author: WOLF, J. BARFIELD, J.,

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Arnold A. ONDIS and Colleen F. Ondis, Appellees.
    No. 1D06-3876.
    District Court of Appeal of Florida, First District.
    May 14, 2007.
    Guy E. Burnette, Jr., P.A., Tallahassee, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for Appellant.
    James F. McKenzie and Jack E. De La Piedra of McKenzie, Zarzaur & Hall, P.A., Pensacola, for Appellees.
   WOLF, J.

Appellant, State Farm Florida Insurance Company, challenges a summary judgment entered in favor of its insured homeowner. Appellant raises a number of issues on appeal. We affirm as to all issues, but we specifically address only one in this opinion: Whether appellees presented competent, unrefuted evidence to establish the total loss of their home under Florida Law warranting summary judgment in their favor. Because we find that the undisputed material facts establish that appellees’ house was an actual total loss, we affirm. We also certify to the Florida Supreme Court the same question which we certified in Florida Farm Bureau Casualty Insurance Co. v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006).

On or about September 16, 2004, appel-lees’ home in Gulf Breeze, Florida, was damaged by wind and flood during Hurricane Ivan. At the time the damage occurred, appellees’ home was covered by a homeowner’s policy issued by appellant. According to the policy, damage caused by flood was not a covered peril, while damage caused by wind was covered under the provisions of the policy. Both parties concede that appellees’ home sustained substantial damage from flood in the amount of $322,601.88 and that the damage attributable to wind was in the amount of $14,073.65.

Section 627.702, Florida Statutes (2004), also know as Florida’s Valued Policy Law (VPL), reads as follows:

(1) In the event of the total loss of any building, structure, mobile home as defined in s. 320.01(2), or manufactured building as defined in s. 553.36(12), located in this state and insured by any insurer as to a covered peril, in the absence of any change increasing the risk without the insurer’s consent and in the absence of fraudulent or criminal fault on the part of the insured or one acting in her or his behalf, the insurer’s liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.

In Mierzwa v. Florida Windstorm Underwriting Ass’n, the Fourth District Court of Appeal recently characterized the VPL as follows:

The meaning of the VPL is simple and straightforward. There are two essentials in the statute. The first is that the building be “insured by [an] insurer as to a [e.s.] covered peril.” § 627.702(1). The second is that the building be a total loss. If these two facts are true, the VPL mandates that the carrier is liable to the owner for the face amount of the policy, no matter what other facts are involved as to the cost of repairs or replacement.

877 So.2d 774, 775 (Fla. 4th DCA 2004) (emphasis added).

Section 627.702(1), Florida Statutes, is triggered only when an insured building is rendered a “total loss” as defined by Florida courts. § 627.702(1), Fla. Stat. Thus, in order for appellees’ claim to fall within the scope of section 627.702(1), appellees must first establish that there was a “total loss” of an insured building. Greer v. Owners Ins. Co., 434 F.Supp.2d 1267, 1279 (N.D.Fla.2006).

In support of their contention that the home was a “total loss,” appellees presented evidence to support their claim of constructive total loss in the form of an affidavit from a public adjuster which stated:

[T]he Property at issue in this case ... is a total loss because the costs of repair to the structure would exceed the value of the structure. The structure is also a total loss because the costs of repair and compliance with the current building code would exceed the value of the structure.

Appellee also presented photographs which, undisputedly, accurately reflect the state of appellee’s property after the damage from the hurricane. The photos show that the second story of the home was resting on its foundation.

Appellant argues that Florida case law provides two standards for determining a total loss: (1) the actual total loss standard, and (2) the constructive total loss standard. Appellant argues that the affidavit offered by appellees in support of their assertion that the home was a total loss does not “conclusively” establish that appellees’ dwelling was either an actual or constructive total loss.

To the contrary, appellees argue that this affidavit is sufficient to prove the home is a constructive total loss. Alternatively, appellees argue that the condition of the two-story house after the storm, with its top floor lying on the slab where the first floor had been, would be enough to pass the “identity test” found in Lafayette Fire Insurance Co. v. Camnitz, 111 Fla. 556, 149 So. 653, 654 (1933), rendering the house an actual total loss. Appellees further argue that appellant provided no evidence to the trial court to rebut the affidavit offered by appellees stating that the property was a total loss. Appellant merely stated that the affidavit was “irrelevant” and did not “comport with the Florida standard for total loss.”

In Lafayette, 149 So. at 654, the supreme court approved a jury instruction which stated a building is considered an actual total loss when it no longer retains its identity and the specific characteristics which define it as a building. See also Greer, 434 F.Supp.2d at 1279. In addition to the “identity test” set out in Lafayette, a building is considered a constructive total loss when the building, although still standing, is damaged to the extent that ordinances or regulations in effect prohibit or prevent the building’s repair, such that the building has to be demolished. See Netherlands Ins. Co. v. Fowler, 181 So.2d 692, 693 (Fla. 2d DCA 1966); Citizens Ins. Co. v. Barnes, 98 Fla. 933, 124 So. 722, 723 (1929).

Applying the actual total loss standard set out in Lafayette to the facts of this case, appellees’ home does fall within the meaning of an actual total loss because the photographs in the record undisputedly establish that, after the hurricane damage, the home no longer retained its identity and the specific characteristics which defined it as a building.

Further, there is no dispute that the cost to repair the home exceeds the value of the home. While Lafayette and Netherlands Insurance Co. establish two ways in which an insured can prove total loss, there is nothing in Lafayette or Netherlands Insurance Co. to preclude application of other reasonable definitions of total loss. .We find that a reasonable factor for the trial court to consider in determining whether a total loss has occurred is whether the cost to repair the home exceeds the home’s value. Indeed, other states have adopted this as the test for total loss. See Dickler v. CIGNA Property & Cas. Co., 957 F.2d 1088, 1097 (3d Cir.1992) (explaining that if the costs to repair a fire-damaged building exceed 50% of the building’s value, the building is considered a total loss and the insured is entitled to a 100% recovery); Dumond v. Mobile Ins. Co., 309 So.2d 776, 778 (La.Ct.App.1975) (explaining that “[t]he test for determining whether damaged property is a total loss is whether the cost of repairs exceeds the value of the property”); Scott v. Transport Indem. Co., 513 So.2d 889, 895 (Miss.1987) (stating “[u]nless provided otherwise by ... contract, total loss occurs when it is not economically feasible that the property be repaired” — i.e., “a total loss occurs when the cost of repairs exceeds the fair market value of the property less salvage value”).

The trial court was free to make a determination of total loss based on all the evidence in the record, including the pictures taken of the home after the hurricane.

As to the issue presented concerning applicability of the VPL statute raised on appeal, we certify the same question certified by this court in Florida Farm Bureau Casualty Insurance Co., 943 So.2d at 823, as a question of great public importance:

DOES SECTION 627.702(1), FLORIDA STATUTES (2004), REFERRED TO AS THE VALUED POLICY LAW, REQUIRE AN INSURANCE CARRIER TO PAY THE FACE AMOUNT OF THE POLICY TO' AN OWNER OF A BUILDING DEEMED A TOTAL LOSS WHEN THE BUILDING IS DAMAGED IN PART BY A COVERED PERIL BUT IS SIGNIFICANTLY DAMAGED BY AN EXCLUDED PERIL?

VAN NORTWICK, J., concurs; BARFIELD, J., concurs with opinion.

BARFIELD, J.,

concurs.

I concur with the majority opinion; however, I agree with Judge Polston’s dissent in Florida Farm Bureau Casualty Insurance Co. v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006).


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Edward David NEALS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1899.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Rehearing Denied Sept. 10, 2007.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Neals appeals his conviction for dealing in stolen property, arguing that the trial court erred in failing to instruct the jury on the lesser-ineluded offense of theft. We affirm.

The information charged that Neals “did traffic in, or endeavor to traffic in, clothing, which was property Edward David Neals knew or should have known was stolen, contrary to Florida Statute 812.019(1).”

At trial, Officer Thomas testified he received a call that a convenience store clerk contacted police and said there was a man selling clothing in the parking lot in front of the store. When Thomas arrived, he saw a man fitting the description he was given selling clothing out of a van. Thomas testified the clothing was still in plastic wrap with security tags affixed. When Thomas approached Neals, Neals gave chase but was apprehended behind the building.

After Neals was arrested, he gave a statement to police. Neals stated he had come into possession of the clothing while at a crack house. The man who “asked him if he wanted to make money and help him get rid of [the] clothes” told him the clothing was stolen from a Ross department store.

At the charge conference, the trial court accepted defense counsel’s ambiguous request for an instruction on a lesser offense as asking for a lesser-ineluded instruction on theft. The trial court explicitly declined to instruct the jury on theft.

Section 812.019(1), Florida Statutes, provides:

(1) Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree....

§ 812.019(1).

As used in ss. 812.012-812.037:

(8) “Traffic” means:
(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

§ 812.012(8), Fla. Stat.

Under the schedule of lesser-ineluded offenses for section 812.019(1), there are no category one offenses. The various degrees of theft are category two offenses.

Section 812.014 provides, in relevant part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

§ 812.014(1), Fla. Stat.

Even as to category two lessers, it is reversible error for a trial court to deny an instruction on the next lesser-ineluded offense provided the “charging instrument and the evidence admitted” would support a conviction on that lesser offense. Moore v. State, 932 So.2d 524, 527 (Fla. 4th DCA 2006) (emphasis in original).

In this case, it is arguable that the evidence would support a conviction for theft. In order to obtain a conviction for theft, it is not necessary that the defendant actually stole the property. See Jackson v. State, 736 So.2d 77, 83 (Fla. 4th DCA 1999) (quoting Brewer v. State, 413 So.2d 1217, 1219 (Fla. 5th DCA 1982) (“how the property of another is acquired is no longer important”) (emphasis in original)); Patten v. State, 492 So.2d 748, 750 (Fla. 2d DCA 1986) (affirming conviction of grand theft without regard to whether defendant “was the actual one to ‘take’ the items”). However, as we recently recognized in Stafford v. State, 956 So.2d 525 (Fla. 4th DCA 2007), the standard for reversible error is not met where “the elements of the crime were not included within the charging document.”

Here, as in Stafford, the elements of theft are not charged. Therefore, the judgment and sentence are affirmed.

GUNTHER and FARMER, JJ., concur.


author: PER CURIAM.

text:
    Wilfredo ZELAYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1318.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Rehearing Denied Aug. 15, 2007.
    Wilfredo Zelaya, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, FLETCHER and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Smith v. State, 529 So.2d 1106 (Fla.1988).


author: HOROWITZ, ALFRED J., Associate Judge.

text:
    J. LYNN CONSTRUCTION, INC., a Florida corporation, Appellant, v. The FAIRWAYS AT BOCA GOLF & TENNIS CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Appellee.
    Nos. 4D06-3437, 4D06-3997.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Rehearing Denied Sept. 10, 2007.

      Daniel B. Lacesa of Fox, Wackeen, Dun-gey, Beard, Sobel, Bush & McCluskey, LLC, Stuart, for appellant.
    Robert Rivas of Sachs & Sax, Tallahassee, for appellee.
   HOROWITZ, ALFRED J., Associate Judge.

J. Lynn Roofing Contractors, Inc. (hereinafter “Lynn Roofing”) contends the trial court erred in granting a partial summary judgment and final judgment in favor of The Fairways at Boca Golf & Tennis Condominium Association, Inc. (hereinafter “Fairways”). We agree.

“The standard of review for an order granting summary judgment is de novo.” 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd., 876 So.2d 1220, 1221 (Fla. 4th DCA 2004). “Summary judgment is proper if there is no genuine issue of material fact and if the moving-party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “In reviewing a summary judgment, this court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.’ ” 5th Ave., 876 So.2d at 1221 (quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001)). Additionally, the interpretation of a contract is a question of law. Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 630 (Fla. 4th DCA 2000).

On November 18, 2004, Fairways entered into a written contract with Lynn Roofing for construction and repairs with respect to the condominium buildings. Pursuant to paragraph 16 of the contract, Lynn Roofing was to obtain a performance bond covering contract compliance. Lynn Roofing applied for and attempted to obtain the performance bond prior to commencing work; however, due to collaterali-zation requirements, obtaining the bond became impractical.

As a result of this difficulty in obtaining the performance bond, counsel for both Lynn Roofing and the association negotiated an alternative course of conduct. Specifically, the association agreed to accept a personal guaranty by Lynn Roofing’s president, as well as a modified payment schedule which favored the association, in lieu of the performance bond requirement. This understanding was memorialized in correspondence dated December 22, 2004, from counsel for the association to Lynn Roofing’s counsel, confirming that, pursuant to recent negotiations, the association had agreed to accept the personal guaranty and modified payment schedule in lieu of the performance bond requirement in paragraph 16 of the contract. Enclosed with this correspondence was an addendum to be signed by Lynn Roofing, as well as the personal guaranty to be signed by Lynn Roofing’s president, in her individual capacity. On December 23, Lynn Roofing’s counsel faxed to the association’s counsel an acknowledgement of receipt of the addendum as well as copies of purchase orders, evidencing outlays by Lynn Roofing of $23,610.90 for materials.

On January 3, 2005, the signed addendum and personal guarantee were returned to counsel for the association. That same day, the association’s counsel sent Lynn Roofing’s counsel a letter informing them that effective December 30, 2004, the board of directors had “temporarily revoked” the acceptance of the personal guarantee and modified payment schedule set out in the December 22 letter. There is a factual dispute as to whether the signed addendum and personal guarantee were sent to and received by the association’s counsel before the revocation letter was sent to and received by Lynn Roofing’s counsel.

On January 6, 2005, the association’s counsel sent a letter to Lynn Roofing’s counsel terminating the contracts. On that same date, Lynn Roofing’s counsel sent a letter to the association’s counsel stating that Lynn Roofing considered the contract in full force and effect pursuant to the association’s acceptance of the modifications in its letter of December 22, 2004.

Lynn Roofing asserts that the December 22 letter from the association’s counsel was a knowing, voluntary waiver and modification of the contract provision requiring a performance bond and that Lynn Roofing reasonably relied upon the association’s acceptance of the modification to the contract. Further, Lynn Roofing contends that Section 11 of the contract which requires modifications to be in writing and signed by both parties was waived by the association and relied upon by Lynn Roofing. The association contends that the addendum and personal guarantee were not modifications of the contract which would release the requirement of the performance bond. The trial court agreed with the association, relying on the parol evidence rule in finding Section 11 of the contract was unambiguous and required all modifications to be in writing and signed by both parties.

Written contracts can be modified by subsequent oral agreement of the parties even though the written contract purports to prohibit such modification. Fid. and Deposit Co. of Md. v. Tom Murphy Constr. Co., 674 F.2d 880, 884 (11th Cir.1982); Pan Am. Eng’g Co., Inc. v. Poncho’s Constr. Co., 387 So.2d 1052, 1053 (Fla. 5th DCA 1980). In King Partitions & Drywall, Inc., v. Donner Enterprises, Inc., 464 So.2d 715, 716 (Fla. 4th DCA 1985) (quoting Prof'l Ins. Corp. v. Cahill, 90 So.2d 916, 918 (Fla.1956)), this court held:

[a] written contract ... may be altered or modified by an oral agreement if the letter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.... An oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing.

Id. at 716 (citations omitted).

The trial court’s reliance on the parol evidence rule in precluding evidence of waiver, estoppel and reliance, thereby finding the contract otherwise clear and unambiguous, is misplaced. “The parol evidence rule applies to verbal agreements between the parties to a written contract which are made before or at the time of execution of the contract. It does not apply to the admission of subsequent oral agreements that alter, modify, or change the former existing agreement between the parties.” Pavolini v. Williams, 915 So.2d 251, 254 (Fla. 5th DCA 2005). Any change in the agreement between the association and Lynn Roofing came over a month after the contract’s execution. Evidence of an oral modification should have been considered by the trial court in determining the existence of any issues of material fact that may be in dispute. The issue in this case largely centers on whether or not the parties, orally or by course of conduct, modified the procedure to modify their contract. Regardless of whether there was a express oral agreement to change the modification procedure, it was the association that wrote the acceptance letter of December 22, 2004, and submitted for signature the addendum and personal guarantee to Lynn Roofing. This is certainly conduct from which waiver of the original contract provision can be inferred. Lynn Roofing should receive the benefit of such inferences.

Summary judgment is reversed and the matter remanded for further proceedings. Each party seeks the recovery of attorney fees under the prevailing party provision found within the contract, an issue that will ripen at the conclusion of this litigation. At that time, the trial court will determine the prevailing party on the significant issues. Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 809 (Fla.1992).

Reversed and remanded.

GUNTHER and FARMER, JJ., concur.

      . The deposited acceptance rule remains the law in Florida. A contract is complete upon deposit of the acceptance in the mail. Morrison v. Thoelke, 155 So.2d 889, 897-98 (Fla. 2d DCA 1963).


text:
    Melvin POUERRIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-124.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Melvin Pouerrie, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and FLETCHER and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Jones v. State, 881 So.2d 584 (Fla. 3d DCA 2004); Woods v. State, 807 So.2d 727 (Fla. 1st DCA 2002).


author: TORPY, J.

text:
    MARION COUNTY, Florida, et al., Appellants, v. Deborah Kay GRUNNAH, Appellee.
    No. 5D06-3700.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.
    Rehearing Denied Aug. 29, 2007.

      Thomas L. Wright, County Attorney, and Thomas D. MacNamara, Chief Assistant County Attorney, Ocala, for Appellant..
    Rob McNeely of The McNeely Law Firm, Tallahassee, for Appellee.
   TORPY, J.

This case involves a challenge by Appellee to a code board determination that her dogs are “dangerous,” as defined by section 767.12, Florida Statutes (2006). The threshold question we must address relates to the jurisdiction of the county court to hear Appellee’s challenge. The statute clearly specifies that the challenge be filed in the county court, but arguably is ambiguous as to whether the county court is required to hear the controversy de novo, or by more narrow review in the nature of an appellate proceeding. After the county court determined that the challenge would proceed under the more narrow scope of review, Appellee petitioned for a writ of prohibition in the circuit court. The circuit court granted the writ and directed the county court to proceed de novo. Appellant challenges the propriety of the circuit court order. Because we conclude that prohibition was not the appropriate remedy to address the manner by which the county court had determined to exercise its jurisdiction, and was otherwise unavailable, we reverse and quash the writ.

The Marion County Code Enforcement Board held a hearing to determine whether to classify Appellee’s three Anatolian Shepherds as dangerous dogs, pursuant to section 767.12, Florida Statutes, and the Marion County Animal Ordinance. Appellee had requested the hearing after an animal control officer initially determined that her dogs were dangerous because they allegedly killed the neighbor’s Chihuahua. The Board issued a final order finding that all three of Appellee’s dogs were dangerous. The Board’s order informed Appellee that she had the right to appeal the Board’s determination to the county court within ten days and that the appeal “shall be by petition for a writ of certiorari under the traditional record review applicable to other types of appeals from quasi-judicial decisions of administrative bodies.”

Appellee timely filed a “Request for Hearing/Notice of Appeal/Petition for Writ of Certiorari Regarding Final Order Dangerous Dog Classification” in the county court. The county court judge, sua sponte, issued an order to the parties, acknowledging receipt of Appellee’s request for hearing and stating that it was acting in its appellate capacity, pursuant to section 767.12(l)(d), Florida Statutes, which provides that “the owner may file a written request for a hearing in the county court to appeal the [dangerous dog] classification .... ” In the order, the county court found that the appeal provided for in the statute was not an appeal de novo, but was instead a “traditional record review.” The court ordered the parties to file a record of the proceedings before the Board and appear for a hearing, at which the court would schedule briefing and oral argument.

Appellee responded by filing a “Suggestion of Lack of Jurisdiction or Motion for Rehearing or, Alternatively, to Alter or Amend Judgment and Request for Full Evidentiary Hearing.” Appellee’s motion asserted that either the county court lacked appellate jurisdiction or Appellee was entitled, under the Florida Constitution and case law, to a full evidentiary de novo hearing to challenge the Board’s determination that her dogs are “dangerous.” The county court issued an order denying Appellee’s suggestion of lack of jurisdiction, motion for rehearing, motion to alter or amend judgment, and request for full evidentiary hearing. Thereafter, Appellee filed a petition for writ of prohibition in the Marion Circuit Court, seeking to prohibit the county court judge from proceeding in an “appellate capacity” by only conducting a record review of the Board’s order. The circuit court granted the petition and concluded that the county court was required to conduct a de novo eviden-tiary hearing to allow Appellee to “answer and defend” against the Board’s dangerous dog classifications. This appeal timely followed.

At the outset, we note that the parties properly agree that the county court does have subject matter jurisdiction to hear challenges from the Marion County Code Enforcement Board. Article V, section 6(b), Florida Constitution, sets out the jurisdiction of county courts and provides that county courts “shall exercise the jurisdiction prescribed by general law. Such jurisdiction shall be uniform throughout the state.” The parties also properly agree that section 767.12(1)(d), Florida Statutes (2006), is such a general law and does empower the county court to hear Appellee’s challenge to the Board’s determination. The disagreement between the parties relates to the scope of that review authority, whether it is in the nature of a plenary appeal, by petition for writ of cer-tiorari, or de novo. We need not resolve this issue to dispose of this appeal because we think that prohibition was not available as a remedy and, therefore, the circuit court departed from the essential requirements of the law when it granted the petition and issued the writ.

The writ of prohibition is an extraordinary writ. It is extremely narrow in scope and may be invoked only in emergency cases to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow. Fla. Water Servs. Corp. v. Robinson, 856 So.2d 1035 (Fla. 5th DCA 2003). Prohibition will lie only to prevent a lower tribunal from acting without jurisdiction or in excess of its jurisdiction, not to prevent the erroneous exercise of jurisdiction. Id. at 1037. Here, it is without dispute that the county court has the jurisdiction to review the actions of the Board. The dispute centers on the nature and scope of that review, issues that address how the county court exercises its jurisdiction, not whether it has jurisdiction. Moreover, we do not view this case as appropriate for the use of this extraordinary remedy as no emergency exists, and Appellee may obtain complete relief in a plenary appeal.

We therefore reverse the order of the circuit court and quash the writ of prohibition.

REVERSED; WRIT QUASHED.

PLEUS and ORFINGER, JJ., concur.

      . Appellee concedes that her petition to the circuit court could not be treated as seeking certiorari because it was not timely filed. See Maliska v. Broome, 609 So.2d 711, 711 n. 1 (Fla. 4th DCA 1992); Lawrence v. Orange County, 404 So.2d 421 (Fla. 5th DCA 1981).


text:
    Gordon JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3138.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Rehearing Denied Sept. 7, 2007.

      Randall Berman and Louis G. Carres, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HOROWITZ, ALFRED J., Associate Judge.

Gordon Jacobs appeals his judgment of conviction and sentence for manslaughter with a firearm. We reverse and remand for a new trial, finding that the trial court abused its discretion in excluding certain evidence proffered by the defendant, Mr. Jacobs.

On the night in question, Joan Jacobs, the victim in this case, placed a 911 telephone call from the residence she shared with her husband, Gordon Jacobs. During that telephone call, the victim, through her screams, stated that her husband had choked her and that she wanted him out of the house. The tape recording of that call, a subsequent call from the emergency operator to the residence, and a call placed by Mr. Jacobs to the emergency operator were placed in evidence and played for the jury. The victim, Joan Jacobs, was killed by a single gunshot several minutes after her 911 call.

The state filed an amended information charging Mr. Jacobs with second degree murder with a firearm in the death of his wife. The defendant relied on the defense of insanity. A significant issue for the defense was the truthfulness or falsity of the asserted assault by the defendant upon his wife as she claimed in her 911 call. The defense contended that the victim had lied in the 911 call about being choked and that the essence of the call was a ruse contrived by Joan Jacobs and her lover to position herself more favorably and gain an advantage in subsequent dissolution of marriage proceedings.

The insanity defense of the defendant was largely based upon expert testimony suggesting that Mr. Jacobs’ mental health deteriorated over a period of time leading up to this day when he lost touch with reality upon discovering his wife screaming as she was making a bogus 911 call with allegations of physical abuse. Both the state and defense made the 911 call a focal point of their case.

The defendant tendered evidence of hundreds of telephone calls between Joan Jacobs and her lover during the three weeks prior to the shooting including a six-minute telephone call made minutes prior to the victim’s 911 call. The defendant had telephone records available as well as an employee from the cellular telephone company standing by to verify the records. The defense further sought to introduce a handwritten promissory note (IOU) from the victim’s lover to the victim which was written six days prior to the shooting. The trial court refused to allow the defendant’s daughter to testify to finding the IOU, the effect of which was to preclude the jury from seeing, on the reverse side, and a written note signed by the lover to Joan Jacobs imploring her to hurry up, saying that he was tired of her wasting time and wanted her with him. Evidence of the victim and her lover recently opening a joint postal box and joint bank account was also excluded from evidence.

The trial court disallowed the introduction of all the evidence on the basis that it was not relevant to the issue of insanity and would otherwise be cumulative. The defense argued relevancy in that this evidence, combined with other evidence, would support the defense view that Gordon Jacobs did not choke or attack Joan Jacobs and that she feigned abuse. The defense position was that this evidence collectively would show the jury that Joan Jacobs was coached by her lover to fabricate a 911 call claiming abuse in order to get Mr. Jacobs out of the house. The defense argued all this evidence would be relevant as to whether or not Mr. Jacobs had a psychotic break with reality at the time of the shooting. Mr. Jacobs knew of his wife’s affair and the defense expert considered this in arriving at the conclusion that Jacobs was legally insane at the time of the shooting.

Section 90.401, Florida Statutes, provides “relevant evidence is evidence tending to prove or disprove a material fact.” Generally, a trial court is granted broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion. Heath v. State, 648 So.2d 660, 664 (Fla.1994). The jury in this case was entitled to hear this evidence as it helped put the defense theory of the case in a proper context. The evidence sought to be introduced was neither cumulative nor remote in time to the shooting. The question of what is relevant to show a reasonable doubt may present different consideration than the question of what is relevant to show the commission of the crime itself. If there is any possibility of a tendering of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for it’s admissibility. Vannier v. State, 714 So.2d 470 (Fla. 4th DCA 1998); see also Rivera v. State, 561 So.2d 536, 539 (Fla.1990). This evidence would have put in context for the jury the circumstances surrounding the defendant’s state of mind when he came into contact with the victim at the time of the shooting. Bryan v. State, 533 So.2d 744 (Fla.1988). Regardless of how the trial court may view the evidence, it should be admitted as relevant if it tends to prove or support the theory of defense. Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005).

The state has not demonstrated how the exclusion of this evidence could be deemed “harmless error.” This excluded evidence was central to the defendant’s theory of his insanity defense. We therefore reverse the defendant’s conviction and remand for a new trial.

GUNTHER and FARMER, JJ., concur.


text:
    Javariss HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1019.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2007.
    Rehearing Denied Aug. 22, 2007.

      Javariss Horne, Miami, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 591 So.2d 911 (Fla.1991).

GRIFFIN, SAWAYA and MONACO, JJ., concur.


text:
    Vincent CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1739.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Vincent Clark, in proper person.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We reverse the order denying defendant’s motion to correct illegal sentence. Based on the authority of State v. Hearns, 961 So.2d 211 (Fla.2007), we find that the trial court erred in finding that the defendant’s conviction for battery on a law enforcement officer was a qualifying offense for purposes of sentencing defendant as a violent career criminal. This cause is therefore reversed and remanded with instructions to re-sentence defendant without the violent career criminal designation.

Reversed and remanded.


text:
    Waymond Joe GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1652.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Waymond Joe Gibson, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by Waymond Joe Gibson from an order denying a motion filed under rule 3.850, Florida Rules of Criminal Procedure. Gibson’s claim challenges the restructuring of his sentencing in connection with a Hale v. State, 630 So.2d 521 (Fla.1993) violation, and his allegation that trial counsel was ineffective during that resentencing hearing.

We reverse the summary denial of relief for either an evidentiary hearing or the attachment of portions of the record that conclusively refute Gibson’s ground for relief. See Jackson v. State, 825 So.2d 1021 (Fla. 1st DCA 2002); Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004).

POLEN, STEVENSON and MAY, JJ, concur.


author: FLETCHER, J.

text:
    Kanisky EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-280.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Kanisky Evans, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ, and SCHWARTZ, Senior Judge.
   FLETCHER, J.

Kanisky Evans seeks to reverse a final order of the trial court striking his post-conviction petition for lack of jurisdiction. We reverse.

In July, 2006, Kanisky Evans filed a petition in this court for writ of habeas corpus claiming ineffective assistance of appellate counsel, Case Number 3D06-1733 . In November, 2006, Evans filed a post-conviction petition pursuant to Florida Rule of Criminal Procedure 3.850 in the trial court, arising out of the same underlying case and alleging ineffective assistance of trial counsel, Case Number 3D07-280, the petition now before us. The trial court struck the Rule 3.850 motion for lack of jurisdiction, believing that it was without jurisdiction to entertain the motion while the habeas corpus petition was pending in this court. However, the trial court should not have dismissed the 3.850 motion because the two claims are separate and distinct and may proceed simultaneously. See White v. State, 855 So.2d 723 (Fla. 3d DCA 2003).

We therefore reverse the order below striking the defendant’s motion for post-conviction relief and remand for the trial court to reinstate and consider the merits of the petition.

Reversed and remanded.

      . As of this writing, the petition for habeas corpus, Case No. 3D06-1733, is still pending before this court.


text:
    Eleuterio ORTIZ-OLIVO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2207.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Eleuterio Ortiz-Olivo, Bowling Green, pro se.
    No response required for respondent.
   PER CURIAM.

Eleuterio Ortiz-Olivo filed a petition alleging that his appointed post-conviction counsel provided ineffective assistance in failing to raise a certain issue. Ineffective assistance of post-conviction counsel, however, is not a cognizable claim. See Kokal v. State, 901 So.2d 766, 777 (Fla.), cert. denied, 546 U.S. 983, 126 S.Ct. 560, 163 L.Ed.2d 471 (2005). Accordingly, we dismiss the petition.

FARMER, STEVENSON and TAYLOR, JJ., concur.


text:
    George Saint FLORANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1277.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Aug. 23, 2007.
    George Saint Florant, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Swain v. State, 911 So.2d 140 (Fla. 3d DCA 2005).


text:
    Eddie WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1323.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.

      Eddie Woods, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Angel BETANCOURT, Appellant, v. Zaida NUNEZ, Appellee.
    No. 3D06-1446.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Aug. 23, 2007.
    Nancy A. Hass, for appellant.
    Andrew M. Feldman, and Tahya Fuen-mayor, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Angel Betancourt appeals a final judgment of dissolution of marriage. We affirm the final judgment on all issues, except the trial court’s adjudication of appellee Zaida Nunez’s permanent alimony as non-modifiable.

Under Florida law, and as the wife correctly concedes, there is no provision for non-modifiable permanent alimony and any such provision should be stricken upon remand. See Smith v. Smith, 689 So.2d 1312 (Fla. 5th DCA 1997). We therefore affirm in part, and reverse the portion of the final judgment in which the trial court adjudicated the wife’s permanent alimony as non-modifiable.

Affirmed in part, and reversed and remanded with instructions.


text:
    MARKETING SYSTEMS GROUP, INC., et al., Appellants, v. CARNIVAL CORP. Carnival Cruise Lines, Inc., Appellees.
    No. 3D06-1111.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Bernardo Burstein, Miami, for appellants.
    Mase Lara, P.A., and Beverly D. Eisen-stadt, and Richard D. Lara, Miami, and Joel Lumer, for appellees.
    Before GERSTEN, C.J., and ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Gem Broad., Inc. v. Minker, 763 So.2d 1149, 1150 (Fla. 4th DCA 2000).


text:
    Ruben A. SYMONETTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1408.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Ruben A. Symonette, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. 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 further proceedings. If the trial court again enters an order summarily denying the postconviction 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:
    Maikel PEREZ, Petitioner, v. ONE OF the JUDGES OF The ELEVENTH JUDICIAL CIRCUIT COURT; State of Florida, Respondent.
    No. 3D07-1383.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Aug. 23, 2007.

      Maikel Perez, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Maikel Perez petitions this Court for a writ of mandamus seeking to compel the circuit court to rule on his motion to set case for re-sentencing hearing following an order modifying his original sentence to remove his classification as a habitual offender. We deny the petition.

The circuit court denied Perez’s second motion to correct an illegal sentence and modified his original sentence only with regards to his classification as a habitual offender. On or about March 14, 2007, Perez filed a motion to set the ease for resentencing. The trial court has not yet ruled on the motion and it forms the subject of the petition now under review.

Perez contends that more than a reasonable amount of time has elapsed since he filed his motion for resentencing without disposition. Furthermore, he contends that the circuit court’s unreasonable delay in scheduling the resentencing is a violation of his right to due process. Perez relies on Mason v. Circuit Court, Fifth Judicial Circuit, 603 So.2d 94, 95 (Fla. 5th DCA 1992), where the Fifth District granted a petition for writ of mandamus based upon a ruling which was pending for six months.

The circumstances in this case, however, do not merit the issuance of a writ of mandamus. As the Fifth District stated in Johnson v. State, 938 So.2d 639, 640 (Fla. 5th DCA 2006), the interest against meddling in the docketing schedule of the trial court and the interest in affording due process to a defendant must be weighed in a court’s determination of whether or not to issue a writ of mandamus. Any delay in the removal of Perez’s classification as a habitual offender does not constitute a due process violation because the resentencing will not change the duration of Perez’s sentence. Furthermore, Perez’s motion is only two months old and he has not yet allowed the court a reasonable time to rule.

We thus afford the circuit court deference to manage its own docket. Therefore, we deny the petition for writ of mandamus.

Petition denied.


text:
    COASTAL FUELS MARKETING, INC., Appellant, v. CANAVERAL PORT AUTHORITY, et al., Appellees.
    No. 5D06-1192.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Rehearing Denied Aug. 22, 2007.

      Stephen T. Maher of Shutts & Bowen, LLP, Miami, and Joseph M. Goldstein of Shutts & Bowen, LLP, Ft. Lauderdale, for Appellant.
    Harold T. Bistline of Stromire, Bistline & Miniclier, Cocoa, Patricia K. Olney of Patricia K. Olney, P.A., Port Canaveral, for Appellee Canaveral Port Authority.
    Pablo Acosta, Juan Carlos Antorcha, Angela E. Scott and Teri L. Donaldson, of Squire, Sanders & Dempsey, LLP, Miami, for Appellee Vitol S.A., Inc.
   TORPY, J.

In this bid protest case, after Ap-pellee, Canaveral Port Authority, rejected Appellant’s, Coastal Fuels Marketing, Inc.’s, bid protest as untimely, Appellant sought direct review in this Court, pursuant to section 120.68, Florida Statutes (2006), which authorizes review of “agency action.” In its answer brief, Canaveral Port Authority contends that we lack jurisdiction to hear this appeal because it is not an “agency.” We agree and transfer this action to the Circuit Court of Brevard County.

Canaveral Port Authority is the governing body for the Canaveral Port District, an independent special taxing district created by special act of the legislature (“the Act”). Hereinafter, the Canaveral Port Authority and the Canaveral Port District shall be collectively referred to as “Canaveral.” Canaveral operates a port in Bre-vard County. It requested proposals from several companies to build a petroleum terminal on land to be leased from Canaveral within its district. Appellant submitted a proposal, but Canaveral determined that the proposal was not responsive and rejected it in favor of Appellee, Vitol, S.A., Inc. When Appellant protested the award, Canaveral summarily rejected its protest, claiming that it was untimely. Appellant then sought review in this Court.

Although Canaveral raises several points in defense of its actions, we need only address its contention that we do not have jurisdiction because it is not an “agency,” as defined by the Administrative Procedure Act (“APA”), Chapter 120, Florida Statutes. Canaveral concedes that it directed Appellant to proceed in this manner, under the assumption that it was governed by the APA, but claims that it was in error. Because this issue involves our jurisdiction, Canaveral’s initial, erroneous submission to our jurisdiction binds neither Canaveral nor this Court. Therefore, we must address the issue of our jurisdiction on the merits based upon the record before us.

In urging that Canaveral is an “agency,” Appellant directs our attention to the statutory definition of “agency,” and in particular section 120.52(1)(b)2., which includes within the definition of agency, “each Authority, including a regional water supply authority.” In making this argument, Appellant overlooks the fact that, although the Act names Canaveral’s governing body an “Authority,” Canaveral is designated an “independent special taxing district,” a political subdivision of the State, with the power to operate, and tax residents, within a specific geographic region of Brevard County. As such, it does not fall within the definition of agency because its jurisdiction is wholly within Brevard County, and it is not expressly made subject to the APA. See § 120.52(1)(c), Fla. Stat. (2006) (all other units of government, such as cities and counties, are subject to APA only if expressly made so by the legislature or judicial decision); Eckert v. Bd. of Comm’rs of N. Broward Hosp. Dist., 720 So.2d 1151 (Fla. 4th DCA 1998) (special taxing district, created by special law, designated to operate intra-county, which has not expressly been made subject to the APA, is not “agency.”).

Even if Canaveral were designated as an “Authority,” it is still not the type of governmental entity intended to fall within the purview of the APA because it does not have statewide or regional jurisdiction. In Rubinstein v. Sarasota County Public Hospital Board, 498 So.2d 1012 (Fla. 2d DCA 1986), the court considered whether the hospital board was an agency within the definition of section 120.52(l)(b). Although the hospital board fell within the literal definition of agency, in adopting a “territorial approach,” the court determined that it was not an agency because it did not have statewide or regional jurisdiction. We followed Rubinstein in Orlando-Orange County Expressway Authority v. Hubbard Construction Co., 682 So.2d 566 (Fla. 5th DCA 1996). There, by contrast, we held that the Expressway Authority was an agency because its jurisdiction encompassed two or three counties.

Here, although Appellant speculates that Canaveral’s jurisdiction extends outside Brevard County, it does not direct our attention to anything within the Act that supports its argument, and our review of the Act leads us to a contrary conclusion. See also Canaveral Port Auth. v. Dep’t of Revenue, 690 So.2d 1226, 1228 (Fla.1996) (Canaveral not state “agency” for purposes of immunity from ad valorem taxes); Amerson v. Jacksonville Elec. Auth., 362 So.2d 433, 435 (Fla. 1st DCA 1978) (electric “authority” not subject to APA).

Concluding as we have that our jurisdiction is lacking, we transfer this action to the Circuit Court of Brevard County with directions that the Notice of Appeal be treated as a petition for certiorari. Rubinstein, 498 So.2d at 1014.

CASE TRANSFERRED.

PLEUS and ORFINGER, JJ., concur.

      . Ch. 2003-335, Art. II, § 1, Laws of Fla.

      . Ch. 2003-335, Art. I, § 1, Laws of Fla.


text:
    BLUE STONE REAL ESTATE, Appellant, v. David WARD, Matrix Employee Leasing, Inc., Employer # 1, First Commercial Claims Services, Carrier # 1, Enterprise HR, Employer # 3, Insurance Companies of Americas, Carrier # 3, and E & L Concrete Plumbing, Employer # 4, Appellees.
    Nos. 1D06-5117, 1D06-5282.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    Rehearing Denied Aug. 28, 2007.
    Steven Hovsepian and Katherine Stone, of Barbas, Koenig, Nunez, Sanders & Butler, P.A., Tampa, for Appellant.
    David I. Rickey, Orlando, and Bill McCabe, Longwood, for Appellee David Ward; Kristin L. March and Kristin J. Longberry, of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellee Matrix Employee Leasing; Gregory D. White, of Hurley, Rogner, Miller, Cox & Waranch, P.A., Winter Park, for Appellee Enterprise HR.
   PER CURIAM.

In this workers’ compensation appeal, appellant Blue Stone Real Estate and cross-appellant David Ward, the claimant in the proceedings below, appeal a non-final order rendered by the Judge of Compensation Claims (JCC) on September 11, 2006, finding in part that claimant was not an employee of Matrix Employee Leasing at the time of his compensable accident. We find that there is not competent, substantial evidence in the record to support the JCC’s conclusion. Therefore, we reverse and remand for further proceedings.

I. Facts

In 2004, Mr. Ward was hired to work for E & L Concrete Pumping, Inc. At the time he was hired, E & L maintained two employees, Steven McMahon, the owner and president, and the claimant, David Ward. Accordingly, E & L negotiated a contract with Matrix, an employee leasing company, wherein Matrix would employ claimant and “lease” him to work for E & L. Pursuant to the contract, Matrix agreed to manage E & L’s payroll and provide workers’ compensation insurance for its employees leased to E & L. In addition, the contract stated that Matrix would notify each employee of the client company “at the inception and termination of agreement.” Claimant filled out and submitted an employment application to Matrix in July 2004, and subsequently became a Matrix employee, leased to E & L.

After several months so employed, claimant testified that, due to an increasing shortage of available construction work in the state, he and Mr. McMahon made plans to spend several months in New York working for Mr. McMahon’s brother. Accordingly, Mr. McMahon testified by deposition that in October 2004, he spoke with a Matrix employee about rendering his account “inactive” for those months he would be in New York, and was informed he could simply fax a written request to Matrix so stating. He also testified he was told that he could bring his account back to active status by similarly faxing a written request when he returned to Florida. In contrast, however, Matrix submitted deposition testimony from its payroll manager that Matrix does not continue its contracts with companies operating outside the state of Florida, nor does it continue to provide workers’ compensation insurance to such out-of-state companies. Indeed, Matrix maintains that it severed its relationship with E & L in October 2004, when Mr. McMahon and claimant moved their business to New York. Nonetheless, the record indicates, and Matrix concedes, that it did not provide Mr. McMahon or claimant with written notice of termination.

Mr. McMahon and claimant returned to Florida in early December 2004. Upon returning, Mr. McMahon testified that he faxed Matrix a written request that his account be returned to active status. Mr. McMahon and the claimant both testified that they believed at the time that Matrix would continue providing them workers’ compensation insurance. However, Mr. McMahon also testified he encountered some problems calling in his payroll information to Matrix after his return. In particular, Mr. McMahon testified that an employee of Matrix informed him that Matrix wanted to “redo” the contract. Nonetheless, Mr. McMahon contends the employee instructed him to go ahead and pay his employees from the company account, and that Matrix would send him a “zeroed out check.”

In December 2004, E & L was hired by appellant Blue Stone Real Estate, a general contractor, to work on a construction site in Citrus Hills, Florida. On December 13, 2004, claimant was at work on the Blue Stone site, pouring concrete into a lintel frame, when the wall on which he was standing collapsed beneath him. Claimant fell more than fourteen feet, shattering his right leg. He was taken to Citrus Memorial Hospital, and treated for several compound fractures. In total, claimant underwent four surgeries, as well as a skin graft procedure. He remained in Citrus Memorial for several weeks, and later was transferred to a nursing home. Claimant has not attained maximum medical improvement.

E & L timely notified Matrix of claimant’s accident. Matrix initially provided workers’ compensation benefits, covering claimant’s several surgeries, as well as his stays in the hospital and nursing home. However, Matrix and its insurance carrier, First Commercial Claims Services, later entered a Notice of Denial, denying claimant further treatment or benefits on grounds that claimant’s employment with Matrix ended in October 2004, when claimant moved to New York.

Claimant has filed several petitions for benefits, listing the following companies as his employer: (1) Matrix Employee Leasing and its insurance carrier First Commercial Claims Services, (2) Blue Stone Real Estate (which does not independently carry workers’ compensation insurance), (3) Enterprise HR and its insurance carrier Insurance Companies of America, and (4) E & L Concrete Pumping. Matrix has also filed several petitions for benefits, seeking reimbursement for benefits already paid on claimant’s behalf. On June 9, 2006, the parties agreed to bifurcate the issues presented in the various petitions. Accordingly, on August 24, 2006, the JCC held a hearing to determine whether claimant suffered a compensable accident, and further, which of the companies listed in the petitions for benefits was claimant’s employer at the time of the accident.

On September 11, 2006, the JCC entered the instant non-final compensation order. In relevant part, the JCC found Matrix severed its employment relationship with claimant in October 2004, and that claimant had actual notice of his termination. Thus, the JCC found Matrix was not claimant’s employer on December 13, 2006, the date of his accident, and had no legal obligation to provide him workers’ compensation benefits. Further, the JCC found that claimant was an uninsured subcontractor working for Blue Stone, a general contractor, on the date of his accident. As such, the JCC ruled claimant was an employee of Blue Stone, by operation of section 440.10(l)(b), Florida Statutes (2004), and entitled to look to Blue Stone for workers’ compensation benefits. The JCC reserved jurisdiction to determine the amount and nature of benefits owed to claimant.

Blue Stone and claimant presently appeal the JCC’s order. We have jurisdiction to review the non-final order pursuant to Florida Rule of Appellate Procedure 9.180(b)(1)(C) (stating in part that the First District Court of Appeal shall review any nonfinal order of a lower tribunal which adjudicates compensability, provided that “the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time.”).

II. Analysis

Blue Stone and the claimant both argue on appeal that there is no competent, substantial evidence to support the JCC’s finding that claimant’s employment with Matrix was terminated in October 2004, or alternatively, that claimant had notice of his termination. We find that even if Matrix did terminate claimant’s employment in October, when claimant left Florida to work in New York, Matrix nonetheless failed to provide claimant sufficient notice of the termination.

Employee leasing companies are required to notify both their clients and employees when they intend to terminate the employment relationship. See § 468.525(4) (f), Fla. Stat. (2004) (providing that an employee leasing company’s contracts with its clients must provide for “written notice of the relationship between the employee leasing company and the client company to each leased employee it assigns to perform services at the client’s worksite”) (emphasis added).

Further, we have held that section 468.525(4)(f) requires an employee leasing company to provide notice of termination to each, employee. In Payroll, Inc. v. Elicker, 668 So.2d 1035 (Fla. 1st DCA 1996), this court affirmed on appeal a final compensation order, wherein the JCC ordered Payroll Inc., an employee leasing company, to provide the claimant workers’ compensation benefits. Payroll asserted that it sent a letter to its client company several days before the claimant’s injury terminating the contract, and thereby terminated claimant’s employment. Nonetheless, neither Payroll, nor any other party, advised the claimant that he was no longer a Payroll employee. Id. at 1037. Accordingly, we noted, “[a]t issue is whether an employee leasing company which terminates its contractual relationship with a client company is required to give notice to its employees that they are no longer employed by the leasing company.” Id. at 1036. We held that the employee leasing company’s letter to its client company, absent evidence of notice to the claimant, was ineffective to terminate the claimant’s employment. “Even employment contracts which are terminable at will and of no specific duration require some reasonable notice for termination.” Id. at 1038.

In this case, there is no dispute that Matrix failed to provide claimant direct, written notice of his termination in October 2004. However, the JCC distinguished Payroll from the present case, finding that although Matrix did not provide claimant written notice of his termination, claimant nonetheless had actual notice of the fact. The JCC found claimant knew he was no longer a Matrix employee when he and Mr. McMahon went to New York, and that he also knew certain steps had to be taken on their return to renew his employment with Matrix. We find there is not competent, substantial evidence in the record to support this finding. Claimant testified that, while he was aware that Matrix would not continue to provide payroll while he and Mr. McMahon worked in New York, he believed his workers’ compensation insurance coverage with Matrix resumed without incident when he returned to Florida in December. He never testified that he knew his workers’ compensation coverage terminated when he went to New York, nor did he testify that he knew there were certain steps Mr. McMahon would have to take in order to renew their coverage. His understanding was further supported by the fact that E & L was permitted to pour concrete on at least two job sites after returning to Florida. Indeed, claimant testified that he believed the general contractors at such sites “wouldn’t have let us back in there unless they had paperwork saying we were covered.”

Matrix asserts that claimant had notice of termination through his direct supervisor, Mr.' McMahon. It argues that Mr. McMahon was told, prior to leaving for New York, that his contract with the company would be terminated when he left the state, and that he would have to renegotiate a new contract when he returned. It also contends that Mr. McMahon encountered problems calling in payroll information for the weeks after he returned to Florida, and that such problems should have indicated that he was no longer one of Matrix’s active clients. Nonetheless, Mr. McMahon testified that he never informed claimant of the problems he experienced with calling in payroll, and that claimant would have no reason to know. Thus, what Mr. McMahon did know, or should have known, prior to claimant’s injury is of little consequence. The law requires that Matrix provide claimant with notice of his termination, which it failed to do.

Therefore, we find there is no competent, substantial evidence in the record which would support the conclusion that claimant was given notice his employment had been terminated. Blue Stone and claimant have raised a number of other issues regarding the JCC’s compensation order. However, because we hold that Matrix provided claimant insufficient notice of his termination, the remaining issues on appeal are rendered moot.

REVERSED and REMANDED for further proceedings.

ALLEN, WOLF, and POLSTON, JJ., concur.


author: PLEUS, J.

text:
    D.B., Mother of T.P., a Child, Appellant, v. W.J.P., Legal Custodian, Appellee.
    No. 5D07-910.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Rehearing Denied Aug. 22, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Michael E. Morris, Orlando, for Appel-lee.
   PLEUS, J.

The underlying action began as a private dependency action under Chapter 39 of the Florida Statutes when the paternal grandmother filed a dependency petition against the parents. Pursuant to a mediation agreement, the parties agreed to dismiss the dependency action and obtain an order granting petition for temporary custody to the grandmother under Chapter 751. The mother appeals this order and argues that the trial court erred by awarding custody without conducting a hearing to address her objections. We agree and reverse.

In August 2006, the grandmother filed a dependency petition against the mother and father. She alleged that the mother had physically abused the child and the father had engaged in domestic violence with the mother in the child’s presence. The lower court appointed the mother and father counsel based on their indigency.

In January 2007, a mediation agreement was filed with the court. The agreement provided that there would be a Chapter 751 kinship order establishing the grandmother as the temporary custodian of the child, with specified visitation for the parents. It also provided that the underlying dependency action would be dismissed. The father, who did not attend the mediation, later ratified the agreement.

On January 29, the lower court sent notice to the parties indicating it had received a letter from the mother. In it, the mother stated that she did not agree with the mediation and did not want to settle the case. She felt pressured into going to mediation because her attorney told her it would look good in front of the judge and she would get to keep custody of her child. She wanted to fire her attorney and hire a private attorney to regain custody.

On January 30, the grandmother filed a petition for temporary custody of minor child by extended family, which alleged that the mother and father had consented to the petition in the mediation agreement. Attached to the petition was a proposed order. On February 7, the lower court signed and entered the temporary custody order. The mother timely appealed.

The order on appeal was entered pursuant to the mediation agreement and Chapter 751. Chapter 751 sets forth a statutory procedure for extended family members to obtain temporary custody of a minor. Section 751.04, Florida Statutes, states that “reasonable notice and opportunity to be heard must be given to the parents” before the court can enter a temporary custody order pursuant to Chapter 751. Further, section 751.05 states in pertinent part:

(1) At the hearing on the petition for temporary custody, the court must hear the evidence concerning a minor child’s need for care by the petitioner, all other matters required to be set forth in the petition, and the objections or other testimony of the child’s parents, if present.
(2) Unless the minor child’s parents object, the court shall award the temporary custody of the child to the petitioner when it is in the best interest of the child to do so.
(3) If one of the minor child’s parents objects to the granting of temporary custody to the petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.
(6) At any time, either or both of the child’s parents may petition the court to modify or terminate the order granting temporary custody. The court shall terminate the order upon a finding that the parent is a fit parent, or by consent of the parties. The court may modify an order granting temporary custody if the parties consent or if modification is in the best interest of the child.

In Glockson v. Manna, 711 So.2d 1332 (Fla. 2d DCA 1998), the parents appealed an order granting temporary custody of their children to the children’s aunt pursuant to Chapter 751. The appellate court reversed, noting that because the father had objected to the order, the statute required the lower court to find by clear and convincing evidence that the parent had abused, abandoned or neglected the children. Id. The order contained no such findings and the hearing transcript indicated that the parents were not given a full opportunity to be heard. Id. at 1332-33. The court concluded by stating:

Care should be taken by trial courts utilizing chapter 751 when entering custody orders over the objection of biological parents, or simply without their consent, to observe the fundamental procedural safeguards accorded biological parents in dependency proceedings, including, most critically, notice and an opportunity to be heard.

Id. at 1333.

Furthermore, this Court has noted that Chapter 751 is a codification of the common law rule of parental preference, which provides that “where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child’s welfare.” Hammond v. Howard, 828 So.2d 476, 478 (Fla. 5th DCA 2002) (quoting Daugharty v. Daugharty, 571 So.2d 85, 86 (Fla. 5th DCA 1990)).

In re N.Z.B., 779 So.2d 508 (Fla. 2d DCA 2000), is similar to the instant case and its reasoning is instructive. During the course of a divorce proceeding, the parents and the maternal grandmother entered into an agreement allowing the grandmother to have “temporary and permanent primary residential care” of the children. Just before the mother’s death, the grandmother’s attorney delivered to the court an order approving the agreement. Id. at 510. The father moved to set aside the order on the ground that he had not been provided notice of it. The grandmother argued that the agreement should be enforced unless the father could prove duress, fraud, coercion or misrepresentation. The trial court held an eviden-tiary hearing and found that the father freely and voluntarily entered into the agreement. Id. at 511.

The appellate court reversed for several reasons. Most relevant to the instant case, the court stated:

[T]he father’s right to make decisions regarding the care, custody, and management of his children’s lives is a fundamental liberty interest of constitutional dimensions. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Von Eiff v. Azicri, 720 So.2d 510, 513 (Fla.1998). The father did not waive his parental rights in the addendum. Cf. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (finding presumption against waiver of constitutional rights); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (same). Instead, he agreed to share his parental responsibilities with a person who possessed no parental rights in the absence of a court order. Despite the language in the addendum purporting to give “permanent” custody to the maternal grandmother, the father was free to withdraw his consent to this addendum and obtain custody of his children, particularly at a time when no valid court order had approved this private agreement. See Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984) (en banc). See also Hernandez v. Thomas, 50 Fla. 522, 39 So. 641 (1905); Bordley v. Blake, 478 So.2d 510 (Fla. 1st DCA 1985)....

Id. at 511-12 (emphasis added).

Based on the above authorities, we conclude that the lower court erred in awarding temporary custody to the grandmother because: (1) the mother, by letter, withdrew her consent to temporary custody prior to the entry of an order approving the agreement, as was her right under the common law rule of parental preference; (2)the mother was not notified of the petition for temporary custody or the proposed order; (3) the court failed to conduct a hearing and give the mother an opportunity to be heard, as required by sections 751.05(4) and (5); and (4) the court failed to make findings required by section 751.05.

The grandmother argues that the mother’s letter failed to sufficiently allege that she was coerced into signing the mediation agreement. Instead, it only alleged that the mother felt pressured into attending the mediation, not into signing the agreement. This Court has held that the grounds for setting aside an agreement reached through mediation is limited to fraud, misrepresentation in discovery and coercion. Crupi v. Crupi, 784 So.2d 611 (Fla. 5th DCA 2001). However, as previously discussed in In re N.Z.B., this standard does not apply in the instant case. The standard applied in Crupi applies to agreements between parents. The agreement in the instant case was between the parents and a third party. Thus, the rule of parental preference applied. Hammond. This rule allowed the mother to withdraw her consent at any time prior to the court approving the agreement. In re N.Z.B.

Accordingly, we reverse the order granting petition for temporary custody and remand for further proceedings.

REVERSED AND REMANDED.

LAWSON and EVANDER, JJ„ concur.

      . Under these circumstances, the addendum can be likened to the temporary custody of minor children by an extended family member authorized by chapter 751, Florida Statutes (1997). This chapter permits a parent to terminate the order so long as the court finds the parent is a fit parent. See § 751.05(7).

      . Because of our reversal on other grounds, we need not reach the mother's additional argument that the mediation agreement was subject to attack on ineffective assistance grounds. However, we note that this argument lacks merit. Generally, a party to an agreement may not move to set it aside on the ground that he or she has received incompetent legal advice. Casto v. Casto, 508 So.2d 330 (Fla.1987); Tubbs v. Tubbs, 648 So.2d 817, 818 (Fla. 4th DCA 1995). Furthermore, in S.B. v. Department of Children & Families, 851 So.2d 689 (Fla.2003), the supreme court held that the right to collaterally challenge ineffective assistance of counsel in dependency proceedings is not automatic. It is limited to those cases in which the proceedings may result in the permanent termination of parental rights or when a parent may be charged with criminal child abuse. S.B., 851 So.2d at 693-94. In the instant case, the proceedings did not lead to termination of parental rights, nor was there any effort to bring criminal charges on the mother's alleged physical abuse. Accordingly, the mother did not have the right to collaterally challenge her counsel's effectiveness. The mother attempts to distinguish S.B. by arguing that she directly, not collaterally, challenged her lawyer's ineffectiveness, first in her letter, and then on direct appeal. This distinction lacks significance.


text:
    Laray SMITH, Petitioner, v. Monica DAVID, Chair, Florida Parole Commission, Respondent.
    No. 1D06-5057.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    Rehearing Denied Aug. 30, 2007.

      Petitioner Laray Smith, pro se.
    Rim Fluharty, General Counsel, and Bradley R. Bisehoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Finding no merit to petitioner’s claims, we DENY the petition for writ of certiorari. We note that petitioner failed to preserve his inmate account lien argument below. See Kemp v. McDonough, 955 So.2d 635, 637 (Fla. 1st DCA 2007).

KAHN, BENTON and VAN NORTWICK, JJ., concur.


author: WHATLEY, Judge.

text:
    In the interest of A.W., JR., A.W., Sr., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    No. 2D06-3000.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    Rehearing Denied Aug. 24, 2007.

      Lisa P. Kirby, Naples, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee Department of Children and Family Services.
    Thomas Wade Young, Orlando, for Ap-pellee Guardian ad Litem Program.
   WHATLEY, Judge.

A.W., Sr. (the Father), appeals the order terminating his parental rights to his son, A.W., Jr. We reverse.

The Department of Children and Family Services (DCF) filed a petition for termination of the Father’s parental rights to A.W., Jr., because of the Father’s arrest for killing the child’s mother. The child was seven months old at the time of the shooting, and he was in the home at the time of the shooting. In the order of termination, the trial court stated that the Father told a child protective services investigator that he and the mother tussled. The court stated that the evidence showed that the Father then killed the mother by putting a gun against her skull and firing. The court noted that the Father told the investigator that he shot and killed the mother but that he said nothing about it being accidental or in self-defense. As of the date of the termination hearing, the Father had not been convicted.

In its petition for termination, DCF alleged that termination was appropriate under either section 39.806(1)(b), (c), or (f), Florida Statutes (2005). The trial court found that DCF presented sufficient evidence to support termination pursuant to sections 39.806(1)(c) and (f).

Section 39.806(l)(c) provides for termination of parental rights

[w]hen the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

“To prove the grounds for terminating parental rights under section 39.806(l)(c), the trial court must find that the children’s lives, safety, well-being, or physical, mental, or emotional health would be threatened by continued interaction with the parent, regardless of the provision of services.” L.N. v. Dep’t of Children Family Servs. (In re E.D.), 884 So.2d 291, 295 (Fla. 2d DCA 2004). In the order of termination, the trial court found that it is self-evident that a parent who kills a child’s mother has engaged in conduct toward the child that demonstrates that continued involvement in the parent-child relationship threatens the child. However, the court made no finding that such is the case irrespective of the provision of services. Although there was testimony that there are services available to the Father whether he is incarcerated or not, there was no testimony that his continued involvement with A.W., Jr., threatens the child irrespective of the provision of those services. Consequently, the trial court erred in terminating the Father’s rights pursuant to section 39.806(l)(c).

Section 39.806(l)(f) provides for termination of parental rights

[w]hen the parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling.
2. As used in this subsection, the term egregious conduct means abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

The trial court found that the Father’s shooting of the mother during the child’s first year of life was egregious because it deprived the child of the mother’s love, care, and services. While the Father’s killing of the child’s mother by firing a gun that he placed against her head meets the statutory definition of egregious, that is not the end of the inquiry under section 39.806(l)(f). There must be a nexus between the egregious conduct and some neglect, abuse, or harm to the child. See D.A.D. v. Dep’t of Children Family Servs. (In re D.A.D. II), 903 So.2d 1034 (Fla. 2d DCA 2005). The trial court made no findings regarding a nexus between the Father’s conduct and an adverse impact on A.W., Jr. Indeed, the only testimony regarding the impact of the shooting on the child was that he had exhibited no effects from being in the house at the time of the shooting. Thus the trial court also erred in terminating the Father’s rights pursuant to section 39.806(l)(f).

The trial court further erred in failing to address the constitutional requirement that termination of the Father’s rights be the least restrictive means of protecting the child from harm. See S.S. v. D.L., 944 So.2d 553, 557 (Fla. 4th DCA 2007). We note that the child has been placed with the maternal grandmother. The Father’s counsel stated at the hearing that this case could go to long-term relative custody. However, counsel conceded that if the Father is convicted of the murder, DCF may have grounds for termination. See 39.806(d).

In light of our reversal of the order of termination, we need not reach the issue of whether DCF presented clear and convincing evidence that termination was in the manifest best interests of the child.

Reversed.

DAVIS and WALLACE, JJ., Concur.


text:
    Robert MINERD, Appellant, v. WALGREENS AND KEMPER NATIONAL INSURANCE COMPANIES, Appellees.
    No. 1D06-2404.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Rehearing Denied Aug. 29, 2007.

      Gilbert R. Panzer of Law Office of Gilbert R. Panzer, Jr., P.A., Boynton Beach, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Kip O. Lassner and Samuel S. Frankel, Jr., of Cole, Scott & Kissane, P.A., Plantation, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, claimant, Robert Minerd, challenges an order of the Judge of Compensation Claims (JCC) awarding him attorney’s fees. We reverse and remand for proceedings consistent with this opinion.

The first issue claimant raised was whether the JCC erred in concluding that a reasonable hourly rate was $200.00. The standard of review in a workers’ compensation appeal where the issue presented involves a reasonable hourly rate for an attorney’s fees is whether competent, substantial evidence supports the JCC’s conclusion. See Morris v. Dollar Tree Store, 869 So.2d 704 (Fla. 1st DCA 2004).

In Moms, this Court held that it was improper for the JCC to award an hourly fee of $168.00 when the only witness offering evidence as to the fee amount testified that a case of this type warranted an hourly fee of $200.00. This Court explained:

[I]n deciding what is a reasonable hourly rate, [the JCC] may consider the fee customarily charged in the area for similar legal work. In making such assessment, the award must be predicated upon expert testimony regarding the reasonableness of the hourly rate.

869 So.2d at 706 (citations omitted).

In the instant case, the JCC concluded that $200.00 was a reasonable hourly rate. There is, however, no competent, substantial evidence in the record to support this conclusion. Claimant’s counsel opined that a reasonable hourly rate would be $265.00 per hour. Employer/carrier’s (E/C’s) counsel opined that a reasonable hourly rate would be $225.00 per hour. This was the only evidence presented on the issue.

The second issue claimant raised was whether the JCC erred in concluding that claimant’s counsel expended only 18 hours on establishing entitlement to attorney’s fees. The standard of review in a workers’ compensation appeal in which the issue presented involves the reasonableness of an attorney’s fee award is whether competent, substantial evidence supports the award. See Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004).

In Sanchez, this Court held that it was improper for a JCC to make deductions to claimant’s counsel’s sworn affidavit and expert testimony regarding the hours that claimant’s counsel represented he reasonably expended in securing benefits on behalf of his client, when neither were rebutted with anything more than argument by the E/C. This Court explained:

The most telling deficiency in the fee awarded is that no evidence was submitted [o]n behalf of the numerous itemized reductions. Appellee, the [E/C], made no effort to cross-examine claimant’s lawyer regarding the reasonableness of the fee he submitted for approval. The decreases appear to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable for the amount of time represented by counsel in serving his client. Such an analysis makes informed appellate review impossible.

Id. at 1174.

In the instant case, claimant’s counsel submitted two time sheets representing that he expended a total of 112 hours on claimant’s case. The JCC made reductions and deletions to entries in the time sheets which he deemed to be clerical/non-attorney tasks, memo to status and interoffice communications with assistant, vague/non-specific tasks, tasks unnecessary or unrelated to benefits secured, and excessively billed in relation to tasks claimed. There is, however, no competent, substantial evidence in the record to support any of the JCC’s reductions or deletions. E/C neither cross-examined claimant’s counsel regarding the reasonableness of the entries in the time sheets nor presented any evidence on the subject. Therefore, as in Sanchez, informed appellate review is impossible here because it appears that the JCC’s reductions and deletions were based solely on the JCC’s own subjective and personal experience of what he deemed reasonable and not on competent, substantial evidence.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Elias OGANDO, Appellant, v. Jany E. MUNOZ, Appellee.
    No. 3D06-1539.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Rehearing Denied Aug. 27, 2007.

      Elias Ogando, in proper person.
    Hobel Florido, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Elias Ogando (“Father”) appeals a final judgment of paternity (“final judgment”), which, in part, awards primary residential responsibility of the minor child, who was born in April 2005, to the mother, Jany E. Munoz (“Mother”); sets forth the Father’s visitation rights; requires the Father to pay child support in the amount of $656 per month; found that the Father’s child support arrearage totals $8,803; and requires the Father to pay $100 per month toward the arrearage until paid in full. We affirm, in part; reverse, in part; and remand for further proceedings consistent with this opinion.

The Father argues that the trial court’s findings as to the parties’ net income are not supported by the record. As we cannot reconcile the trial court’s findings as to the Mother’s net income, we reverse this portion of the final judgment and remand for a reconsideration and recalculation of the Mother’s net income.

A review of the trial court’s final judgment indicates that the trial court based the Father’s child support obligation on its finding that the Mother has a net monthly income of $3,215, the Mother pays $85 per week in childcare, and the Father has a net monthly income of $2,831. However, based on the record before us, we cannot reconcile the trial court’s findings as to the Mother’s net income. In her financial affidavit dated February 2, 2005, but filed February 7, 2006, the Mother stated that her monthly gross income was $4,900 per month, but failed to state the amount of her monthly net income. Based on a monthly gross income of $4,900, it seems unlikely that she nets only $3,215 per month. Therefore, we reverse the trial court’s findings as to the Mother’s net income, and remand for a reconsideration and recalculation of her monthly net income, and a recalculation of the Father’s monthly child support obligations, if necessary.

As to the Father’s net income, in his financial affidavit dated December 9, 2005, he represented that his monthly gross income was $2,759.50 and his monthly net income was $2,290.35. However, based on several paystubs in the record that are dated in late 2005, it appears that he earns much more. The Father’s pay-stubs indicate that his gross earnings are $1,602.15 biweekly, which equates to $41,655.90 per year and approximately $3,471.32 per month. Therefore, the trial court’s finding as to the Father’s net monthly income of $2,831 is supported by the record.

The Father also contends that the trial court abused its discretion by failing to consider his support obligation for his three other children who live with him when setting his child support obligation for the parties’ minor child. We agree.

In the instant case, based on the figures contained in the final judgment, after paying the court-ordered child support and arrearage, the Father would have $2,075 per month to support his three other children and their mother, and to exercise his visitation rights with the parties’ child, which presently requires the Father to drive from Yero Beach to Miami Lakes. On the other hand, based on the figures contained in the final judgment, after receiving the court-ordered child support and arrearage, the Mother would have $3,971 per month to support herself, the parties’ child, and another child.

The child support guidelines do not directly address the current situation. Section 61.30(3)©, Florida Statutes (2006), allows a deduction from gross income for “[c]ourt-ordered support for other children which is actually paid.” In the instant case, section 61.30(3)© is inapplicable because the Father does not pay “court-ordered” support as his three other children reside with him. Although the Father is not entitled to a deduction from gross income for the support he provides to his three other children, section 61.30(11)(a)(11), Florida Statutes (2006), allows a court to “adjust the minimum child support award, or either or both parents’ share of the minimum child support award ... to achieve an equitable result.” While we recognize that this provision is discretionary, we conclude that under the circumstances presented in this case, specifically the Father’s limited net income, the trial court abused its discretion by not considering the Father’s obligation to support his three other children. See Henderson v. Henderson, 905 So.2d 901, 904 n. 2 (Fla. 2d DCA 2005)(“While the obligation to support children not subject to any prior support action is not an allowable deduction from gross income, in some circumstances it is a matter that can be considered as grounds for a deviation under other provisions of section 61.30.”)(citing Hutslar v. Lappin, 652 So.2d 432 (Fla. 1st DCA 1995)); Joye v. Jones, 789 So.2d 508, 509 (Fla. 1st DCA 2001)(noting that “child-support guidelines statute vests wide discretion in the trial court to take into account a parent’s obligation of support to other children, in the determination of what is a proper child-support award for the minor child who is the subject of the support action” and holding that “lower tribunal acted within its discretion in considering evidence pertaining to [father’s] seemingly indulgent or extravagant lifestyle and his generous church contributions during periods when he claimed to be in dire financial straits”); Flanagan v. Flanagan, 673 So.2d 894, 895 (Fla. 2d DCA 1996)(holding that trial court “abused its discretion by failing to consider [mother’s] preexisting support obligation to [son] in determining the amount she could pay for support of her two later-born sons.”); Hutslar v. Lappin, 652 So.2d 432, 434 (Fla. 1st DCA 1995)(holding that parent’s obligation of support for “other children is a matter that can be considered under section 61.30(ll)(k)” and finding that the trial court abused its discretion by failing to consider other children when determining child support award); Short v. Short, 577 So.2d 723, 723 (Fla. 2d DCA 1991)(holding that trial court did not abuse its discretion by deviating from the child support guidelines where section 61.30 permits a trial court to adjust the child support award to achieve an equitable result).

The Father raises other arguments on appeal, including that the trial court abused its discretion by denying his request for shared custody of the parties’ minor child, and that the visitation arrangement was also an abuse of discretion. As there is no merit as to these arguments, we affirm the trial court’s determinations as to these matters.

Affirmed in part; reversed in part; and remanded for further proceedings.

      . On the other hand, on April 3, 2006, he filed his child support guidelines worksheet indicating that his monthly income was $2,046, and in his motion to deviate from the child support guidelines, he stated that his gross yearly income was $28,041, which would equate to $2,336.75 per month.

      . We do acknowledge that based on the documents contained in the record, his past yearly gross earnings appear to be substantially less.

      . The record indicates that the Father is the sole support for his three other children and their mother, and that the Mother is the sole support for her other child.

      .Section 61.30(1 l)(a)(l 1), Florida Statutes (2006), provides as follows:
      (ll)(a) The court may adjust the minimum child support award, or either or both parents’ share of the minimum child support award, based upon the following considerations:

      11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.

      . In Flanagan, in finding that the trial court abused its discretion, the Second District relied on section 61.30(1 l)(k), Florida Statute (1993), which provides:
      (11) The court may adjust the minimum child support award, or either or both parent’s share of the minimum child support award, based upon the following considerations:

      (k) Any other adjustment which is needed to achieve any equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.
      Section 61.30(1 l)(k) has since been renumbered as section 61.30(1 l)(a)(l 1), but both provisions are similarly worded.