author: PER CURIAM. THOMPSON, J.,

text:
    Danny Ray JACKSON, Appellant, v. Leonard J. MORILLO, M.D., et al., Appellees.
    No. 5D06-1117.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2007.

      J. Scott Murphy of Allen & Murphy, P.A., Maitland, for Appellant.
    Michael S. East and Scott A. Tacktill of The Unger Law Group, P.L., Orlando, for Appellees.
   PER CURIAM.

Danny Jackson appeals a final summary judgment rendered in this medical malpractice negligence lawsuit in favor of the appellees, Leonard J. Morillo, M.D., Leonard J. Morillo, M.D., P.A., and Doctors Surgery Center Partnership d/b/a Doctors Surgery Center, Inc. The trial court determined that Jackson had failed to conduct a proper pre-suit investigation as required by section 766.203, Florida Statutes (2003), because there was no corroboration of reasonable grounds to support the claim of Dr. Morillo’s medical negligence. This conclusion is based on the fact that the corroborating affidavit does not mention Leonard Morillo, M.D., by name or otherwise. The trial court further concluded that as a matter of law, Dr. Morillo did not owe Jackson a duty of care. We reverse.

Jackson was working construction on 7 December 2000, when a foreign object entered his left eye. The next day he saw a family medical practice doctor who diagnosed a corneal abrasion, prescribed medication and an eye patch, and told him to return within twenty-four hours. A day later, Jackson went to St. Cloud Hospital with a complaint of extreme pain in his left eye and progressive visual blurring. Dr. Garrison, the emergency room physician, consulted by telephone with Dr. Morillo to discuss Jackson’s care and treatment and, diagnosing a corneal ulcer, discharged him with instructions to follow up with Dr. Lugo, a corneal specialist, the following Monday. That Monday, 11 December, Jackson went to Magruder Eye Institute, which referred him two days later to a corneal specialist at Florida Eye Clinic, P.A. where he received treatment for several days until a doctor contacted Shands Hospital in Gainesville and advised Jackson to go there the same day. On 20 December, Shands admitted Jackson. Due to worsening pain, Jackson underwent a surgical procedure on 25 December to excise inflammatory membrane of his eye. An intraocular culture tested positive for fusarium, a fungus. Jackson’s condition worsened and eventually required enucleation of his entire left eye.

Jackson’s lawsuit alleged that Dr. Mor-illo, by and through Dr. Garrison’s telephone call, failed to properly and personally evaluate, examine, and diagnose Jackson’s condition and appropriately treat his infected cornea ulcer, which allowed the condition to progressively worsen to the point that Jackson lost his left eye. In addition, Dr. Morillo allegedly failed to properly advise Dr. Garrison that Jackson needed immediate hospitalization for an extremely dangerous condition that required a corneal specialist’s immediate examination and treatment. Dr. Morillo challenged the complaint based on the failure of Jackson’s corroborating affidavit to name him as chapter 766 required.

Dr. Lee’s pre-suit affidavit stated that he was familiar with Jackson’s medical complaint and had reviewed the medical records, including those from B.V.L. Family Medical Center, Orlando Regional Healthcare System, Inc., Magruder Eye Institute, Florida Eye Clinic, and Shands Hospital. The affidavit did not reference Dr. Morillo, his P.A., or Doctors Surgery Center. At the conclusion of the pre-suit screening period, Dr. Morillo denied the claim and attached an affidavit by Dr. Johnson that concluded Dr. Morillo did not commit malpractice because, when consulted by telephone, he evaluated the information in a non-negligent manner, suggested appropriate medications, and properly advised that the patient be referred to a corneal specialist. Dr. Johnson also concurred in the opinion that Jackson did not require hospitalization.

Dr. Morillo’s motion for summary judgment asserted that Jackson failed to comply with the pre-suit investigation requirements of section 766.208 and that he had no legal duty because he was not Jackson’s healthcare provider. The supporting affidavits by Drs. Garrison and Morillo evidence that while Jackson was a patient at the St. Cloud Hospital emergency room, Dr. Garrison telephoned Dr. Morillo to ask for professional advice concerning Jackson’s situation. Dr. Garrison felt that the patient’s history and his examination findings warranted a consultation with an ophthalmologist. Dr. Morillo was listed on a consultation directory available to emergency room physicians. Ophthalmologic physicians were also available on-call through Orlando Regional Medical Center. Dr. Morillo received calls from emergency rooms and, if he was available, he would take the phone call or accept the patient for transfer to his office. If he did not accept the patient, he told the emergency department personnel what he would do in that circumstance. Although he did not bill for these services, he undertook to fulfill them voluntarily.

Dr. Morillo never consulted with Jackson and specifically told Dr. Garrison that he was not accepting Jackson as a patient. Dr. Morillo thought that Jackson was suffering from a vision-threatening corneal infection and required a corneal specialist; however, he incorrectly believed that hospitalization would not help and was unnecessary. He suggested that Dr. Garrison refer him to Dr. Lugo, a corneal specialist. Dr. Garrison could have arranged for an immediate evaluation by a corneal specialist, but, based on Dr. Morillo’s opinion, he did not feel that was necessary. Relying on Dr. Morillo’s advice in rendering care and treatment to Jackson, he prescribed Ciloxan, Cyclogel, and Gentamycin.

The court granted summary judgment on the lack of adequate pre-suit notice and lack of a legal duty. It explained:

[T]he real question is: Did Dr. Morillo undertake to treat and care for this patient? Can we extend the doctrine to situations where doctors are talking among themselves, never seeing a patient, never undertaking the care and treatment of the patient. In fact, specifically renouncing that he’s undertaking the care and treatment of the patient, as I understand it, saying that he wasn’t [ ] qualified to take this up and told him what he would do, if he undertook the care and treatment, if someone walked into his office under that circumstance. .1 don’t think the doctrine [Pate ] should be extended that far. [ ] But it seems that the doctrine in Pate is being restricted, rather than extended.

The court described Dr. Lee’s affidavit’s failure to meet pre-suit requirements as critical because it did not reference Dr. Morillo’s phone participation.

The appellant contends that the notice of intent served on Dr. Morillo advised him that his care and treatment of Jackson was at issue, as corroborated by Dr. Lee’s affidavit, and fully complied with the spirit and specific provisions of section 766.203. Dr. Morillo counters that the trial court properly granted final summary judgment because Dr. Lee’s affidavit did not corroborate any negligence by Dr. Morillo and failed to name him despite section 766.202(5)’s requirement that an attorney review the case against “each and every potential defendant” and consult with a medical expert to obtain the expert’s written opinion. We note, however, that Dr. Morillo does not assert that the notice of intent served on him by the appellant was inadequate. In fact, Dr. Morillo responded to the notice of intent and ultimately denied the claim. Rather, Dr. Morillo focuses only on the adequacy of the affidavit.

Appellate courts review de novo a summary judgment order. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Construing all facts and inferences in favor of the non-moving party, Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303, 305 (Fla. 5th DCA 2003), summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Aberdeen, 760 So.2d at 130.

Section 766.202(5) provides that “ ‘^Investigation’ means that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from said expert.” If the court finds the claimant’s notice of intent to initiate litigation is not in compliance with the reasonable investigation requirements of sections 766.201-.212, the court may dismiss the claim. Kukral v. Meleras, 679 So.2d 278, 281 (Fla.1996). However, the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses. Id. at 284.

The purpose of the medical malpractice pre-suit screening statute is to prevent the filing of medical malpractice claims that are not legitimate. Columbia/JFK Med. Ctr. Ltd. P’ship v. Brown, 805 So.2d 28, 29 (Fla. 4th DCA 2001). The statute’s pre-suit screening requirements are broadly construed to favor access to the courts and do not require that the corroborating expert’s affidavit give notice of every possible instance of medical negligence. Davis v. Orlando Reg’l Med. Ctr., 654 So.2d 664, 665 (Fla. 5th DCA 1995). Hence, pre-suit notice to a hospital of medical malpractice that occurred during surgery is adequate to survive a pre-suit notice challenge to a claim against the hospital for post-operative medical malpractice because the purpose of the expert corroborative opinion is to prevent the filing of baseless litigation and not to set forth every possible instance of medical negligence. Id. Davis is similar to Columbia/JFK Medical Center, 805 So.2d at 29, where the court held that the statute’s purpose is met when one theory of postoperative negligence is alleged in the pre-suit notice against a hospital and another claim is made in the lawsuit against the hospital for its negligence in allowing staff privileges to the physician who performed the surgery.

In Mirza v. Trombley, 946 So.2d 1096 (Fla. 5th DCA 2006) we held that the statute was satisfied when the plaintiffs conducted the required investigation, resulting in an expert medical opinion that they had a legitimate basis to pursue a malpractice claim. Id. at 1101. The statute’s plain language, the purpose of the statutory requirement, and the rule requiring that the malpractice presuit requirements be construed in a manner that protects citizens’ constitutionally guaranteed access to the courts support our decision to reject a narrow construction of section 766.203 that would compel plaintiffs to individually name each future defendant in the investigatory affidavit. Id. at 1100. The statutory purpose behind the affidavit requirement is the elimination of frivolous claims. Id.

Here, Dr. Lee’s affidavit demonstrated that he examined all of Jackson’s medical records from his treatment at a family medical center, St. Cloud Hospital, eye clinics, and Shands Hospital, and his statement corroborated reasonable grounds to support the claim of medical negligence. The affidavit satisfied the purpose of the pre-suit notice statute to corroborate that the claim is legitimate and to demonstrate that a proper review determined the defendants’ actions were negligent.

We also reject the trial court’s conclusion that as a matter of law Dr. Morillo owed no legal duty to Jackson. Relying on Pate, 661 So.2d 278, the trial court gave a restrictive interpretation to the requirement that a physician-patient relationship required privity. We hold that there is at least a factual question not presently amenable to summary judgment whether Dr. Morillo owed a duty of care to the plaintiff.

Accordingly, we REVERSE the summary final judgment and REMAND for further proceedings.

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ., concur.

THOMPSON, J., dissenting with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent for two reasons. First, Danny Ray Jackson failed to comply with section 766.203, Florida Statutes (2003). This statute requires a proper pre-suit investigation and corroboration of reasonable grounds to support a claim of negligence against “any named defendant.” Dr. Lee’s pre-suit corroborating affidavit does not name Dr. Morillo or his practice. Dr. Lee’s affidavit also does not support the claim by stating how Dr. Morillo’s advice was medically negligent in Jackson’s treatment. This contrasts with Dr. Lee’s detailed affidavit concerning the investigation of negligence by BVL Family Medical Center, Orlando Regional Healthcare System, Inc., Magruder Eye Institute Florida, Florida Eye Clinic, and Shands Hospital. Dr. Lee’s only statement that could be considered an opinion on Dr. Morillo refers to him as one of the other defendants who “deviated from acceptable standards of care by failing to appropriately treat and diagnose a corneal abrasion also allowing the condition to progressively worsen, causing it to become infected which went untreated and later mistreated to the point that Mr. Jackson was forced to undergo the removal of his left eye.” In my opinion, this does not comply with the language of the statute. The trial court’s decision to grant the summary judgment is supported by court rulings in Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005), and Mirza v. Trombley, 946 So.2d 1096 (Fla. 5th DCA 2006).

In Bonati, 911 So.2d 285, where the affidavit made no mention or allegation that Dr. Bonati was negligent in recommending certain procedures, the Second District held that the affidavit failed to corroborate that Dr. Bonati’s negligence toward the plaintiff and did not satisfy pre-suit notice requirements.

In Mirza, 946 So.2d 1096, this court approved the denial of a dismissal or summary judgment for Dr. Mirza when he was not named specifically in the pre-suit notice or the corroborating affidavit. The affidavit described Dr. Mirza’s treatment, which allegedly fell below the appropriate standard of care, but named only six other providers. Despite the affidavit’s failure to specifically name Dr. Mirza, this court described the failure to name him as but one fact that demonstrated that no reasonable investigation had been conducted. However, because the affidavit clearly showed that a reasonable investigation had been conducted with respect to Dr. Mirza’s actions, his dismissal was unwarranted. We reasoned in Mirza that section 766.203 did not require that each future defendant be individually named in the investigatory affidavit as a prerequisite to suit and such a requirement would seem inconsistent with the recognized purpose underlying the affidavit requirement. Id. We held that “failure to individually name a particular defendant is not fatally defective, so long as the affidavit otherwise makes it clear that the defendant’s actions were properly reviewed and determined to be negligent prior to filing suit.” Id. at 1100. Even if a defendant’s identity is unknown, the affidavit corroborates that the claim is legitimate if it describes the negligence. Kukral v. Mekras, 679 So.2d 278, 282 (Fla.1996). In contrast, the affidavit in this case is devoid of any statement of Dr. Morillo’s negligent actions.

The second reason I would affirm the trial court’s ruling is that Dr. Morillo did not owe Jackson any duty of care. Whether a duty exists is a question of law for the trial court to decide. Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Dr. Morillo was not on call at the hospital, never billed for the telephone call, never saw Jackson in his office, and never saw him in the hospital. In fact, Dr. Morillo’s unrebutted testimony is that he informed Dr. Garrison that he would not accept Jackson as a patient. The record shows that he told Dr. Garrison that Jackson needed to see a corneal specialist because the symptoms were beyond his specialty, and he specifically recommended Dr. Lugo.

No factual allegation establishes any physician-patient relationship to base a medical negligence claim against Dr. Mor-illo. See Vause v. Bay Med. Ctr., 687 So.2d 258, 263-64 (Fla. 1st DCA 1996). Generally, courts have held that in order to maintain a cause of action against a physician, privity must exist between the plaintiff and the physician. Pate v. Threlkel, 661 So.2d 278, 281 (Fla.1995). Here there was no privity.

For these reasons, I would affirm the trial court’s order granting summary judgment. Summary judgment was proper because there was no genuine issue of material fact and Dr. Morillo was entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

      . Pate v. Threlkel, 661 So.2d 278 (Fla. 1995).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Don and Pamela ASHLEY, Appellants, v. STATE of Florida, ADMINISTRATION COMMISSION, State of Florida Department of Community Affairs, Franklin County, and the St. Joe Company, Appellees.
    No. 1D07-0095.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Rehearing Denied March 14, 2008.

      Ross Stafford Burnaman, Tallahassee, for Appellants.
    Shaw P. Stiller and Kelly A. Martinson, Tallahassee; Thomas Michael Shuler, Apalachicola; Douglas A. Booher, Jacksonville; David L. Powell, Gary P. Sams, Miguel Collazo, III, of Hopping Green & Sams, Tallahassee, for Appellees.
    Brett M. Paben, Tallahassee, and Andrew Jubal Smith, Apalachicola, for Ami-cus Curiae The Apalachicola Riverkeeper.
   PER CURIAM.

Appellants Don and Pamela Ashley challenge a Final Order of appellee State of Florida, Administration Commission, rendered December 8, 2006. The Final Order concluded that amendments to the Franklin County 2020 Comprehensive Plan (the Comprehensive Plan), as adopted by Franklin County Ordinance 2005-20, are not “in compliance,” and ordered remedial actions consistent with the Order. We agree with appellants to the extent they argue that the Administration Commission erred in finding that two of the newly created land use categories, the Rural Village and Conservation Residential categories, are not mixed-use categories, subject to additional planning standards. We affirm on all other issues without further comment.

I. Background

This appeal concerns Franklin County, a primarily coastal county on the Gulf Coast of the Florida Panhandle. The County includes several state parks, aquatic preserves and other areas of special environmental significance. On April 5, 2005, Franklin County adopted Ordinance No. 2005-20. The Ordinance contained several evaluation and appraisal based amendments to substantially update and revise the Franklin County Comprehensive Plan. In particular, Ordinance 2005-20 included amendments to the Comprehensive Plan’s Future Land Use Element (FLUE) and Future Land Use Map series (FLUM). In relevant part, the Ordinance adds four new land use categories for the area on St. James Island, in eastern Franklin County: Rural Village, Conservation Residential, Marina Village Center, and Carrabelle East Village.

Pursuant to section 163.3184, Florida Statutes, which details the process through which the State reviews and adopts a county comprehensive plan or plan amendment, Franklin County transmitted Ordinance 2005-20 and the proposed amendments to the State of Florida for review. On May 26, 2005, appellee State of Florida, Department of Community Affairs, published a Notice of Intent to find the proposed amendments to the Comprehensive Plan “in compliance.” “In compliance” means the amendments are consistent with requirements set forth in section 163.3177, Florida Statutes (2006). See § 163.3184(l)(b), Fla. Stat. (2006). In response, appellants filed a petition for an administrative hearing, objecting to the Department’s ruling. Appellee The St. Joe Company, was subsequently granted leave to intervene as an interested and affected party.

The Florida Department of Administrative’ Hearings (DOAH) held a formal administrative hearing on December 5 through 9, 2005, in Apalachicola, and February 27 through March 1, 2006, in Tallahassee. Following the hearing, the Administrative Law Judge (ALJ) issued a Recommended Order suggesting the Department find the proposed amendments to the Comprehensive Plan “not in compliance.”

Subsequently, appellants Don and Pamela Ashley, and appellees Franklin County and The St. Joe Company prepared written comments and exceptions to the Recommended Order and submitted them to the Department for its consideration. On October 10, 2006, the Department issued an Order finding the proposed amendments to the 2020 Comprehensive Plan “not in compliance,” and submitted the Plan to the Administration Commission for final agency action.

On December 8, 2006, the Administration Commission rendered the instant Final Order. The Order adopted the findings of fact and conclusions of law from the Recommended Order, and found the proposed amendments to the Comprehensive Plan “not in compliance.” In addition, the Commission suggested certain remedial actions to bring the plan into compliance. Appellants presently appeal the Final Order.

II. Analysis

Appellants argue that Ordinance 2005-20 adds four new land use categories in the area of St. James Island, which fail to meet mandatory planning standards set forth in Chapter 163, Florida Statutes, and Rule 9J-5 of the Florida Administrative Code. The four land use categories the appellants challenge are described in the Future Land Use Element as follows: FLUE Policy 2.2 (I), Rural Village; 2.2(m), Conservation Residential; 2.2(n), Marina Village Center; and finally 2.2(o), Carrabelle East Village. We agree with appellants’ argument that the ALJ and the Administration Commission erred in ruling that the Rural Village and Conservation Residential land use categories are not “mixed-use” categories, and thus not subject to the more detailed planning requirements for mixed-use categories set forth in the Florida Administrative Code.

Regarding mixed-use land categories, section 163.3177 provides, in relevant part, “[t]he future land use plan may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act.” See § 163.3177(6)(a), Fla. Stat. (2006). The Florida Administrative Code provides additional guidance,

Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use.

See Fla. Admin. Code R. 9J-5.006(4)(c).

In this case, the ALJ found, and the Administration Commission agreed, that it was at least fairly debatable that the Rural Village and Conservation Residential categories were not mixed use categories, and that Rule 9J-5.006(4)(c) does not apply. We hold the ALJ erred in reaching this conclusion.

A careful reading of Ordinance 2005-20 reveals that both the Rural Village and Conservation Residential categories contemplate a variety of land uses. Within the Rural Village category, FLUE Policy 2.2(1), the County expressly permits residential uses; a variety of commercial uses, including a restaurant, guest lodging/hotel services, an outfitters store, and some commercial recreational activities; and a variety of active and passive recreational uses. See Franklin County 2020 Comprehensive Plan, 1-9. Similarly, within the Conservation Residential Category, FLUE Policy 2.2(m), the County expressly permits residential uses; agricultural and silviculture uses, as well as supporting infrastructure for such activities; and active and passive recreational activities. Id. at 1-10. Furthermore, while the Conservation Residential category expressly prohibits “[fjree standing non-residential or commercial uses intended to serve nonresidents,” the category may, by negative implication, permit free-standing non-residential, commercial uses intended to serve residents and their guests. Id. (emphasis added).

Moreover, counsel for appellants examined the Franklin County Planner, Alan Pierce, extensively about the four land use categories, and the uses permitted within each category. Mr. Pierce’s testimony confirms that the amended Comprehensive Plan does encompass several types of land use activities within both the Rural Village and Conservation Residential categories.

Within the Rural Village category, Mr. Pierce testified that the Plan permitted several possible types of use. In addition to the listed residential uses, Mr. Pierce noted the category permits operation of the River House, a restaurant and hotel, as well as the Outfitters Center, selling clothing, equipment and supplies, both solely commercial operations. He also acknowledged that the category would allow for certain other commercial uses, developed as support for the listed uses, including bait and tackle shops, sandwich shops, and perhaps boat service and repair facilities. In addition, Mr. Pierce testified the category allows for passive recreation in the open spaces, but also permits construction of facilities to accommodate active recreational activities, including boating, hunting and skeet-shooting.

Similarly, within the Conservation Residential category, Mr. Pierce testified the category contemplated some residential development, as well as passive and active recreational opportunities. He also noted that the category permits both agricultural and accessory uses. Thus, he testified the area would be used to harvest pine trees, and could include roads into and out of the pine tree forests, gas and utility lines, and sewer lift stations. Further, Mr. Pierce admitted the category would permit construction of residential structures used as commercial vacation rentals, as well as “community gathering facilities” for residents and their guests. Finally, as noted above, Mr. Peirce acknowledged that the category may permit, by negative implication, free-standing non-residential uses, such as churches or schools, as well as commercial uses, if those uses were designed to serve residents and guests.

III. Conclusion

Therefore, we hold the ALJ, and thus the Commission, erred in ruling the Rural Village and Conservation Residential land use categories were not mixed use categories. Accordingly, both categories are subject to the additional mandatory planning requirements in Rule 9J-5.006(4)(c), including percentage distribution standards, and limits on the intensity and density of development in each permitted use.

We reverse the Administration Commission’s Final Order to the extent the Commission, adopting the ALJ’s findings, found the Rural Village and Conservation Residential land use categories were not mixed-use categories, subject to Rule 9J-5.006(4)(c). We remand the case to the Administration Commission for further proceedings to determine whether the Rural Village and Conservation Residential categories comply with standards for mixed-use land categories, as set forth in Rule 9J-5.006(4)(c).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

WOLF, PADOVANO, and POLSTON, JJ., concur.

      . Pursuant to section 14.202, Florida Statutes, the Administration Commission is a committee within the executive branch, composed of the Governor and Cabinet members of the State of Florida.

      . The Future Land Use Element (FLUE) is a section of the Comprehensive Plan for the designation of future land use patterns throughout the county.

      . Appellants also requested, and the Department granted, that the matter be remanded to the ALJ for additional findings of fact and conclusions of law on several issues the ALJ had not addressed. On remand, the ALJ considered amendments to the provisions of the Comprehensive Plan which describe potable water standards, as well as provisions requiring a demonstration of need for residential and non-residential land uses. On August 4, 2006, DOAH entered the Supplement to Recommended Order, addressing the remaining issues.


author: NORTHCUTT, Chief Judge.

text:
    Kenneth R. PFRENGLE, Appellant/Cross-Appellee, v. Paula K. PFRENGLE, n/k/a Paula D. Kay, Appellee/Cross-Appellant. Paula K. Pfrengle, n/k/a Paula D. Kay, Appellant, v. Kenneth R. Pfrengle, Appellee.
    Nos. 2D05-2175, 2D06-195, 2D05-2202.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    Rehearing Denied March 27, 2008.

      David A. Maney and Patricia F. Kuhl-man of Maney, Damsker, Jones & Kuhl-man, P.A., Tampa, for Kenneth R. Pfren-gle.
    Joan LoBianco Walker of Joan LoBian-co Walker, P.A., St. Petersburg, for Paula K. Pfrengle.
   NORTHCUTT, Chief Judge.

Kenneth Pfrengle and Paula Kay were married briefly in the 1980s, then married each other again in 1996. Although their second effort was somewhat more successful than the first, it too ended with the filing of a divorce petition in 2001. The dissolution of this short-term marriage took another four and one-half years of litigation in the circuit court. It has generated two consolidated appeals and a cross-appeal challenging the terms of the final judgment, plus an appeal of the attorney’s fee award. The latter case was previously consolidated with the others for record purposes only. Sua sponte, we now consolidate all of these cases for disposition. As discussed below, we affirm in part, reverse in part, and remand.

We first address the issues raised in Kay’s cross-appeal because they affect our decision on some of the issues raised in Pfrengle’s appeals. In her first issue, Kay challenges the trial court’s classification of certain real properties as nonmarital assets belonging to Pfrengle. During the marriage Pfrengle purchased properties through several solely owned corporations. At issue here are five such properties. Pfrengle claimed them as his nonmarital assets based on his assertion that they were acquired with proceeds from the sales of properties he owned prior to the marriage. Kay countered that the properties were marital assets because the funds with which they were purchased were marital. In the final judgment, the trial court ruled for Pfrengle on this issue, but we must reverse.

Essentially Pfrengle’s position is that the properties he purchased during the marriage must be nonmarital because the sum of their purchase prices was less than the sum of the proceeds from his sales of premarital properties during the marriage. The problem with this argument is that he did not maintain the sales proceeds separately. Rather, he deposited the proceeds into a personal account into which he also deposited commissions he earned during the marriage from work as a sales representative. Although Pfrengle maintained separate accounts for the various corporations, it was undisputed that he transferred money to and fro among all of the accounts.

Money is fungible, and once commingled it loses its separate character. Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000). Pfrengle argues that commingling can occur only when funds are deposited in a joint account, but we reject this argument because title alone does not determine whether an asset is marital or nonmarital. “Even if an account is titled in one spouse’s name alone, it may become marital if both marital and nonmarital funds are commingled in that account.” Steiner v. Steiner, 746 So.2d 1149, 1150 (Fla. 2d DCA 1999).

When Pfrengle commingled marital and nonmarital funds in his personal account, all the funds in that account lost their separate nonmarital character. When he transferred funds from his personal account into the accounts he maintained for his corporations, the funds in the latter accounts also became commingled such that it must be said that marital funds- were used to purchase the properties at issue. Thus the properties bought during the marriage are marital assets. See § 61.075(5)(a)(l), Fla. Stat. (2000) (defining marital assets as those acquired by spouses during the marriage either individually or jointly). Accordingly, we reverse the trial court’s classification of these properties as nonmarital assets. On remand, they must be classified as marital assets and the equitable distribution must be revised accordingly.

In Kay’s second issue on cross appeal, we find no abuse of discretion in the denial of her claim for bridge-the-gap alimony. We affirm this ruling without further discussion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We turn now to the issues raised by Pfrengle in his first appeal. First, he challenges the trial court’s decision to equally divide the marital assets. “[T]he court must begin with the premise that the distribution [of marital assets and liabilities] should be equal, unless there is a justification for an unequal distribution based on all relevant factors ....”§ 61.075(1) (stating nonexclusive list of factors for court’s consideration in fashioning equitable distribution); see Robertson v. Robertson, 593 So.2d 491, 493 (Fla.1991) (“Because equitable distribution is premised on the theory of an equal partnership in marriage, the court should begin this task on the premise that each spouse is entitled to receive an equal division.”)- When discussing the court’s broad discretion in marital dissolution proceedings, the supreme court has explained that the court must use its authority to do equity between the parties. Canakaris, 382 So.2d at 1202. Because we are remanding for the trial court to revise the equitable distribution based on our resolution of Kay’s cross-appeal, we leave open the prospect of an unequal distribution. Thus we affirm the first issue raised by Pfrengle without prejudice to his renewing the argument below.

We also affirm on Pfrengle’s second issue, in which he challenges the trial court’s determination that two parcels of jointly titled property were marital assets. By statute, the joint titling of these properties gave rise to a presumption that Pfrengle gifted interests in them to Kay. See § 61.075(5)(a)(5). Given the conflicting evidence, we cannot say that the court abused its discretion in ruling that Pfren-gle failed to overcome that presumption.

We agree with Pfrengle on his third issue, and we reverse the trial court’s finding that Kay’s bank account was her non-marital asset. The evidence showed that Kay commingled marital earnings with other money in this account. For this reason, the account must be classified as a marital asset under the same analysis we have applied to Pfrengle’s accounts and the properties bought with funds from those accounts.

The fourth issue raised by Pfrengle concerns an asset referred to as the Howe note. We affirm the trial court’s decision to classify this note as a marital asset because the evidence showed that it was purchased with commingled, and thus marital, funds.

We also affirm without discussion the issues raised in the consolidated appeal, case number 2D06-195, concerning various awards of interest. But we do so without prejudice to the trial court’s ability to reconsider these awards , when fashioning a revised equitable distribution scheme on remand.

Finally, we take up Kay’s appeal of the final order awarding her attorney’s fees and costs. The parties’ arguments concerning the amount awarded demonstrate that the order is ambiguous. Pfren-gle was ordered to “pay a total amount of $25,000” toward Kay’s fees and costs. The court had earlier required him to pay Kay’s interim fees and costs in the approximate amount of $17,000. It is not clear from the final order whether the $25,000 award was meant to include the interim payment or was to be in addition to that payment. Therefore, we must reverse the fees order and remand for further proceedings.

In any event, the primary factor that a court should consider when awarding fees and costs is the financial resources of both parties. § 61.16; Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). These awards are governed by equity and by basic rules of fairness. Rosen, 696 So.2d at 700. Because we are reversing the equitable distribution, the parties’ respective financial situations will likely change. Accordingly, after refashioning the equitable distribution on remand, the court may reconsider the amount of fees and costs to be awarded to Kay. At this point, we need not decide whether, as Kay contends, the court erred in awarding her less than all of the fees and costs she sought.

Affirmed in part, reversed in part, and remanded.

CANADY,-J., and MENENDEZ, MANUEL, JR., Associate Judge, Concur.


author: EVANDER, J.

text:
    Rogers A. EVERHART, Appellant, v. Cynthia A. EVERHART, Appellee.
    No. 5D06-4315.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2008.
    Rehearing Denied March 19, 2008.
    Catherine G. Swain, of Catherine G. Swain, P.A., Daytona Beach, for Appellant.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appellee.
   EVANDER, J.

The former husband raises numerous issues in this appeal from a final judgment of dissolution of marriage. The parties’ marital estate exceeded $5,000,000, with the primary asset being a family-owned business. We reject the former husband’s argument that the trial court overvalued this asset. The trial court’s valuation of the business was supported by substantial competent evidence. We do find, however, that there are three errors in the trial court’s equitable distribution order that require correction.

First, the trial court found that during the parties’ separation, the former husband had used $58,465 of marital monies as a down payment on a new residence. The court also found that the former husband was entitled to receive repayment of a $180,000 shareholder loan that the parties had made to the family business. However, the undisputed evidence reflects that the $58,465 used by the former husband as a down ■ payment was, in fact, money he had received from the family business as a partial repayment of the $180,000 loan. Thus, the former husband was improperly charged twice for the same $58,465. As a result, the former husband’s equitable distribution assets column was $58,465 too high.

Second, the trial court found that the former wife was to be responsible for payment of a CitiFinancial Rooms to Go debt of $8,190.20. Because the trial court attempted to effect a 50/50 distribution of the marital estate, the former wife was awarded an additional $8,190.20 of assets to offset this obligation. The former wife should not have been “credited” with this obligation because the evidence reflects that this debt had been fully satisfied during the separation period by either the former husband or by monies from the family business.

Third, the former wife should only have been credited with being responsible to pay $3,896.10 on the Chase Mastercard debt rather than $5,896.10. The balance of this credit card debt had similarly been reduced during the parties’ separation by payment from either the former husband or the family business.

On remand, the trial court should correct these errors in a manner that will effect the court’s intent to divide the marital estate equally. The final judgment is otherwise affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

PLEUS and MONACO, JJ., concur.


text:
    GUARDIAN AD LITEM PROGRAM, Petitioner, v. TIMES PUBLISHING COMPANY, Respondent.
    No. 2D07-4673.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.
    Dennis W. Moore, General Counsel, and Thomas Wade Young for Guardian ad Li-tem Program, Orlando, for Petitioner.
    Alison M. Steele and Layla K. McDonald of Rahdert, Steele, Bole & Reynolds, P.A., St. Petersburg, for Respondent.
   PER CURIAM.

The Guardian ad Litem Program seeks a writ of certiorari directed to the trial court’s order releasing the transcript of certain proceedings conducted pursuant to chapter 39, Florida Statutes (2007), to Times Publishing Company. We have conducted a thorough review of both the applicable sections of chapter 39 and the facts of this case. While we may not have reached the same result as the circuit court did, we cannot say that the circuit court departed from the essential requirements of the law in reaching its decision. Accordingly, we deny the petition.

Petition denied.

ALTENBERND, STRINGER, and DAVIS, JJ„ Concur.


author: HAZOURI, J.

text:
    ACOUSTIC INNOVATIONS, INC., a Florida corporation, Jay Miller, individually, and Joanne Miller, individually, Appellants, v. Carey SCHAFER, Appellee.
    No. 4D07-1603.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied April 10, 2008.

      Joel B. Rothman and Andrew Seiden of Seiden, Alder, Matthewman & Bloch, P.A., Boca Raton, for appellants.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., and Michael P. Hamaway of Mombach, Boyle & Hardin, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Appellants, Jay Miller (“Miller”), his wife, Joanne Miller, and Acoustic Innovations, Inc. (“Acoustic”), appeal an amended final judgment entered in favor of Appel-lee, Carey Schafer (“Schafer”); an order severing Acoustic’s counterclaims; and an order setting non-jury trial in this matter. Schafer cross-appeals. We affirm in all respects.

This case involves a dispute between Schafer and Miller concerning the parties’ ownership interests in Acoustic; a company which was formed to design, develop, manufacture, and sell acoustical paneling, carpeting, furniture, and other fixtures to enhance the physical design, appearance, and acoustics of professional home theaters. In September 1992, Miller incorporated Acoustic as a Florida corporation and issued a “Written Action of the Incor-porator and First Board of Directors of Acoustic Innovations, Inc.,” in which he identified himself as the sole incorporator, director, president, secretary, treasurer, and shareholder of Acoustic. However, Schafer maintains that he is a fifty percent co-owner and shareholder of Acoustic. Miller disputes that contention. Formal share certificates were never issued.

On August 21, 2000, following a meeting at which Schafer’s interest in the company was discussed, Miller presented Schafer with a letter signed by Miller, which stated:

Some time ago we discussed your relationship with Joanne and I, and with Acoustic Innovations, Inc. (the “Company”). Our discussions included both your role on a daily basis as well as your and our expectations with respect to the future of the Company and the benefit which each of us might have from our long-term efforts on its behalf.
Each of us has made an important contribution to the Company and I believe that our various contributions will continue at the same level in the future. With respect to the overall operation and control of the Company, all of its stock has been issued to me, and I am its only officer and director. I want to keep things that way so that I can continue to exercise control over the Company and its business. At the same time, I think it imperative that you be provided with a stake in the future success of Acoustic Innovations.
For that purpose, by this letter the Company agrees that in the event of the sale of the Company or its merger with another company in which the Company is not the surviving corporation (which events this letter refers to as a “Transaction”) you will receive one-third (1/3) of the aggregate consideration of the Transaction. Aggregate consideration will include, and be limited to, cash consideration; options, warrants and convertible securities; and notes payable by the other party. You will not be entitled to any other form of compensation, including, without limitation, salaries, con-suiting compensation or compensation from an agreement not to compete.
I think it important that we confirm your understanding described in this letter by the end of the year, and so to that end I ask that you sign and return to me the enclosed copy of this letter no later than close of business on September 1st, 2000. We have had the Company’s lawyer prepare this letter, and he wants you to discuss this letter with your own lawyer before signing it.

Schafer ultimately signed the letter on February 5, 2001, but did not consult a lawyer. On February 7, 2002, about a year after Schafer signed the letter, Miller terminated him from his employment at Acoustic, and paid him a lump sum severance payment in the amount of $10,000.

On July 5, 2002, Schafer filed a complaint against Miller, Joanne Miller, and Acoustic, in which he requested that the court rule, inter alia, that he was a shareholder in Acoustic. On October 10, 2006, after amending his pleading twice, Schafer filed an “amended” second amended complaint asserting the following causes of action:

Count I: Involuntary Dissolution and Liquidation of Acoustic pursuant to § 607.1430, et. seq., Florida Statutes.
Count II: Equitable Accounting and Dissolution of Acoustic, pursuant to § 620.8801, et. seq., Florida Statutes.
Count III: Common Law Breach of Fiduciary Duty against Jay Miller and Joanne Miller.
Count IV: Declaratory Relief regarding the effect of the August 21, 2000 letter agreement and whether Schafer should be considered either a shareholder, owner or partner of Acoustic.

Acoustic, Miller, and Joanne Miller filed an answer denying that Schafer was a shareholder in Acoustic and asserted that the affirmative defenses of statute of frauds, statute of limitations, laches, and unclean hands barred Schafer’s claims. Acoustic filed a counterclaim against Schafer alleging that Schafer misappropriated Acoustic’s valuable trade secrets while he was an employee. Schafer filed a reply to affirmative defenses, which denied the affirmative defenses and asserted an avoidance of unclean hands to the affirmative defense of laches.

Acoustic sought to have Schafer’s second amended complaint tried together with its counterclaim. However, the trial court entered an order severing Acoustic’s counterclaim, over Acoustic’s objection. Six days prior to trial, Schafer filed a notice of voluntary dismissal of Count IV of the second amended complaint. Although Schafer abandoned his claim for declaratory relief, his request that the trial court enter an order finding that he was the owner of a fifty percent interest in Acoustic remained.

The case proceeded to a bench trial, after which the trial court entered an amended final judgment in which it found, inter alia, that Schafer was a fifty percent owner and shareholder of Acoustic. It found further that the August 21, 2000 letter agreement was procured by fraud, coercion, and duress, that it was lacking in consideration, and there was no meeting of the minds.

The trial court awarded Schafer a total of $4,475,537.50 in damages. The trial court computed the damage amount by first determining that Schafer was entitled to one half of the “total direct and indirect distributions” Miller had received from Acoustic from 1998 through 2006. The “total direct and indirect distributions” equaled $5,487,335.00. One half of this amount equaled $2,518,537.50 and was due to Schafer from Miller. The trial court next awarded Schafer $1,957,000.00, an amount it characterized as “representing the value of Schafer’s shares in [Acoustic] at the approximate time of Schafer’s forced removal from the company,” which the amended final judgment states was February 7, 2002. The amended final judgment states that the total value of Acoustic as of December 31, 2001 was $3,914,000.00. The trial court awarded Schafer the value of his shares based on that amount. The trial court then added the two amounts together ($2,518,537.50 + $1,957,000.00) to arrive at a total award “incident to equitable relief’ to Schafer, and against Miller, of $4,475,537.50. The trial court also ordered Miller to purchase Schafer’s shares in Acoustic for $1,957,000.00. The trial court imposed a constructive trust on all of the shares of stock in Acoustic. The trial court concluded that Joanne Miller was not a shareholder in Acoustic and declined to enter a judgment against her.

When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence. See In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005). This is because “the trial judge is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’ ” Id. (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). However, where a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novo. Id.

Acoustic and Miller’s (collectively referred to as “Miller”) first argument on appeal is that the statute of frauds bars Schafer’s claim that he is a fifty percent owner of Acoustic because the claim is based upon an oral agreement for the issuance or transfer of stock that cannot be performed within a year, citing Khawly v. Reboul, 488 So.2d 856, 858 (Fla. 3d DCA 1986). Miller asserts:

Schafer testified that when Acoustic was formed he and Miller entered into an oral agreement that each would be 50% owners of the company. Pursuant to their agreement, Miller would be issued all of the shares initially, but that Miller would transfer Schafer’s 50% to him upon request. Schafer testified that several years after the formation of Acoustic he requested that Miller transfer Schafer’s shares to him and place Schafer on the books, but Miller never did. Schafer testified that he made this demand in either 1995 or 1996.

Miller argues that this testimony establishes that the oral agreement to transfer stock to Schafer was not capable of being performed in one year. We disagree.

No evidence established the existence of an oral contract incapable of being performed within one year. Miller could have transferred the shares to Schafer immediately after forming the oral agreement, had Schafer requested that he do so. The fact that Schafer waited until a year had passed to request the shares is of no import. As stated by this court in Byam v. Klopcich, 454 So.2d 720 (Fla. 4th DCA 1984), “The general rule is that an oral contract for an indefinite time is not barred by the Statute of Frauds. Only if a contract could not possibly be performed within one year would it fall within the statute.” Id. at 721 (citations omitted). Accordingly, the statute of frauds does not bar the enforcement of the oral agreement between Schafer and Miller.

Miller’s next argument is that Schafer’s claim to be a fifty percent shareholder in Acoustic is barred by the statute of limitations. Miller claims that the statute of limitations on Schafer’s claims began to run in 1996, when Schafer made a demand of Miller to be placed on Acoustic’s books, and Miller never transferred the shares, citing State Farm Mutual Au tomobile Insurance Co. v. Lee, 678 So.2d 818, 821 (Fla.1996) (concluding that a cause of action accrues within the meaning of the statute of limitations when an action may be brought). The statute of limitations applicable to actions founded upon oral agreements is four years. § 95.11(3)(k), Fla. Stat. (2006). Because Schafer did not file any cause of action against Miller to obtain delivery of his shares of stock prior to 2001, Miller claims that the statute of limitations bars Schafer’s claim to a fifty percent interest in Acoustic. We disagree.

As Schafer argues, the doctrine of equitable estoppel bars the application of the statute of limitations in this case. As explained in Ryan v. Lobo De Gonzalez, 841 So.2d 510 (Fla. 4th DCA 2003):

“The doctrine of equitable estoppel has been recognized and applied in numerous contexts by the supreme court since the inception of statehood.” See Morsani v. Major League Baseball, 739 So.2d 610, 614 (Fla. 2nd DCA 1999), approved in part, 790 So.2d 1071 (Fla.2001) (citations omitted). “The doctrine has also been recognized as a valid defense to a limitations-period defense.” Id. (citations omitted). However, equitable es-toppel “presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.” See Bell v. Fowler, 99 F.3d 262, 266 n. 2 (8th Cir. 1996) (citing Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995)) (emphasis added). Stated another way, “[ejquitable estoppel arises where the parties recognize the basis for suit, but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time has lapsed.” Cook v. Deltona Corp., 753 F.2d 1552, 1563 (11th Cir.1985) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1043 n. 7 (10th Cir.1980)) (emphasis added).

Ryan, 841 So.2d at 518-19. The trial court found' that Miller’s words and actions repeatedly assured Schafer that Miller would honor their agreement. This finding was supported by competent, substantial evidence. Even though Schafer was aware of the facts underlying the cause of action, Miller’s behavior caused him to delay filing suit. Thus, Miller is equitably estopped from raising the statute of limitations to bar Schafer’s claim that he is a fifty percent shareholder in Acoustic. Because of the applicability of equitable estoppel, the earliest date on which the statute of limitations could have begun running was August 2000, when Miller, Joanne Miller and Schafer met, and Miller advised Schafer that he would no longer be a fifty percent owner, but rather a thirty three and one-third percent owner. It was at that point that Miller made it clear to Schafer that he did not intend to honor their original oral agreement. As noted earlier, Schafer filed suit in July 2002.

Miller contends further that the trial court erred in entering judgment in favor of Schafer because Schafer lacked standing to seek relief under sections 607.1430 and 607.1434, Florida Statutes, where he did not prove that he was “a holder of record of shares in a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation.” § 607.01401(24), Fla. Stat. (2006) (defining “shareholder” or “stockholder”). This argument fails.

In Smallwood v. Moretti, 128 So.2d 628 (Fla. 3d DCA 1961), the Third District recognized: “[I]t is possible under some circumstances for one to own stock in a corporation though no certificate has been issued to him.” Id. at 629 (citation omitted). Moreover, strict record ownership is not a prerequisite for the holders of equitable or beneficial interests in shares of stock to have standing to sue. See World Time Corp. of Am. v. Mizrachi, 702 So.2d 284, 284-85 (Fla. 4th DCA 1997); see also Mills Dev. Corp. v. Shipp & Head, Inc., 126 Fla. 490, 493, 171 So. 533 (1937) (holding that where individual defendants formed a corporation as agreed, but refused to issue stock to plaintiffs and deprived them of their alleged beneficial interest in a joint adventure, the same equitable rights and remedies were available to plaintiffs as if they had actually received stock, where no intervening rights of innocent third parties would be put in jeopardy). The trial court determined that Schafer was, at all material times, the equitable and beneficial owner of fifty percent of Acoustic’s stock. This finding was supported by competent, substantial evidence. Accordingly, Schafer did not lack standing to sue for relief under sections 607.1430 and 607.1434.

Miller also argues that the trial court’s judgment is defective on its face because the court awarded Schafer triple relief, citing Grossman v. Greenberg, 619 So.2d 406, 409 (Fla. 3d DCA 1993) (acknowledging that double recovery to plaintiff is improper). Specifically, Miller states:

Rather than ordering either the purchase of Schafer’s shares, or the imposition of a constructive trust on Schafer’s shares, the lower court ordered a constructive trust upon all the shares, awarded Schafer $1,957,000.00 representing the value of Schafer’s shares in Acoustic at the time of Schafer’s departure, and required Miller to repurchase the shares for this amount, thus giving Schafer a triple recovery.

(emphasis in original). Miller misrepresents the award in this case. The amended final judgment states in pertinent part:

56. This Court finds and determines that $2,518,537.50 are the damages due from Miller and, accordingly, enters a Final Judgment in Schafer’s favor and against Miller for that amount. To the extent the distributions were co-mingled by the Millers, the damages may have to come from their account if separate accounts are not available. This Court further directs that a Final Judgment be entered in favor of Schafer in the amount of $1,957,000.00, said amount representing the value of Schafer’s shares in the company at the approximate time of Schafer’s forced removal from the company. Miller is ordered to purchase Schafer’s shares in Acoustic Innovations for that amount. The total money judgment awarded to Schafer, incident to equitable relief, and against Miller, is $4,475,537.50. The judgment shall bear interest at the rate of eleven percent (11%) per annum, nunc pro tunc.
57. To the extent of the judgment amount of $4,475,537.50 as set forth above, this Court finds and determines that Plaintiff has proven, by clear and convincing evidence, that he is entitled to the imposition of a constructive trust in his favor and orders that a constructive trust be imposed on the shares of stock in Acoustic Innovations.

(emphasis in original).

Miller’s claim fails for two reasons. First, the award of the value of the shares to Schafer, and the requirement that Miller purchase Schafer’s shares, are one and the same. The trial court’s order to Miller to purchase the shares for the value of $1,957,000.00 is intended to ensure that Schafer receives the money, and is not a duplicate award of damages. Second, the trial court’s imposition of a constructive trust on all of the shares of stock in Acoustic serves only as a method of securing Miller’s performance, not as an additional award of damages. See Bell v. Smith, 159 Fla. 817, 32 So.2d 829, 832-33 (1947) (recognizing that, in equity, a constructive trust may be imposed to implement a necessary remedy). It should be further noted that section 607.1434(4) authorizes the court to “[u]pon proof of good cause, make any order or grant any equitable relief other than dissolution or liquidation as in its discretion it may deem appropriate.” § 607.1434(4), Fla. Stat. (2006).

We decline to discuss the remaining issues on appeal and cross-appeal, as we conclude that they involve fact-driven determinations that are supported by competent, substantial evidence in the record.

Affirmed.

KLEIN and DAMOORGIAN, JJ., concur.


author: POLEN, J.

text:
    Sandra PINEIRO, Appellant, v. LAW FIRM OF FRANKLIN & CRISCUOLO and Rigoberto Pineiro, husband, Appellees.
    No. 4D05-4589.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Rehearing Denied April 10, 2008.
    Hal Vogel, Miami, for appellant.
    Barry S. Franklin and Donald G. Cris-cuolo of Franklin & Criscuolo, North Miami Beach, for appellees.
   POLEN, J.

Appellant Sandra E. Pineiro appeals the trial court’s orders denying her motion to vacate orders granted in favor of Appellee, Franklin and Criscuolo (F & C), and granting F & C’s motions for a charging lien and final money judgment against Pi-neiro for nonpayment for services rendered. The trial court orally reserved jurisdiction to hold an evidentiary hearing on both parties’ section 57.105 claims, but entered a written order reserving jurisdiction only to hear F & C’s claims. We affirm the trial court’s denial of Pineiro’s motion but remand the case to the trial court with instructions to amend the order to reflect its oral ruling reserving jurisdiction to hear both parties’ section 57.105 claims. See Romero v. Romero, 916 So.2d 952 (Fla. 3d DCA 2005) (reverse and remand portions of written order that did not reflect the trial court’s oral pronouncements).

STONE and MAY, JJ., concur.


text:
    Claybourne MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4068.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2008.
    Rehearing Denied March 20, 2008.

      Claybourne Mobley, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Mobley appeals an order striking his most recent motion for post-conviction relief. We affirm the order because Mobley had previously been prohibited from filing any further pro se pleadings, motions or petitions in the trial court.

In affirming the order, we take the additional step of barring Mobley from filing any further pro se pleadings in this case. Mobley was convicted and sentenced in this case in 1980. His conviction and sentence were affirmed in Mobley v. State, 405 So.2d 811 (Fla. 5th DCA 1981). After multiple post-conviction motions, this Court ordered Mobley to file no further documents in this case in the trial court or in this Court. See Mobley v. State, 492 So.2d 734 (Fla. 5th DCA 1986).

Despite this prohibition, Mobley has continued to file further collateral attacks on his conviction and sentence resulting in the trial court’s prohibition against Mobley filing any further pro se pleadings.

After reviewing Mobley’s latest claim, this court issued a Spencer show cause order directing Mobley to demonstrate why he should not be denied further pro se access to this Court relating to his 1980 case. We have reviewed Mobley’s response and find it lacks merit.

Mobley is abusing the judicial process by his successive attacks upon his conviction and sentence. In order to conserve judicial resources, we prohibit Claybourne Mobley from filing with this Court any further pro se appeals, petitions, pleadings, motions or other documents concerning Orange County Case 1980-CF-2839. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat.; Grimsley v. State, 972 So.2d 916 (Fla. 5th DCA 2007); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

MONACO, TORPY and EVANDER, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: KLEIN, J.

text:
    Steven P. ROSENSTEIN, Appellant, v. Lynda ROSENSTEIN, Appellee.
    No. 4D07-2595.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellant.
    Seth E. Schneiderman of Seth E. Schneiderman, P.A., Hollywood, for appel-lee.
   KLEIN, J.

This appeal arises out of post-dissolution proceedings and involves the interpretation of a marital settlement agreement. We reverse an order requiring the husband to pay the wife’s rent in her new living situation, based on the husband’s agreement to make the mortgage payments on the prior home which the wife sold.

The marriage of the parties was dissolved in September, 2003 and the wife agreed that she and the minor children would not move more than a three hour drive from their home in Tamarac. With regard to that home, the agreement provided in paragraph 8:

The husband agrees to transfer and/or Quib-Claim to the wife all of his interest in the parties’ marital residence located at 10860 Palm Ridge Lane, Tamarac, Florida. The husband shall inform the mortgage company of the deed change. The husband agrees to continue paying the mortgage, association fees, contents insurance and appliance insurance as part of the attached monthly budgets marked A and B until the parties’ minor child, KELLY, attains the age of nineteen years or ceases being a full time student living in the home. In the event of the wife’s death, said residence shall become the joint property of the children and held in trust by a Court appointed Trustee. Under no circumstances shall the parties’ parents become involved in this matter.

At the time of the agreement in 2003 the parties’ youngest child, Kelly, would have been almost twelve years old.

In March, 2005, the husband agreed to modify the restriction on moving as follows:

I Steven P. Rosenstein hereby agree to modify this paragraph of the marital divorce agreement and give undisputed permission to Lynda M. Rosenstein to move our children Robert Hunter Ro-senstein and Kelly Megan Rosenstein beyond the 3 hours drive time from Ta-marac, Florida with no distance limits, but within the State of Florida. Any and all references of the children’s childhood residence in the marital divorce agreement will refer to the new childhood residence at which the children will reside until emancipation as outlined in the agreement.

The wife then sold the Tamarac home in April, 2005, netted $129,000, and moved with the children to Jacksonville, where she is living with a man to whom she claims she pays rent. She signed a rental lease agreement with him in June, 2005, which provides that her rent is $650.00 a month for a part of the house. She testified she paid him a lump sum of $30,000 to cover expenses such as utilities, cable, internet, lawn service, homeowner fees, and security system. This amount was an estimate of what she would owe for these expenses until the youngest child reached majority in five years. The face of the $30,000 check, however, reflects that it was a down payment on the house.

The issue is whether, under the original agreement and modification, the husband is required to pay rent for the wife and children in her new location. Although the wife had signed the “rental lease agreement” in June, 2005, she made no demand on the husband to pay rent prior to filing a motion to hold him in contempt in March, 2006. During that period the wife had been in contact with the husband to make other payments, but had not mentioned that he was obligated to pay rent for her new living arrangement.

The trial court, adopting the recommendation of a magistrate, concluded that the husband was obligated under the two agreements to pay rent of $650 a month, which the wife testified she began paying on July 1, 2005. The husband has appealed, arguing in his brief:

If Wife desired that Husband pay the rent, Wife should have set such requirement forth when Wife prepared the March 10, 2005 modification but Wife did not do so. The March 10, 2005 modification was intended to relate to the Husband’s approval to move and the Husband’s obligations for the children would not otherwise change. The document confirmed a release (sic) Husband from the Tamarac home. There was no agreement of Husband to be responsible to pay a new debt, especially where Wife profited from the sale by receiving the equity and the income from that equity.

The conclusion that the husband was obligated to pay rent was based entirely on the language in the contracts, and the parties agree that our standard of review is de novo. Critchlow v. Williamson, 450 So.2d 1153 (Fla. 4th DCA 1984).

We conclude that, in the absence of a specific provision requiring the husband to pay rent, the two contracts should not have been interpreted to require the payment of rent. A court may not change the terms of a contract to achieve what it might think is a more appropriate result, McCutcheon v. Tracy, 928 So.2d 364 (Fla. 3d DCA 2006), or to relieve one side from an improvident bargain. Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659 (Fla.1955). We have considered the other arguments raised by the husband and find them to be without merit. Affirmed in part and reversed in part.

HAZOURI and DAMOORGIAN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Julia GEARHART-SOTO and Robert Soto, Appellants, v. Martin DELSMAN, as guardian of Joshua Delsman and Alison Delsman, his wife, as guardian of Joshua Delsman, Two Headed Shark, LLC d/b/a Ripley’s Believe It or Not!, Ancient City Entertainment, Ltd. d/b/a Ripley’s Believe It or Not! and the School Board of Broward County, Appellees.
    No. 4D07-1819.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Rehearing Denied April 10, 2008.
    Lee B. Gartner of Lee B. Gartner, P.A., Coral Springs, for appellant Julia Gear-harWSoto.
    Shelley H. Leinicke and Rachel Turner of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Lauderdale, for appellee Ripley’s Believe It or Not!.
    Nicolette N. John and Thomas W. Paradise of Vernis & Bowling of Broward, P.A., Fort Lauderdale, for appellee School Board of Broward County.
   DAMOORGIAN, J.

Julia Gearhart-Soto (Gearhart-Soto) appeals a summary judgment in favor of Ripley’s Believe It or Not and the School Board of Broward County. We reverse because genuine issues of material fact remain regarding the School Board’s negligence. See Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). We affirm the final summary judgment in favor of Ripley’s.

By way of background, Gearhart-Soto was one of four chaperones on a class trip to St. Augustine that, included a tour of Ripley’s museum. One of the chaperones was a teacher employed by the School Board.

During the tour of the museum, the school teacher remained outside to monitor students who did not want to participate in the tour. The remaining chaperones, including the appellant and Barrington Tyler, accompanied those students who elected to tour the museum. During the tour, student Joshua Delsman climbed over a fence designed to stop the public from touching a two-way mirror at one of the exhibits. Tyler witnessed Delsman’s misconduct but chose not to intervene because he did not believe he had the authority to stop Delsman. At some point, Delsman became aware that a security guard was coming in his direction, and immediately attempted to climb back over the fence to avoid detection. While climbing back over the fence, Delsman fell and was injured. Gearhart-Soto came to Delsmaris aid and in the process was herself injured. Appellant sued the School Board for negligence alleging that the School Board breached its duty to properly train and supervise field trip chaperones.

The School Board argues that its decisions relating to the chaperones amounted to planning level or discretionary decisions for which there is immunity from appellant’s suit. See Avallone v. Bd. of County Comm’rs of Citrus County, 493 So.2d 1002, 1005 (Fla.1986). We disagree. In reaching our conclusion, we are guided by the Supreme Court’s decision in Rupp v. Bryant, 417 So.2d 658, 665 (Fla.1982). There, the court held that the duty to supervise students is operational. Id. (citing Cook v. Bennett, 94 Mich.App. 93, 288 N.W.2d 609 (1979)) (failure of a principal to supervise teacher is negligent performance of ministerial duty).

Whether the School Board is liable to Gearharl^Soto for the teacher’s absence from the museum, for the chaperone’s inaction, or for failing to properly train the chaperones as to their supervisory authority are questions of fact for which a jury may find the School Board liable. See Bonica By and Through Avant v. Dade County Sch. Bd., 549 So.2d 220 (Fla. 3d DCA 1989).

We therefore reverse the summary judgment granted in favor of the School Board and remand for further proceedings.

Affirmed in Part, Reversed in Part.

KLEIN and HAZOURI, JJ., concur.


author: PER CURIAM. FARMER, J.,

text:
    John H. PERRY, III, Stanton S. Perry, and Henry A. Perry, Appellants, v. J. Helena PERRY, Appellee.
    No. 4D07-601.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      James G. Pressly, Jr. of Pressly & Pressly, P.A., West Palm Beach, for appellants.
    Edward Downey of Downey & Downey, P.A., Palm Beach Gardens, for appellee.
   PER CURIAM.

This appeal is from an order dismissing one count of a multi-count complaint in a probate proceeding. The amended complaint sought to revoke probate of either part or all of the decedent’s will, based on theories of breach of a contract to make a will, undue influence, and lack of testamentary capacity. The trial court dismissed only Count I, which alleged the “breach of a contract to make a will” theory. We dismiss this piecemeal appeal of that order dismissing that single count.

John Perry, Jr. was the beneficiary of a power of appointment granted to him under the Last Will and Testament of his father, John Perry, Sr. On October 21, 1966, John Perry, Jr. executed a Stipulation In Re Alimony, Maintenance, Child Support, and Support dated October 21, 1966, which was then incorporated into a final decree of divorce dated October 28, 1966. In that stipulation, Perry agreed that in the event he exercised the power of appointment granted to him under his father’s will, he would designate his sons as the beneficiaries. By agreement of October 11, 1979, and a subsequent supplemental agreement dated April 2, 1985, the decedent agreed not to exercise this power of appointment in favor of his surviving spouse.

John Perry, Jr. executed his Last Will and Testament on May 4, 2004. Article IV of the Will purports to exercise the power of appointment over his father’s trust in favor of his surviving spouse, J. Helena Perry. John Perry, Jr. died on May 16, 2006. Perry’s will was admitted to probate and the decedent’s wife at the time of his death, J. Helena Perry, was issued letters of administration in her capacity as personal representative of the estate.

The three sons from Perry’s first marriage, John III, Henry, and Stanton, then filed a petition in the estate, naming J. Helena Perry as a respondent. Subsequently, they filed an amended petition. In Count I of that petition, the sons allege that, based on the two agreements previously outlined, the decedent had agreed that his exercise of the power of appointment must be in favor of the sons and further agreed that he would not exercise the power of appointment in favor of his surviving spouse. The sons prayed that the court would revoke probate of Article IV of the Will and declare its provisions void. The remaining counts of the petition allege: 1) undue influence as to Article IV of the Will and 2) undue influence and lack of testamentary capacity as to the Will as a whole.

Acting pursuant to the motion of the personal representative, the trial court dismissed Count I of the amended petition with prejudice based on “standing.” The sons appeal from that order.

Piecemeal appeals are not permitted where claims are legally interrelated and substantively involve the same transaction. Mendez v. W. Flagler Family Ass’n, 303 So.2d 1, 5 (Fla.1974); Palm Beach Newspapers v. Walker, 506 So.2d 39, 40 (Fla. 4th DCA 1987). The test to determine whether counts of a multi-count complaint are so interrelated as to preclude a piecemeal appeal is: “whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts.” Massachusetts Life Ins. Co. v. Crapo, 918 So.2d 393, 394 (Fla. 1st DCA 2006) (emphasis omitted) (quoting Lemon v. Groninger, 708 So.2d 1025, 1027 (Fla. 5th DCA 1998)).

In this case, each count rests on the common, single transaction — the decedent’s execution of a will which exercised the power of appointment in favor of the decedent’s wife rather than his sons.

Appeal dismissed.

SHAHOOD, C.J. and TAYLOR, J., concur.

FARMER, J., concurs with opinion.

FARMER, J.,

concurring specially.

Appellants are appealing an order dismissing their petition to revoke probate in which they challenge only a specific provision in the last will of the decedent. They claim that the dismissal “was on the basis that the probate proceedings cannot determine whether a provision is invalid on grounds of breach of contract,” citing an order of dismissal. The order cited does not support their contention that this presents an issue of subject matter jurisdiction. In fact the order contains no explanation or reasons for the dismissal but does refer to an earlier order. The earlier order in turn states:

“Florida courts have held that ... the proper remedy for an alleged breach of a contractual provision in a will is an independent civil action for breach of contract. See Johnson v. Girtman, 542 So.2d 1033, 1035 (Fla. 3d DCA 1989); In re Estate of Algar, 383 So.2d 676, 677-78 (Fla. 5th DCA 1980); Sharps v. Sharps, 219 So.2d 735, 737 (Fla. 3d DCA 1969).”

Essentially these cases stand for the proposition that a will leaving property to someone to carry out a contractual duty is revocable even though the revocation breaches the contract, and so the remedy is an independent action for breach of contract.

Reading between the lines, I suspect that for some members of the Probate Bar any issue as to whether a will may be probated raises a question of subject matter jurisdiction. If so, the unspoken premise for that conclusion is lost on me. It strikes me that any determination as to what can be probated is a classical exercise of probate jurisdiction. So I see no support for the contention that subject matter jurisdiction was involved in this dismissal.

Having recognized that the jurisdictional theory behind the appeal is unavailing, it does occur to me that review of this order allowing probate of the provision might be possible on another theory. Appellants consistently describe their claim for revocation of probate as relating to a breach of a contract duty to make a certain disposition in a will. Actually, the record given us suggests something different. A final judgment of the Circuit Court in Martin County, dated 28 October 1966, ordered the decedent “to conform to and carry out each of the stipulations and agreements” in a marital settlement agreement made one week earlier in divorce litigation. By that order, the contractual duty became a binding judgment imposing a permanent injunction barring any other disposition of the power of appointment. That disposition of the power arguably became res judicata. Whether a Florida circuit court could later refuse to enforce that injunc-tive judgment presents a question to my mind categorically different from whether the court can or should probate a will breaching a contract duty not yet reduced to judgment. But this theory was not raised below and is not advanced here.

Appellee contends that appellants have mistakenly classified their essential argument — whether decedent’s will provision exercising the power to appoint the takers under a trust set up by decedent’s father years ago is enforceable in probate. She argues this is actually an issue of construction of the will, as for example when a probate court voids a will provision because it would violate the rule against per-petuities. She implicitly concedes that there are occasions when a probate court can, for a legally sufficient reason, refuse to enforce or carry out an unambiguous provision of a will.

As appellee’s example suggests, a bequest in violation of the rule against perpe-tuities is in opposition to the law of descent and distribution. Probate courts have a long tradition of refusing to carry out will provisions involving some attendant illegality in the distribution of decedent’s property. Another example — much beloved of the jurisprudes — is Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), which held that the laws governing probate of wills and the distributions of estates, even though plainly requiring otherwise, will not be enforced to secure the benefit of a will to a legatee who has killed the testator in order to prevent a revocation of the will.

In this case, a substantial issue might be raised as to whether the probate court could properly enforce a will provision made in direct violation of a permanent injunction in a final judgment commanding the decedent to dispose of another person’s property in a certain way. If a court of competent jurisdiction has already determined by permanent injunction that decedent may name only his children by an earlier marriage under the power of appointment, by what theory may the Probate Judge enforce a willful violation of that injunction? After all, a violation of a permanent injunction is as much a violation of the law as a bequest extending beyond the period of perpetuities.

That in turn leads me to point out that the will provision at issue in this case does not appear to involve property of the decedent himself, to which his surviving spouse might have a proper claim by elective share. See Via v. Putnam, 656 So.2d 460 (Fla.1995) (holding that widow’s elective share is payable before claims of creditors under a contract to make a will). In this instance, by exercising the power of appointment to name the takers of his father’s trust, the decedent was not disposing of his own property that he could validly bequeath to his widow. He was instead acting in a fiduciary capacity with regard to the final disposition of his father’s property left in trust. The assets represented by the power were not decedent’s, from which a widow’s share might be collected; the trust assets from his father were not his own property to dispose of in any way he chose. In three separate written instruments, he had committed himself to naming his children by an earlier marriage to receive the assets intended for them by their grandfather. The first of those written agreements was enforced by the permanent injunction in the final judgment of divorce.

Appellants should be allowed to amend their pleadings to state all possible theories arising from the failure of the decedent to perform his duty under the prior judgment to name his father’s grandchildren as takers under the power of appointment reposed in decedent by his father.

      . Appellee responds that the issue for review is instead whether "there is [any] cause of action to revoke probate of a will based upon a 'breach of contract to make a will' theory.”

      . If it were truly a decision as to subject matter jurisdiction, I would be prepared to treat the appeal as a petition for writ of mandamus to direct the judge to exercise jurisdiction validly possessed. That is not appropriate here.

      . The common law rule against perpetuities has been replaced in Florida by statute. See § 689.225(7), Fla. Stat. (2007).

      . These legal philosophers cite Riggs as one of the chief examples of the incoherence of law — that is to say that opposing outcomes in legal disputes may both be justified by the legal corpus and that, contrary to the positivists, law is not a prediction of what a judge will do in a given case.

      .The theory of the cases cited by the Probate Judge’s order is that a prior will carrying out a contractual duty is nevertheless revocable. But when a duty has been made the subject of a permanent injunction binding the testator to comply, can it be said that any extant will so complying is revocable in the same way as when the duty is merely contractual but not reduced to judgment?


author: CONNER, BURTON C., Associate Judge.

text:
    Silvia SALAZAR, Appellant, v. Orestes SALAZAR, Appellee.
    No. 4D07-1407.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Richard H. Gaines and Todd M. Feld-man of Greenspoon Marder, P.A., Fort Lauderdale, for appellant.
    Orestes Salazar, Boca Raton, pro se.
   CONNER, BURTON C., Associate Judge.

Silvia Salazar raises four issues on appeal concerning the final judgment dissolving her thirty-one year marriage to Orestes Salazar. We affirm the trial court on the denial of Silvia’s request for attorney’s fees and costs from Orestes. We reverse on the three other issues.

Periodic Alimony

The parties had one minor child who was thirteen years old at the time of the final hearing and who needs “special attention.” At the time of the final hearing, Orestes worked for Holiday Inn making $15 per hour. He routinely worked overtime to pay the monthly bills. During the pendency of the divorce, Orestes paid all the expenses for the marital home while renting a room there. Additionally, he paid Silvia’s car insurance. Silvia worked for a collection agency earning $10 per hour but for the eight months leading up to the final hearing, she had been working only twenty-five hours per week. In the final judgment, the trial court found that Orestes had a gross monthly income of $3,941 with his usual and customary overtime pay. The trial court also found that Sylvia had a gross monthly income of $1,075; however, the trial court imputed additional income on the theory that she previously worked full-time and there was no reason she could not return to full-time employment. Additionally, Silvia had a bonus income of $200 each month. Thus, the trial court imputed a gross monthly income of $1,920.

The trial court found that Silvia demonstrated a need for some type of temporary alimony, but Orestes did not have the current ability to pay alimony. No alimony was awarded to Silvia in the final judgment.

On appeal, Silvia argues alternatively that she should have been awarded rehabilitative alimony, bridge-the-gap alimony, permanent periodic alimony, lump sum alimony, or nominal permanent periodic alimony. We agree with the trial court that the facts of this case do not support an award of rehabilitative alimony, bridge-the-gap alimony, or lump sum alimony. However, the facts do support an award of permanent periodic alimony or nominal periodic alimony and it was an abuse of discretion not to award either one.

This was a long-term marriage. There is a presumption in favor of alimony. See Ondrejack v. Ondrejack, 839 So.2d 867, 871 (Fla. 4th DCA 2003). “Two primary considerations in determining permanent periodic alimony are ‘the monetary needs of the receiving spouse and the ability of the other spouse to pay.’ ” Lamont v. Lamont, 851 So.2d 898, 899-900 (Fla. 4th DCA 2003) (citing Weeks v. Weeks, 416 So.2d 811, 812 (Fla. 4th DCA 1982)). In Lamont, the parties were married for twenty-three years. Id. at 899. During the separation, the husband had a total monthly income of $2,993 and the wife had a monthly social security income of $525. Id. In the final judgment, the trial court awarded the wife $1,000 per month from the husband’s retirement income using a qualified domestic relations order (QDRO) as part of an equitable distribution scheme, leaving the husband with a total monthly income of $2,993 and the wife with a total monthly income of $1,525. The trial court found the wife had a need for alimony but the husband did not have a “real ability to pay.” Id. This court reasoned that because the husband paid for the wife’s monthly expenses of $900 a month plus credit card payments of $400 a month during the pendency of the divorce, the husband had the ability to pay alimony, therefore the trial court erred in finding the husband did not have the ability to pay alimony. Id. at 900.

Although this case is arguably distinguishable from Lamont because here Orestes was renting a room from Silvia to allow him to keep paying the monthly expenses on the marital home and Silvia’s car insurance, and we assume such an arrangement would not continue after the marriage was dissolved, we cannot ignore that Orestes has $2,019 more in monthly income than Silvia even after income was imputed to her by the trial court. We find the failure to award some periodic permanent alimony, or at least nominal periodic alimony, is an abuse of discretion given the disparity in post-judgment income of the parties after a long-term marriage. See McClay v. McClay, 447 So.2d 1026 (Fla. 4th DCA 1984); Hunger v. Munger, 249 So.2d 772 (Fla. 4th DCA 1971).

Uninsured Medical and Dental Expenses for the Child

The trial court ordered the parties to equally divide any uninsured medical and dental expenses for the child despite determining Silvia’s percentage share of child support to be 36% and Orestes’s share to be 64%. We find this to be reversible error.

Section 61.30(8), Florida Statutes (2006), provides that children’s uncovered medical expenses are to be paid by each parent on a percentage basis. Both this court and the third district have found error when the trial court fails to follow the statutory requirement. See Stern v. Chovnick, 914 So.2d 524 (Fla. 4th DCA 2005); Forrest v. Ron, 821 So.2d 1163 (Fla. 3d DCA 2002).

Claiming Dependent Child for Income Tax Purposes

Silvia contends the trial court failed to consider tax consequences and abused its discretion when it ordered the parties to alternate claiming their child as a dependent for income tax purposes. A trial court has the discretion to transfer the dependency exemption to the noncustodial parent. See Vick v. Vick, 675 So.2d 714, 719 (Fla. 5th DCA 1996). “[T]he benefit to the noncustodial parent is designed to make more money available for child support through tax savings.” Id. (finding the trial court erred when it did not consider the transfer of the exemption in calculating the parties’ income).

Section 61.30(ll)(a)(8), Florida Statutes (2006), states “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 conditions: the impact of the Internal Revenue Service dependency exemption, and waiver of that exemption. The court may order the primary residential parent to execute a waiver of the Internal Revenue Service dependency exemption if the noncustodial parent is current in support payments.” This statute has been construed as giving “the trial court discretion to order the custodial parent to execute a release of the claim for income tax deduction.” Harris v. Harris, 760 So.2d 152, 154 (Fla. 2d DCA 2000). “The trial court cannot allocate the dependency tax exemption directly. It can, however, require the custodial parent to execute a waiver transferring the exemptions to the noncustodial parent.” Wamsley v. Wamsley, 957 So.2d 89, 92 (Fla. 2d DCA 2007); see also Robertson v. Bretthauer, 712 So.2d 1140, 1141 (Fla. 3d DCA 1998) (“The majority American rule is that although the trial court does not have the absolute power to allocate the exemption directly, it can require the custodial parent to transfer the exemption to the non-custodial parent through the execution of a waiver”). The dependency exemption must also be conditioned on the former spouse being current with support payments. See Davies v. Turner, 802 So.2d 1195 (Fla. 1st DCA 2002) (finding the trial court erred in not making the exemption to be claimed on alternate years conditional on former husband being current with support payments); see Robertson, 712 So.2d at 1141 (“transfer of the dependency exemption to the non-custodial parent is conditioned on that parent being current with support payments”).

We do not find the trial court erred in determining that Orestes should get the benefit of claiming the parties’ child as a dependent for income tax purposes every other year. However, the trial court did not require Silvia, as custodial parent, to execute a waiver transferring the exemptions to Orestes, and also did not condition the waiver on Orestes being current with his child support payments. We find the trial court erred by not structuring the transfer of the exemption in accordance with the statutory requirements.

The trial court is reversed and remanded with instructions to determine the amount of permanent periodic alimony or nominal periodic alimony to be awarded to Silvia, to order the parties to pay uncovered medical and dental expenses for the child in proportion to their percentage share of the basic child support obligation, and to require Silvia to execute waivers in favor of Orestes to claim their child as a dependent for income tax purposes every other year, if Orestes is current on his child support obligation at the time the child is claimed as an exemption.

WARNER and FARMER, JJ., concur.

      . The parties dispute whether the child suffers from attention deficit disorder or autism.


text:
    Anna MICIC, as Personal Representative, etc., Appellant, v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC., et al., Appellee.
    No. 5D06-3829.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2008.
    Harvey B. Hardy, of Harvey B. Hardy, P.A., Orlando, for Appellant.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee Florida Emergency Physicians, Kang & Associates, M.D., P.A., and Jennifer Springer, M.D.
    No Appearance for Appellee Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital East Orlando and Orlando Regional Health Care System, Inc., d/b/a Orlando Regional Medical Center.
   PER CURIAM.

On appeal, Micic, the plaintiff below, contends that the trial court erred in denying her motion to continue trial where her lead counsel had to withdraw three months prior to the scheduled trial date because of physical health issues. We affirm.

A motion for continuance is addressed to the sound discretion of the trial court and, absent abuse of that discretion, the court’s decision will not be reversed on appeal. Onett v. Ahola, 780 So.2d 979 (Fla. 5th DCA 2001). In denying Micic’s motion for continuance, the trial court could properly consider that (1) plaintiffs other attorney had been counsel of record for the entire case, (2) the case had been pending for over four years prior to being noticed for trial by the defendants, (3) the trial court had previously been required to order the plaintiff, on two separate occasions, to make her expert witnesses available for deposition, and (4) the parties had been given nine months notice of the trial date.

AFFIRMED.

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