author: TAYLOR, J.

text:
    TOWN OF LAKE PARK, Appellant, v. William F. GRIMES, Jr., Joanne E. Grimes, his wife, and Household Properties Corp., a Florida corporation, Appellees.
    No. 4D06-4591.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Thomas J. Baird and Karen E. Roselli of Baird & Roselli, North Palm Beach, for appellant.
    No brief filed for appellees.
   TAYLOR, J.

The Town of Lake Park (“the Town”) appeals an order which awarded a foreclosure sale surplus to appellees William and Joanne Grimes, the former owners of the property. The Town claimed it was enti-tied to the surplus for payment towards code enforcement liens against the property. We agree and reverse.

On April 16, 2003, the Grimeses executed a note and mortgage in the amount of $79,950.00, encumbering their home. They accumulated fines from the Town totaling $464,914.19, due to repeated code violations. The orders imposing per diem fines are dated November 21, 2002, May 4, 2004, November 18, 2004, July 7, 2005, and December 1, 2005.

On July 15, 2005, Mortgage Investors I, LLC filed its mortgage foreclosure complaint against the subject property, naming the Grimeses and the Town as defendants. The Town answered, alleging the priority of its liens.

On September 27, 2005, the trial court entered an order foreclosing the mortgage and ordering public sale of the property. The public sale occurred on January 5, 2006. The property was sold to Household Properties Corp. (HPC) for $151,732.50. After the mortgagee was paid a judgment of $99,977.64, a surplus of $51,754.66 remained in the court registry. Title to the property was transferred to HPC on January 17, 2006, pursuant to a Certificate of Title, which was recorded the following day.

On January 18, 2006, the Grimeses entered into an agreement with HPC wherein they assigned to HPC 70% of the surplus, plus attorney’s fees, in exchange for HPC’s “service” of collecting the surplus for them. The Grimeses continued to reside at the subject property for a short time pursuant to a lease agreement with HPC. According to the Town, the Grimes-es then vacated the property. Although the date of their departure is uncertain, it was apparently before HPC sold the property to the new owner on April 28, 2006.

On May 10, 2006, the Grimeses and HPC moved for disbursement of the surplus to them. The following day, the Town moved for payment of the surplus towards its liens against the subject property. This action was consolidated with a declaratory action brought by the Grimes-es and HPC against the Town over entitlement to the surplus.

The Town filed an affidavit of James D. Ryan, Esq., who stated that:

6. During the time which Defendants William F. Grimes Jr. and Joanne E. Grimes owned the Property numerous valid hens were recorded against the property by Lake Park. As the junior lienholder at the time of foreclosure, Lake Park is entitled to payment on its valid liens.
8. The former owners the “Grimes” homestead status is irrelevant because on the face of their motion for release of the funds it is clear they have displayed an intent to not use such surplus for acquisition of another homestead but instead have assigned 70% of the surplus to another and have pledged the balance for attorney fees.

The Grimeses and HPC presented an affidavit from attorney Preston J. Fields, Sr., which stated:

That upon information and belief, the subject real property was the homestead real property of Mr. and Mrs. Grimes. That if the real property foreclosed in the instant matter was the homestead real property of WILLIAM F. GRIMES, JR., and JOANNE E. GRIMES, prior to May 8, 2003, and continuing up through and including September 27, 2005, the date of entry of the Final Judgment of Mortgage Foreclosure, the Code Enforcement Liens set forth in Paragraphs 4(b)(c)(d) and (e) above, are also unenforceable against the subject real property, and the net surplus funds, pursuant to Article X, Section 4, of the Florida Constitution, as constitutional prohibition takes priority over the debt or lien and renders the same unenforceable. Miskin v. City of Fort Lauderdale, 661 So.2d 415 (Fla. 4th DCA 1995).

At the hearing on the cross-motions for recovery of the surplus, the parties stipulated that the property was, in fact, the Grimeses’ homestead from March 29, 1985 until January 17, 2006, the date the property was transferred to HPC. The trial court determined that the code enforcement liens were not entitled to share in the surplus funds and awarded the surplus to the Grimeses.

Florida’s provision for homestead exemption is found in the Florida Constitution. Art. X, Section 4 of the Florida Constitution states that, with certain exceptions, “no judgment, decree or execution shall be a lien” on homestead property. The homestead exemption must be liberally construed in the interest of protecting the family home. Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1020 (Fla.2001). However, the exemption is not to be liberally construed so as to make it an instrument of fraud or imposition on creditors. Id.

Section 162.09, Florida Statutes, authorizes county or municipal code enforcement boards to levy fines and impose liens on the deficient property. However, it states:

No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution.

§ 162.09(3), Fla. Stat. (2006).

Relying on language in Demura v. County of Volusia, 618 So.2d 754, 756 (Fla. 5th DCA 1993), HPC suggests that the subject liens were void and thus never subject to enforcement. In Demura, homeowners sought to remove a cloud from the title of real property which they claimed as homestead. The alleged cloud was a personal judgment lien against the homeowners that arose from fines that had been imposed by Volusia County against the homeowners for county code violations. The fifth district stated:

Although the statute merely provides that any lien created pursuant to an administrative fine may not be foreclosed on real property which is homestead, the Constitution itself goes much farther: No such lien exists as to such homestead property. Since that is true, the mere recording of the order against the Demuras cannot constitute a cloud against their homestead property.

Id. However, later in the opinion, the fifth district clarified that if the homestead property were sold and the proceeds of the sale not reinvested within a reasonable time, “those proceeds could be reached by creditors such as the County.” Id. (citing Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201, 206 (Fla.1962)).

In Miskin v. City of Fort Lauderdale, 661 So.2d 415, 416 (Fla. 4th DCA 1995), which involved an attempt to remove a code enforcement lien as a cloud on title, we stated:

More importantly, contrary to Miskin’s assertion, the prohibition of the constitutional provision is a prohibition against the use of process to force sale of homestead property and does not invalidate the debt or lien. Thus, the constitutional prohibition takes priority over the debt or lien and renders the same unenforceable. The legislature recognized this fact in determining that an enforcement board order should not be considered a judgment except for enforcement proceedings. § 160.09(3), Fla. Stat. (1993). Accordingly, the mere recording of the order in the instant case does not constitute a cloud upon Miskin’s homestead property. However, if Miskin’s property somehow lost its homestead status, the City would be able to enforce the order as a lien against the property.

Id. (citations omitted).

The critical issue in this case is whether the surplus retained homestead status. In La Croix, a judgment creditor sought to levy against the proceeds from a voluntary sale of the judgment debtor’s homestead property. The Florida Supreme Court stated:

After a full consideration of the applicable authorities representing both views on the issue before us, and in recognition of the liberal interpretation of the homestead exemption to which this court is committed, we hold the proceeds of a voluntary sale of a homestead to be exempt from the claims of creditors just as the homestead itself is exempt if, and only if, the vendor shows, by a preponderance of the evidence an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time. Moreover, only so much of the proceeds of the sale as are intended to be reinvested in another homestead may be exempt under this holding. Any surplus over and above that amount should be treated as general assets of the debt- or. We further hold that in order to satisfy the requirements of the exemption the funds must not be commingled with other monies of the vendor but must be kept separate and apart and held for the sole purpose of acquiring another home. The proceeds of the sale are not exempt if they are not reinvested in another homestead in a reasonable time or if they are held for the general purposes of the vendor.

137 So.2d at 206 (underlined emphasis added). Although La Croix involved a voluntary sale, rather than a forced sale, we see no reason why this should make a difference in our analysis.

The parties stipulated that the property was homestead until January 17, 2006. The Grimeses’ claim that the surplus enjoyed the same homestead protection as the property, depended on proof that the Grimeses had an “abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time.” But, the Grimeses did not offer any proof of such intent. In the absence of competent substantial evidence to that effect, the trial court was compelled to rule for the Town. We note the Town’s argument that the Grimeses’ agreement for HPC to receive 70% of the surplus, plus any attorneys fees incurred, serves as positive evidence that the Grimeses had no such intent. In any event, because the burden of proof was on the Grimeses, and they failed to meet their burden to prove an intent to reinvest in another homestead, we reverse the order awarding the surplus to the Grimeses.

Reversed and remanded.

POLEN and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BNP PARIBAS, a foreign corporation and Paribas Principal, Inc., a foreign corporation, Appellants, v. James A. WYNNE, III, individually, and as Trustee of the James A. Wynne, III Revocable Trust No. 2 dated March 19, 1998, Appellee.
    No. 4D06-3085.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Caran Rothehild of Greenberg Traurig, P.A., Fort Lauderdale, Mark F. Bideau of Greenberg Traurig, P.A., West Palm Beach, Elliot H. Seherker and Elliot B. Kula of Greenberg Traurig, P.A., Miami, and Richard E. Berman of Berman, Kean & Riguera, P.A., Fort Lauderdale, for appellants.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, Carlos Rodriguez, Fort Lauderdale, and William R. Leonard, Fort Lauderdale, for appellee.
   PER CURIAM.

BNP Paribas and Paribas Principal, Inc. (“BNP”) seek review of an order wherein the trial court imposed a flat, unconditional $50,000 sanction against BNP for discovery violations. BNP contends that the trial court erred by imposing monetary sanctions for discovery violations without first: (1) conducting an evidentiary hearing to determine the amount of reasonable expenses and/or fees to be assessed against BNP for actual losses sustained by Appellee due to the discovery violations at issue; or (2) following the required procedures necessary to find BNP in criminal or civil contempt, for failure to comply with previous court orders relating to discovery. We agree that the trial court erred by imposing a flat, unconditional sanction against BNP without first conducting a preliminary hearing necessary to either grant relief under Florida Rule of Civil Procedure 1.380 or impose sanctions pursuant to the court’s contempt powers. As such, we vacate the trial court’s order imposing a $50,000 sanction against BNP and remand for further proceedings consistent with this opinion.

KLEIN, HAZOURI, JJ., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Peter KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3267.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Carey Haughwout, Public Defender, James W. Mclntire, Assistant Public Defender, West Palm Beach, and Peter Keller, Moore Haven, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Having recalled the mandate in this case on March 29, 2007 to allow further briefing, we hereby withdraw our decision issued on January 31, 2007. After further consideration we hereby reissue the following decision.

Affirmed.

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


text:
    Lorenzo RAMUNNO, Appellant, v. Angela Ramunno TERRANOVA, Personal Representative of the Estate of Estelle M. Ramunno, Appellee.
    No. 4D06-3585.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    No brief filed for appellee.
   TAYLOR, J.

Lorenzo Ramunno appeals an order entered by the probate court, contending the court miscalculated the amount he owes under a final judgment obtained by the personal representative against him. We affirm the order in all respects, except as to that portion of the order which charges Mr. Ramunno $16,758.61 for life insurance proceeds he received from Metropolitan Life Insurance Co. upon his mother’s death. This amount represents four-fifths of the proceeds, which the trial court concluded should have been shared equally by Lorenzo and his siblings.

We reverse as to this portion of the order because the only evidence presented to the trial court concerning the life insurance proceeds was Mr. Ramunno’s testimony that he properly received the money. The trial court’s contrary findings are supported only by the arguments of the estate’s counsel and the unsworn pleadings and attachments from the estate’s previous action against Metropolitan Life. These do not suffice as competent, substantial support for the trial court’s ruling. See Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005) (unauthenticated documents and arguments of counsel were not eviden-tiary support for general master’s ruling); Loiaconi v. Gulf Stream Seafood, Inc., 830 So.2d 908, 910 (Fla. 2d DCA 2002) (document and argument of counsel were not sufficient proof to support venue determination); see also Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982).

We therefore reverse only as to this $16,758.61 charge to Lorenzo Ramunno.

Affirmed in part, reversed in part and remanded.

POLEN and STEVENSON, JJ., concur.


text:
    A.M. HOCHSTADT, Appellant, v. Patrick GRADY and The Law Offices of Wolf and Wolfe, Ltd., Appellees.
    No. 4D06-3709.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, for appellant.
    Deborah P. FitzGerald and G. Isabel del Cid of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed. See Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013 (Fla. 4th DCA 2003); Korman v. Kent, 821 So.2d 408 (Fla. 4th DCA 2002).

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


text:
    James Allen GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-436.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Carey Haughwout, Public Defender, Margaret Good-Earnest and Tom Wm. Odom, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, GROSS and TAYLOR, JJ., concur.


text:
    Michael H. BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-820.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    K.F., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-1315.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Felicia Shaman of the Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal involves a change of custody for two children who had been adjudicated dependent, but who remained in their mother’s custody. Because there was no competent, substantial evidence in the record that the change of custody from the mother to foster care was in the best interests of the children, we reverse.

B.W. was adjudicated dependent in 1996 and I.F. in 2001. Protective supervision was terminated in July of 2003. In August of 2005, protective supervision was reinsti-tuted after the Department of Children and Families (“DCF”) filed a motion alleging that I.F. had been left without adult supervision, an allegation similar to the one that had given rise to the dependency proceedings involving I.F., and that I.F. had bruises as a result of being hit with a belt buckle by his father. The parents entered into a case plan with DCF, but the children were permitted to remain in the mother’s custody.

More than a year later, DCF filed a motion seeking to modify the placement of the children with the mother, K.F., alleging the mother was allowing two non-relative tenants, both of whom had criminal records, to reside in the home and to be alone with the children. The matter was referred to a general master, who denied the motion, but ordered the mother not to leave the children alone with the individuals. When the case came for judicial review before the circuit court, however, the trial court ordered the mother to remove the tenants from the home within seven days or have her children removed from her custody. The mother failed to remove the tenants within the seven days and DCF filed a second motion to modify the children’s placement. In a largely form order, the trial court found that placement outside of the home was in the children’s best interests and ordered them removed from the mother’s custody and home and placed into foster care. The mother has appealed, raising a number of issues. We write to address only one — the mother’s claim that there was not competent, substantial evidence to support a finding that removing the children from her custody was in the best interests of the children.

Section 39.522, Florida Statutes, governing postdisposition changes of custody, provides that the standard for such a change in custody “shall be the best interest of the child.” § 39.522(1), Fla. Stat. (2006). In this case, the change of custody was sought as a consequence of DCF’s allegations that the mother was renting rooms to two individuals with criminal histories. The only evidence on this matter that appears in the record on appeal is a report, attached to DCF’s motion for modification and filed by a child advocate, indicating a background screening reflected one of the renters has five open felony charges and a criminal history that includes animal cruelty and possession of cocaine charges and the other a background that included cocaine, prostitution, disorderly conduct, disorderly intoxication and assault charges. There is, however, no evidence indicating the nature of the open charges, how long ago any convictions took place, whether the individuals are currently involved in drugs or alcohol, whether the individuals are engaging in criminal activity from the house, whether the children are being exposed to and spending time with these individuals, or whether the children were being left alone with these individuals. Absent evidence of this nature, there was no competent, substantial evidence to support the trial court’s conclusion that removing the children from their mother’s custody and home, and placing them in foster care, was in their best interests. See M.A. v. Dep’t of Children & Families, 906 So.2d 1226, 1227 (Fla. 1st DCA 2005) (looking to whether trial court’s factual findings concerning best interests of the child are supported by competent, substantial evidence and applying abuse of discretion standard of review).

Accordingly, we reverse the order removing the children from the mother’s custody. Of course, should additional facts come to light indicating that the custodial arrangement with the mother is no longer in the best interests of the children, the matter may be revisited upon the filing of an appropriate motion.

Reversed and Remanded.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Emmanuel MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2959.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Emmanuel Moreland, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant Emmanuel Moreland appeals the trial court’s order summarily denying his latest motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Moreland v. State, 945 So.2d 606 (Fla. 4th DCA 2006), this court affirmed the denial of his earlier rule 3.850 motion, without prejudice to his right to file a timely and verified motion alleging whether he actually qualified for youthful offender sentencing, and addressing the criteria under section 958.04(1), Florida Statutes, relating to ground eight of his motion. Instead of complying with this court’s mandate, appellant chose to file a new, successive motion alleging other grounds. The trial court did not err in summarily denying that motion, as it was clearly successive and unauthorized.

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.


author: STRINGER, Judge.

text:
    Kenneth B. BUXTON, Appellant, v. Bonnie BUXTON, Appellee.
    No. 2D06-5358.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2007.
    Virginia R. Vetter, Tampa, for Appellant.

      M. Katherine Rainers of M. Katherine Rainers, P.A., Dunedin, for Appellee.
   STRINGER, Judge.

Kenneth Buxton (the Former Husband) appeals from the trial court’s order denying his motion to reduce or terminate his alimony obligation to Bonnie Buxton (the Former Wife), based on her ten-year cohabitation with another man. The trial court denied the Former Husband’s motion after concluding that the Former Wife and her long-term companion, Virgil Was-co, are not engaged in a “supportive relationship” as that phrase is used in section 61.14(l)(b), Florida Statutes (2005). Because the trial court’s conclusion is not supported by its factual findings, we reverse and remand for further proceedings. In addition, because there is little case law applying section 61.14(l)(b), we address the statute and the issues raised by the parties in some detail.

Section 61.1Jf.(l)(b)

Prior to the enactment of section 61.14(1)(b), the courts allowed a payor spouse to seek modification of alimony under section 61.14(a) when the recipient spouse was cohabiting with another. See, e.g., Reno v. Reno, 884 So.2d 462 (Fla. 4th DCA 2004); Bridges v. Bridges, 842 So.2d 983 (Fla. 1st DCA 2003); Springstead v. Springstead, 717 So.2d 203 (Fla. 5th DCA 1998); DePoorter v. DePoorter, 509 So.2d 1141 (Fla. 1st DCA 1987). In those cases, the fact that a recipient spouse was cohabiting with another was not, by itself, sufficient to allow modification of alimony. Reno, 884 So.2d at 465; Springstead, 717 So.2d at 204; DePoorter, 509 So.2d at 1144. Instead, modification required evidence of both cohabitation and a change in circumstances concerning the recipient spouse’s needs. Rahn v. Rahn, 768 So.2d 1102, 1104 (Fla. 2d DCA 2000); Reno, 884 So.2d at 465; Springstead, 717 So.2d at 204.

In 2005, the legislature enacted section 61.14(b) to “provide an alternate method to a court to reduce or terminate alimony, without first having to find that there has been a change in financial circumstance, as is the case in current law.” Sen. Staff Analysis, C.B./S.B. 152 at 12 (Feb. 25, 2005). As enacted, section 61.14(1)(b)(1) permits the trial court to reduce or terminate alimony if it makes a specific written finding that the recipient spouse has entered into a “supportive relationship” with another person. The statute does not provide an explicit definition of the term “supportive relationship.” However, the legislature explained its intent in using this term by stating that it recognized “that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph.” § 61.14(1)(b)(3).

To determine whether a “supportive relationship” exists under the statute, the trial court is required to “elicit the nature and extent of the relationship in question.” § 61.14(1)(b)(2). While the trial court is required to consider all evidence relevant to the nature and extent of the relationship, the statute provides a nonexclusive list of eleven factors that the trial court must consider:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obli-gee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

Id. In addition, section 61.14(l)(b)(3) permits the trial court to consider whether the relationship is a conjugal one. If, after considering all the evidence presented, the trial court concludes that a “supportive relationship” exists, it may either reduce or terminate the alimony obligation.

Facts of this Case

The Former Husband and the Former Wife divorced in 1993. At the hearing on the Former Husband’s petition, the evidence established that the Former Wife and Wasco have been living together for the past ten years. They live in a house that the Former Wife owned before the start of their relationship. Wasco owns a condominium, which he owned before the start of the relationship, but it is leased to tenants. Wasco’s driver’s license and voter registration card both list the shared residence as his permanent address. The Former Wife and Wasco share a bed as well as a residence. They also share the household chores, maintenance, and upkeep.

Both Wasco and the Former Wife testified that Wasco pays “rent” of $575 per month to the Former Wife; however, they agreed that the amount of the rent actually paid fluctuates each month. For example, the Former Wife pays Wasco to mow her lawn by deducting $45 from the “rent” each time he mows. She testified that if she had to hire someone to mow the yard, it would cost approximately $65 each time. In addition, the Former Wife testified that she would sometimes have Wasco purchase items for her at Sam’s Club, and she would deduct the amount of those purchases from the “rent.” Wasco pays a portion of the cable bill. Other than that one bill, the Former Wife pays all of the household expenses, including the mortgage, property taxes, and utilities, from her funds, which include the “rent” she receives from Wasco. While the parties used the term “rent” for these payments at the evidentia-ry hearing, in the ten years that Wasco has paid “rent” to the Former Wife, she never claimed these payments as rental income for tax purposes until after the Former Husband filed this petition.

The Former Wife and Wasco both testified that they do not have any joint bank accounts. However, when they go grocery shopping together, they each usually pay half of the bill. If one goes shopping without the other, whoever is at the store pays and they “work it out later.” When they go out to eat, they do not request separate checks or split the bill. Instead, Wasco pays one time and the Former Wife pays the next time. Wasco testified that he has attended the Former Wife’s family functions as her “boyfriend” for the past ten years. When he and the Former Wife travel together, they each pay their own airfare; however, they do not necessarily split the other expenses “down the middle.” Instead, the Former Wife testified that how other trip expenses are shared “dependfs] on the trip and depend[s] on the circumstances.”

After considering this evidence, the trial court made an explicit factual finding that Wasco provides both financial and emotional support to the Former Wife. Despite this finding, however, the trial court concluded that the Former Wife and Wasco are not in a “supportive relationship” for two reasons: first, that the Former Wife and Wasco do not have a joint bank account and thus have not pooled their assets; and second, that because the Former Wife is employed, Wasco is not fully supporting her. Based on this conclusion, the trial court denied the Former Husband’s motion to reduce or terminate alimony, and he now appeals.

Standard of Review

As an initial matter, we address the proper standard of review of a trial court’s decision under section 61.14(l)(b). Based on the statutory framework, we believe that the decision made by a trial court under this section presents a mixed question of law and fact, which calls for a mixed standard of review.

The trial court’s first task when considering a petition under section 61.14(l)(b) is to make factual findings based on the evidence presented by the parties. Based on those factual findings, the trial court then reaches a legal conclusion as to whether those facts establish a “supportive relationship.” If the trial court concludes that a “supportive relationship” exists, the trial court has the discretion to reduce or terminate the alimony obligation. In a situation such as this, we review the trial court’s factual findings to determine whether they are supported by competent, substantial evidence. We review the trial court’s conclusion concerning whether those facts establish a “supportive relationship” de novo. If the trial court determines that a “supportive relationship” exists, we review the trial court’s decision to reduce or terminate alimony for abuse of discretion.

This standard of review is the same as that used in other contexts that employ a similar analysis. For example, section 61.075, which deals with equitable distribution, requires the trial court to identify marital assets and liabilities and distribute them equitably. To do so, the trial court must first consider evidence and make factual findings as to the character of the asset or liability. These findings are reviewed for clear error. Farrior v. Farrior, 736 So.2d 1177, 1179 (Fla.1999). Based on its factual findings concerning the character of the asset or liability, the trial court then reaches a legal conclusion as to whether the asset or liability constitutes a “marital asset” or “marital liability” as defined. This legal conclusion is reviewed de novo. Id. Assuming an asset or liability is determined to be marital, the trial court has broad discretion in how it distributes that asset or liability. Cory v. Cory, 536 So.2d 1063, 1064 (Fla. 2d DCA 1988). We can see no relevant differences between the analysis required under section 61.075 and the analysis required under section 61.14(1)(b) that would dictate a different standard of review.

“Supportive Relationship” in this Case

Applying this standard of review to this appeal, we find that while most of the trial court’s findings are supported by competent, substantial evidence, the finding that the Former Wife and Wasco do not pool their assets for living expenses is not. It is true that the Former Wife and Wasco have not commingled their liquid assets in a joint bank account. However, the evidence shows that the Former Wife and Wasco do pool their assets for purposes of living expenses even in the absence of a joint bank account. When they dine out, they do not request separate checks to each pay for their own meals. When they go to the grocery store, each does not pay for only the food he or she will eat. They do not always evenly share the cost of their travels. More importantly, the Former Wife never claimed Wasco’s rent payment as “income” for tax purposes until after the Former Husband filed this petition. Rather, it was simply his contribution to the joint expenses incurred in running the household. Given this evidence, the trial court’s finding that the Former Wife and Wasco have not pooled then-assets is not supported by the evidence.

In addition, given the factual findings made by the trial court and the totality of the evidence presented at the hearing, we hold that the trial court erred in concluding that the Former Wife and Wasco are not in a “supportive relationship.” The trial court specifically found that Wasco is providing economic and financial support to the Former Wife. The facts presented at the hearing show that the Former Wife and Wasco are in a long-term, committed relationship that provides both economic and social support equivalent to that of a marriage. Under these circumstances, the evidence established the existence of a “supportive relationship” as contemplated by section 61.14(l)(b).

At the hearing, the trial court concluded that the Former Wife and Wasco were not engaged in a “supportive relationship” because Wasco was not fully supporting the Former Wife. However, nothing in section 61.14(l)(b) requires the recipient spouse to be completely dependent on the cohabitant before a “supportive relationship” can exist. Certainly, if a payor spouse establishes that the recipient spouse is being totally supported by another, a “supportive relationship” likely exists. See, e.g., Zeballos v. Zeballos, 951 So.2d 972 (Fla. 4th DCA 2007) (affirming the conclusion that a “supportive relationship” existed when the former wife had no income and did not work outside the home and her live-in companion paid all of their joint expenses and supported the former wife’s children). However, section 61.14(1)(b)(2)(d) specifically requires the trial court to consider the extent to which the parties have supported each other “in whole or in part.”

In determining what level of partial support is required to establish a “supportive relationship,” we turn to prior case law dealing with cohabitation for guidance as to what constitutes “support.” In those cases, the question of whether the parties were supporting each other turned on whether either party benefited financially from the contributions of the other. For example, in Long v. Long, 622 So.2d 622, 624 (Fla. 2d DCA 1993), this court held that the former wife was not being supported by her live-in companion because his contributions to the household barely covered his groceries and his share of the utilities. Moreover, there was no evidence that the former wife’s expenses had been reduced by her companion’s work around the house. Id.

In contrast, in Pill v. Pill, 583 So.2d 1114, 1114 (Fla. 5th DCA 1991), the court affirmed a reduction in alimony based on the trial court’s finding that the former wife’s live-in companion was partially supporting her by providing yard work, pool cleaning, house and pool maintenance, and automobile maintenance in addition to paying rent. Additionally, in an earlier case involving the same parties, the court noted that because the former wife was paying the mortgage, gas bills, electric bills, telephone bills, and water and sewer bills without a financial contribution from her live-in companion, she was partially supporting him. Pill v. Pill, 559 So.2d 364, 364 n. 1 (Fla. 5th DCA 1990).

Here, unlike in Long, Wasco’s “rent” covers significantly more than his share of the groceries and utilities. Further, like in Pill, Wasco is providing yard work at a reduced rate and assisting with household maintenance and upkeep. Thus, under this pre-enactment case law, the evidence would have supported a conclusion that Wasco was partially supporting the Former Wife, which could warrant a reduction of her alimony.

That said, however, these pre-enactment cases focus solely on the issue of financial support. Under section 61.14(1)(b)(2), financial support is but one factor to be considered in determining whether a “supportive relationship” exists. In addition to the financial issues, the length and nature of the live-in relationship are significant factors for the trial court to consider. We do not believe that the legislature intended for every roommate or brief live-in relationship to trigger a reduction in or termination of alimony. Instead, only those relationships that are equitably equivalent to a remarriage warrant a reduction or termination of alimony. While consideration of financial support is an important part of that analysis, that factor alone does not define whether a “supportive relationship” exists.

Here, the evidence shows that the Former Wife and Wasco have engaged in a ten-plus-year relationship in which they share a house, a bed, all household chores, and all household expenses. Both their social lives and their living expenses are interdependent. The lone fact militating against concluding that a “supportive relationship” exists is the lack of a joint bank account. However, this one factor is insufficient to outweigh the other evidence showing that the relationship is the equitable equivalent of a remarriage. Accordingly, we hold that the trial court erred in concluding that a “supportive relationship” does not exist, and we remand for further proceedings.

Proceedings on Remand

Because we are holding that a supportive relationship exists, the sole question for the trial court to consider on remand is whether to reduce or terminate the Former Husband’s alimony obligation. We recognize that the legislative history of section 61.14(l)(b) seems to indicate that the trial court does not need to consider the Former Wife’s need for the alimony in reaching this decision. See Sen. Staff Analysis, C.B./S.B. 152 at 12 (Feb. 25, 2005). However, the language of the statute does not effectuate this intent.

Section 61.14(1)(b)(1) permits the trial court to reduce or terminate alimony if a “supportive relationship” exists, but it provides no guidance to the trial court concerning how to exercise its discretion should it decide to do so. Other courts have required the trial court to apply the provisions of section 61.08(2), which lists the factors the trial court must consider when determining an award of alimony, when modifying alimony under section 61.14. Donoff v. Donoff, 940 So.2d 1221, 1223 (Fla. 4th DCA 2006); Mirsky v. Mirsky, 474 So.2d 9, 9 (Fla. 5th DCA 1985); see also Bagley v. Bagley, 948 So.2d 841, 841 (Fla. 1st DCA 2007). As the Donoff court explained,

[I]t is apparent that the legislature has used specified “factors” or “circumstances” in chapter 61 to create standards governing the exercise of trial court discretion. These section 61.08(2) factors operate to direct and circumscribe all awards of alimony, thereby making outcomes more predictable. Nothing in any statute purports to eliminate these “relevant economic factors” when modifying alimony under section 61.14. Indeed, section 61.08(2) specifies that it applies whenever the court is “determining a proper award of alimony” under the statute.

Donoff, 940 So.2d at 1223.

Our review of the applicable statutes leads us to agree with the First, Fourth, and Fifth Districts that section 61.08(2) applies to modification proceedings under section 61.14(l)(b). Despite the legislature’s stated intent, nothing in section 61.14(l)(b) states that section 61.08(2) is inapplicable. Accordingly, on remand, the trial court must consider evidence on all of the factors listed in section 61.08(2) in determining whether to reduce or terminate the Former Wife’s alimony and, if to reduce it, by how much.

Reversed and remanded for further proceedings.

KELLY, J., and MORELAND, DIANA, Associate Judge, Concur.


author: KELLY, Judge. ALTENBERND,

text:
    Everett L. HUMBLE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Sunshine Installations, Inc., Appellees.
    No. 2D06-2290.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2007.

      Everett L. Humble, pro se.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Appellee Sunshine Installations, Inc.
   KELLY, Judge.

Everett Humble appeals from the final order of the Unemployment Appeals Commission affirming the appeals referee’s decision disqualifying him from receiving benefits. The Commission erred in affirming because the referee failed to properly apply section 443.101(l)(a)(l), Florida Statutes (2005), in determining whether Humble should be disqualified from receiving benefits. Accordingly, we reverse.

Humble was a fifty-two-year-old former disc jockey collecting unemployment benefits when he decided to investigate a job as a cable installer for Sunshine Installations, Inc. After two days of training, Humble concluded that he was physically unable to perform the work and he left the job. He was disqualified from receiving unemployment compensation benefits on the basis that he went to work for Sunshine and left for reasons not attributable to the employer. Humble appealed the decision.

At the hearing before the appeals referee, Humble testified that Sunshine had never officially hired him. He stated that he had intended to try the job to see if he could perform the work before accepting a position. Humble acknowledged, however, that he had filled out a job application and other paperwork before he started training. Sunshine’s general manager testified that although he did not know the specifics of what had transpired in Humble’s case, company policy required that a person be officially “hired” to begin training so they will be covered by the employer’s workers’ compensation insurance in the event of injury. The manager agreed that the job was strenuous and did not dispute Humble’s assertion that he was physically unable to perform the job. He noted that the installation of cable required climbing ladders and telephone poles, and “lifting upwards of 80 to 100 pounds at any one time throughout the day.” He was sympathetic to Humble’s plight, stating, “I certainly don’t want to see him lose out on any unemployment because he came to work for us for a day.” The manager testified that company records indicated that Sunshine had issued a paycheck to Humble, but he did not know if Humble had ever received or cashed the check.

The appeals referee found that Humble “felt that he was not suited for the job” and quit “due to the strenuous nature of the job.” Noting that he found no evidence that the employer had misrepresented the nature of the job, the referee concluded that Humble “voluntarily quit his job for personal reasons that were not attributable to the employer” and therefore was disqualified from receiving benefits. The Commission affirmed. On appeal, Humble argues that the appeals referee should have found that he left the job for good cause because he was physically unable to perform the work.

In a case similar to this one, Vajda v. Unemployment Appeals Commission, 610 So.2d 645 (Fla. 3d DCA 1992), the claimant lost her job and was receiving unemployment benefits. She obtained another job that was out of her field. While training for the job she concluded that it involved extensive computer work, which she feared would trigger her migraine headaches. She left the job because of her medical condition and sought to have her unemployment benefits reinstated. The appeals referee found that the claimant’s physical problem was a preexisting condition that was not caused by the employer and therefore it was not good cause qualifying the claimant for benefits. The Third District reversed and remanded with directions to reinstate the claimant’s unemployment benefits. The court noted that the claimant had shown “good cause” under the statutory definition which includes “illness or disability of the individual requiring separation from his work.” Id. at 646. See § 443.101(1)(a)(1). The court reasoned: “Under the statute, it is not a matter of assigning blame to the employer. The inquiry is whether there is an illness or disability which makes the employee physically unable to perform the duties of the job.” Id.

Here, Humble testified that he could not lift heavy ladders and climb telephone poles for a living. The manager from Sunshine agreed that the job was strenuous and was akin to a construction job. Although the referee recognized that Humble left the job because he was physically unable to perform the work, the referee rejected Humble’s claim because he determined this was a “personal reason” not attributable to the employer, apparently because the employer had not misrepresented the nature of the job to Humble. The flaw in the referee’s reasoning was in failing to recognize that the statutory definition of good cause does not require that the cause be attributable to the employer when an employee voluntarily leaves because of illness or disability that renders them unable to perform the work. See Stanick v. T & B Metal Works, Inc., 867 So.2d 523 (Fla. 1st DCA 2004) (reversing where the referee analyzed the good cause requirement without acknowledging that good cause statutorily includes illness or disability requiring separation from work). In its order affirming the referee and in its argument to this court, the Commission adopted the referee’s flawed legal analysis of good cause, stating that Humble’s inability to perform the work may have been a good reason to leave the job but it was a “personal” reason not attributable to the employer.

Accordingly, the Commission’s order is reversed and the case is remanded with directions to reinstate the unemployment benefits Humble was receiving before he attempted the job at Sunshine.

Reversed and remanded with instructions.

WALLACE, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND,

Judge, Concurring.

I fully concur in this reversal and write simply to point out that this is a very unusual unemployment compensation appeal. Mr. Humble never filed a claim for benefits listing Sunshine Installations, Inc., as an employer. Rather, it appears Mr. Humble was receiving unemployment benefits based upon his separation from a job as a disc jockey when he decided to investigate a position with Sunshine installing cable systems in residences.

Our record does not reveal who previously employed Mr. Humble or any information about his initial claim for benefits. Instead, the record on appeal begins with a “fact finding statement” from an interview conducted by “B. Drakes” of the Agency for Workforce Innovation. This form has a box for a “claimant certification” and a signature line marked, “claimant’s signature,” but the notation made above this line is obviously not Mr. Humble’s signature. It perhaps is a notation that the “fact finding” occurred during a telephone interview. In this interview, Mr. Humble denied that he took a job with Sunshine. The Agency then sent a determination to Mr. Humble and Sunshine that Mr. Humble quit his job for reasons not attributable to Sunshine, as employer. The determination noted that Sunshine was not “chargeable” for benefits because “the employment was not in the base period.”

When Mr. Humble appealed this determination, neither Mr. Humble nor Sunshine had any interest in proving that he had ever been an employee of Sunshine. If a prior employer was chargeable for these benefits, there is no indication that the prior employer received any notice of these proceedings. Mr. Humble denied that he was actually an employee during this short experience and denied that he received any pay. The only person at the hearing with an interest in proving that this employment occurred and that Mr. Humble left it voluntarily seems to have been the referee.

As we noted in Wood v. Unemployment Appeals Commission, 927 So.2d 127 (Fla. 2d DCA 2006), a claimant seeking benefits must simply establish that he or she is unemployed. The burden then generally shifts to the employer to prove some event establishing the claimant is disqualified from receiving benefits pursuant to section 443.101. That employer, however, is usually the chargeable employer with an interest in proving disqualification.

No one disputed that Mr. Humble was unemployed at the time of the hearing. The question was whether his limited experience with Sunshine was employment such that he was no longer unemployed and eligible for benefits, and if so, whether he voluntarily left that employment so that he was disqualified from further benefits pursuant to section 443.101(l)(a)(l). Mr. Humble did not bear the burden of proof on these issues. I do not believe that any party with such a burden of proof established that Mr. Humble was ever employed by Sunshine or if he was, that he quit that employment. Accordingly, Mr. Humble never had the burden to prove any issue at this hearing.


author: KLEIN, J.

text:
    Emanuel O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1939.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

The trial court allowed appellant to discharge his court appointed counsel without conducting a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Florida Rule of Criminal Procedure 3.111(d)(2). This left appellant to represent himself on charges of delivery of cocaine and resisting arrest without violence, and he was convicted. The state makes no contention that there was an adequate Faretta hearing, but argues that appellant’s familiarity with the criminal justice system and his self-representation at a sentencing in an earlier case demonstrated that he was familiar with self-representation. In this case, however, the defendant was not seeking to represent himself, but on the contrary was asking the court to replace his court appointed counsel, with whom he was not satisfied, with other counsel. There was no waiver of the right to counsel and we must accordingly reverse for a new trial.

HAZOURI, J., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Brian J. FILASKY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1795.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2007.
    Brian J. Filasky, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

The trial court’s denial of appellant’s Motion to Correct Illegal Sentence is affirmed. However, such affirmance is without prejudice to appellant filing an amended motion clarifying the nature of his claim and seeking relief pursuant to Florida Rule of Criminal Procedure 3.850.

PALMER, C.J., PLEUS and EVANDER, JJ., concur.


text:
    Jarvis GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3002.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2007.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Jarvis Garrett, argues that he was sentenced on the basis of an inaccurate scoresheet. While we are unable to determine from the record before us whether or not the scoresheet utilized by the trial court was accurate, we are able to determine that even if it was inaccurate in the manner suggested by Mr. Garrett, it would have made no difference in the sentence he received. We note that he was sentenced in accordance with a plea agreement which made no mention of the sentence being associated with the scoresheet. Nevertheless, appellant is entitled to have an accurate scoresheet. Thus, while we affirm the order denying relief, we remand for the trial court to determine whether the scoresheet is accurate.

AFFIRMED and REMANDED.

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Swanson MILLER, Appellant, v. STATE PLASTERING CO. and Bridgefield Employers Ins. Co., Appellees.
    No. 1D06-2990.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2007.
    Dora Kerner, Gainesville, and Bill McCabe, Longwood, for Appellant.
    Mary L. Wakeman, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., for Appellees.
   PER CURIAM.

Affirmed. See Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA), rev. denied 939 So.2d 93 (Fla.2006); Campbell v. Aramark, 933 So.2d 1255 (Fla. 1st DCA), rev. denied 944 So.2d 986 (Fla.2006).

BARFIELD, ALLEN and HAWKES, JJ., concur.


text:
    Prince HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3753.
    District Court of Appeal of Florida, Fifth District.
    Sept. 11, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Doctor v. State, 596 So.2d 442 (Fla.1992); State v. Bellamy, 723 So.2d 402 (Fla. 5th DCA 1999).

GRIFFIN, ORFINGER and EYANDER, JJ., concur.


text:
    Juan WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3785.
    District Court of Appeal of Florida, Fifth District.
    Sept. 11, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Guthrie v. State, 407 So.2d 357 (Fla. 5th DCA 1981).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


author: CORTINAS, Judge.

text:
    Grisell BACALLAO, Petitioner, v. Jean Raymond DAUPHIN, D.O.; Rogelio Jose Zaldivar, M.D.; Gustavo Martinez-Padilla, M.D.; Gustavo Martinez-Padilla, M.D., P.A.; Primary Care Group Practice Assoc., P.A.; Christina O. Abraham, P.A.; Mary C. Waechter, M.D.; Gregory Fox, D.O.; Arnaldo Villafranca, M.D.; Physicians Associates, P.A.; Camilo Lopez, P.A.; Michael Key, D.O.; Westchester General Hospital, Inc. d/b/a/ Westchester General Hospital; and Preferred Medical Plan, Inc., Respondents.
    No. 3D07-475.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.

      Sheldon J. Schlesinger, Fort Lauder-dale; Burlington & Rockenbach and Bard D. Rockenbach West Palm Beach, for petitioner.
    Dittmar & Hauser and Helen Ann Hau-ser; DeMahy Labrador Drake Payne & Cabeza and Kenneth R. Drake, for respondents.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   OPINION ON MOTION FOR CLARIFICATION

CORTINAS, Judge.

We grant Petitioner’s motion for clarification and, accordingly, withdraw our former opinion of May 30, 2007, and substitute in its place this clarifying opinion.

Petitioner, Grisell Bacallao, seeks a writ of certiorari quashing an order compelling her to submit to a neuropsychological examination pursuant to Florida Rule of Civil Procedure 1.360(a)(1) without allowing her counsel to attend the examination and without permitting a video or audio tape of the examination. We grant the petition for certiorari and quash the trial court’s order.

Factual Background

Petitioner filed a negligence action against Respondents, Westchester General Hospital and several physicians, alleging that Respondents failed to properly diagnose Petitioner as having a stroke and subsequently failed to treat her for that condition. Respondents requested that Petitioner submit to a neuropsychological examination by their expert, Dr. Bonnie Levin, pursuant to rule 1.360(a)(1). Petitioner filed several objections to the examination which are not at issue in this appeal. Thereafter, Respondents filed a memorandum of law that addressed Petitioner’s objections and requested that the trial court prohibit the presence of witnesses at the examination and not allow any video or audio taping of the examination.

The trial court held several hearings on Respondents’ request to exclude all third parties from the examination and disallow any taping of the examination. At the evidentiary hearing, Dr. Levin testified that third parties, including Petitioner’s counsel, should not be allowed to attend the examination and that the examination should not be taped. Dr. Levin also testified that the presence of a third party as well as video or audio taping of the examination is disruptive, potentially affects the validity of the exam, compromises test security by releasing confidential test materials to the general public, and violates professional and ethical obligations. When Dr. Levin was asked whether there were any other physicians in the area who would conduct a neuropsychological examination with the presence of a third party, Dr. Levin testified that there were others in private practice who advised her that they would be willing to do so solely for financial reasons.

Moreover, the record reflects that Petitioner’s counsel previously disrupted a neuropsychological examination conducted on the Petitioner by another physician, Dr. Levine. In a letter addressed to Respondent’s counsel, Dr. Levine stated that he was unable to complete the Petitioner’s examination because Petitioner’s counsel continually objected to his questions and instructed the Petitioner not to answer certain questions.

Relying on literature published in the area of neuropsychology, the arguments of counsel, and Dr. Levin’s testimony, the trial court denied all of the Petitioner’s objections to the medical examination and granted the Respondents’ request to prohibit any third party, including Petitioner’s counsel, from attending the examination. In addition, the trial court ordered that no other “distractions” would be allowed during the examination “including, but not limited to, videotaping, audiotaping, two-way mirrors, or any other surreptitious or stealthy manner of eavesdropping on the examination.” Petitioner now seeks a writ of certiorari.

To grant a writ of certiorari, we must find “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal.” Grooms v. Serv. Max Delivery & Installation, Inc., 953 So.2d 624, 626 (Pla. 1st DCA 2007) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)).

I. Departure From the Essential Requirements of the Law

Under Florida law, a party seeking to exclude a third party observer from a compulsory medical examination must (1) provide a case-specific reason why their presence would disrupt the examination and (2) prove at an evidentiary hearing that no other qualified physician can be located in the area who would be willing to perform the examination under such circumstances. See Grooms, 953 So.2d at 626 (granting a petition for writ of certiorari and quashing a trial court’s order denying the presence of a videographer at the plaintiffs neuropsychological examination); Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 456 (Fla. 1st DCA 2006) (granting a petition for writ of certiorari and quashing a trial court’s order preventing the plaintiffs attorney from attending a psychological examination); Brompton v. Poy-Wing, M.D., 704 So.2d 1127, 1128 (Fla. 4th DCA 1998) (granting a petition for writ of certiorari and quashing a trial court’s order precluding the plaintiffs attorney from attending a neuropsychological examination); Freeman v. Latherow, 722 So.2d 885, 886 (Fla. 2d DCA 1998) (granting a petition for writ of certiorari and quashing a trial court’s order prohibiting the plaintiffs counsel from monitoring a neuropsychological examination from an adjoining room and prohibiting the examination to be videotaped). It is well-settled in Florida that “[a] trial court departs from the essential requirements of the law when it does not comply with the two-prong test to exclude a third party from a compulsory medical examination.” Grooms, 953 So.2d at 626 (citing Lunceford v. Fla. Cent. R.R. Co., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999)).

The party seeking to exclude a third party observer bears the burden of providing case-specific reasons why the trial court should deny the plaintiffs right to have a third party present. See Grooms, 953 So.2d at 626 (citing Broyles v. Reilly, 695 So.2d 832, 833 (Fla. 2d DCA 1997)). Florida courts have found that a neuropsy-chologist’s testimony regarding his or her standards of practice, references to text, and conclusory statements that a third party’s presence will render an examination invalid do not constitute case-specific reasons to exclude a third party from a medical examination. Grooms, 953 So.2d at 626 (citing Byrd, 928 So.2d at 459) (finding that the doctor’s testimony that his professional standards, the presence of a third party, and the fact that a previous unrelated examination was compromised by a videographer’s presence were not case-specific reasons). In Freeman, the court found that testimony offered by a neuropsychologist that an unrelated examination was disrupted by a third party not involved in the ease was not a case-specific reason to prohibit a videotaping of the Petitioner’s neuropsychological examination. Freeman, 722 So.2d at 886; see also Brompton, 704 So.2d at 1128 (finding that testimony offered by a neuropsychologist that during an examination, in an unrelated case, the plaintiffs attorneys had interfered with the examination was not a case-specific reason). Nevertheless, a third party’s presence, particularly an attorney’s presence, during a medical examination is premised upon a requirement that the third party will not interfere with the doe-tor’s examination. See U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla.2000) (adopting the holdings of several Florida appellate courts regarding rule 1.360 examinations and concluding that “absent a valid reason for denial, an insured is entitled to have an attorney or videographer present at a physical examination”). Clearly, while the plaintiff has a right to have a third party observer at his medical examination, it is vital to the integrity of the examination and the overall proceedings that the third party comport herself in a professional manner.

Once a party provides a case-specific reason for excluding a third party, the party must establish that no other qualified individual in the area would be willing to conduct the examination with the third party present. Byrd, 928 So.2d at 459 (citing Freeman, 722 So.2d at 886). In Byrd, a doctor testified without contradiction that although he would not perform the examination with Petitioner’s counsel present, he knew of two other qualified individuals in the area who would be willing to perform the examination under such circumstances. Byrd, 928 So.2d at 460. The First District in Byrd found that such testimony does not satisfy the second prong of the applicable test. Id. Clearly, where a doctor testifies that another physician would perform the examination under those circumstances, that party has failed to meet its burden of proving that no other qualified individual in the area would be willing to perform the examination given the circumstances.

A. Presence of Counsel

In this case, the trial court’s ruling constitutes a departure from the essential requirements of the law because the record reflects that the Respondents failed to satisfy the two-prong test to exclude Petitioner’s counsel from the examination.

Addressing the first prong of the test, the Respondents presented a case-specific reason to exclude Petitioner’s counsel from attending the examination, namely that Petitioner’s counsel had disrupted a previous examination on the Petitioner in this same case by objecting to Dr. Levine’s questions and instructing the Petitioner not to answer certain questions. This case is distinguishable from Freeman because, in that case, the doctor testified that a third party, completely unrelated to the case at issue, had disrupted the examination by talking too loudly from another room. In this case, Petitioner’s counsel had not behaved professionally at a prior examination of this Petitioner and, perhaps more shockingly, would not guarantee to the trial court that she would behave in an appropriate manner at a future examination.

However, the Respondents failed to meet their burden of satisfying the second prong of the applicable test. The record reflects that Dr. Levin testified at the evidentiary hearing that she was aware of other doctors in the area who, despite violating ethical obligations, would perform the Petitioner’s examination with an attorney present. As was true of the testimony in Byrd, Dr. Levin’s testimony in this case does not constitute sufficient evidence to establish that no other neuropsychologist in the area would be willing to conduct the examination with Petitioner’s counsel present.

B. Video or Audio Taping the Examination

The trial court’s ruling also departed from the essential requirements of the law in prohibiting any video or audio recording of the examination as the Respondents failed to satisfy the applicable two-prong test.

Pursuant to the first prong of the test, the Respondents clearly failed to provide case-specific reasons to prohibit a video or audio recording of the examination. The reásons offered by the Respondents included a neuropsychologist’s standards of practice, references to text, and general statements that a third party, such as a videographer, would invalidate the examination results and interfere with the examination. These justifications were identical to the ones offered by the doctors in Grooms and Freeman which the courts held were not case-specific reasons for prohibiting videotaping an examination.

Additionally, the Respondents failed to satisfy the second prong of the test. As was the case with respect to the prohibition of third parties, Dr. Levin’s testimony that she knew of other neuro-psychologists in the area who would perform the Petitioner’s examination while it was being recorded does not satisfy the Respondents’ burden of -proving that no other doctor in the area would be willing to conduct the examination given such circumstances.

II. Material Injury that Cannot be Corrected on Posl-Judgment Appeal

In order to be entitled to relief, the Petitioner must also demonstrate that the trial court’s ruling results in material injury that cannot be corrected by an appeal after the entry of a final order disposing of the ease at the trial level. See Byrd, 928 So.2d at 460 (finding that once the petitioner demonstrated that the order departed from the essential requirements of the law and resulted in material injury for the remainder of the case, he must also show that the injury was one that could not be corrected by an appeal). Florida courts have consistently recognized that the type of injury here is one that may be properly remedied by a writ of certiorari. For example, the Byrd court found that an order which prevented the petitioner’s attorney from attending the examination would cause irreparable harm to the petitioner because it would be “virtually impossible in an appeal following entry of a final order to demonstrate how the absence of the requested third party affected the outcome of the examination.” Id. (citing Taylor v. Columbia/HCA Doctors Hosp., 746 So.2d 1244, 1245 (Fla. 1st DCA 1999)). Similarly, in Lanceford, the court found that the trial court’s order preventing the examination from being videotaped caused irreparable harm to the petitioner because “in a final appeal, it would be almost impossible to determine how the lack of a videotape of the examination affected the ability of petitioner’s experts to evaluate the orthopedic examination, and perhaps, impeach the examiner.” Lanceford, 728 So.2d at 1241. Here, it would also be impossible to determine how the absence of Petitioner’s counsel as well as the lack of a video or audio tape of the examination affected counsel’s ability to evaluate Dr. Levin’s examination and to impeach Dr. Levin at trial. Thus, we find that the Petitioner demonstrated that the injury is one that cannot be corrected on appeal after the entry of final judgment by the trial court.

Conclusion

We conclude that the Petitioner demonstrated that the trial court’s ruling constitutes a departure from the essential requirements of the law because the record reflects that the Respondents failed to satisfy the two-prong test to exclude Petitioner’s counsel from the examination and prohibit any video or audio recording of the examination. We also conclude that the Petitioner demonstrated that the ruling results in material injury that cannot be corrected on appeal.

Accordingly, we grant the petition, issue the writ, and quash the trial court’s order. However, as we previously stated, a third party’s presence, particularly an attorney’s presence, is premised on the requirement that the third party not interfere with the examination. In the event such interference occurs, the trial court may take appropriate steps to ensure that Dr. Levin has a reasonable opportunity to complete her examination of the Petitioner. See Byrd, 928 So.2d at 460.

Certiorari granted and order quashed.

      . The trial court stated in its order that, pursuant to our decision in Medrano v. BEC Construction Corp., 588 So.2d 1056, 1057 (Fla. 3d DCA 1991), it had the sound discretion to address the types of discovery rulings at issue in this case. We note that Medrano was decided prior to the Florida Supreme Court and Florida appellate courts concluding that it was the defendant's burden to establish why a third party should not attend the examination. Furthermore, in Medrano, the trial court ordered an audio recording of the examination and we granted the petition for writ of certiorari without prejudice to the plaintiff's proposed use of a non-intrusive videotaping procedure. Id. Thus, while we held that these types of discovery rulings were in the sound discretion of the trial court, the trial court in that case provided a means for objectively preserving the petitioner's examination.

      . Here, it is unclear whether the trial court even applied the second prong of the applicable test. While the trial court weighed the evidence to determine whether the Respondents satisfied their burden of proving that no other qualified physician in the area would be willing to conduct the examination with counsel present or while it was taped, the trial court also noted that the foregoing standard, as set forth in Byrd, Freeman, and Broyles, was impractical. To the extent the trial court rejected this standard, the trial court clearly departed from the essential requirements of the law.

      . This portion of our analysis also applies to that portion of the trial court’s order which prohibits "two-way mirrors, or any other surreptitious or stealthy manner of eavesdropping on the examination.”