author: LEVY, Judge. PER CURIAM.

text:
    Claire J. SIDRAN, et al., Appellants, v. E.I. DUPONT DE NEMOURS & COMPANY, INC., etc., et al., Appellees.
    No. 3D01-2229.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Opinion Denying Rehearing Jan. 11, 2006.
    Arnold R. Ginsberg, Ratiner, Reyes & O’Shea, Miami, for appellant.

      Shook, Hardy & Bacon and Kathleen M. O’Connor and Edward A. Moss and Paul T. Reid and Sherril M. Colombo and Todd L. Wallen, Miami, for appellees.
    Ginsberg & Schwartz, Arnold R. Ginsberg; Ratiner, Reyes & O’Shea, P.A., Miami, and Edwin C. Ratiner, for appellants on rehearing.
    Shook, Hardy & Bacon, Kathleen M. O’Connor, Edward A. Moss, Paul T. Reid, Sherril M. Colombo, Todd L. Wallen; Carlton Fields, et al., and Gary Pappas, Miami, for appellees on rehearing.
    Before COPE, LEVY, and SHEVIN, JJ.
   LEVY, Judge.

Appellants/Plaintiffs, Claire J. and Phillip Sidran, appeal from a Final Judgment of no liability in favor of the Appellees/De-fendants, and from the trial court’s denial of their Motion for New Trial. We reverse.

In 1973, Mr. and Mrs. Sidran converted Mrs. Sidran’s orchid-raising hobby into a business. Between 1980 and 1985, they converted the business into a partnership, and formed a corporation in 1992. The business consisted of a small nursery located behind the Sidrans’ home in the Suni-land neighborhood of Miami-Dade County, Florida. By 1990, the Sidrans had five or six greenhouses on .their property, and thousands of orchids in their inventory. In order to properly grow and cultivate their orchids, the Sidrans applied certain fungicides to the plants.

In the early 1980s, Mrs. Sidran applied Benlate WP, a product manufactured by Appellant/Defendant E.I. DuPont De Nemours & Go. (DuPont), to her plants. When she ordered Benlate WP in the late 1980’s, she received Benlate 50 DF (“Ben-late DF”), the chemical at issue in the instant case. The Sidrans’ supplier advised the Sidrans that Benlate DF was the new form of Benlate that was being produced by DuPont. The Sidrans spray records indicated that they used Benlate DF from 1988 through February 1991. After discontinuing their use of Benlate DF in February 1991, the Sidrans switched to a fungicide called Kocide.

According to Mrs. Sidran’s testimony at trial, she noticed a change in her plants in 1989. The plants did not appear to be healthy, they were no longer growing, and there was chlorosis of the leaves. In early 1989, she sent several plants to the Florida Department of Agriculture and Consumer Services for testing. The reports issued by the Department of Agriculture and Consumer Services in May 1989 inquired whether chemical application processes were ruled out as the cause.

In May 1991, the Sidrans received a letter from DuPont which stated that Ben-late 50 DF had been recalled. In June 1991, DuPont set up a claims settlement process. After attempts to settle the Si-drans’ claim proved to be unsuccessful, the Sidrans initiated this litigation. This case was originally tried from March 15,1995 to May 1, 1995, and the jury returned a verdict in favor of the Sidrans. However, eight days after the jury verdict, the trial court granted the Defendants’ motion for a new trial. The retrial, which is the subject of this appeal, began on May 21, 2001.

At the retrial, the Defendants denied that Benlate DF was defective and denied that the product was the cause of the Sidrans’ lost inventory. They presented two possible alternative causes-that the Si-drans’ well water was contaminated with powerful organic solvents that were present in the septic tanks of dry cleaners located upstream from their wells; and that the Sidrans misused Kocide before reporting the widespread damage symptoms.

The testimony at trial revealed that the residents of the Suniland area used underground wells for their water. The Sidrans watered their orchids from 1987 through January 1992 with the ground water from their wells. In 1991, state and local authorities became aware of contamination .in the ground water in the Suniland area. Further testing showed that there were various levels of contamination in the Suni-land residents’ ground water wells. At the Sidrans’ home, testing for contaminants yielded negative tests for the presence of contamination on September 20, 1991, November 25, 1991, and January 29, 1992; and a positive test for the presence of contamination on November 5, 1991. The level of contamination discovered on November 5, 1991 was 1.7 micrograms per liter. Tests performed on the water of Ethyl Knapp, the Sidrans’ neighbor, returned positive on October 28, 1991 and negative on February 5,1992.

According to . Walter Livingstone of the Miami-Dade County Health Department, the contaminant level at the Sidrans’ home was high enough that he would not continuously drink water from the Sidrans’ wells. Significantly, however, Livingstone testified that the purpose of the contamination investigation was for the benefit of the public health and not the health of plants, and that he had no knowledge of the effect of the contaminants on orchids. Harvey Kottke, a chemical engineer and Chief of Water and Wastewater Treatment for the Department of Environmental Resources Management (DERM), testified that the testing of the ground water showed contamination originating from dry cleaners, that were located upstream from the Suni-land home wells. Mr.' Kottke testified that the levels of contamination found in the wells changed on a daily basis, depending on the ebb and flow of the ground water. Kottke also testified that the Sidrans’ contamination limit was considered safe for drinking purposes. Ricardo Fraxedas, an environmental engineer who worked for DERM during the Suniland contamination, testified that there were pulsations of contamination occurring in the Suniland area between 1989 and 1991. Fraxedas further testified that different properties in the area had varying test results on different days, and that the Sidrans’ property was located in the middle of the plume of contamination. Like Livingstone, Fraxedas did not give an opinion as to whether the water was toxic to plants or humans. The Defendants also presented the videotaped testimony of Ethyl Knapp, who testified that she did not use Benlate DF but experienced similar problems with her orchids as the problems experienced by the Si-drans. Finally, Dr. Harold Coble testified that damage to orchid plants was more likely to occur in response to repeated applications of water contaminated with organic solvents than in response to Ben-late DF as the level of exposure increases. Dr. Coble also testified that he never did any testing himself on the effect on plants of the dry cleaning contaminants dissolved in water.

At the conclusion of the evidence, the Plaintiffs moved to strike the defense of water contamination and moved for a directed verdict as to that issue. The trial court ruled that whether or not the contamination in the ground water was a cause of the Sidrans’ orchid damage was a fact issue. The jury returned a verdict in favor of the Defendants. This appeal follows.

The admission of evidence is a matter within the sound discretion of the trial court. See Jimenez v. Gulf & Western Manufacturing Co., 458 So.2d 58, 59 (Fla. 3d DCA 1984). The trial court’s decision in that regard must be viewed in the context of the trial as a whole. See id. Relevant evidence is evidence which tends to prove or disprove a material fact. See § 90.401, Fla. Stat. (2001).

That brings us to the testimony of Dr. Coble, the Defendants’ expert witness. The Sidrans contend that the testimony of Dr. Coble, that “the higher the level the contaminant, the more likely damage would occur”, had no basis in fact or law and did not relate to the facts of the instant case. We agree. In order to admit expert testimony, the trial court should determine that the expert testimony will assist the trier of fact “in understanding the evidence or in determining a fact in issue.” § 90.702, Fla. Stat. (1999). Moreover, an expert opinion is inadmissible when it is apparent that the opinion is based on insufficient data. See Young-Chin v. City of Homestead, 597 So.2d 879, 882 (Fla. 3d DCA 1992). In the instant case, Dr. Coble’s testimony was not even based upon insufficient data — it was based upon no data at all. The testimony at trial established the Sidrans’ water contamination level at 1.7 micrograms per liter. Dr. Coble, who testified that the higher level of contaminant, the more likely that damage would occur, performed no experiment and could cite to no study wherein the dry cleaning contaminant could be harmful to the orchids at 1.7 micrograms per liter. In the absence of such a predicate, admission of the water contamination testimony, while probative to some degree, was substantially outweighed by the potential of misleading the jury.

Accordingly, we conclude that the trial court abused its discretion in admitting the evidence regarding well water contamination absent any proper scientific predicate or evidence that it related, in fact, to the damages that the appellants claim was done to their orchids. This cause is reversed and remanded for a new trial.

Reversed and remanded.

On Rehearing Denied

Before COPE, C.J., and LEVY and SUAREZ , JJ.

PER CURIAM.

Dupont has moved for rehearing, contending that we misunderstood theories of defense and applied incorrect legal standards. We deny rehearing, but clarify our reasons for reversing the judgment.

The Sidrans used Benlate DF from 1988 through February 1991. As explained in the initial opinion, the plants’ health declined during this period of time.

In May 1991, the Sidrans received a notice from Dupont indicating that Benlate DF had been recalled. The recall notice stated, in part:

The recall was initiated because trace levels of atrazine herbicide were found, by routine analysis, in some production batches. Through our investigations of reports of plant damage, we detected effects that we do not fully understand. From the plant symptoms we have seen and our extensive analytical investigations, we believe the cause must be a herbicide at extremely low levels.
The plants generally show reduced vigor or stunted growth. If the herbicide was present at higher levels, it would be easily detectable and the plants would show more severe symptoms.

The symptoms suffered by the Sidrans’ orchids corresponded to those outlined in the Dupont recall notice.

Dupont set up a claims process. The Sidrans’ claim was not resolved. The Si-drans brought suit, alleging that Benlate DF was a defective product and Dupont was negligent. The Sidrans contended that Benlate had caused the loss of their orchids.

Dupont denied that there was any product defect and denied that it had been negligent. Dupont also offered evidence that the actual cause of the damage to the Sidrans’ orchids lay elsewhere. Specifically, Dupont introduced evidence which it claimed would demonstrate that the orchid damage was caused by (a) groundwater contamination in the Suniland area, or (b) the Sidrans’ misuse of another fungicide, Kocide, or (c) both. Dupont is, of course, allowed to defend in this way, denying any negligence or product defect and asserting that the actual cause of the damage to the orchids was the fault of something else— groundwater contamination or misuse of a different product. See Haas v. Zaccaria, 659 So.2d 1130, 1132 (Fla. 4th DCA 1995); Carnival Cruise Lines, Inc. v. Levalley, 786 So.2d 18, 19 (Fla. 3d DCA 2001).

Regarding the issue of groundwater contamination, Dupont offered evidence at trial that the groundwater in the Suniland area had been contaminated by improper disposal of dry cleaning materials from a dry cleaning establishment. The chemicals had seeped into the groundwater and traveled in a plume of contamination moving from upstream to downstream in the flow of subterranean groundwater. According to the testimony it was reasonable to assume that when contamination was detected in the wells of the neighbors across the street, the Knapps, a comparable level of contamination likely also existed in the Sidrans’ wells.

The Knapps’ wells tested negative for contamination on February 5, 1991. The Sidrans’ three wells were negative on September 20, 1991. Five weeks later, on October 28, 1991, the Knapps had a positive test of 8.0 parts per billion of percho-loroethylene. A few days later, on November 5,1991, there was a positive test of 1.7 parts per billion in two of the Sidrans’ three wells. Soon thereafter, on November 25, 1991, and January 29, 1992, the Sidrans’ wells tested negative for contamination.

Based on this testimony and the testimony of the experts cited in our original opinion, Dupont maintained that the level of contamination rose and fell so that the orchids were watered with contaminated water during times relevant here.

The obvious question, however, was whether the chemicals involved here would have an adverse effect on orchids at the observed level of 1.7 parts per billion on the Sidrans’ property or the higher level of 8.0 parts per billion detected on the Knapps’ property.

At trial, Dupont offered the testimony of Dr. Harold Coble, an agronomist employed by the United States Department of Agriculture. Dr. Coble was accepted as an expert and introduced as such to the jury. Dr. Coble had performed Benlate testing for Dupont. As stated earlier, Dupont’s recall notice indicated Dupont’s belief that the problems associated with Benlate DF were attributable to contamination of Ben-late DF with atrazine. Dr. Coble performed tests on orchids to determine if atrazine could damage orchids, and if so, at what levels. Dr. Coble found no damage to orchids, even at three times the highest level of atrazine found in a Benlate box.

While Dr. Coble was on the stand, Du-pont sought to ask Dr. Coble about the effect on orchids if they were irrigated with water contaminated with organic solvents. The Sidrans timely objected because Dr. Coble had performed no studies, and was aware of none, which would establish that water contamination at the observed levels would cause damage to orchids. The objection was overruled, and Dupont asked:

Q ... Doctor Coble, do you have an opinion, within a reasonable degree of scientific certainty, as to whether repeated applications of water contaminated with organic solvents would damage orchid plants?
A. Yes.
Q. What is that opinion, sir?
A. If water contaminated with organic solvents were repeatedly used to water plants, that certainly would have an [ejffect on the plant cuticle that we talked about yesterday. Obviously the higher the level—
[Plaintiffs Counsel]: Your Honor, let me object to anything further. That is not responsive to the specific question.
The Court: Overruled, go ahead.
The Witness: Obviously the higher the level [of] the contaminant, the more likely the damage would occur.

TR. 3275 (emphasis added).

This testimony clearly told the jury that the water contamination in Suniland was of sufficient magnitude to cause injury to the orchids. However, Dr. Coble had conducted no studies showing this to be the case at any of the observed levels. Dupont never introduced any such studies in the proceedings below.

Dupont’s failure in this regard stands in marked contrast to Dupont’s careful preparation of scientific testing regarding atra-zine contamination in Benlate. As relates to atrazine, Dupont and Dr. Coble made the point that the mere presence of atra-zine contamination was not enough to cause plant damage. Dr. Coble testified that (based on testing he conducted) the level of atrazine found in Benlate was not high enough to cause the observed harm to plants.

Exactly the same question applies when considering whether the observed level of water contamination could create the injury sustained by the Sidrans’ orchids. Since there was no proper scientific basis for Dr. Coble’s testimony on this point, it should have been excluded.

Dupont argues that this error was harmless. We cannot accept that contention. The Sidrans objected not only to Dr. Coble’s testimony but also moved to strike the entire water contamination defense. Dr. Coble was introduced to the jury not only as an expert, but as an agronomist from the United States Department of Agriculture, which carries with it a particular aura of credibility. The cited testimony was the main support for Dupont’s water contamination defense, but there simply was no scientific basis for it. Clearly the testimony was harmful.

In support of its position, Dupont points to the testimony of the Sidrans’ neighbor, Ethyl Knapp, who was also a successful orchid grower. Ms. Knapp testified by video deposition that her orchids likewise had serious problems during this time period. She maintained in her videotaped deposition that she never used Benlate. She testified that the more she watered her orchids, worse they did. She attributed this problem to the groundwater contamination.

Ms. Knapp’s testimony was impeached, however, because witness D’Armand Hull, a University of Florida agricultural agent in South Florida, testified that Ms. Knapp had Benlate on her premises and that her husband Charlie Knapp had applied it to the plants. Plaintiff Jill Sidran testified that she saw Ms. Knapp use Benlate. The Sidrans proffered that Ms. Knapp and her husband were at the time of her testimony plaintiffs in a pending lawsuit brought by Suniland residents against the dry cleaning establishment which had allegedly leaked the dry cleaning chemicals into the ground. In addition, Ms. Knapp’s testimony suffered from the same deficiency as that of Dr. Coble: it reveals no scientific basis for believing that water contamination at the tested levels would be harmful to orchids, and as already stated, there was no other expert testimony in the case to establish that point.

For the stated reasons, we adhere to our earlier opinion of reversal and remand for a new trial.

      . It can also be said that the question posed to Dr. Coble concerning the effect of the contaminants improperly insinuated the existence of facts to the jury; to wit, that contaminants at the level of 1.7 micrograms per liter would have an adverse effect on orchids or that Coble performed a study to test this fact. See Del Monte Banana Co. v. Chacon, 466 So.2d 1167, 1172-73 (Fla. 3d DCA 1985).

       Judge Suarez did not hear oral argument, but participated in the decision.

      . Our original opinion described the test as showing 1.7 micrograms per liter. Opinion at 1042. This translates to 1.7 parts per billion.

      . The Sidrans conceded that atrazine was not the cause of the problem with Benlate and maintained that the product was defective for other reasons.

      . To use an analogy, it is common knowledge that chlorine is a toxic substance which in concentrated forms is hazardous to humans and plants. However, when applied in very small concentrations in municipal water sys-terns, it becomes an effective disinfecting agent. It is common experience that chlorinated water is safely consumed by humans and routinely applied to ornamental plants, including orchids, without ill effect. In the present case the question is whether the water contamination at the observed levels has a harmful effect on orchids. Dupont produced no competent scientific evidence to establish that it is harmful at those levels.

      . At trial the court excluded a recording of a conversation between Ms. Knapp and a Du-pont representative in which she admitted that she used Benlate. The trial court ruled that the recording was not sufficiently authenticated for introduction into evidence, and the ruling regarding authentication was within the trial court's discretion. We need not reach the parties’ arguments regarding whether the tape (if it is ever properly authenticated) would be admissible for impeachment purposes.

      . There was an interrogatory verdict asking the jury (1) whether Dupont placed Benlate DF on the market with a defect, and (2) whether Dupont was negligent. Dupont’s water contamination argument was relevant to both claims.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DYLAN INVESTMENTS, INC., Appellant, v. NORTEL, INC., Arne M. Soreide, James Iaderose, Lynn Soreide, Donna Kim a/k/a Donna Sottile and Nor Communications, Appellees.
    No. 4D04-589.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2005.
    Rehearing Denied April 27, 2006.

      Steven J. Gutter of Kahn & Gutter, Plantation, for appellant.
    Herbert B. Dell of Herbert B. Dell, P.A., Fort Lauderdale, for appellee Lynn So-reide.
   PER CURIAM.

Dylan Investments obtained a judgment against Arne Soreide and his wholly-owned corporation, Nortel, Inc. It then brought these supplementary proceedings against the judgment debtors and Arne’s wife, Lynn Soreide. The trial court entered judgment in favor of Lynn. We affirm.

Dylan, Nortel’s landlord, was awarded judgment for breach of lease. Dylan asserts that Lynn is indebted to it by virtue of fraudulent transfers from Nortel, Inc. through a separate corporation, Accutel Communications, Inc., wholly-owned by Lynn. Accutel occupied the premises after Nortel ceased doing business. The resolution of this appeal hinges on whether there exists competent, substantial evidence supporting the trial court’s conclusion rejecting Dylan’s claim that Accutel was a business continuation or successor of Nortel.

The trial court made these findings:

At trial, Plaintiff presented the following exhibits: (a.) the 1996 Tax Return for NORTEL, INC.; (b.) the 1997 Tax Return for NORTEL, INC.; (c.) the 1996 Tax Return for ACCUTEL COMMUNICATIONS, INC.; (d.) the 1997 Tax Return for ACCUTEL COMMUNICATIONS, INC.; (e.) ARNE and LYNN SOREIDE’s Joint 1997 Tax Return and (f.) Financing Statement regarding purchase and financing of a leased 1995 Mercedes. The parties stipulated that there would be no forensic accountant and no evidence of such an accounting was presented to this Court. Plaintiff presented no expert testimony to establish that any specific asset transfers were made from NORTEL, INC. to AC-CUTEL COMMUNICATIONS, INC.
The undisputed testimony established that NORTEL, INC. entered into the lease with DYLAN INVESTMENTS, INC.; NORTEL, INC. had desks, chairs and nominal office equipment which were sold for $1,000.00 after the business failed; the assets reflected on NORTEL, INC.’s tax returns were abandoned after the business was downsized and left its office in Broward County, Florida. Plaintiff presented no testimony to establish the fair market value of the assets referenced on NOR-TEL, INC.’s tax returns and the testimony regarding any alleged transfer of assets to or used by ACCUTEL COMMUNICATIONS, INC. was disputed and was not specific. Hence, this Court rejects that testimony.

There is no evidence that Lynn personally participated in Nortel’s business and there is evidence that Accutel conducted an entirely different business than Nortel. There is also evidence that Accutel was incorporated prior to the Dylan lease and that both companies carried on their business simultaneously, with Ac-cutel utilizing a portion of the leased space.

Perusal of the transcript and the tax forms reflects proof of only these nebulous, at best, transfers tying Nortel to Lynn: a tax write-off for the abandoned Nortel furnishings and equipment on Lynn’s 1997 tax return and a profit distribution to Lynn for Accutel’s business. Testimony linking Accutel to Nortel receivables was rejected by the trial court, although there is a link between the abandoned furniture and Lynn via a tax credit on a joint return for a depreciated loss. Because both corporations were S corporations, both Arne and Lynn were eligible for the tax credit as husband and wife. There is no link between Accutel’s profit and Nortel’s receivables without testimony explicitly rejected by the trial court.

Furthermore, Dylan correctly notes that expert testimony is not required to prove a fraudulent transfer. However, the record does not indicate that the trial court based its conclusion that there was no fraudulent transfer on the lack of expert testimony.

As such, we conclude that the trial court did not err by concluding that no fraudulent transfer occurred as the evidence at hand supported the trial court’s conclusion that Accutel was not a business continuation or successor of Nortel. In reaching this conclusion, it was unnecessary for this Court to consider the parties’ statuses and obligations under the Florida Uniform Transfer Act, and we reach no conclusion on this issue as a result.

Affirmed.

GUNTHER, STONE and STEVENSON, JJ„ concur.


author:
MAY, J. WARNER, J., PER CURIAM.
      WARNER, J.,

text:
    Ofer M. AMIR, Appellant, v. Elizabeth M. AMIR n/k/a Elizabeth M. Gannon, Appellee.
    No. 4D04-4036.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.
    Order Denying Rehearing and Opinion Dissenting from Denial of Rehearing May 3, 2006.

      Stephen Rakusin of The Rakusin Law Firm, Fort Lauderdale, for appellant.
    Thomas R. Eineman of Thomas R. Eine-man, P.A., Spring Hill, for appellee.
   MAY, J.

The father appeals a final order regarding the children’s visitation after a remand from this court. We again reverse and remand the case to the trial court to correct the order concerning the visitation schedule.

The mother and father entered into a marital settlement agreement, which the trial court approved and incorporated into the final judgment of dissolution of marriage. The agreement provided the father with visitation of one month during the summer, alternate holidays from school, and weekends. Due to the distance between Broward and Pasco counties, however, the father exercised his weekend visitation with the children every other weekend.

The agreement further provided a “substitute” visitation schedule if the mother moved north of Pasco County or out of the state. That schedule allowed the father two months visitation during the summer and the “entire Christmas/Hanukkah vacation” from school.

When the mother moved north of Pasco County, the father asked for the time provided in the “substitute” visitation schedule in addition to the time allotted in the original visitation schedule. The mother took the position that the “substitute” visitation was in lieu of the original; not in addition to it. The trial court agreed with the father. The mother appealed. We reversed. Gannon v. Amir, 873 So.2d 532 (Fla. 4th DCA 2004).

In Gannon, we held that although the “substitute” visitation provision indicated it was providing extended or additional visitation, it actually provided a specific option in lieu of the original visitation schedule. We remanded the case to the trial court for entry of a final judgment consistent with our opinion. However, upon remand, the trial court entered an order containing distinctly different language. We now revisit the issue of visitation for the second time.

A basic principle of appellate review is the trial court lacks the authority to deviate from or go beyond the relief granted or instructions mandated by the appellate court. Hill v. Palm Beach Polo, Inc., 805 So.2d 1014, 1016 (Fla. 4th DCA 2001). After the issuance of a mandate, the trial court’s function is purely ministerial. Savage v. Macy’s E., Inc., 719 So.2d 1208, 1209 (Fla. 3d DCA 1998).

Our prior opinion instructed the trial court to provide the father with the two options called for by the agreement: (1) the original visitation schedule; or (2) the substitute visitation schedule. Despite this simple dictate, the trial court’s order correctly recited only the provisions of the “substitute” visitation schedule as set forth above. It then altered the original visitation schedule option.

In paragraph four, the court limited the father’s weekend visitation to every other weekend from Friday at 4:00 pm until Sunday afternoon, and limited the alternate holidays from school to half of the Christmas/Hanukkah vacation time from school. In paragraph five, the court then added a requirement that the father advise the mother of the visitation schedule he intended to exercise by December 1st of the preceding year.

The original visitation schedule clearly and unambiguously provided the father with visitation every weekend, one month during the summer, and alternate holidays from school. That is what the order should have indicated. There was no room for modification by the trial court.

Reversed and remanded.

STEVENSON, C.J., concurs.

WARNER, J., concurring in part and dissenting in part.

WARNER, J.,

concurring in part and dissenting in part.

I agree with the majority opinion except for that portion which reverses the trial court’s requirement that the father advise the mother by December 1st of the preceding year as to which visitation schedule, original or substitute, the father will elect for the ensuing year. I do not view that as a modification of the agreement at all. The father must determine whether he will be visiting with the children every weekend starting the first weekend in January of the upcoming year or whether he will have them in the summer and the winter vacation of that year. He cannot start with one visitation schedule and decide to switch to another halfway through the year. Therefore, the notification date provided by the trial court merely implements the option arrangement set forth in the parties’ agreement. It does not modify it.

On Motion for Rehearing

PER CURIAM.

The motion for rehearing is hereby denied.

STEVENSON, C.J., and MAY, J., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would grant the mother’s motion for rehearing, as she correctly notes that the issue of weekend visitation was already decided and not appealed by the husband in the prior appeal.

During the first proceeding, the trial court specifically determined that the visitation agreement called for the former husband to visit with the children every other weekend. This issue was litigated in the first proceeding, and the court determined, consistent with the parties’ practice, that weekend visitation under the agreement meant visitation every other weekend. Specifically, the final judgment stated: “The court clarifies and interprets the parties’ disagreement as to the former husband’s rights to visitation under the Marital Settlement Agreement as follows: 3. The former husband is entitled to weekend visitation with the minor children, which for the last seven years the parties have defined as every other weekend.”

The wife appealed that order on other grounds, but the husband failed to cross-appeal the trial court’s construction of the agreement as requiring alternating weekend visitation. Our prior opinion noted the parties’ construction of weekend visitation under the agreement as found by the trial court. Gannon v. Amir, 873 So.2d 532 (Fla. 4th DCA 2004).

On remand, and based upon our instructions, the trial court amended the final judgment to reflect our ruling. This was done without an additional evidentiary hearing. Nowhere in our prior order did we direct the court to reconsider its ruling with respect to its interpretation of the every other weekend requirement of visitation. The court entered the amended final judgment, which the former husband then appealed. However, having failed to contest the court’s construction of the agreement by cross-appeal in the first appeal, the former husband should have been precluded from raising the issue of his weekend visitation in this second proceeding. See Sibley v. Sibley, 885 So.2d 980 (Fla. 3d DCA 2004).

The subject of visitation was “implicitly addressed or necessarily considered by the appellate court’s decision,” see Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001), so that it is the law of the case. Our prior opinion noted that the former husband exercised visitation with the children every other weekend. The entire subject of the proceedings was the amount of visitation that the former husband could exercise with the children. After determining that the trial court erred in its interpretation of “substitute visitation” under the agreement, we reversed and remanded “for entry of a final judgment consistent with this opinion.” Gannon, 873 So.2d at 533. We did not remand for further proceedings — merely a final judgment consistent with our ruling. Thus, there was no room for proceedings to amend the trial court’s prior ruling that weekend visitation under the agreement meant alternating weekends. As such, I would conclude that the parties are governed by the law of the case.

Moreover, at the very least, the weekend visitation provision in the agreement was ambiguous, which ambiguity was resolved by the trial court. The visitation agreement states: “That the children may visit the husband/father for a period of one month during the Summer; alternate holidays from school; and weekends. The specifics as to all visitation shall be worked out by the parties to their mutual satisfaction in advance of all visitations.” The agreement does not define “weekends” or state that “weekends” means every weekend. Thus, weekends could be contrasted to weekdays. The parties were to work out the visitation to their mutual satisfaction and their pattern over seven years, from the time the agreement was executed to these proceedings, was that the former husband exercised visitation on alternating weekends. At the original proceedings, the wife testified that they intended that the husband have alternating weekends. The husband maintained that the agreement required every weekend visitation, even though he never exercised it. The trial court was the trier of fact and resolved the inconsistencies between the parties’ positions. Even if the husband can appeal the weekend designation, we should affirm, because the agreement was ambiguous, and the trial court’s ruling was supported by competent substantial evidence. See Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468 (Fla. 4th DCA 2000).

Based upon the foregoing, I would now affirm the trial court’s order in its entirety.

      . The court's order properly specified the one month of summer visitation under the original schedule.


text:
    Timothy B. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05M475.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2006.
    Rehearing Denied April 6, 2006.
    Timothy B. Edwards, Jasper, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wilson v. State, 845 So.2d 142 (Fla.2003).

ORFINGER, MONACO and TORPY, JJ., concur.


author: THOMPSON, J. PALMER, J.,

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Edgar Allan SUBIDO, Appellee/Cross-Appellant.
    Nos. 5D04-3922, 5D04-4228.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 12, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Raymond L. Goodman, Altamonte Springs, for Appellee/Cross-Appellant.
   THOMPSON, J.

The State appeals Edgar Allan Subido’s downward departure sentence. Subido’s scoresheet indicated that his lowest permissible sentence was 108 months’ incarceration; the court sentenced him to two years’ community control and nine years’ probation. Finding no legal basis for the reasons given for departure, we reverse and remand for resentencing.

Because of the nature of the crime and the sentence imposed, we submit the following facts: In January 2004, Subido committed sexual battery while he was in a position of familial authority and while his stepdaughter was asleep, committing a first-degree felony in violation of sections 794.011(4)(a) and (8)(b), Florida Statutes (2003). He was 43, and his stepdaughter was a 15-year-old ninth-grader.

The stepdaughter went to bed around ten that night. She left her bedroom door closed when she went to bed. She woke up because Subido was rubbing his fingers against and inside her vagina. She was laying on her back, but rolled over, at which point he apologized, rubbed her shoulder, kissed her head, and left.

Subido admitted in a police interview that he “did digitally penetrate her ... but that’s as far as it went.” It was an anniversary of his mother’s death, and he had too much to drink. After passing out on a couch, he went upstairs to tell his stepdaughter to do the dishes. She said she was cold, so he “hopped up on the bed and held her.” He did not remember clearly, but if his stepdaughter said that [he] had fondled her, then he probably did. He elaborated:

I was rubbing her and I put my hand underneath and started rubbing her there ... [o]n her stomach and around her legs and stuff like that. Just getting her warm ... [a]nd I guess that I got between her legs and put my finger in her.

He digitally penetrated her “[pjrobably not even a second.”

At trial, Subido repeated this explanation with little variation. He conceded he “molested [his] daughter,” but backed away from his confession of penetration; because he was drunk, he could not say that he did penetrate her. Although he could not remember exactly what happened, he was certain it lasted less than a second.

Two weeks before trial, the girl’s mother relayed a message from Subido. If his stepdaughter did not testify, he could give her $5,000 for a car or something, and they would not have to go to trial. Subido explained that he offered $5,000 because he did not want the girl to have to go through a trial, and he did not want to pay his attorney for trial. On cross examination, Subido conceded he had already paid his attorney. The jury found Subido guilty of sexual battery while he was in a position of familial or custodial authority and while his stepdaughter was physically helpless.

Subido asked for a downward departure sentence. He claimed that his stepdaughter used the event to move closer to a boyfriend and drop out of high school. He also claimed that he had confessed, answered all questions, and cooperated with the court. Furthermore, the offense was committed in an unsophisticated manner because he could have done more to his stepdaughter, but, “upon the victim’s awakening and pulling away[,] [Subido] did not use force or coercion or otherwise continue to commit the offense.” Finally, he had no criminal record, had been a Marine, and had otherwise “lived as an exemplary citizen.”

The State requested nine years’ incarceration, near the bottom of the guideline sentence range. The trial court declined, finding that Subido had offered a “reasonable explanation” for the events that night. Also, Subido had military service, worked hard, and showed that he was disappointed in himself. The court found that the crime was an isolated event for which Subido was remorseful. The court decided to impose a downward departure sentence for reasons that were initially unclear:

[C]ireumstances which were associated with this particular event culminated in, which commonly comes before me, whenever you have alcohol involved, whenever you have an emotional situation, this one was celebrating the anniversary of your mother’s passing, and the circumstances that can lead to a bad result, which is exactly — To say this is a bad result is an understatement.
So for those following reasons I find that there’s a legal basis for a downward departure in this particular sentence ....
Prison is not appropriate in this particular situation. I think it’s — there’s basis which naturally impact upon the Court’s decision, which are not legal basis, which I can’t consider, naturally, your life, your background, things of that nature. Sufficient basis just from the facts that are associated with the behavior once this came to light indicate to form the basis.... But I think your facts surrounding your behavior after this happened show that you’re worthy of the downward departure.

The State objected, noting that there was no evidence that the battery was committed in an unsophisticated matter. The court responded:

Let me just tell you why I think it was committed in an unsophisticated matter. ...
Unsophisticated fashion, basically it was an event that was fueled by drinking, passing out, going up to the room, I’ll say sort of clumsily going through this, expressing shock at his actions at that time. Unsophisticated actions based upon my experience in hearing these cases in court, based upon him not attempting to do anything that I would consider other than make a base attempt at what he succeeded in doing. There was no introduction of alcohol to the child. The child was asleep in bed, he went up there and did that. The circumstances which I have heard at trial, which I’ve heard through the testimony, all lead to an inescapable conclusion that it was done in an unsophisticated fashion.

(Emphasis added).

The State pointed out that Subido’s inebriation could not be the basis for finding a lack of sophistication. The court responded:

Let me be more specific. Separate and apart from any alcohol consumption, the manner in which the crime was committed, the fashion in which it was committed, was unsophisticated in the Court’s opinion. I had an opportunity to listen to the facts during trial. The parties discussed this beforehand. Nothing was different from what the State told me had occurred and nothing was different from what the Defense told me had occurred. And Mr. Subido told me exactly what both of you had told me before. So there’s no reasonable doubt that’s the fashion in which it occurred.
And I heard it, and it impressed me, and I was able to see the witnesses, hear the witnesses speak and had my firsthand impression to look at the witnesses and see the sincerity of their testimony. And there’s no doubt in my mind based upon all these cases that I hear on a regular basis that this was done in an unsophisticated fashion.
With the introduction of the alcohol, that enhances to a certain extent beyond the sophistication factor, inasmuch as he was inebriated, there’s been no doubt with respect to that aspect of the testimony. And that’s why I detail it as being somewhat clumsy in the approach and what transpired. Is [sic] not. as though I have not heard these cases before, as far as what people do to molest children, to get children under the influence, to trick children, to deceive children. This was not one of those types of cases. This was, as I say, done in a blatantly unsophisticated fashion.

(Emphasis added).

The court entered an order declaring Subido a sexual predator on 16 November 2004. The State appealed the downward departure sentence, and Subido appealed the order declaring him a sexual predator.

The issue here “is whether the reasons set forth by the trial court as the basis for the downward departure are legally valid and supported by competent, substantial evidence.” State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). We hold that the basis for downward departure was not supported by competent, substantial evidence.

DISCUSSION

The provision of criminal penalties is a matter of predominantly substantive law determined by the legislature. § 921.002(1), Fla. Stat. (2003); State v. Ayers, 901 So.2d 942, 946 (Fla. 2d DCA 2005). Ordinarily, the lowest permissible guideline sentence is “assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1); Mann, 866 So.2d at 181. A downward departure is prohibited unless circumstances reasonably justify the departure, which must be articulated in writing. § 921.0026(1); 921.002(1)®; Mann, 866 So.2d at 181, 183; Ayers, 901 So.2d at 944-45; Staffney v. State, 826 So.2d 509, 511 (Fla. 4th DCA 2002). If the trial court does not articulate in writing the basis for departure, the sentence may be affirmed if the court orally pronounced on the record a valid basis for the departure. Mann, 866 So.2d at 181; State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003).

To determine whether a downward departure sentence is appropriate, the trial court follows a two-step process. Mann, 866 So.2d at 181; Staffney, 826 So.2d at 511. First, the court must determine whether there is a valid legal ground for the departure sentence, set forth in statute or case law, supported by facts proven by a preponderance of the evidence. Id. The defendant bears the burden of proof. Mann, 866 So.2d at 181. This step is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Staffney, 826 So.2d at 511; Mann, 866 So.2d at 181.

The second step requires the trial court to determine whether the departure is the best sentencing option for the defendant by weighing the totality of the circumstances. Its decision will be sustained absent an abuse of discretion. We need not reach the second step, because no competent, substantial evidence supports the legal grounds for the departure sentence. Mann, 866 So.2d at 181; Staffney, 826 So.2d at 511.

UNSOPHISTICATION AS A REASON FOR DEPARTURE

A valid basis for departure exists where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(J); Mann, 866 So.2d at 182; Thompson, 844 So.2d at 815; Ayers, 901 So.2d at 945; Staffney, 826 So.2d at 511. All three elements must exist to justify departure; the offense must have been isolated, committed in an unsophisticated manner, and one for which the defendant had shown remorse. Thompson, 844 So.2d at 815 (citing State v. White, 755 So.2d 830, 833 (Fla. 5th DCA 2000)); Ayers, 901 So.2d at 945; Mann, 866 So.2d at 182-83; State v. Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005); Staffney, 826 So.2d at 511-12. However, “intoxication at the time of the offense is not a mitigating factor ... and does not, under any circumstances, justify a downward departure from the permissible sentencing range.” § 921.0026(3) (emphasis added); Thompson, 844 So.2d at 815.

The trial court did not explain the departure in writing, but the transcript shows that the court relied on the “unsophisticated manner” language in section 921.0026(2)(j). See Ayers, 901 So.2d at 945. The transcript also shows that the court’s reliance on that mitigating circumstance was unwarranted. Id. The record does not support the finding that the offense was committed in an unsophisticated manner. See Mann, 866 So.2d at 183; Ayers, 901 So.2d at 945. It is difficult, if not impossible, to prove that a sexual battery against a minor occurred in an unsophisticated fashion. State v. Munro, 903 So.2d 381, 383 (Fla. 2d DCA 2005) (stating that, where the adult defendant committed lewd molestation on a child victim, it was difficult, if not impossible, to show that the crime was committed in an unsophisticated manner); State v. Bernard, 744 So.2d 1134, 1135 (Fla. 2d DCA 1999) (noting that the defendant “was 24 years of age at the time he committed the crime and it might be difficult, if not impossible, to prove that he had sexual intercourse with this child in an unsophisticated manner”).

In a nearly identical case, the Fourth District held that the defendant could not show lack of sophistication. Staffney, 826 So.2d at 510. There, the assailant digitally penetrated the sleeping victim; after she awoke, he left the room after saying that it was a mistake and he had messed up. Id. Also like Subido, who claimed to have been asleep or too drunk to remember exactly what he did, the defendant in Staffney claimed that he had been asleep and unaware of his actions. Id. at 510-11. The appellate court disagreed with the trial court’s assertion that the “very nature of the crime” showed that it was unsophisticated. Id. at 512. The very nature of the crime was sexual battery, precisely defined in section 794.011. Id.

It is difficult to understand how Subido’s actions can be characterized as unsophisticated. Subido “waited for the victim to fall asleep, then, in a stealth-like manner, crept into the bed alongside her ... and proceeded to commit sexual battery upon her.” Staffney, 826 So.2d at 512. He had to go through several distinctive and deliberative steps in order to commit the sexual battery, including walking upstairs, opening and closing his stepdaughter’s door, getting on the bed with her, and moving his hands under the bedcovers. Id. These steps are further evidence that this crime was not committed in an unsophisticated manner. See. id. The trial court below characterized this as nothing more than “a base attempt at what he succeeded in doing.” Of course, it is virtually impossible to describe a completed sexual battery that is not, by definition, “a base attempt at what the [assailant] succeeded in doing.”

INEBRIATION AS A REASON FOR DEPARTURE

The other reasons cited by the trial court do not justify Subido’s downward departure sentence as a matter of law. First, the trial court repeatedly invoked Subido’s alleged inebriation to justify a downward departure. The event occurred because alcohol was involved, and “it was an event that was fueled by drinking.” The State observed that intoxication did not justify downward departure, but the court could not explain the departure without repeating its conviction “this was done in an unsophisticated fashion.” Worse, it returned to Subido’s intoxication: “With the introduction of alcohol, that enhances to a certain extent beyond the sophistication factor, inasmuch as he was inebriated ... [a]nd that’s why I detail it as being somewhat clumsy in the approach and what transpired.” This contravened the plain language of the statute, which forbids the use of intoxication to justify a downward departure. See § 921.0026(3); Thompson, 844 So.2d at 815.

COMPARATIVE HEINOUSNESS AS A REASON FOR DEPARTURE

Alternatively, the trial court may have awarded the downward departure because Subido’s offense was not as bad as other offenses the court had observed. The court referenced its “experience with these types of cases and ... ability to develop a sense of apportionality amongst these types of events.” Subido’s actions were “[u]nsophisticated ... based upon my experience in hearing these cases in court, based upon him not attempting to do anything that I would consider other than make a base attempt at what he succeeded in doing.” Subido had not done what some “people do to molest children, to get children under the influence, to trick children, to deceive children.”

Unfortunately for Subido, the law does not support downward departure merely for committing an offense less heinously than other defendants. Subido argued, and the trial court agreed, that Subido could have done more than merely digitally penetrate his stepdaughter. However, the legislature has not seen fit to make Subido’s offense a lesser crime. The definition of sexual battery clearly includes digital penetration. § 794.011(l)(h).

Moreover, Subido’s decision to wait until his stepdaughter was asleep was not grounds for mitigation, notwithstanding the court’s “sense of apportionality” or Subido’s failure to get his stepdaughter drunk before committing sexual battery. The statute provides that sexual battery on a sleeping person is a first-degree felony. See §§ 794.011(l)(e); 794.011(4)(a). Similarly, the legislature intended to punish those in positions of familial or custodial authority who commit sexual battery. §§ 794.011(8)(b); 794.011(l)(h). Subido’s first-degree felony mandated a minimum term of 108 months’ imprisonment. The court’s observation that others commit sexual battery against minors in more deceitful or persistent ways does not justify departure in this case.

APPROPRIATENESS AS A REASON FOR DEPARTURE

The trial court also felt the guideline sentence was “not appropriate in this particular situation.” See Ayers, 901 So.2d at 945. However^ the court may not award a downward departure merely because it disagrees with the legislative determination of sentencing policy or feels that the lowest permissible sentence is not commensurate with the crime. Id. at 945-46. “When imposing a sentence, a trial court must act within the bounds of the discretion granted by the legislature.” Id. at 946; see also Mann, 866 So.2d at 183.

The court felt Subido “led a good life,” citing bases, “which are not legal basis, which I can’t consider ... your life, your background, things of that nature ... [that] I’ve certainly taken ... into account.” Subido’s behavior “after this happened” showed he deserved the downward departure. A downward departure is not justified merely because the defendant cooperated after his offense was discovered. See State v. Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005) (rejecting the downward departure sentence for a defendant who confessed to the police, lacked a prior record, and garnered the victim’s mother’s support). Neither his work history nor his behavior after the sexual battery support the finding that Subido committed the oí-fense in an unsophisticated fashion. Mann, 866 So.2d at 183.

Subido failed to present sufficient evidence to prove the existence of factors justifying a departure sentence. Mann, 866 So.2d at 183-84. No competent, substantial evidence supports the finding that the crime was committed in an unsophisticated manner. See id. at 512-13. Because a preponderance of the evidence does not support the reason given by the trial court for departing downward from the sentence range, we reverse and remand for sentencing within the guidelines. See Mann, 866 So.2d at 184; Staffney v. State, 826 So.2d 509 (Fla. 4th DCA 2002); State v. Dunning, 742 So.2d 378, 379 (Fla. 2d DCA 1999).

CROSS-APPEAL

Subido cross-appeals the court’s determination that he is a sexual predator without a hearing to determine his danger to the community, stating without argument or citation that the registration requirement of section 943.0435 is unconstitutional. We disagree because this issue has already been decided. See Milks v. State, 894 So.2d 924 (Fla.2005); Hanson v. State, 905 So.2d 1036 (Fla. 5th DCA 2005), rev. den., 917 So.2d 193 (Fla.2005); Linderman v. State, 884 So.2d 498 (Fla. 5th DCA 2004); Johnson v. State, 875 So.2d 1281 (Fla. 5th DCA 2004); Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004); Garcia v. State, 909 So.2d 971, 972 (Fla. 3d DCA 2005); Smith v. State, 871 So.2d 296, 297 (Fla. 1st DCA 2004); Doe v. Moore, 410 F.3d 1337 (11th Cir.2005).

Subido’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but review of the record reveals no issues of arguable merit. See Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004); Rodriguez v. State, 875 So.2d 642, 643 (Fla. 2d DCA 2004).

Accordingly, we AFFIRM Subido’s conviction and designation as a sexual predator, REVERSE his downward departure sentence, and REMAND for resentencing within the guidelines.

TORPY, J., concurs.

PALMER, J., dissents, with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because I conclude that the record contains competent substantial evidence to support the trial court’s determination that the crime was committed in an unsophisticated manner and, thus, it was not an abuse of discretion for the court to impose a downward departure sentence.

      . " ‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ... § 794.01 l(l)(h). “'Physically helpless’ means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act.” § 794.01 l(l)(e).
      A person who commits sexual battery upon a person 12 years of age or older without that person's consent, when the victim is physically helpless to resist, commits a first-degree felony. § 794.01 l(4)(a). Regardless of consent, a person in a position of familial or custodial authority who engages in an act that constitutes "sexual battery” with a child between 12 and 18 commits a first-degree felony. § 794.01 l(8)(b).

      . Admittedly, Subido's "reasonable explanation” — a fatherly attempt to warm up his stepdaughter just happened to make him digitally penetrate her — would be even more tenuous without referring to intoxication.

      . With child abuse, "[bjecause victims hesitate to report this crime and proof of the offense is often difficult to obtain, there is a risk that perpetrators will believe they can escape detection and punishment. As a result, there is a need for a harsh penalty to act as a sufficient deterrent.” Gibson v. State, 721 So.2d 363, 369 (Fla. 2d DCA 1998).

      . Even if Subido's behavior after the offense was relevant, his attempted bribe to prevent the victim from testifying against him did not suggest a lack of sophistication.


author: SHARP, W., J.

text:
    Jerome SORRENTINO and Rita Sorrentino, Appellants, v. RIVER RUN CONDOMINIUM ASSOCIATION, etc., Appellee.
    No. 5D05-836.
    District Court of Appeal of Florida, Fifth District.
    March 3, 2006.
    Rehearing Denied April 18, 2006.

      Robert B. Snow of Robert Bruce Snow, P.A., Brooksville, for Appellant.
    Kimberly A. Ashby, of Akerman Senter-fitt, Orlando, for Appellee.
   SHARP, W., J.

Jerome and Rita Sorrentino appeal from a final order in a lawsuit brought against them by the River Run Condominium Association, a Condominium Homeowners Association. The Association sought to enforce the provisions and restrictions of the Condominium Declaration by requiring the Sorrentinos to remove two tubular skylights they installed in the roof and ceiling of their condominium unit in River Run, without the prior written approval of the Association. The Sorrentinos defended and counterclaimed for an injunction prohibiting the Association from requiring them to remove the skylights. Both parties requested an award of attorney’s fees, should they prevail. After conducting a bench trial, the court granted the relief requested by the Sorrentinos, denied the relief requested by the Association, and denied an award of attorney’s fees to the Sorrentinos.

On appeal, the Sorrentinos argue that they are entitled to a reasonable attorney’s fee award as the prevailing party, and that the trial court breached its discretion in failing to make an award pursuant to sections 718.303, and 163.04(3), as well as provision 18.2 of the Declaration of Condominium. We agree and reverse.

This record consists solely of pleadings filed before trial and the order containing findings of fact found by the court following the trial. There is no transcript. Thus, we base our opinion on that record and accept as true and established the fact findings by the trial court.

This controversy arose when the Sorren-tinos sought permission from the Association to install two tubular skylights, “similar to the one installed in our building # 8 at 6693 and various other units in the community,” in their unit. The letter is dated August 19, 2002. It stated that the work would be done by a reputable company and it attached specifications and a description sheet, although they are missing from the record. The letter further stated that a representative from the company was prepared to answer any and all questions the Board members might have and that a representative of the company would make a presentation to the Board, if requested. The letter also gave the name and telephone number of the company and a representative.

The application was discussed at a Board meeting, but was tabled because Board members thought more information was needed. The President of the Association contacted the company who the Sor-rentinos had proposed to install the skylights, and asked that a representative of the company appear at the next Board meeting to answer questions of its members. However, the company replied that it did not have a representative available to attend an evening meeting, which was apparently when the Board met.

The President made no further effort to obtain information from the company and she did not request additional information from the Sorrentinos. Because no additional information was provided regarding the application, the application was denied at the next Board meeting. The President informed the Sorrentinos of the denial.

Even though their application had been denied by the Board, the Sorrentinos proceeded to install the tubular skylights on the roof of their unit. Clearly the roof was a common element of the condominium and under at least two provisions of the Declaration, prior written approval of the Board was required before such a structural alteration of the unit and or common element could be made.

When the Board learned that the skylights had been installed, the Board sent the Sorrentinos a letter dated November 22, 2002, requesting that the skylights be removed at their expense by a licensed and bonded roofer. It stated that the Board’s denial was based on the Association’s concern that the skylights would place the roof in jeopardy and the exercise of the Association’s responsibility for the roof as a common element.

The Sorrentinos responded with a letter to the Board dated December 2, 2002. Apparently, for the first time, they informed the Board that the skylights were solar collectors and that pursuant to section 163.04 they did not need the Board’s approval to install them. The letter enclosed a copy of the statute. It provides in part:

163.04. Energy devices based on renewable resources.
(2) No deed restrictions, covenants, or similar binding agreements running with the land shall prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restrictions, covenants, or binding agreements. A property owner may not be denied permission to install solar collectors or other energy devices based on renewable resources by any entity granted the owner or right in any deed restriction, covenant, or similar binding agreement to approve, forbid, control or direct alteration of property with respect to residential dwellings not exceeding three stories in height. For purposes or this subsection, such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45 east or west of due south provided that such determination does not impair the effective operation of the solar collectors.
(3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney fees.

Seemingly unimpressed with section 163.04 and not addressing it, the attorney for the Association sent a letter to the Sorrentinos dated December 31, 2002. He informed them the Board had directed him to make a formal demand that they remove the skylights. He gave them thirty days in which to remove them via a licensed and bonded roof contractor. If they did not comply, he warned that the Association had authorized him to file a civil action to seek removal of the skylights, and that they would bear the expense of the removal and attorney’s fees and court costs.

The Sorrentinos did not remove the skylights and on March 13, 2003 the Association filed this lawsuit alleging breach of the provisions of the Condominium Declaration and seeking a mandatory injunction to have the skylight removed. The Sor-rentinos’ pleadings in response to the complaint are not in the record, but they filed a motion for summary judgment, apparently based on them. They asserted that the skylights are solar collectors and thus constitute an “energy saving device based on renewable resources,” pursuant to section 163.04(2). Thus, the Association could not prohibit their installation under the statute. Attached to the motion were affidavits from experts that establish the two skylights are protected devices and that their installation had had no negative effect on the building where the unit is located.

The Association deposed one of the Sor-rentinos’ experts and presented the court with a legal memorandum asserting that section 163.04 is unconstitutional. The court denied the Sorrentinos’ motion for summary judgment on the ground that there were material issues of fact as to whether the skylights were properly installed and whether the Association has the authority to require that they be removed. The pre-trial order states that the issues to be tried were:

1. Did the Association have the right to mandate approval of the installation of a tubular skylight in the roof of a condominium unit;
2. Is it an energy-saving device within the meaning of section 163.04;
3. Did the Sorrenintos have the right to install the skylight after the Association denied their request;
4. Is section 163.04 unconstitutional;
5. Award of attorney’s fees.

At trial, the parties stipulated that the skylights were energy-saving devices pursuant to section 163.04, Florida Statutes; that the Sorrentinos installed the skylights after being denied approval by the Association; and that since the skylights were installed, three hurricanes occurred and the skylights did not fail in any material way. The issue regarding the constitutionality of section 163.04 was apparently dropped by the Association.

The order rendered after the trial enjoined the Association from requiring the Sorrentinos to remove the skylights because the skylights are protected by section 163.04. It also found, after the fact, that the skylights were properly installed and pose no , risk to the condominium building. The order faulted the Sorrentinos for not having made reasonable efforts to obtain the prior written approval of the Association before installing the skylights and found that the Association’s initial denial of permission was reasonable. It specifically found that neither was “the prevailing” party.

The court explained why it thought there was no prevailing party. First it said it did not rely on section 163.04 in arriving at its decision. What really occurred here was that the parties had a “failure of communication.” The Association’s initial denial of the application to install the skylight was proper because the Association was reasonably concerned about safety issues and the integrity of the roof. The parties continued to miscommu-nicate, even after being represented by counsel. The court did not believe either party was completely right or completely wrong and that there were substantial equities on each side. It was also concerned about the tension between the condominium restrictions, which require Association approval before common elements are altered and the statute, which declares an Association cannot prohibit installation of energy-saving devices, pursuant to section 163.04. The court concluded that pursuant to section 163.04, an Association could not unreasonably deny permission to install a section 163.04 device and that a unit owner must first obtain permission of the Association before installing one, or must be able to establish that the Association acted unreasonably in refusing permission. We agree with this analysis, as far as it goes.

If this case had involved a lawsuit by the Sorrentinos against the Association to mandate its permission to install a section 163.04 device at a stage when the Sorrenti-nos had failed to inform the Association the skylights were such devices and had failed to provide the Association with information requested of them about their installation by a reputable, licensed, roofing company, the Sorrentinos should lose and we would conclude that the Association prevailed. If the Sorrentinos had provided the Association with all the needed information to establish that the devices were protected by section 163.04, that the installation was to be done by a reputable, competent, licensed, roofing company and had been denied permission, then, in a lawsuit to mandate the Association’s permission, or even after installation in defense to a suit to mandate removal, the Sorrentinos should win, and they would be the prevailing party. In sum, if the device is one protected by section 163.04, the Association cannot unreasonably deny permission to install it in a condominium unit or common element, but an Association can require information and assurance that the device will be properly installed.

This case progressed beyond those fact situations. Perhaps both parties were at fault in not requesting specific information from each other. What exactly did the Board want to know from the company about installation? Why did the Board not pursue this further with the company or the Sorrentinos before simply denying permission? After being denied permission, why did the Sorrentinos not ask why, and try to supply whatever information the Board thought it needed?

However, the lawsuit was filed by the Association after it was put on notice that the devices had been installed and were protected by section 163.04, and that under the terms of the statute it could not arbitrarily refuse permission to install them. Contrary to the arguments asserted by the Association, the Association’s remedy at that point was not limited to filing a lawsuit for a mandatory injunction. It could have required the Sorrentinos to submit documentation and proof that the devices were under the umbrella of section 163.04, and it could have obtained a roof inspection to determine the quality and competency of the installation, at the Sorrenti-nos’ expense. At trial, the Association stipulated as to both of these facts; the skylights were protected by section 163.04, and they had been properly installed. It follows that the Association could not have forbidden permission to install the skylights and that although the Sorrentinos should not have installed them without pri- or written permission, no damage was done.

To determine which party prevailed, the court should focus on which one prevailed on the significant issues involved in the litigation. Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992). A measure of this test is the result obtained at the close of the case. Granoff v. Seidle, 915 So.2d 674 (Fla. 5th DCA 2005). See also Colonel v. Meyerson, 921 So.2d 690 (Fla. 5th DCA 2006). The test is not who was partly at fault in creating the controversy which gave rise to the lawsuit.

This is not a case involving complex contract claims where both sides fought to a draw and neither won or lost. See Merchants Bonding Co., v. City of Melbourne, 832 So.2d 184 (Fla. 5th DCA 2002). Nor is it similar to Brevard County Fair Assn., Inc. v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002) where both parties won and lost on significant issues in the litigation. In such cases this Court applies the abuse of discretion standard of review because there may be no prevailing party, or some question as to which one actually prevailed.

In this case, the Sorrentinos prevailed on all of the significant issues raised in this litigation: the constitutionality of section 163.04; the applicability of section 163.04 to the skylights; the proper installation of the skylights; and the Association’s right and power to require removal of the skylights. And the Sorrenti-nos obtained the result they sought in this litigation — -to prevent the Association from requiring removal of the skylights. The Association failed to obtain the result it sought — removal of the skylights.

There are three possible sources for an award of prevailing party attorney fees. One quoted above is section 163.04. It appears to us that section was essential as a defense, despite the trial judge’s statement to the contrary. Even if it did not figure in the result, both the Declaration of the Condominium and the statute governing condominiums have prevailing party attorney’s fee provisions when lawsuits are filed to enforce provisions of the Condominium Declaration:

In any proceeding arising because of alleged failure of a unit owner to comply with the terms of the Declaration ... the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorney fees as may be awarded by the court.

¶ 18.2, Declaration of Condominium.

(1) Each unit owner ... and each association shall be governed by and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be déemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, brought by the association or by a unit owner against:
(a) The association.
(b) A unit owner.
* * Hi
The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s. 788.503(l)(a) is entitled to recover reasonable attorney’s fees.

§ 718.303(1), Fla. Stat. (2002).

Where there is a party who clearly prevailed under the tests stated above, and there is a prevailing party statute or contract, reasonable attorney fees must be awarded. See Lasco Enterprises, Inc. v. Kohlbrand, 819 So.2d 821 (Fla. 5th DCA 2002). In this case there is no valid legal reason to deny the Sorrentinos a prevailing party attorney fee award. Thus we reverse that part of the final judgment which denied them an attorney fee award and remand to the trial court to determine a reasonable attorney fee and costs, to be assessed against the Association.

REVERSED in part; REMANDED.

TORPY and LAWSON, JJ., concur.

      . The record is unclear whether one or two skylights were installed, but this factual detail is irrelevant to the case.

      . Zullo v. Zullo, 317 So.2d 453 (Fla. 3d DCA 1975) (where there is no record, and the appellant accepts the findings of fact, the district court reviews only issues of law).

      . ¶ 9.1.3 and ¶ 10.1.5.


text:
    Anthony CHERUBINO and Lucy Cherubino, Appellants, v. FENSTERSHEIB AND FOX, P.A., Appellee.
    No. 4D05-330.
    District Court of Appeal of Florida, Fourth District.
    March 8, 2006.
    Rehearing Denied May 11, 2006.

      Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellants.
    Angela C. .Flowers of Kubicki Draper, Orlando, for appellee.
   PER CURIAM.

Anthony and Lucy Cherubino filed suit against Fenstersheib and Fox, P.A. for legal malpractice. Fenstersheib and Fox filed a motion to dismiss the legal malpractice action for fraud on the court. The trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse.

Fenstersheib and Fox represented the Cherubinos in the underlying action, a case relating to an automobile accident involving Anthony Cherubino. The underlying action was dismissed for failure to comply with discovery orders. After the action was dismissed, Fenstersheib and Fox refiled the Cherubinos’ claims and then withdrew as the Cherubinos’ counsel. The refiled claims were subsequently dismissed.

In the resulting malpractice action, the Cherubinos alleged that Fenstersheib and Fox committed legal malpractice by not complying with the discovery orders and that this resulted in them losing their right to pursue the automobile accident claims. Fenstersheib and Fox filed a motion to dismiss the Cherubinos’ legal malpractice case for fraud upon the court. It attached an appendix demonstrating a multitude of inconsistencies in the Cherubinos’ positions on issues relevant to the automobile accident claims and alleged that these inconsistencies rendered it unable to defend itself in the legal malpractice action. However, the majority of the highlighted inconsistencies occurred in the underlying action and not during the pendency of the legal malpractice action.

The trial court granted Fenstersheib and Fox’s motion to dismiss, dismissed the Cherubinos’ case with prejudice, and made several findings. The trial court concluded that the “case is permeated by fraud committed by Plaintiffs Anthony Cherubi-no and Lucy Cherubino who, the record reflects, have committed a pattern of deceit calculated to interfere with the judicial system’s ability to fairly adjudicate this matter.” The trial court also found that “[t]he numerous and repeated misstatements of fact made by the Plaintiffs evidence a design to intentionally thwart Defendant from concluding discovery to properly defend itself in this case and appear to be an attempt to commit fraud on the Court.”

The standard of review applicable to motions to dismiss for fraud is abuse of discretion. See Taylor v. Martell, 893 So.2d 645, 646 (Fla. 4th DCA 2005). However, the abuse of discretion standard of review is qualified as follows in such eases:

Although a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court’s discretion is narrowed where dismissal is imposed for fraudulent conduct such as that alleged here, in which a more stringent abuse of discretion standard is appropriate. Such sanction may be imposed only on a “clear showing of fraud, pretense, collusion, or similar wrongdoing.” Tri Star Inv. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981); see also Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).

Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003).

Trial courts have “the right and obligation to deter fraudulent claims from proceeding in court.” Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997). This is because “[o]ur courts have often recognized and enforced the principle that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve [its] ends.” Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998). To this end, “ ‘where a party perpetrates a fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper.’ ” Desimone v. Old Dominion Ins. Co., 740 So.2d 1233, 1234 (Fla. 4th DCA 1999) (quoting Savino ).

However, “[b]ecause dismissal with prejudice for fraud on the court is such an extreme remedy, the fraud must be demonstrated by clear and convincing evidence.” Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003). To this end, a party moving to dismiss for fraud on the court must satisfy a stringent standard. Dismissal for fraud is appropriate where “ ‘it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (citation omitted); see also Amato v. Intindola, 854 So.2d 812, 814-815 (Fla. 4th DCA 2003) (quoting and applying Cox); Hogan v. Dollar Rent A Car Sys., Inc., 783 So.2d 1211, 1212 (Fla. 4th DCA 2001) (dismissal for fraud appropriate where misrepresentations were made “to intentionally thwart defendants from conducting discovery”) (citation omitted); Rios v. Moore, 902 So.2d 181, 183 (Fla. 3d DCA 2005) (dismissal for fraud on the court should be “ ‘cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing’ ”) (citation omitted): The clear and convincing evidence necessary to succeed on a motion to dismiss for fraud on the court must demonstrate that the plaintiff “committed knowing deception intended to prevent the defense from discovery essential to defending the claim.” Amato, 854 So.2d at 816.

In the present case, we conclude that the evidence available to the trial court simply did not satisfy the stringent standards justifying dismissal for fraud on the court. First, the majority of the inconsistencies highlighted by Fenstersheib and Fox occurred in the underlying case, not in the legal malpractice action, so they can hardly be said to constitute fraud on the court in the legal malpractice action. Second, the few inconsistencies which did occur in the legal malpractice action do not convince us that the Cherubinos “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” A few inconsistencies, which the Cherubinos contend were not knowing deceptions, simply do not demonstrate the blatant or extreme conduct necessary to prove fraud on the court.

In sum, because clear and convincing evidence does not establish that the Cher-ubinos perpetrated a fraud on the court in the legal malpractice action, the trial court abused its discretion by imposing the ultimate sanction of dismissal of the action. Consequently, we reverse and remand for further proceedings consistent with this opinion.

Reversed.

GUNTHER, FARMER, JJ„ and DONNER, AMY STEELE, Associate Judge, concur.


author: KELLY, Judge.

text:
    Jerry McAFFEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4190.
    District Court of Appeal of Florida, Second District.
    March 8, 2006.
   KELLY, Judge.

Jerry McAffee appeals the summary dismissal of his petition for writ of habeas corpus and the denial of his motion for rehearing, alleging three claims of prose-cutorial misconduct. Because McAffee is precluded from raising his claims in a petition for writ of habeas corpus, we affirm the order of the trial court dismissing McAffee’s petition. See White v. Dugger, 511 So.2d 554 (Fla.1987) (holding that ha-beas corpus is not the proper vehicle to raise issues that should have and could have been raised on direct appeal or in a Florida Rule of Criminal Procedure 3.850 proceeding). Our affirmance is without prejudice to any right McAffee may have to file a timely, facially sufficient rule 3.850 motion based on newly discovered evidence. See Ford v. State, 912 So.2d 388 (Fla. 2d DCA 2005). Any such motion will not be considered successive.

Affirmed.

STRINGER and VILLANTI, JJ., Concur.