author: PER CURIAM. WEBSTER, J., ERVIN, J.,

text:
    Mark Rochelle BOLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3509.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 8, 2006.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Mark Bolen, appeals the trial court’s denial of his rule 3.800(b)(2) motion to correct alleged sentencing errors on two grounds. We affirm the trial court’s denial of Appellant’s motion on both grounds, but write only to address the first issue raised by Appellant.

Appellant contends that the trial court erred in sentencing him as a Prison Re-leasee Reoffender (PRR) because the State relied solely on hearsay evidence to prove his prison release date. The sole evidence used to establish Appellant’s release date was a letter written by the records management analyst with the Department of Corrections (DOC); however, because Appellant specifically represented at sentencing that he had no objection to the State’s offer of proof of his qualification for sentencing as a PRR, he cannot now assert the opposite position by a rule 3.800(b)(2) motion.

The record clearly shows that defense counsel affirmatively represented to the court that there was no objection to the State’s representation of Appellant’s last release date from the DOC; therefore, neither the State nor the trial court was alerted of any potential deficiency at a time when the deficiency could easily have been rectified by calling a live witness to authenticate the DOC document. This distinguishes the case here from Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), where the trial court admitted an identical document over defense counsel’s objection.

Appellant cannot affirmatively agree to the sufficiency of the State’s proof of his PRR qualifications at sentencing and then later invoke rule 3.800(b)(2) to take the opposite position. See Terry v. State, 668 So.2d 954, 962 (Fla.1996) (“[A] party may not invite error and then be heard to complain of that error on appeal.”).

We hold that Appellant’s failure to contemporaneously object constitutes a waiver of his right to contest the validity of the trial court’s PRR determination.

AFFIRMED.

THOMAS, J., Concurs; WEBSTER, J., Concurring with Written Opinion; ERVIN, J., Concurring and Dissenting with Written Opinion.

WEBSTER, J.,

concurring.

I concur fully in the majority opinion. I write only to note some additional thoughts regarding Judge Ervin’s dissent from the portion of our opinion which concludes that appellant may not now claim error regarding his prison releasee reof-fender sentence because, through trial counsel, he waived the right to do so. We do not, as Judge Ervin states, affirm as to that issue because the issue was not preserved. Rather, as our opinion makes clear, we do so because the issue has been waived. Our supreme court has held that even fundamental error may be waived. See, e.g., Armstrong v. State, 579 So.2d 734, 735 (Fla.1991); State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (citing Armstrong ). I find nothing in rule 3.800(b) or in the supreme court’s opinion adopting the present version of that rule that reflects an intent by the court to prevent waiver in the sentencing context. Appellant’s trial counsel did more than simply agree to permit hearsay evidence to be considered regarding the question of whether appellant qualified as a prison releasee reoffender. He agreed with the prosecutor’s representation that appellant did, in fact, qualify as a prison releasee reoffender. Appellate counsel has not alleged either in the trial court or here that appellant does not qualify. In the absence of such a representation, it seems to me that appellant has failed to demonstrate any prejudice as a result of his trial counsel’s actions and, therefore, the waiver must stand. To send this case back for resentencing in the absence of such an allegation would simply result in a waste of everyone’s time.

ERVIN, J.,

concurring and dissenting.

I concur with the majority in affirming as to the second issue raised, which challenges the trial court’s classification of appellant as a habitual felony offender on the ground that the criteria for such designation had not been pled in the charging document, or found beyond a reasonable doubt by the jury. This issue has effectively been resolved against appellant by the Florida Supreme Court’s decision in Gudinas v. State, 879 So.2d 616, 618-19 (Fla.2004). I respectfully dissent, however, as to that portion of the majority’s decision affirming appellant’s prison re-leasee reoffender sentence because of the non-preservation of the issue for appellate review.

In so stating, I fully recognize the time-honored rule that a party cannot, by his or her actions, invite judicial error and then later complain of such error on appeal. As recited in the majority’s opinion, appellant affirmatively represented through his attorney at sentencing that he had no objection to the state’s offer of proof, a letter from the Department of Corrections referring to his status as a prison releasee reoffender. Were it not for the adoption by the Florida Supreme Court of Florida Rule of Criminal Procedure 3.800(b)(2), and pertinent comments thereto, I would concur with the majority’s decision without any reservation. In my judgment, however, the rule 3.800(b)(2) procedure, allowing a defendant the opportunity to challenge a sentencing error by motion before the party’s first brief is served, provides a mechanism whereby even affirmative representations of waiver made by counsel during the sentencing process may later be preserved for appellate review.

This conclusion is made evident by the official court commentary to the 1999 amendments, explaining: “A motion pursuant to this rule is needed only if the sentencing error has not been adequately preserved for review at an earlier time in the trial court.” Neither the language of rule 3.800(b)(2) nor the court’s comments make any distinction between a defendant’s failure to contemporaneously object to a sentencing error, or his or her express request to a trial court, which results in the error later attacked. By filing a 3.800(b)(2) motion, appellant, in my judgment, effectively preserved the error he now raises on appeal, regardless of his express disclaimer made earlier during sentencing. This conclusion, I assert, is made evident by the following explanatory comments of the court:

[Ujnder the new rule 3.800(b)(2), if a notice of appeal has been filed, a motion to comet a sentencing error can also be filed in the trial court at any time until the first appellate brief is filed. The deadline for filing the first appellate brief is then extended until ten days after the clerk of the circuit court transmits the supplemental record from the proceedings held on the motion to correct the sentencing error, which includes the motion, the order, any amended sentence, and the transcript if designated.
Thus, an advantage of this amendment is that it will give appellate counsel, with expertise in detecting sentencing errors, the opportunity to identify any sentencing errors and a method to comet these errors and preserve them for appeal.

Amendments to Fla. R. of Crim. P. 3.111(e) & 3.800 & Fla. R. of App. P. 9.020(h), 9.UO, & 9.600, 761 So.2d 1015, 1018 (Fla.2000) (emphasis added).

The court’s broad purpose in preserving all types of sentencing errors was further expressed by it as follows:

[T]he amended rule is intended to provide one mechanism whereby all sentencing errors may be preserved for appellate review. The comments to the proposed rule defines a “sentencing error” as including “harmful errors in orders entered as a result of the sentencing process. This includes errors in orders of probation, orders of community control, cost and restitution orders, as well as errors within the sentence itself.” The amendment to rule 3.800(a) will make it clear that a rule 3.800(b) motion can be used to correct any type of sentencing error, whether we had formerly called that error erroneous, unlawful, or illegal.

Id. at 1019 (emphasis added). In its later opinion in Maddox v. State, 760 So.2d 89, 94 (Fla.2000), the court observed that it “anticipated that the amendments to rule 3.800(b) recently promulgated by this court ... should eliminate the problem of unpreserved sentencing errors raised on direct appeal because the time in which a defendant can file a motion to correct a sentencing error in the trial court is expanded to the time the first appellate brief is filed.” More recently, the court, in Brannon v. State, 850 So.2d 452, 459 (Fla. 2003), reiterated that a defendant is now “required to have objected at sentencing or utilized rule 3.800(b) to preserve all sentencing errors, including fundamental sentencing errors, for appeal.”

I consider it reasonably clear that in adding the 1999 amendments to rule 3.800, the court deemed that a defendant’s opportunity to challenge all sentencing errors would be extended, regardless of what had previously occurred, into the appellate process until no later than the time of the service of the initial brief. In the present case, the appellant availed himself of the 3.800(b)(2) machinery and brought the error to the trial court’s attention, but the court refused to entertain it for the reason that no objection had been earlier made. As I have previously explained, the court, in so ruling, erred. Because it is undisput-ably clear that the letter relied on by the court to designate the defendant a prison releasee reoffender was inadmissible hearsay, Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), and no other evidence was used to establish such status, I would, as in Gray, vacate that sentence and remand the case for resentencing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James G. HORTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-4716.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 21, 2006.
    James G. Horton, pro se, for Petitioner.
    Holly N. Simcox, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of the State’s motion for rehearing, we withdraw the original opinion and issue the following opinion.

Petitioner was sentenced under the 1991 guidelines to 15 years in the Department of Corrections (DOC) followed by seven years of probation. Following his release from DOC, Petitioner violated probation. Pursuant to a plea agreement, Petitioner pled guilty to violating probation in return for a sentence of 20 years in the DOC, with credit for 15 years and 260 days of credit for time served.

Upon Petitioner’s entry into DOC, he received credit, but had 2,900 days forfeited. DOC denied Petitioner’s request for additional credit, noting that, pursuant to section 944.28(1), for offenses committed on or after October 1, 1989, DOC may forfeit gain-time earned prior to release, and DOC rules provide gain-time earned prior to release will be forfeited upon revocation of probation. DOC forfeited all of the gain-time Petitioner earned prior to his release.

Petitioner filed a Petition for Writ of Habeas Corpus in the circuit court, arguing DOC lacked authority to review and reject a trial court’s specific award of credit for jail or prison time, or to do anything other than execute sentence exactly as imposed by the court. Petitioner argued his plea agreement was agreed to by the court, the State, and Petitioner, and had Petitioner known DOC had the authority to alter the court’s sentence, he would not have entered the plea.

The trial court denied the petition concluding DOC acted within the scope of its authority when it forfeited Petitioner’s gain-time, and DOC followed its guidelines when it established the sentence structure upon Petitioner’s arrival. Petitioner then sought a writ of certiorari in this court. The petition must be denied.

For defendants who committed their offenses between October 1, 1989, and December 31, 1993, DOC, like the sentencing judge, has the discretion to forfeit credit for prior gain-time upon revocation of probation. See Forbes v. Singletary, 684 So.2d 173 (Fla.1996). “Even though the sentencing judge has authorized credit for unforfeited gain time, DOC may now unilaterally declare it forfeited.” Id. at 174-175.

Here, the trial court’s award of credit was “for the fifteen years he’s already served, plus two hundred and sixty some odd days.” This award merely gives credit for time actually served, without interfering with DOC’s authority to revoke previously earned gain-time. Petitioner may have entered into the plea agreement believing he would receive the full 15 years, 260 days of credit. However, the proper remedy is not for this court to ignore Florida law that allows DOC to forfeit gain-time. See McAllister v. State, 821 So.2d 1250 (Fla. 1st DCA 2002).

The petition for writ of certiorari is DENIED.

KAHN, WEBSTER, and HAWKES, JJ., concur.


text:
    Artis ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3852.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Rehearing Denied Jan. 4, 2007.

      Artis Robinson, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant challenges the summary denial of a postconviction motion seeking to set aside a conviction that became final in 1999. The trial court denied appellant’s April 2006 motion because it was not signed. Appellant argues that the trial court should have considered his amended motion which included the required oath and signature. While we agree that the trial court should have considered the amended motion if it was filed before the trial court had entered a ruling, Gaskin v. State, 737 So.2d 509 (Fla.1999), we find that appellant’s motion does not merit relief as a matter of law and affirm.

Appellant argued that his 1999 conviction was improper based on a defect in the Miranda warnings that were administered by police. Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied, 892 So.2d 1014 (Fla.2005) (finding that the warning given was insufficient to satisfy Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because it failed to advise of the right to have counsel present during questioning and advised merely that defendant could have counsel present before questioning).

We have found that this defect in Miranda warnings does not constitute newly discovered evidence justifying an untimely postconviction motion under Florida Rule of Criminal Procedure 3.850(b). Ulcena v. State, 925 So.2d 346, 347 (Fla. 4th DCA 2006). Appellant argues that the defective warning constituted fundamental error in his case which would justify an untimely motion vacating or setting aside his conviction. We disagree.

No court has ever held that this type of defect in Miranda warnings is fundamental error which should be corrected at any time. Appellant has not demonstrated that the defect in the warnings was even harmful in his case, much less fundamental. Appellant’s claim that his request for counsel would probably have affected the outcome of his case is unsupported and speculative.

The order denying appellant’s postcon-viction motion is summarily affirmed as it is untimely and without merit as a matter of law.

WARNER, POLEN and HAZOURI, JJ., concur.


author: HAWKES, J.

text:
    David CASON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1922.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 21, 2006.

      David Cason, pro se, for Petitioner.
    Charlie J. Crist, Jr., Attorney General, Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Respondent.
   HAWKES, J.

A circuit court’s ruling on a petition for writ of mandamus is reviewed in the district court of appeal by certiorari. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997)(ap-proved 720 So.2d 216 (Fla.1998)). A district court’s certiorari review is limited to a determination of whether the circuit court afforded due process and observed the essential requirement of the law. See Sheley, 703 So.2d at 1206; see also Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

Petitioner seeks writ of certiorari review over the circuit court’s dismissal of his mandamus petition regarding revocation of gain time by a prison disciplinary board. Petitioner lost 30 days of gain time after the board convicted him of possession of negotiables (currency worth $200). Petitioner alleges the circuit court’s decision denying his mandamus relief mistakenly relied on evidence related to a reporting officer’s firsthand observation of Petitioner’s disrespectful actions, not on evidence he possessed negotiables.

To support a conclusion of a prison disciplinary board, the Florida Supreme Court held that a “modicum” of evidence in the record satisfies the “some evidence” standard required by due process. Dugger v. Grant, 610 So.2d 428, 432 (Fla.1992) (“[OJnly a ‘modicum’ of evidence is necessary to support an administrative decision regarding inmates even when such a decision does involve due process rights.”); see also Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985) (holding the relevant question is whether there is some evidence in the record to support the conclusion of the disciplinary board) (citations omitted).

Here, as required, there is some evidence in the record supporting the circuit court’s denial of Petitioner’s mandamus petition and the scrivener’s error in the order does not defeat that reality. The record, not the order, is where some evidence supporting the disciplinary board’s decision must exist. The circuit court afforded Petitioner due process and observed the essential requirements of the law.

Petition for Writ of Certiorari DENIED. ■

KAHN and THOMAS, JJ., concur.


author: RAMIREZ, J.

text:
    Pedro PENTON, et al., Appellants, v. INTERCREDIT BANK, N.A., Appellee.
    No. 3D05-2929.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Blaxberg, Grayson, Kukoff & Segal, Miami, and David A. Strauss, Orlando, for appellants.
    Perez, Goran, Rodriguez, and William G. Essig, Coral Gables, for appellee.

      Before RAMIREZ, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

This is an appeal from two orders in connection with an action brought by In-tercredit Bank, N.A., seeking to foreclose upon several mortgages granted by Pedro Penton and Yaknel Penton. We affirm on the issues raised because the trial court correctly allowed Intercredit to amend its complaint, it did not err in finding that it had subject matter jurisdiction, and venue was proper in Miami-Dade County.

Appellant Carlos Penton was not originally named in the action, which only identified defendants Pedro Penton, Yaknel Penton, John Doe and All Others in Possession. Carlos Penton was personally served with a “John Doe” Summons on October 6, 2005. At that time, his name did not appear in the caption of the Complaint or the Summons.

After a default was entered against Carlos Penton, the circuit court entered an Agreed Order on December 15, 2005, setting aside the default as against Carlos Penton. The trial court contemporaneously granted Intercredit’s ore terms application to substitute appellant Carlos Penton for “John Doe.” The court also denied the appellant’s motion to dismiss, which had asserted that the Eleventh Circuit lacked subject matter jurisdiction to award a judgment of foreclosure as to real property located entirely within the borders of Hen-dry County, thus ruling that venue was proper and that the court had subject matter jurisdiction to grant a judgment of foreclosure against the property located in Hendry County.

The first order under appeal simply allowed the substitution of Carlos Penton as a party-defendant for “John Doe.” Despite appellant’s argument to the contrary, the order does not determine whether Carlos Penton was properly served with process when he was personally served with a summons addressed to “John Doe.” Florida Rule of Civil Procedure 1.250(c) provides for the addition of parties “by order of court ... on motion of any party at any stage of the action and on such terms as are just.” We can find no error in the court allowing the substitution.

The appellant also complains that the trial court erred in finding that it had subject matter jurisdiction over the Hen-dry County property. Normally, a circuit court cannot exercise in rem jurisdiction over property situated beyond the circuit’s territorial boundaries. Section 47.011, Florida Statutes, provides that actions shall be brought only in the county where the property in litigation is located. See also Goedmakers v. Goedmakers, 520 So.2d 575 (Fla.1988). This is commonly referred to as the “local action rule.”

The Legislature, however, has created an exception to the local action rule, codified at section 702.04, Florida Statutes, which provides, in pertinent part:

When a mortgage includes lands .... lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that county as if all the mortgaged land .... lay therein....

Appellant nevertheless argues that the exception was only intended to provide a remedy where a mortgage covers a contiguous parcel of land that extends into multiple counties. We conclude that this argument can find no support in the language of the statute, the legislative history or the case law. On the contrary, a 1959 opinion of the Attorney General interpreted the statute as relating to both contiguous and non-eontiguous real properties. See Op. Att’y Gen. Fla. 59-57 (1959). We agree with this interpretation.

We therefore affirm the trial court in all respects.


author: SUAREZ, J.

text:
    Byron WALLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-244.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 5, 2007.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before FLETCHER, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Byron Waller, (the “defendant”) appeals his conviction and sentence for aggravated battery. We affirm.

The defendant contends that he should receive a new trial because the trial court improperly admitted evidence that he threatened witnesses prior to trial. The State asserts that the evidence was admissible and no error occurred.

The defendant was tried for aggravated battery for beating and kicking the victim. The State filed a notice of intent to rely on Williams Rule evidence that the defendant had intimidated or threatened witnesses. At trial, two witnesses testified that the defendant threatened them several weeks after the beating occurred. The defendant approached them, tapped one witness on the shoulder, said that he had heard that they would be testifying, and said “you better watch yourself.”

As a general matter, “a defendant’s attempt to intimidate a state witness is relevant and admissible.” Heath v. State, 648 So.2d 660, 664 (Fla.1994). The Florida Supreme Court has repeatedly held that “[ejvidence that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post fac-to indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.” Heath, 648 So.2d at 664. A trial court has broad discretion to determine the relevance of evidence, and such a determination is reviewed for an abuse of discretion. Heath, 648 So.2d at 664.

The trial court did not abuse its discretion by admitting evidence that the defendant threatened witnesses. The threat is relevant to the defendant’s desire to evade prosecution and his consciousness of guilt. It was properly admitted. See England v. State, 940 So.2d 389 (Fla.2006) (holding that defendant’s statement that he would Mil an individual if he got him into trouble was admissible because it showed the defendant’s desire to evade prosecution); Heath v. State, 648 So.2d at 664 (evidence admissible regarding defendant’s plan to escape and Mil two witnesses because they were the only people who could tie him to a murder).

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: FLETCHER, Judge.

text:
    AEROSPACE ACCESSORY SERVICE, INC., Appellant, v. Roberto ABISEID, Appellee.
    No. 3D05-2298.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.

      Roderick F. Coleman, Boca Raton, for appellant.
    Fowler White Burnett and David A. Friedman and Robert S. Tanner, Ft. Lauderdale, for appellee.
    Before GERSTEN and FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Aerospace Accessory Service, Inc. seeks review of a final judgment in an action for breach of fiduciary duties by one of its directors, Roberto Abiseid. We reverse the judgment.

Abiseid was an officer, director and salesperson for Aerospace. He earned a ten (10%) percent commission, on services and parts he sold upon receipt of payment from the customer. International Aero Components [IAC] was one of Aerospace’s customers.

Abiseid received a specific corporate directive from Aerospace’s president, Armando Chapeli, and the board of directors of Aerospace, prohibiting Abiseid from extending additional credit to its customer IAC. The prohibitory directive was issued because IAC’s account with Aerospace was delinquent in the amount of $25,000. Despite having knowledge of the corporate directive Abiseid extended an additional $65,000 credit to IAC. Subsequently IAC filed for Chapter 11 bankruptcy, thus Abi-seid’s noncompliance with the directive caused Aerospace to suffer an additional financial loss. Aerospace filed this action seeking recovery from Abiseid of the money lost through his noncompliance.

As a director of Aerospace, in his defense Abiseid seeks to burrow under the protective blanket of section 607.0831, Florida Statutes (2005), the codification of the “business judgment rule.” This rule creates a limited presumption of correctness in corporate directors’ decisions. Section 607.0831(l)(a), (l)(b)(2), Florida Statutes states in relevant part:

“(1) A director is not personally liable for monetary damages to the corporation or any other person for any ... decision ... regarding corporate management or policy, by a director, unless:
(a) The director breached or failed to perform his or her duties as a director; and
(b) The director’s breach of, or failure to perform, those duties constitutes:
2. A transaction from which the director derived an improper personal benefit, either directly or indirectly ...”

Abiseid argues that he received no benefit from his noncompliance with the directive and is protected from liability to Aerospace by section 607.0831(l)(a), (l)(b)(2).

Abiseid’s argument misses the point. The protected directors’ decision is not his unilateral action, but that of the president and board of directors of Aerospace which directed all Aerospace personnel not to extend credit to IAC. Abiseid’s unilateral action in direct conflict with the protected decision of the board of directors is not itself protected by section 607.0831(l)(a), (l)(b)(2). Abiseid’s violating the corporate decision is nothing more than a breach of that corporate decision.

If we accepted Abiseid’s argument we would be granting an individual director the authority to veto corporate policy. Corporate chaos would be the result, as each director could act on his own whim. Certainly section 607.0831(l)(a), (l)(b)(2) was not enacted in order to create situations wherein a director could individually repeal duly established corporate policy and escape liability for damages caused by his or her unilateral action.

The final summary judgment is reversed and this cause is remanded for further proceedings consistent herewith.


text:
    Willie ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3841.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 5, 2007.
    Willie Robinson, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant’s motion for post-conviction relief was untimely and successive. In addition, his claim based upon Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005), is also barred, as Roberts does not apply retroactively. See Ulcena v. State, 925 So.2d 346 (Fla. 4th DCA 2006).

WARNER, FARMER and MAY, JJ„ concur.


text:
    Willie George THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2881.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2006.
    Rehearing Denied Dec. 21, 2006.
    Willie George Thomas, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See White v. State, 837 So.2d 607 (Fla. 2nd DCA 2003).

ERVIN, DAVIS, and BENTON, JJ., concur.


author: PER CURIAM. POLSTON, J.,

text:
    CHRISTIAN RELIEF SERVICES INC., Appellant, v. William H. WALTON, Jr., Appellee.
    No. 1D06-0008.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Rehearing Denied Dec. 21, 2006.
    Kenneth B. Wright of Bledsoe, Jacobson, Schmidt & Wright, Jacksonville, and Charles H. Carpenter of Pepper Hamilton LLP, Washington, D.C., for Appellant.
    Frederick R. Brock of Gartner, Brock and Simon, Jacksonville, for Appellee.
   PER CURIAM.

This is an appeal from a contractual dispute in which the trial court granted final summary judgment in favor of appel-lee, declared that appellant has no rights in or under the contract, and concluded that the contract is void and of no effect. After de novo review of the matter, we agree with the trial court and affirm.

AFFIRMED.

ALLEN and DAVIS, JJ., concur.

POLSTON, J., dissents with opinion.

POLSTON, J.,

dissenting.

This appeal arises from a $20,878,000 contract for the purchase of nine apartment buildings in Duval, Putnam, and Polk counties by appellant Christian Relief Services Charities, Inc. (“CRSC”). Appellee William H. Walton, Jr., as the general partner to various single-asset limited partnerships, agreed to sell the properties to CRSC. When the deal fell apart, Walton sued to have the contract declared void on various grounds, and CRSC counterclaimed for breach of contract and specific performance. I respectfully dissent because the trial court erred by entering final summary judgment in favor of Walton.

J. BACKGROUND

Facts

The contract allowed CRSC to make a due diligence review of the properties, and provided for a specific closing date. CRSC was required to make two escrow deposits: $60,000 due two days after execution of the contract, and $25,000 by the end of the inspection period. Walton, for his part, was required to provide certain information within that specific period, so that CRSC, could conduct its due diligence review within the time provided.

The contract includes a number of descriptive schedules and exhibits. Most of these schedules and exhibits were filled in, but some were left blank when the contract was executed by the parties. Paragraph 8 of the contract required various exhibits, documentation, and items to be provided at closing or as otherwise specified, including:

p) Other Documents. The parties shall deliver to each other such other documents as may be reasonably required to effectuate the conveyance of the Projects contemplated hereunder.

(Emphasis added).

The contract also requires specific notices of default and opportunity to cure before the parties may terminate the contract:

14. Default
a) Purchaser’s Default In the event that Purchaser defaults in its obligations hereunder, Purchaser shall have ten (10) days after receiving such notice to cure such default. If Purchaser fails to cure the default within that period, then Seller shall have the option to either: (i) elect to extend the Closing date and/or the cure period to accommodate Purchaser’s diligent efforts to remedy the unsatisfied condition or obligation, or (ii) terminate this Agreement. If Seller elects to terminate this Agreement, Seller shall give written notice of its election to Purchaser and the Seller shall give written notice to the Purchaser that the Deposit must be delivered to the Seller; and upon the Seller’s receipt of the Deposit, this Agreement shall terminate and the parties shall have no further obligations to one another.
b) Seller’s Default In the event that Seller defaults in its obligations hereunder, Seller shall have ten (10) days after receiving such notice to cure such default. If Seller fails to cure the default within that period, then Purchaser shall have the option to either: (i) elect to extend the Closing Date and/or the cure period to accommodate Seller’s diligent efforts to remedy the unsatisfied condition or obligation, or (ii) terminate this Agreement. If Purchaser elects to terminate this Agreement, Purchaser shall give written notice of its election to Seller and the Purchaser shall give written notice to the Seller that the Deposit must be delivered to the Purchaser, Seller shall pay to purchaser an amount equal to Purchaser’s costs incurred in connection with the transaction contemplated by this Agreement, including reasonable attorneys fees (the “Termination Amount”), and upon Purchaser’s receipt of the Deposit and the Termination Amount this Agreement shall terminate and the parties shall have no further obligations to one another. Purchaser and Seller agree that payment of the Deposit and the Termination Amount to Purchaser under this Paragraph 14.b) shall be as liquidated damages and not as a penalty, it being agreed that a precise measure of damages would be difficult to ascertain.

CRSC asserts that because Walton did not timely meet all his obligations with respect to the due diligence review, CRSC requested, by its November 3, 2003 letter, an extension of the time to conduct its due diligence review. Walton granted this extension. CRSC requested a second extension of the time for due diligence review on December 23, 2003:

We are writing to indicate the need for another extension of the inspection period provided for in Section 4A of the above referenced Agreement.
Section 4A of the Agreement provides that during the inspection period, Purchaser would have an opportunity to review the various due diligence materials. This included obtaining Preliminary Title Reports. As you are aware, it also provides that prior to the end of the underwriting period we would provide you with notice of any objections to title. We are working with Michael Hughes at your suggestion. We also have agreed, as you and Scott discussed, not to move forward rapidly with new surveys because of the expense. Therefore, we are unable to review the preliminary title reports and advise of any objectionable title conditions.
We continue moving ahead rapidly, undertaking many of the tasks that we would achieve during the underwriting period. However, it is important that the amended inspection period which would end on December 24 be extended. By means of this letter, we are requesting an extension of the same until January 31, 2004. This should enable us to obtain the surveys at a pace you are happy with and to agree on a financing approach. If an extension is not acceptable, we would have no course but to terminate the contract at this point in time, an action, of course, which we do not wish to take.
If the foregoing extension is acceptable to you, then, to limit our exposure, this letter will constitute an amendment to the Agreement providing for an extension of the Inspection Period until January 31, 2004. If this Amendment is acceptable, please indicate by executing on this letter as indicated below. Thank you very much.
Please call me with any questions.
With all good wishes for the holiday season to you and your wonderful family and staff.

Walton did not execute this letter for the extension of time. CRSC made the second escrow deposit on January 17, 2004, less than a month late. In a January 25, 2004 letter to CRSC, Walton stated that he considered the agreement “null and void by the failure of [CRSC] to not fulfill the terms of the agreement:”

I received by e-mail the letter of intent by GMAC. I have reviewed their letter with great care and find it unacceptable to proceed. There are too many escape clauses on Washington Heights, which I feel cannot be satisfied. If they could be satisfied, it would not be in an early time frame.
There is also the unknown of what construction might be required and es-crowed at 150% of costs. If the[ir] survey was anything like Juanita’s original estimates, I would have to pay them to close.
It is also obvious that Doug Westfall has no enthusiasm for the loan and would be extremely difficult to negotiate things that might be necessary.
This acquisition started with all the properties and has gotten reduced down to the better properties without consideration to my original needs.
The agreement is now in violation, as your letter of December 23, 2003 stated, without the extension that was requested and not granted.
Consequently, consider this agreement null and void by the failure of your client to not fulfill the terms of the agreement.
Shel, this is very difficult for me to come to this conclusion, but after the time trying to get it closed, I feel it is mandatory for me to do something else.
I hope you get along well with your operation. I still value you as one of my friends.

CRSC contends that Walton acted inconsistently with this contention because he continued to go forward with the transaction. CRSC responded to both letters on January 30, 2004: “We are moving ahead at full steam, expending considerable sums of money.... [W]e fully anticipate being able to meet, if not beat, the May 24th closing date-” CRSC contends that as Walton was obligated to do under section 5(h) of the contract, he obtained tenant endorsements of the purchase in late February and early March 2004 and, on March 4, 2004, Walton’s office provided them to counsel for CRSC.

CRSC argues that Walton repudiated the contract altogether by letter of his counsel dated March 9, 2004:

This office represents W.H. Walton, Jr., as the General Partner of the owners of the properties described on Schedule “A” to the referenced agreement. By letter dated January 25, 2004 (copy enclosed), Mr. Walton advised Sheldon L. Schreiberg that the Purchaser was in violation of the terms of the referenced agreement because, as stated in Mr. Schreiberg’s letter of December 23, 2003, the extension requested by the Purchaser was not granted. Thus, the second deposit was not timely made. Accordingly, Mr. Walton advised Mr. Schreiberg to “... consider this agreement null and void by the failure of your client to (sic) not fulfill the terms of the agreement.”
Mr. Schreiberg’s response of January 30, 2004 attempted to assuage Mr. Walton’s concerns. However, despite the content of Mr. Schreiberg’s letter, it is obvious that the Purchaser will not be able to meet the May 24 closing date provided in the contract. Despite the best efforts of Mr. Walton’s closing attorney, J. Michael Hughes, First American Title Insurance Company did not advise Mr. Walton that the additional $25,000.00 deposit was not received by First American Title until January 20, 2004 until February 24, 2004[sic].
In light of the foregoing, our client considers the contract terminated due to the Purchaser’s failure to timely perform. By copy of this letter to the escrow agent, we are advising said agent that the deposit may be returned to the Purchaser.
In light of the foregoing, you are further notified that each party will be responsible for any costs incurred by such party and none other.

Summary Judgment

Walton then filed suit in the circuit court, seeking a declaration that the contract was void as a matter of law. CRSC counterclaimed for breach of contract and specific performance.

The parties each moved for summary judgment on the opposing party’s claim. Walton’s motion asserted that the contract limits CRSC’s options if Walton defaulted to either (i) extend the closing date, or (ii) terminate the agreement, and because CRSC did not provide the requisite notice of termination, the agreement has not been terminated. Moreover, specific performance is precluded by the limitations in paragraph 14.b) of the contract. Walton requested the trial court to enter summary judgment in its favor as to CRSC’s second amended counterclaim. No summary judgment evidence pursuant to Fla. R. Civ. P. 1.510(c) was filed by Walton in support of his motion.

CRSC’s motion for summary judgment argued that specified alleged defects of the contract were insufficient, as a matter of Florida law, to render the contract void. Walton’s pleadings alleged these defects, (i) the legal descriptions of the properties to be sold to be included in Exhibit A was blank (¶ 8 of the complaint), (ii) the identities of the selling entities are not listed anywhere in the agreement (¶ 7 of the complaint), and (iii) that most of the schedules and exhibits are blank and incomplete (¶ 6 of the complaint), caused the contract to be ambiguous and vague so that it is void ab initio. In support of its motion for summary judgment, CRSC filed excerpted copies of Walton’s answers to its first set of interrogatories without the signature page, and an affidavit of one of its lawyers attaching copies of tenant endorsements that Walton forwarded to him.

In response, Walton filed his own May 13, 2005 affidavit disputing that he sent any tenant endorsements to CRSC’s lawyer, and noting that the tenant endorsements filed with the court described the purchasing entities of each property as affiliates of Christian Relief Charities, Inc., none of which are parties to the contract between Walton and CRSC. Walton stated in his affidavit that “he knows that after it became apparent that a definitive purchase agreement (without blank exhibits and schedules) could not be effected between the parties, he advised [CRSC] that it should request the return of the deposit it had made with its lender, GMAC,” and that “in response to his notice that the purchase agreement attached to the Complaint was of no further force and effect [CRSC] did, in fact, request and receive the return of the deposit it had made with its lender, GMAC.” Walton also filed a subsequent affidavit dated May 19, 2005, stating that CRSC’s lawyer advised him that his firm’s work for CRSC was pro bono unless the transaction closed, at which time his firm would be paid.

Without explanation, the circuit court granted Walton’s motion and denied CRSC’s motion. CRSC filed a motion to clarify the ruling — to find out whether the circuit court had granted Walton’s motion because it believed the counterclaim premature or because it believed the contract void. The circuit court denied CRSC’s motion for clarification without explanation.

Walton moved for summary final judgment on the basis of the trial court’s order granting its motion for summary judgment and denying CRSC’s motion for summary judgment. No additional summary judgment evidence pursuant to Florida Rule of Civil Procedure 1.510(c) was filed by either of the parties. The trial court entered summary final judgment, declaring that:

1. [Walton]’s Motion for Summary Final Judgment is hereby granted, and [Walton] shall go hence without delay;
2. [CRSC] has no rights or interest in and under the Property Purchase and Sale Agreement as described in the Complaint for Declaratory Judgment filed herein; and
3.Said Property Purchase and Sale Agreement is void and of no effect.

II. ANALYSIS

Standard of Review

“The movant for summary judgment bears the initial burden of demonstrating by competent evidence the nonexistence of any question of material fact, and only when the movant has satisfied this burden does the burden shift to the opposing party to come forward with evidence to the contrary. Moreover, movant’s proof of the nonexistence of a genuine issue of fact must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome.” Spradley v. Stick, 622 So.2d 610, 612 (Fla. 1st DCA 1993).

“Summary judgments present a classic example of the type of decisions that are subject to the de novo standard of review, except that the review of a summary judgment requires a two-step analysis. First the appellate court must determine whether the trial court properly resolved the matter by a summary judgment. If so, the appellate court must then decide whether the trial court was correct on the merits of the decision.” Philip J. Padova-no, Florida Appellate Practice § 9.4, at 163 (2006 ed.).

Summary Judgment Rulings on Facial Validity of Contract

Because there was no summary judgment evidence in the record to support the trial court’s ruling that the contract is invalid, it must have reached that conclusion from a facial review of the contract. Accordingly, we must decide whether the trial court was correct on the merits, by conducting a de novo review of Walton’s three legal arguments addressed by CRSC in its motion for summary judgment: (i) the legal descriptions of the properties to be sold to be included in Exhibit A was blank (¶ 8 of the complaint), (ii) the identities of the selling entities are not listed anywhere in the agreement (¶ 7 of the complaint), and (iii) that most of the schedules and exhibits are blank and incomplete (¶ 6 of the complaint). We do not reach all of the various reasons Walton raised in his complaint for asserting the contract is void because “[i]n making a ruling on a motion for summary judgment, the trial court is limited to the grounds raised in the motion.” Boucher v. First Cmty. Bank of Orange City, 626 So.2d 979, 982 (Fla. 5th DCA 1993); see also Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban Am. Nat'l Found., 667 So.2d 490, 492 (Fia. 3d DCA 1996) (holding that in ruling on cross motions for summary judgment, the trial court was “completely without jurisdiction to sua sponte make extraneous findings and conclusions on matters not raised by the parties”).

Walton, the general partner on behalf of the selling limited partnerships, was in the best position to know the legal descriptions of the properties to be sold. The seller should not be able to invalidate the contract because of his own failure to include the legal descriptions known to him. The properties were identified by common name and address in Schedule A as shown below:

Schedule A PROPERTY’S COMMON NAME AND ADDRESS
Beachwood 2901 Beachwood Boulevard Jacksonville, FL 32233
Bonny 1104 Bartow Road Lakeland, FL 33801
Eureka Gardens I 1214 LaBelle Street Jacksonville, FL 32205
Eureka Gardens IX 1214 LaBelle Street Jacksonville, FL 32205
Mellon Manor 3701 St. Johns Avenue Palatka, FL 33177
Moncrief Village 1650 Moncrief Villages Jacksonville, FL 32209
Southside 2301 Westmont Street Jacksonville, FL 32207
University Plaza 710 Venus Mars Court Jacksonville, FL 32209
Washington Heights 4229 Moncrief Road West Jacksonville, FL 32209

There is no basis in the law for the seller to reject the validity of the contract for its failure to provide legal descriptions in this contract at the time it was signed.

Walton is described in the contract as the general partner of the various limited partnerships that own the individual properties, collectively referred to as the seller. See RNR Invs. Ltd. P’ship v. Peoples First Cmty. Bank, 812 So.2d 561 (Fla. 1st DCA 2002) (providing that a general partner has apparent authority to bind a limited partnership in the ordinary course of partnership business or in the business carried on by the partnership unless the third party knew or received a notification that the partner lacked authority). These selling entities are known to Walton, and would be included in the recent title insurance policies of the projects, along with the legal description and identification of mortgages, that Walton is required by Exhibit B of the contract to provide to CRSC. See The Florida Bar, Florida Real Property Title Examination and Insurance §§ 4.57, 4.51 (5th ed.2006). The limited partnerships are identified by CRSC in its third amended counterclaim.

Other schedules and exhibits of the contract were left blank at the time of signing the contract. These schedules and exhibits included identification of existing mortgages, regulatory agreements, litigation, and environmental issues. This information should be known to the seller. Moreover, the contract explicitly provides that the parties should provide any documents required to close the transaction. None of these blank schedules and exhibits were essential terms of the contract. “Even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them.” Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 802 So.2d 404, 408 (Fla. 1974) (stating that “[t]he courts should be extremely hesitant in holding a contract void for indefiniteness”).

Walton has failed to identify any missing exhibits and schedules, containing essential terms, that cause the contract to be void. The parties moved forward in their due diligence without any apparent difficulty caused by missing exhibits and schedules. Walton’s letters to CRSC do not cite any problems with missing exhibits and schedules, but instead point to the second deposit not being timely made. The timeliness of the second deposit was not a subject of the cross motions for summary judgment and therefore not considered by the trial court. Therefore, the trial court erred as a matter of law in reaching its conclusion that the contract is void on its face.

CRSC’s Coimterclaim,

Walton’s first motion for summary judgment related to the relief available to CRSC on its counterclaim. Because the contract is not void, the trial court’s ruling on final summary judgment that CRSC has no interest in the contract should be reversed. The trial court’s ruling in favor of Walton that CRSC is not entitled to specific performance is not at issue because in its third amended complaint, CRSC dropped its count for specific performance.

CRSC argues that the trial court erred when it granted Walton’s first motion for summary judgment, asserting that it is entitled to damages rather than the more limited relief provided in the contract because Walton repudiated the contract. CRSC states that under Florida law, “[wjhenever, while the contract is still ex-ecutory, one of the parties directs the other party not to proceed with the performance of the contract, the former has breached the contract and the latter may bring an action for damages.” S. Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771, 773 (Fla. 1st DCA 1983) (citing Poinsettia Dairy Prods., Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936)). Moreover, CRSC argues that “[wjhen faced with the repudiation of an executory contract, the non-breaching party’s duty to tender performance is excused.” Camel Invs., Inc. v. Webber, 468 So.2d 340, 342 (Fla. 1st DCA 1985) (citing Hasp. Mortgage Group v. First Prudential Dev. Corp., 411 So.2d 181 (Fla.1982)).

Walton failed to conclusively prove the nonexistence of a genuine issue of fact, with all reasonable inferences drawn in favor of CRSC, of whether he repudiated the contract and how the parties proceeded in performing the contract. Accordingly, I would remand for further proceedings on Walton’s counterclaim.

Conclusion

The trial court erred by ruling that the contract is facially void because (i) the legal descriptions of the properties to be sold to be included in Exhibit A was blank, (ii) the identities of the selling entities are not listed anywhere in the agreement, and (iii) most of the schedules and exhibits are blank and incomplete. There are disputed issues of fact regarding CRSC’s counterclaim. Therefore, I would reverse the trial court’s final summary judgment and remand for further proceedings on the remaining issues of Walton’s complaint and CRSC’s third amended counterclaim.

I respectfully dissent.


text:
    Jason WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0854.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Jason White, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits.

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    Nichole KELSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5445.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Nichole Kelsey, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    J.J. WALKER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-5162.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    J.J. Walker, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000).

ERVIN, ALLEN, and WOLF, JJ., concur.


author: FULMER, Chief Judge.

text:
    John Paul KAUER, Appellant, v. Cynthia CASSIDY, Appellee.
    No. 2D06-981.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2006.
    James J. Zonas, Naples, for Appellant.
    Tania R. Schmidt-Alpers of Tania R. Schmidt-Alpers, P.A., St. Augustine, for Appellee.
   FULMER, Chief Judge.

John Kauer challenges a final judgment of injunction for protection against domestic violence obtained by Cynthia Cassidy, his sister, pursuant to section 741.30, Florida Statutes (2005). We reverse because the evidence presented at the injunction hearing addressed only one of the half-dozen or so incidents alleged by Cassidy in her petition for injunction and was otherwise insufficient to establish that Cassidy was the victim of domestic violence or that she had reasonable cause to believe that she was in imminent danger of becoming the victim of any act of domestic violence at the hands of Kauer. See §§ 741.30(l)(a), (e), (6); 741.28(2), (3).

Reversed.

DAVIS and KELLY, JJ„ Concur.


text:
    Fred LEE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3459.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Fred Lee, pro se, Petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


author: HAZOURI, J.

text:
    Esig PERLOW, Appellant, v. Sharon BERG-PERLOW, Appellee.
    No. 4D06-849.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 4, 2007.
    Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Esig Perlow (Former Husband), appeals the trial court’s denial of his motion to set aside and vacate orders granting attorney’s fees to Sharon Berg-Perlow (Former Wife) in a dissolution action. We affirm.

The marriage between Former Husband and Former Wife was dissolved on March 15, 2000. In the Final Judgment of Dissolution of Marriage, the trial court noted the following:

The Court has already determined that the Husband shall pay for reasonable fees and costs for the vexatiousness of the litigation as it pertains to all aspects of the discovery in this cause, including but not limited to the presentations at trial. Said amount shall be determined after an evidentiary hearing before this Court....

This court affirmed the Final Judgment on May 8, 2002. See Perlow v. Berg-Perlow, 816 So.2d 210 (Fla. 4th DCA 2002). On December 12, 2002, the trial court entered an Order as to Parties’ Attorney’s Fees. The trial court ordered, in pertinent part:

Former Wife’s Motion for Fees is GRANTED. Former Wife shall be entitled to recover $538,730.72 ($688,730.72 less $150,000), from Former Husband for attorney’s fees and costs incurred as a result of Former Husband’s vexatiousness in the divorce litigation.

The calculation of fees in this order represents the actual amount of the Former Wife’s attorney’s fees minus the amount the Former Wife’s expert testified that the fees would have been but for the Former Husband’s vexatious behavior and litigiousness. In other words, the fees would have been $150,000, had the Former Husband not engaged in vexatious behavior.

On February 4, 2003, the Former Husband appealed this order to this court. The appeal was stayed pending the outcome of bankruptcy proceedings filed by the Former Husband on January 15, 2003. The Former Wife filed a motion to dismiss the appeal based on the Former Husband’s failure to advise this Court that bankruptcy had been discharged, and failure to file his initial brief. This court denied the Former Wife’s motion to dismiss, but ultimately dismissed the appeal on July 26, 2005, for lack of prosecution. On December 3, 2003, the trial court entered an Order on Former Wife’s Application for Court to Delineate (After Eviden-tiary Hearing) Amount of Attorney’s Fees Related to Child Support, Alimony, Custody and Equitable Distribution, Awarded to Former Wife. The trial court found that “as to the amount awarded on December 12, 2002, the sum of $430,984.00 is related to child support and alimony issues that were before this Court and which were included in the award of the sum of $538,730.72.”

The Former Husband appealed this court’s 2002 ruling to the Supreme Court of Florida. See Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004). The supreme court quashed this court’s decision and remanded the case to the trial court for a new trial. Id. at 390. The award of attorney’s fees to the Former Wife was not at issue before the supreme court. The supreme court issued its mandate on June 10, 2004, after which this court quashed its May 8, 2002 decision, and remanded the case to the trial court with directions in accordance with the supreme court’s opinion.

The Former Husband filed a Motion to Set Aside and Vacate the Order as to the Parties’ Attorney’s Fees, pursuant to Florida Rule of Civil Procedure 1.540(b)(5), arguing that the December 12, 2002 order awarding attorney’s fees to the Former Wife must be set aside because it was based on the final judgment that was vacated by the supreme court. Later, the Former Husband withdrew this motion, presuming that his bankruptcy discharged the attorney’s fees award set forth in the December 12, 2002 order. Upon realizing that $430,984.00 of the Former Wife’s at~ torney’s fees was not dischargeable in his bankruptcy, the Former Husband filed an Amended Motion to Set Aside and Vacate the Orders as to the Parties’ Attorney’s Fees. He argued that the December 12, 2002, and December 3, 2003, orders concerning attorney’s fees ■ arose “from the Final Judgment which the Supreme Court stated was improperly entered and as such a new trial on all issues should be heard by the trial court.” After holding a hearing on the Former Husband’s motion to vacate the fee orders, the trial court denied the motion.

The Former Husband’s primary argument on appeal is that the Florida Supreme Court’s reversal of the final judgment nullifies the trial court’s fee award to the Former Wife, as the final judgment specifically ruled that the Former Wife was entitled to fees. A trial judge’s decision whether to grant a motion brought pursuant to Florida Rule of Civil Procedure 1.540(b)(5) is reviewed for abuse of discretion. See Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988).

The Former Husband cites two lines of cases. The first set of cases dictates that when a final judgment is reversed and remanded by an appellate court, an award of attorney’s fees and costs to the prevailing party must also be reversed. See Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1096 (Fla. 4th DCA 2006) (citing Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999); Div. of Admin., State of Fla. Dep’t of Transp. v. Consolidated-Tomoka Land Co., 448 So.2d 12, 13 (Fla. 4th DCA 1984)). However, these cases are distinguishable from the instant case because the award of attorney’s fees to the Former Wife was not based on her status as a prevailing party. Rather, the award was based on the Former Husband’s “vex-atiousness in the divorce litigation.”

The second set of cases cited by the Former Husband instructs that when a judgment is entirely reversed, it is as if the judgment was never entered. See Savery v. Savery, 870 So.2d 920, 921 (Fla. 4th DCA 2004) (citing Smith v. Smith, 118 So.2d 204 (Fla.1960)); Lonergan v. Lippman, 406 So.2d 1124, 1125 (Fla. 1st DCA 1981) (citing Marshall & Spencer Co. v. People’s Bank of Jacksonville, 88 Fla. 190, 101 So. 358 (1924)); Rosenkrantz v. Hall, 172 So.2d 518, 519 (Fla. 3d DCA 1965) (citations omitted). From these cases, the Former Husband concludes that the attorney’s fees award must be vacated in light of the reversal of the final judgment.

However, as the Former Wife correctly argues, the attorney’s , fee award was a post-judgment order that was not overturned by the appeal of the underlying judgment of dissolution. First, this court, and the Florida Supreme Court, would have likely declined to exercise jurisdiction to review the attorney’s fee award because it was not ripe for review when the Former Husband appealed the final judgment. See Carlson v. Carlson, 696 So.2d 1332, 1333 (Fla. 4th DCA 1997) (citing Ritchie v. Ritchie, 687 So.2d 1358 (Fla. 4th DCA 1997)) (concluding that the attorney’s fee issue was not ripe for review, as the amount of fees had not yet been determined); Widom v. Widom, 679 So.2d 74, 75 (Fla. 4th DCA 1996) (citing Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994)) (recognizing that “[a]n attorney’s fee award does not become final and ripe for review until the amount is set”). Second, neither this court’s decision, nor the Florida Supreme Court’s decision, addressed the Former Wife’s entitlement to fees based on the Former Husband’s allegedly vexatious behavior. See Perlow, 875 So.2d at 383-90; Perlow, 816 So.2d at 212-17. Finally, although the Former Wife’s entitlement to attorney’s fees was established in the final judgment, which was ultimately reversed, a successor judge conducted a new hearing on the parties’ fee issues prior to the Florida Supreme Court’s reversal, in which he heard “extensive testimony,” and made his own findings of fact. Like the trial judge who entered the final judgment, the successor judge concluded that the “Former Husband’s actions throughout the litigation of the dissolution proceeding were done in bad faith and served no other purpose other than harassment.”

Thus, the trial court did not abuse its discretion in denying the Former Husband’s motion to vacate the attorney’s fee orders.

Affirmed.

STONE and SHAHOOD, JJ., concur.

      . This motion was filed at the request of the U.S. Bankruptcy Court.

      . The new trial was held in December 2005, after which the trial court issued an Agreed Final Judgment as to Child Custody Issues and Child Access.


author: ROTHENBERG, Judge.

text:
    Lietty PUBILLONES, Appellant, v. James LYONS, Appellee.
    No. 3D05-710.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Joseph C. Segor, Miami, for appellant.
    Weiss & Kahn and Owen E. Kahn, Coral Gables, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   ON MOTION FOR REHEARING

ROTHENBERG, Judge.

We grant the appellant’s motion for rehearing, withdraw our opinion filed on September 20, 2006, and substitute the following opinion in its stead. Lietty Pu-billones (“the -wife”) appeals from a final order denying her Motion for Award of Attorney’s Fees, Suit Money and Costs. As we conclude that there is competent substantial evidence in the record which supports the trial court’s ruling, we find no abuse of discretion, and, therefore, affirm. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion.”); Rosenbloom v. Rosenbloom, 892 So.2d 531, 535 (Fla. 4th DCA 2005) (finding that the attorney’s fee award was based upon competent substantial evidence and, therefore, the trial court did not abuse its discretion); Mazzorana v. Mazzorana, 703 So.2d 1187, 1189 (Fla. 3d DCA 1997) (applying the abuse of discretion standard regarding the award of attorney’s fees in dissolution proceedings).

Despite the brevity of the marriage (the parties married on October 11, 2001, separated eleven weeks later, and James Lyons (“the husband”) filed for dissolution on February 11, 2002), the parties spent two years fighting over custody and visitation of them infant child and, in the process, incurred attorney’s fees and costs totaling nearly $300,000. In light of the assets and income of the parties, we agree with the trial court that the case was over-litigated. The only marital asset was the marital home which was purchased with a down payment of $120,000 made by the husband from non-marital funds. While in litigation, the husband continued to make the mortgage payments, paid the utilities, and provided both alimony and child support. When the marital home was sold, the husband, who made the initial down payment and all subsequent mortgage payments for four and one-half years, received $185,000, and the wife, who had the benefit and use of the home, received $130,000.

The award of attorney’s fees and costs in family law cases is governed by section 61.16(1), Florida Statutes (2004), which makes the financial resources of the parties the primary consideration. It is true that where there is a disparity in income, it is an abuse of discretion to require the party with the smaller income to bear the entire burden of his/her attorney’s fees. See Mazzorana, 703 So.2d at 1189 (holding that in making its determination regarding attorney’s fees, the trial court may take into account all relevant factors including whether one spouse has voluntarily limited or failed to disclose his/ her income).

In the instant case, the trial court concluded that the wife voluntarily limited her income. There is competent substantial evidence in the record to support this finding. The wife has at least one university degree; attended finishing school in Europe; and is fluent in French, Italian, German, Portuguese, Spanish, and English. She has worked in businesses owned by her parents, including her father’s freight forwarding company and her mother’s etiquette school. In addition to her employment in her parents’ businesses, the wife also worked at the U.S. State Department in Washington, D.C., for a short period of time.

As to the parties’ income, the record demonstrates that the husband, who is a pharmacist, earns approximately $100,000 per year. However, after the parties separated, he paid the mortgage and utilities, plus alimony and child support, equaling over half of his yearly net income, and that after the marital home was sold, the husband has continued to pay substantial support to the wife. In addition, the record also demonstrates that after the parties separated, not only has the wife received financial assistance from family members and/or friends in the form of loans, but so has the husband. Although the wife is currently earning less than the husband, the court found that the wife was underemployed; has the potential to earn more money, but has instead chosen to work at her mother’s etiquette school; and that the husband should not bear the burden of paying the wife’s attorney’s fees due to the wife’s employment choices. Specifically, the trial court stated:

She also has, in this community I would think, occupational skills given her facility of languages. As I recall she was literate in more than two languages. Means that she certainly has the potential to make more money than what she is making now.
Now, to be sure, I’m not saying that if an individual isn’t out there working 80 hours a week and making $150,000 a year is some kind of a slackard, but on the other hand you make your life style choices, sometimes you have to live with it.
Former wife wishes basically to work in her parents’ business, which I think is a school of some sort for children, fine, if she wants to do it but sometimes there are burdens that go with that.
If she wants to be underemployed, then fine, but I don’t see necessarily where the former husband has to be responsible for payment of her attorney’s fees, so consequently I’m going to deny both motions. Each side will bear their own costs and fees.

Thus, we conclude that the trial court did not abuse its discretion in denying the wife’s request for reimbursement of attorney’s fees and costs as there is competent substantial evidence to support the trial court’s conclusion that the wife voluntarily limited her income, and that based upon the husband’s monthly payments to the wife, there existed no great disparity between the parties’ incomes.

Affirmed.


text:
    Erik A. PEHRMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3553.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 5, 2007.
    Erik A. Pehrman, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006).

STONE, WARNER, TAYLOR, JJ., concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Johnnie HOWARD, Appellant v. STATE of Florida, Appellee.
    No. 2D05-1043.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Johnnie Howard appeals his conviction following a jury trial for aggravated battery of a police officer. He contends that a peremptory challenge to an African-American venire member was allowed over his objection that the State had failed to provide a race-neutral reason for the challenge. He also contends that the trial court should have granted his motion for a mistrial because of improper contact during a trial recess between the State’s principal witness and a juror.

We affirm without discussion the trial court’s finding that the State provided a race-neutral reason for the peremptory challenge. See Melbourne v. State, 679 So.2d 759 (Fla.1996). However, we reverse the conviction because we find that the trial court should have granted Howard’s motion for a mistrial based on the improper contact between the witness and the juror.

Deputy Highsmith was the victim in this matter and was the State’s principal witness. Following the jury’s retirement for deliberation, Highsmith advised the prosecutor that after his testimony he had lunch at the courthouse cafeteria with a lady who he later discovered was a juror in the case. The prosecutor advised the trial court, and Highsmith was put on the stand to be interrogated by both counsel while the jury continued to deliberate. Although Highsmith stated that his conversation with the lady did not include anything regarding the case, the trial court correctly observed that the contact was “entirely inappropriate and entirely improper.” The trial court stated that the luncheon conversation “may lead [the juror] to feel his credibility is better than someone with whom she did not have a conversation.” The trial court further stated “none of us has any idea what this juror is telling the other jurors in the jury room.” Notwithstanding the trial court’s concern, he refused to interview the juror.

The trial court invited Howard’s counsel to move for a mistrial, which he did. However, the trial court also asked Howard whether he personally wanted a mistrial. Howard responded that he was relying on his lawyer’s advice. The trial court then denied the motion out of expressed concern that without Howard’s clear personal adoption of the motion, the mistrial would create a double jeopardy issue.

The facts here present good cause for granting a motion for mistrial. The trial court correctly stated that the contact was “improper” and further correctly noted the prejudice to Howard from the improper contact, i.e., “none of us has any idea what this juror is telling the other jurors in the jury room.” The trial court was in error to deny the motion for mistrial because of a double jeopardy concern. Thé general rule is that a mistrial to which the defendant consents will not bar a retrial. _ See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). We agree with the statement in Durano v. State, 262 So.2d 733, 734 (Fla. 3d DCA 1972), “[w]e feel the court should have abided by its expressed inclination to grant a mistrial, and therefore the case should be remanded to the lower court for a new trial.”

Reversed and remanded.

FULMER, C.J., and NORTHCUTT, J., concur.


author: STRINGER, Judge.

text:
    In the Interest of D.A., G.A., and R.R., children. B.B. a/k/a A.B., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-5205.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.

      Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

B.B., the Mother, seeks review of the trial court’s order terminating her parental rights to her three children. The Mother argues that the trial court abused its discretion in denying her counsel’s request for a continuance when the Mother failed to appear at the adjudicatory hearing and in determining that her failure to appear constituted a consent to the termination of her parental rights. We agree and reverse.

Section 39.801(3)(d), Florida Statutes (2004), provides that a parent’s failure to personally appear at the adjudicatory hearing constitutes a consent for termination if the parent had been advised in person at the advisory hearing to appear. The purpose of this provision is to ensure that a parent does not defeat the object of the termination proceeding by failing to appear. T.L.D. v. Dep’t of Children & Family Servs. (In re A.N.D.), 883 So.2d 910, 913-14 (Fla. 2d DCA 2004). However, Florida public policy favors an adjudication on the merits as opposed to a consent judgment because termination proceedings involve the fundamental right to parent. Id. at 915. Thus, “courts should ordinarily refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control.” Id. at 914.

In this case, the Mother attended the advisory hearing, and the court informed her of the date and time for the adjudicatory hearing. The Mother did not appear for the adjudicatory hearing, and her counsel told the court that the Mother’s caseworker had informed him that they were having transportation problems. Counsel requested a continuance and assured the court that he would provide the Mother transportation to the next hearing. The trial court denied counsel’s request for a continuance and, pursuant to section 39.801(3)(d), determined that her failure to appear constituted a consent to the termination of her parental rights.

The facts of this case are analogous to those in R.P. v. Department of Children & Families, 835 So.2d 1212 (Fla. 4th DCA 2003). In R.P., the father had been advised of the date of the adjudicatory hearing but failed to appear. Id. at 1213. Counsel for the father explained that the father had transportation problems. He had to rent a car from 200 miles away to get to the hearing, and he had only confirmed that his presence was required after the car rental company had closed. The court granted a continuance until that afternoon, but the father did not appear. At this point, counsel informed the court that the father was still 200 miles away, but he was en route. The court denied counsel’s motion for a continuance and entered a consent to the termination on the father’s behalf.

The Fourth District reversed, holding that there was “no indication of stalling or disregard by the father” and there was no evidence that “a brief continuance would have had adverse consequences to the child.” Id. Thus, the court concluded that “there was not a single valid reason to refuse the continuance, but several good ones to grant it.” Id

As in R.P., the Mother was prevented from attending the hearing due to transportation problems beyond her control. There was no indication of stalling or disregard by the Mother ánd no evidence that the children would have been harmed by the granting of a brief continuance. We therefore conclude that the trial court abused its discretion in denying counsel’s motion for a continuance and determining that the Mother’s failure to appear constituted a consent to the termination of her parental rights.

We reject the Department’s argument that this case is more analogous to D.B. v. Department of Children & Families, 742 So.2d 275 (Fla. 1st DCA 1998). In D.B., counsel for the mother requested a continuance of the adjudicatory hearing because the mother had left a message on his answering machine the previous evening stating that she was having car trouble and was unable to attend. Id at 277. The First District affirmed the trial court’s denial of a continuance because the mother did not contact the court, did not contact counsel until after business hours, and did not follow up to be sure counsel got her message. The court also noted that the mother also had a long history of nonappearance at hearings in the termination case. Id. at 276. In fact, she had not attended the dependency hearing, and she had no contact with the Department, counsel, or the court for nine months before the adjudicatory hearing.

In this case, the Mother did not contact counsel directly to inform him she was having transportation problems, but the Mother did not have the long history of nonappearance present in D.B. The Mother attended the dependency hearing, the initial judicial review hearing, and the advisory hearing. Although she failed to attend the hearing at which her case plan was adopted and the second or third judicial review hearings, her counsel attended and her presence at these hearings was not mandatory. Furthermore, counsel himself represented that he would provide the Mother transportation to the next hearing. Thus, contrary to the State’s assertions, it is not doubtful that the Mother would appear for a continued hearing.

Reversed and remanded.

FULMER, C.J., and CANADY, J., Concur.


author: FARMER, J.

text:
    Beverly Holmes LEE and Kathy Ann Lampkin, Appellants, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee.
    No. 4D05-4261.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      David B. Pakula, Pembroke Pines, and C. David Durkee, Coral Gables, for appellant Beverly Holmes Lee.
    James K. Clark and Dexter Romanez of Clark, Robb, Mason, Coulombe, Buschman & Cecere, Miami, for appellant Kathy Ann Lampkin.
    Maureen G. Pearcy and Andrew E. Grigsby of Hinshaw and Culbertson, L.L.P., Miami, for appellee.
   FARMER, J.

Lampkin was insured by Security National for motor vehicle liability coverage in 2002 when she rear-ended a Metro-Dade public bus with 30 passengers. Several passengers claimed injuries as a result. Lampkin’s policy provided bodily injury liability coverage, policy limits of $20,000 per accident, $10,000 per person. Security National paid two claimants $10,000 each — which, it argued, exhausted policy limits and all of its duties under the policy. When another claimant, Lee, filed a new claim in excess of $10,000, the company at first denied Lee’s claim because of the exhausted policy limits but later tendered a full $10,000. When Lee rejected the tender, Security National filed a complaint for declaratory relief, naming both Lee and Lampkin. It sought a declaration that its tender extinguished any bad faith claim the insureds might assert. The trial court granted summary judgment in favor of Security. We reverse.

Before suit, Lampkin responded to Security’s handling of Lee’s claim by filing a notice of violation with the Department of Insurance, in which she alleged a violation of section 624.155. § 624.155(3)(a), Fla. Stat. (2004). She alleged that its bad faith consisted of quickly settling with two claimants without first assessing all claims arising from the accident and making a good faith allocation to settle as many claims as possible before exhausting policy limits. Security National thereupon tendered $10,000 to Lee in exchange for a general release of all claims.

It is important to keep in sight just who is suing whom and for what, as well as the relief sought and granted by the summary judgment. The carrier’s suit was for a declaratory judgment. It specifically sought judgment declaring that any bad faith claim resulting from the Lee claim was extinguished by its tender, arguing that policy limits had been exhausted and that it owed no further duties under the policy to any insured. At some point during this litigation it appears that Lampkin actually filed a counterclaim for bad faith damages from the carrier, but the bad faith claim was dismissed as premature. Neither Lampkin nor Lee made any attempt thereafter to actually file a bad faith claim.

It is apparent that Security’s motion for summary judgment sought more than an ordinary declaration as to coverage under the policy. In effect, Security wanted a preemptive declaration upholding what could be an affirmative defense in any statutory bad faith action that might be filed later by Lee or Lampkin. Appellants do not challenge whether Security’s attempt to seek an anticipatory declaration as to an affirmative defense extinguishing a potential, but not yet existent, bad faith claim represents a proper use of the declaratory judgment remedy. We therefore express no opinion as to this attempted use of the declaratory judgment procedure.

As to Lee, a third party claimant, Security argued that its tender of $10,000 was made before the lapse of 60 days from the notice filed by Lampkin, and therefore the tender extinguished any bad faith claim. Security specifically argued that Macola v. Government Employees Insurance Company 410 F.3d 1359 (11th Cir.2005) (certifying issue whether tender extinguished statutory and common law bad faith claims to Florida Supreme Court), and Talat Enterprises, Inc. v. Aetna Casualty and Surety Company, 753 So.2d 1278 (Fla. 2000), supported the carrier’s claim to judgment as a matter of law that all bad faith claims had been extinguished.

The defendants responded to the motion for summary judgment by arguing that no bad faith claims should be deemed barred. Lampkin argued that her inchoate bad faith claim was based on our decision in Farinas v. Florida Farm Bureau General Insurance Company, 850 So.2d 555 (Fla. 4th DCA 2003), review den., 871 So.2d 872 (Fla.2004). Lampkin asserted that:

“Security National acted in bad faith in failing to fully investigate all the claims at hand to determine how to best limit the insured’s liability. It further failed to settle as many claims as possible with[in] the policy limits and indiscriminately settled selected claims[,] leaving the insured at risk of excess judgments that could have been minimized by wiser settlement practice.”

Lee argued that the policy limits tender was ineffective to extinguish her third-party bad faith claim because her damages from the accident exceed $10,000. She relied on Hollar v. International Bankers Insurance Company, 572 So.2d 937 (Fla. 3d DCA 1991), which held that the bad faith statute did not purport to make a policy limits tender sufficient to a common law (“decisional”) bad faith claim. 572 So.2d at 938-40.

In its pertinent provisions, the trial court’s order granting summary judgment states merely that:

“ORDERED AND ADJUDGED that the Motion is hereby GRANTED. Talat Enterprises Inc. v. Aetna Casualty and Surety Co., 753 So.2d 1278 (Fla.2000).”

The final judgment itself provides only that:

“Final Summary Judgment is entered in favor of Plaintiff, SECURITY NATIONAL INSURANCE COMPANY, and against Defendants, BEVERLY HOLMES LEE and KATHY ANN LAMPKIN.”

It is striking that the order and judgment contain no express declaration as to precise rights and duties of the parties under the policy. Nor is there even any specific declaration as to the effect of the tender on any inchoate bad faith claim. Yet each side argues different outcomes as to any bad faith claims that might be made against the carrier.

As we have shown, the order granting summary judgment refers to Talat — a first-party, statutory bad faith claim by a named insured against his carrier. The policy there provided property damage coverage for a business. A fire caused substantial damages, closing the restaurant. An arbitration fixed the amount of the covered loss. The carrier paid that amount just before the insured filed notice of a bad faith claim against the carrier. The supreme court held that the first-party bad faith claim never came into existence because by the time 60 days had elapsed after the filing of the notice, the carrier had fully paid the loss. 753 So.2d at 1282. Because first-party bad faith claims are based solely on the statute, and because Talat involves only a first-party bad faith claim under section 624.155, the order’s citation to Talat might seem to imply that some first-party, statutory bad faith claim might be deemed extinguished. Yet it does not actually say so in a formal declaration.

Security argued that the Eleventh Circuit’s decision in Macóla entitled it to summary judgment extinguishing all the bad faith claims, but no mention was made of that holding in the summary judgment we review today. Since the trial court decided this case, however, the supreme court has responded to the Eleventh Circuit’s certified question. Macola v. Gov’t Empl. Ins. Co., — So.2d -, 31 Fla. L. Weekly S690, 2006 WL 3025757 (Fla. Oct. 26, 2006). As a matter of first impression the supreme court held that a carrier’s tender of policy limits within 60 days of the statutory notice and after initiation of a lawsuit against the insured but before entry of an excess judgment, does not have the effect of extinguishing a common law, third party, bad faith claim against the carrier.

Although there is no actual bad faith claim pending in this case, it appears to us that the one described by Lee would fall into the classification of a third party common law bad faith claim. As a consequence, to the extent that the summary judgment was meant to bar Lee’s third-party, common law, bad faith claim — if that were the actual intention of the trial judge — a summary judgment so declaring would be error under the supreme court’s Macóla decision.

We again emphasize that the judgment does not explicitly declare that policy limits have been exhausted, that the carrier no longer owes any defense to its named insured, or that any particular bad faith claim has actually been extinguished. For the guidance of the trial judge and parties on remand, however, we do offer the following. To the extent that it was meant to bar a first party bad faith claim of the kind in Farinas, it would seem to be in error. To the extent that it purports to bar a third party bad faith claim as in Macóla, it would also seem to be in error.

Reversed.

GUNTHER and GROSS, JJ., concur.

      . We remind trial judges and lawyers that a declaratory judgment action seeks a formal, express declaration of some legal status or conclusion. That means that in any order granting summary judgment in a declaratory judgment proceeding — and most surely in any final judgment — the trial judge must explicitly declare some legal conclusion.

      . Because the summary judgment and consequent final judgment contain no explicit declarations by the trial judge as to the rights and duties of the parties, either under the policy or as to any incipient bad faith claims, we do not think it appropriate for us to read any particular declarations into the judgment by construction.


author: POLEN, J. KLEIN, J.,

text:
    Jack F. KAREFF, Appellant, v. Mary P. KAREFF, Appellee.
    No. 4D05-4098.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Louis L. Williams of Williams & Hef-fling, West Palm Beach, and Kimberly L. Boldt of Boldt Law Firm, Boca Raton, for appellant.
    Joel H. Feldman of Feldman & Schneid-erman, PL, and Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellee.
   POLEN, J.

The former husband appeals from a September 14, 2005 final judgment of dissolution of marriage. We reverse and remand for reconsideration of child support.

Appellant Jack Kareff (“husband”) and appellee Mary Kareff (“wife”) were married on January 23, 1990 and lived together as husband and wife until their final separation in August 2004. They have two minor children by the marriage. Wife’s daughter from a previous marriage is a nineteen-year-old college student. Husband and wife raised her since she was three years old. Husband is an emergency physician. Wife, although a licensed nurse, has been a stay-at-home mom since their two minor children were born.

Child Support

In his first point on appeal, husband argues that the trial court erred in computing his child support obligation under section 61.30, Florida Statutes (2006). Wife properly concedes that there was a mathematical error in the court’s computation. We therefore reverse and remand to the trial court for recalculation of husband’s monthly child support obligation. “A child support determination is within the sound discretion of the trial court, subject to the statutory guidelines and the reasonableness test.... Section 61.30(9), Florida Statutes, provides the statutory formula which must be used to determine each parent’s actual dollar share.” Ondrejack v. Ondrejack, 839 So.2d 867, 871 (Fla. 4th DCA 2003) (citing Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995)). Whether a trial court’s mathematical computations are correct is a question of law which is reviewed de novo. Cameron v. Dickey, 871 So.2d 1022, 1023 (Fla. 5th DCA 2004).

In determining child support, the trial court calculated a parental net income of $33,000 per month. The court then found that the child support obligation ■ for two children based on this net income figure was $7,685, of which husband’s share was 66.6 percent, or $5,118 a month.

The trial court’s calculation of child support obligation is, however, at odds with the guideline amount. Section 61.30 provides that for a combined monthly available income greater than $10,000, the child support obligation shall be the minimum amount of support provided by the guidelines, plus the amount of income over $10,000 multiplied by a statutorily delineated percentage. § 61.30(6), Fla. Stat. (2006). The guideline amount of prescriptive child support in this case would be $2,228 + ($23,000 x 7.5%) = $3,953, rather than the $7,685 calculated by the trial court. See Id. Husband’s 66.6 percent share would therefore be $2,633 a month, rather than the court ordered $5,118.

Wife argues that the trial court’s child support award is presumptively correct because Section 61.30(l)(a) allows trial courts to adjust support awards and deviate from the guidelines by more than five percent. See Fla. Stat. 61.30(l)(a) (2006). In furtherance of this argument, wife contends that the trial court deviated from the guideline amount in order to cover the “significant educational and other requirements” of the children. However, the child support award was not inclusive of the children’s educational, medical and insurance expenses. The court ordered husband to pay those obligations under separate and distinct paragraphs in the final judgment. They therefore were not factored into the trial court’s child support calculations.

Due to the difference between the guideline amount of prescriptive child support and that determined by the trial court, as well as the lack of written findings explaining such deviation, we reverse and remand to the trial court for recalculation. If on remand the court awards wife child support which varies by more than five percent from the guideline amount, the court must provide written findings explaining why ordering payment of the guideline amount would be unjust or inappropriate. See § 61.30(l)(a), Fla. Stat. (2006).

Alimony

Because we reverse and remand to reconsider child support, and because there appears to be some confusion between the trial court’s alimony determination and its pronouncements regarding wife’s financial needs, the trial court shall also reconsider the award of permanent periodic alimony to wife.

“The standard of review with respect to the award of alimony is whether the trial judge abused his discretion and the test is whether any reasonable person would take the view adopted by the trial judge.” Vandergriff v. Vandergriff, 456 So.2d 464, 466 (Fla.1984) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980)). “If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris, 382 So.2d at 1203.

At trial, wife sought permanent periodic alimony of $15,000 per month. Her accountant testified that wife’s monthly expenses were $13,548. The discrepancy between this figure and the court-awarded $14,000 may at first glance appear reasonable in light of the taxes that will be levied on wife’s alimony award. However, the amount awarded is difficult to reconcile with the trial court’s findings regarding the reliability of wife’s evidence. The court stated that wife’s presentation as to the amount of her lifestyle needs was “not convincing.” It noted that wife and her forensic accountant overestimated wife’s financial needs by basing their analyses on a period of time when husband lived at home with her, their two children and wife’s daughter from a previous marriage. The court also found that neither wife nor her accountant could substantiate many of the expenses she claimed were her needs alone. It is therefore peculiar that wife would be awarded permanent periodic alimony in an amount greater than that supported by her apparently unreliable evidence. This is particularly true given the testimony of husband’s accountant, in which the accountant stated that wife’s monthly expenses were only $9,166. Based on the foregoing, we direct that the trial court reconsider the award on remand.

Exclusive Use and Possession of the Marital Home

We find no reversible error or abuse of discretion as regards the trial court’s award to wife of exclusive use and possession of the marital home, so we affirm on this issue.

Reversed.

MAY, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. I am writing to address a preservation issue. Appellee has argued that the appellant is precluded from raising the issue involving the miscalculation of child support because appellant failed to raise the error in a motion for rehearing at the trial level, citing Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001).

In Hoffman, the husband argued on appeal that the $545 a month he was paying for health insurance was not considered by the trial court in calculating child support. We declined to review the issue because it “was not argued below or raised via a motion for rehearing.” Id. at 131. I am unable to determine from our opinion in Hoffman whether there was evidence in the record that the former husband was paying $545 a month in health insurance. If there was no evidence, then our refusal to consider the issue on appeal was correct. If there was evidence, however, we should have addressed Florida Rule of Civil Procedure 1.530(e).

Under rule 1.530(e), the sufficiency of the evidence to support the judgment in a nonjury case may be raised on appeal “whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing.” Rule 1.530(e) enables appellate courts to correct miscalculations of child support in family law cases, where there is evidence from which the correct calculation could have been made, and a party has neglected to move for rehearing. I use the word “neglect” deliberately because the delay, expense, and waste of judicial resources in using an appeal to correct such a mistake, when a motion for rehearing would have sufficed, is inexcusable.


text:
    David W. WAINER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2393.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 5, 2007.
    David W. Wainer, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

David W. Wainer appeals the summary denial of his motion filed in accordance with Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of the merits of his claim.

Though this was Wainer’s second motion, we hold that it was not successive, an abuse of process, or time barred. Wainer alleged that the grounds were not known and could not have been known at the time he filed his initial motion. More specifically, he alleges that he learned of the claim, the existence of a favorable plea offer, while preparing with counsel for proceedings associated with the first motion. See generally Gallant v. State, 898 So.2d 1156 (Fla. 2d DCA 2005). Consequently, we remand for further review of Wainer’s claim. Cottle v. State, 783 So.2d 963 (Fla.1999).

STEVENSON, C.J., POLEN and SHAHOOD, JJ., concur.