author: GRIFFIN, J.

text:
    Willie Eddie PORTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1420.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Willie E. Ports, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Willie Eddie Ports appeals the denial of a petition for writ of habeas corpus. This is the tenth appeal he has taken concerning lower court case numbers 90-1081-CFB, 93-1402-CFA and 93-1127-CFA. The issue he raises in this petition is untimely, successive and completely without merit. We affirm the denial of the petition.

We warn appellant that if he again attacks these convictions or sentences, we will likely issue an order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), requiring him to show cause why he should not be banned from further pro se filings and for consideration of disciplinary action pursuant to section 944.279(1), Florida Statutes (2005).

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. ERVIN, J.,

license: Public Domain

text:
    Kevin A. HURST, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1230.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Kevin Hurst brings this appeal from a judgment and sentence finding him in violation of his sex offender probation for failure to meet a court-imposed curfew. Because we find that the trial court did not abuse its discretion in entering the order of violation, we affirm the trial court’s order below.

Appellant was initially convicted, on November 7, 2001, with one count of lewd and lascivious molestation. He was sentenced to 333 days imprisonment, with credit for 333 days served, followed by 15 years sex offender probation. One condition of the probation was a court-imposed curfew, such that appellant was required to be at his permanent residence at all times between the hours of 10:00 p.m. and 6:00 a.m. Appellant was subsequently released on November 8, 2001.

On November 4, 2005, the Florida Department of Corrections filed a Violation Report, with attached affidavit, alleging that appellant had violated the terms of his probation by missing curfew. The report alleged that appellant’s probation officer had visited appellant’s trailer on October 31, 2005, at 11:48 p.m., and was unable to confirm that appellant was at home. The report noted that the officer repeatedly knocked on the appellant’s door, and pounded on the side of the trailer where she knew appellant’s bedroom to be, but appellant never responded. Appellant argues that he was at home when Officer Whitten visited, but that he had the flu and had taken a double dose of cold medicine. At a violation of probation hearing, held January 5, 2006, the trial court noted after hearing the evidence, “I don’t believe [appellant] was in the residence.” Accordingly, the court entered an order finding appellant in violation of his probation and sentenced him to ten years imprisonment, with credit for six years and twenty-four days served, followed by five years probation. Appellant appeals from this order.

Appellant argues on appeal that the trial court erred in finding him in violation of his probation because the state failed to prove that appellant committed a willful and substantial violation. We note that it is, by now, well settled that “[a] trial court is vested with broad discretion in determining whether a probationer has violated a condition of the probation.” See Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Accordingly, the appropriate standard of review for judgments finding probation violations is whether the trial court abused its discretion in finding the violation. See State v. Carter, 835 So.2d 259, 262 (Fla.2002); see also Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994).

Appellant relies upon the Second District’s opinion in Brown v. State, 813 So.2d 202 (Fla. 2d DCA 2002), as support for the proposition that, in proving a willful violation of probation, the State must allege something more than the mere fact that a probationer did not answer the door. In that case, the court did note that “[establishing that no one answered the door at that unreasonable hour of the morning [2:00 a.m.] was insufficient to prove a violation.” Id. at 204. Nonetheless, that case is factually distinguishable from the one at hand. In Brown, while the State had little more than the fact that the probationer did not come to the door at 2:00 a.m., the probationer produced several family members, as witnesses, who testified Brown had been at home and asleep on the night in question. Id. at 203. Thus, the State’s evidence was insufficient to demonstrate a willful violation of probation.

In the instant case, the only evidence before the trial court was the opposing testimony from two witnesses. The probation officer testified that she knocked loudly and repeatedly and, indeed, that she woke appellant’s neighbors, but that appellant never responded. Conversely, appellant testified that he was at home and asleep. Essentially, this case presents a credibility dispute between witnesses. The trial court apparently resolved that dispute; the court noted at the conclusion of the evidence, “I don’t believe [appellant] was in the residence.” An appellate court must defer to the lower court’s findings with respect to witness credibility. See Vanstraten v. State, 901 So.2d 391, 393 (Fla. 1st DCA 2005) (“To the extent that the testimonial evidence conflicts, it is a trial court’s duty to assess the credibility of witnesses and to determine which testimony warrants belief’); see also Porter v. State, 788 So.2d 917, 923 (Fla.2001) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses”). Because the trial court was within its discretion to believe OffR cer’s Whitten’s testimony over that of appellant, this court should refrain from reweighing the evidence now.

AFFIRMED.

BARFIELD and POLSTON, JJ„ concur; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

Although clearly our review standard of an order revoking probation, as recognized by the majority, is that of abuse of discretion, other standards, which the majority implicitly alludes to by its references to Porter v. State, 788 So.2d 917, 923 (Fla.2001), and Vanstraten v. State, 901 So.2d 391, 393 (Fla. 1st DCA 2005), are also implicated, notably that of competent, substantial evidence. My departure from the majority’s decision is based on the fact that I am unable to discern any meaningful distinction between the facts in Brown v. State, 813 So.2d 202 (Fla. 2d DCA 2002), and those at bar. I am well aware that in Brown, unlike the present case, other witnesses corroborated the probationer’s testimony relating that she was inside the dwelling asleep at the time of the probation officer’s visit; nevertheless, Brown’s holding that the trial court abused its discretion in violating the appellant’s probation did not turn, in my judgment, on any conclusion that the testimony of appellant and her parents was more credible than that of the probation officer, which would have been an impermissible reweighing of the evidence, but rather on the lack of any reasonable inference, based solely on the evidence presented by the state, to support the conclusion that appellant had violated the curfew condition of her probation.

In observing that the state had failed in its burden of proving a willful and substantial violation of the condition by a preponderance of the evidence, the Second District made the following pertinent comments:

As to the alleged violation of condition twelve, the State produced no evidence to prove that Brown was not at home for the officer’s 2 a.m. visit. Establishing that no one answered the door at that unreasonable hour of the morning was insufficient to prove a violation of community control condition twelve.

Id. at 204.

Thus, because the state produced no direct evidence that appellant was not inside the residence at the time of the officer’s visit, it is clear that the state’s case for revocation depended entirely on the strength of the inference that appellant was not at home because she had failed to answer the officer’s knock. Obviously, the court determined that the inference by itself was not sufficient to support the revocation order. Unarticulated by the court, but reasonably implied in its decision, is that in concluding the trial court abused its discretion by ordering revocation, the Second District must also have decided that the order failed to comply with the Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), test of reasonableness, which states:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

The import of the Brown decision is that reasonable persons simply could not differ as to the appropriateness of the action taken; therefore, the action was considered unreasonable. In applying the Cana-karis rule in particular to a revocation order, the supreme court instructs that an “appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the probationer’s] violation was both willful and substantial.” State v. Carter, 835 So.2d 259, 262 (Fla.2002). In my judgment, the state in the present case, as in Brown, failed in its burden of proving a willful and substantial violation. Its evidence rested on facts showing the officer’s repeated knocking on the door at 11:48 a.m.; that no one answered the door; and that appellant testified he was inside the residence and in a deep sleep because he had taken a double dose of cold medicine. If the holding in Brown is to be honored, we are required to conclude that even if the trier of fact could correctly refuse to accept the appellant’s testimony as credible, the inference the state relied upon and the trial court accepted as proof of the violation was so insubstantial that reasonable persons would be unable to differ as to the propriety of the action taken.


author: SILBERMAN, Judge.

text:
    In the Interest of C.M. and E.M., children. V.M., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D06-2333.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.

      Norman A. Palumbo, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee Department of Children and Family Services.
    Wendie Michelle Cooper, Orlando, for Appellee Guardian ad Litem Program.
   SILBERMAN, Judge.

V.M., the Father, appeals a final judgment terminating his parental rights with respect to his children, C.M. and E.M. The trial court entered the final judgment after finding that the Father’s failure to timely appear at the adjudicatory hearing constituted his consent to termination. The Department of Children and Family Services (the Department) and the Guardian ad Litem (GAL) concede that the trial court committed reversible error by finding that the Father’s failure to appear constituted his consent to termination and by failing to grant a continuance. We agree and reverse.

Section 39.801(3)(d), Florida Statutes (2005), provides that when a parent attends an advisory hearing on a petition for termination of parental rights, is instructed to attend the adjudicatory hearing, and is advised of the date, time, and location of the adjudicatory hearing, the “failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” The purpose of this provision “is to ensure that a parent’s neglect of the proceeding does not defeat a termination petition. The provision allows the trial court to conclude a termination of parental rights case even if a parent has chosen not to participate.” T.B. v. Dep’t of Children & Family Serve. (In re T.B.), 920 So.2d 170, 173 (Fla. 2d DCA 2006) (citations omitted). However, “courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.” R.P. v. Dep’t of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003); see also T.L.D. v. Dep’t of Children & Family Servs. (In re A.N.D.), 883 So.2d 910, 914 (Fla. 2d DCA 2004) (citing R.P.). In B.H. v. Dep’t of Children & Families, 882 So.2d 1099, 1100-01 (Fla. 4th DCA 2004), the court acknowledged that there is “a distinction between parents who fail to appear at a hearing without a reasonable explanation versus those who have made some reasonable effort to be present.”

Here, the record reflects that the Father, who works on a cruise ship based in Hawaii, had repeatedly appeared before the court at various hearings. Further, he traveled from Hawaii to Tampa to be at the adjudicatory hearing, but on the day of the hearing, he was delayed in traveling to the courthouse by bus. The Father arrived at the courthouse after the trial court announced that it was entering a consent and terminating the Father’s parental rights due to his nonappearance. The record also reflects that the Father’s counsel had asked the trial court to continue the hearing until the Father arrived, but the court denied the request.

Based on the circumstances, the Department and the GAL properly concede that the trial court erred. The Father was making a reasonable effort to attend the hearing when the court entered the consent and declared that the Father’s parental rights were terminated due to his nonappearance. Also, nothing in the record suggests that a short continuance of the proceeding would have resulted in adverse consequences to the children. See G.A v. Dep’t of Children & Family Servs. (In re I.A.), 857 So.2d 310, 312 (Fla. 2d DCA 2003); R.P., 835 So.2d at 1213. Accordingly, we reverse the final judgment terminating the Father’s parental rights and remand for further proceedings.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.

      . The final judgment also terminates the mother's parental rights. Our decision does not affect the final judgment as to the mother.


text:
    KIMMINS CORPORATION and Crawford & Company, Appellants, v. Van TRUC, Appellee.
    No. 1D05-4375.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Timothy Dunbrack of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, Orlando, for Appellants.
    Katherine Stone of Barbas, Koenig, Nunez, Sanders & Butler, Tampa; Leo D. Gomez of Fiol, Gomez & Blackburn, P.A., Tampa, for Appellee.
   PER CURIAM.

AFFIRMED.

WEBSTER and THOMAS, JJ., concur.

ERVIN, J., specially concurring with opinion.

ERVIN, J.,

specially concurring.

The employer/carrier (E/C) appeals from a workers’ compensation order ruling that a verified petition for attorney’s fees and costs dated October 9, 1998, was still pending as of an attorney-fee hearing held on January 26, 2005, which appears to be a case of first impression. I concur with the majority in affirming the order of the judge of compensation claims (JCC).

Claimant was injured in 1992, and the E/C voluntarily provided workers’ compensation benefits. On June 14, 1997, claimant’s attorney and the E/C entered into a joint stipulation stating, inter alia, that counsel was entitled to reasonable attorney’s fees and costs, and that the JCC would reserve jurisdiction to award fees if the parties could not reach an agreement as to the amount. On October 9, 1998, counsel filed a verified petition for attorney’s fees and costs; however, there is no evidence in the record that the petition was ever set for hearing, or that the E/C ever filed a response to the petition.

On August 31, 2004, the JCC granted the E/C’s motion to dismiss the workers’ compensation claim because of lack of prosecution. Claimant appealed, and this court dismissed the appeal on the ground that the order was non-final. Truc v. Kimmins Corp., 889 So.2d 964, 965 (Fla. 1st DCA 2004). Thereafter, on February 2, 2005, counsel filed a second verified petition for attorney’s fees and costs related to the original 1997 joint stipulation, and the E/C defended, arguing that the statute of limitations prevented counsel from filing this second petition due to the seven-and-a-half-year lapse in time since the filing of the original stipulation, and that the claim was barred because the JCC’s August 2004 order had dismissed all claims and petitions for lack of prosecution, including counsel’s claim for attorney’s fees and costs.

At the hearing on the petition for fees, claimant’s attorney testified that he was unaware of any petitions pending at the time of the claim’s dismissal in 2004, and it was later developed at the hearing that the earlier (1998) verified petition for attorney’s fees and costs had never been prosecuted. The JCC ruled that the 1998 petition had never been dismissed; therefore, the statute of limitations was tolled. Furthermore, the JCC found that because the 1998 petition had never been scheduled for a pretrial conference or hearing, counsel’s right to prosecute the fee amount was not prejudiced, and that counsel was entitled to $14,980 in attorney’s fees, but he denied costs because claimant’s entitlement to same had not been proven. This timely appeal followed.

The 1998 petition for attorney’s fees and costs, which was filed within the two-year period in accordance with section 440.19(l)(a), Florida Statutes (1992), was apparently overlooked by both parties and the court until the fee hearing conducted in 2005. The E/C argues that the JCC’s earlier order to dismiss for lack of prosecution effectively dismissed this 1998 petition as well.

The rule is firmly established that a claim will not be dismissed for lack of prosecution if claimant has provided notice of readiness for trial and the JCC subsequently fails to set the case for trial. Citrus Cent. v. Gardner, 569 So.2d 936 (Fla. 1st DCA 1990). Claimant argues, relying on Brown v. U.S. Sugar Corporation, 562 So.2d 752, 754 (Fla. 1st DCA 1990), that his petition for attorney’s fees and costs, filed in 1998, furnished such notice. The facts in Brown, however, are distinguishable because the claimant’s attorney there filed a timely motion for hearing that was never acted upon; here, no motion for hearing was ever filed.

In fact, here, both parties violated the provisions of rule 4.144, Florida Rules of Workers’ Compensation Procedure (1997), requiring that a claimant make a written request for hearing, and that the E/C respond to the verified petition within 20 days of being served. Neither of these actions took place. Because of the circumstances showing that claimant’s counsel failed to set the petition for hearing, that the E/C failed to respond, and that no final order was entered dismissing the stipulation of the parties, I agree that the JCC correctly accepted responsibility for the lack of hearing. “ ‘[WJhenever a disposi-tive motion is pending before the court, and the parties are awaiting the court’s ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court’s deliberation, the cause cannot be dismissed for lack of record activity.’ Cincinnati Equitable Ins. Co. v. Haunt, 933 So.2d 1233, 1236 (Fla. 3d DCA 2006) (quoting Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383, 1384 (Fla. 3d DCA 1996)). In the present case, the petition for attorney’s fees and costs remained pending for over seven years, and for some unknown reason, the action was never addressed by the JCC; therefore, the undisposed of 1998 petition for attorney’s fees and costs tolled the running of the statute of limitations.

      . Although the Florida Supreme Court has since repealed the Florida Rules of Workers' Compensation, see Amendments to the Florida Rules of Workers’ Compensation Procedure, 891 So.2d 474 (Fla.2004), the pertinent provisions of rule 4.144 have been re-adopted in Florida Administrative Code Rule 60Q-6.124.


author: PER CURIAM.

text:
    William E. HAND and Jane L. Hand, husband and wife, Appellants, v. GROW CONSTRUCTION, Inc., a Florida corporation, Appellee.
    No. 1D06-4896.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Michael F. Coppins of Coppins Monroe Adkins Dincman & Spellman, P. A., Tallahassee, for Appellants.
    Fred M. Johnson of Fuller Johnson & Farrell, P. A., Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 26, 2006, the Court has determined that the order on appeal is not final because related issues remain pending before the lower tribunal. Accordingly, the appeal is hereby dismissed as premature.

BROWNING, C.J., KAHN, and DAVIS, JJ., concur.


text:
    Johnny SIMMONS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-6172.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Johnny Simmons, pro se, Petitioner.
    Rosa Carson, General Counsel, and Sherry Anita Toothman, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on the merits as to petitioner’s claim that the circuit court departed from the essential requirements of law when it denied his petition for writ of mandamus. However, because petitioner’s claim constituted a collateral criminal proceeding within the meaning of section 57.085(10), Florida Statutes, the trial court improperly imposed liens upon petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006).

Accordingly, we grant the petition for writ of certiorari to the extent it challenges the order imposing a lien for the payment of court costs and fees incurred in the mandamus proceedings before the circuit court, and quash that order. We likewise grant petitioner’s motion for review of the circuit court’s appellate indi-gency order, and quash the portion of that order imposing a lien. The trial court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien orders.

KAHN, HAWKES, and THOMAS, JJ., concur.


text:
    Gloria GREEN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and TJ Maxx, Appellees.
    No. 1D06-4263.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Gloria Green, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 20, 2006, the Court has determined that the notice of appeal, which was filed more than 30 days after rendition of the order on appeal, failed to timely invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Vernon CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4529.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2006.
    Vernon Carter, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Vernon Carter timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Carter raises thirty-two issues. We affirm thirty-one of the issues without comment. We reverse and remand on the remaining issue.

Following a jury trial, Carter was found guilty of kidnapping, carjacking, attempted strong arm robbery, and battery upon a person 65 years of age or older. In his fourth ground for relief, Carter alleges that his trial counsel was ineffective for failing to investigate and call alibi witness “Butch.” Carter alleges that Butch would have testified and produced “work records” showing that, on the day in question, Carter was with Butch in Orlando on a roofing job; and, thus, Carter could not have committed crimes in the Fort Laud-erdale area. Carter states that he informed his attorney about Butch and that Butch was available to testify. Carter further alleges that, while the victim identified his photo from a lineup, Carter was not placed in the carjacked vehicle until some ten days after the offenses took place, and then, in a different county.

The state properly concedes, and we agree, that Carter’s fourth claim is facially sufficient, requiring remand for either an evidentiary hearing or attachment of those portions of the record which conclusively refute Carter’s claim. See Gilbert v. State, 852 So.2d 397 (Fla. 4th DCA 2003) (finding facially sufficient appellant’s claim that his trial counsel was ineffective for failing to investigate and call an alibi witness where appellant alleged that he timely gave his counsel the witness’s name and where he could be located, and alleged that the witness was willing and able to testify).

Reversed and Remanded.

STEVENSON, C.J., STONE and HAZOURI, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Todd McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3603.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2006.
   NORTHCUTT, Judge.

This is an appeal from a summary denial of Todd McCray’s motion to proceed in forma pauperis. Appellee has conceded that the postconviction court erred in its application of section 57.085, Florida Statutes (2005), because McCray’s petition for writ of habeas corpus is a collateral criminal proceeding which, pursuant to section 57.085(10), is exempt from section 57.085. In his motion, McCray was not seeking deferral of prepayment of court costs and fees pursuant to section 57.085. Accordingly, we reverse the postconviction court’s denial and remand for the postconviction court to reconsider McCray’s motion to proceed in forma pauperis under section 57.081, Florida Statutes (2005).

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.


text:
    JACKSONVILLE EMERGENCY CONSULTANTS, P.A., Appellant, v. VISTA HEALTH PLAN, Appellee.
    No. 1D05-5965.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey of Roetzel & Andress, L.P.A., Tallahassee, for Appellant.
    Steven M. Ziegler, Andres Gonzalez, and D. Patricia Wallace of Steven M. Ziegler, P.A., Hollywood, for Appellee.
    George N. Meros, Jr. and Allen C. Win-sor of GrayRobinson, P.A., Tallahassee as amicus curiae for Florida Association of Health Plan in support of Appellee, Vista Health Plan.
   PER CURIAM.

AFFIRMED. See Baycare Health System, Inc. v. Agency for Health Care Ad ministration, 940 So.2d 563 (Fla. 2d DCA 2006).

ERVIN, ALLEN and WOLF, JJ., concur.


text:
    General Grant BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1088.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Nancy A. Daniels, Public Defender, and Hunter P. Pfeiffer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We summarily affirm all issues addressed by the lower court in its final order denying appellant’s claims for relief under Florida Rule of Criminal Procedure 3.850. Because, however, the trial court did not address an additional claim alleged in appellant’s supplemental motion, urging that the prison releasee reoffender statute is unconstitutional for the reason that it allows a sentence to be enhanced without factual findings by a jury, we remand the case to the trial court with directions for it to address the merits of that claim.

CASE REMANDED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.

      . As to this issue, we note that the Florida Supreme Court has held that Florida's Prison Releasee Reoffender Act does not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Gudinas v. State, 879 So.2d 616, 618-19 (Fla.2004).


author: BARFIELD, J.

text:
    TWIN OAKS AT SOUTHWOOD, LLC, Appellant, v. SUMMIT CONSTRUCTORS, INC., a Florida Corporation, Appellee.
    No. 1D06-3913.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.

      M. Stephen Turner, P.A., and J. Neis Bjorkquist, of Broad and Cassel, Tallahassee, for Appellant.
    Hugh M. Davenport, Jacksonville, for Appellee.
   BARFIELD, J.

The defendant in a lawsuit arising out of a construction contract appeals a non-final order which granted the plaintiffs motion to dismiss the defendant’s counterclaims and determined that the plaintiff was entitled to arbitration of the counterclaims. We find that the trial court erred in finding that the plaintiff did not waive its right to demand arbitration when it instituted the litigation.

In 2002, appellanVowner and appel-lee/contractor entered into a “cost plus” contract for construction of a housing complex under the supervision of the federal Department of Housing and Urban Development (HUD), to be completed in February 2004 (hereinafter designated “the Contract”). The Contract provided that the agreement between the parties was set forth in the “Contract Documents,” which included, inter alia, the AIA “General Conditions of the Contract for Construction.” The AIA general conditions defined “Contract Documents” as including, inter alia, “Modifications issued after execution of the Contract,” and defined “modification” in this context as “(1) a written amendment of the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect.” The AIA general conditions also included an arbitration clause: “Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sections 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration.”

In May 2004, three months after the completion date contemplated in the Contract, the parties entered into a “Project Completion Agreement” (PCA), which referenced the Contract. The PCA stated that the parties had agreed to two change orders which had been “fully funded,” and that a third change order had been approved for an extension of the contract completion date. It noted that problems attributable to the architect had caused substantial delays in the progress of the work, that additional upgrades had been made and additional fee obligations had been incurred, and that the parties wished “to conclude construction expeditiously and [to] resolve all issues known or which could have been known and to establish with finality amounts that will be due [the contractor] upon final completion of the project.” The owner agreed that $340,012.00 would be due the contractor “in addition to Contract initial amount and the previously funded Change Orders No. 1 and No. 2 to cover all issues known or which could have been known through project completion.” The owner also agreed to pay the water connection fees, to waive any liquidated damages under the contract “up to September 1, 2004,” and to request that the 10% retainage be reduced to 5% when the project was certified 90% complete by HUD. Paragraph six provided: “This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and may not be amended except in a writing signed by the Parties.” Paragraph eight provided: “Except as provided herein, the terms and conditions of the Contract shall remain in full force and effect.”

In May 2005, one year after the PCA was signed, nearly nine months after the completion date referenced in the PCA, and four months after the substantial completion date in January 2005, the parties entered into a “Project Disbursement Agreement” (PDA), which referenced the Contract and incorporated the PCA. It stated that the “total unpaid balance in the HUD Contract for Construction plus approved change orders” was just under $2.5 million and that the parties and the lender “wish to facilitate the final endorsement of the Project by providing for an agreed upon assessment of liquidated damages” to allow the owner, lender, and HUD “to balance the loan and disburse the balance of the funds designed for construction to [the contractor].” The contractor agreed to provide the documents required to remove all liens filed by it or its subcontractors and to keep the property free of any future liens. In return, the lender agreed to disburse to the contractor $1.5 million, which represented the amount due at that point, less $471,413.00 in liquidated damages (the actual liquidated damages would have exceeded $800,000). The parties agreed that at final endorsement, the lender would disburse to the contractor the remainder of the unpaid balance. Paragraph eight provided: “Except as provided herein, the terms and conditions of the Contract shall remain in full force and effect.” Paragraph nine provided: “This written Agreement and all of its provisions shall be considered to be the complete Agreement between the Parties relating to the matters set forth herein, notwithstanding any oral representations or other writings to the contrary and may not be amended except in a writing signed by all Parties to this Agreement.”

In December 2005, the contractor filed a complaint against the owner which referenced the Contract, the PCA, and the PDA, and which sought payment of $340,012.00 “as required by the Project Completion Agreement,” together with prejudgment interest and costs. The owner’s answer asserted that the PCA became part of the subsequent PDA, “which finally resolved the amounts to be paid to Plaintiff after construction was fully completed,” that the PDA “is an accord and satisfaction of any amount owed for project construction,” and that the actual liquidated damages chargeable to the contractor for failure to complete the work by the extended completion date “far exceeded the amount due under the Project Completion Agreement, and were foregone under the Project Disbursement Agreement to satisfy all obligations.” As affirmative defenses, the owner asserted that the PDA fulfilled all of the owner’s obligations to pay the contractor “by accord and satisfaction,” and that the owner was entitled to set-offs for utility charges it had paid on behalf of the contractor and for loss of utility refunds for which the contractor was responsible.

The owner was allowed to file a four-count counterclaim which referenced the three agreements between the parties. The first count stated that between the extended completion date and the substantial completion date, potential liquidated damages had accrued in the amount of $814,574.88, but that only $417,413.00 in liquidated damages were assessed under the PDA, leaving remaining liquidated damages of $397,161.88, which exceeded the amount the contractor was seeking to recover from the owner. The second count stated that defective work by the contractor had required the owner to incur $8,000 in repair costs and roughly $50,000 in estimated repair costs. The third count stated that the contractor had not installed backflow preventers as required by the building codes, that the cost of installing the backflow preventers was $100,000.00, and that the contractor had not agreed to pay for it after demand had been made. The fourth count stated that the contractor had reported to the owner that it was in full compliance with all procedural eligibility requirements for the City of Tallahassee’s utility refund program, but that the contractor had not complied with the notice and bidding requirements, which had impaired the project’s eligibility for utility refunds in the amount of $392,000.00.

The contractor filed a motion to dismiss the counterclaims, asserting that the counterclaims arose under the Contract, which required arbitration, but that the complaint arose out of the PCA and “will not require reference to or construction of any portion of the original construction contract.” The owner’s memorandum in opposition to the motion asserted that all the claims of the complaint and the counterclaims “are potentially arbitrable under the broad, expansive, and inclusive arbitration provision in the contract,” but that both parties had waived their rights to demand arbitration of all “claims arising out of or related to” the construction contract. It argued that the contractor had waived its right to demand arbitration “by filing its complaint for payment of sums due for performance of work arising out of or related to the contract, and [by] taking other actions inconsistent with the right to arbitrate,” including “by actively participating in discovery directly addressing the claims contained in the counterclaim.” It argued that the owner had waived its right to demand arbitration by filing the affirmative defenses and counterclaim. It asserted that all the claims in the instant case “rely entirely on the mutual obligations under the construction contract and related agreements that incorporate the contract,” but that the contractor improperly “wants to split this case by continuing to litigate its complaint while requiring [the owner] to arbitrate its counterclaim.” It argued:

The interests of justice and judicial economy mandate either that both the complaint and counterclaim be arbitrated, or that both be tried before this Court. Splitting the litigation forums invites inefficiency, delay, and duplicate effort, particularly when the claim involves the same witnesses, contract documents, factual situation and timeline, and involve compulsory setoffs.

Both parties relied upon Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999), in which the court addressed whether a tort claim for wrongful death was sufficiently related to a construction contract to mandate application of the arbitration provision of the contract to the tort claim. The owner also relied on Raymond James Financial Services, Inc. v. Saldukas, 896 So.2d 707 (Fla.2005), and Owens & Minor Medical, Inc. v. Innovative Marketing and Distribution Services, Inc., 711 So.2d 176 (Fla. 4th DCA 1998), as well as Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388 (7th Cir.1995), and E.C. Ernst, Inc. v. City of Tallahassee, 527 F.Supp. 1141 (N.D.Fla.1981).

In the order granting the contractor’s motion to dismiss the owner’s counterclaim, the trial judge found that the PCA was “a separate agreement, which does not contain an arbitration provision, from the original contract, which does contain an arbitration provision,” and that the contractor’s “suing in the circuit court for breach of the Project Completion Agreement does not act as a waiver of the arbitration provision contained in the original contract,” noting that “[i]f the intent of the parties was to arbitrate claims arising out of or related to a breach of the Project Completion Agreement then they should have included an arbitration provision in the agreement.” The order cited Seifert, Saldukas, and Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973).

The owner filed a motion for reconsideration or rehearing, in which it argued that paragraph eight of the PCA “specifically incorporates the terms and conditions of the contract,” and that this had not been pointed out at the hearing. It cited OBS Co., Inc. v. Pace Constr. Co., 558 So.2d 404 (Fla.1990), for the proposition that “[a] modification or amendment to a contract is part of the contract, and the two documents must be construed together by Florida courts as one whole agreement.” It asserted that the PCA modified the original contract to the extent stated, and that the PCA “is meaningless and unintelligible outside the context of the parties’ contract” and could not stand on its own as an enforceable contract. It argued that the PCA was “related” to the original contract and was therefore subject to the arbitration clause. It cited Beaver Constr. Co., Inc. v. Lakehouse, L.L.C., 742 So.2d 159 (Ala.1999), which had not been cited at the hearing, as factually “very similar.” It asserted that the trial judge had overlooked “Florida’s strong public policy preference for arbitration requiring courts to resolve any doubts in favor of arbitration,” citing Nicor International Corp. v. El Paso Corp., 318 F.Supp.2d 1160 (S.D.Fla.2004). It argued that since the contractor had “elected to not seek arbitration by filing suit,” the contractor “cannot compel arbitration of Defendant’s counterclaims,” and that a footnote in the trial court’s order seemed to indicate that “all these contract matters are best resolved in the same forum.”

The contractor’s memorandum in opposition to the motion for reconsideration or rehearing argued that Beaver and OBS were both distinguishable, that the PCA was not a modification of the Contract, and that the mere reference in the PCA to the Contract was not sufficient to incorporate its terms, asserting that “[tjhere must be an express intent to incorporate,” citing Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657 (7th Cir.2002), and Kantner v. Boutin, 624 So.2d 779 (Fla. 4th DCA 1993). It argued that paragraph six of the PCA “certainly evinces an intent not to incorporate the arbitration provision into the Project Completion Agreement.”

The owner’s response asserted that the court had the authority to reconsider non-final orders at any time prior to the entry of a final order, and that the contractor “has not disputed this discretion.” It argued that modifications were explicitly included in the Contract by provision of the AIA general conditions, that the PCA met the AIA definition of a modification and was part of the Contract, and that the PCA was therefore subject to the broad arbitration clause of the Contract. It asserted that the main issue was not whether the PCA had incorporated the Contract, but whether it had modified the Contract, citing OBS and C & M Ventures v. Wolf, 587 So.2d 512 (Fla. 3d DCA 1991). It argued that the contractor’s efforts to distinguish Beaver based on chronology “fail to impeach its legal import” and that “[i]f anything, the chronology of the instant case weighs more heavily in favor of arbitration of Plaintiffs claim than do the facts in Beaver.” It asserted that paragraph eight of the PCA showed the intent of the parties to modify some of the terms of the Contract, and “provides the best evidence of the parties’ intent for the continued application of the dispute resolution process agreed to in the Contract.” It argued that “[ejquity and judicial economy, not to mention the language of the contract, demand that these claims — both Plaintiffs and Defendant’s — be resolved in the same forum, whether in arbitration or in circuit court, as Plaintiff elected.”

The trial court denied the motion for reconsideration without discussion. The owner filed a notice of appeal, asserting that an order granting a motion to dismiss a counterclaim based on a contractual right to arbitration “is, in substance, an order compelling arbitration,” citing U.S. Fire Ins. Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983), and Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., Inc., 824 So.2d 288 (Fla. 4th DCA 2002).

We find that the trial court erred as a matter of law in ruling that the Project Completion Agreement was a separate agreement from the original construction contract and that the contractor’s circuit court suit for breach of the Project Completion Agreement did not act as a waiver of the arbitration provision in the original construction contract. The challenged order is REVERSED, and the case is REMANDED to the trial court for further proceedings consistent with this opinion.

PADOVANO and POLSTON, JJ., concur.


text:
    Matthew WILSKY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1255.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Matthew Wilsky, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee; Rosa Carson, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Consistent with the Attorney General’s concession of error under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), we grant the petition for writ of certiorari, quash the lower court’s orders in this case, and remand for further proceedings on the merits of the petition for writ of mandamus.

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


author: WARNER, J.

text:
    Glen F. STRAUB, Palm Beach Polo & Country Club Property Owners Association, Inc., Burrell Industries, Inc., Tennis Lodges # 1 Condominium Association, Inc. and East Bungalows Homeowners Association, Inc., Appellants, v. VILLAGE OF WELLINGTON, TJ Palm Beach, Whiting Turner Contracting Company, Smith & Company, Inc. and Williams, Hatfield & Stoner, Appellees.
    No. 4D06-510.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellants.
    George P. Roberts, Jr., of Roberts, Reynolds, Bedard & Tuzzio P.A., West Palm Beach, for appellee Village of Wellington.
    Morris G. (Skip) Miller and John H. Pelzer of Ruden, McClosky, Smith, Schus-ter & Russell, P.A., West Palm Beach, for appellees TJ Palm Beach, Whiting Turner Contracting Company, Smith & Company, Inc. and Williams, Hatfield & Stoner.
   WARNER, J.

Appellants, Palm Beach Polo & Country Club Property Owners Association, Inc., and Glen Straub, challenge the final summary judgment holding that the Village of Wellington lawfully occupied an easement on which the appellants claimed a right. We affirm the summary judgment of the trial court.

When the Village of Wellington commenced the installation of a water main to serve the new Wellington Mall, Palm Beach Polo and Country Club Homeowners Association prevented its continuation by placing construction equipment on the property sited for the water main. Wellington filed suit seeking an injunction, claiming that it had a right to lay pipe in an easement dedicated to the public. In addition to suing Polo, Wellington also named Glen Straub as the owner of Polo, and two condominium associations who were alleged to be the current owners of the property encumbered by the easements where Wellington intended to lay the water main. The plat attached to the complaint contained a dedication of various easements, including one for utility easements which was dedicated in perpetuity for construction and maintenance of utilities. In addition, the plat stated that “[e]asements are for Public Utilities, unless otherwise noted.”

Polo generally denied the allegations of the complaint and contended that the easements were not dedicated to the County (and thus to Wellington) but were generally for the construction and maintenance of utilities such that the right of use of the easement inures to the-benefit of all utilities. Polo also filed a counterclaim for inverse condemnation, stating in part that it maintained property rights in the real property which was the subject of the lawsuit and Wellington had attempted to place significant utilities on the property in derogation of Polo’s rights.

After Polo voluntarily removed the construction equipment from the easement area, Wellington voluntarily dismissed its complaint. However, Polo amended its counterclaim to include the developer of the Wellington Mall and its contractors and sought relief against all counter-defendants for inverse condemnation, trespass on the case, and loss of use of easement.

Wellington moved for summary judgment and asserted the utility easement was dedicated to the public and Palm Beach County, and Polo had no legal or equitable interest in the utility easement, as the servient tenant was one of the condominium associations, not Polo. The trial court granted summary judgment, finding that the Limited Access and Utility Easement was dedicated to the public and Palm Beach County in perpetuity. It determined that Polo could not maintain its actions, because it did not own the land on which the easements are located, nor did it have a protectable interest in the easement.

Polo contends that an allegation in Wellington’s initial complaint regarding the ownership of the property creates a disputed issue of fact and precludes summary judgment. The complaint stated that the utility easement shown on the plat is dedicated to the public and to Palm Beach Polo. However, we view that allegation as a legal conclusion contained within the complaint which is insufficient to raise a disputed issue of fact. See Fla. Power Corp. v. Silver Lake Homeowners Ass’n, 727 So.2d 1149, 1150 (Fla. 5th DCA 1999); Jewett v. Leisinger, 655 So.2d 1210, 1212 (Fla. 4th DCA 1995) (construction or interpretation of easements is a matter of law).

Moreover, we have previously held that a complaint is not admissible into evidence to prove or disprove a fact in issue. See Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So.2d 4, 5 (Fla. 4th DCA 1980). The rationale behind this rule is that the complaint is seen as merely a tentative outline of the pleader’s positions. Id. In this case, the statement in the complaint appears to be a mistake, as throughout the litigation Wellington has claimed exactly the opposite conclusion as to the ownership of the property, namely that the easement was in favor of Palm Beach County, not Palm Beach Polo.

Although Polo raises similar issues with respect to two affidavits and their effect of raising disputed issues of fact, we likewise reject these arguments. The language of the easement is clear, and the affidavits cannot render it ambiguous. The easement in question where Wellington was installing the water main was not dedicated to Palm Beach Polo but to Palm Beach County. Where the language in a deed is clear and certain in meaning, there is no room for judicial construction of the language or interpretation of the words used. Walters v. McCall, 450 So.2d 1139, 1142 (Fla. 1st DCA 1984).

We affirm as to all issues raised.

STEVENSON, C.J., and TAYLOR, J., concur.


author: HAZOURI, J.

text:
    BOATFLOAT, LLC, a Florida Limited Liability Company, Appellant, v. CENTRAL TRANSPORT INTERNATIONAL, INC., a Michigan corporation, Appellee.
    No. 4D06-834.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Ronnie Adili and Robert A. Sweetapple of Sweetapple, Broeker, Varkas & Sosin, P.A., Boca Raton, for appellant.

      Duane A. Daiker and Ernest J. Marq-uart of Shumaker, Loop & Kendrick, LLP, Tampa, for appellee.
   HAZOURI, J.

BoatFloat, LLC, appeals the trial court’s denial of its motion to quash service of process and vacate default judgment. We reverse, holding that the service of process on BoatFloat was legally insufficient.

Appellee, Central Transport International, Inc. (Central Transport), filed a complaint, alleging breach of contract, open account, and account stated, against BoatFloat on July 27, 2005. BoatFloat’s registered agent was Daniel Vinnik. Process server Charles Benebe filed an Affidavit of Service with the trial court. The Affidavit of Service stated that on August 11, 2005 at 2:00 p.m., Benebe attached the summons and complaint with exhibits to a conspicuous place outside Vinnik’s residence. Specifically, Benebe noted:

8/11/2002 2:00 pm AFTER NUMEROUS ATTEMPTS TO SERVE MR. VINNIK, IT WAS OBVIOUS THE SUBJECT WAS CONCEALING HIMSELF INSIDE THE UNIT TO AVOID SERVICE OF PROCESS IN THIS MATTER. THE SECURITY GUARD OF THE BUILDING CONFIRMED THE SUBJECT LIVES AT THE ADDRESS. ON A FEW OF THE SERVICE ATTEMPTS, THE GUARD CONFIRMED THE SUBJECT WAS UPSTAIRS IN HIS UNIT, BUT THERE WAS STILL NO ANSWER AT THE DOOR. ON TODAY’S DATE, THE SERVER HEARD NOISES IN THE UNIT AND READ THE CONTENTS OF THE CASE OUTLOUD [sic] TO THE SUBJECT INSIDE THE UNIT AND INFORMED THE SUBJECT THE PAPERS WERE BEING POSTED TO THE DOOR.

Central Transport moved for default with the clerk, citing BoatFloat’s failure to serve any paper on Central Transport or file any paper in the action. The clerk determined that default was not applicable because of improper service as to BoatF-loat, and , directed Central Transport to motion the trial court for a default. Central Transport filed a motion for default by the court, which the trial court granted. Subsequently, BoatFloat filed a motion to quash service of process and vacate default judgment, claiming insufficient service of process. BoatFloat attached an affidavit by Vinnik to its motion, in which Vinnik averred that he was not home on August 11, 2005 at 2:00 pan., because.his calendar indicated he was at a customer meeting.

After a hearing, the trial court denied BoatFloat’s motion to quash service of process and vacate default judgment.

“[T]he standard of review for an order denying a motion to vacate a default judgment is abuse of discretion.” Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264, 1265 (Fla. 4th DCA 2003) (citing George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA 2000) (on rehearing)).

The crux of BoatFloat’s argument on appeal is that service of process by posting the complaint and summons on the door of Vinnik’s address was insufficient. A party may serve process on a limited liability company by serving its registered agent at the agent’s street address. See § 608.463(l)(b), Fla. Stat. (2005). Generally, service on the registered agent is accomplished by personal delivery of the process to the registered agent. See § 48.031(l)(a), Florida Statutes (2005). Section 48.031(l)(a) provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

“[Sjtrict compliance with service of process procedures is required.” Baraban v. Sussman, 439 So.2d 1046, 1047 (Fla. 4th DCA 1983) (citing Electro Eng’g Prods. Co. v. Lewis, 352 So.2d 862 (Fla.1977)). “The burden of proof to sustain the validity of service of process is on the party seeking to invoke the jurisdiction of the court.” Henzel v. Noel, 598 So.2d 220, 221 (Fla. 5th DCA 1992) (citing Carlini v. State Dep’t of Legal Affairs, 521 So.2d 254 (Fla. 4th DCA 1988)).

However, Central Transport argues in response that a court may find effective service, in the absence of strict compliance, where a defendant seeks to evade service. Central Transport cites three cases for this proposition: Dowd Shipping, Inc. v. Lee, 354 So.2d 1252 (Fla. 4th DCA 1978); Liberman v. Commercial Nat’l Bank of Broward County, 256 So.2d 63 (Fla. 4th DCA 1971); and Olin Corp. v. Haney, 245 So.2d 669 (Fla. 4th DCA 1971).

In Lee, a deputy sheriff went to a residence to effect service on a husband and wife. He was unable to gain access to the house because an outer gate was locked. The deputy called on the house telephone and the wife answered and identified herself. After the deputy explained his purpose, the wife responded that her husband was out of town and she refused to accept service. Then, the deputy told the wife that she was served and that he would leave copies of all papers attached to the gate. Lee, 354 So.2d at 1252. This court concluded that “[t]he purpose of service of process was accomplished....” Id. at 1253 (citing Haney v. Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971)).

In Liberman, the defendant ran into his house and closed the door upon seeing the process server approach. Frustrated by the defendant’s conduct, the process server left a copy of the process and complaint in the mailbox, drove around the block and parked where he could observe the defendant’s residence. Then, the process server observed the defendant come out of his home, go to the mailbox, retrieve the papers, and return to his home. Li-berman, 256 So.2d at 63-64. This court determined that personal service was perfected on the defendant. Id. at 64.

In Haney, a deputy sheriff got out of his vehicle and identified himself to the defendant wife and a visiting friend, who were proceeding down the walkway of the defendants’ home. The defendant wife ran back to the front door, yelling “No, No!” The deputy sheriff went to the front door, which had been closed, identified himself and read the summons in a loud voice. Then, he advised in a loud voice that he was leaving a copy of the complaint and summons for the defendant husband, and that he was leaving a copy of the complaint and summons with the defendant husband, who was apparently also home at the time, as service upon the defendant wife. The next day, when the visiting friend returned to the defendants’ home, she found the papers on the front doorstep, and took them inside to the defendant husband. Haney, 245 So.2d at 670. This court concluded that service of process should not have been quashed with respect to the defendant wife, noting:

Under the present facts, however, it is our opinion that the deputy sheriff made a sufficient delivery of the papers to [the defendant wife] to effect valid service of process by personal delivery. Normally, where service is to be made by personal deliveryt,] the papers must be delivered into the hand or onto the person of the one to be served. Where, however, the person to be served flees from the presence of the process server in a deliberate attempt to avoid service of process, the delivery requirement of ... section 48.031, F.S.A., ... may be satisfied if the process server leaves the papers at a place from which such person can easily retrieve them and takes reasonable steps to call such delivery to the attention of the person to be served.

Id. at 670-71 (citing Roth v. W.T. Cowan, Inc., 97 F.Supp. 675 (E.D.N.Y.1951); Haney v. Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971)).

As BoatFloat correctly argues, the instant case is distinguishable from Lee, Liberman, and Haney. Here, Benebe testified that the condo security guard did not call Vinnik’s residence to see if anyone was present. Benebe never saw Vinnik on the day he delivered the summons and complaint, nor any other days he attempted to serve process. Contrary to Central Transport’s claim, the security guard did not confirm that Vinnik was home. Rather, he told Benebe that Vinnik should be home after looking outside the condominium, presumably at the parking lot.

This case is more analogous to Henzel v. Noel, 598 So.2d 220 (Fla. 5th DCA 1992), and Cullimore v. Barnett Bank of Jacksonville, 386 So.2d 894 (Fla. 1st DCA 1980). In Henzel, a process server attempted service twice. Then, he placed a copy of the summons and complaint under the defendant’s door and later mailed a copy of the documents to the residence. Henzel, 598 So.2d at 221. As in the instant case, the plaintiff argued that the defendant had deliberately attempted to avoid service of process. In distinguishing Lee, Liberman, and Haney, the court concluded:

It is clear that service of process on [the defendant] did not meet the requirements of section 48.031 because the papers were not given to [the defendant] himself or anyone fifteen years or older who resided with [the defendant]. Moreover, there was absolutely no evidence that [the defendant] or anyone else was present in the residence when the papers were placed under the door. In all the cases relied on by [the plaintiff], there was affirmative evidence that someone was present inside the residence at the time the process papers were delivered: the process server saw Mr. and Mrs. Haney and Mr. Liberman, and Mrs. Lee identified herself to the server on the phone.

Henzel, 598 So.2d at 222; see also Schupak v. Sutton Hill Assocs., 710 So.2d 707, 709 (Fla. 4th DCA 1998) (finding service insufficient where “there was no evidence to show that appellant or anyone eligible to accept service on his behalf was present inside the apartment at the time the process server was there, nor to show that appellant attempted to frustrate service of process in any manner beyond residing in a doorman-staffed apartment”).

In Cullimore, a deputy sheriff went, to the defendant’s residence, identified herself, read the summons and complaint in a loud voice, and then attached the summons to the door. At a hearing on the motion to quash service of process, the deputy sheriff testified that she tried on several previous occasions to effect service on the defendant, and had left cards asking the defendant to call her, but received no calls. She talked to neighbors and they verified that the defendant lived in .that home. The deputy sheriff testified further that she heard noises inside the home which stopped when she knocked on the door. No one came to the door. The deputy sheriff radioed the dispatcher to telephone the defendant. The dispatcher did so and advised the deputy sheriff that the defendant identified herself and said she was too busy to answer the door. Cullimore, 386 So.2d at 894-95. After disregarding the testimony of what the neighbors and dispatcher told the deputy sheriff on hearsay grounds, the court ruled that the evidence was insufficient to establish that original process was properly served. Id. at 895. The court noted that “[t]he deputy did testify that she heard noises inside the house, but there is no evidence that she knew those noises were made by a person,. ...” Id.

Central Transport did not meet its burden of proof to sustain the validity of service of process. Unlike Lee, Liberman, and Haney, there is no affirmative evidence to show that someone was present inside Vinnik’s residence at the time Be-nebe delivered the process papers, or that Vinnik was trying to evade service of process. Benebe testified that he never saw Vinnik when he went to his condo. There was no testimony that Benebe or the security guard made any attempt to call or contact Vinnik. Further, although Benebe heard a small dog barking and noises inside the apartment, which stopped when he knocked on the door, he could not identify the noises as human noises.

Based on the foregoing, the trial court abused its discretion in denying BoatF-loat’s motion to quash service of process and vacate default judgment. We reverse and remand for the trial court to quash service of process and vacate the default judgment entered against BoatFloat.

Reversed and Remanded with Directions.

STONE and SHAHOOD, JJ., concur.

      . The defendants in Haney were a husband and wife.

      . This Haney case involved the same factual circumstances as the Haney explained above, but addressed an order denying a motion to quash personal service of process as to the defendant husband. Apparently, the deputy sheriff also observed the husband in the doorway of the residence when the defendant wife and visiting friend emerged. As discussed above concerning the wife, this Court found service on the husband to be proper as well. Haney, 245 So.2d at 673-74.


text:
    RAPID SETTLEMENTS, LTD., Appellant, v. Kimberly DICKERSON, et al., Appellee.
    No. 4D05-4643.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Scott J. Topolski and H. Michael Muniz of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellant.
    Jeffrey M. Landau of Shutts & Bowen LLP, Miami, and Katherine A. Scanlon and Peter J. Vodola of Pullman & Comley, LLC, Hartford, CT, for appellees Symetra Life Insurance Company and Symetra Assigned Benefits Service Co.
   WARNER, J.

Rapid Settlements (“Rapid”) appeals a final order in which the trial court denied its petition to approve the proposed transfer of structured settlement payment rights from Kimberly Dickerson to Rapid Settlements in exchange for a lump sum payment. We affirm, as the structured settlement agreement contains an anti-assignment provision, which we find valid and enforceable.

The structured settlement payment rights at issue in this case arise out of a 1989 settlement agreement entered into by Kimberly Dickerson, which resolved a personal injury action filed by Ms. Dickerson and her husband. In July 2005, Rapid filed a petition with the circuit court in which Rapid requested court approval of a proposed transfer of periodic payments under Ms. Dickerson’s structured settlement agreement. Pursuant to the proposed transfer, Ms. Dickerson sought to transfer to Rapid certain payments under the structured settlement. Symetra, the structured settlement obligor and annuity issuer, filed an objection to the transfer as an interested party. The trial court denied Rapid’s petition, prompting this appeal.

Transfers of structured settlement payment rights are regulated by statute and court approval is required before a transfer may go forward. See § 626.99296, Fla. Stat. (2005). Section 626.99296(3)(b), Florida Statutes, provides that if a proposed transfer would contravene the terms of the structured settlement and an interested party objects to the transfer, “the court may grant, deny, or impose conditions upon the proposed transfer which the court deems just and proper given the facts and circumstances and in accordance with established principles of law.”

The structured settlement agreement under which the payments to Ms. Dickerson are due contains an anti-assignment provision which states that Ms. Dickerson did not have the “power” to assign the periodic payments:

Said payments cannot be accelerated, deferred, increased or decreased by the Releasing Parties and no part of the payments called for herein or any assets of the Released Parties or their assign-ee, are to be subject to execution or any legal process for any obligation in any manner, nor shall the Releasing Parties have the power to sell or mortgage or encumber same, or any part thereof, nor anticipate the same, or any part thereof, by assignment or otherwise.

As a rule of construction, a prohibition against assignment of a contract will prevent assignment of the contractual duties, but does not prevent assignment of the right to receive payments due — unless the circumstances indicate the contrary. Aldana v. Colonial Palms Plaza, Ltd,., 591 So.2d 953, 955 (Fla. 3d DCA 1991). Where the contract prohibits assignment of payments, it will be enforced. See Troup v. Meyer, 116 So.2d 467 (Fla. 3d DCA 1959). The language of this contract expressly prohibits the assignment of payments.

Where, as here, a proposed transfer contravenes the terms of the structured settlement agreement, Florida’s Structured Settlement Protection Act expressly permits the trial court to deny the proposed transfer. See First Providian, L.L.C. v. Evans, 852 So.2d 908, 909 (Fla. 4th DCA 2003) (“Section 626.99296(3)(b) authorizes a court to deny the transfer of a structured settlement if it would ‘contravene the terms’ of the settlement.”). Therefore, the trial court did not err in denying Rapid’s petition.

We affirm on all other issues raised.

STEVENSON, C.J., and TAYLOR, J., concur.


author: STONE, J.

text:
    Nomar SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3954.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Russell J. Williams, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Appellant entered a guilty plea reserving the right to appeal an order denying his motion to suppress. We reverse.

The trial court found that the totality of circumstances, as interpreted by an experienced officer, established a reasonable suspicion to stop. We accept the trial court’s determination of fact and review, de novo, “whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion.... ” Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004).

The arresting officer, working on another case in the parking lot of a motel at approximately 7:00 p.m., noticed Appellant “pass[] up a lot of open parking spaces and [go] to the backside of the lot.” A minute or so later, he observed Appellant flash his headlights as another vehicle entered the parking lot. The other vehicle parked right beside Appellant’s vehicle. Appellant got out of his vehicle, spoke briefly with the other driver, and returned to his vehicle. Appellant soon returned to the passenger side of the other vehicle. The parking lot was well lit and very open. The area was not known for narcotics transactions. Both vehicles then left the parking lot. The officer followed, stopped Appellant, and directed another unit to stop the other vehicle.

The arresting officer testified to his extensive experience and training involving street crime, surveillance, and drug transactions. He was not sure what, if anything, passed between Appellant and the occupant of the other vehicle, but concluded that he had witnessed a hand-to-hand drug transaction. He acknowledged, however, that it could have been an innocent transaction. Appellant introduced the dispatch tape of the incident. On the tape, the officer states, “I don’t know if that’s a hand-to-hand or what the story is.”

Whether an officer has the reasonable suspicion needed to justify an investigatory stop, based on the objective facts, depends on the totality of the circumstances observed in light of the officer’s experience. Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002). Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). However, the “bare suspicion” of criminal activity is not sufficient. Id.

It is not absolutely necessary that an officer observe drugs change hands in order to support a reasonable suspicion. Walker v. State, 846 So.2d 643, 645 (Fla. 2d DCA 2003). Supporting circumstances may include whether the officer can see either drugs or money being transferred, the officer’s narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site. Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995) (deeming an officer observing a known drug dealer participate in a hand-to-hand transaction in a location where police had made thirty or forty drug arrests in the past sufficient to establish a reasonable suspicion that an illegal activity had occurred). ■

Cases in which reasonable suspicion did not exist where an officer witnessed a hand-to-hand transaction but was unable to see an exchange of currency or drugs include Belsky, 831 So.2d at 805 (finding where an officer observed a hand-to-hand transaction in a high crime area, but was unable to see what, if anything, was exchanged and was unable to identify either man as a known drug dealer, the officer did not have a reasonable suspicion to conduct an investigatory stop); Walker, 846 So.2d at 645 (finding reasonable suspicion not supported where an officer, with little experience, while patrolling in a high drug area, observed a hand-to-hand transaction between two men, but was unable to make out any object); Messer v. State, 609 So.2d 164, 165 (Fla. 2d DCA 1992) (holding an officer conducting surveillance in a high crime area who witnessed arm movement between suspects did not have reasonable suspicion).

In State v. Isaacs, 578 So.2d 523 (Fla. 4th DCA 1991), we upheld a trial court decision that an officer did not have a founded suspicion of criminal activity where he observed Isaacs drive, slowly, through a high crime neighborhood at 8:30 p.m., circle, and return. A man on a bicycle then approached Isaacs’ car. The man pointed to a nearby location with .a cemetery on both sides of the street. Isaacs drove there and was joined by the man on the bicycle. There were no street lights, and the officer was unable to observe the transaction. ■

We have considered Stevens and Finizio v. State, 800 So.2d 347 (Fla. 4th DCA 2001), and deem them distinguishable as based on founded suspicion. In Stevens, the officers observed a pickup truck leaving the area of a city supply yard at 11 p.m. on a rainy Sunday night. The truck was on a dirt road next to the enclosure and the officers saw fresh tire tracks leading from the gate. It was unusual to see a truck there in those circumstances. Copper wire had been stolen from that yard on a weekend a month earlier and the officers observed coils of wire laid haphazardly on the truck bed. Finizio involved a DUI arrest following a traffic stop for erratic driving, where the defendant’s car jumped a curb, sped up, and then came to a sudden stop. In both cases, there was an adequate factual basis to support the trial court findings,

Here, notwithstanding that the arresting officer saw a transaction of some kind, he did not see an exchange of drugs or currency. We conclude that under the totality of the circumstances, there was not a reasonable suspicion to justify a stop. The transaction did not occur in a location known for drug transactions or arrests, the participants were not known to the officer, and neither the area nor the parties were under surveillance for this purpose. In this case, the only factors relied on by the officer to interpret the subsequent conduct of the participants were their chosen location within the parking lot and the flashing of the lights. Had the same conduct occurred at another location in the lot, or had Appellant simply waved to get the other driver’s attention rather than blinking his lights, the meeting would not have attracted attention. While the officer believed that he was acting on “more than a hunch” in making the stop, we conclude that parking at this location, accompanied by the blinking of car lights and followed by an apparent exchange of something, otherwise completely innocent acts, are not, alone, sufficient to support a reasonable and founded suspicion that a crime had occurred, notwithstanding that the observation was by an experienced officer.

Therefore, it was error to deny the motion to suppress. Appellant’s conviction is reversed and we remand for further proceedings.

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


text:
    Roosevelt McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3376.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Roosevelt McCall, appeals his conviction and sentence for possession of a firearm by a convicted felon. McCall raises two issues on appeal: (1) whether the trial court erred in allowing evidence of collateral crimes, and (2) whether the trial court erred in instructing the jury that voluntary intoxication is not a defense. Because we agree with McCall that the trial court erred in allowing evidence of collateral crimes, we reverse and remand for a new trial. We do not reach the second issue.

After a night of drinking in a bar, McCall decided to sleep in an unlocked vehicle. Two Florida Highway Patrol troopers came upon McCall in the back seat of that vehicle, sleeping with a jacket covering his torso. As the troopers ordered McCall to show his hands, he complied and the jacket fell off his body to the floorboard. The troopers took McCall into custody when he exited the vehicle. Shortly thereafter, the troopers recovered a firearm on the floorboard underneath the jacket.

McCall was charged by information with one count of possession of a firearm by a convicted felon and one count of carrying a concealed firearm. Before trial commenced, McCall made two motions in li-mine to preclude the state from proffering testimony relating to crimes not alleged in the information; i.e., that McCall was arrested in a stolen vehicle, and that the serial numbers on the firearm were obliterated. The trial court granted these motions in limine.

At trial, Craan Pierre Louis (Louis), the owner of the vehicle in which McCall was found, testified that when he opened his house door to go to work on the morning in question, he called out to his wife and said “[y]ou know what, somebody take my car.” McCall objected and moved for a mistrial, arguing that Louis brought up the fact that the car was stolen. The trial court overruled the objection. Later in Louis’s testimony, the state asked him how many days his vehicle had been missing. McCall objected and again moved for a mistrial. The trial court overruled the objection and denied the motion for a mistrial. McCall objected and moved for a mistrial for the third time when Louis referred to the vehicle as “stolen” on cross-examination. Again, the trial court overruled the objection and denied the motion.

Next, the state called a firearms examiner with the Broward Sheriffs Office crime laboratory to testify as a firearms expert. The expert testified that the serial number on the gun was “obliterated.” McCall objected and moved for a mistrial based on the court’s ruling on his motion in limine. The state admitted that it forgot to tell the expert not to mention the serial number. The trial court deferred ruling on the motion for mistrial.

McCall renewed his motions for mistrial after the state rested, and again at the close of all the evidence. After noting that it was not an easy decision, the trial court upheld its prior ruling denying the motion for mistrial because of testimony that the car was stolen. The trial court noted specifically: “Looking into that totality of circumstances, the Court finds that the probative value outweighs its prejudicial effect, and that’s why the motion for mistrial is denied.” The trial court similarly denied the motion for mistrial based on the expert’s testimony about the serial number being obliterated.

The jury found McCall guilty of one count of possession of a firearm by a convicted felon and not guilty of carrying a concealed firearm. McCall filed a motion for new trial, alleging that the trial court erred in admitting evidence of other, uncharged crimes, despite granting two motions in limine to prevent its admission. The trial court denied the motion and sentenced McCall to thirty years in prison as a habitual felony offender.

McCall argues that the trial court erred in allowing the testimony that the vehicle was missing or stolen, and that the firearm had obliterated serial numbers, despite granting motions in limine to exclude this testimony. He claims that the testimony was impermissible evidence of collateral crimes or bad acts, as it was irrelevant and highly prejudicial.

“A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Essex v. State, 917 So.2d 953, 956 (Fla. 4th DCA 2005) (citing Johnston v. State, 863 So.2d 271, 278 (Fla.2003)). However, this discretion is limited by the rules of evidence. Essex, 917 So.2d at 956 (citing LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001)).

“The erroneous admission of collateral crimes evidence is presumptively harmful.” Ross v. State, 913 So.2d 1184, 1188 (Fla. 4th DCA 2005) (citing Miller v. State, 804 So.2d 609, 612 (Fla. 3d DCA 2002) (quoting Czubak v. State, 570 So.2d 925, 928 (Fla.1990))). “Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997) (citing Czubak). Evidence of collateral crimes or bad acts is admissible only when relevant to prove a material fact at issue. § 90.404(2)(a), Fla. Stat. (2005). Moreover, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2005).

In the instant case, the facts that McCall was arrested in a stolen vehicle and that the firearm had obliterated serial numbers had no relevance to the charges of possession of a firearm by a convicted felon or carrying a concealed firearm. Further, the probative value of this evidence was substantially outweighed by the danger of unfair prejudice to McCall. The record reveals three separate instances of references to the car being either stolen or missing, and one instance of a reference to an obliterated serial number on the firearm. This evidence may have led the jury to believe that McCall was guilty of several crimes for which he was never charged.

As to the testimony concerning the missing/stolen vehicle, the state argues in response that the evidence was relevant and admissible in that it was inextricably intertwined with the charged offenses. See Shively v. State, 752 So.2d 84, 85 (Fla. 5th DCA 2000) (citations omitted) (advising that “[e]vidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘inextricably intertwined’ with the underlying crime”). Evidence is inextricably intertwined with the underlying crime if the state is unreasonably hampered, without the evidence, in explaining how the charged crime came to light. Id. Here, the evidence that the car was stolen, or even missing, is not inextricably intertwined with the underlying crime. Absent this evidence, the state would not be unreasonably hampered in explaining how the charged crime came to light. All the jury needed to hear was that the vehicle in which McCall was found was not his, and that it belonged to Louis, who did not know McCall and did not own the jacket or the gun. Thus, it was not necessary or appropriate that the jury hear that the vehicle was missing or stolen from Louis, in order to explain how McCall ended up in the vehicle.

As to the testimony concerning the obliterated serial number, the state claims that it was not prejudicial error because it was isolated. See Levi v. State, 867 So.2d 647, 648-49 (Fla. 5th DCA 2004) (finding that admission of detective’s testimony referencing discussion with defendant of “other cases pending” was not prejudicial error; statement was isolated, inadvertent, and not focused upon, state did not intentionally elicit information from detective, and error would have required no more than a curative instruction, which defendant did not request). Although the state’s argument is compelling on this point because the statement was isolated, nonetheless, the statement was irrelevant and its prejudicial effect outweighed its probative value, particularly in light of the admission of the evidence that the vehicle was stolen. Cumulatively, this evidence paints a picture of McCall as a thief, which is not a crime he was charged with in the instant case.

Additionally, when we consider the cumulative effect of this improperly admitted evidence, we cannot conclude that it was harmless beyond a reasonable doubt, or that it did not impact the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

Reversed and Remanded for a New Trial.

STONE and SHAHOOD, JJ., concur.

      . The parties stipulated that McCall was a convicted felon.

      . Although one of these references was elicited by McCall on cross-examination, McCall did not invite the error. See Czubak, 570 So.2d at 928. The owner volunteered that the car was stolen, McCall's counsel did not ask why the owner's car was missing, and McCall’s counsel likely could not have anticipated the owner’s answer, particularly in light of the State's admonition to its witnesses not to mention that the car was stolen. Id. Further, there is no evidence that McCall opened the door to evidence of collateral crimes by misleading the jury. See Bozeman, 698 So.2d at 631.


text:
    Jekerrick R. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1958.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

GUNTHER, POLEN and SHAHOOD, JJ., concur.


text:
    Joshua WEBB, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-1316.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Howard M. Talenfeld of Colondy, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

We reverse and remand. See Webb v. Fla. Dep’t of Children & Family Servs., 939 So.2d 1182 (Fla. 4th DCA 2006).

KLEIN, SHAHOOD and MAY, JJ., concur.


author: TAYLOR, J.

text:
    Gary R. GRIFFITH, Appellant, v. Carol E. GRIFFITH, Appellee.
    No. 4D06-338.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellant.
    Howard Raab of Raab & Raab, Fort Lauderdale, for appellee.
   TAYLOR, J.

Gary R. Griffith (former husband) appeals an order finding him in contempt for non-payment of support and directing him to pay the attorney’s fees and costs of Carol E. Griffith (former wife), including some fees for litigating the amount of the fee and certain office overhead expenses.

We reverse the order finding the former husband in contempt, because the undisputed evidence did not establish willful non-compliance with his support obligations under the Agreed Final Judgment. Rather, the evidence showed that the former husband, whose consulting contract was cancelled, was consistently trying to generate business and heavily borrowing against assets to make the required payments. At most, the evidence showed that the former husband was $168.75 in arrears at the time he was held in contempt. By his calculations, the deficiency was only $7.75. In any event, his minimal noncompliance was not shown to be willful. See Chetram v. Singh, 937 So.2d 716 (Fla. 5th DCA 2006) (contempt for failure to pay support requires willful refusal to comply with the prior court order). The record, however, does support a finding that the former husband breached the marital settlement agreement, which was incorporated into the dissolution decree, by frequently failing to pay in a timely fashion. His breach led to the contempt proceedings and made him liable for attorney’s fees and costs under the terms of the agreement.

We also reverse the order awarding the former wife attorney’s fees for litigating the amount of the attorney’s fee, as this was essentially a contractual award of fees pursuant to the marital settlement agreement. See Mediplex Constr. of Fla., Inc. v. Schaub, 856 So.2d 13 (Fla. 4th DCA 2003) (holding that unless a contractual attorney’s fee provision specifically authorizes “fees for fees,” they are not awarda-ble).

Finally, we reverse the trial court’s cost judgments awarding the former wife her attorney’s non-recoverable overhead costs, i.e., photocopying, postage, parking at the courthouse, and Westlaw expenses. See Mitchell v. Osceola Farms Co., 574 So.2d 1162 (Fla. 4th DCA 1991) (holding that photocopy, postage, long-distance telephone calls, travel expenses, courier service, and surveillance film expenses were not taxable as costs); Bolton v. Bolton, 412 So.2d 72, 73 (Fla. 2d DCA 1982) (holding that office expenses of counsel are not recoverable as costs).

Reversed and Remanded

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


text:
    Jamie BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3456.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Jamie Bell, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We vacate our opinion filed March 9, 2005, which has been quashed by the Florida Supreme Court based on State v. Richardson, 915 So.2d 86 (Fla.2005), and replace it with the following opinion.

Jamie Bell appeals a trial court order which summarily denied his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of his claims one and three, reverse on claims two and five, and affirm claim four.

In claim two, Bell alleged ineffective assistance of his trial counsel for failure to call his sister, Felicia Bell, to testify in his defense. Appellant alleged that he told counsel where to contact his sister, but he did not specifically allege that she was available to testify at his trial. The trial court erred in summarily denying this otherwise legally sufficient claim, as it should have been denied with leave to amend to supply this required allegation. See Nelson v. State, 875 So.2d 579 (Fla.2004).

In claim four, Bell alleged that his habitual felony offender sentences were illegal under Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003); however, Richardson was quashed in State v. Richardson, 915 So.2d 86 (Fla.2005). The trial court did not err in denying relief on this claim.

Finally, on claim five, appellant alleged that his convictions for resisting arrest with violence and resisting arrest without violence violated double jeopardy, and that his convictions for resisting arrest with violence and battery on a law enforcement officer violated double jeopardy as well. Battery on a law enforcement officer and resisting arrest with violence are separate offenses. State v. Henriquez, 485 So.2d 414 (Fla.1986); Nelson v. State, 665 So.2d 382 (Fla. 4th DCA 1996). This refutes half of appellant’s double jeopardy challenge, leaving the claim as to his separate convictions for resisting arrest with violence and resisting arrest without violence. Appellant’s challenge on this claim was colorable. See Goodman v. State, 801 So.2d 1012 (Fla. 4th DCA 2001)(holding that defendant could not be convicted of both resisting arrest with violence and resisting arrest without violence arising out of continuous single episode involving the defendant’s attempt to avoid one arresting officer, and thus reversal of conviction of resisting arrest without violence was required). The State has argued in the trial court and here that those counts were for conduct separate and distinct from one another, but the trial court did not attach any portions of the record demonstrating this, so as to refute appellant’s claims on this point. Therefore, we reverse and remand the trial court’s summary denial on this claim, for either an evidentiary hearing or record attachments refuting the claim.

Consequently, we affirm the trial court’s summary denial of claims one, three and four, but reverse the trial court’s summary denial of claims two and five, and remand for an evidentiary hearing or for further proceedings as otherwise stated herein.

KLEIN, TAYLOR and MAY, JJ., concur.


author: MAY, J.

text:
    Charly COLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-200.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Benedict P. Kuehne and Susan Dmitrov-sky of Sale & Kuehne, P.A., Miami and Kendal Coffey of Coffey & Wright, LLP, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

This case involves the third of three defendants charged with multiple crimes arising out of a home invasion robbery. This defendant raises many of the same issues raised by his co-defendants in their separate consolidated appeals and additionally raises issues specific to his case. This court resolved the common issues in Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006). For the reasons expressed in Garzón, we reach the same result on the common issues. We find no merit in the additional issues raised in this appeal. We therefore affirm all convictions except for the defendant’s conviction of armed kidnapping in Counts V and VI, which we reverse and remand for a new trial.

We also certify conflict with Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006), and Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005).

Affirmed in Part and Reversed in Part and Remanded.

POLEN and KLEIN, JJ., concur.


text:
    William BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-507.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Butler’s judgment and sentence, but, as in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    JPG ENTERPRISES, INC., a Florida corporation, Appellant, v. Donna Meeks EVANS, Appellee.
    No. 4D06-2250.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Raymond M. Masciarella, II, North Palm Beach, for appellant.
    Peter J. Sosin of Sweetapple, Broeker, Varkas & Sosin, Boca Raton, for appellee.
   PER CURIAM.

JPG Enterprises, Inc. (“JPG”), timely appeals a non-final order denying its motion to compel arbitration. Because the parties did not agree to arbitrate the claims in the plaintiffs complaint, we affirm.

In March 2004, Donna Evans signed a contract for the purchase of a home to be built by JPG on property owned by Evans. Ultimately, Evans sued JPG, asserting a claim for breach of contract and a claim under Florida’s Deceptive and Unfair Trade Practices Act. In her claim for breach of contract, Evans alleged that JPG failed to build the house according to the terms and specifications of the contract and cited numerous alleged failures in the construction of the home. JPG moved to compel arbitration pursuant to a warranty provided with the house. The trial court denied JPG’s motion.

We find the legal analysis set forth in Grosseibl v. J. Chris Howard Builders, Inc., 739 So.2d 1255 (Fla. 5th DCA 1999), to be applicable to this case. In Grosseibl, the Fifth District held that a home purchaser’s claims against the builder were not covered by an arbitration provision in the warranty agreement where the provision addressed only claims “arising out of or relating to” the warranty and where the warranty expressly excluded coverage for the issues addressed by the plaintiffs complaint. In this case, the warranty would not cover all of the failures in construction alleged in the plaintiffs complaint. Moreover, just as in Grosseibl, the arbitration provision at issue here is placed in a warranty agreement that is independent from the contract for purchase and sale, and the arbitration provision applies only to disputes arising out of or related to the warranty. Thus, the trial court correctly denied the motion to compel arbitration.

Affirmed.

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


text:
    STATE of Florida, Appellant, v. JABLONSKY, Appellee.
    No. 4D06-1705.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.

      Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

Affirmed. See State v. Beach, 592 So.2d 237 (Fla.1992); Hlad v. State, 585 So.2d 928 (Fla.1991); Kirby v. State, 765 So.2d 723 (Fla. 1st DCA 1999).

SHAHOOD, GROSS and HAZOURI, JJ., concur.


text:
    Stanley J. BARTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2012.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence for aggravated battery. We agree with the defendant that the trial court committed fundamental error by instructing the jury that the defendant’s use of force was not justifiable if he was attempting to commit, committing, or escaping after the commission of aggravated battery. This instruction would only have been appropriate had the defendant been engaged in some other forcible felony. In the absence of such an independent felony, the instruction is circular and impermissi-bly negates the defendant’s claim of self-defense. Jackson v. State, 935 So.2d 107 (Fla. 4th DCA 2006). The defendant is entitled to a new trial.

Reversed and Remanded.

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