pure world you wouldn’t have read it, and that you should be able to put things out of your mind; obviously it’s in there, right?
Inman: That’s correct.
Defense: That’s correct.
Court: Mr. Inman, you used a phrase a minute ago but I don’t want to put words in your mouth, as to this type of defense; I gather that you think it’s possible there is a medical explanation that would explain the situation?
Inman: Well, there’s a possibility that that could happen.
Court: And regardless of what discussions you had already, you’d be willing as a juror, to sit here and listen to whatever medical testimony you- hear?
Inman: Absolutely.
Court: Whether it makes sense or it doesn’t?
Inman: Yes.
Court: Would you be able to set aside any input you had, bias or prejudice, and sit here and assure us all that you can be a fair and impartial juror?
Inman: If I come in here as a juror, I will sit down with an open slate and listen to what is said and make up my mind from there.

(Emphasis added.)

At the conclusion of the questioning of prospective jurors, the defense counsel moved to strike juror Inman for cause which the trial judge denied.

Carratelli is presumed to be innocent until the State proves guilt beyond any reasonable doubt. His sole defense was that a previously undiagnosed diabetic condition caused a syncopal episode resulting in the crash. Juror Inman’s expressed view that it would be more difficult for Carratelli to now convince him of his innocence, i.e. that Carratelli had a syncopal episode, because juror Inman had read the article and had listened to the discussion at the barbershop creates a reasonable doubt that juror Inman could be fair and impartial. The trial court’s attempt to rehabilitate juror Inman fails to persuade me otherwise.

      . Sergeant Davis narrated as the videotape was playing. When the tape came to the skid marks he had described, he said:
      [N]ow, you can hardly see it but right in this area here is the very light skid; that’s one of the ones I was referring to. You can barely see it. If I back this up, you will see it for a second and then it disappears. It comes in and comes actually to there, across right there; very light Comes in and that’s what I referred to that comes to the initial [point of collision].

      . We note that from viewing the physical condition of the Mercury from photographs in evidence, even a lay person would conclude that the speed of the defendant's Mercedes was great at the time of impact.


author: GROSS, J.

text:
    TOWN OF JUNO BEACH, a Florida municipal corporation, Petitioner, v. T. Bragg McLEOD, Respondent.
    No. 4D02-624.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Jan. 15, 2003.
    Gregory S. Kino and W. Jay Hunston, Jr. of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, West Palm Beach, for petitioner.
    Thomas J. Baird and Susan A. Kennedy of Thomas J. Baird, P.A., North Palm Beach, for respondent.

      Daniel K. Corbett, Juno Beach, for Ami-cus Curiae Celestial Court Partnership.
   GROSS, J.

The Town of Juno Beach petitions for certiorari review of a circuit court opinion that granted certiorari and quashed the Town’s decision to rezone certain property. We grant the petition and quash the decision of the circuit court.

In March, 1999, Celestial Court Partnership (Celestial) applied to the Town for a zoning change as to an undeveloped parcel of property it owns. The parcel is located on the northeast corner of Olympus Drive and U.S. Highway One; it is 125 feet by 200 feet, with 125 feet of frontage on U.S. One, the property’s western boundary, and 200 feet on Olympus Drive.

As to the west 120 feet of the property, Celestial sought to change the zoning from RS-1, residential single family with low density, residential future land use, to CO, commercial office with commercial future land use. The application proposed that the east 80 feet of the property remain single family residential to create a buffer to the adjacent single family area. Celestial desired to develop a mixed-use two story building with professional offices on the ground floor and residential apartments on the second floor.

The application indicated that residential areas lay to the property’s north, east, and south, but across the highway to the west was Seminole Plaza, a 60,000 square foot commercial shopping center. Along with the rezoning request, Celestial sought to amend the Town’s comprehensive plan, to change the future land use from the existing Low Density Residential to a Commercial future land use classification.

The town staff report recommended granting the request. The report observed that the property was approximately .57 of an acre and that the proposed rezoning would cover the west portion, about .34 of an acre. Staff wrote that the rezoning was consistent with the proposed commercial future land use classification. The report noted that the property to the west was zoned Commercial General (CG), a more intense use than that sought by Celestial. Staff stated that the proposed mixed use project

will provide a consistent transition from the highway and more intensive uses to the west, to a mixed use of less intensive commercial office and residential uses. Further, the proposed mixed use is a much needed element within town. In this general area of town there are two existing mixed use sites, which function and co-exist very well within their neighborhoods.... Mixed uses are transitional uses. Transitional uses are a necessary element for a sustainable community. Transitional uses allow communities to identify themselves as individual places, among a larger sprawl-like general area, such as greater Palm Beach County.

Staff described the proposed use as “an ideal transition use from commercial uses across the highway and single family residential uses to the east.”

The town council held two public hearings on changing the land use designation and zoning. The council heard expert and lay opinions on all sides of the proposed changes. The council voted to adopt Ordinance 509, which amended the future land use map of the comprehensive plan for the property from residential use to commercial use. The council voted to approve Ordinance 510 to rezone the property from residential to CO.

Respondent T. Bragg McLeod owns a single family residence 300 feet east of the property at issue. He filed a petition for writ of certiorari in the circuit court challenging the rezoning. At the same time, in an administrative proceeding, McLeod and others unsuccessfully challenged the amendment to the future land use map.

A three-judge panel of the circuit court granted the petition for writ of certiorari and quashed the town’s rezoning decision. The circuit court wrote that “[wjhether the town departed from the essential requirements of law depends largely on what constitutes the ‘neighborhood’ for purposes of rezoning.” After observing that there “is no definition of ‘neighborhood’ in the Town’s comprehensive plan or in Chapter 163, Part II, Florida Statutes (2000),” the circuit court nevertheless concluded that “existing Florida law does not permit the Town to extend” the commercial use across U.S. Highway One “in the manner that it did.” The circuit court also ruled that the town’s “action constituted spot zoning.” Finally, after a discussion of the conflicting evidence at public hearings, the circuit court concluded that there was “no competent substantial evidence” to support the rezoning.

This court described the two-tier framework for review of a zoning decision in Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1032 (Fla. 4th DCA 2002):

In the “first-tier” review, a party may seek certiorari review in the circuit court, which is more akin to an appeal and is not discretionary. The court must review the record from the commission decision and determine whether: (1) procedural due process has been afforded; (2) whether the essential requirements of law have been observed; and (3) whether competent substantial evidence supports the commission’s judgment. The “competent substantial evidence” standard of review applied to this first-tier review “is tantamount to legally sufficient evidence.” On certio-rari petition to the district court, “second-tier” review, that court is limited to determining whether procedural due process has been afforded and whether the circuit court applied the correct law. It is not allowed to determine whether the commission decision is supported by competent substantial evidence.

(Citations omitted).

We agree with the Town that the circuit court failed to apply the correct law and failed to apply the correct standard of certiorari review when it substituted its evaluation of competent substantial evidence for that of the Town.

The circuit court applied the wrong law, in that it did not evaluate this zoning request within the context of the Town’s comprehensive plan, which designates this property for commercial rather than residential use. Coastal Dev. of N. Fla., Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla.2001) (zoning changes are scrutinized by the circuit court on certiorari review to assure strict compliance with comprehensive plan).

The circuit court relied instead on cases which are distinguishable. They were decided long before the adoption of local comprehensive plans pursuant to Chapter 163, Florida Statutes, which governs comprehensive planning. Also, those cases affirmed the local government’s exercise of discretion, and, therefore, do not stand for the proposition that the Town acted arbitrarily in this case. City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956) (affirming city’s zoning decision by reversing circuit court); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941) (reversing circuit court and affirming city’s down zoning); Harris v. City of Coral Gables, 157 So.2d 146 (Fla. 3d DCA 1963) (affirming dismissal of case where property in one city asked to be zoned similarly to adjacent property in different city); Town of Surfside v. Skyline Terrace Corp., 120 So.2d 20 (Fla. 3d DCA 1960) (reversing court’s reversal of zoning decision on the ground that the town’s decision as to where a zoning district ends was a legislative action).

Because comprehensive plan policies are implemented through zoning codes, the circuit court was also required to apply the zoning code. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838 (Fla.2001) (decision granting or denying development order is governed by local regulations, which must be uniformly administered); Davis v. St. Joe Paper Co., 652 So.2d 907, 910-11 (Fla. 1st DCA 1995) (Ervin, J., concurring) ((citing City of Cape Canaveral v. Mosher, 467 So.2d 468 (Fla. 5th DCA 1985)), for the proposition that, under the Florida Statutes which govern planning and zoning, after adoption of a comprehensive plan, zoning changes should be made when existing zoning is inconsistent with the plan to make the zoning more consistent with the plan).

The Town’s zoning code designates only two zoning categories for land with a commercial land use designation — General Commercial and Commercial Office. The Commercial Office zoning placed on the property by the Town is the less intense use category consistent with the plan. It was adopted by the Town to serve as a buffer between commercial uses and residential uses, which is the use to which it was put on this property.

Thus, when the land-use designation for this property was changed to commercial, the existing residential zoning became inconsistent with the plan. The new zoning category is consistent with all controlling statutes and ordinances. Also, as a matter of law, the change did not constitute “spot zoning.” S.W. Ranches Homeowners Ass’n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987) (zoning change not spot zoning because it was consistent with the purposes of the comprehensive plan).

Florida law does not supply a hard and fast definition of “neighborhood” from which the Town departed in making its zoning decision. Here, the decision as to what constitutes a “neighborhood” was a factual, not a legal one. The town’s zoning code allows it to take adjoining uses into consideration as a factor in rezoning, including the fact that the subject property adjoins a four-lane divided highway, with an average daily traffic count of 24,000 trips and with a projected widening to six lanes.

In addition, the circuit court failed to grasp its role in the review process. As the supreme court explained in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1275-76 (Fla.2001):

We reiterate that the “competent substantial evidence” standard cannot be used by a reviewing court as a mechanism for exerting covert control over the policy determinations and factual findings of the local agency. Rather, this standard requires the reviewing court to defer to the agency’s superior technical expertise and special vantage point in such matters. The issue before the court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit has no training or experience — and is inherently unsuited — to sit as a roving “super agency” with plenary oversight in such matters.

It is also apparent from the opinion that the circuit court reweighed the evidence. Like the circuit court in Gyongyosi, the court “engaged in a reweighing of conflicting evidence and ignored evidence which supported” the town’s decision. 828 So.2d at 1032. It “appears to have applied the ‘competent substantial evidence’ standard of proof, as set forth in Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla.1986), rather than the standard of review.” Gyongyosi, 828 So.2d at 1032.

For these reasons, we grant the Town’s petition and quash the circuit court’s decision.

GUNTHER and WARNER, JJ., concur.

      . McLeod and others filed a petition for formal administrative hearing with the State of Florida, Department of Community Affairs, pursuant to section 163.3184(9), Florida Statutes (2000). They contended that the land use plan amendment constituted spot planning, because it was a piecemeal changing of the use affecting a single lot, increasing its density and intensity and creating disharmony in the area. They sought an order finding that the change was not in compliance with the local government comprehensive planning and land development regulation act, and recommending that the amendment not become effective. Following a two-day hearing, the administrative law judge recommended that the department issue a final order determining that the plan amendment was in compliance. Over McLeod’s exceptions, the Department issued a final order dated May 30, 2001, accepting the administrative law judge’s recommendation and determining the comprehensive plan amendment to be in compliance. The order was not further challenged.

      . See Bird-Kendall Homeowners Ass’n v. Metro. Dade County Bd. of County Comm'rs, 695 So.2d 908 (Fla. 3d DCA 1997). Though the circuit court relied on Bird-Kendall for the conclusion that this was spot zoning, the third district did not address the consistency of the zoning designation with the comprehensive plan. Additionally, it is distinguishable in that there was no similarly zoned land nearby. In this case, there is commercial development right across the street. Allapattah Cmty. Ass’n v. Miami, 379 So.2d 387 (Fla. 3d DCA 1980), is distinguishable in that staff disapproved of the change with the result that there was no substantial evidence to support it.


author: PER CURIAM.

text:
    Kristin VIVEIROS, Petitioner, v. Gloria COOPER, Respondent.
    No. 4D02-3717.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2002.

      Brian P. Knight of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for petitioner.
    Gary E. Susser of the Law Office of Gary E. Susser, Boynton Beach, for respondent.
   PER CURIAM.

In the midst of a personal injury lawsuit arising out of a car accident, the Respondent served the Petitioner with interrogatories and a request for production of documents. The Petitioner filed a response which contained objections to two of the interrogatories and a request for production of substance abuse treatment records, asserting various grounds none of which were the psychotherapist privilege. The Respondent moved to compel. At a hearing, the Petitioner asserted the psychotherapist-patient privilege. The trial court required the Petitioner to answer the objected to interrogatories and to produce the substance abuse treatment records. The Petitioner then filed for certiorari relief.

This Court has jurisdiction. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Hall v. Spencer, 472 So.2d 1205 (Fla. 4th DCA 1985), review denied, Spencer v. Hall, 479 So.2d 118 (Fla.1985); Palm Beach County Sch. Bd. v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993). We deny the petition with regards to the trial court’s order requiring the Petitioner to answer certain interrogatories. For the following reasons, we grant the petition with respect to the order requiring the Petitioner to produce records of her substance abuse treatment.

Contrary to the Respondent’s assertion, the exceptions set forth in sections 90.503(4)(a) and (b) don’t apply. This case does not involve hospitalization of the Petitioner for mental health treatment. Additionally, although the Petitioner’s treatment was pursuant to a plea agreement, that does not constitute a court-ordered examination under section 90.503(4)(b). Cf. Carson v. Jackson, 466 So.2d 1188, 1190 (Fla. 4th DCA 1985). Further, the Respondent cannot pierce the privilege by filing a claim that makes an issue of the Petitioner’s mental health. See Morrison, 621 So.2d at 468, (citing Hall, 472 So.2d 1205); Cohen v. Cohen, 813 So.2d 1060 (Fla. 4th DCA 2002). Thus, the Respondent’s argument that the privilege does not apply because Respondent made a claim for punitive damages lacks merit.

The Respondent also argued that she made a showing of good cause. We decline to address this issue as the trial court’s ruling was not based on good cause. Rather, the court based its ruling on the Petitioner’s failure to raise the privilege until the hearing. This was error. See Morrison, 621 So.2d at 469; Austin v. Barnett Bank of S. Fla., N.A., 472 So.2d 830 (Fla. 4th DCA 1985).

We grant the petition, quash the order requiring the Petitioner to produce the treatment records, and remand to the trial court. On remand, the court may require disclosure if the Petitioner fails to provide a privilege log, see TIG Ins. Corp. of Am. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001), rev. denied, 821 So.2d 304 (2002), or if an in camera inspection of the records reveals that the privilege does not apply. If the court decides that the privilege applies to any of the records, it must then determine whether the Respondent demonstrated good cause for disclosure of those records.

POLEN, C.J, GROSS, and MAY, JJ., concur.

      . Section 397.501(7)(a)(5), Florida Statutes (2001), provides that records regarding a client’s substance abuse treatment may be disclosed without the patient’s consent ”[u]pon court order based on application showing good cause for disclosure. In determining whether there is good cause for disclosure, the court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the client, to the service provider-client relationship, and to the service provider itself."


author: SHAHOOD, J.

text:
    Thomas CAMPANIELLO, Appellant, v. AMICI PARTNERSHIP, a Florida General Partnership, by HGR, Inc., General Partner, Appellee.
    No. 4D01-4842.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2002.
    Rehearing Denied Jan. 15, 2003.
    Steven A. Mayans and E. Cole FitzGer-ald, III, of FitzGerald, Hawkins, Mayans & Cook, P.A., West Palm Beach, for appellant.
    Bridget Ann Berry, Mark F. Bideau and Lorie M. Gleim of Greenberg Traurig, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

We reverse and remand the trial court’s granting of Final Summary Judgment because we hold there was a disputed question of material fact.

Thomas Campaniello (Campaniello), as the lessor of commercial restaurant property and Amici Partnership (Amici), as lessee, entered into a lease agreement whereby Amici agreed to pay Campaniello a set rent plus the larger of a consumer price index calculation or seven percent of Amici’s “gross receipts.” The exact language in the contract was the following:

commencing on September 1, 1996, the Tenant shall pay the Landlord, base rent plus consumer price index increases or seven percent (7%) of Tenant’s annual gross receipts whichever shall be greater.

Three years later, a dispute arose as to what items should be included in the calculation of “gross receipts.” Amici filed a complaint for declaratory judgment. The dispute centered on whether “gross receipts” was to include monies collected by Amici on behalf of the State of Florida for sales tax, tips to wait staff, which are charged by customers to credit cards and paid over by Amici to the wait staff, bank deposits outside of the ordinary course of business, and the value of complimentary meals or managers’ meals. The parties eventually agreed on the classification of several of the terms, leaving the sales tax, charged tips and the value of complimentary meals as disputed items.

Amici filed a motion for summary judgment pursuant to which Campaniello filed an affidavit asserting that it was his understanding in executing the lease that “gross receipts” included taxes, charged tips, and other expenses. He stated that he “agreed to the ‘gross receipts’ language because, in part, [he] wanted to avoid disputes as to which receipts were, or were not, to be a part of the percentage rent calculations.”

Campaniello also filed the affidavit of Bruce Corn (Corn), a director of retail leasing/sales with a full service real estate company in West Palm Beach. Corn stated that he is familiar with percentage lease clauses and, in his opinion, “gross receipts” “refers to all receipts, except those which are specifically excluded in the lease. Sales tax receipts, charged tips, complimentary meals, and meals provided to managers are the type of exclusions which are sometimes, but not always, excluded in writing in percentage rent clauses.”

Following a hearing on the motion, the court entered an order granting Amici’s motion for final summary judgment and finding that,

complimentary meals and manager meals for which the Plaintiff receives no money, sales tax collected by Plaintiff and actually paid to the State of Florida, and tips which are actually paid to employees are not included within the definition of “gross receipts” under the percentage rent clause contained within the lease in question.

At issue in this case is the interpretation of the term “gross receipts” as used in the parties’ lease agreement. Campaniello argues that the term is subject to various interpretations in various contexts, while Amici maintains that the term is unambiguous and, consistent with common usage and practice, includes only amounts actually received by Amici. The court found that the term was clear and unambiguous and, as a matter of law, did not include certain monies collected by the restaurant. We do not agree.

The party moving for summary judgment must show conclusively the absence of any genuine issues of material fact. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). “If the evidence raises any issues of material fact, if it is conflicting, if it will permit different inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id. The trial court must interpret every possible inference in favor of the non-movant, and should not enter summary judgment unless the facts are so crystallized that nothing remains but questions of law. Id.

Construction of a contract is ordinarily a question of law for the trial court provided that the terms used are unequivocal, clear, undisputed, and not subject to conflicting inferences. See, e.g., Langner v. Charles A. Binger, Inc., 503 So.2d 1362 (Fla. 3d DCA 1987). However, when the terms of a written instrument are disputed and rationally susceptible to more than one construction, an issue of fact is presented which cannot properly be resolved by summary judgment. Id.; see also Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255 (Fla. 3d DCA 2001)(Summary judgment is inappropriate where the contract at issue is susceptible of two interpretations). Where each side argues that the contract is clear and unambiguous, but ascribes a different meaning to the “unambiguous” language, the contract is rendered ambiguous and summary judgment is improper. Birwelco-Montenay, 827 So.2d at 257.

By virtue of the parties’ different interpretations of this allegedly “unambiguous” term, we hold that summary judgment was improper. The trier of fact should resolve the issue of what constitutes “gross receipts” in the context of this particular contract.

Based on the foregoing, we reverse and remand for a trial on the merits.

STEVENSON and HAZOURI, JJ., concur.


text:
    James McFADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D99-4320.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2002.
    Rehearing Denied Jan. 8, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, West Palm Beach, for appellee.

       NOTE: MAY, J., was not a member of the original panel, but has had the opportunity to review the entire proceeding,

   PER CURIAM.

The supreme court vacated this court’s opinion in McFadden v. State, 773 So.2d 1237 (Fla. 4th DCA 2000), and remanded the case for reconsideration under Terry v. State, 808 So.2d 1249 (Fla.2002). Applying Terry, we affirm the trial court’s order revoking probation and sentencing appellant to thirty years in prison as an habitual offender.

KLEIN, GROSS and MAY, JJ., concur.


author: THOMPSON, C.J.

text:
    Mardale ARRAY, et al., Appellants, v. John ALBERIGI, et al., Appellees.
    No. 5D01-2103.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Martin A. Pedata, DeLand, for Appellants.
    Stanley M. Sacks & William C. Purcell, Ft. Lauderdale, for Appellees.
   THOMPSON, C.J.

Paul S. and Mardale Array appeal an order requiring execution of a mortgage satisfaction and ruling that opposing counsel are entitled to an award of attorney’s fees.

In Volusia County, the Arrays sued John and Carol Alberigi for breach of a promissory note. The Alberigis answered, set up affirmative defenses, and counter-sued. Paul Array dismissed his claim with prejudice, leaving Mardale as the sole plaintiff. Mardale Array moved to exclude certain evidence on the ground that it was irrelevant in view of the voluntary dismissal of Paul Array’s claim. Thereafter, according to the Alberigis, the parties agreed to settle the case. Under the settlement agreement, the Alberigis would pay the Arrays $101,000, and Paul Array would execute a satisfaction of a mortgage that was the subject of litigation in Bro-ward County. The Alberigis allegedly informed the Arrays’ counsel that the settlement money was in trust and would be transferred to counsel upon the Alberigis’ receipt of the mortgage satisfaction.

When Paul Array refused to execute the satisfaction, the Alberigis moved the court for enforcement of the settlement agreement. After an evidentiary hearing, the court granted the motion to enforce the settlement agreement. The court required the Alberigis’ counsel’s legal assistant to execute a mortgage satisfaction on behalf of Paul Array, ruling that the satisfaction would have the same effect as if executed by Paul Array. The court further ruled that the Alberigis’ counsel were entitled to attorney’s fees. Although the court made no findings in its order, it is apparent that the court found that a valid agreement had been entered, and that Paul Array had breached the agreement by refusing to execute a mortgage satisfaction. Also, although the court did not state the basis of the attorney’s fees award, the parties’ arguments center on section 57.105, Florida Statutes.

On appeal, the Arrays contend that the portion of the order awarding attorney’s fees must be reversed because it does not state the basis for the award, or set forth findings that there was a complete lack of justiciable issues of law or fact. See e.g., Mahaney v. Sumter Elec. Co-op., Inc., 732 So.2d 373 (Fla. 5th DCA 1999); S.A.B.T.C. Townhouse Ass’n, Inc. v. Schmitz, 565 So.2d 827 (Fla. 5th DCA 1990). They also contend that the evidence does not support the award.

We conclude that we do not have jurisdiction to review the order awarding attorney’s fees. An order is final if it constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected. S.L.T Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Here, although Paul Array voluntarily dismissed his claim against the Alberigis, still outstanding is the Alberigis’ closely related counterclaim against him and Mardale Array. Furthermore, although in enforcing the agreement the court necessarily ruled that Mardale Array’s complaint against the Alberigis had been settled by agreement, the complaint is still outstanding. Thus, the order of entitlement to attorney’s fees is not reviewable as a final order. Further, it is not reviewable pursuant to rule 9.130, Florida Rules of Appellate Procedure, which allows review of certain non-final orders, because it is not one of the types of orders enumerated in the rule.

The portion of the order requiring a legal assistant to execute a mortgage satisfaction is cognizable in this appeal because it is in the nature of an injunction. Orders in the nature of injunctions are appealable pursuant to rule 9.130(a)(3)(B). See e.g. CMR Distributors, Inc. v. Resolution Trust Corp., 593 So.2d 593 (Fla. 3d DCA 1992) (order requiring deposit of funds into court registry prior to final judgment is, in effect, order granting injunction and reviewable on appeal); see also Philip J. Padavano, Florida Appellate Practice, § 22.6 at 353 (2001-2002 ed.). Because we conclude that the order is supported by substantial, competent evidence, this portion of the order is affirmed.

DISMISSED in PART; AFFIRMED in PART.

PLEUS and PALMER, JJ., concur.

      . Mardale Array was not a party to the mortgage.


author: PALMER, J.

text:
    L.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-1736.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    James B. Gibson, Public Defender and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Tammy L. Jaques, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

L.R. appeals her delinquency adjudication, entered by the trial court based upon a finding that she committed a grand theft. Concluding that the State presented sufficient evidence to establish the elements of the offense and that the trial court set forth adequate findings to support its disposition, we affirm.

L.R. was charged with committing the crime of grand theft based upon an allegation that she stole another student’s violin at school. After the presentation of evidence at the adjudicatory hearing, the trial court found L.R. guilty as charged. When L.R. subsequently appeared before the trial court for disposition, the trial court rejected the Department of Juvenile Justice’s (DJJ) recommendation that L.R.’s adjudication be withheld and that she be sentenced to a diversionary program, and adjudicated her delinquent, sentencing her to a term of 60 days probation and 24 hours of community service. The court also directed L.R. to participate in the Bridges program and Project Fast.

L.R. first contends that the trial court erred in concluding that the State’s evidence of value was sufficient to meet or exceed the statutory $300.00 threshold required to support a grand theft conviction. We disagree.

During the adjudicatory hearing, the State presented the testimony of Deputy Spurlin, who stated that he had contacted the victim’s mother, and that she had told him that the violin was worth $600.00. An owner is generally presumed to be competent to testify to the value of her stolen property. Taylor v. State, 425 So.2d 1191 (Fla. 1st DCA 1983). The testimony of an owner, with knowledge of the property, as to his opinion of value is sufficient. Massey v. State, 575 So.2d 1372 (Fla. 4th DCA 1991). Absent any objection, the testimony concerning the value placed on the property by the victim’s mother was sufficient to sustain the State’s burden.

L.R. also challenges her adjudication and disposition, arguing that the tidal court erred in rejecting DJJ’s recommendation that her adjudication be withheld and that she be placed in the Bridges diversionary program. However, since the trial court did specifically order L.R. to complete the Bridges program, her true complaint is that the trial court erred in adjudicating her delinquent instead of withholding adjudication as DJJ had recommended.

Section 985.228 of the Florida Statutes (2000) specifically authorizes the trial court to make the ultimate decision whether to withhold adjudication. The statute also requires that, in circumstances where an adjudication is entered, the trial court must state briefly the facts upon which the adjudication was based. In issuing its written order explaining the reason why it rejected DJJ’s recommendation, the trial court stated, among other reasons, that L.R. had failed to comply with a previously ordered diversionary teen court program, and that it wished to order L.R. to perform community service hours as a condition of her probation. These reasons adequately explained the trial court’s decision to adjudicate L.R. delinquent.

AFFIRMED.

COBB and ORFINGER, JJ., concur.

      . See § 812.014, Fla. Stat. (2000).

      . L.R. did not object to the admission of this testimony or move to strike it, either on hearsay or competency grounds. Consequently, she waived such objections. See A.J. v. State, 826 So.2d 528 (Fla. 5th DCA 2002).

      . Section 985.228 of the Florida Statutes (2000) provides, in pertinent part:
      985.228. Adjudicatory hearings; withheld adjudications; orders of adjudication
      (4) If the court finds that the child named in the petition has committed a delinquent act or violation of law, it may, in its discretion, enter an order stating the facts upon which its finding is based but withholding adjudication of delinquency and placing the child in a probation program under the supervision of the department or under the supervision of any other person or agency specifically authorized and appointed by the court....
      (5) If the court finds that the child named in a petition has committed a delinquent act or violation of law, but elects not to proceed under subsection (4), it shall incorporate that finding in an order of adjudication of delinquency entered in the case, briefly stating the facts upon which the finding is made, and the court shall thereafter have full authority under this chapter to deal with the child as adjudicated.


text:
    M.P., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-1068.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

M.P. appeals from an order of disposition which found M.P. delinquent and committed M.P. to a Level 6 Moderate-Risk residential program. We affirm.

The commitment was despite a Department of Juvenile Justice (“DJJ”) recommendation that M.P. be returned to community control. M.P. contends on appeal that the trial court erred when it rejected the DJJ’s recommendation by not following the requirements of section 985.23(3)(c) Florida Statutes (2000). M.P. asserts that the trial court erred because it overruled DJJ’s recommendation without taking into account the needs of the child visa-vis the characteristics of the restrictiveness level.

M.P. is a child with special needs: M.P. suffers from hyperactivity, anxiety, and attention deficiency problems. To accommodate his needs, M.P. was in special classes. M.P. was on community control for one year at the time of this delinquent act. The current act was initially charged as grand theft of a motor vehicle in the second degree, but as the result of plea negotiations, the charge was reduced to trespass to a conveyance. At the disposition hearing, the trial court heard testimony showing that M.P. requires special programs, that M.P. worked diligently during the school year, that he appeared to be well-motivated, and that he appeared to have put forth his best efforts to complete high school. The trial court also heard testimony that M.P. could be defiant and disrespectful in class as well as tardy and truant. On bad days, M.P. was disruptive. After the testimony the trial court stated why it would not accept the DJJ’s recommendations:

[T]he youth has exhibited a continuing and persistent pattern of delinquent and [aberrant] behavior while on probation evidencing that probation is not an adequate restrictiveness level and, that a Moderate Risk restrictiveness level is appropriate. Obviously the youth needs include learning anger control and impulse control, and learning to participate in school work daily with no disciplinary referral, no tardiness, nor disruption, nor defiance, nor disrespect. The performance goals of this youth or any youth in a Moderate Risk commitment program are calculated to address those goals in addition to providing individual counseling and other appropriate intervention methods.

A trial court may not depart from the DJJ’s recommendation because it disagrees with the recommendation. A.G. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999). However, the court may depart as long as it states reasons for the departure and those reasons are supported by a preponderance of the evidence. L.O. v. State, 718 So.2d 155, 157 (Fla.1998). In this case, the court recognized that although M.P. was improving, M.P. was on community control when he committed the new offense. The trial court observed that M.P. was disruptive at school, was disrespectful toward teachers, and still had problems with anger management and impulse control. Further, the restrictiveness level of community control had not helped M.P. with his social adjustment or his school adjustment. The court concluded that M.P. needed the structure of the Moderate-Risk restrictiveness level.

We find that there is competent, substantial evidence in the record to support the trial court’s findings. We cannot say that the trial court abused its discretion when it rejected the DJJ’s recommendation. See D.E.R. v. State, 744 So.2d 1244 (Fla. 5th DCA 1999); J.L.O. v. State, 721 So.2d 440 (Fla. 5th DCA 1998); E.L. v. State, 715 So.2d 353 (Fla. 1st DCA 1998).

AFFIRMED.

PETERSON and PLEUS, JJ., concur.

      . Fla. Stats. § 985.23(3)(c) reads:
      The court shall commit the child to the department at the restrictiveness level identified or may order placement at different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.


text:
    Susan KENDALL, Appellant, v. David KENDALL, Appellee.
    No. 4D02-2020.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.

      Colin C. Cushnie of Colin C. Cushnie, P.A., Port St. Lucie, for appellant.
    William F. Gállese of William F. Gállese, P.A., Port St. Lucie, for appellee.
   STEVENSON, J.

■ In this appeal, Susan Kendall challenges an order granting the former husband’s emergency motion for temporary modification of custody of the couple’s daughter. Despite the discretion afforded trial judge’s in child custody matters, we reverse.

The father’s “emergency” motion alleged (1) that the mother had conducted herself “in a manner inconsistent with the best interests of the child” by continuing to change addresses, becoming pregnant, getting married and, then, filing for divorce shortly thereafter; (2) that the mother put their child on a plane, alone, without instructing the father where the child would be; (3) that the mother was alienating the child and refusing to allow phone visitation; and (4) that following her spring break visit with him, their daughter did not wish to return to her mother. Following an evidentiary hearing, the trial judge granted the father’s motion. While the judge found that the wife had mishandled the child’s visitation with her father, he did not believe that this was sufficient to justify a change of custody. Instead, the judge found that the change of custody was warranted because “more stability” exists for the child with the father. As support for his decision, the judge pointed to the facts that the mother had moved out of her parents’ home and the mother was pregnant and in the middle of divorce proceedings — “problems” that the judge believed would be resolved by the time of the final custody hearing.

In order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties and (2) that the change in custody serves the best interests of the child. See Matin v. Hill, 801 So.2d 1003, 1004 (Fla. 4th DCA 2001). It is equally as true that “[f|requent moves, a less stable lifestyle, ' [and] even poor relationship choices standing alone may not support a custody modification where the residential parent has moved out of necessity, has subsequently established a stable home, and the child’s needs have always been met.” Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999); see also Blosser v. Blosser, 707 So.2d 778 (Fla. 2d DCA 1998); Kelly v. Kelly, 642 So.2d 800 (Fla. 2d DCA 1994); Grumney v, Haber, 641 So.2d 906 (Fla. 2d DCA 1994).

Here, the only evidence at the hearing was that although the mother had moved frequently, by the time of the hearing she had rented a two bedroom apartment for herself and her daughter. Moreover, there was no testimony that the child had suffered any adverse consequences as the result of the changes in her life. Instead, the child’s kindergarten teacher and the instructor of her advanced reading program testified that she was doing well in school, exhibited no behavior indicating that she was unhappy, and appeared to have a good relationship with her mother. In short, the reasons advanced by the judge and the evidence presented at the hearing simply cannot support the temporary custody modification. Accordingly, the order granting the former husband’s emergency motion for temporary custody modification is reversed.

REVERSED and REMANDED.

KLEIN and TAYLOR, JJ., concur.