author: STONE, J.

text:
    Renee FRENGUT, John Bellantoni, and Psychological Insights, Inc., Appellants, v. Jeffrey A. VANDERPOL; Gregory A. Martin; Gregory A. Martin & Associates, P.A.; Adorno & Zeder, P.A.; Ralph Guertin; Henry N. Adorno; Jon W. Zeder; George T. Yoss; and John Doe, Appellees.
    No. 4D04-4323.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Donna M. Greenspan of Edwards Angelí Palmer & Dodge LLP, West Palm Beach, for appellants.
    Roderick F. Coleman and Dawn M. McMahon of Coleman & Associates, P.A., Boca Raton, for Appellee-Jeffrey A. Van-derpol.
    Alicia M. Trinley of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for Appellees-Gregory A. Martin; Gregory A. Martin & Associates, P.A.; Adorno & Zeder, P.A.; Henry N. Adorno; Jon W. Zeder; and George T. Yoss.
   STONE, J.

This is an appeal from a judgment dismissing Appellants’ claims based, in part, on the “two dismissal rule” and, in part, on a failure to state a cause of action. We affirm in part and reverse in part.

In August 2000, Frengut, Bellantoni, and Psychological Insights, Inc. (Frengut) filed third party claims in a Broward County case against Vanderpol, Martin and Martin, P.A., and also against Adorno & Zeder, P.A. (Law Firm), and Adorno, Zeder, and Yoss (Law Firm Partners). Frengut also filed a counter-claim against the initial plaintiffs. The plaintiffs in that case alleged breach of fiduciary duty and conversion against Frengut. The third party claims filed by Frengut included charges of violation of Florida Investors Protection Act, fraud, and conversion.

The judgment on appeal was entered in a subsequent 2004 action. The judgment, as to some parties, Martin, Law Firm, and Vanderpol, is based on the “two dismissal rule” pursuant to Florida Rule of Civil Procedure 1.420(a)(1). The application of the two dismissal rule is predicated on two previous dismissals: one, the Broward County third party claim dismissed in 2001, and the other, a dismissal in federal court in 2001. The dismissal, as to Law Firm Partners, is based on the complaint’s failure to state a cause of action and the statute of limitations.

The initial third party claim in the Bro-ward suit was against Vanderpol. Approximately two months prior to Frengut’s dismissing it, Frengut sought leave to file “Second Amended Counterclaim, Third Party Complaint and Shareholders Derivative Complaint,” attempting to add Martin and Law Firm as third party defendants. The trial court never ruled on that motion and Martin and Law Firm were not otherwise served or made parties.

In June 2001, Frengut filed a “Notice of Withdrawal of Claims and/or Voluntary Dismissal” of the third party claims. The primary suit against Frengut and the counterclaim remained pending. The trial court subsequently denied a motion for attorney’s fees filed by Martin and Law Firm, noting that no summonses were ever issued to Martin and Law Firm, they were never served with process and, therefore, they were never subject to the court’s jurisdiction.

In August 2000, Frengut filed a complaint in the United States District Court against Vanderpol, Martin and Law Firm on essentially the same claims as raised in the Broward action, adding a claim for violation of federal securities law. In April 2001, Frengut dismissed that case, filing a notice entitled “Notice of Transfer of Causes of Action to State Court and Dismissal of Counts I & II.” The federal district court then entered an “Order of Dismissal Without Prejudice,” denoting the notice of transfer as a motion to dismiss and closing the case.

Florida Rule of Civil Procedure 1.420(a)(1) [“two dismissal rule”] provides, in relevant part:

[A]n action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a non-jury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

Florida Rule of Civil Procedure 1.420(c), provides that “[t]he provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim.”

Initially, we conclude that Martin and Law Firm were never parties to the Broward case; therefore, the dismissal of the third party claim in that case did not constitute a dismissal as to Martin and Law Firm for purposes of subsequently applying the two dismissal rule. Fren-gut’s motion for leave to file a second amended third party complaint to add them was never ruled upon. Therefore, as to them, there was no operative pleading to dismiss in the Broward case.

We also reject Frengut’s claims that Martin and Law Firm are estopped from arguing that they were not parties in the Broward case. Frengut has pointed to no responsive pleadings or other acts by Martin and Law Firm prejudicing Frengut or that otherwise constituted a waiver of service of process.

As Martin and Law Firm were not parties to the Broward dismissal, the dismissal in the instant case, as to them, was improperly predicated upon the Broward case being the first dismissal. As Vander-pol was a third party defendant in that case, he alone was properly included in the dismissal.

Frengut argues that its notice of dismissal in the Broward case does not constitute a dismissal for purposes of the two dismissal rule, as that rule requires that the notice be filed by the initial plaintiff and not a third party plaintiff. Fren-gut notes an author’s comment in the Florida Rules of Court that 1.420(a)(1) deals only with a plaintiff, whereas the other subsections of the rule apply to dismissal of a counterclaim, cross-claim, or third party claim. We can, however, discern no indication in the rule that 1.420(a)(1) does not apply to a third party plaintiff, particularly as 1.420(c) explicitly provides that the rule applies to dismissals of third party claims, and there is no reason to deprive third party defendants of the benefit of the rule.

Frengut also asserts that the Broward dismissal does not constitute a dismissal for purposes of the two dismissal rule because it did not dismiss the entire action. “[T]he two dismissal rule applies only to dismissal of an entire action or controversy as to all defendants; it does not apply to a dismissal of any claim or cause of action against one or more, but less than all, of the defendants named in the complaint.” Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So.2d 286, 287 (Fla. 4th DCA 1974).

We conclude that the “entire controversy” in the case of a third party claim includes dismissal of the third party action where the third party plaintiff, as here, dismisses all claims against the third party defendant(s). It would defeat the purpose of the rule to hold that dismissal of a third party complaint does not operate as a dismissal under the rule simply because the underlying law suit against the third party plaintiff remains pending. Therefore, regardless of the label as “third party” plaintiffs, the Frengut appellants were plaintiffs within the purview of the rule;

We note that in HMG Property Investors, Inc. v. Parque Industrial Rio Canas, Inc., 847 F.2d 908, 916 n. 12 (1st Cir.1988), the court found when dealing with Federal Rule of Civil Procedure 41(b), the corollary to rule 1.420(b) under Florida rules, a cross-complainant was considered a plaintiff within the purview of the section and stated that “[i]n any event, labels are relatively unimportant. The provisions of the rule apply equally ‘to the dismissal of any counterclaim, cross-claim, or third-party claim.’ ”

Frengut also asserts that the dismissal of the federal case did not constitute a “dismissal” under the federal rule. Federal Rule of Civil Procedure 41(a)(1) provides:

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

It also has been said that a “dismissal by motion and court order does not implicate the rule 41(a)(1) two dismissal rule.” ASX Inv. Corp. v. Newton, 183 F.3d 1265, 1268 (11th Cir.1999).

In ordering the dismissal in response to the notice, the federal court included the language:

THIS CAUSE comes before the Court upon Plaintiffs Notice of Transfer of Causes of Action to State Court and Voluntary Dismissal of Counts I & III, filed April 12, 2001 (DF.# 76), requesting that the Court Dismiss all Counts without prejudice. ORDERED AND ADJUDGED that the Plaintiffs Motion is GRANTED, and this case is DISMISSED WITHOUT PREJUDICE.

Labeling a filing as a “notice” or a “motion” is not controlling as to this issue. See United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir.1983) (holding a “moving party’s label for its motion is not controlling”); Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976) (commenting “that it [the motion] was styled a ‘Motion for Dismissal’ rather than a ‘Notice of Dismissal’ is, in our opinion, a distinction without a difference”); Roddy v. Dendy, 141 F.R.D. 261, 261 (S.D.Miss.1992) (holding denomination of motion rather than notice is “without legal signifi-canee since the effect desired ... was clearly to have [plaintiffs] claims dismissed without prejudice”).

In Gioia v. Blue Cross Hospital Service, Inc. of Missouri, 641 F.2d 540, 542 (8th Cir.1981), the trial judge was mistakenly delivered a “Memorandum for Clerk” that was meant for opposing counsel. The handwritten memorandum was to dismiss the plaintiffs complaint without prejudice. Id. The judge wrote on the side of the memorandum “So ordered” and it was filed by the clerk of the court. Id. This dismissal served as a second dismissal under the two dismissal rule, barring the same claims filed in a third suit. Id. at 544. The court upheld the dismissal, stating that “[t]he plaintiff proceeded in a manner which would lead one to believe that the dismissal was voluntary and unilateral no proper motion, no notice, no hearing, no waiting for five days before presenting the matter to the judge in accord with the local rules, and no formal order.” Id.

Gioia is analogous to this case. Therefore, notwithstanding the trial judge included in the order of dismissal that the “motion” was granted, the notice of transfer simply did not operate as a transitional motion but was, effectively, a notice of voluntary dismissal. Certainly, the trial judge considered the notice a voluntary notice of dismissal under rule 41, as he dismissed all of the claims without prejudice and did not require compliance with customary motion procedure in doing so.

Frengut also argues that the appel-lees improperly asserted the two dismissal rule in a motion to dismiss and, as the rule has the preclusive effect of res judicata, asserts that it should have been raised as an affirmative defense. We do not address this issue, as it is not preserved. The record reflects that this argument was not made as to the claims against Vander-pol in the trial court. E.g., Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 692 (Fla. 4th DCA 1993).

Therefore, as to Martin and Law Firm, the judgment is reversed, and as to Van-derpol, the judgment is affirmed. With regard to the dismissal as to Law Firm Partners, we reverse the dismissal of the wrongful injunction count, as it appears that the trial court looked beyond the four corners of the complaint in denying leave to amend. As to all other counts against Law Firm Partners, we affirm without further comment. We remand for further proceedings consistent with this opinion.

GROSS and MAY, JJ., concur.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Michael R. BAGENSTOS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Al Packer Ford, and Al Packer, Inc., Appellees.
    No. 4D05-1713.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Isidro M. Garcia of the Garcia Law Firm, West Palm Beach, for appellant.
    Charles Robinson Fawsett, P.A. of Shutts & Bowen LLP, Orlando, for Appel-lee-AI Packer, Inc.
   TAYLOR, J.

The claimant, Michael Bagenstos, appeals a final order of the Unemployment Appeals Commission upholding the denial of his unemployment compensation benefits. Denial was based on the claimant’s discharge for misconduct connected with work. Bagenstos’s employer, A1 Packer Ford, discharged him because of an incident involving a customer complaint. As the record shows, Bagenstos handled the situation poorly when he' engaged in a confrontation with the customer. We reverse, however, because under our unemployment compensation laws, this single isolated incident by a longtime employee does not constitute misconduct so as to disqualify him from receiving unemployment benefits.

Bagenstos had worked at A1 Packer Ford as an auto technician for almost nine years before the incident that led to his termination. He had never been cited for any disciplinary problems during his employment, and, in fact, had received awards of excellence. On September 28, 2004, at around noon, a customer came into the dealership to pick up his truck. The truck, which needed a minor repair, was not ready at noon as promised, because a replacement part had just arrived. The customer asked service advisor Chad Milner about the status of the repair. Mil-ner, in turn, asked Bagenstos about the truck’s status. Bagenstos, who was in an office behind Milner’s desk, informed Mil-ner that the truck would not be ready until 5:00 p.m.

Upset about the delay, the customer insisted that the repairs be done as soon as possible. As the customer was leaving the service area, Bagenstos told Milner that the vehicle had not been taken apart, so that if the customer needed to take it, he could; it was not a problem. Overhearing this, the customer stopped and asked Mil-ner what Bagenstos had said. When Mil-ner explained, the customer asked if Ba-genstos was being a “smartass.” Milner told him, “No, he’s just letting you know that your vehicle’s ready.” The customer responded “well, he is being a smartass then I’m going to go talk to his supervisor.” Milner testified that there was nothing in Bagenstos’s demeanor or speech that could have been characterized as “smartass” behavior.

At that point, Bagenstos came out of the office and introduced himself. He told the customer that the owner was probably in the front office, and that if would like to speak to him, he would be happy to take him up front to talk with him. The customer responded that he “didn’t need this,” and that he needed his truck back because he was going on a twelve-hour shift with no sleep. He told Bagenstos, “I’ll take you right up to your supervisor.” Bagenstos then said, “If you want me to clock out, I’ll take this out front with you.” The customer told Bagenstos that he “would not stand for that” and immediately went up to the showroom to report the incident to the sales manager.

Several days later, Bagenstos had a disciplinary meeting with his service manager. About two-thirds of the way through the meeting, Bagenstos revealed that he was secretly taping the meeting. The manager permitted Bagenstos to tape the balance of the meeting. The following day Bagenstos was fired.

In concluding that Bagenstos was discharged for misconduct connected with work, the appeals referee stated:

The evidence in this case shows that the claimant was discharged for misconduct connected with the work. The claimant had received a copy of the employer’s concern resolution process, which directed employees to seek out a manager for any problems that might occur with a customer. The claimant had received a copy of this policy. On September 28, 2004, the claimant engaged in a confrontation with a customer. The claimant asked the customer to go outside to settle the situation. The claimant did not try to find a manager to help resolve the situation, nor did the claimant try to get away from the situation. Instead, the claimant suggested that the claimant and the customer go outside to settle issue. The claimant made no attempt to bring the above situation to the attention of the employer. The claimant was following a course of action that evinces an intentional disregard of the employer’s best interests. Consequently, it is concluded that the claimant was discharged for misconduct connected with the work.

Upon review, the Unemployment Appeals Commission found that the record adequately supports the referee’s factual findings and that the referee reasonably applied the pertinent laws to those findings. Accordingly, the Commission affirmed the referee’s decision disqualifying Bagenstos from receiving benefits.

A referee’s factual findings cannot be disturbed if supported by competent substantial evidence. Jackson v. Unemployment Appeals Comm’n, 730 So.2d 719, 721 (Fla. 5th DCA 1999); Pownall v. Fla. Unemployment Appeals Comm’n, 729 So.2d 479, 480 (Fla. 4th DCA 1999). An appeals court cannot overturn the decision of the Unemployment Appeals Commission unless it determines that there is a lack of competent, substantial evidence in the record to support its action. Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1030 (Fla. 2nd DCA 1994).

In this case, the referee’s finding that the claimant knowingly violated the employer’s written policy for resolving customer disputes by confronting a customer rather than involving a supervisor or manager is supported by competent substantial evidence. However, in concluding that the claimant’s actions constituted misconduct warranting his ineligibility for unemployment benefits, the appeals referee and UAC failed to take into account certain circumstances that Florida courts have considered significant in analyzing whether the claimant’s conduct met the statutory standard for misconduct.

The standard for misconduct is identified in section 443.036(29), Florida Statutes. See Durall v. Unemployment Appeals Comm’n, 743 So.2d 166, 168 (Fla. 4th DCA 1999). That section states that “misconduct” includes:

Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee.

§ 443.036(29), Fla. Stat. (2005). In determining what constitutes misconduct under the standard, courts are to construe the statute narrowly in favor of the claimant. Durall, 743 So.2d at 168. Such a restrictive construction is required by the remedial and humanitarian nature of the unemployment compensation law. Doyle, 635 So.2d at 1031. Misconduct serious enough to warrant dismissal is not necessarily serious enough to warrant the forfeiture of unemployment benefits. Jackson, 730 So.2d at 721.

In cases where a claimant was terminated because of fighting or other aggressive acts, courts have deemed the denial of benefits based upon misconduct unwarranted where certain extenuating circumstances existed. These circumstances include: (1) the long duration of the claimant’s employment; (2) the isolated nature of the incident; and (3) provocation.

In Lucas v. Unemployment Appeals Comm’n, 664 So.2d 1043 (Fla. 2nd DCA 1995), the Unemployment Appeals Commission found Lucas ineligible for unemployment compensation benefits because he was discharged for misconduct after striking a co-worker on a lunch break. The Second District Court of Appeal reversed, holding that a single episode of loss of self-control by a longtime worker, who was provoked, does not constitute misconduct so as to render him ineligible for unemployment benefits.

Similarly, in Jackson v. Unemployment Appeals Comm’n, 730 So.2d 719 (Fla. 5th DCA 1999), the fifth district reversed the Commission’s denial of benefits to a claimant discharged for fighting with a co-worker during a lunch break card game. The court held that the claimant did not engage in misconduct requiring forfeiture of benefits, where the appeals referee found that the claimant’s “response in striking the other employee after being provoked was ‘at worst ... an isolated act of poor judgment’ that did not amount to misconduct.” Jackson cited numerous cases, including Lucas, for the principle that provocation is an important consideration in determining whether the “fighting” employee’s behavior constituted misconduct. 730 So.2d at 721. The court in Jackson also pointed out that “[mjisconduct usually consists of repeated instances in the face of warnings, and isolated acts of poor judgment do not amount to misconduct.” Id. In reversing the denial of benefits, it noted that the claimant was a longtime, well-regarded employee with only a remote similar incident in his employment history.

A1 Packer Ford tries to distinguish Jackson and Lucas on the basis that the provoking party in those cases was a coworker rather than a customer. Without doubt, more deference is owed to a customer than a co-employee. However, this difference is not so great as to render Bagenstos’s isolated, emotional overreaction to the customer’s behavior wholly inexcusable. We strongly agree that an employer should not be expected to tolerate belligerent behavior towards a customer. But as we mentioned above, misconduct serious enough to justify dismissing an employee is not necessarily serious enough to warrant denying him unemployment benefits.

Here, the record contains ample evidence that this incident was a provoked, isolated act of poor judgment by a longtime employee. Yet, the referee makes no mention of these factors in his findings and conclusions concerning misconduct. Because these factors are apparent from the record, we conclude that the Commission erred in determining that Bagenstos’s actions amounted to misconduct under our unemployment compensation law. Accordingly, we reverse the Commission’s order and remand for an award of unemployment compensation benefits to Bagenstos.

Reversed and Remanded.

POLEN and SHAHOOD, JJ., concur.

      . The appeals referee notes in his factual findings that this taping occurred, but he does not include that factor as a basis for his ruling on misconduct.

      . See Jackson, 730 So.2d at 722; Lucas v. Unemployment Appeals Comm’n, 664 So.2d 1043, 1044 (Fla. 2d DCA 1995); Gen. Asphalt Co. v. Harris, 563 So.2d 803 (Fla. 3d DCA 1990); Garguilo v. Fla. Unemployment Appeals Comm’n, 642 So.2d 784, 786 (Fla. 2d DCA 1994); Davis v. Fla. Unemployment Appeals Comm’n, 472 So.2d 800 (Fla. 3d DCA 1985).


author: RAMIREZ, J.

text:
    Michelle MASS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-71.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Michelle Mass appeals from an order of involuntary commitment and the denial of her motion for leave to file amended exceptions. We reverse because the trial court’s order of involuntary commitment is based upon a claim by appellee State of Florida which had been previously decided and was therefore barred by res judicata and collateral estoppel.

The Administrator of Aventura Hospital first petitioned for the involuntary placement of Mass in “Aventura Hospital and Medical Center” on October 6, 2005. The petitioner alleged that Mass: suffered from an apparent or manifest mental illness; had refused voluntary placement for treatment; was unable to determine for herself whether placement was necessary; was manifestly incapable of surviving alone or with the help of willing and responsible family or friends; without treatment, was likely to suffer from neglect or refuse to care for herself, and that such neglect or refusal posed a real and present threat of substantial harm to her well-being; or that there was a substantial likelihood that in the near future she would inflict serious bodily harm on herself or another person as evidenced by recent behavior causing, attempting, or threatening such harm. Two psychiatric opinions from Dr. Gary Kushner and Dr. loan Pop supported the petition.

At the hearing on the petition on October 11, 2005, a number of witnesses testified including Mass, Dr. Kushner, Dr. Ivan Hernandez, James Butts (clinical worker of the Intense Psychiatric Unit at Aventu-ra Hospital Medical Center), and Mass’ mother. Dr. Kushner recommended long-term hospitalization in a State Hospital. Butts testified that Mass told him that she wanted to die. Mass’ mother stated that Mass had grabbed her, and also told her that she wanted to die and that she was going to kill herself.

In its Report and Recommendation dated October 11, 2005, Magistrate Hickey found that the State had failed to prove by clear and convincing evidence the necessary criteria for involuntary placement, and dismissed the petition. That same day, the State moved to file exceptions to the report and recommendation.

The next day, the Administrator of Aventura Hospital filed a new petition for the involuntary placement of Mass in “South Florida State Hospital.” The petition contained the same allegations as the grounds stated in the State’s first petition. Two psychiatric opinions offered by Dr. Kushner and Dr. Pop supported the petition. A transfer evaluation from another psychiatrist also supported the petition. Dr. Kushner observed that Mass had “been very agitated angry, belligerent, depressed & irrational, delusional thinking recently threatening suicide history of non compliance poor insight & judgment.” Dr. Pop observed that Mass had “poor judgment and insight. Poor reality — depressed (illegible) affect — hostile unstable & paranoid delusional persecutory type. Disorganized behavior. Speech slow & (illegible).” Dr. Hernandez opined that Mass had “not been able to stay out of the pattern of repeated inpatient psychiatric hospitalizations due to frequent threats to harm herself, paranoid persecutory delusions as well as impaired insight and judgment.”

At the hearing on the second petition on October 18, 2005, Dr. Kushner, Dr. Hernandez, Mass’ mother, and Mass testified. Additionally, Mass’ father and Susana Martinez, the hospital support coordinator for the Department of Head, Brain, and Spinal Cord Injury Program, testified. Dr. Kushner again recommended long term hospitalization. Dr. Hernandez testified consistent with his testimony at the hearing on the first petition. Mass’ mother testified that Mass had grabbed and bruised her wrists, and had done something to her fingers. Mass’ father testified that he never called Mass , because he did not want to be abused. Martinez testified that Mass did not comply with the programs offered to her and that she fails to take her medications.

In its Report and Recommendation dated October 18, 2005, Magistrate Kimler found that the State proved by clear and convincing evidence the necessary criteria for involuntary placement.

Having obtained a more satisfactory outcome with Magistrate Kinder, on October 20, 2005, the State withdrew its exceptions to Magistrate Hickey’s Report. Thus, the circuit court approved Magistrate Hickey’s report and recommendation on October 21, 2005, finding that the State did not present clear and convincing evidence to support its petition.

. Mass, in turn, filed her exceptions to Magistrate Kinder's Report on November 2, 2005. The exceptions expressly referred to the termination of the prior proceeding in Mass’ favor.

After the court heard the exceptions, but before it issued its ruling on the exceptions, Mass moved for leave to file amended exceptions arguing that the petition was barred by res judicata and collateral estop-pel because the State had not alleged or proved any circumstance, conduct or medical condition arising after the filing of the first petition.

On December 15, 2005, the court approved Magistrate Kinder’s report and recommendation, and overruled Mass’ exceptions to the report, finding that the magistrate’s report and recommendation was supported by competent and substantial evidence. The court denied Mass’ motion to file amended exceptions on December 20, 2005.

Res judicata and collateral estop-pel bar the claims raised in the second petition. The Florida Supreme Court, in Gordon v. Gordon, 59 So.2d 40 (Fla.1952), stated the law of res judicata and collateral estoppel: “under res judicata a final decree of judgment bars a' subsequent suit between the same parties based upon the same cause of action and is conclusive as total matters germane thereto that were or could have been raised.” See Gordon, 59 So.2d at 44. See also State v. McBride, 848 So.2d 287 (Fla.2003). The principle of collateral estoppel applies “where the two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues ... common to both causes of action and which were actually adjudicated in the prior litigation.” See Gordon, 59 So.2d at 44. The essence of estoppel by judgment is “that it be made certain that the precise facts were determined by the former judgment.” Id. (emphasis in the original). For purposes of collateral estoppel, the facts are the same when they are shown by the same testimony or evidence. Id.

The claims raised in the second petition are identical to those raised in the first petition. Additionally, the testimony presented at the hearing on the second petition is essentially the same as that which the State presented or could have presented at the hearing on the first petition. The testimony of Mass’ father and Martinez (the social worker), both of whom did not testify at the hearing on the first petition and presented testimony at the hearing on the second petition, only referred to behavior and events that occurred prior to the hearing on the first petition. The record indeed does not reflect any new developments that occurred subsequent to the proceedings on the first petition. The claims are further unsupported by competent and substantial evidence that arose subsequent to the filing of the first petition.

We disagree with the State that Mass waived the res judicata and collateral estoppel defenses because she failed to plead them in a timely manner and did so after the entry of the final order on appeal. The record simply does not support this proposition. Although Mass may not have used the words “res judicata” or “collateral estoppel,” her exceptions expressly referred to the favorable termination of the prior proceeding with Magistrate Hickey. Furthermore, Mass served her motion for leave to file amended exceptions on December 15, 2005, which the court summarily denied on December 20, 2005.

“A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment. According to Florida Rule of Civil Procedure 1.190(a), ‘Leave of court [to amend pleadings] shall be given freely when justice so requires.’ ” Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422 (Fla. 5th DCA 2003) (citations omitted). “Leave to amend should be freely given, the more so ... when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought.” Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So.2d 968, 970 (Fla. 5th DCA 1994) (citing Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137, 141 (Fla. 3d DCA 1977)). The decision whether to allow the amendment of a pleading is within the trial court’s discretion. Graziani, 840 So.2d 420. “However, the trial court’s discretion should be exercised in accordance with the public policy of this state to freely allow amendments so that cases may be resolved on their merits.” Craig v. E. Pasco Med. Ctr., Inc., 650 So.2d 179, 180 (Fla. 2d DCA 1995).

Dausman v. Hillsborough Area Reg’l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005). See also Geer v. Jacobsen, 910 So.2d 391, 393 (Fla. 2d DCA 2005)(stating that “refusal to allow an amendment constitutes an abuse of discretion unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”), quoting from Carter v. Ferrell, 666 So.2d 556, 557 (Fla. 2d DCA 1995). Although Mass first raised the defenses subsequent to the hearing on the exceptions held on November 28, 2005, the State made no attempt to show prejudice as a result of any delay, the privilege has not been abused and the amendment would not be futile.

We therefore reverse and remand.


author: PER CURIAM.

text:
    Brenda ZAHARES, Appellant, v. NORWEGIAN CRUISE LINE, LTD., etc., Appellee.
    No. 3D05-318.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Michael X. Savasuk (Portland); and Christian D. Keedy, for appellant.
    Maltzman Foreman, and Darren W. Friedman, and Rachel S. Cohen, for appel-lee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Rindfleisch v. Carni val Cruise Lines, Inc., 498 So.2d 488 (Fla. 3d DCA 1986).


text:
    Mynor J. RAMOS, Appellant, v. ROSS STORES, INC., etc., Appellee.
    No. 3D05-774.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Wasson & Associates, and Roy D. Was-son, and Annabel C. Majewski, Miami; To-ral & Associates, and Johnny Pineyro, for appellant.
    Jonathan D. Franklin, Tallahassee, for appellee.
    Before GERSTEN, FLETCHER, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Zimmerman v. Eckerd Corp., 839 So.2d 835 (Fla. 3d DCA 2003).


author: CORTINAS, Judge.

text:
    Hector J. RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1119.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.

      Hector J. Ruiz, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and CORTINAS, JJ.
   CORTINAS, Judge.

The defendant, Hector J. Ruiz, appeals from the trial court’s order denying his motion for clarification. The defendant filed his motion for clarification requesting that the trial court amend the sentencing orders in his cases to reflect that he should be awarded credit for prison time served prior to his revocation of probation. The trial court denied the motion for clarification, stating that it was “not aware of a Motion for Clarification in the Rules of Criminal Procedure.”

However, as the State concedes, the defendant’s motion for clarification is, in essence, a motion to correct an illegal sentence and award credit for time served pursuant to Florida Rule of Criminal Procedure 3.800(a). Although the plea and sentencing hearing transcripts demonstrate that the trial court properly awarded credit for time served, the trial court, in its sentencing orders, did not check the box indicating that the defendant is to be awarded credit for time he previously served in prison in the custody of the Department of Corrections. The State concedes that the defendant should be awarded credit for time served.

Accordingly, we remand this matter with instructions that the trial court check the box awarding prison time credit pursuant to section 921.161, Florida Statutes (2005). In so doing, the trial court should not specify the number of days of prison time credit to be awarded.

Reversed and remanded with instructions.


text:
    H.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1706.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Raoul D. Garcia, and Eduardo P. Rivera, Certified Legal Interns, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

H.F., a juvenile, appeals the trial court’s judgment for petit theft and criminal mischief. We affirm the judgment for petit theft, and reverse the judgment for criminal mischief.

H.F. and the victim were involved in a road rage traffic altercation. H.F. left the scene while the victim attempted to call the police. Three days later, the victim recognized H.F. at a mall and pulled out her phone to call the police. H.F. shouted to the victim that she better not take his picture. He then purposefully bumped into the victim and grabbed her phone, which she had attached to her wrist. The phone broke in half as H.F. fled.

Thereafter, the State charged H.F. with petit theft and criminal mischief. After trial, the trial court found H.F. guilty on both charges. H.F. now appeals both judgments.

Turning first to the petit theft, we determine that there was sufficient competent substantial evidence to support the petit theft, and therefore, we affirm the judgment. See Collins v. State, 446 So.2d 268 (Fla. 2d DCA 1984).

Turning next to the criminal mischief judgment, it is a necessary element of the crime of criminal mischief, that the defendant willfully and maliciously injures or damage real or personal property belonging to another. § 806.13(l)(a), Fla. Stat. (2003). The defendant argues that the State did not meet its burden on this element. We agree.

After reviewing the evidence presented in the light most favorable to the State, we conclude that the evidence is insufficient to support a finding that the defendant intended to damage or destroy the telephone as opposed to acting with malice towards the victim. See Sanchez v. State, 909 So.2d 981 (Fla. 5th DCA 2005) (acting with malice toward the person of the owner of the property is not enough to support a conviction for criminal mischief); Insignares v. State, 847 So.2d 1063 (Fla. 3d DCA 2003); In Interest of J.G., 655 So.2d 1284 (Fla. 4th DCA 1995); cf. M.H. v. State, No. 3D05-1357, — So.2d -, 2006 WL 860974 (Fla. 3d DCA Apr. 5, 2006) (willfully driving a stolen scooter through a fence with knowledge that the scooter may be damaged was sufficient evidence to support a conviction of criminal mischief). Therefore, we reverse the judgment on this charge.

Accordingly, we affirm the judgment for petit theft, and reverse the judgment for criminal mischief.

Affirmed in part, and reversed in part.


text:
    Derrick Wayne TUGGERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1945.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.

      Derrick Wayne Tuggerson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Akers v. State, 890 So.2d 1257 (Fla. 5th DCA 2005).


text:
    Cheryl A. DOMINGUEZ, Appellant, v. NL COMMUNICATIONS, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D05-2067.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Cheryl A. Dominguez, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before GREEN and FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because the record amply supports the factual determination that the appellant voluntarily quit her job without good cause attributable to the employer, the orders below disqualifying her from unemployment benefits are affirmed.


text:
    MARINA GRANDE NORTH MIAMI BEACH LLC and City of North Miami Beach, Petitioners, v. Fortuna SMUKLER, Bernard Schugar, Carol McMartin and The North Miami Beach Citizens Coalition, Inc., Respondents.
    Nos. 3D05-2386, 3D05-2387.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Rehearing Denied April 26, 2006.

      Howard B. Lenard, City Attorney, and Miriam Besinger, Assistant City Attorney; Bilzin Sumberg Baena Price & Axelrod and Stanley B. Price and Robert L. Kraw-check, Miami, for petitioners.
    W. Tucker Gibbs, Coconut Grove, for respondents.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING

PER CURIAM.

The petitioners in these two consolidated cases sought from this court a writ of certiorari quashing the decision of the circuit court, appellate division, which quashed a rezoning of a parcel of property in the City of North Miami Beach. We denied the petition for the writ. The petitioners have now moved for rehearing, which motions we deny, although we do set out below our reasoning for our denials.

On May 26, 2004, TCY Limited, Inc. (predecessor to Marina Grande North Miami Beach LLC) requested a rezoning of (and site plan approval for) the subject property, from the existing B-3 Intensive Business District to PUD Planned Unit Development District. The rezoning and the site plan ultimately received City Council approval. The project approved was proposed to be developed on 6.32 acres of land, adjacent to 8.34 acres of water body, and was to consist of two multi-family, 24-story high-rise condominium towers (and a 90 boat-slip marina). The respondents Fortuna Smukler, et ah, successfully challenged the City’s rezoning and site plan approval in the circuit court appellate division. TCY and the City then unsuccessfully sought certiorari in this court, and followed up with rehearing motions.

The issue revolves around the project density. In arriving at the number of dwelling units that it ultimately approved the City included in its calculations not only the 6.32 acres of land, but also the 8.34 acres of water body. This usage of a water body to calculate the density, thus the number of units permitted, conflicts with Article II, section 24-22, Definitions, of the City’s Land Development Code, which defines “density” as:

“The number of dwelling units permitted, divided by the number of acres within the lot, excluding internal roads and water bodies. Permitted density is always expressed as dwelling units per net acre.” [e.s.]

The circuit court, in its certiorari review, (brought there by Smukler, et al.) recognized the City’s improper use of the water body in calculating the City’s density approval, stating:

“[T]he City Council committed error by failing to exclude the water areas contained within the site plan.”

The circuit court thus applied the correct law. Accordingly the motions for rehearing are denied.


text:
    UNITED NATIONAL INSURANCE COMPANY, etc., Appellant, v. I & JC CORP., Appellee.
    No. 3D05-2518.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Fowler White Boggs Banker and Charles W. Hall, and Mark D. Tinker, St. Petersburg, and John D. Russell, Tampa, for appellant.
    Zarco Einhorn Salkowski & Brito and Michelle M. Odio and Robert Zarco, Miami; Roberto Villasante, Coral Gables, for appellee.
    Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

United National Insurance Company (“United”) appeals from an Order entering Final Declaratory Judgment finding that United has a duty to indemnify and defend I & JC Corporation (I & JC), the insured, in an underlying suit wherein I & JC is the defendant.

When granting a motion for summary judgment, the trial court must determine that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In the instant case, an issue of fact exists regarding the applicability of a policy exclusion. Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10 (Fla.2005) (A liability insur- ■ er’s obligation to defend a claim against its insured must be determined from the allegations in the underlying complaint, except that where an insurer’s claim that there is no duty to.defend is based on factual issues that would not normally be alleged in the underlying Complaint, courts may entertain a declaratory action seeking a determination of a factual issue upon which the insurer’s duty to defend depends); Puritan Ins. Co. v. Frank, 436 So.2d 1140 (Fla. 3d DCA 1983).

Accordingly, we reverse the Final Declaratory Judgment and remand for further proceedings ■ solely ■ as to the issue regarding the applicability of the policy exclusion.

Reversed and remanded.


author: . PER CURIAM.

text:
    James C. LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-39.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    James C. Lane, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone 'Moore, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and CORTINAS, JJ.
   . PER CURIAM.

James C. Lane appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion. We reverse the trial court’s order denying the motion as successive, and remand to the trial court with instructions to (1) issue a new violation of probation'order awarding 506 days credit time served for the time the defendant was incarcerated prior to being sentenced, and (2) mark the box indicating that the defendant is to be awarded credit for time previously served on this count in the Department of Corrections prior to resentencing. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999).

Reversed and remanded.


text:
    Cornelia CERVERA, Appellant, v. LATIN AMERICAN CAFÉ HABANA, etc., et al., Appellees.
    No. 3D06-111.
    District Court of Appeal of Florida, Third District.
    April 26, 2006.
    Adorno & Yoss and Jack R. Reiter and John Arrastia, Jr., Miami, for appellant.
    Raul R. Lopez; Gastesi & Associates and Raul Gastesi, Miami Lakes, for appel-lees.
    Before GERSTEN, FLETCHER, and CORTINAS, JJ.
   PER CURIAM.

We affirm the granting of the temporary injunction but remand to the trial court for a hearing to consider an appropriate bond amount.

Affirmed.


text:
    Pamela McKIDDIE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Suncoast Chrysler Plymouth Inc., Appellees.
    No. 1D06-1126.
    District Court of Appeal of Florida, First District.
    April 27, 2006.

      Pamela McKiddie, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

ERVIN, VAN NORTWICK, and BROWNING, JJ., Concur.


text:
    Herbert BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1232.
    District Court of Appeal of Florida, First District.
    April 27, 2006.
    Alexander Dombrowsky, Law Offices of Alexander Dombrowsky, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; John Andrew Atkinson, Assistant Attorney General; Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   PER CURIAM.

In this direct criminal appeal, we reverse the trial court’s order denying appellant’s pro se motion to withdraw his plea, and remand with directions that the trial court appoint conflict-free counsel to assist appellant in the preparation and presentation of his motion. See, e.g., Young v. State, 910 So.2d 899 (Fla. 1st DCA 2005); Norman v. State, 897 So.2d 553 (Fla. 1st DCA 2005); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002); Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002).

REVERSED and REMANDED, with directions.

WOLF, WEBSTER and BROWNING, JJ., concur.


text:
    DOLLAR GENERAL and Dollar General Corporation, Appellants/Cross-Appellees, v. Clifford E. McCOY, Appellee/Cross-Appellant.
    No. 1D05-1305.
    District Court of Appeal of Florida, First District.
    April 27, 2006.

      Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellants/Cross-Appellees.
    Christopher M. Costello, Orlando; Bill McCabe, Longwood, for Appellee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, the employer/self-insured seeks review of the determination that claimant’s accident was compensable; and claimant cross-appeals the denial of certain periods of temporary partial disability benefits, as well as the denial of his claim for penalties and interest on the award of temporary benefits for the period from November 18, 2003, through June 14, 2004. We affirm without discussion the determination of compensa-bility and the denial of certain periods of temporary partial disability benefits. However, we reverse the denial of penalties and interest. The denial of penalties was erroneous because the employer/self-insured neither paid the benefits within seven days of when they became due, as required by section 440.20(6), Florida Statutes (2003), nor exercised the pay-and-investigate option provided by section 440.20(4); and because the employer/self-insured did not offer any relevant evidence showing that it was unaware, as of the date on which claimant alleged the benefits were due, of facts supporting the obligation to pay those benefits. See, e.g., Shaw v. Fla. Steel Corp., 846 So.2d 1254 (Fla. 1st DCA 2003); Bruno’s, Inc./Food World v. Bruner, 805 So.2d 1090 (Fla. 1st DCA 2002); Eastern Indus., Inc. v. Burnham, 750 So.2d 748 (Fla. 1st DCA 2000). For the same reasons, the judge also erred in denying interest on the past due benefits, which ordinarily is awarded pursuant to section 440.20(8), in addition to other penalties for late payment of compensation. In denying interest, the judge misapplied Beck Hospitality v. Gardner, 696 So.2d 961 (Fla. 1st DCA 1997), the facts of which are distinguishable from those in this case. Accordingly, we remand to the judge of compensation claims with directions to grant claimant’s request for penalties and interest on the indemnity benefits awarded from November 18, 2003, through June 14, 2004.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BARFIELD, WEBSTER and BENTON, JJ., concur.


text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. JALARAM, INC. OF STARKE, d/b/a Edwards Grocery Store, Appellee.
    No. 1D06-0123.
    District Court of Appeal of Florida, First District.
    April 27, 2006.

      Lee Craig and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Robert D. Fingar of Frank & Gramling, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the “Appellant, Great American Insurance Company’s, Motion to Determine Jurisdiction to Consider Appeal,” filed on March 3, 2006, as well as the appellee’s response thereto, filed on March 20, 2006, and the appellant’s reply to the response, filed on March 29, 2006, the appellant’s motion is hereby GRANTED. The Court finds that the order on appeal is not an appealable final order. Compare McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001), with Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). Specifically, the order on appeal fails to enter judgment or otherwise provide unequivocal language of finality clearly indicating the trial court’s intention to bring an end to the judicial labor below. See Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999). Accordingly, this appeal is hereby dismissed without prejudice to appellant’s right to file a timely notice of appeal once a final order is rendered.

WEBSTER, DAVIS, and LEWIS, JJ„ Concur.


text:
    Garry WRAY, Appellant, v. Sara HARRELL, Appellee.
    No. 1D05-4674.
    District Court of Appeal of Florida, First District.
    April 28, 2006.
    James E. Kallaher, Fleming Island, for Appellant.
    Sara Harrell, pro se, Appellee.
   PER CURIAM.

Although the trial court in this case had jurisdiction of the parties in the subject matter, it appears from a review of the record that the injunction was entered under section 741.30, Florida Statutes (2005), instead of section 784.046, Florida Statutes (2005). The injunction is nevertheless supported by competent substantial evidence. Accordingly, we AFFIRM, without prejudice to appellant’s right to seek modification from the trial court.

KAHN, C.J., WOLF and BENTON, JJ., Concur.


text:
    C.M., the Father in the Interest of A.A., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-5351.
    District Court of Appeal of Florida, First District.
    April 28, 2006.
    Michael P. Eng, Jacksonville, for Appellant.
    Josefina Tamayo, General Counsel, and Stacey L. Hill, Assistant General Counsel, Department of Children and Families, Jacksonville, for Appellee.
    Patricia M. Propheter, Appellate Counsel, Florida Guardian ad Litem Program, Orlando, for Guardian ad Litem Program, Fourth Judicial Circuit.
   ORDER

PER CURIAM.

In this appeal by the father from an order terminating his parental rights, counsel for the Guardian ad Litem program for the Fourth Judicial Circuit (GAL) filed a “Notice of Guardian ad Li-tem’s Position in Lieu of Brief.” In this notice, counsel stated that the program does not have sufficient financial resources to prepare a brief in every appeal and has filed the notice to inform this court of its position in the matter. The notice requested that the circuit court be affirmed and offered approximately one and one-half pages of legal argument in support of this result.

This court sua sponte directed the GAL to show cause why the notice should not be stricken as unauthorized by the Florida Rules of Appellate Procedure. In response, the GAL cites to State, Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988); Jacksonville Tractor Co. v. Nasworthy, 114 So.2d 463 (Fla. 1st DCA 1959); Lakes of Emerald Hills v. Silverman, 558 So.2d 442 (Fla. 4th DCA 1990) and other cases to support its right to file such a notice. Those cases state that a party should notify the court of the reasons why a brief will not be filed in a particular case. The party may also announce its position in the matter, i.e., that the lower tribunal be affirmed or reversed. The vehicle for a party to present written legal argument in support of its position to the appellate court, however, is a brief which complies with Florida Rule of Appellate Procedure 9.210 and the cases relied upon by the GAL in its response do not hold otherwise.

Accordingly, the “Notice of Guardian ad Litem’s Position in Lieu of Brief’ filed on January 27, 2006, is stricken. Appellant has filed his reply brief and would be prejudiced by the filing of an answer brief by the GAL at this time. No answer brief by the GAL will therefore be permitted in this cause.

NOTICE SUA SPONTE STRICKEN.

KAHN, C.J., WOLF, and BENTON, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Ricardo DENNIS, a/k/a Ricardo DaVinci Dennis, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3085.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Ricardo Dennis appeals his judgment for possession of cocaine with intent to sell or deliver and possession of cannabis. Mr. Dennis pleaded no contest after reserving the right to appeal the denial of his dispos-itive motion to suppress the contraband. We conclude the contraband ■ was seized during an unlawful detention, and therefore the trial court erred in denying Mr. Dennis’s motion to suppress. Accordingly, we reverse.

On February 15, 2005, at approximately 11:30 a.m., two deputies were attempting to execute arrest warrants in a region of Hillsborough County north of Fowler Avenue. Both deputies testified that they were employed as warrants officers. They were traveling together in a single, unmarked police car. The officers were in plain clothes but were wearing their badges. One of the arrest warrants they were trying to execute was for a nineteen-year-old, six-foot-tall, African-American male named “Jeremiah Williams.” One of the officers testified that they left the immediate area where they were looking for Jeremiah Williams, rounded the block into the vicinity of 131st Avenue and 22nd Street, and “continued to look for other people” for whom they had warrants.

While in the vicinity of 131st Avenue and 22nd Street, the officers saw Mr. Dennis riding his bicycle. Mr. Dennis, also an African-American male, was twenty-nine years old and stood roughly five feet six inches tall. Based on the dreadlocks in Mr. Dennis’s hair and his “protruding forehead,” the officers believed Mr. Dennis “pretty much matched” the description they had of Jeremiah Williams.

The officers proceeded to drive alongside Mr. Dennis in their unmarked car, calling out the name “Jeremiah.” In response to the officers’ cries, Mr. Dennis slowed down his bike and looked in the officers’ direction. The officers continued to follow alongside Mr. Dennis in their vehicle, asking if he was “Jeremiah,” and asking him to come closer to their vehicle so they could get a better look at him. Mr. Dennis responded that he was not “Jeremiah” and continued on his way.

When Mr. Dennis got to the corner of 131st Avenue and 20th Street, the officers stopped their vehicle, simultaneously exited, and approached him on foot. They displayed their badges and identified themselves as police officers. Mr. Dennis stopped and got off of his bike. The officers continued to ask Mr. Dennis if he was “Jeremiah” and demanded he produce identification. They also asked him if he was carrying any drugs or weapons.

As Mr. Dennis reached into his pocket, allegedly in a manner that concerned the officers, one of the officers tackled him to the ground. Mr. Dennis’s hand was forcibly removed from his pocket. Mr. Dennis had a piece of cocaine in his hand. Cannabis was found in his pocket after a search incident to arrest.

Mr. Dennis moved to suppress the cocaine and the cannabis on the theory that he had been unlawfully stopped. The trial court denied the motion, finding that Mr. Dennis bears a “resemblance” to Jeremiah Williams. He pleaded to these convictions, reserving his right to appeal the denial of his dispositive motion to suppress.

In analyzing this case, it is helpful to appreciate the role played by the arrest warrant. This is not a case of mistaken identity in which Mr. Dennis claims that he was arrested based on a warrant issued for Jeremiah Williams. If it were, the case would be controlled by Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), in which the Supreme Court articulated the standard for evaluating an arrest based on mistaken identity. Instead, the officers in this case did not immediately arrest Mr. Dennis. Both their behavior and their testimony suggest that they were not convinced of his identity when they stopped him and displayed their badges. The State quite properly does not argue that this case involves a consensual encounter. Thus, the issue in this case is comparable to the issue in most cases involving a stop without a warrant— whether the officers had a well-founded suspicion to conduct an investigatory stop of Mr. Dennis.

When conducting an investigatory stop, an officer may reasonably and temporarily detain a citizen only if the officer has a well-founded, articulable suspicion that the person has committed, is committing, or is about to commit a crime. See Travers v. State, 739 So.2d 1262, 1263 (Fla. 2d DCA 1999); State v. R.H., 900 So.2d 689, 692 (Fla. 4th DCA 2005). In the case of an officer executing arrest warrants, the officer must essentially have a reasonable suspicion that the detainee is the person named in the warrant. Mere suspicion is insufficient to support an investigatory stop. R.H., 900 So.2d at 692. “The existence of an arrest warrant is of no moment on the question whether a particular person police officers come across is in fact the subject of the warrant. The warrant supplies the officers with probable cause to arrest the person it names and describes, not a license to duck the reasonable suspicion requirement and stop someone they only have a subjective hunch is that person.” United States v. Hudson, 405 F.3d 425, 439 n. 9 (6th Cir.2005). We conclude that the officers did not have a reasonable suspicion to justify an investigatory stop of Mr. Dennis.

The officers presented no evidence beyond Mr. Dennis’s race, gender, hairstyle, and forehead sufficient for them to have a well-founded suspicion that Mr. Dennis was actually Jeremiah Williams. There was no testimony from the officers that Jeremiah Williams was known to frequent the location of the stop or that he was known to ride a bicycle. They did not have any independent evidence that Jeremiah Williams was in the area when Mr. Dennis was encountered on that day. On the contrary, the testimony given by one of the officers that they had ceased their search for Jeremiah Williams and had turned their attention to other individuals located in a different area suggests even more strongly that the similarities they saw in Mr. Dennis raised a mere “hunch” inadequate to justify an investigatory stop.

Even though we defer to the trial court’s factual finding that the two men bear a “resemblance” to each other, we disagree with the trial court’s legal conclusion that these very basic similarities were sufficient to support an investigatory stop on an arrest warrant. See Cilio v. State, 849 So.2d 353 (Fla. 2d DCA 2003) (an appellate court defers to a trial court’s factual findings but reviews the application of the law to those factual findings de novo). The booking photographs for both men are available to this court. The booking photograph and information used by the officers to ascertain Jeremiah Williams’ identity was taken less than four months prior to this incident and, thus, provided recent information. The basic similarities that the officers observed in these two men were characteristics that would have been shared by a significant number of men in that neighborhood. Jeremiah Williams’ forehead, however verbally described, is not particularly distinctive. Mr. Dennis’s hair is substantially longer than Jeremiah Williams’ hair. Moreover, there were significant differences in appearance that should have been noticed and considered by officers trained to execute warrants. A ten-year age difference between the two men existed. The officers were looking for a man in his late teenage years and stopped a man nearly thirty years old. While we realize that descriptions based on height and weight can often be general approximations, these were not patrol officers deciding to stop a man based on a BOLO for a recent crime. Here, the warrants officers were relying on recent booking information as to Jeremiah Williams’ height and weight and should have realized no later than when Mr. Dennis dismounted his bicycle that he was six inches shorter than the recent height listed for Jeremiah Williams.

Because we conclude that there was no reasonable suspicion to support an investigatory stop of Mr. Dennis, the trial court should have granted the motion to suppress. We reverse the judgment and remand .with instructions to discharge Mr. Dennis of this charge.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . We note that Mr. Dennis was sentenced on two other offenses that were charged in separate informations. Those informations involved offenses on other dates. The convictions and sentences in those cases are not affected by this opinion.


author: VILLANTI, Judge.

text:
    Paul STROMMEN, Appellant, v. Janet B. STROMMEN n/k/a Janet Puentes, Appellee.
    No. 2D05-2647.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellant.
    J. Stanford Lifsey of J: Stanford Lifsey, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Paul Strommen, the Former Husband, appeals an order granting relief from judgment under Florida Rule of Civil Procedure 1.540. The order effectively set aside five years of postjudgment rulings regarding custody and child support in his dissolution of marriage case based on a finding that the circuit court lacked subject matter jurisdiction over the proceedings solely because the Former Husband did not file a Uniform Child Custody Jurisdiction Act (UCCJA) affidavit as required by section 61.132, Florida Statutes (2000), when he sought a modification of the final judgment. Because Janet Strommen, the Former Wife, failed to even allege that the factual bases supporting subject matter jurisdiction were absent when the Former Husband sought modification, we conclude that she failed to establish a basis for a collateral attack of this judgment and, therefore, reverse. We discuss and distinguish Ruble v. Ruble, 884 So.2d 150 (Fla. 2d DCA 2004); Kochinsky v. Moore, 698 So.2d 397 (Fla. 4th DCA 1997); Walt v. Walt, 574 So.2d 205 (Fla. 1st DCA 1991); Perez v. Perez, 519 So.2d 1104 (Fla. 3d DCA 1988); and Mouzon v. Mouzon, 458 So.2d 381 (Fla. 5th DCA 1984).

In 1995, the Hillsborough County Circuit Court entered a final judgment of dissolution of marriage dissolving the parties’ marriage and setting forth a rotating custody arrangement for the parties’ son, who was then seven years old. This custody arrangement had the son moving every two years — he would live with the Former Husband during the week for two years, visiting the Former Wife on weekends and during vacation. During the next two years, the son would live with the Former Wife during the week, visiting the Former Husband on weekends and during vacation. In the fall of 2000, the Former Husband filed a petition to modify the final judgment, alleging that the rotating custody arrangement was no longer tenable and requesting that he be designated the primary residential parent. The Former Husband specifically alleged that he had relocated to north Florida and the Former Wife was living in Clearwater. In February 2001, the Former Wife filed' a counterclaim for modification of the final judgment, in which she sought primary residential responsibility for the child. Apparently, neither party thought to file a UCCJA affidavit, as. required by section 61.132, at any time during these proceedings. Neither party sought to dismiss the case for failure to file the UCCJA affidavit nor sought a transfer of venue.

Between 2002 and 2003, the Hillsbor-ough County Circuit Court granted the Former Husband’s petition, designated the Former Husband as the primary residential parent for the child, and required the Former Wife to pay $600 per month in child support. As recently as November 29, 2004, the circuit court held that the Former Wife was delinquent in her support obligations and entered a judgment against her for $18,084.69 for child support arrears and attorney’s fees and costs.

After having received numerous unfavorable rulings, the Former Wife’s attorney filed a motion for relief from judgment on January 17, 2005, pursuant to rule 1.540. The rule 1.540 motion argued that the Hillsborough County Circuit Court lacked subject matter jurisdiction over the modification proceedings because no UC-CJA affidavit had been filed. Citing Ruble, 884 So.2d 150, the trial court ultimately agreed, granted the motion, and set aside all of the orders regarding custody and child support entered in the post-judgment proceedings.

Subject matter jurisdiction — the “power of the trial court to deal with a class of cases to which a particular case belongs” — is conferred upon a court by constitution or by statute. Cunningham, v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994); Jesse v. State, Dep’t of Revenue ex rel. Robinson, 711 So.2d 1179 (Fla. 2d DCA 1998). It cannot be conferred by waiver, acquiescence, or agreement of the parties. Ruble, 884 So.2d 150. A trial court’s lack of subject matter jurisdiction makes its judgments void, and a void judgment can be attacked at any time, even collaterally. Fla. R. Civ. P. 1.140(h); Gonzalez v. Gonzalez, 654 So.2d 257 (Fla. 3d DCA 1995).

There is no question that the circuit courts in Florida generally have subject matter jurisdiction in cases involving dissolution of marriage or the modification of judgments dissolving marriages so long as certain factual prerequisites regarding the parties are established. See §§ 26.012(2)(e), 61.043(1), 61.13(2)(c), Fla. Stat. (2000). The relevant statutory provisions regarding subject matter jurisdiction to modify child custody or child support in a dissolution judgment are found in sections 61.13(l)(a) and 61.13(2)(c). Section 61.13(l)(a) provides in pertinent part: “The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments.” See also § 88.2051, Fla. Stat. (2000). Section 61.13(2)(c) provides: “The circuit court in the county in which either parent and the child reside or the circuit court in which the original award of custody was entered have jurisdiction to modify an award of child custody.” See also Poliak v. Poliak, 235 So.2d 512, 514 (Fla. 2d DCA 1970) (holding the law of Florida “is well settled” that a circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach their majority).

Further provisions regarding subject matter jurisdiction in child custody proceedings are found in the UCCJA, sections 61.1302-61.1348, Florida Statutes (2000). Under section 61.1308(1), a court of this state has “jurisdiction to make a child custody determination by initial or modification decree” if certain requirements regarding the child’s residency or presence in the state are met. The UCCJA also recognizes the exclusive continuing jurisdiction of a state court that issues an initial custody decree. See Yurgel v. Yurgel, 572 So.2d 1327, 1332 (Fla.1990) (stating “jurisdiction must be presumed to continue once it is validly acquired under section 61.1308; and it continues up until a Florida court expressly determines on some other basis that jurisdiction no longer is appropriate, until virtually all contacts with Florida have ceased”); Steckel v. Blafas, 549 So.2d 1211, 1213-14 (Fla. 4th DCA 1989) (quoting the reporter for the committee that prepared the UCCJA, Professor Boden-heimer, as stating, “Exclusive continuing jurisdiction is not affected by the child’s residence in another state for six months or more. Although the new state becomes the child’s home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state’s continuing jurisdiction no longer required. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam. L. Q. 203, 214-215 (1981).”).

Such subject matter jurisdiction must be properly invoked and perfected. See Fla. Power & Light Co. v. Canal Auth., 423 So.2d 421, 423 (Fla. 5th DCA 1982) (citing Cortina v. Cortina, 98 So.2d 334 (Fla.1957)). “A court’s jurisdiction is generally invoked in a given case by a party filing a proper pleading which alleges material facts demonstrating (1) the existence of a judicial controversy ... within the subject matter jurisdiction of the court and (2), when a binding judicial determination requires the court to act directly on an object (a res), that such court has, or can acquire, jurisdiction over such res.” Id. at 423-24 (footnote omitted). In this case, there is no dispute that the parties properly invoked the Hillsbor-ough County Circuit Court’s subject matter jurisdiction to enter a judgment of dissolution in 1995. The only question is whether they properly invoked the court’s subject matter jurisdiction to modify that judgment. See Geiger v. Geiger, 632 So.2d 693, 696 (Fla. 1st DCA 1994) (discussing a party’s failure to properly invoke the subject matter jurisdiction of the trial court to modify a judgment by failing to raise the subject of modification in an appropriate pleading).

The Former Husband filed a pleading requesting modification of the final judgment of dissolution. In his pleading, the Former Husband alleged that a final judgment of dissolution had been entered by the same court in 1995, that the parties’ rotating custody arrangement was not working, and that the Former Husband had moved to north Florida and the Former Wife to Clearwater. The Former Husband sought primary residential responsibility, a visitation schedule for the Former Wife, and child support. This pleading alleged material facts demonstrating the existence of a judicial controversy within the subject matter jurisdiction of the court. The Former Wife’s rule 1.540 motion, however, argued that the circuit court that entered the dissolution judgment lacked subject matter jurisdiction over the modification proceedings because the Husband failed to file the affidavit required by section 61.132.

Section 61.132(1) requires that “[ejvery party in a custody proceeding, in his or her first pleading or in an affidavit attached to that pleading” give certain information under oath regarding the residency of the child and any other custody proceedings. Admittedly, there seems to be confusion surrounding the UCCJA affidavit requirement and its role in determining subject matter jurisdiction — confusion created by the broadly written language of at least one case from this court, Ruble, and cases from the other district courts of appeal, Kochinsky, Walt, Perez, and Mouzon. Tracing the language of Ruble to its source is helpful in analyzing the effect of section 61.132 on subject matter jurisdiction.

In Ruble, this court reversed a trial court’s order denying a wife’s motion to vacate a default final judgment entered against her, primarily because of due process concerns — she had never been served with notice and the trial court awarded custody of the child to the Husband, who had never requested custody in his pleadings. After discussing these errors, this court also noted that neither party had filed a UCCJA affidavit, even though the initial pleadings reflected that the wife and child were residing in California. This court noted:

Section 61.132(1) requires every party in a custody proceeding in his or her first pleading or in an affidavit attached to that pleading to give information under oath concerning the child’s custodians and residences during the past five years and any other proceedings involving the custody of the child. The husband gave none of the above information in his petition filed in 1998, nor at any time before the final judgment was entered. The failure to provide this sworn evidence deprives the court of subject matter jurisdiction and renders the custody provisions of the final judgment unenforceable. See Kochinsky v. Moore, 698 So.2d 397 (Fla. 4th DCA 1997) (holding that compliance with the affidavit requirements of the UCCJA is mandatory). “The filing of the affidavit after the entry of the order does not cure the jurisdictional defect created.” Id. at 399. Without that affidavit, the husband did not obtain an enforceable order.

Ruble, 884 So.2d at 152. In Ruble, this court further noted that the wife’s admission of jurisdiction in her counterpetition was “irrelevant” because “[sjubject matter jurisdiction is conferred upon a court by the constitution or by statute and cannot be created by waiver, acquiescence or agreement of the parties” and that “[t]he lack of subject matter jurisdiction can be raised as a defense at any time.” Id. In Ruble, this court reversed but remanded for further proceedings, noting, “On remand the trial court, in determining the child’s primary residence, must consider the best interest of the child.... ” Id. at 153. This court, therefore, seemingly anticipated a cure to the so-called “jurisdictional defect” and the continuation of the custody proceedings. This court did not require the ease be dismissed and the parties to begin again with new pleadings. Id.

Ruble relied almost entirely on Kochin-sky. In Kochinsky, 698 So.2d 397, the Fourth District reversed an order awarding temporary custody of a child to a mother who was residing in the state of Virginia and had not filed a UCCJA affidavit. Noting that the residence of the parties in different states created the “potential for an interstate conflict,” the Fourth District concluded that “compliance with the requirements of the UCCJA is essential to creating an enforceable order which will be honored by both states.” Id. at 399. Relying on Walt, 574 So.2d 205, the Kochinsky court called the failure to file the UCCJA affidavit a “jurisdictional defect” that could be cured only by reversing the order and remanding. On remand, the court could enter new orders after considering a UCCJA affidavit filed pending appeal.

In Walt, 574 So.2d 205, the First District considered whether it should recognize a Mississippi custody decree and enforce it by permitting the father to obtain habeas corpus relief in the form of the recovery- of the custody of his son in Florida. The First District refused to recognize or enforce the Mississippi decree based upon its conclusions that (1) the decree was not obtained in compliance with the UCCJA because the father had not filed a timely UCCJA affidavit in that jurisdiction and (2) the decree was entered without a valid basis for jurisdiction under the UCCJA’s provisions. The court stated, “There is no question that an unexcused failure to file the information requested by section 61.132 leaves the court without jurisdiction to enter a valid child custody order under the UCCJA.” Id. at 212. Walt relied on Perez, 519 So.2d 1104, and Mouzon, 458 So.2d 381. However, in Perez, the party’s failure to file a UCCJA affidavit was not called a jurisdictional defect. Rather, it was the failure of the complaint to allege that either party was a resident of Florida for the statutory period that deprived the court of subject matter jurisdiction. In Mouzon, 458 So.2d 381, the Fifth District found that a judgment of dissolution was void for lack of jurisdiction. The complaint’s failure to adequately allege a basis for long-arm jurisdiction voided any service of process, resulting in a lack of in personam jurisdiction over the respondent husband. And, according to Mouzon:

Neither does the complaint or any affidavit attached to it show any of the jurisdictional requirements of section 61.132or 61.1308, Florida Statutes (1981), so as to vest the court with custody jurisdiction, nor does the complaint even allege that the children reside in Florida, so there is no basis upon which the court could have acquired jurisdiction over the children.

Id. at 383. This statement in Mouzon, which seems to be the source of the confusion, was made with no citation to any legal authority. It implies that both sections 61.132 and 61.1308 contain “jurisdictional requirements.” However, a plain reading of the statutes reveals otherwise. Section 61.1308 contains the jurisdictional provisions. Section 61.132 contains the vehicle by which a party provides the information necessary to determine jurisdiction. Significantly, section 61.132 says nothing about jurisdiction, although the information it requires to be provided to the court (information about whether the party has participated in any capacity in any litigation concerning custody of the same child, about any custody proceeding concerning the child pending in any court, and about any nonparty’s interest in custody or visitation) is often key in making a determination of whether the court has subject matter jurisdiction under section 61.1308, and if so, whether it should decline to exercise its jurisdiction under section 61.1316. Therefore, failing to file the section 61.132 affidavit may severely hinder the court’s ability to make a determination of jurisdiction. However, failing to file the section 61.132affidavit is not in itself fatal to jurisdiction, despite the concededly broad language of Mouzon and its progeny. For example, in In re T.L. v. State, Department of Health & Rehabilitative Services, 392 So.2d 288 (Fla. 5th DCA 1980), the Fifth District found that failure to file the UCCJA affidavit did not deprive a court of subject matter jurisdiction because there was sufficient information from which the court could determine that it had jurisdiction. Clearly, failing to file the UCCJA affidavit is a pleading deficiency. As such, it makes the pleading subject to a motion to dismiss. But, it does not automatically deprive the court of jurisdiction, void the court’s judgments, and subject the judgments to collateral attack. Therefore, Ruble’s holding was no doubt limited to its facts — the wife in Ruble was entitled to relief from judgment not simply because the husband failed to comply with section 61.132but because the factual basis for Florida’s subject matter jurisdiction was called into question in light of the wife and child’s residence in California.

Additionally, in Ruble, Walt, Perez, and Mouzon, the failure to file a UCCJA affidavit was not the sole basis for reversal. In Ruble, the due process considerations played a significant role in reversing a custody determination. In Walt, the First District concluded that there was no valid basis for an out-of-state court’s exercise of jurisdiction even if the father had filed an accurate UCCJA affidavit. In Perez, the court reversed for numerous due process concerns. In Mouzon, the Fifth District concluded that a default final judgment must be reversed when personal jurisdiction was not acquired over the husband, who was served out of state. Also, none of these cases involved a circuit court’s modification of its earlier judgment of dissolution, in which jurisdiction is presumed to continue absent a complete loss of contacts in Florida. Yurgel, 572 So.2d at 1332.

Therefore, we decline to stretch the holdings of these cases to the circumstances presented here, in which (1) the circuit court had entered an initial final judgment involving custody and support and thus maintained continuing exclusive jurisdiction over the cause absent some event that would have divested the court of jurisdiction; (2) there was no indication that such an event had occurred as the pleadings alleged that both parties and the child continued to reside in Florida; and (3) the Former Wife failed to raise the pleading deficiency during the proceedings and on direct appeal of the custody determination.

We note that although Florida cases in general have blurred the distinction between the consequences of a party failing to satisfy a formal pleading requirement and a court failing to actually have a factual basis for subject matter jurisdiction, other courts have not. For example, in Bell v. Bell, 987 S.W.2d 395 (Mo.Ct.App.1999), the court discussed section 452.450, Missouri Revised Statutes (1994), which codifies the UCCJA jurisdictional provisions, and section 452.480, which codifies the UC-CJA affidavit requirement. In Bell, the court noted that

“[although [section] 452.480 requires that parties in child custody proceedings furnish certain information in their pleadings or by affidavit, that requirement is not jurisdictional.
Section 452.450 sets forth certain jurisdictional requirements. It contains no reference to section 452.480. Ex-pressio unius est exclusio alterius. Jurisdiction attaches when the requirements of [section] 452.450 are met, not [section] 452.480.”

Id. at 398 (quoting In re Marriage of Gohn, 639 S.W.2d 413, 414 (Mo.Ct.App.1982)); see also Reed v. Reed, 62 S.W.3d 708, 711 (Mo.Ct.App.2001) (“It is true that [section] 452.480 requires that the petitioner include pleading information in a petition where child custody is an issue. But this requirement is separate and distinct from the jurisdictional requirement of the UCCJA”) (footnote omitted).

We do not by any means intend to downplay the importance of filing a UC-CJA affidavit in any case involving a child custody determination. Ruble, Kochinsky, Walt, Perez, and Mouzon are correct in underscoring the UCCJA affidavit’s importance. As the cases point out, section 61.132 contains mandatory language that every party in a custody proceeding “shall” give the information required by the statute—which is why when a party to a custody proceeding fails to allege such information, that party’s pleadings may be the subject of a proper motion to dismiss, and the opposing party may raise the pleading deficiency in defense of any request for custody. See generally Fla. Power & Light Co., 423 So.2d 421 (discussing the differences between a pleading deficiency and lack of subject matter jurisdiction).

Further, a court armed with the information required by section 61.132 can easily make an accurate decision as to whether it has a factual basis for subject matter jurisdiction under section 61.1308, and if so, whether jurisdiction should be declined. As stated in Walt, 574 So.2d at 211, “An important purpose underlying the requirement ... is to insure that the information is made known not only to the court but also to the adverse party by timely service, so that both can determine the basis for the court’s exercise of jurisdiction of the child custody issue.” Because the UCCJA framework requires courts to recognize custody decrees of other states when the sister state assumed jurisdiction “under factual circumstances meeting the jurisdictional standards of the act,” the filing of a proper UCCJA affidavit will strengthen any decree against a jurisdictional challenge made in another state. § 61.1328, Fla. Stat. (2000); Kochinsky, 698 So.2d at 398. A court that has considered all of the information in section 61.132 is more likely to have properly exercised jurisdiction, and its order is therefore more likely to be enforceable in other states. Given these concerns, a circuit court would be wise to ensure compliance with section 61.132 in all cases, even in the absence of the issue being raised by a party.

Here, to attack the subject matter jurisdiction of the circuit court’s judgments, the Former Wife must at least allege that the factual bases supporting subject matter jurisdiction were absent; because the circuit court is presumed to have continuing jurisdiction and the Former Husband sufficiently invoked the court’s subject matter jurisdiction in his petition for modification, the Former Wife alleging only that the UCCJA affidavit is missing is not enough to render the circuit court’s judgments void and subject to collateral attack. Accordingly, we reverse the trial court’s order granting the Former Wife relief under rule 1.540 and remand for the trial court to reinstate the orders it set aside.

Reversed and remanded.

FULMER, C.J., and ALTENBERND, J., Concur.

      . The Uniform Child Custody Jurisdiction Act applies to this proceeding. It was repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), effective October 1, 2002. However, the UC-CJA continues to apply to all custody proceedings filed before the UCCJEA’s effective date. See § 61.542, Fla. Stat. (2002).

      . Section 61.132 was repealed by chapter 2002-65, section 7, at 870, Laws of Florida, effective October 1, 2002. That section has been replaced by section 61.522.

      . We note the son recently turned eighteen years old, and therefore, his custody is no longer at issue. We refrain from commenting on the other ramifications of the trial court’s order granting relief from judgment, including its effect on the Former Wife’s delinquent child support payments.

      . "If a court has jurisdiction in a case but simply errs in its decision, its action is merely voidable and, if not timely corrected, is final and binding. In contrast, when a court acts without jurisdiction, its action is void and subject to collateral attack.” Fla. Power & Light Co. v. Canal Auth., 423 So.2d 421, 423 n. 5 (Fla. 5th DCA 1982).


author: DAVIS, Judge.

text:
    AMERICAN STRATEGIC INSURANCE CO., Appellant, v. Mary Ellen LUCAS-SOLOMON, Brieanna Lucas, a minor, by and through her mother and next of kin, Mary Ellen Lucas-Solomon, Melvin Eugene Kennedy, Margaret Edith Kennedy, and Caitlyn Kennedy, by and through her parents and next of kin, Melvin Eugene Kennedy and Margaret Edith Kennedy, Appellees.
    No. 2D05-1862.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      Steven G. Schwartz and David J. Pas-cuzzi of Schwartz & Horwitz, PLC, Boca Raton; and Jason T. Salgado of Terrana Perez Salgado, P.A., Tampa, for Appellant.
    Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa; and Joseph W. Chambers of Chambers Law Group, P.A., St. Petersburg, for Appellees Mary Ellen Lucas-Solomon and Brieanna Lucas.
    Aubrey O. Dicus, Jr., and Charles F. Weeks of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellees Melvin Eugene Kennedy, Margaret Edith Kennedy, and Caitlyn Kennedy.
   DAVIS, Judge.

American Strategic Insurance Company (“American Strategic”) challenges the trial court’s determination that the homeowners’ insurance policy it issued to Melvin Eugene Kennedy and Margaret Edith Kennedy provided coverage for injuries sustained by Brieanna Lucas when she was bitten by the Kennedy family’s dog. We reverse.

Brieanna’s mother, Mary Ellen Lucas-Solomon, filed an action on behalf of Brie-anna against the Kennedys, seeking damages for injuries Brieanna received when she was visiting the Kennedys’ daughter, Caitlyn, and was bitten by the Kennedys’ Rottweiler. The Kennedys notified their homeowners’ insurance carrier, American Strategic, of the action, and American Strategic filed a declaratory action, seeking a determination of whether it had a duty to defend and indemnify the Kenne-dys. The Kennedys, Lucas-Solomon, and American Strategic all moved for summary judgment.

The coverage dispute arose due to a provision contained in the American Strategic policy, which excludes coverage for bodily injury caused by “any dog owned by or kept by you.” “You” is defined by the policy to include the “ ‘named insured’ shown in the Declarations and the spouse if a resident of the same household.” In her complaint, Lucas-Solomon alleged that the dog was owned by Melvin and Margaret Kennedy and was owned and kept by Caitlyn Kennedy, their nine-year-old daughter. In moving for summary judgment, Lucas-Solomon and the Kennedys argued that although the dog exclusion would apply to bar coverage as to Melvin Kennedy, the named insured, and Margaret Kennedy, his wife, who are both residents of the same household and owners of the dog, the exclusion would not apply to their daughter, Caitlyn. Lucas-Solomon and the Kennedys maintained that despite Caitlyn’s role as owner and keeper of the dog, she was not included in the policy definition of “you,” but rather was included under the policy only as an “insured” as to which, they argued, the dog exclusion did not apply. The trial court agreed, granting the motions for summary judgment filed by the Kennedys and Lucas-Solomon and denying the motion for summary judgment filed by American Strategic.

Our review of an order granting summary judgment is de novo, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), as is the interpretation of an insurance contract and the determination of whether the law requires the insurer to provide coverage, Hartford Ins. Co. of the Midwest v. Bellsouth Telecomm., Inc., 824 So.2d 234 (Fla. 4th DCA 2002).

Because an insurance policy is a contract between the insurer and the insured, contract principles apply to its interpretation. State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So.2d 397 (Fla. 4th DCA 1996), approved, 711 So.2d 1135 (Fla.1998).

A contract should be construed to give effect to the intent of the parties.... “In interpreting an insurance contract we must consider the intent and reasonable expectations of the parties in entering into the agreement. Hence, we must evaluate not only [the insurer’s] contract form, but also [the insured’s] knowledge and understanding as a layman and his normal expectation of the extent of coverage of the policy.”

Commerce Nat’l Bank in Lake Worth v. Safeco Ins. Co. of Am., 252 So.2d 248, 252 (Fla. 4th DCA 1971) (alterations in original) (quoting Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, 172 n. 7 (1966)). When an exclusion is ambiguous or is susceptible of more than one meaning, it must be construed in favor of the insured. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979). However, there must be a “genuine inconsistency, uncertainty, or ambiguity in meaning” that remains after the application of “the ordinary rules of construction” before this rule is applied. Id. at 942; see also State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986). To properly interpret an exclusion in a policy, the exclusion must be read together with the other provisions of the policy and “from the perspective of an ordinary person.” Union Am. Ins. Co. v. Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000).

Applying these principles, we conclude that the trial court erred in finding coverage. Our reading of the exclusion leads us to determine that, after ordinary rules of construction are applied, there is no genuine inconsistency or ambiguity. It is a strained reading to suggest that American Strategic intended to exclude the named insured and his or her spouse from coverage for injuries resulting from an incident involving their dog, while at the same time intending to provide coverage for the named insureds’ nine-year-old daughter who owns the dog with them jointly. Further, reading the exclusion from the perspective of an ordinary person and in conjunction with the rest of the policy does not support a finding that the Kennedys’ daughter had coverage that her parents did not enjoy. To suggest that a nine-year-old “owned and kept” a dog as separate and distinct from the ownership of her parents is contrary to the understanding of an “ordinary person.” In our society, a nine-year-old’s “ownership” of a pet is ordinarily understood to be dependent upon the parent’s ownership of the pet. To make the finding that the trial court made here is to grant to the daughter, an additional insured, more coverage than the policy grants to the named insureds. See BellSouth Telecomm., 824 So.2d 234. We cannot conclude that such coverage was the intent of the parties based on the understanding of the words used in the policy from the perspective of an ordinary person.

Given our conclusion that there is no ambiguity, we need not resort to the rule that dictates an interpretation in favor of coverage. Accordingly, we reverse and remand for entry of a summary judgment in favor of American Strategic.

Reversed and remanded.

WHATLEY and WALLACE, JJ„ Concur.