author: ALLEN, J. BENTON, J., HAWKE S, J.,

text:
    In re: Jane DOE 06-C.
    No. 1D06-5226.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2006.

      Richard M. Benham, Tallahassee; Randall C. Marshall of ACLU Foundation of Florida, Inc.; Miami; and Rebecca Harrison Steele of ACLU Foundation of Florida, Inc., Tampa, for Appellant.
   ALLEN, J.

In this appeal from a final order by which the trial judge dismissed the appellant minor’s petition for judicial waiver of parental notice of termination of pregnancy, the appellant asserts that' the trial judge improperly disqualified one of her attorneys, thereby depriving her of counsel of her choice at the hearing on her petition. Because the trial judge erred in disqualifying the appellant’s attorney, because we are unable to conclude that this error was harmless, and because remand for a new hearing is not authorized in proceedings of this type, we previously entered an order by which we reversed the order under review and remanded this case with directions for the trial judge to enter an order granting the appellant’s petition. This opinion is written to provide a complete explanation of the rationale for our decision.

An attorney named Pfeiffer, who also works as an assistant public defender, appeared as counsel on behalf of the appellant at the hearing on her petition. Another attorney named Benham served as co-counsel, though Mr. Benham advised the court that he lacked litigation experience. The record strongly suggests that the plan was for the experienced litigator, Mr. Pfeiffer, to have primary responsibility for handling the hearing.

Although Mr. Pfeiffer explained to the trial judge that his representation of the appellant was not related to his work with the office of the public defender, and although he further explained that he had sought and received the public defender’s permission to provide this representation, the trial judge expressed her view that, because of Mr. Pfeiffer’s association with the public defender’s office, it would be inappropriate under “Florida law and ethical rules” for him to represent the appellant. Mr. Pfeiffer therefore indicated that “if necessary Mr. Benham could proceed” with the hearing. Mr. Benham then responded that he would be willing to proceed with the hearing, but he explained that, in light of his lack of litigation experience, he would like to have Mr. Pfeiffer available to consult with him during the course of the hearing. The judge denied this request, instructing Mr. Pfeiffer to leave the courtroom and thereby functionally disqualifying Mr. Pfeiffer as counsel for the appellant. Mr. Benham was therefore left to represent the appellant during the balance of the hearing without assistance, even though he had previously advised the trial judge of his lack of litigation experience.

In the order entered following the hearing, the trial judge provided the following explanation for her disqualification of Mr. Pfeiffer:

At the hearing, an attorney with the Office of the Public Defender desired to act as co-counsel. However, neither the [Parental Notice of Abortion] Act nor section 27.51, Florida Statutes, authorize such representation, particularly where the petitioner has already retained private counsel. Additionally, section 27.51, Florida Statutes, seems to prohibit any such representation.

Disqualification of a party’s counsel strikes at the heart of an important right — the right to choose one’s own lawyer — and it should be employed only when clearly necessary. See, e.g., Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So.2d 155 (Fla. 3d DCA 2005); Whitener v. First Union Nat’l Bank of Florida, 901 So.2d 366 (Fla. 5th DCA 2005); Herschowsky v. Guardianship of Herschowsky, 890 So.2d 1246 (Fla. 4th DCA 2005). In the present case, there was no necessity for the disqualification of the appellant’s counsel. Although the trial judge referenced three authorities for her ruling. — (1) the Parental Notice of Abortion Act, which appears at section 390.01114, Florida Statutes; (2) section 27.51, Florida Statutes; and (3) “ethical rules” — none of these authorities precludes an attorney who wishes to provide private representation in connection with a non-criminal petition for judicial waiver of parental notice of termination of pregnancy from doing so merely because the attorney also serves as an assistant public defender in unrelated criminal cases.

The United States Supreme Court recently recognized the practical impossibility of assessing whether trial court error resulting in the unlawful denial of a litigant’s counsel of choice is harmless error. The Court explained:

It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions ... do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternative universe.

United States v. Gonzalez-Lopez, — U.S. -, 126 S.Ct. 2557, 2565, 165 L.Ed.2d 409 (2006). Agreeing with these observations, we are unable to conclude that the trial judge’s error in disqualifying the appellant’s counsel in the present case amounted to harmless error.

Although a trial judge’s erroneous disqualification of a litigant’s counsel of choice would normally result in a remand for a new hearing, remand was not possible in the present case. A remand for a new hearing would have violated the legislative intention for this type of proceeding to progress through the judicial system without delay and within the time limits specified in section 390.01114. See In re Doe, 932 So.2d 278 (Fla. 2d DCA 2005); In re A.S., 909 So.2d 524 (Fla. 1st DCA 2005). Our reversal of the order under review was therefore accompanied by an instruction for the trial judge to grant the appellant’s petition.

BENTON, J., concurs with opinion; HAWKE S, J., dissents with opinion.

BENTON, J.,

concurring.

I join Judge Allen’s opinion for the court, but write separately to address another matter the appellant raises, in hopes of avoiding problems in the future. In the course of the hearing below, the trial judge placed telephone calls in an apparent effort to confirm or develop the factual circumstances in the case. After Jane Doe testified that she had discussed her plight with two persons not present at the hearing, the trial judge demanded multiple telephone numbers, which Jane Doe supplied over objection, numbers which the trial judge then called, again over objection, although without reaching either person at any number.

The Legislature intended that proceedings for judicial waiver under section 390.01114(4), Florida Statutes (2006), be confidential. See § 390.01114(4)(a), Fla. Stat. (2006) (allowing filing of petition under pseudonym or initials); § 390.01114(4)(e), Fla. Stat. (2006) (mandating that the record be confidential and that hearings be closed to the public); § 390.01114(5), Fla. Stat. (2006) (requesting that the Florida Supreme Court adopt rales to protect confidentiality of minor and proceedings); § 390.01116, Fla. Stat. (2006) (making “any information in a record held by the circuit court or an appellate court which could be used to identify the minor ... confidential and exempt from” Florida’s public record laws).

Pursuant to the Legislature’s request, the Florida Supreme Court adopted rules of procedure designed to protect the confidentiality of the proceedings. See In re Amendments to the Rules of Juvenile Procedure—Forms for Use with Rules of Juvenile Procedure, 934 So.2d 438, 441 (Fla.2006); Fla. R. Juv. P. 8.805(b) (2006) (allowing petitions to be filed under pseudonym or initials, and requiring that true identity be kept under seal); Fla. R. Juv. P. 8.805(d)(1) (2006) (requiring clerk to assign new case number when petition is filed, to prevent petition from being combined with any existing case in which petitioner may be a party); Fla. R. Juv. P. 8.820(e) (Supp.2006) (“Persons other than the petitioner may be permitted to attend the hearing at the request of the petitioner. The court shall advise all persons in attendance that the hearing is confidential.”) (emphasis added); Fla. R.App. P. 9.110(n) (2006) (“The appeal and all proceedings thereon shall be confidential so that the minor shall remain anonymous. The file shall remain sealed unless otherwise ordered by the court.”). See also Fla. R. Juv. P. Form 8.987 (2006) (allowing petitioner to sign petition under name other than her own); Fla. R. Juv. P. Form 8.991 (2006) (requiring judge to order clerk to keep record confidential and under seal when dismissing petition for judicial waiver).

Not surprisingly, no statute or rule authorizes the trial judge to place telephone calls as part of fact finding in proceedings for judicial waiver of notice under the Parental Notice of Abortion Act. Doing so jeopardizes the privacy and confidentiality the Act requires. Even where the intended recipient of the telephone call is somebody the petitioner has testified is aware of the situation, somebody else may answer the call, or overhear the conversation. Answering devices and other technology make it not unlikely that a call could be traced to the courthouse, even if the person called does not answer, which also potentially compromises confidentiality.

HAWKE S, J.,

dissenting.

I respectfully dissent. The majority concludes the trial court impermissibly dismissed Appellant’s attorney. However, my reading of the transcript leads me to conclude the trial court did not improperly dismiss the attorney, but that, upon inquiry, the attorney voluntarily withdrew.

At the beginning of the hearing, which is confidential by statute, two attorneys introduced themselves to the court as being “co-counsel” and “cooperating attorneys with the ACLU.” This is established by the following colloquy from the transcript:

The Court: If you would introduce yourselves.
Mr. Pfeiffer: Yes, Your Honor. My name is Hunter Pfeiffer, an attorney. This is Richard Benham, co-counsel.
Mr. Benham: Good morning, Your Hon- or. This is our petitioner.
Mr. Pfeiffer: Just for the record, this is a confidential proceeding. The petitioner remains anonymous, but she agreed, just for purposes of this conversation, it’s easier just to refer to her by her name, which is [Jane Doe], and the court reporter, if there’s a transcript or anything, is going to substitute Jane Doe anywhere as needed.
The Court: Okay. And you all are both with the ACLU?
Mr. Benham: Cooperating attorneys with the ACLU.

After the introductions, the Judge commented she thought one of the attorneys worked in the Public Defender’s office. One of the attorneys responded that, although he worked as an Assistant Public Defender, his appearance in the instant case was unrelated to his position as an Assistant Public Defender. The court asked whether it was permissible for an attorney from the Public Defender’s office to appear on the child’s behalf. The attorney stated he asked the Public Defender and was told he could perform this kind of work. He reiterated he was not acting in his capacity as an Assistant Public Defender, and could “get something next week” from the Public Defender showing his actions were permissible. The court accepted counsel’s proposed solution and replied “Okay.” This is established by following colloquy:

The Court: Okay. I thought someone had mentioned someone being with the public defender.
Mr. Pfeiffer: I am with the public defender’s office, but this is not related to that job. We’re just volunteering.
Mr. Benham: I’m sorry, Your Honor. We’re cooperating volunteer attorneys for the ACLU of Florida.
The Court: Okay. But you’re with the public defender’s office?
Mr. Pfeiffer: That’s my regular job, yes.
The Court: Okay. I don’t know if it’s appropriate for someone from the public defender’s office to be representing this child.
Mr. Pfeiffer: I asked my boss about it, and she said that’s fine, because it’s not related to the office at all, and I’m not doing it in my capacity as a public defender at all. It’s just a volunteer after work thing.
The Court: She’s obviously entitled to have a lawyer in this type of proceeding, but I don’t think this is the type of proceeding that it’s appropriate for someone from the public defender’s office to handle.
Mr. Pfeiffer: Your Honor, like I said, I’m not doing it as a member of the office. This is in no way related to the office. It’s essentially just a pro bono representation.
The Court: And under Florida law and ethical rules for allowing you to practice pro bono work?
Mr. Pfeiffer: I asked Ms. Daniels [the Public Defender] if I could do this and she said yes. I could get something from her next week, if you need it.
The Court: Okay. Because my understanding is that the law and ethical rules don’t allow you to do so.

The hearing would have proceeded at this point, with the Assistant Public Defender merely obligated to fulfill his promise to provide documentation to address the court’s concern “next week.” The court did not dismiss the Assistant Public Defender, and would have allowed him to proceed based on his assertion that he would obtain documentation that his representation was permissible.

We are not confronted with the question as to whether counsel should have been required to obtain “something next week,” or whether Assistant Public Defenders can appear in matters such as this. The Judge expressed a concern and counsel offered a proposed resolution. No other resolution was offered or proposed. Instead of proceeding, the Assistant Public Defender chose to voluntarily withdraw by stating co-counsel could proceed without him. All parties involved, the trial court, co-counsel, and as can be ascertained by the lack of any objection, the Appellant, accepted the voluntary withdrawal. This is established by the following colloquy:

Mr. Pfeiffer: Well, if necessary Mr. Benham could proceed.
Mr. Benham: Your Honor, I’m happy to serve in that capacity.
The Court: Okay.

Not only did the court accept the voluntary withdrawal, the other attorney informed the court he would be “happy to serve in that capacity.” Although “happy,” he did advise the Judge he thought the court would benefit from an attorney with trial experience, which the Assistant Public Defender evidently possessed. The court declined the offer, and asked the Assistant Public Defender to leave the courtroom. Co-counsel then informed the court that he would prefer to have the Assistant Public Defender available. The court stated the Assistant Public Defender would have to leave the courtroom because the proceeding was confidential.

No objection was made to the court clearing the courtroom or asking the Assistant Public defender to leave. That argument was not made until the briefs were filed in this appeal. The transcript reads:

Mr. Benham: Although my thinking is that it would be to the benefit of the Court to have someone with trial experience to represent the petitioner. I’m a transactional lawyer, but I will do my best—
The Court: Okay.
Mr. Benham: —if that’s more comfortable for the Court.
The Court: I just don’t think it’s appropriate for someone that’s with the public defender’s office to be representing someone in a case like this, so I am going to ask you to leave, Mr. Benham.
Mr. Pfeiffer: That’s fine. I’m Mr. Pfeif-fer. (Emphasis added).
The Court: I’m sorry, Mr. Pfeiffer.
Mr. Benham: I’m Benham. Let’s swap chairs — or are you going to ask him to clear the courtroom? I really prefer to have him available.
The Court: I am going to ask him to clear the courtroom. This is a confidential proceeding.
Mr. Benham: That’s fine. I will make do. (Emphasis added).
Mr. Pfeiffer: Thank you.

Proceedings for judicial waiver are required to be confidential, and are closed to the public. See § 390.01114(4)(a), Fla. Stat. (2006). Once the Assistant Public Defender withdrew, he was no longer counsel appearing in the case. Instead, he was “the public” and was properly required to leave the courtroom. Although there was a possibility that he could have been allowed to remain, that possibility existed only if the child, or someone on the child’s behalf, requested his presence. See Fla. R. Juv. P. 8.820(e) (Supp.2006) (“Persons other than the petitioner may be permitted to attend the hearing at the request of the petitioner.”).

Upon request, the decision to allow the Assistant Public Defender to remain and fulfill some role other than counsel, or to require him to leave the courtroom, would have been within the trial court’s discretion. That request was never made; thus, the issue is not involved here. Consequently, we are not asked to determine whether the trial court abused its discretion on a properly preserved allegation of error. Instead, the majority construes an attorney’s voluntary withdrawal as an unconstitutional “dismissal counsel,” an argument never made to the trial court.

Since the attorney voluntarily withdrew, he lost his status as co-counsel, and was properly asked to step out of a confidential hearing. The trial court did not err, and should be affirmed.

      . All quotes are from the transcript and are set out verbatim, beginning with line 14 on page 3, and continuing uninterrupted through line 14, page 6.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Carol FRASHER and Scott Frasher, Appellants, v. WHITEHURST FAMILY, INC., Appellee.
    No. 3D05-2041.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.

      Homerbonner and Douglas F. Eaton, Miami, for appellants.
    George, Hartz, Lundeen, Fulmer, Silsby & Galicia, and Esther E. Galicia, Fort Lauderdale, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   RAMIREZ, J.

Plaintiffs Carol and Scott Frasher appeal an adverse final judgment and defendant Whitehurst Family, Inc. cross-appeals the trial court’s jury instruction on a possessor of land’s liability. We reverse because we conclude that the damages awarded were inadequate as a matter of law.

The Frashers sued Whitehurst alleging that Whitehurst was negligent in failing properly to maintain its property that contained the algae covered boat ramp upon which Carol Frasher slipped, fell, and fractured her right knee cap. Carol Frasher’s husband, Scott Frasher, asserted a consortium claim. The undisputed evidence was that Carol Frasher’s injury required two surgeries and subsequent physical therapy. Dr. Ismael Montane testified that the injury was painful, the knee cap was never going to be the same, and that it was more likely than not that Carol Frasher would suffer arthritis in the future. Scott Frasher testified that, in the months immediately following the accident, he spent most of his time at home caring for his wife. He also acknowledged that his wife’s injury had an effect on their intimate life.

The jury returned a verdict finding Whi-tehurst twenty-five percent (25%) negligent and Carol Frasher seventy-five percent (75%) comparatively negligent. The jury awarded economic damages, including $5,500.00 for lost wages and $17,500.00 for medical bills. The jury did not award any future economic damages or non-economic damages. The Frashers filed a motion for new trial on damages only and/or additur arguing that the jury’s zero award of non-economic damages was inadequate as a matter of law. The court denied the motion without a hearing.

In Deklyen v. Trackers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004), the jury found the defendant seventy percent (70%) comparatively negligent and Dek-lyen thirty percent (30%) at fault, awarding monies for past medical expenses and lost income, as well as for future medical expenses and loss of income, but no non-economic damages. As in our case, no objection was made to the verdict at trial. Id. The issue was not raised until plaintiff filed her timely motion for a new trial, contending that the damage award was inadequate or against the manifest weight of the evidence. Id. The court rejected Truckers World’s argument that the verdict, if flawed, was inconsistent, not inadequate. Id. If such an argument had prevailed, Deklyen’s attack on the verdict would not have been preserved for appeal. Id. The case law requires that the issue of an inconsistent verdict be raised before the jury is discharged, or it is waived. Id. At that point, the trial court can still rein-struct the jury and send it back for further deliberations. Id. See also Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d DCA 2002).

We agree with the analysis in Dek-lyen and conclude that the verdict here was not inconsistent and that the judge should have granted the motion for a new trial because the verdict failed to comport with the manifest weight of the evidence. Deklyen, 867 So.2d at 1267 (“When a damage award is clearly inadequate and the issue of liability was contested, it gives rise to a suspicion that the jury may have compromised its verdict.”). Obviously, Whitehurst did not and could not argue that Carol Frasher’s fracture produced no pain and suffering to her.

We reject Carol Frasher’s position that the new trial be on noneconomic damages only. Because we are ordering a new trial based on the jury’s evident mingling of the issues of liability and damages on the verdict form suggestive of compromise, it would be illogical not to try both issues upon remand. See Newalk v. Florida Supermarkets, Inc., 610 So.2d 528, 529-30 (Fla. 3d DCA 1992) (new trial on all issues required where damages award was inadequate and liability was hotly contested resulting in 50/50 liability split between plaintiff and defendant); Rivera v. Aldrich, 538 So.2d 1390, 1391-92 (Fla. 3d DCA 1989) (new trial on liability and damages required where liability not unequivocally established and jury interwove issues of liability and damages); Borges v. Jacobs, 483 So.2d 773, 775 (Fla. 3d DCA 1986) (new trial on all issues required where liability not unequivocally established and damage award was inadequate, thereby representing possible compromise verdict). We also reject Frasher’s argument that her husband’s loss of consortium claim was also inadequate as a matter of law.

Because we are reversing for a new trial on Carol Frasher’s claims, we must address the cross-appeal. The jury was appropriately instructed pursuant to the Standard Jury Instructions as follows:

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

The court, however, over defense objection, gave the following special instruction.

Where a possessor of land should anticipate the harm which may be caused by a condition on the land, he may be liable despite the obviousness of the hazard.

We find the instruction confusing. See Marks v. Mandel, 477 So.2d 1036 (Fla. 3d DCA 1985); Veliz v. American Hosp., Inc., 414 So.2d 226 (Fla. 3d DCA 1982); Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982). Additionally, it conflicts with the standard instruction. What the possessor of land should do with regard to an obvious hazard is covered in the reasonable care instruction. Carol Frasher urges that such an instruction was necessary to prevent the defense from arguing that the condition was so open and obvious as to completely relieve Whitehurst of liability. See Metropolitan Dade County v. Yelvington, 392 So.2d 911, 912 (Fla. 3d DCA 1980). We do not believe our courts should be giving preemptive instructions to the jury in anticipation of improper arguments that have not yet been made.

In conclusion, we reverse and remand for a new trial on both liability .and noneco-nomic damages as to Carol Frasher only.

      . We reject the suggestion that Deklyen is distinguishable because Frasher suffered a subsequent fall approximately six weeks after the boat ramp fall. While this fact could have justified a reduction in the award for pain and suffering, it could not form the basis for a zero award.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Wissell IRIZARRY, Appellee.
    No. 5D06-545.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 2006.
    Rehearing Denied Feb. 2, 2007.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellant.
    Marc L. Lubet, of Marc L. Lubet, P.A., Orlando, for Appellee.
   MONACO, J.

The sole issue presented by this appeal is whether the trial court erred in granting the motion of the appellee, Wissell Irizar-ry, to suppress the evidence resulting from a search of his residence pursuant to a search warrant. Because we conclude that the warrant was properly issued, we reverse.

The facts are essentially undisputed. A detective from the Altamonte Police Department filed an affidavit for search warrant before a circuit judge seeking authorization to search a residence in Altamonte Springs. The detective suspected that cocaine was located on the premises, and that cocaine was being sold from that location in violation of law. More specifically, the detective indicated in his affidavit that the police department received an “anonymous complaint” asserting that drug activity was occurring at the suspect residence. The detective set up a surveillance and observed numerous people arriving at the residence, but staying for only a short time, generally less than five minutes. During one of these surveillances, a male, later identified as Billy Wolfe, arrived at 7:00 p.m. and entered the residence. Two minutes later, Mr. Wolfe left but was quickly pulled over by a police officer for speeding. The detective joined the police officer and a traffic citation was issued. Mr. Wolfe at that point gave his written consent to a search of his car. As the detective searched Mr. Wolfe’s vehicle, he saw Mr. Wolfe occasionally squeeze his left front pants pocket. The detective said, “it’s in your pocket.” Mr. Wolfe then pulled out a plastic bag containing an ounce of cocaine. Mr. Wolfe said that he bought the cocaine at the residence that had been under surveillance for $800. The affidavit continued:

Your affiant asked Wolfe if there were additional narcotics inside the residence. Wolfe advised that there were several ounces of cocaine and that the subject routinely keeps it in the bedroom closet. Wolfe advised that the subject had also offered to sell him cannabis on this date. Wolfe advised that he had been purchasing cocaine from this subject for approximately five months. Wolfe was shown a photograph of the resident Wissell Iri-zarry. Wolfe advised that this was the subject that he had purchased the cocaine from. Wolfe provided a sworn statement to his involvement and the additional narcotics inside the residence.

Mr. Wolfe’s sworn statement was attached to the detective’s affidavit.

On the same day that Mr. Wolfe gave his sworn statement the affidavit was presented to a circuit judge for consideration. The circuit judge concluded that there was probable cause to believe that cocaine was being kept in and sold at the subject residence, and signed a search warrant authorizing a search of the residence. A few hours later law enforcement officers executed the search warrant and searched the residence of Mr. Irizarry.

Officers made contact with Mr. Irizarry and his two daughters, plus eight other people who did not reside at the residence. Mr. Irizarry chose not to speak with an attorney. During a search of the premises, 30 grams of cocaine and approximately 333 grams of marijuana were found, along with 51 MDMA pills and assorted drug paraphernalia. In addition, $2,796 was recovered. Most of the items were found in Mr. Irizarry’s bedroom. Mr. Irizarry was then placed under arrest.

The State charged Mr. Irizarry with trafficking in cocaine, trafficking in meth-amphetamines, possession of more than 20 grams of cannabis, and possession of drug paraphernalia. Mr. Irizarry filed a motion to suppress the evidence obtained during the search, noting that Mr. Wolfe had never previously been used as a confidential informant by law enforcement and was not previously known by them to be a truthful or reliable person. In addition, Mr. Irizar-ry alleged that Mr. Wolfe had an interest in the matter and was not an “ordinary, unquestionably honest, citizen reporting a crime.” Mr. Irizarry also suggested that there were no facts in the affidavit to establish Mr. Wolfe’s veracity or reliability. He argued that since Mr. Wolfe was never searched prior to entering the residence, as might be the case in a “controlled buy,” the cocaine could have been inside Mr. Wolfe’s pocket prior to entering the residence. Finally, Mr. Irizarry took the position that the search warrant should not be accepted under a good faith exception because the police department took no action to establish the veracity or reliability of Mr. Wolfe, and did not try to corroborate the information he was providing.

At the suppression hearing the State argued that there were several things that corroborated the informant’s statement. First, law enforcement had received an earlier anonymous complaint of possible drug activity. Second, as a result of their surveillance they discovered that numerous persons would arrive and depart from the residence after staying only a short time, activity that was consistent with drug sales. Third, police saw Mr. Wolfe enter the residence and leave two minutes later. When stopped, Mr. Wolfe was found to be in possession of cocaine, and was able to give details about the transaction by which he obtained the proscribed substance, as well as details of previous purchases and additional drugs that could be found in the residence. Finally, Mr. Wolfe identified Mr. Irizarry as the seller and the occupant of the residence.

The trial court, however, found that the search warrant was deficient and entered an order suppressing the evidence. The court, citing to State v. Novak, 502 So.2d 990 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987), indicated that Mr. Wolfe, who was being arrested for possessing drugs allegedly sold by Mr. Irizarry, was not a citizen-informant and, therefore, was not entitled to a presumption of reliability. The trial court asserted that there was no indication in the warrant that Mr. Wolfe had ever previously been used as an informant, and thus there were no past dealings that could establish his veracity. There was also, according to the trial court, no independent corroboration of the information given by Wolfe. The State appeals the suppression order.

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and a reviewing court must interpret the evidence and reasonable inferences and deductions derived from the evidence in a manner most favorable to sustaining a trial court’s ruling. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Pagan v. State, 830 So.2d 792 (Fla. 2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999). Accordingly, while the standard of review to be applied to factual findings of the trial court is whether competent, substantial evidence supports the findings, the trial court’s application of the law to the facts is reviewed de novo. See Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA), review denied, 935 So.2d 1220 (Fla.2006); Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); McMaster v. State, 780 So.2d 1026, 1027 (Fla. 5th DCA 2001); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). Here, the facts concerning the search are not in dispute.

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), teaches that in determining whether or not to issue a search warrant an issuing magistrate must make a “practical common sense decision” concerning whether there is a “fair probability” that evidence of a crime will be found in the place to be searched. See also State v. Felix, 942 So.2d 5 (Fla. 5th DCA 2006). Absolute certainty is not the requirement. It is the probability of criminal activity, not a prima facie showing of such activity, that is the standard for probable cause. See Illinois, 462 U.S. at 237, 103 S.Ct. 2317. Thus, a determination of probable cause involves those factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see also Polk v. Williams, 565 So.2d 1387, 1390 (Fla. 5th DCA 1990). The trial court in determining probable cause must examine the four corners of the affidavit. Our duty in reviewing an order of the trial court suppressing evidence is to ensure that the trial court had a substantial basis for finding that probable cause was lacking. See Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004). We conclude in the present case that probable cause did exist to issue the warrant and that a substantial basis for suppressing it was lacking.

If hearsay information forms some of the foundation for a determination of probable cause, the veracity and basis of knowledge of those supplying the hearsay information must be supplied. Gates; Smith v. State, 637 So.2d 351, 352 (Fla. 1st DCA 1994). If the informant is a disinterested citizen reporting a crime and lacking a motive to make false accusations against the suspect — the so-called “citizen-informant” — rigorous scrutiny is not necessary. See Novak, 502 So.2d at 992. As the anonymous person who informed law enforcement about the activities in Mr. Iri-zarry’s house cannot be characterized as a citizen-informant, there had to be other information contained in the affidavit that would corroborate his veracity in order for his information to be incorporated into the totality of circumstances to be considered in making a probable cause determination, See McNeely v. State, 690 So.2d 1337, 1338 (Fla. 1st DCA 1997); Smith. Here, we conclude that Mr. Wolfe’s sworn declaration against penal interest which was before the issuing magistrate when the warrant was issued, -as well as the other facts and factors recited in the affidavit of the law enforcement officer, provided more than sufficient corroboration to permit a finding of probable cause.

In particular, the affidavit first recited that the police received an anonymous tip advising that drug activity was occurring at Mr. Irizarry’s residence. Next, it notes that during a surveillance of the residence the affiant observed “numerous subjects arriving at this location and staying for a very brief time (less than five minutes).” That activity was at least consistent with drug sales being consummated at the residence. The affidavit also indicates that Mr. Wolfe went into the residence and exited a short time later, demonstrating some knowledge on his part regarding the activities occurring in Mr. Irizarry’s home. We know, as well, that Mr. Wolfe was arrested for speeding a few minutes later, after being paced by one of the officers, and that a subsequent consensual search actually turned up about an ounce of cocaine on his person. Finally, the police had a sworn statement from Mr. Wolfe that was presented to the issuing magistrate in which Mr. Wolfe admitted his own complicity. In his statement Mr. Wolfe detailed the drug sale activities that had been occurring in the residence for about five months and indicated that he had personally seen proscribed drugs in the residence within a few minutes of his arrest. In addition, he identified a picture of Mr. Irizarry as the person who sold him the drugs. It seems to us that viewed in its totality this information was sufficient to establish the reliability of the information received from the informant, and the fair probability that evidence of a crime would be found in Mr. Irizarry’s residence. The issuance of the warrant was, therefore, justified.

The trial court relied on Novak in issuing its suppression order. While that case does bear some similarity to the facts of the present case, we conclude that Novak is distinguishable. In Novak a sixteen-year-old first-time informant, who claimed to have received drugs from the defendant on a large number of occasions, indicated to the police that drugs could be found in the subject premises. The informant’s information found its way into the affidavit solely by way of the police officer’s recitation of it; that is, there was no sworn statement of the informant attached to the officer’s affidavit. The opinion of the No-vak court indicates that the affidavit of the police officer used to support issuance of the warrant “contained no allegation whatsoever respecting the informant’s veracity or that the information supplied had been corroborated in any way.” See Novak, 502 So.2d at 991. In the case before us, however, there was significant corroborative information contained in the affidavit to underpin the issuance of the warrant, including: the surveillance of the residence, and the observation by law enforcement of the suspicious activity occurring there; the observation of the informant going to the residence, and his detention by law enforcement within two minutes of his departure; the discovery that the named informant had drugs on his person at the time of his detention; the fact that the informant was willing to give a detailed sworn statement concerning the drug activity in the residence; and the ability of the informant to identify a picture of Mr. Irizarry as the person who sold the drugs found on the informant, and the person who likewise sold him drugs on many occasions in the past.

We conclude, therefore, that the warrant was properly issued and based on a sufficient affidavit. We note, as well, that even if the warrant had been insufficient, the search would have fallen within the “good faith” exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we conclude that the trial court erred in issuing the suppression order.

REVERSED and REMANDED.

GRIFFIN and TORPY, JJ., concur.


author: PER CURIAM.

text:
    Pedro Javier LOPEZ-QUINONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1053.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2006.
    Rehearing Denied Jan. 24, 2007.

      Pedro J. Lopez-Quinones, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Richardson v. State, 918 S.2d 999 (Fla. 5th DCA 2006).

THOMPSON, PALMER, and MONACO, JJ., concur.


text:
    Paul PHILOGENE and Nicole Philogene, Appellants, v. ABN AMRO MORTGAGE GROUP INC., Appellee.
    No. 4D05-3440.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    James Jean-Francois of James Jean-Francois, P.A., Hollywood, for appellants.
    Roger D. Bear of Echevarria, Codilis & Stawiarski, Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s entry of final summary judgment of mortgage foreclosure in favor of appellee, ABN Amro Mortgage Group, Inc. Appellants Paul and Nicole Philogene presented three arguments on appeal: (1) the trial court abused its discretion in failing to grant their motion to consolidate; (2) the trial court committed reversible error in entering final summary judgment of mortgage foreclosure in favor of ABN, where ABN did not comply with statutory notice requirements; and (3)ABN did not have standing to bring and maintain a mortgage foreclosure action in this case.

First, we find that the trial court did not abuse its discretion in denying the Philogenes’ motion to consolidate, as there was no danger of inconsistent verdicts and the existence of common questions of law or fact did not mandate consolidation. See Fla. R. Civ. P. 1.270(a); see also Pages v. Dominguez, 652 So.2d 864, 866 (Fla. 4th DCA 1995) (stating that a trial court’s refusal to consolidate separate actions involving common questions of law or fact is reviewed for abuse of discretion); Barnes v. Meece, 530 So.2d 958, 958 (Fla. 4th DCA 1988) (finding that prospect of inconsistent verdicts requires consolidation). Second, we determine that the trial court did not err in entering final judgment in favor of ABN, as ABN complied with the notice requirements of the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692(g) (2006). Third, we conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question. See Chem. Residential Mortgage v. Rector, 742 So.2d 300, 300 (Fla. 1st DCA 1998) (finding that complaint properly stated cause of action for foreclosure by the holder of the note and mortgage).

POLEN, KLEIN and MAY, JJ., concur.

      . Florida Rule of Civil Procedure 1.270 states in pertinent part:

        (a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

      . 15 U.S.C.S. § 1692(g) ("Validation of debts”) states in pertinent part:
      (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
      (1) the amount of the debt;
      (2) the name of the creditor to whom the debt is owed;
      (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
      (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
      (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.


text:
    Robert ANDERSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-2486.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2006.
    Rehearing Denied Feb. 2, 2007.
    Robert Anderson, pro se, Petitioner.
    Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

This is a petition for certiorari challenging the trial court’s denial of a petition for writ of mandamus in which petitioner challenged the presumptive parole release date set by the Parole Commission. On June 19, 2006, this court determined that petitioner’s appeal from the circuit court order is renewable by petition for writ of certio-rari pursuant to Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). We deny the petition as to review of the decision regarding the presumptive release date, but we must reverse the circuit court’s order imposing a lien on appellant’s prison account based on the holding in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Under Schmidt, the circuit court erred when it ordered appellant to pay filing fees and imposed a lien on his prison account. See Cason v. Crosby, 892 So.2d 536, 537-38 (Fla. 1st DCA 2005).

Accordingly, the petition is DENIED as to the challenge to the order by which the circuit court denied mandamus, but is GRANTED as to the challenge to the lien order, and that order is hereby QUASHED.

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


text:
    Clark LEICHTY, Petitioner, v. CLERK OF CIRCUIT COURT, LAKE COUNTY, Florida, Respondent.
    No. 5D06-3811.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.
    Clark Leichty, Lowell, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

Clark Leichty petitions this Court for a writ of mandamus “compelling a circuit clerk of the court to file a motion or petition rendered for filing.” He gives no indication that he has sought relief in the trial court. We deny the petition.

Mandamus will lie to compel the performance of a clear legal duty. Huffman v. State, 813 So.2d 10, 11 (Fla.2000). Hence, it is only appropriate to compel a purely ministerial act. Austin v. Crosby, 866 So.2d 742, 744 (Fla. 5th DCA 2004). Mandamus is not appropriate where another legal remedy is available. Huffman, 813 So.2d at 11.

Here, Mr. Leichty does not allege that he requested (and does not appear to have sought) a ruling from the trial court. Consequently, it appears that he never made a distinct, express demand for performance from the circuit court, which is a condition precedent to the issuance of a writ of mandamus. See Gentile v. Office of Public Defender, 833 So.2d 229, 230 (Fla. 5th DCA 2002); Al-Hakim v. State, 783 So.2d 293, 294 (Fla. 5th DCA 2001); Fla. Pharmacy Ass’n, Inc. v. Strong, 604 So.2d 529, 530 (Fla. 1st DCA 1992). A litigant who seeks action from the trial court clerk to provide documents or accept filings cannot start with mandamus at the appellate court. He must seek relief in the trial court first. It is the trial court that has jurisdiction over such matters. See Tucker v. Ruvin, 748 So.2d 376 (Fla. 3d DCA 2000) (holding that where clerk refused to file legal document, circuit court should have granted mandamus); see also Martin v. Krischer, 783 So.2d 1170, 1170 (Fla. 4th DCA 2001); Green v. State, 698 So.2d 575, 576 (Fla. 5th DCA 1997); Taylor v. State, 677 So.2d 75, 76 (Fla. 4th DCA 1996).

PETITION FOR MANDAMUS DENIED.

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    R.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2811.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Judy Bone, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals from the trial court’s disposition order, adjudicating appellant delinquent and deviating from the placement recommended by the Department of Juvenile Justice. In deviating from the recommendation of probation and imposing moderate-risk residential placement with the Department, the trial court found that appellant was a member of a criminal street gang pursuant to chapter 874, Florida Statutes. In his appeal, appellant argues that chapter 874 was unconstitutionally applied to him, and in the alternative, that there was insufficient evidence that appellant is a criminal street gang member. Without reaching appellant’s constitutional argument, we agree that there was no competent substantial evidence that appellant was a criminal street gang member pursuant to chapter 874, and that the trial court’s disposition order must be reversed.

BACKGROUND

Appellant was found guilty by the trial court after a hearing for aggravated assault on a law enforcement officer, resisting an officer with violence, and disruption of a school function. Before a disposition was entered by the trial court, a predisposition report was filed by the Department, recommending probation. A disposition hearing was held on May 18, 2006. Although not considered in the predisposition report, the State presented testimony that appellant was a member of a gang named the ‘Weedside Boys.” Deputy Ricky Ganious, the resource officer at appellant’s high school, testified that he had previously seen appellant wearing homemade sweatshirts, shirts, and carrying book bags on the high school campus identifying him as part of the Weedside Boys gang. The officer also testified that he had spoken with several people who identified appellant as a member of the gang, but who wished to remain anonymous.

The testimony of Deputy Janice McPhaul was also admitted at the hearing. McPhaul testified that she worked for the Gadsden County Sheriffs Department as a certified gang investigator, and that several informants had identified appellant as a member of the Weedside Boys “as Deputy Ganious has stated.” She also provided testimony that she believed appellant’s grandmother identified appellant as a member of the Weedside Boys to Deputy Ganious. Appellant did not object to this testimony.

On May 18, 2006, the same date of the hearing, the trial court entered its order of juvenile disposition, adjudicating appellant delinquent and placing him in moderate-risk residential commitment with the Department. The trial court made the following written findings in its order:

Based on PDR and the testimony at the disposition, the court finds the moderate risk placement is necessary to address the needs of the child. The child is a confirmed gang member, drug user and likely dealer, with an anger management problem who fails to abide by a curfew and according to the PDR “doesn’t take anything seriously.” Two deputies testified to his gang involvement, that the PDR apparently did not consider as required pursuant to 985.215(3)(b), F.S. Additionally, his mother has serious doubts about his ability to complete probation. The additional structure of a moderate risk program is necessary to meet the needs of this child detailed above. Additionally, the added security of a mod[erate] risk program is necessary to protect the public from this child who told the victim in this case “things are different on the streets.” Needs of child will also be met by removing the child from his gang the “Weedside boys.”

Appellant filed a Florida Rule of Juvenile Procedure 8.135(b)(2) motion to correct disposition error in the trial court, arguing that the statute that allows the court to consider whether appellant is a gang member is unconstitutional as applied to appellant, and in the alternative, there is no proof that appellant was a gang member. The trial court denied this motion.

ANALYSIS

Section 985.23(2)(a), Florida Statutes (2005), provides that “[i]f the court determines that the child was a member of a criminal street gang at the time of the commission of the offense, which, determination shall be made pursuant to chapter 87k, the seriousness of the offense to the community shall be given great weight.” (Emphasis added). Pursuant to section 874.03(2), Florida Statutes (2005), a “criminal street gang member” is defined as:

[A] person who is a member of a criminal street gang as defined in subsection
(1) and who meets two or more of the following criteria:
(a) Admits to criminal street gang membership.
(b) Is identified as a criminal street gang member by a parent or guardian.
(c) Is identified as a criminal street gang member by a documented reliable informant.
(d) Resides in or frequents a particular criminal street gang’s area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known criminal street gang members.
(e) Is identified as a criminal street gang member by an informant of previously untested reliability and such identification is corroborated by independent information.
(f) Has been arrested more than once in the company of identified criminal street gang members for offenses which are consistent with usual criminal street gang activity.
(g) Is identified as a criminal street gang member by physical evidence such as photographs or other documentation.
(h) Has been stopped in the company of known criminal street gang members four or more times.

As provided by the statute, at least two of the eight statutory criteria must be established to find appellant a criminal street gang member. Appellant argues that there was insufficient evidence to establish at least two of these eight criteria. We agree. Although there was testimony to establish criterion (b), identification of appellant as a gang member by a parent or guardian, there was insufficient evidence to establish any of the other statutory criteria. Deputy Ganious testified that appellant wore shirts and book bags with gang symbols. However, there was no testimony that appellant resides in or frequents a particular criminal street gang’s area and associates with known criminal street gang members, which is necessary to establish criterion (d). Additionally, Deputy Ganious testified that anonymous informants identified appellant as a gang member. However, no testimony was admitted that these informants were documented and reliable pursuant to criterion (c), and there is insufficient independent information to corroborate the identification of appellant as a criminal street gang member pursuant to criterion (e). Accordingly, there is no competent substantial evidence below which establishes that appellant meets the statutory definition of “criminal street gang member.” As such, the trial court erred in relying on appellant’s alleged gang membership to support its deviation from the Department’s recommendation.

In its written findings, the trial court also listed several other reasons for departing from the Department’s recommendation of probation, including appellant’s drug use and his failure to comply with curfew. However, section 985.23(3)(b) provides that “[i]f the court has determined that the child was a member of a criminal street gang, that determination shall be given great weight in identifying the most appropriate restrictiveness level for the child.” As such, “we are unable to determine whether the trial judge would have reached the same conclusion regarding the restrictiveness level in the absence of a finding that appellant was a gang member.” A.H. v. State, 724 So.2d 1268, 1269 (Fla. 1st DCA 1999). Therefore, we reverse the disposition order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WEBSTER, POLSTON, and HAWKES, JJ., concur.

      . ''[C]ourts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.” Singletary v. State, 322 So.2d 551, 552 (Fla.1975).

      . The trial court states within its order denying the motion to correct disposition that appellant meets criterion (g), identification by physical evidence. The trial court made this finding based on evidence that appellant wore shirts and book bags with gang logos. However, a more specific statutory provision governs over a more general provision. T.S. v. Clemons, 770 So.2d 197, 200 (Fla. 2d DCA 2000). Therefore, criterion (d) is applicable, and not criterion (g).

      . We also note that the State failed to introduce any evidence that the "Weedside Boys” is a “criminal street gang” pursuant to the definition provided by section 874.03(1), Florida Statutes (2005). See A.H. v. State, 724 So.2d 1268 (Fla. 1st DCA 1999). However, because appellant never made this argument below or on appeal, the issue does not control the outcome in this case.


text:
    Keith TRIBBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3687.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Keith Tribble, San Diego, California, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s postconviction motions. Appellant filed a series of letters in the trial court, which were treated as Florida Rule of Criminal Procedure 3.800(a) motions to correct sentencing errors or rule 3.850 motions to vacate or withdraw appellant’s plea. The trial court ordered State responses to the letters and, after the first response, denied appellant’s motions without prejudice to file legally sufficient motions within forty-five days. Appellant filed additional letters, which were beyond the time limit set by the court and which were again facially and legally insufficient. The State was again ordered to respond and noted the insufficiency of the motions and again attached a complete copy of the plea conference in appellant’s case. The trial court then entered an order, denying appellant’s motions.

Appellant sent the trial court a letter explaining that he wanted to appeal, but did not know how and asking for an extension of time. The court denied the request. We granted appellant a belated appeal in Tribble v. State, 936 So.2d 788 (Fla. 4th DCA 2006), because the letter expressed a clear desire to appeal within the jurisdictional time limit, and the court should have treated it as a notice of appeal.

We affirm the court’s denial of appellant’s motions with prejudice. Appellant has exhausted his right to seek postconviction relief under rule 3.850, and the time limit for filing such motions has expired. Additional 3.850 motions will be subject to summary dismissal unless appellant establishes an exception to the time limitation and the bar against successive motions. See Fla. R. Crim. P. 3.850(b) & (f).

We have examined the record attached by the trial court and have determined that, even if appellant’s motions had not been time-barred and insufficient as not under oath, the claims are conclusively refuted by the record and without merit.

The court held a competency hearing and ruled that defendant was competent based on the agreement of the parties that the court could rule after reviewing the reports filed by psychiatrists who found defendant competent to proceed. See Love v. State, 877 So.2d 921 (Fla. 5th DCA 2004). Further, appellant acknowledged on the record that he had psychiatric problems, but was taking medication and was clear-headed at the time he entered his plea. The court held a detailed colloquy with appellant, and he had no difficulty understanding the proceedings. Appellant addressed the court at length in a coherent and logical manner further demonstrating that he had no difficulty understanding the proceedings.

Appellant’s claim that he did not know his plea agreement called for a ten-year mandatory minimum sentence under the 10-20-Life statute is conclusively refuted by the record. Defense counsel, the State, and the court all repeatedly advised defendant that the agreement called for ten-year mandatory minimum sentences on the two convictions for robbery with a firearm. The record is abundantly clear that appellant understood the agreement. Appellant’s unsworn allegations to the contrary are belied by the record, and these claims are without merit.

Likewise, appellant’s claim that counsel misled him about the ten-year mandatory minimum penalty is directly contradicted by the record, which shows that counsel explained in open court that the agreement called for a ten-year mandatory minimum under the 10-20-Life statute. The agreement also provided that the concurrent ten-year sentences in the cases to which appellant pled guilty would run concurrent with a forty-three-year sentence appellant was serving in California. Appellant’s claims that his plea was involuntary because he did not understand the terms of the agreement are conclusively refuted by the record.

Finally, appellant’s claim that he was not given proper credit for time served in California jail was insufficient to establish a basis for relief. Appellant would be entitled to credit for jail time served in another jurisdiction in this case only from the date that this state formally executed an arrest warrant for this case. See Gethers v. State, 838 So.2d 504 (Fla.2003).

Further, the transcript of the plea hearing shows that appellant stipulated to the amount of jail credit he would receive as part of his plea. Affirmance of this claim is without prejudice to appellant filing a legally sufficient rule 3.800(a) motion in the trial court establishing through specifically identified record evidence that he is entitled to more credit than he agreed to at the hearing. See Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995) (waiver of credit for time served in jail must be clearly shown on the record); see also Reed v. State, 810 So.2d 1025, 1027 (Fla. 2d DCA 2002) (noting that “court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served”).

We note that the California report previously filed by appellant with his letters does not establish any basis for relief. To state a sufficient claim, appellant must identify records showing the date the Florida warrant on this case was formally served. If appellant does establish an entitlement to additional jail time, we would agree that the record does not clearly show that appellant waived this additional time, and he should be granted the credit. From the records before this court at this time, however, appellant appears to have been properly credited with all jail time.

Affirmed.

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


author: SHEPHERD, J.

text:
    E.K., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-599.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.

      Kevin Coyle Colbert, Miami, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal from a trial court order finding a minor child, E.K., dependent as to the father, E.J.K. We have jurisdiction, section 39.815, Florida Statutes (2004); Florida Rules of Appellate Procedure 9.146(b); KS. v. Dep’t of Children & Families, 760 So.2d 1068 (Fla. 5th DCA 2000), and reverse.

FACTUAL BACKGROUND

The record reflects E.K. was taken into the custody of the Department of Children and Families (DCF) from a local hospital two days after she was born. Three weeks later, DCF petitioned the circuit court to have the child adjudicated dependent as to both the father and mother. The sole charge against the father was that he had “neglected, abandoned, and faded to protect the child by leaving the child with an inadequate -and impaired caretaker, the mother, who the father knew or should have known, had a history of substance abuse, thereby placing the child at significant risk of harm.” The mother, who has a serious substance abuse problem, consented to the adjudication. The father chose to contest the petition.

The father is not a drug user. However, he suffers from a moderate case of combat-related, post-traumatic stress syndrome and intermittent depression. He periodically sees a Veterans Administration supplied psychiatrist for the former condition and faithfully attends group therapy for support. The only medication he has needed for either condition during the last four years is the commonly prescribed anti-depressant Zoloft “on and off’ for occasional sleeplessness resulting from the depression. At trial, his psychiatrist and group therapy leader, an advanced nurse practitioner with a specialization in psychiatry and mental health, both testified the father was capable of parenting E.K.

There is no evidence the child was left with any effects from the mother’s abuse. Since the time of DCF intervention, the child at all times has been housed either in a DCF shelter or with the maternal aunt pursuant to a court-approved placement.

DISCUSSION

Although it is quite apparent DCF believes the father is no more capable of parenting E.K. than the mother, the record of this case reflects continual change by DCF in its legal and factual theories to achieve that result. Apparently concerned about the viability of its petition as filed, see section 39.01(12), Florida Statutes (2004) (“ ‘[c]hild’ or ‘youth’ means any unmarried person under the age of 18 years who has not been emancipated by order of the court”), DCF amended it on the day of trial to add a charge that the father was possessed of a mental illness that rendered him incapable of caring for the child. After trial, the trial judge rejected the amended charge on the ground DCF failed to prove any nexus between the father’s mental health condition and ability to parent, see D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000) (“where adjudications are based upon prospective abuse, ‘there must be a showing in the record that the behavior of the parent was beyond the parent’s control, likely to continue, and placed the child at risk’ ”) (internal quotations omitted); see also C.M. v. Dep’t of Children & Family, 844 So.2d 765, 766 (Fla. 2d DCA 2003) (“[generally, this' nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness ... ”), but approved the original charge, holding that the father knowingly failed to prevent the mother’s drug use during pregnancy, constituting actual abuse of E.K. by him within the meaning of section 39.01(2), Florida Statutes (2004). The trial court also found E.K. dependent as to the father based upon an unalleged, eleventh-hour DCF argument in its post-trial written submission, that the father abandoned the child within the meaning of section 30.01(1), Florida Statutes (2004), by failing to provide necessities for the child unless asked.

By the time the case arrived here, DCF abandoned the actual harm theory it had promoted from the outset, and sought to convert that charge into an affirmance based upon an alternate theory of “prospective neglect and abandonment” under section 39.01(14)(f), Florida ■ Statutes (2004). DCF continued to urge affirmance based upon its separate, eleventh-hour abandonment assertion. A few weeks later, at oral argument, DCF changed its position yet again, urging as its primary ground for affirmance disputed evidence of physical altercations between the father and the mother in the child’s presence during DCF-arranged joint visits at the maternal aunt’s residence. Of necessity, DCF invoked a frequently used doctrine of last resort, the “right for the wrong reason” or Tipsy Coachman doctrine, in an effort to excuse its legal meanderings. Main v. Sec. Nat’l Ins. Co., 898 So.2d 69, 73 (Fla.2005) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999)).

We reject DCF’s most recent entreaty for affirmance — the physical altercation argument — for two reasons. First, there being no finding of domestic violence, we are unable to affirm on the ground that such domestic violence as may have occurred had an adverse effect on the child. See M.B. v. Dep’t of Children & Family Servs., 937 So.2d 709, 710 (Fla. 2d DCA 2006) (citing 39.01(2), Fla. Stat.) (“for ‘harm’ resulting from witnessing domestic violence witnessed by the child to constitute ‘abuse,’ the domestic violence witnessed by the child must result in some physical, mental, or sexual injury to the child”); D.R. v. Dep’t of Children & Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005) (affirming trial court finding of dependency where child’s knowledge of domestic disputes “had an adverse [ejffect on the child”); B.C. v. Dep’t of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003) (adopting elements of W.T. v. Dep’t of Children & Families, 787 So.2d 184 (Fla. 5th DCA 2001) to conclude instances of domestic violence that took place between father and father’s former wife in front of child did not provide sufficient grounds to adjudicate child dependent); W.T. v. Dep’t of Children & Families, 787 So.2d at 184-85 (reversing finding of dependency where there was no finding that any domestic violence between parents had any effect on the child).

Second, the “Tipsy Coachman” doctrine does not rescue parties from their own inattention to important legal detail. Rather, it is a doctrine that allows an appellee arguing for the affirmance of a judgment to “present any argument supported by the record even if not expressly asserted in the lower court,” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d at 645, and appellate courts latitude to uphold a judgment on the argument thus made. The doctrine is grounded on the view that it is “the decision of the trial court that primarily matters, not the reasoning used.” Id. Here, however, DCF’s primary ground for affirmance was not known either to us or opposing counsel until articulated during oral argument. We are unwilling to allow DCF to invoke the doctrine under these circumstances. Cf. Adams v. Shiver, 890 So.2d 1199, 1202 (Fla. 1st DCA 2005) (Browning, J., dissenting) (Tipsy Coachman doctrine not applicable where “the parties will, for the first time, become acquainted with the argument which forms the basis and rationale of the[e] court’s decision upon receipt of the majority’s opinion.”).

As to the only other claim upon which the trial court found E.K. dependent as to the father, the eleventh-hour abandonment claim, this claim likewise is insufficiently supported by evidence adduced at the trial. D.R. v. Dep’t of Children & Family Servs., 898 So.2d at 255 (“An adjudication of dependency will be upheld where competent substantial evidence supports the trial court’s findings of fact.”). For a child to be adjudicated dependent as to a parent on the ground of abandonment, DCF must establish its allegations by a preponderance of the evidence that the parent “while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations.” § 39.01(1), Fla. Stat. (2004) (emphasis added); In re M.F., 770 So.2d 1189, 1192 (Fla.2000). Although the father here is not a perfect parent, the evidence in the record indicates he provided necessaries when asked and regularly visited and communicated with his daughter. See S.B. v. Dep’t of Children & Family Servs., 834 So.2d 415, 417 (Fla. 2d DCA 2003) (concluding that mother’s failure to financially support child for two months when child stayed with grandmother did not constitute abandonment because mother tried to retrieve the child from grandmother’s home, contacted the child, and gave authorization for medical treatment if necessary). The adjudication on this ground cannot stand.

We recognize the extraordinary responsibility the legislature has reposed in DCF to intervene to provide for the care, safety, and protection of the children of this state when statutorily required. § 39.001, Fla. Stat. (2004). However, it is also well settled that a parent has a fundamental liberty interest in the care, custody, and management of his or her child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). For this reason, DCF must, like any other litigant, be prepared to properly plead and prove its case when a parent contests its proposed action. Because DCF failed to meet its fundamental legal obligation in this regard in this case, we reverse the adjudication of dependency below.

Reversed.


author: GREEN, J.

text:
    CITY OF KEY WEST, Appellant, v. Lorraine KNOWLES, Appellee.
    No. 3D06-366.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.
    Rehearing Denied Feb. 19, 2007.

      Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A. and Michael T. Burke, Ft. Lauderdale, for appellant.
    Stevens & Culmer and Sheldon D. Stevens, Merritt Island, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   GREEN, J.

The City of Key West (“City”) appeals an adverse final judgment on a 42 U.S.C. § 1983 claim after a jury trial. On this appeal, the City asserts that the trial court erred when it failed to grant the City’s motion for directed verdict on this claim. We agree and reverse.

Lorraine Knowles sued the City and its former Cemetery Sexton, Gilbert Suarez, on the grounds, among other things, that she was deprived of a property interest in her husband’s buried remains without due process in violation of 42 U.S.C. § 1983. The lawsuit arose from the following incident.

In March 2000, an urn containing the cremated remains of Knowles’s late husband, Cecil Maitland Knowles, was interred in an above-ground burial vault at the Key West City Cemetery. Six months later, without Knowles’s knowledge or consent, City cemetery worker, William Gates, decided to place the casket containing the body of her deceased husband’s cousin in the same vault with the urn. When Knowles learned of this, she complained to the City and the cousin’s casket was removed. This dual burial lasted approximately two months.

The evidence at trial, viewed in the light most favorable to Knowles, showed that on the day of the incident, Suarez, the City’s Cemetery Sexton and Superintendent of Public Works, was out of town on a family emergency. City Cemetery worker, Gates, directed the dual burial. Gates did not consult with Suarez prior to making the decision for the dual burial.

The testimony at trial further demonstrated that Suarez received no formal training for his role as a Cemetery Sexton. In fact, he relied on Gates to oversee day-to-day cemetery operations. Gates had the authority to make decisions regarding the placement of remains in the cemetery. Suarez would check Gates’s work weekly. Suarez’s supervisor testified that at the time of the incident the City had no written policies or procedures for the day-today operation of the cemetery or about individual property rights in the vaults and the remains therein contained.

At the close of Knowles’s evidence, the City moved for a directed verdict, asserting that no view of the evidence would support a finding that Knowles was deprived of a federally protected right by a person acting under color of state law pursuant to 42 U.S.C. § 1983. The court denied the motion. The jury absolved Suarez of section 1983 liability, but awarded Knowles $15,000 in section 1983 damages against the City for mental anguish and emotional distress. The City appeals.

We agree with the City’s argument that the court should have granted its motion for directed verdict on the 1983 claim. Section 1983 imposes liability on any party that subjects a person to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983 (2002). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).

In the present case, Knowles filed a section 1983 action asserting a deprivation of procedural due process rights under the Fourteenth Amendment of the United States Constitution. To maintain such a claim, she “must first establish the existence of a constitutionally protected property or liberty interest that has been interfered with by the State.” Crocker v. Pleasant, 778 So.2d 978, 983 (Fla.2001). Therefore, the threshold, and we believe dispositive, question is whether Knowles had a constitutionally protected property interest in the interred remains of her late husband, sufficient to raise a section 1983 claim.

To determine whether a property interest exists, for purposes of a section 1983 claim, we must look to state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Crocker, 778 So.2d at 984 (citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). “[I]n Florida there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” Crocker, 778 So.2d at 988. These rights to a deceased’s remains, however, exist only for purposes of burial, or for other statutory purposes, and nothing further. Id. See Lascurain v. City of Newark, 349 N.J.Super. 251, 793 A.2d 731 (2002). Thus, for purposes of a section 1983 claim, constitutionally protected property interest to decedent’s remains ends at the point of burial or other lawful disposition. Any claims for events occurring thereafter must be pursued under traditional common law causes of action. See Crocker, 778 So.2d at 987-88. In this case, Knowles’s complaint arises solely from events after the lawful burial of her husband. Hence, there is no constitutionally protected property interest on which Knowles can rest her section 1983 claim under the facts of this case. Therefore, the trial court should have granted the City’s directed verdict motion as the close of Knowles’s evidence.

Based on the foregoing, we therefore reverse the judgment in Knowles’s favor and remand with instructions that judgment be entered in favor of the City of Key West.

Reversed and remanded.

      . Knowles also brought claims against the City for breach of contract and negligent infliction of emotional distress. The trial court entered summary judgment in favor of the City on the negligent infliction of emotional distress claim and directed a verdict in favor of the City on the breach of contract claim.

      . Gates died shortly after litigation began; his testimony was not preserved.


text:
    Emile McFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1181.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.
    Rehearing Denied Feb. 19, 2007.
    Emile McFord, in proper person.

      Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Emile McFord appeals the trial court’s summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. McFord’s double-jeopardy claim is legally insufficient and conclusively refuted by the record before us. See Fla. R.Crim. P. 3.850; Fla. R.App. P. 9.141(b)(2)(D), Walls v. State, 926 So.2d 1156 (Fla.2006). In addition, McFord has already challenged his plea agreement violation and sentence on appeal and failed to raise the alleged double-jeopardy issue. See McFord v. State, 877 So.2d 874 (Fla. 3d DCA 2004). Accordingly, we affirm the trial court’s order denying McFord’s motion for post-conviction relief.

Affirmed.


text:
    Camille SHEPPARD, Appellant, v. Ronald P. SHEPPARD, Appellee.
    No. 5D05-4422.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appellant.
    Richard J. D’Amico and Rick Brown, Daytona Beach, for Appellee.
   PER CURIAM.

The parties were divorced in 1987. The dissolution of marriage proceeding was uncontested as the parties had entered into a settlement agreement shortly before the filing of the original petition. The settlement agreement was incorporated into the final judgment. Paragraph 12 of the agreement provided:

That upon (the former husband’s) retirement, he shall pay to (the former wife) one-half of the lump sum pension received or one-half of the monthly payments received each month by him for such pension.

The original petition, the final judgment, and the settlement agreement never specifically identified the pension referenced in this paragraph.

In 2004, the former wife filed a motion to enforce the final judgment. She alleged the former husband had recently retired and that she was entitled to receive one-half of his entire pension. The former husband filed a response generally denying the motion. He did not file a pleading requesting reformation of the settlement agreement.

An evidentiary hearing was held on November 18, 2005. At the hearing, the former wife called the former husband as an adverse witness. The former husband testified he had been employed at BellSouth at the time of the divorce. He further testified he had continued to work at Bell-South until his retirement in April, 2004. The former husband acknowledged that he had received a lump sum pension from BellSouth.

On cross-examination, the former husband was asked by his counsel: “What was your understanding of what you were agreeing to do regarding the retirement?” The former wife objected on the grounds of relevancy and parol evidence. The trial court permitted the former husband to answer the question, but only after stating: “So why should I allow parol evidence in to clarify what appears to be unambiguous ... ? I’ll overrule the objection, but I think it’s an uphill truck.” Earlier in the hearing, in apparent reference to paragraph 12 of the agreement, the trial judge had stated: “I can’t modify it.”

The former husband then testified the intent of the agreement was for the former wife to receive one-half of the marital portion of his BellSouth pension. In apparent reliance on the trial court’s aforesaid comments, the former wife did not testify or otherwise present evidence attempting to refute the former husband’s testimony.

The trial court took the matter under advisement and subsequently entered a written order finding the former wife was only entitled to one-half of the marital portion of the former husband’s pension. In essence, the order reformed the parties’ settlement agreement. Although there was sufficient evidence to support a reformation of the parties’ agreement, we feel we must reverse for a new trial. During the evidentiary hearing, the trial judge made statements which definitely suggested it was unnecessary for the former wife to present any evidence regarding the parties’ intent as to paragraph 12. The former wife should not be penalized for her reasonable reliance on those statements, particularly when the former husband had not filed a pleading seeking reformation.

On remand, the former husband shall be afforded the opportunity to file pleadings seeking reformation of the settlement agreement.

REVERSED and REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.

      . On appeal, the former wife argued the trial court erred in overruling her objections. The former husband’s answer to the objected-to question was the only evidence presented as to the parties' intent. It was also the only evidence which supported a finding that the pension referenced in paragraph 12 of the settlement agreement was the former husband’s BellSouth pension. Ironically, if the former wife’s objection had been sustained, her motion to enforce would fail because of the lack of any evidence identifying the pension referenced in paragraph 12.


author: PALMER, J.

text:
    Hal D. HICKS, Appellant, v. Nancy Ann HICKS, Appellee.
    No. 5D05-1598.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.

      Richard J. D’Amico and Rick Brown, Daytona Beach, for Appellant.
    Christopher W. Wickersham and Lloyd Bowers of Wickersham & Bowers, Dayto-na Beach, for Appellee.
   PALMER, J.

Hal Hicks (father) appeals the final order entered by the trial court dissolving his marriage to Nancy Hicks (mother) and awarding her primary residential custody of the parties’ three children as well as child support and equitable distribution of marital property. The mother properly concedes that the trial court erred in calculating the father’s child support arrear-age and, therefore, we remand this matter to the trial court for correction of the child support arrearage amount and for any other changes in the award, if any are deemed necessary, as a result of that correction. In all other aspects, we affirm.

The mother filed a petition seeking to dissolve her marriage of less than three years to the father. The father filed a counter-petition which included a claim for special equity in five parcels of Florida real estate.

During the litigation, the father engaged in a pattern of improper conduct, including failing to comply with the financial terms of the parties’ temporary support agreement, as well as failing to comply with pretrial discovery orders and failing to appear at a scheduled deposition. In response to the father’s conduct, the trial court entered an order sanctioning him by striking his pleadings and entering a default against him.

The father later filed a motion to set aside the default judgment arguing that he had recently complied with the support and discovery orders. The trial court denied the motion. However, the court permitted the father to participate in the trial, including cross-examining witnesses and calling his own witnesses.

The mother was awarded primary residential custody of the parties’ three minor children, a portion of the marital property in equitable distribution, an additional portion of the martial property for child support purposes, and her attorney’s fees. The father timely appealed.

The father contends that the trial court reversibly erred in establishing the parties’ rights and obligations concerning child support and child custody. With the exception of the miscalculation of the father’s child support arrearage amount, we disagree.

First, the father challenges the fact that the trial court failed to compute his child support obligation based upon the guidelines set forth in section 61.30 of the Florida Statutes (2005). He further argues that the trial court erred in failing to provide written findings to support the child support award. We disagree.

Although trial courts are normally required to calculate the amount of child support based upon the statutory guidelines and then justify any substantial deviation from that guideline amount, when a party prevents the court from accurately calculating an amount through the failure to fully and completely disclose financial information, that party will not be heard to complain when the court cannot (and therefore does not) make a specific calculation. Here, in awarding the mother child support, the trial court awarded her more of the marital assets than were awarded to the father, explaining that due to the father’s proven record of failing to pay his temporary child support obligations, the father’s pending criminal charges, and the father’s failure to truthfully advise the court as to the nature of his finances, the court felt obligated to use the parties’ real estate to secure support for the parties’ children. The unequal distribution of martial property to accomplish this purpose was proper under these unusual circumstances. See Escudero v. Escudero, 739 So.2d 688 (Fla. 5th DCA 1999).

The only error in the final judgment is an error in the designated amount of the father’s outstanding child support arrearage. Although the judgment indicates an arrearage of $81,864.00, both parties agree the arrearage was only $31,000.00. Accordingly, this case must be remanded to the trial court to deal with that discrepancy.

We reverse the instant dissolution order and remand this matter to the trial court for correction of the amount of the father’s child support arrearages and for the trial court’s determination as to whether that correction requires any other change in the distribution of the parties’ marital property.

AFFIRMED in part; REVERSED in part, and REMANDED.

THOMPSON and SAWAYA, JJ., concur.


text:
    The RESERVE AT WEDGEFIELD HOMEOWNERS’, etc., Appellant, v. Rebecca L. DIXON, Appellee.
    No. 5D06-1578.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.

      Robyn Severs Braun and Patrick C. Howell of Taylor & Carls, Maitland, for Appellant.
    Douglas T. Noah of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.
   PALMER, J.

In this non-final appeal, the Reserve at Wedgefield Homeowners’ Association (Wedgefield) appeals the trial court’s order granting Rebecca Dixon’s motion for emergency injunctive relief. Determining that the injunction order fails to comply with the technical requirements of the law, and that Dixon failed to make the showing necessary for temporary injunctive relief, we reverse.

Dixon filed a complaint against Wedge-field seeking relief from Wedgefield’s imposition of homeowners’ association dues on her property. The complaint explains that Dixon purchased two lots in the Reserve at Wedgefield, but only one house is located on the lots. Dixon began receiving notifications from Wedgefield that she owed association dues on both lots but, the complaint alleges, Dixon then received notification from the vice president and secretary of Wedgefield indicating that she only owed association dues on one lot (because only one home is located on both lots). The complaint states that Wedge-field continues to assess dues on each of Dixon’s lots and that Wedgefield has filed a claim of lien against Dixon’s property because she has failed to pay said dues.

Along with her complaint, Dixon filed a verified motion for emergency injunctive relief. In her motion, Dixon alleged the same facts as were alleged in her complaint with the additional allegation that Wedgefield had forwarded correspondence to her indicating that Wedgefield would institute foreclosure proceedings against Dixon’s property if she failed to pay the dues which were owed.

The trial court conducted a hearing on Dixon’s injunction motion. Dixon did not present any witness testimony. Instead, she relied solely upon her pleadings and the argument of counsel.

The trial court later entered a written order granting Dixon’s motion for temporary injunction and enjoining Wedgefield from initiating any proceeding to effect the foreclosure or execution of its lien on Dixon’s property. As for findings, the trial court’s order simply states that (1) “because each parcel of real estate is unique unto itself, the foreclosure of plaintiffs property would amount to irreparable harm”, and (2) “under the circumstances of this case, the plaintiff has no adequate remedy at law and has a substantial likelihood of success on the merits of this action.” The court also waived the bond requirement in this case. This appeal timely followed.

Wedgefield argues that the trial court’s injunction order must be reversed because it fails to comply with the technical requirements of the law. We agree.

“A preliminary injunction is an extraordinary remedy which should be granted only if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest.” Dragomirecky v. Town of Ponce Inlet, 882 So.2d 495, 496 (Fla. 5th DCA 2004) (citing to Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002)).

Where, as here, a party that is subject to a temporary injunction chooses to file a direct appeal, rather than filing a motion to dissolve the injunction, the scope of appellate court review is limited to “the legal sufficiency of the trial court’s order, the complaint, and any supporting documents.” Yardley v. Albu, 826 So.2d 467, 469 (Fla. 5th DCA 2002). Applying this standard of review to the instant case, we reverse because the trial court’s order is legally insufficient.

The trial court’s injunction order fails to order Dixon to post a bond and fails to set forth a factual basis to support each of the elements of a temporary injunction (i.e., the likelihood of irreparable harm, the unavailability of an adequate remedy at law, substantial likelihood of success on the merits, and consideration of the public interest). As such, the trial court’s injunction order must be reversed. See Broward County v. Meiklejohn, 936 So.2d 742 (Fla. 4th DCA 2006) (holding that trial court’s order granting county employee’s motion for preliminary injunction for reinstatement was improper because it contained technical errors in that the order failed to state a factual basis to support each of the elements of a preliminary injunction and the order failed to include a bond); Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666 (Fla. 2d DCA 2005) (holding that a temporary injunction must specify the reasons for its entry and the findings supporting the elements necessary to establish entitlement to a temporary injunction must be clear, definite, and unequivocal); Alliant Capital, Ltd. v. Singleton, 835 So.2d 365 (Fla. 5th DCA 2003) (reversing trial court’s injunction order because the court failed to set forth facts to support each element that a moving party must establish to be entitled to the issuance of a temporary injunction and erred in not setting and requiring a bond).

In closing we note that, even if the technical deficiencies of the instant injunction order were not dispositive, the entry of temporary injunctive relief in this matter would have been improper because the alleged facts are insufficient to support a conclusion that Dixon would suffer irreparable harm if injunctive relief were not granted and that she does not have an adequate remedy at law. Dixon alleges as irreparable harm the threat that Wedge-field will institute foreclosure proceedings against her property because of the possibility that she may lose her property in the foreclosure. However, no such loss would occur merely by the institution of foreclosure proceedings. Instead, such loss could only occur upon successful prosecution of the foreclosure proceedings, during which Dixon could raise all of the issues raised in her motion for injunctive relief as defenses thereto. See Hutchinson v. Kimzay of Florida, Inc., 637 So.2d 942 (Fla. 5th DCA 1994) (holding the moving party would not suffer irreparable harm by having issues litigated in a related eviction action, since any argument raised in support of the temporary injunction could be raised in defense of the eviction action).

REVERSED.

THOMPSON and MONACO, JJ., concur.

      . Appellate jurisdiction is proper pursuant to rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure which authorizes appeals from non-final orders which "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunction".