author: NORTHCUTT, Judge.

text:
    John DeMARTINO and Judy DeMartino, Appellants, v. Lisa SIMAT, as Personal Representative of the Estate of Gary Simat; Windsor Group; and Enterprise Leasing, Appellees.
    No. 2D05-6189.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      K. Jack Breiden of Breiden & Associates, Naples, for Appellants.
    Michael A. Tonelli and John W. Boult of Barr, Murman & Tonelli, P.A., Tampa, for Appellee Enterprise Leasing.
    Terrence L. Lavy of Vernis & Bowling of Southwest Florida, P.A., Fort Myers, for Appellee Windsor Group.
    No appearance for Appellee Lisa Simat as Personal Representative of the Estate of Gary Simat.
   NORTHCUTT, Judge.

John and Judy DeMartino are plaintiffs in a personal injury suit arising from an automobile accident. The DeMartinos sued the driver of the other vehicle, Gary Simat, and the owner of the vehicle, Enterprise Leasing. Prior to filing the lawsuit, Mrs. DeMartino had given a release to Simat’s insurer, Windsor Group, in exchange for its $25,000 policy limits. On the basis of that release, Enterprise sought and obtained a partial summary judgment on Mrs. DeMartino’s personal injury claim against it. Thereafter, the DeMartinos were granted leave to amend their complaint to add a count against Windsor for reformation of the release. However, the circuit court then dismissed the reformation count with prejudice. The DeMartinos appeal both the partial summary judgment and the order dismissing the reformation count. As to the former order, we must dismiss the appeal for lack of jurisdiction. As to the latter order, we reverse.

The DeMartinos’ complaint against Simat and Enterprise was in four counts. In count one, Mr. DeMartino sought damages for personal injury from Simat and Enterprise. In count two, Mrs. DeMarti-no sought damages for personal injury from Enterprise only. Count three was a loss of consortium claim by Mr. DeMartino against Enterprise only, and count four was a loss of consortium claim by Mrs. DeMartino against Simat and Enterprise. Enterprise filed a third-party claim against Simat seeking indemnification.

By affirmative defense, Simat and Enterprise maintained that Mrs. DeMartino’s personal injury claim and Mr. DeMartino’s loss of consortium claim were barred by the release Mrs. DeMartino had given to Windsor. Mrs. DeMartino argued that the release was only intended to apply to Si-mat and was never intended to settle her personal injury claim against Enterprise. On motion for partial summary judgment, the circuit court ruled that Mrs. DeMarti-no’s personal injury claim against Enterprise, count two of the original complaint, was barred by the release.

We do not have jurisdiction to review this partial summary judgment because the claim it resolved and the counts that remain pending involve the same parties and arose from the same transaction. The counts are legally and factually related, such that the order resolving count two is not a final appealable order. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Accordingly, we dismiss the appeal insofar as it pertains to the partial summary judgment on count two.

After the adverse summary judgment on count two, the DeMartinos were allowed to amend their complaint to allege a claim for reformation of the release based on mutual mistake, adding Windsor as a party for the first time. After the amendment, Enterprise moved to dismiss this claim (although Enterprise was not a party to the reformation count), and Windsor adopted Enterprise’s motion. They asserted that the reformation count was barred under the law of the case established by the partial summary judgment on count two, and the circuit court agreed. Its order dismissing the reformation count is final for purposes of appeal because it totally disposed of the case as to Windsor, and we have jurisdiction to review it. See Fla. R.App. P. 9.110(k).

A motion to dismiss tests the legal sufficiency of a complaint to state a cause of action; it does not turn on issues of ultimate fact. Holland v. Anheuser Busch, Inc., 643 So.2d 621, 624 (Fla. 2d DCA 1994). Therefore, in ruling on a motion to dismiss, the court is confined to the four corners of the complaint and must take as true all well-pleaded, material facts. Temples v. Fla. Indus. Constr. Co., 310 So.2d 326 (Fla. 2d DCA 1975); Gennaro v. Leeper, 313 So.2d 70 (Fla. 2d DCA 1975). The court may not grant a motion to dismiss based on an affirmative defense that does not appear , on the face of the complaint. Swinney v. City of Tampa, 707 So.2d 765 (Fla. 2d DCA 1998). The order dismissing the DeMartinos’ reformation count was improper for those reasons.

Moreover, the law of the case doctrine simply was not applicable in this case. That doctrine applies only to rulings on questions of law that were actually presented and considered in a prior appeal Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983). Other than the dismissal of a previous attempt to appeal a nonfinal, nonap-pealable order, there have been no appellate court rulings on questions of law in this case.

Accordingly, we reverse the dismissal of the DeMartinos’ claim for reformation, and we remand for further proceedings.

Dismissed in part; reversed in part; remanded.

SALCINES and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Seth NEELEY as Personal Representative of the Estate of Amanda Neeley, Petitioner, v. CW ROBERTS CONTRACTING, INCORPORATED and Wilson Brandon Lewis, Respondents.
    No. 1D06-6675.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.
    Granville E. Petrie, Jr., Tallahassee, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

Petitioner seeks certiorari review of an order of the circuit court denying his motions to compel discovery. As we have repeatedly observed, orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm. See Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995); Esman v. Bd. of Regents, 425 So.2d 156 (Fla. 1st DCA 1983). Inasmuch as any error by the circuit court will be readily remediable on appeal, this case presents no basis for departing from this general rule. Accordingly, the petition for writ of certiorari is DENIED.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Keith COGGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6552.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Keith Coggins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    EXPLORER INSURANCE COMPANY, an Arizona corporation, Appellant, v. Jeanne Van BOCKEL, Appellee.
    No. 2D06-1822.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
    Michael R. Seward of Ligman Martin, P.L., Miami, for Appellant.
    Thomas E. Mooney of Mooney Colvin, P.L., Orlando, for Appellee.
   PER CURIAM.

This appeal presents the very narrow issue of whether the trial court erred in awarding a contingency risk multiplier on the attorney’s fees it awarded the plaintiff, Jeanne Van Bockel, after her insurer, Explorer Insurance Company, settled her uninsured motorist claim. Because there was no legal basis to award a multiplier in this case, we reverse.

Van Bockel was injured in an auto accident while she was insured with Explorer. After Van Bockel determined that the alleged tortfeasor had no insurance, she filed a claim for uninsured motorist (UM) benefits with Explorer. When Explorer refused to tender the $10,000 UM policy limits, Van Bockel filed suit for breach of contract against Explorer.

During the course of the proceedings, Van Bockel served Explorer with two proposals for settlement pursuant to section 768.79, Florida Statutes. Explorer did not accept either proposal. In addition, Van Bockel filed a Civil Remedy Notice with the Department of Insurance pursuant to section 624.155, Florida Statutes (2003), Florida’s bad faith statute, alleging that Explorer had failed to attempt to settle her claim in good faith. Explorer denied the allegations of Van Bockel’s Civil Remedy Notice and did not pay her within the sixty-day cure period provided in section 624.155(3)(d).

After a trial in which liability was hotly contested, the jury determined that the alleged tortfeasor was 100 percent at fault and returned a verdict in favor of Van Bockel for $127,800. Shortly thereafter, Explorer filed a motion to set aside the verdict and a motion for new trial. In response, Van Bockel filed a motion seeking leave to amend her complaint to add a bad faith action against Explorer under section 624.155. However, before the trial court heard or ruled on any of these motions, the parties settled the case.

After the settlement was reached, Van Bockel filed a motion for attorney’s fees, including a contingency risk multiplier, pursuant to sections 768.79 and 624.155(4). Explorer conceded that Van Bockel was entitled to an award of attorney’s fees pursuant to section 768.79. However, Explorer did not agree that Van Bockel was entitled to a multiplier under section 768.79 or to either attorney’s fees or a multiplier under section 624.155(4). Following a hearing, the trial court awarded Van Bockel attorney’s fees with a multiplier; however, the trial court’s order did not state the statutory basis for the award of either attorney’s fees or the multiplier.

In this appeal, the parties agree that Van Bockel was entitled to an award of attorney’s fees, but not a multiplier, under section 768.79. See Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 (Fla.2003) (holding that an award of a multiplier is improper under, section 768.79). The parties also agree that if Van Bockel was entitled to attorney’s fees under section 624.155, the trial court could properly award a multiplier as well. See Inacio v. State Farm Fire & Cas. Co., 550 So.2d 92, 97 (Fla. 1st DCA 1989) (approving the use of a multiplier to attorney’s fees awarded on actions under section 624.155). Thus, the crux of the parties’ dispute is whether Van Bockel was entitled to an attorney’s fee award under section 624.155 that would support an award of a multiplier. We agree with Explorer that she was not.

It is axiomatic that to be entitled to a fee award pursuant to a particular statutory provision, a litigant must bring a cause of action that falls within the purview of that statute. Thus, in order to be entitled to an award of attorney’s fees pursuant to section 624.155, Van Bockel had to actually bring a bad faith action against Explorer under section 624.155. Because she never brought a bad faith action against Explorer under section 624.155, Van Bockel was not entitled to an award of attorney’s fees or a multiplier under section 624.155(4) as a matter of law.

It is true that Van Bockel’s bad faith claim did not accrue until she had prevailed in the underlying action against the tortfeasor. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991). It is also true that Van Bockel filed a motion for leave to amend her complaint to add a bad faith action against Explorer shortly after the jury returned its verdict in the underlying litigation. However, Van Bockel never took any steps to have the court hear and rule on her motion for leave to amend. Because leave of court was required before Van Bockel could properly file the amended complaint, see Fla. R. Civ. P. 1.190(a), and because Van Bockel never received leave of court, the amended complaint asserting the bad faith action against Explorer pursuant to section 624.155 was a legal nullity. See Starvest U.S., Inc. v. Polfer, 694 So.2d 875, 876 (Fla. 2d DCA 1997) (holding that an amended complaint filed without leave of court when leave of court is required is a nullity); Warner-Lambert Co. v. Patrick, 428 So.2d 718, 719 (Fla. 4th DCA 1983) (“It is not a large or difficult procedure for the pleader to ask the court for leave to file a supplemental pleading. And what is the consequence when the pleader omits to do so and merely presents the pleading to the Clerk? It is our opinion that the pleading is a nullity. As such the court and the litigants are entitled to ignore it and to determine the controversy on the basis of existent properly filed pleadings.”). Thus, Explorer cannot be liable for attorney’s fees or a multiplier under section 624.155 because no action was ever properly brought pursuant to that statute.

Because Van Bockel was not entitled to a multiplier under either section 768.79 or 624.155 as a matter of law, the trial court erred in awarding a multiplier as part of the attorney’s fee award. Accordingly, we reverse the award of the multiplier and remand for recalculation of the attorney’s fees awarded to Van Bockel.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ„ and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4159.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Michael Williams, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant was convicted in 2003 of robbery while wearing a mask. He asserts under rule 3.800(a) that his sentence is illegal because it was enhanced twice, once because the jury found he wore a mask, section 775.0845, Florida Statutes (1999), and again as an habitual felony offender. Appellant’s argument that section 775.0845 is an enhancement, and not a reclassification of his crime, is without merit. Roberts v. State, 923 So.2d 578 (Fla. 5th DCA 2006) (no double jeopardy where habitual felony offender enhancement was applied to an offense which was reclassified due to the use of a weapon under section 775.087(1)). Cabal v. State, 678 So.2d 315 (Fla.1996), which appellant cites, has been superseded by the 1997 amendment to section 775.0845, which clarified the legislative intent to reclassify. Sumpter v. State, 838 So.2d 624 (Fla. 4th DCA 2003); McDonald v. State, 714 So.2d 643 (Fla. 3d DCA 1998).

Affirmed.

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


text:
    Elizabeth A. OSTUNI, as Personal Representative of Anthony John Ostuni, deceased, Appellant, v. MEINEKE DISCOUNT MUFFLER SHOPS, INC., a Foreign Corp., William R. Ufer, Sr., William R. Ufer, Jr., Rex-Douglas Corporation, a Florida corporation, Gordon Cade, Carole Colarusso d/b/a Transmission King, B.K. Capitol Group, Inc., and State Auto Insurance Companies, a Florida corporation, Appellees.
    No. 4D05-2531.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Howard T. Sutter of Boyd & Sutter, P.A., Jacksonville, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, and Richard M. Gomez of Law Offices of Roland Gomez, Miami, for appel-lee Meineke Discount Muffler Shops, Inc., a foreign corporation.
    Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca Raton, for appellees William R. Ufer, Sr. and Rex-Douglas Corporation, a Florida corporation.
    Fred L. Fulmer of Law Offices of Fred Land Fulmer, P.A., Fort Lauderdale, for appellees William R. Ufer, Jr., Rex-Douglas Corporation, a Florida corporation, and Gordon Cade.
    James G. Salerno of Peterson Bernard, Fort Lauderdale, for appellee State Auto Insurance Companies, a Florida corporation.
   PER CURIAM.

Anthony Ostuni was shot and killed during a robbery at a Meineke Discount Muffler Shop where he worked as a mechanic. His widow, Elizabeth Ostuni, filed for and received workers’ compensation benefits. Later, she filed a wrongful death suit against the employer (a Meineke franchise), the Meineke franchisor, a father and son connected to the franchise (the Ufers), and various employees of the franchise.

To plead around the problem of workers’ compensation immunity, one iteration of the complaint alleged Anthony Ostuni’s status as a business invitee of the franchise, which was not true. The lawsuit alleged multiple theories of liability against many defendants: that the franchisee was the actual or apparent agent of the franchisor; that the franchisee was the actual or apparent agent for the Ufers; that the Ufers were the actual or apparent agents for the franchisee; that the franchisor was directly negligent under the franchise agreement; that the Ufers were negligent as franchisees or directly negligent under the franchise agreement; and that the Uf-ers, the franchisor, and franchisees were negligent in causing Ostuni’s wrongful death.

The trial court granted the defendants’ motion for summary judgment and a motion filed by an insurer in a related declaratory judgment action. We affirm in all respects, finding that the non-insurer ap-pellees were “other person[s]” who acted in a “managerial or policymaking capacity” within the meaning of section 440.11(1), Florida Statutes (1998). To the extent that some of the causes of action rely on the vicarious liability of those acting through agents with workers’ compensation immunity, then no cause of action exists under Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995), which holds that if an apparent “agent cannot be held liable, neither can the principal, because there is nothing to impute.” Ostuni relies upon Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587 (Fla.1982), but we find that case to be inapplicable because it predates the 1988 revision of section 440.11(1).

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Heathcliff PETERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1930.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Rehearing Denied Feb. 28, 2007.

      Heathcliff Peters, in proper person. Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850 (providing two years from the date the conviction and sentence become final to seek postconviction relief); Coppola v. State, 938 So.2d 507 (Fla.2006) (holding that Heggs v. State, 759 So.2d 620 (Fla.2000), is not newly discovered evidence for postcon-viction relief purposes); Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000) (holding that scoresheet errors do not render a plea illegal unless the sentence exceeds the statutory maximum).


author: SUAREZ, J.

text:
    Claude LAROCHE, Appellant, v. Francois NEHAMA, Appellee.
    No. 3D06-1367.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.

      Ruden, McClosky, Smith, Schuster & Russell, John H. Pelzer and Brigid F. Cech (Fort Lauderdale), and Norman S. Segall, Miami, for appellant.
    Samuel A. Persaud, Coral Gables; Spencer A. Emison, for appellee.
    Before RAMIREZ, SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Claude Laroche (“Laroche”) appeals an order denying his motion to dissolve lis pendens filed by Francois Nehama (“Ne-hama”). We affirm the trial court’s order.

Laroche and Nehama entered into a Lease/Option to Purchase Agreement on Laroche’s home. Paragraph 32 of the agreement contains an option to purchase allowing Nehama to exercise the option prior to the May 29, 2006 termination of the agreement. A notarized Memorandum of Option was recorded with the clerk of the court of Miami-Dade County, Florida. On March 29, 2005, Laroche informed Ne-hama that, for certain reasons not relevant to the present issue, he considered the agreement to be terminated. Laroche then filed a complaint for declaratory relief requesting the trial court enter an order declaring the lease/option agreement null and void ab initio, declaring Nehama’s right to exercise the option to purchase null and void, and canceling the recorded Memorandum of Option. Nehama answered and filed a counterclaim for breach of contract and for specific performance of the option to purchase. At the same time, Nehama filed a lis pendens on the property. Laroche filed the present motion to dissolve lis pendens which was denied by the trial court.

One of the purposes of a lis pen-dens is to put possible future purchasers on notice that there could be a problem with title to the property. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925). If the initial pleading in a lawsuit is based upon a duly recorded instrument, the petitioner is entitled to maintain a lis pendens on the property in question as a matter of right. See Levine v. Arvida Corp., 405 So.2d 1370 (Fla. 4th DCA 1981). The Petitioner may be allowed to maintain a lis pendens that is not based on a duly recorded instrument if, at an evidentiary hearing, the petitioner can establish a fair nexus between the petitioner’s claimed legal equitable ownership of the property and the dispute contained in the pleadings filed by the petitioner. Chiusolo v. Kennedy, 614 So.2d 491 (Fla.1993). Nehama’s dispute with Laroche arises out of the option agreement to purchase property in Miami-Dade County, Florida. The counterclaim filed by Nehama claims breach of that option agreement and requests the court grant specific performance of the option to purchase. Therefore, we affirm the trial court’s order as the counterclaim states a fair nexus between Nehama’s claimed legal equitable ownership of the property and his claim for specific performance. Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182 (Fla. 3d DCA 1994).

We remand for the court trial court to hold the required evidentiary hearing to determine the amount of bond.

Affirmed and remanded with instructions.


author: DAVIS, Judge. VILLANTI, Judge,

text:
    Christina ALBRITTON, v. Bob WHITE, Sheriff of Pasco County, Florida, Respondent.
    No. 2D06-5172.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
    Bob Dillinger, Public Defender, Clear-water, and Donald W. Hendry, Assistant Public Defender, Dade City, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Christina Albritton seeks a writ of habe-as corpus. We previously granted her request on November 22, 2006, by unpublished order, stating than an opinion would follow. In the November 22, 2006, order, we directed that Albritton be released on her own recognizance for the reasons explained below.

Albritton was arrested on a charge of possession of cocaine. On September 15, 2006, the public defender was appointed to represent Albritton and filed a written plea of not guilty on her behalf pursuant to Florida Rule of Criminal Procedure 3.160. Albritton was released on her own recognizance. Subsequently, the State filed an information formally charging Albritton, and a notice scheduling the arraignment for November 6, 2006, was filed with the trial court. Albritton did not appear for her arraignment.. Based on a new policy established by the trial court in a memorandum dated August 2, 2006, the trial court revoked Albritton’s pretrial release and issued a capias for her arrest with a $10,013 bond. Albritton was later arrested on the capias.

In its August 2, 2006, memorandum, the trial court indicated that it was discontinuing its existing practice of allowing defendants to waive their presence for arraignments and status reviews, specifically stating that “[cjommencing October 9, 2006, all defendants and counsel will be expected to be present for arraignments and status reviews.” The policy was subsequently amended to apply only to arraignments. The trial court’s new policy was designed to promote the orderly administration of the trial court’s docket by ensuring that defendants had an opportunity to meet with counsel prior to arraignment and by eliminating requests for continuances because counsel had not had an opportunity to meet with his or her client.

In her petition, Albritton argued that the trial court’s new policy was a “blanket procedure overriding rule 3.160 in all cases.” Rule 3.160(a) provides in pertinent part that “counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.” The supreme court has held that, although this portion of rule 3.160(a) is directory, a trial judge still has the inherent discretion to control his or her court so long as he or she does not abuse it. See State ex rel. Evans v. Chappel, 308 So.2d 1, 3 (Fla.1975).

The trial judge may inherently provide such reasonable predicates and procedures in the use of the not guilty plea in writing by counsel, as may be reasonable and proper to facilitate the administration of the court so long as they are consistently applied and do not arbitrarily deny to a defendant the privilege afforded by the rule of filing a written not guilty plea by his duly authorized counsel.

Id.

In its response, the State, relying on Cruz v. State, 822 So.2d 595 (Fla. 3d DCA 2002), argued that the trial court can require the personal presence of the defendant in court, notwithstanding the waiver, if there is good reason to do so and both defendant and counsel are “clearly advised” that personal presence is required. The State argued that both Albritton and counsel were properly advised that Albrit-ton’s presence was required, that the trial court’s policy facilitates the administration of justice, and that the policy does not arbitrarily deny Albritton the privilege afforded by the rule of filing a written plea of not guilty by her duly authorized counsel.

However, there is nothing in the record before this court to support the State’s argument that Albritton was “clearly advised” that her presence was required at arraignment. It does not appear that there were any circumstances particular to Albritton that would justify ordering her to appear at the arraignment after counsel filed a written plea of not guilty pursuant to rule 3.160. Additionally, as we previously stated in Tellis v. State, 779 So.2d 352, 354 (Fla. 2d DCA 2000), “[rjefusal to honor a written plea of not guilty would never be approved as a standard procedure by a trial court and an exception to the right to enter a written plea of not guilty should be employed only under the most unusual circumstances.” Therefore, we find that the trial court’s blanket policy, as enunciated in the August 2, 2006, memorandum, ordering all defendants and counsel to appear at arraignment arbitrarily denied Albritton the privilege afforded by rule 3.160. Accordingly, we granted Albritton’s petition for writ of habeas corpus and ordered her immediate release.

WALLACE, J„ Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I fully concur in this opinion but write to suggest that, without an amendment to the rules of criminal procedure, a trial judge’s options are limited in terms of enforcing a goal such as the one here, seeking to ensure greater attorney-client contact. Moreover, without some particularized reason to do so, however laudable the goal may be, I do not believe this is a topic for a trial court to meddle in on a “blanket” basis, especially not at the arraignment. Court appearances serve the dual purpose of providing for the orderly administration of the case and ensuring a defendant’s right to be present at key phases of the proceedings. Except under limited circumstances, the rules do not forbid a defendant from waiving his right to be present. The trial judge’s inherent interest in the orderly administration of the case here was based only upon a generic assumption that attorney-client contact in the court’s presence at the arraignment will lead to fewer continuances and, hence, an earlier resolution of the case. However, this assumption, unsupported by any empirical data or showing of particularized necessity, does not constitute a “good reason” under the case law permitting the trial court to override Albritton’s rule 3.160(a) waiver right. Thus, I certainly agree with the majority that even if an individual notice was sent to Albritton, under the circumstances of this case, habeas relief is still proper.

Furthermore, a blanket approach presupposes that every attorney is providing insufficient representation or needs nudging by the court. The idea contemplated by the trial judge, if it is to be pursued, is best addressed at the pretrial conference, provided an order to appear is served on a defendant and counsel that indicates a defendant must be present and itemizes a particularized reason why a waiver will not be accepted. At that time, the trial court could inquire as to a defendant’s satisfaction with counsel and the frequency of their contact, etc. The reality is that, in any but the simplest of cases, meaningful attorney-client contact (and dialogue with the prosecutor) is more likely to occur at this stage, rather than at an unwieldy arraignment docket.

      . There is nothing in the record before this court which indicates that counsel was not present at arraignment.

      . See Fla. R.Crim. P. 3.180(a) ("Presence of Defendant”).


author: WELLS, Judge.

text:
    The STATE of Florida, DEPARTMENT OF REVENUE on behalf of Gladys ORTEGA, Appellant, v. Leonel ORTEGA, Appellee.
    No. 3D05-1037.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Bill McCollum, Attorney General, and William Branch, Assistant Attorney General, Tallahassee, for appellant.
    Roetzel & Andress and Robert G. Menzies, Naples, and Pam Ellen Hudson, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   WELLS, Judge.

The Department of Revenue (DOR) on behalf of Gladys Ortega appeals from an order granting a credit to Leonel Ortega on his child support obligation. We reverse.

On March 30,1989, a final judgment was entered dissolving Leonel and Gladys Ortega’s marriage. That judgment, among other things, obligated Mr. Ortega to pay an unallocated $100 per week in child support for the parties’ two children, providing:

The Respondent, LEONEL ORTEGA is to pay $100.00 a week directly to the Central Depository as Child, Support payments by means of an Income Deduction Order.

In August 1993, Mr. Ortega was held in contempt for his failure to satisfy the child support obligations ordered in the final judgment of dissolution of marriage and ordered to “continue to timely pay $100 per week, for child support.” In August 1998, Mr. Ortega was again found to be in arrears, this time in the amount of $15,747.29, and ordered to continue to pay the $100 in unallocated weekly child support.

Although the parties’ eldest child had turned eighteen the year before this last order was entered, Mr. Ortega neither sought to modify the final judgment to terminate his support obligation for this child nor did he otherwise seek to reduce the amount that he owed in support for both children. The August 1998 order was not appealed.

Approximately six years after this order was entered, Mr. Ortega was notified by the DOR that it was going to suspend his driver’s license for non-payment of child support. In response, Mr. Ortega sought a credit against the arrearages he owed, pointing to the fact that his eldest daughter had attained majority years earlier. The request was granted:

Over the States objection the Court grants the Obligor credit at the rate of $50.00 per week back to the date that the child, ..., born on October 10, 1979 became emancipated on October 10, 1997. The State argues that no modification has been filed by the Obligor and that the underlying order is not allocated. Based on a recalculation of child support at the rate of $50.00 per week (instead of $100.00 per week) back to October 10, 1997, the Obligor is entitled to a credit of $19,400. (388 weeks time $50.00 per week) against the arrears of $21,575.72 as of March 11, 2005. The Obligor is entitled to further credit of $2,677.00 for health insurance provided for the children. After applying the credit, the arrears are determined at zero as of March 11, 2005.

It is well established that a trial court may, in its discretion, award lump sum support for two or more children, rather than award a separate amount of support for each child, and that the parent paying such unallocated support “has the duty to petition the court to reduce the amount when one child attains majority.” State v. Segrera, 661 So.2d 922, 923 (Fla. 3d DCA 1995); Hammond v. Hammond, 492 So.2d 837, 838 (Fla. 5th DCA 1986) (confirming that a trial court may award lump sum child support for several children and when it does so, the payor parent must “petition for an order reducing the amount when one child attains majority”). It is equally well settled that because support obligations become the vested rights of the payee and vested obligations of the payor at the time the payments are due, child support payments are not subject to retroactive modification:

This Court has a long history of support for effective child support collection procedures. More than forty years ago, in Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938), we addressed a noncustodial father’s claim that his past due child support payments were not vested rights in the payee because the trial court had the authority to change “orders touching the care, custody and maintenance of the children of the marriage.” Id. at 446, 182 So. at 763 (quoting § 4993, C.G.L.1927). We rejected that claim and found that “such sums constitute vested property rights of which the party cannot be deprived except by due process of law.” Id., 182 So. at 763 (citing Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938)). However, we also noted that, “by virtue of the general power of a court to control its own processes the court may, for strong equitable reasons, growing out of radically changed circumstances, refuse to enforce its decree by issuance of execution or by contempt or ne exeat proceedings against a party in default.” Id., 182 So. at 763. The Second District Court of Appeal applied these principles in its decision in Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980), and noted that the trial court “has no authority to cancel or reduce a past-due installment of child support,” id. at 1265....

State ex rel. Pittman v. Stanjeski, 562 So.2d 673, 678 (Fla.1990); Segrera, 661 So.2d at 923 (“child support payments may only be modified prospectively and are not subject to retroactive modifications”).

While the Florida Supreme Court has recognized an exception to the general prohibition against retroactive modification where no further support obligation exists because a child has attained majority, Stanjeski 562 So.2d at 678, that exception does not apply to the instant unallocated award.

In McClung v. McClung, 760 So.2d 244, 246 (Fla. 3d DCA 2000), this court concluded that a payor parent was entitled to a retroactive modification of support from the time one child attained majority because we construed the parties’ agreement (incorporated into a final judgment) not to provide for unallocated support. In doing so, we were careful to distinguish those authorities' that refused to retroactively modify an unallocated support award from the case then before us involving what we determined to be an allocated award:

The Department asserts that the trial court erred in its construction of the parties’ agreement. It maintains that the child support was unallocated based upon the language of paragraph 15 of the parties’ agreement which states that: “The Husband shall pay to the Wife, for the support and maintenance of the minor children of the parties, the sum of $400 per month.” This provision, the Department asserts, is virtually identical to language utilized in other cases which have found the awarded child support to be unallocated. See, e.g., State, Dep’t of Health and Rehabilitative Servs., Child Support Enforcement v. Whaley, 624 So.2d 367 (Fla. 3d DCA 1993); State, Dep’t. of Health and Rehabilitative Servs., Office of Child Support Enforcement ex rel. Worthy v. Carwell, 524 So.2d 484 (Fla. 2d DCA 1988); Hammond v. Hammond, 492 So.2d 837 (Fla. 5th DCA 1986).
We disagree.
Based upon our de novo review of the parties’ agreement, we believe that paragraphs 15 and 18 must be construed together in order to give full effect to each. See Durham Tropical Land Corp. v. Sun Garden Sales Co., 106 Fla. 429, 138 So. 21 (1931). When that is done, we conclude, as did the trial court, that the parties intended for the child support payments to be allocated between each child such that upon the occurrence of one of the qualifying events listed in paragraph 18, the former husband would only be obligated to pay the former wife $200.00 per month for the remaining child. We are compelled to reach this conclusion because paragraph 18 speaks in terms of the former husband’s financial obligation to each child individually as opposed to the children collectively. For that reason, the cases relied upon by the Department are readily distinguishable. See, e.g., Whaley, 624 So.2d at 367 (child support unallocated where parties agreed that former husband would pay former wife $1,500 per month as child support for the parties’ two children and agreement further provided that “said child support payments shall continue until the youngest child shall have attained the age of 18 years, dies, marries or becomes emancipated.”); Carwell, 524 So.2d at 484 (trial court erred in modifying child support following “the death of one of two children for whom the father had acknowledged paternity where the final judgment of paternity specified that the child support would continue until the minor children die, marry, become self-supporting or emancipated”); Hammond, 492 So.2d at 837 (child support unallocated where the final judgment of dissolution ordered the former husband to pay “ ‘as child support the sum of $182.00 per week, ... for the support and maintenance of the minor children ... until such time as both minor children become 18 years of age[.]’ ”).

McClung, 760 So.2d at 245-246 (footnotes omitted).

Similarly, the Fourth District in Porro v. Porro, 864 So.2d 1205 (Fla. 4th DCA 2004), remanded for determination on the merits, a payor parent’s request for retroactive modification of support premised on majority of one or more of the children subject to the support award. There, as in McClung, the award was allocated.

These decisions recognize that an unallocated award, unlike an allocated award, does not terminate by operation of law when a child attains majority but terminates at a later (or other) date either agreed upon or ordered:

DOR argues that the trial court lacked authority to retroactively terminate child support beyond the date the former husband filed his motion for modification. We agree. Generally, a parent is not legally bound to support his or her children beyond the age of 18, unless the parent agrees to do so in a binding contract or unless one of the exceptions in section 743.07, Florida Statutes, applies. Madson v. Madson, 636 So.2d 759 (Fla. 2d DCA 1994); Hunter v. Hunter, 626 So.2d 1069 (Fla. 1st DCA 1993); Carbonell v. Carbonell, 618 So.2d 326 (Fla. 3d DCA 1993). However, when the trial court, in its discretion, orders a lump sum support payment for more than one child, the obligor parent has the affirmative duty to seek a reduction as each child reaches majority. Dept. of Health and Rehabilitative Services v. Beckwith, 624 So.2d 395, 399 (Fla. 5th DCA 1993); State, Dept. of Health and Rehabilitative Services, Worthy v. Carwell, 524 So.2d 484, 485 (Fla. 2d DCA 1988); Hammond v. Hammond, 492 So.2d 837, 838 (Fla. 5th DCA 1986). The parent must continue to make full support payments until he or she successfully obtains modification, and the payments vest when they are due. State, Dept. of Revenue, Child Support Enforcement v. Segrera, 661 So.2d 922 (Fla. 3d DCA 1995).
In the instant case the final order of dissolution provided for a lump sum support payment for the four children. The former husband therefore had the duty to petition the court for modification as each child reached majority and was required to make payments in full until the court granted his requests. Because the payments vested when they were due, the trial court could not retroactively terminate support to a date earlier than 1 December 1995 absent a showing of extraordinary circumstances. Segrera; Kutz v. Fankhanel, 608 So.2d 873 (Fla. 5th DCA 1992); Dept. of Health and Rehabilitative Services v. Atterberry, 578 So.2d 485 (Fla. 5th DCA 1991). “The fact that one child has reached majority is not a sufficient compelling circumstance.... ” Hammond, 492 So.2d at 839.

Dep’t of Revenue on Behalf of Hall v. Hall, 699 So.2d 1036, 1037-1038 (Fla. 5th DCA 1997) (footnote omitted).

Here, as in Hall, in place is an unmodified final judgment with an unallocated child support obligation of $100 per week which by its terms is not subject to reduction simply because one of the children attained majority, married or died. In this case, no petition for modification has been filed nor has any evidence been taken on which the trial court could determine whether modification of this unallocated support award “was appropriate and in the best interest of the remaining minor child.” Hammond, 492 So.2d at 839. As was explained in Hammond, “there are cases in which the support awarded for several children is not sufficient in amount, but is all that the spouse can afford to pay. Therefore, to require an equal division for each child and an automatic reduction in the amount upon each child reaching majority would be inadequate in such cases.” Id. at 838. Moreover, “some expenses pertaining to child support remain constant regardless of the number of children involved, so to automatically reduce the child support when one child reaches majority by his or her portion of the whole could create an inequitable result.” Id. at 839. Under the circumstances of this case, no automatic credit, amounting to a retroactive modification of this unallocated support award, was justified. See Puglia v. Puglia, 600 So.2d 484, 485 (Fla. 3d DCA 1992) (confirming that “[cjredits towards child support arrearages have the appearance of a retroactive modification, and if so, constitute error”).

Accordingly, the order under appeal granting Mr. Ortega a “credit” based on his eldest child having reached majority is reversed and the cause remanded for reinstatement of the arrearage award.

      . A hearing officer's recommended order, ratified by the court, provided:
      The Obligor shall pay $100.00, weekly for CHILD SUPPORT, commencing with the next regularly scheduled payment, until the minor child(ren) should die, many, become emancipated, or is/are otherwise no longer (a) dependent child(ren) pursuant to Sections 409.2554(2) and 743.07(2) Florida Statutes.

      . The agreement in Porro expressly authorized recalculation of the support obligation "upon any of the minor children reaching the age of majority, so that the apportionment of ... monthly payments towards support and arrearages may be determined." Porro, 864 So.2d at 1207.


text:
    Janis SCARLETT, Appellant, v. Elizabeth A. OUELLETTE, M.D., University of Miami, a private University d/b/a/ University of Miami School of Medicine, and, The Public Health Trust of Dade County d/b/a Jackson Memorial Hospital, Appellee.
    Nos. 3D05-704, 3D05-116.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.

      Richard B. Rosenthal, Miami; Joel S. Perwin, for appellant.
    Abadin Jaramillo Cook & Heffernan, and Erin E. Dardis, and Maria Isabel Hoelle, Miami, for appellees.
    Before GERSTEN, FLETCHER, and CORTINAS, JJ.

       Judge Cortiñas did not participate in oral argument.

   PER CURIAM.

Janis Scarlett (“Scarlett”), appeals an adverse final judgment, and the trial court’s award of attorney’s fees and costs. We affirm.

Scarlett suffered from carpal tunnel syndrome in her right hand and sought treatment from Dr. Elizabeth Ouellette, (“Dr. Ouellette”). Dr. Ouellette performed several tests on Scarlett and recommended carpal tunnel release surgery on Scarlett’s right wrist. After surgery, Scarlett’s right arm abnormally swelled.

Scarlett brought a medical malpractice action against Dr. Ouellette, and Dr. Ouel-lette’s employers, the University of Miami School of Medicine, and the Public'Health Trust of Dade County d/b/a/ Jackson Memorial Hospital (collectively “the defendants”). Scarlett alleged the defendants were negligent in the treatment of her carpal tunnel syndrome.

During discovery, both parties exchanged expert witness lists. The defendants listed Dr. L. Andrew Koman, (“Dr. Roman”), as an expert to testify on the issues of standard of care and entitlement to damages. Seven months prior to trial, defense counsel also produced Dr. Roman’s Independent Medical Evaluation (“IME”) report, which detailed his diagnosis.

Initially, Scarlett’s counsel tactically chose not to depose Dr. Roman because she thought there was a chance the case would settle. Then, one month prior to trial, she requested to depose Dr. Roman. In response, the defendants provided Scar-lett’s counsel with several options for scheduling Dr. Roman’s deposition. Scar-lett’s counsel rejected each date and waited until the eve of trial to finally depose Dr. Roman.

Scarlett’s counsel then moved in limine to exclude Dr. Roman’s opinion testimony that Scarlett’s swelling was a factitious, self-inflicted injury. The trial judge denied the motion finding that: (1) Dr. Roman’s IME report put Scarlett on notice of Dr. Roman’s testimony, and (2) that Dr. Roman’s testimony was neither a surprise nor prejudicial. The trial judge instructed defense counsel that Dr. Roman could not testify about any new information or any information outside of his report.

At trial, defense counsel called Dr. Roman as its expert witness. After defense counsel laid a proper foundation, Dr. Roman explained that he reviewed medical records, depositions, Scarlett’s physician’s IMEs, and his own IME. Upon reviewing this information, Dr. Roman opined that Dr. Ouellette’s treatment did not fall below the standard of care, and he believed that Scarlett’s injury was self-inflicted.

During questioning, defense counsel showed Dr. Roman photographs depicting a person who had abnormal swelling on her legs. Dr. Roman testified that he recognized the photographs as a depiction of a condition called self-infliction. Scar-lett’s counsel objected on relevancy and prejudice grounds. The trial judge overruled the objections, but gave the jury a limiting instruction, explaining that the photographs were only for demonstrative purposes and that they were not photographs of Scarlett.

On rebuttal, Scarlett’s counsel questioned their own expert, Dr. Ira Dushoff (“Dr. Dushoff’), about the very same photographs they objected to when Dr. Roman testified. Over the defendants’ objection, Dr. Dushoff expressed his opinion that the photographs were classic examples of a condition called elephantitis, and were not examples of self-infliction.

At the trial’s conclusion, the jury returned a defense verdict. The defendants then moved for attorney’s fees and sanctions because Scarlett lied about her education and work experience. This false testimony directly related to her economic loss claim. The trial court granted attorney’s fees and sanctions against Scarlett pursuant to sections 57.105 and 768.79, Florida Statutes (2004).

Scarlett raises five issues on appeal. The first two issues regarding voir dire and attorney’s fees were not properly preserved for appeal, and therefore, we affirm without further discussion. We address Scarlett’s remaining three issues.

Scarlett contends the trial court reversibly erred by: (1) allowing the defendants to present Dr. Roman’s “surprise opinion testimony” that the cause of Scarlett’s swelling was self-infliction; (2) allowing the defense to show irrelevant, prejudicial photographs without laying a proper predicate; and (3) not allowing Scarlett’s expert witness to rebut Dr. Roman’s testimony about self-infliction. We affirm.

Scarlett contends that the trial court should have excluded Dr. Roman’s testimony regarding self-infliction because the defendants failed to give notice that Dr. Roman would testify about the causation of Scarlett’s injury, and that Dr. Roman’s opinion “drastically” changed from his initial report. We disagree.

In order for the trial court to exclude a witness or a witness’ testimony from trial, the objecting party must establish that he or she was “surprised in fact” by the undisclosed witness or testimony. See Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981). The trial court must also determine whether the undisclosed witness’ testimony will prejudice the objecting party. Binger, 401 So.2d at 1314. When determining prejudice, the trial court should consider not only the adverse nature of the testimony, but also (1) whether the objecting party has the ability to cure the prejudice or, has independent knowledge of the existence of the testimony; (2) whether the calling party intentionally or in bad faith failed to comply with the pretrial order; and (3) whether this testimony caused disruption of the trial. Binger, 401 So.2d at 1314.

Here, the record completely refutes Scarlett’s contentions that they were unaware of the existence of this testimony. First, the defendants listed Dr. Roman’s name and the subject matter of his proposed testimony on the pretrial expert witness lists. Second, defense counsel gave Scarlett’s counsel a copy of Dr. Roman’s IME report seven months prior to the trial. This report included Dr. Roman’s opinion that Scarlett had non-physiologic pain and swelling, and that he needed to rule out factitious elements of the injury. Finally, Scarlett’s counsel discussed Dr. Roman’s diagnosis with him at his deposition prior to trial.

Additionally, there is no indication, let alone evidence, that the defendants intentionally or in bad faith failed to comply with the pretrial order. In fact, the defendants provided Scarlett’s counsel with several dates to take Dr. Roman’s deposition, and it was Scarlett’s counsel’s decision to wait until the eve of trial to actually take his deposition. Revealingly, everything Dr. Roman testified to at trial was based on information found within his IME report.

Further, Dr. Roman was not the only expert who believed that self-infliction was a possible cause of Scarlett’s swelling. Scarlett’s own expert, Dr. Saberski, also stated that factitious swelling was one of his differential diagnoses. Thus, the self-infliction defense was not a new defense, and was or should have been well-known to Scarlett before trial.

Since Scarlett’s counsel clearly had notice that Dr. Roman would testify, and that his testimony would be based on information in the IME report, we find that this testimony was not a surprise, prejudicial, or a disruption of the trial. The trial court clearly did not abuse its discretion in denying the motion in limine and allowing Dr. Roman’s expert testimony on self-infliction. Allstate Ins. Co. v. Mazzorana, 731 So.2d 38 (Fla. 4th DCA 1999)(exeluding the testimony of an expert witness for a discovery violation is a drastic remedy which courts should only use in the most compelling of circumstances).

The second issue involves whether the trial court abused its discretion in permitting photographs, which depicted abnormal swelling of another person’s extremities. Scarlett’s counsel contends that the photographs were not relevant, and that counsel did not lay the proper predicate to introduce the pictures. We disagree and find that the trial court properly admitted the photographs as demonstrative exhibits.

Photographs are admissible if they are properly authenticated and relevant to prove a material fact in the lawsuit. § 90.401, Fla. Stat. (2004); Bauldree v. State, 284 So.2d 196 (Fla.1973). Photographs are also admissible to illustrate or explain the testimony of a witness. Straight v. State, 397 So.2d 903 (Fla.1981); Vargas v. State, 751 So.2d 665 (Fla. 3d DCA 2000). Further, any witness with knowledge that the photograph is a fair and accurate representation may lay the necessary foundation for admission of a photograph. City of Miami v. McCorkle, 145 Fla. 109, 199 So. 575 (1940); Bryant v. State, 810 So.2d 532 (Fla. 1st DCA 2002).

Here, the photographs were relevant to show the jury an example of a factitious, self-inflicted injury. The photographs helped illustrate the defense’s theory that Scarlett’s abnormal swelling was the result of self-infliction rather than the result of a breach of care by Dr. Ouellette.

Dr. Roman set the necessary foundation by testifying that he had previously observed swelling similar to Scarlett’s and had diagnosed it as a self-inflicted injury. He then used the photographs as a demonstrative exhibit to assist him in explaining to the jury what self-inflicted swelling looks like. Specifically, he used the photograph to show the jury the sharp line of demarcation that appears with swelling from self-inflicted injuries. This was a proper use of a demonstrative exhibits. Metro. Dade County v. Zapata, 601 So.2d 239 (Fla. 3d DCA 1992).

We determine that the trial court did not abuse its discretion by allowing the defendants to use a demonstrative exhibit because the photographs were relevant and did not create any unfair prejudice. See State v. Duncan, 894 So.2d 817 (Fla.2004). Moreover, the trial judge properly gave the jury a limiting instruction before counsel showed the photographs. Zapata, 601 So.2d at 245.

Finally, Scarlett contends that the trial court abused its discretion in limiting the scope of Dr. Dushoff s testimony. We disagree. On rebuttal, Scarlett’s counsel asked Dr. Dushoff to comment directly on the credibility of Dr. Roman’s opinion that the photographs depicted self-infliction. The court sustained the defendants’ objection but allowed Scarlett’s counsel to rephrase the question and ask Dr. Dushoff whether the photographs were consistent with elephantitis. Dr. Dushoff stated that the photographs were a classic example of elephantitis.

After reading Dr. Dushoff s testimony in whole, the record does not show that the court improperly limited his testimony. See Enter. Leasing Co. v. Sosa, 907 So.2d 1239 (Fla. 3d DCA 2005); Carver v. Orange County, 444 So.2d 452 (Fla. 5th DCA 1983)(A trial judge can restrict an expert from commenting on the sufficiency or credibility of the opposing expert’s evidence or testimony). In fact, Dr. Dushoff actually testified about his opinion about the causation of the injuries in the photographs.

Accordingly, we find that the trial court did not abuse its discretion in making these evidentiary determinations at trial, and we affirm the trial court’s final judgment and order for attorney’s fees and costs.

Affirmed.


author: EVANDER, J.

text:
    Robert T. MURPHY, Appellant, v. Vickie H. MURPHY, Appellee.
    No. 5D05-4459.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.

      Gail Linscott Silva, Kissimmee, for Appellant.
    Norman Linder Hull of Norman Linder Hull, P.A., Orlando, for Appellee.
   EVANDER, J.

The former husband appeals the trial court’s denial of his supplemental petition to reduce his child support obligation. Our review is limited because of the lack of a trial transcript. In the absence of a trial transcript, we are obligated to affirm the trial court unless fundamental error appears on the face of the appealed order. Mayfield v. Mayfield, 929 So.2d 671 (Fla. 5th DCA 2006). See also Carney v. Carney, 861 So.2d 1272 (Fla. 1st DCA 2003).

A final judgment of dissolution of marriage was entered on April 3, 2003. The marital settlement agreement, which was incorporated into the final judgment, provided the former husband would pay rehabilitative alimony of $1,000 per month for twelve months and child support in the amount of $2,400 per month. The marital settlement agreement further provided:

Notwithstanding the above, the parties agree that the child support shall be recalculated pursuant to F.S. 61.30 effective upon the expiration of alimony as contained herein.

The former husband fully paid his alimony obligations. On April 28, 2004, the former husband filed a supplemental petition for modification seeking a reduction in his child support obligation. In his supplemental petition, the former husband alleged he no longer had the ability to pay $2,400 per month child support as his substantial financial assets had been depleted supporting his former wife and children over the past year. He claimed he was receiving no income from his electrical contracting business.

Significantly, the supplemental petition did not allege the former husband had a right, pursuant to the terms of the marital settlement agreement, to seek a recalculation of child support. The supplemental petition also failed to allege a substantial change of circumstances had arisen based on the former wife’s increased income.

During the course of the proceedings, an order was issued temporarily reducing the former husband’s child support obligation to $668.18 per month. This order clearly provided it should not be considered a final determination of the former husband’s modification action.

The case was tried on June 13, 2005. Written closing arguments were submitted by the parties approximately one month later. On November 30, 2005, the trial court entered an order denying the former husband’s supplemental petition. The trial court found the former husband had failed to establish a substantial change of circumstances. The order clearly suggests the trial court found the former husband’s testimony regarding his financial condition was not credible. Additionally, the trial court set aside the prior temporary order, resulting in the immediate establishment of a substantial arrearage.

On appeal, the former husband raises several issues. First, he claims the trial court erred in not considering the former wife’s increased income as a basis to establish a substantial change of circumstances. As noted previously, the supplemental petition did not allege the former wife’s increased income as grounds to reduce the former husband’s child support obligation. Absent a trial transcript, we cannot determine if this issue was tried with the consent of the parties. Accordingly, we cannot find a fundamental error on the face of the order. Mayfield.

The former husband next alleges the trial court erred in “assigning the (former husband) a heavier burden to establish a substantial change in circumstances than the parties’ marital settlement agreement established.” However, the former husband never filed a motion or pleading seeking a recalculation of his child support obligation pursuant to the terms of the marital settlement agreement. Indeed, this argument was not even raised in his written closing argument. Therefore, we find this argument to have been waived. Carlton v. Carlton, 816 So.2d 254 (Fla. 2d DCA 2002) (issue waived where not raised until hearing on motion to rehear). See also Wilkinson v. Wilkinson, 756 So.2d 1081 (Fla. 5th DCA 2000)(without specific pleading for relief by husband, award deprived wife of due process).

The former husband next claims it was error for the trial court to have reinstitut-ed his original child support obligation retroactive to the date on which his child support obligation had been reduced by a prior temporary order. In support of his argument, the former husband cites to Rodgers v. Diederichsen, 820 So.2d 362 (Fla. 1st DCA 2002), Israel v. Israel, 824 So.2d 953 (Fla. 4th DCA 2002), and Kraus v. Kraus, 749 So.2d 513 (Fla. 2d DCA 1999). However, these decisions were rendered prior to the enactment of section 61.14(11), Florida Statutes. This statute became effective on July 1, 2004, and specifically provides:

(ll)(a) A court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.
(b) The modification of the temporary support order may be retroactive to the date of the initial entry of the temporary support order; or the date of filing of the ... supplemental petition for modification; ....

Lastly, the former husband argues he is entitled to a new trial because the final order was entered approximately five and one-half months after the conclusion of the final hearing. An unreasonable delay in the rendering of a final order may serve as a basis for reversal. Walker v. Walker, 719 So.2d 977 (Fla. 5th DCA 1998). There is no “bright line” as to what is an unreasonable delay. Walker, 719 So.2d at 979. Reversal is required only where there is a reason to question the accuracy of the final order. Duva v. Duva, 674 So.2d 774 (Fla. 5th DCA 1996). In determining whether a delayed ruling warrants reversal and retrial, a critical determination is whether there is a conflict between the trial judge’s statements or findings at the time of the trial and the ultimate written judgment, or if there is a factual finding in the final judgment which is not supported by the record. Walker, 719 So.2d at 979; see also Florida Air Academy, Inc. v. McKinley, 688 So.2d 359 (Fla. 5th DCA 1997). In this case, a review of the trial court’s detailed order suggests no reason to question its accuracy-

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . Furthermore, no statement of evidence was ever submitted to this court. See Fla. R.App. P. 9.200(b)(4).

      . We would note that if the former husband had sought a recalculation of child support pursuant to the terms of the marital settlement agreement, the trial court would have had the option of increasing his obligation, decreasing his obligation, or leaving it unchanged.


text:
    Frank E. STEEDLEY, Individually, and his wife, Marie H. Steedley, Individually, Petitioners, v. Bruce W. ROBINSON, Frank E. Steedley, as Trustee of the Frank E. Steedley Living Trust and Marie H. Steedley, as Trustee of the Marie H. Steedley Living Trust, Respondents.
    No. 1D06-4362.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2007.
    W. David Talbert, II, Jacksonville, for Petitioners.
    David M. Robertson, of Sellers, Prevatt & Robertson, Live Oak, for Respondents.
   PER CURIAM.

The Respondent’s motion to supplement the record, filed on September 29, 2006, is granted. The petition for writ of certiora-ri is denied on the merits.

BARFIELD, PADOVANO, and POLSTON, JJ., concur.


text:
    LA PETITE ACADEMY and Gallagher Bassett, Appellants/Cross-Appellees, v. Jacqueline DUPREY, Appellee/Cross-Appellant.
    No. 1D05-3340.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2007.
    Patrick John McGinley of Law Office of Patrick John McGinley, P.A., Winter Park, for Appellants/Cross-Appellees.
    Wayne W. Bilsky, Winter Park, and Bill McCabe, Longwood, for Appellee/Cross-Appellant.
    Mary Ann Stiles, Tampa, and Rayford H. Taylor, Atlanta, GA, of Stiles, Taylor & Grace, P.A., and Thomas A. Koval, Sarasota, for Amicus Curiae, Associated Industries of Florida, Inc. and Florida Insurance Council.
   PER CURIAM.

In this appeal, the Employer and Servicing Agent (E/SA), La Petite Academy and Gallagher Bassett, challenge an order rendered by the Judge of Compensation Claims (JCC) which awarded claimant, Jacqueline Duprey, $20,500.00 in attorney’s fees and $3,834.28 in costs. The E/SA argue first that the JCC erred in awarding an attorney’s fee which violates the plain language of section 440.34, Florida Statutes, and second, that the JCC erred in calculating costs owed claimant as the prevailing party. Claimant has also filed a cross-appeal, arguing that the legislature’s 2003 amendments to section 440.34 violate both the Florida and United States Constitutions.

This court has previously considered the application of the legislature’s 2003 amendments to section 440.34, Florida Statutes, in a number of our recent decisions, and held that “[i]n worker’s compensation cases, a fee award must be based on the value of the benefits actually obtained on behalf of the Claimant.” Wood v. Fla. Rock Indus., 929 So.2d 542, 545 (Fla. 1st DCA 2006), rev. denied, 935 So.2d 1221 (Fla.2006); see also Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006), rev. denied, 939 So.2d 93 (Fla.2006); Campbell v. Aramark, 933 So.2d 1255 (Fla. 1st DCA 2006). Because the JCC in this case ordered the E/SA to pay an attorney’s fee which far exceeded the statutorily mandated percentage of the benefits awarded, we reverse the portion of the order awarding claimant $20,500.00 in attorney’s fees and remand for further proceedings. We affirm the JCC’s award of $3,834.28 in costs without further comment.

We reject the merits of claimant’s cross-appeal because this court has previously concluded that section 440.34, as amended in 2003, violates neither the Florida nor the United States Constitutions. See Lundy, 932 So.2d at 509-510; Campbell, 933 So.2d at 1256.

Therefore, we REVERSE the portion of the JCC’s order below which awards claimant $20,500.00 in attorney’s fees, we AFFIRM the portion of the order which awards claimant $3,834.28 in costs. We REMAND the case for further proceedings consistent with this decision.

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


text:
    Dieurold LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3181.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Dieurold Louis, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Dieurold Louis appeals the trial court’s order summarily denying his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion the trial court’s summary denial of claims two through five of the motion, and reverse the trial court’s summary denial of claim one.

In claim one, appellant alleged ineffective assistance of trial counsel for failure to argue in his motion to suppress that defective warnings under Miranda were given. In particular, appellant argued that he was not advised of the right to counsel during questioning. We find that this claim was legally sufficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005). Appellant’s claim on this ground was not adequately refuted either by the State’s response or record attachments to its response which were adopted by the trial court’s order of denial.

Accordingly, we reverse and remand either for the attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing.

Affirmed in part; reversed and remanded in part.

WARNER, POLEN and KLEIN, JJ„ concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Raymond L. COLON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2506.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Raymond L. Colon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Joseph STEWART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2915.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Joseph Stewart, in proper person.
    Bill McCollum, Attorney General, Orlando, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

Joseph Stewart appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, the defendant alleges that the trial court erred in relying on certain predicate convictions to support adjudicating the defendant as a habitual felony offender. The defendant has raised a facially sufficient claim for rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Consequently, we reverse and remand for further proceedings. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    Michael OJEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 06-3086.
    District Court of Appeal of Florida, Third District.
    Feb. 07, 2007.
    Michael Ojeda, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Michael Ojeda appeals from an order denying his rule 3.800 motion to correct an illegal sentence and his motion for rehearing of that order. We affirm both orders. The issues raised in arguments II and III of Ojeda’s motion are not cognizable under rule 3.800, and the time for filing a rule 3.850 motion, in this case, has long passed. The remaining issue raised in Ojeda’s 3.800 motion regarding scoresheet errors was correctly rejected in light of his habitual offender sentence. See Osborn v. State, 915 So.2d 189, 190 (Fla. 3d DCA 2005)(“a habitual offender sentence is exempt from the sentencing guidelines”); Robinson v. State, 654 So.2d 1302, 1303 (Fla. 5th DCA 1995)(“habitual offender sentences are not subject to the sentencing guidelines”). There being no error in the trial court’s ruling on the 3.800 motion, the motion for rehearing was also correctly denied.

Accordingly, the orders denying Ojeda’s 3.800 motion and the motion for rehearing thereon, are affirmed.


text:
    Esmeraldo RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3002.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Esmeraldo Ramos, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See White v. State, 935 So.2d 554 (Fla. 3d DCA 2006) (attack on factual basis for guilty plea not cognizable on motion to correct an illegal sentence), review denied, No. SC06-1825 (Fla. Nov. 20, 2006).


author: TAYLOR, J.

text:
    John J. MAZZA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2000.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

Appellant, John J. Mazza, Jr., moved under Florida Rule of Criminal Procedure 3.800(b)(2) to correct sentence on the ground that he was entitled to credit for time served from the date the trial court accepted his plea to criminal charges and deferred sentence until the date his sentence was actually imposed. We affirm the trial court’s denial of the motion.

On August 23, 2000, appellant entered an open plea of no contest to sale of cocaine and possession of cocaine in Case No. 00-1317-CF and to sale of cocaine and possession of cocaine in Case No. 00-1320-CF. On October 11, 2000, the date set for appellant’s sentencing, the trial court gave the defendant the option of being sentenced that day or having a “deferred” sentencing. The court acknowledged that generally a deferred sentence is unlawful because of a defendant’s right to finality. However, the court advised appellant that he could waive that right by requesting a deferred sentencing. If he requested the deferred sentence, then he would be required to comply with numerous conditions similar to those of probation. He would face a sentence of up to forty years in prison for violating any of those conditions.

After consulting with counsel, appellant chose the deferred sentencing option. The court then released appellant on his own recognizance pending sentencing at a future time. Among the conditions imposed upon appellant was an obligation to periodically appear before the trial judge for status hearings.

During the following year, the trial court held several status hearings. The record reflects that appellant failed to appear at one such hearing on June 14, 2001. At that hearing, the probation officer advised the trial court of appellant’s arrest on May 28, 2001 for driving with a suspended license. She also informed the court that she had spoken to appellant and told him to be present for the status hearing. Because appellant failed to appear as instructed, the trial court issued a bench warrant for his arrest.

The bench warrant was executed on September 25, 2004. On March 16, 2005, the trial court adjudicated appellant guilty of the four drug charges to which he had previously pled no contest. The court sentenced him to concurrent terms of three years in prison on each count in Case No. 00-1317-CF, with credit for 315 days time served. It also sentenced appellant to concurrent terms of three years in prison on each count in Case No. 00-1320-CF, to run consecutively to the sentence imposed in Case No. 00-1317-CF.

After filing a notice of appeal, appellant moved to correct his sentence, claiming credit for time served from the date the court deferred sentence until the date sentence was imposed, less the time that a bench warrant was outstanding. Appellant relied on Bateh v. State, 101 So.2d 869 (Fla. 1st DCA 1958). In Bateh, the trial court adjudged the defendant guilty of criminal offenses on November 3, 1955. Then, for no stated lawful purpose, the court deferred sentencing the defendant indefinitely and released him upon his own recognizance. On December 18, 1956, the court sentenced the defendant to two years in state prison. Concluding that the trial court unlawfully deferred sentencing the defendant for an indefinite period, the first district held that the sentence imposed upon the defendant on December 18, 1956, became effective November 3, 1955, nunc pro tunc. The appellate court deemed the defendant’s two-year term to have begun on the date when the defendant was adjudicated guilty and when sentence should have been imposed. Id. at 874.

In this case, the trial court declined to follow Bateh, finding it distinguishable because appellant was not adjudicated guilty of his offenses when he entered his plea and the trial court deferred sentencing. He was not adjudicated guilty of his offenses until he was ultimately sentenced. The court thus relied instead on McCloud v. State, 237 So.2d 818, 820 (Fla. 1st DCA 1970), which noted that “the Bateh rule contemplated an adjudication of guilty in order to start the running of the extreme period within which sentence could be imposed.” In McCloud, the defendant pled guilty to charges of withholding support from his minor children, and the court withheld adjudication and sentence pursuant to an agreement between his counsel and the prosecutor to allow him an opportunity to pay the support arrearages. More than two years later, the trial court adjudicated the defendant guilty and sentenced him to serve eighteen months in prison. Because the maximum penalty for his nonsupport offenses was two years imprisonment, the defendant argued that the Bateh rule invalidated his sentence “entered some six months after the lapse of the extreme period for which he could have been sentenced at the outset.” The first district disagreed and affirmed the sentence, pointing out that, unlike Bateh, McCloud was not adjudicated guilty at the time his sentence was deferred.

However, as appellant correctly points out, we believe that whether or not a defendant is adjudicated guilty at the time of his plea is inconsequential to the outcome of a deferred sentence. See State v. Gazda, 257 So.2d 242 (Fla.1971). In Gazda, the supreme court addressed section 775.14, Florida Statutes, which prohibits a trial court from sentencing a defendant for a criminal offense after having withheld sentence on a conviction for that offense for more than five years. The court construed “conviction” as including a determination of guilt by a plea of guilty. It clarified that a defendant does not have to be adjudicated guilty by the court upon the acceptance of his plea to receive the benefit of the time limitation in section 775.14. Id. at 243-44. We believe this interpretation applies equally to those situations, as here, where a sentence is unlawfully deferred in contravention of the probation laws.

In this case, no one disputes that the trial court improperly delayed appellant’s sentencing. Since at least 1941, a trial court has lacked authority to suspend or withhold indefinitely the imposition of sentence upon a convicted defendant except as an incident to probation under the provisions of Chapter 948, Florida Statutes. Helton v. State, 106 So.2d 79, 80 (Fla.1958) (holding “as did the District Court [in Bateh ], that ‘a trial court cannot by the artifice of postponing the pronouncement of sentence exercise the power to conditionally parole or pardon a defendant who stands convicted of a crime’”). Of course, as both Bateh and Helton point out, this general prohibition on delay in imposing sentence does not include temporary delays for procedural reasons or for other valid sentencing purposes. Bateh, 101 So.2d at 874; Helton, 106 So.2d at 80.

Here, the issue is whether appellant is entitled to jail credit for time spent on the “functional equivalent of probation” as a remedy for the trial court’s improper deferral of his sentencing. We hold that he is not. Florida law allows credit only for time served in jail or the functional equivalent of jail prior to sentencing. See § 921.161, Fla. Stat. (2005). Bateh, which deemed the defendant’s sentence to have begun when it should have been imposed, was decided before the enactment of section 921.161(1), Florida Statutes. That statute, which allows credit for time spent in jail before sentence, states that a sentence does not run until it is actually imposed. Appellant thus improperly relies on Bateh as a means of enforcing the law that makes deferred sentencing illegal.

In this case, the quasi-probationary terms imposed on appellant while he awaited sentencing were not the functional equivalent of jail, and they were voluntarily undertaken. Thus, the time which appellant spent out of custody under the terms imposed by the trial court could not be credited against his sentence any more than could any time he spent out of custody in a drug treatment program as a condition of probation or community control. See State v. Cregan, 908 So.2d 387, 389 (Fla.2005); Carrier v. State, 925 So.2d 386, 388 (Fla. 4th DCA), rev. denied, 935 So.2d 1219 (Fla.2006); Comer v. State, 909 So.2d 460, 461 (Fla. 4th DCA 2005). We therefore affirm the order denying the motion to correct sentence.

Affirmed.

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


author: STEVENSON, C.J.

text:
    Frank B. WODZISZ, Appellant, v. LIVE OAK LAND, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D06-23.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellant.
    Kip A. Davis of Vassallo & Bilotta, P.A., Stuart, for appellee.
   STEVENSON, C.J.

In this appeal, Frank Wodzisz, the seller in a land sales contract, challenges a final summary judgment ordering specific performance in favor of the buyer, Live Oak Land, LLC. Because genuine issues of material fact exist, we reverse.

The contract for this large, twenty-acre parcel of mostly unimproved land was subject to a rezoning contingency whereby the purchase price was subject to an upward adjustment based on the number of units for which zoning approval was obtained by Wodzisz. The $1,350,000 purchase price assumed zoning would be granted for twenty-eight residential units. Under the addendum, if only twenty-seven units were approved, the price would be $1,300,000 and if twenty-six or fewer units were approved, the price would be $1,250,000. Closing was to take place sixty days following the final rezoning of the property. Wodzisz demanded a closing prior to September 16, 2004, because he maintained that Live Oak waived the rezoning contingency on July 13, 2004, when following a Martin County Board of County Commissioners’ meeting, Joe Lelonek, a Live Oak principal, told him that “zoning has failed” and Live Oak “wanted to put ‘for sale’ signs on the property at that time.” The dispute ended in litigation when Live Oak refused to close prior to September 16, 2004, and maintained that the contingency was not waived until September 9, 2004, when Live Oak’s counsel sent Wodzisz an e-mail expressly waiving the development condition. In granting summary judgment, the trial court ruled in favor of Live Oak and granted specific performance. Because genuine issues of material fact exist concerning when the zoning contingency was waived and when the contract expired, we reverse. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (noting that the court must draw every possible inference in favor of the party against whom summary judgment is sought).

Lastly, Live Oak failed to present evidence that it was ready, willing and able to close prior to the expiration of the contract, and we reverse for this reason as well. While the “ready” and “willing” part of the test may well be satisfied by Live Oak’s October correspondence proposing the November 15, 2004 closing date, the “able” part requires more than a concluso-ry assertion. In order to establish a prima facie case, the party seeking specific performance must prove that it: a) had the needed cash on hand; b) had assets and a credit rating which would enable it with reasonable certainty to command the requisite funds at the requested time; or c) that it had a binding commitment for a loan from a financially able third party. See Hollywood Mall, Inc. v. Capozzi, 545 So.2d 918, 920-21 (Fla. 4th DCA 1989). Because Live Oak failed to present such prima facie proof, the order of summary judgment commanding specific performance was improper.

Reversed and Remanded.

WARNER and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Arselio GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3684.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Sean Conway of Law Offices of Sean Conway, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Gonzalez was convicted of carjacking, aggravated fleeing, and trespassing. We affirm and write solely as to one impeachment issue on appeal.

Officer Grieve testified as to his chase of Gonzalez and the co-defendant:

Grieve: As we get out of the car, I drew my weapon out and ordered them to the ground. One of them, Gonzalez it was, got over the fence and was actually trying to conceal himself under the trailer.
* # *
State: Did you also have an occasion, at some point while making contact with Mr. Gonzalez, did he make any comments to you about his detention or his arrest?
Grieve: Yeah. When me and Officer Wollard took him from underneath the trailer, he did make a comment saying, wow, you guys are fast.

No objection was made at that point. During the cross-examination of Grieve, defense counsel asked him what else Gonzalez had said, and Grieve read the following part of his deposition: “I do not want to say cocky. Like, his first statements were wow, you guys are fast, like that. And then later on at the hospital, he was insistent that we didn’t have the right people and I had nothing to do with it, it was basically what he was saying.”

Based on the cross-examination, the state sought to have the jury instructed as to Gonzalez’s four prior felony convictions. The court allowed the impeachment. The court also instructed the jury that the information “is to be utilized only by you in consideration of determining the credibility of the statements that are attributable to Mr. Gonzalez and Mr. Gonzalez only. Understand that it has nothing to do with any other factor in this case.”

A non-testifying defendant who brings out his or her own exculpatory statements through another witness, “runs the risk of having those statements impeached by felony convictions.” Kelly v. State, 857 So.2d 949, 950 (Fla. 4th DCA 2003) (citation omitted). See also Fisher v. State, 924 So.2d 914 (Fla. 5th DCA 2006)(citing Huggins v. State, 889 So.2d 743 (Fla.2004)); Llanos v. State, 770 So.2d 725 (Fla. 4th DCA 2000); Werley v. State, 814 So.2d 1159 (Fla. 1st DCA 2002).

In this case, because the defense elicited Gonzalez’s own statement, intended to be exculpatory, through Grieve, the trial court did not abuse its discretion in admitting Gonzalez’s past felony convictions and in giving a limiting instruction as to same.

As to all other issues, we also find no reversible error or abuse of discretion.

TAYLOR, J. and COLBATH, JEFFREY, Associate Judge, concur.


text:
    Victor RONES, Trustee, Appellant, v. CHARLISA, INC.; City of Hollywood, Florida; Broward County, Florida; State of Florida, Department of Revenue; Ray Qualmann Marine Construction, Inc.; and Ronald E. Tempkin, Appellees.
    No. 4D05-2895.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Victor K. Rones of Law Offices of Rones and Navarro, North Miami Beach, for appellant and pro se.
    Kenneth S. Sandler of Kenneth S. San-dler, P.A., Hollywood, for Appellee-Charli-sa, Inc.
   STONE, J.

This is an appeal of a final judgment in foreclosure. A bankruptcy order, entered in a bankruptcy action instituted by Appel-lee, which confirmed a plan, anticipated our proceeding with this appeal. The bankruptcy order provided for a satisfaction of Appellant’s claim, but also directed that unsecured funds be set aside to cover up to $100,000 of any balance on Appellant’s claim. Therefore, this court retains jurisdiction up to that sum unrelated to the satisfaction.

We reverse the final judgment in part, as to the date that default interest (at the rate of 18%) accrued, and as to the omission of late charges. We do not consider Appellant’s claim for 25% interest, as this claim was not preserved in the trial court.

The acceleration clause in this note and mortgage was not self-executing. Therefore, notice of acceleration was required. See Parise v. Citizens Nat’l Bank, 438 So.2d 1020 (Fla. 5th DCA 1983). Appellee, Charlisa, Inc., argues that it did not receive notice of default until the publication date of the notice in this action. The suit was filed more than two years after the default.

In Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931, 933 (Fla. 5th DCA 1980) (citation omitted), the court held that “[t]o constitute an acceleration after default, where the holder has the option to accelerate, the holder or payee of the note must take some clear and equivocal action indicating its intent to accelerate all payments under the .note, and such action should apprise the maker of the fact that the option to accelerate has been exercised.” “Examples of acceleration are a creditor’s sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt.” Id.See also Seligman v. Bisz, 123 Fla. 493, 167 So. 38 (1936) (finding where acceleration is at the option of the mortgagee, the “institution of a suit for foreclosure is the exercise of the option to declare the whole of the principal sum and interest secured by the mortgage to be due and payable”); Jaudon v. Equitable Life Assur. Soc. of United States, 102 Fla. 782, 136 So. 517 (1931) (“mere filing of suit to enforce the mortgage by foreclosure may sufficiently show [an] election to exercise [an] option to accelerate”); Parise, 438 So.2d at 1022 (internal citations omitted) (“Acceleration may be set in motion by filing a pleading in a suit on the full indebtedness.... Or it may be activated by a demand and express notice to the debtor”).

In this case, the triggering date should not be the date of the default, as Appellant took no action to accelerate at that point. We also reject Appellant’s argument that the date of an earlier failed notice should apply, as that writing was ambiguous and there was no clear language of acceleration.

We conclude that the appropriate triggering date is the date the complaint, wherein Appellant clearly elected to accelerate, was filed. On remand, the accelerated interest at the rate of 18% should be re-computed from the date of November 12, 2008.

Further, in the final judgment, although a space is provided for interest and late charges, the court failed to include a sum for late charges. Because under the note Appellant was entitled to late charges, upon remand, the trial court should modify the judgment to provide for same.

As to all other issues raised, we find no reversible error or abuse of discretion. Therefore, the judgment is reversed and remanded for modification in accordance with this opinion.

TAYLOR, J., and COLBATH, JEFFREY, Associate Judge, concur.


author: CORTINAS, Judge.

text:
    Rivka SHAPIRO, Yashi’s Investments, LLC, and Yashi’s Investments, Inc., Appellants, v. Robert JACOBS, Appellee.
    No. 3D06-987.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Michael Walsh and Michelle R. Walsh, for appellants.
    Irv J. Lamel; Jay M. Levy, Miami, for appellee.
    Before WELLS and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

The Appellant, a seller of real property, appeals the trial court’s order granting the buyer specific performance based on the trial court’s finding that the seller breached the contract for sale of the property because the seller and/or the seller’s attorney failed to attend the scheduled closing. The seller contends that she had no duty to attend the closing because the buyer was not ready, willing, and able to close at the time of the closing. The seller contends that a fax from the buyer’s attorney, sent at the time the closing was scheduled to occur, evidences that the buyer was not financially able to close. Specifically, a paralegal employed by the buyer’s attorney sent the seller’s attorney a fax of the seller’s closing statement that she had received from the title agent. She testified that she did this to ensure that the seller had a copy of it. On the statement, she wrote a handwritten note, which stated in relevant part, “DO NOT HAVE PACKAGE FROM LENDER YET. TENTATIVELY CLOSING AT 4PM TODAY.” This fax was received by the seller’s attorney at 4:03 p.m. This was the only communication between the parties and their respective attorneys as to the status of the lender’s package. The seller further contends that it was imperative that the contract close on the day of the scheduled closing because the contract stated that “[tjime is of the essence for all provisions” and further provided that all time periods in the contract ended at 5:00 p.m. of the appropriate day.

At trial, the paralegal who sent the faxed note testified that her note meant that the closing may not occur exactly at 4:00 p.m., not that the closing may not occur at all. Additionally, the title agent handling the closing testified that sometime on the night of the closing he received the lender’s package. He believed he received these documents around 4:30 p.m.; however, he testified that he was unsure of the exact time. He repeatedly testified that he had the loan package and was ready to close on December 15th, the day the closing was scheduled. Apparently, however, neither the title agent nor the buyer’s attorney contacted the seller’s attorney to notify him that the lender’s package had been received. Similarly, the seller’s attorney never called the title agent or the buyer’s attorney to determine whether the package had arrived, despite the seller’s contention that she absolutely needed the money from this sale by 5:00 p.m. on the day of the scheduled closing to cover two checks she had previously written. The buyer testified that he was present for the closing on December 15th, and that he was ready, willing, and able to close. Neither the seller nor the seller’s attorney testified to any reason for not attending the closing, other than the faxed note.

Based on the testimony, the trial court found that the buyer was “present and ready to close” and that the only reason the sale did not close was because the seller and/or her attorney failed to attend the closing. Because this finding is supported by clear, definite, and certain proof, we cannot find that the trial court abused its discretion in reaching this conclusion. See Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (recognizing that specific performance is granted in the discretion of the trial court but that unless a plaintiff proves their case by clear, definite, and certain proof, the trial court has no discretion to award specific performance).

“[I]t is the plaintiffs’ burden of proof to show they were ready, willing, and able to perform the contract in order to establish a prima facie case for specific performance.” Leverette v. Cochran, 876 So.2d 2, 3 (Fla. 1st DCA 2004) (citing Hollywood Mall v. Capozzi, 545 So.2d 918 (Fla. 4th DCA 1989)); see also Arvesu v. Blancom Props., N.V., 913 So.2d 1231, 1232 (Fla. 3d DCA 2005). A buyer is financially able to close a sale, i.e., ready, willing, and able to close, “if he has definitely arranged to raise the necessary money — or as much thereof as he is unable to supply personally — by obtaining a binding commitment for a loan to him for that purpose by a financially able third party -” Capozzi, 545 So.2d at 920-21. This echoes the Florida Supreme Court’s holding that “[financially able means that the proposed purchaser is able to command the necessary money to close the deal on reasonable notice or within the time stipulated by the parties.” Perper v. Edell, 160 Fla. 477, 35 So.2d 387, 391 (1948).

In this case, it is undisputed that the buyer had arranged financing through a lender. Certainly upon receipt of the lender’s package, the financing commitment was binding. The trial court’s ruling indicates that it believed the testimony of the title agent that the lending package arrived on the night of the closing, and that the sale could have closed on that day. We have no evidence before us to contradict this testimony and we defer to the trial court on determinations of witness credibility. Therefore, the buyer was ready, willing, and able to close before 5:00 p.m. on the scheduled date of the closing.

Although we are surprised by the lack of communication between the respective attorneys, we find that the faxed note did not create a duty on the part of the buyer’s attorney to notify the seller’s attorney when the package arrived. The seller does not cite to any case to support her contention that it did. Further, a review of Florida case law suggests that the appropriate inquiry in situations like this is an objective one — whether the buyer was ready, willing, and able, not whether the seller knew the buyer was ready, willing, and able.

Both attorneys involved are experienced real estate attorneys and are credited with knowledge of normal and customary real estate practices. In real estate closings, it is common for the lender’s package to arrive later than scheduled. Here, ultimately, the lender’s package arrived at the closing on the scheduled day, although the seller never did. The seller, therefore, breached the contract and the buyer is entitled to specific performance.

Affirmed.

      . Although the term “night” is used in a question to the title agent and in his answer to that question, his testimony clearly stated that he received the package around 4:30 p.m. and could have closed before 5:00 p.m. on the day of the scheduled closing.

      . Although the seller argues that she needed to have the money from the sale in her bank account by 5:00 p.m. on the day of the scheduled closing, the title agent testified that even if the closing had occurred in the afternoon of December 15th, the funds would not have been immediately available to the seller.

      . Interestingly, the seller testified that when she spoke to the paralegal at her attorney's office who notified her of the faxed note, she asked, "Do you think it is going to be today?" to which the paralegal replied, "Yes, you have to wait.” Further, the seller testified that she was unwilling to close the day after the closing was scheduled because she had already “settled with the things because at 4 o’clock on the 15th [it] wasn’t ready,” despite the fact that the contract gave until 5:00 p.m. on the 15th for the closing to occur. The seller’s attorney was not asked directly why he did not attend the closing, although he testified that no one ever contacted him to tell him that the buyer was ready to proceed with the closing.

      . Although the trial court stated that the buyer was "ready to close,” it is clear from the context of the hearing that the trial court found the buyer ready, willing, and able to close.