author: EVANDER, J.

text:
    METROPOLITAN CASUALTY INSURANCE COMPANY, Appellant, v. Robert TEPPER, et al., Appellees.
    No. 5D06-3713.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Rehearing Denied Nov. 28, 2007.

      Michael M. Bell and Mary Grace Dyle-ski, of Bell, Leeper & Roper, P.A., Orlando, for Appellant.
    Edward E. Haenftling, Jr., of Edward Haenftling, Jr., P.A., and Chobee Ebbets of Chobee Ebbets, P.A., Daytona Beach, for Appellee Angel M. Lucas.
    No Appearance for Appellee Robert Tepper.
   EVANDER, J.

Metropolitan Casualty Insurance Company timely appeals from an order that dismissed defendant Angel Lucas from a lawsuit filed by Metropolitan’s insured, Robert Tepper. We affirm the order of dismissal, but reverse the trial court’s finding that Metropolitan could bring a third-party action against Lucas.

On May 13, 2004, Tepper was riding his bicycle when he was hit by a vehicle owned and operated by Lucas. He subsequently filed a two-count complaint against Lucas and Metropolitan. In Count I, Tepper asserted a negligence claim against Lucas. In Count II, Tepper sought to recover uninsured/underinsured (UM) benefits from Metropolitan. The complaint alleged that Tepper had suffered serious and permanent injuries as the result of Lucas’ negligence. Lucas and Metropolitan each filed an answer and affirmative defenses.

Lucas’ insurance carrier tendered its policy limits of $25,000 to Tepper as full settlement of Tepper’s claim against Lucas. Metropolitan did not grant Tepper permission to accept the settlement offer. Instead, Metropolitan paid Tepper $25,000 and preserved its subrogation rights against Lucas. Metropolitan’s letter to Tepper provided:

Please be advised that at this time, we are substituting the funds of the tort feasor’s insurance carrier, and hereby retain our subrogation rights. Please find our check enclosed for the amount of their coverage limits.

Tepper accepted the funds tendered by Metropolitan. Lucas subsequently filed a motion to dismiss the count of the complaint directed to Lucas. In her motion, Lucas argued that Tepper had “constructively or actually assigned his rights as against Lucas to Metropolitan and it is Metropolitan that has the right to sue Lucas and not [Tepper].”

Over Metropolitan’s objection, the trial court granted Lucas’ motion to dismiss. In its order, the trial court stated that if Lucas was to be a part of the proceedings, “it would have to be based upon a third party action brought by Metropolitan.” The trial court denied Metropolitan’s subsequent motion for rehearing and this appeal ensued. Tepper has not participated in the appellate proceedings and apparently did not oppose Lucas’ motion to dismiss.

We begin our analysis by rejecting Lucas’ argument that Metropolitan does not have standing to appeal the trial court’s decision to dismiss Tepper’s complaint against Lucas.- Generally, a party has standing to challenge a trial court’s order when it has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Gieger v. Sun First Nat’l Bank of Orlando, 427 So.2d 815, 817 (Fla. 5th DCA 1983). Here, the trial court’s order implicitly addresses Metropolitan’s subrogation rights against Lucas and expressly addresses its rights as a potential third-party plaintiff. Therefore, we find that Metropolitan has standing to appeal the trial court’s order.

Metropolitan makes three arguments on appeal. First, Metropolitan contends that the trial court erred in “looking beyond the four corners” of Tepper’s complaint. As a general rule, a trial court may not consider matters outside the four corners of the complaint in deciding a motion to dismiss. Winter v. Miami Beach Healthcare Group, Ltd., 917 So.2d 973 (Fla. 3d DCA 2005). However, we find Metropolitan has waived this argument. There is no indication that this issue was ever presented to the trial court. (It clearly was not raised in Metropolitan’s four-page motion for rehearing.) Furthermore, Metropolitan does not dispute the facts that were relevant to the resolution of Lucas’ motion to dismiss. A trial court is not bound by the four corners of the complaint where the facts are undisputed and the motion to dismiss raises only a pure question of law. Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138 (Fla. 5th DCA 1998).

Second, Metropolitan argues that the trial court’s order directly conflicts with the requirements set forth in section 627.727(6), Florida Statutes (2004). Section 627.727(6)(a) provides that if an injured person is willing to accept a settlement offer from the alleged tortfeasor, but such settlement would not fully satisfy the personal injury claim so as to create a UM claim, the injured party must give written notice of the proposed settlement to his or her UM insurer. If the UM insurer authorizes settlement or fails to respond as required by subsection (6)(b), the injured party may proceed to execute a full release in favor of the alleged tortfeasor and the alleged tortfeasor’s liability insurer without prejudice to any UM claim. Subsection (6)(b) provides the UM carrier with the means to preserve its subrogation rights against the alleged tortfeasor even if it denies its insured permission to settle with the tortfeasor. To do so, the UM carrier must pay its insured the amount of money offered by the tortfeasor (or the tortfeasor’s liability insurer).

If an underinsured motorist insurer chooses to preserve its subrogation rights by refusing permission to settle, the underinsured motorist insurer must, within 30 days after receipt of the notice of the proposed settlement, pay to the injured party the amount of the written offer from the underinsured motorist’s liability insurer. Thereafter, upon final resolution of the underinsured motorist claim, the underinsured motorist insurer is entitled to seek subrogation against the underinsured motorist and the liability insurer for the amounts paid to the injured party.

§ 627.727(6)(b), Fla. Stat. (2004).

In this case, it is undisputed that Metropolitan chose the option authorized by subsection (6)(b). Metropolitan refused to grant Tepper permission to settle his claim against Lucas, but instead preserved its subrogation rights against Lucas by timely paying Tepper the amount of money offered by Lucas’ liability insurer.

Metropolitan contends that the operation of subsection (6)(b) did not extinguish Tepper’s claim against Lucas and thus, the motion to dismiss should not have been granted. We agree with Metropolitan’s assertion that Tepper’s acceptance of the $25,000 from Metropolitan did not fully extinguish his claim against Lucas. By paying Tepper the $25,000, Metropolitan had the right to bring a subrogation action against Lucas for the $25,000 plus any UM benefits subsequently paid by Metropolitan to Tepper. Tepper would have the right to pursue Lucas for the remainder of any judgment obtained against Lucas which was in excess of the total amount he ultimately received from Metropolitan. However, nothing in subsection (6)(b) required Tepper to pursue his claim against Lucas if he was willing to forego seeking damages in excess of the sum of $25,000 offered by Lucas (but paid by Metropolitan) and the limits of his UM policy.

The pre-1992 version of section 627.727(6) required an injured party to jointly sue the alleged tortfeasor and the UM carrier even when the UM carrier denied its insured permission to accept a settlement offer from the alleged tortfeasor. Gov’t Employees Ins. Co. v. Krawzak, 675 So.2d 115, 117-118 (Fla.1996). However, the 1992 amendment to section 627.727(6) “substantially alter[ed] the landscape of uninsured motorist law.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 109 (Fla.1996). The language requiring the injured party to jointly sue the alleged tortfeasor and the UM carrier was removed from the statute. As explained by the Florida Supreme Court in Krawzak, albeit, in dicta:

In 1992, the legislature amended section 627.727(6), and under the present statute, an action for UM coverage would solely be against the UM carrier.

675 So.2d at 118 n. 3 (emphasis added). Accordingly, we find the trial court did not err in granting Lucas’ motion to dismiss where Tepper was apparently willing to forego seeking damages in excess of the sum of the limits of Lucas’ liability policy and the limits of Tepper’s UM policy.

We do conclude, however, that the trial court erred in finding that Metropolitan could bring a third-party action against Lucas. The last sentence of section 627.727(6)(b) specifically provides that a UM insurer is entitled to seek subrogation against the alleged tortfeasor (and its liability insurer) “upon final resolution of the underinsured motorist claim.” Based on this clear and unambiguous language, we conclude that Metropolitan may not file a third-party action against Lucas, but, instead, must wait to bring a separate action against Lucas after final resolution of Tep-per’s UM claim.

Metropolitan’s third argument is that the trial court erred in granting the motion to dismiss because Tepper’s insurance policy required him to join the tort-feasor as a defendant in any action to recover UM benefits:

YOUR DUTY TO COOPERATE:
Under Uninsured and Underinsured Motorist coverage, we may require you to take appropriate action to preserve your right to recover damages from any other person responsible for the bodily injury. Also, in any lawsuit against us, we may require you to join the responsible party as a defendant.

Here, Tepper fully complied with this provision by joining Lucas and Metropolitan in his initial complaint. Tepper’s decision to not oppose Lucas’ motion to dismiss did not violate his contractual obligations, particularly given that Metropolitan had denied Tepper permission to accept Lucas’ settlement offer and had acted to preserve its own subrogation rights.

In conclusion, except as to the finding that Metropolitan could bring a third-party action against Lucas, we affirm the order granting Lucas’ motion to dismiss.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . In his complaint, Tepper alleged that he had made a demand to Metropolitan for arbitration of the UM claim but Metropolitan had elected, pursuant to the terms of its policy, to be joined with the tortfeasor in the subject action.

      . Section 627.727(6)(a), Florida Statutes (2004) provides:
      If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underin-sured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all under-insured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of 30 days after receipt thereof to consider authorization of the settlement or retention of subrogation rights. If an underinsured motorist insurer authorizes settlement or fails to respond as required by paragraph (b) to the settlement request within the 30-day period, the injured party may proceed to execute a full release in favor of the underinsured motorist’s liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim.

      . Section 627.727(6), Florida Statutes (1991) provided:

        If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim against the underinsured motorist insurer, then such settlement agreement shall be submitted in writing to the underinsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the underinsured motorist claim and approve the settlement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release. If the underin-sured motorist insurer does not agree within 30 days to arbitrate the underinsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the underinsured motorist insurer to resolve their respective liabilities for any damages to be awarded; however, in such action, the liability insurer's coverage must first be exhausted before any award may be entered against the underin-sured motorist insurer, and any such award against the underinsured motorist insurer shall be excess and subject to the provisions of subsection (1). Any award in such action against the liability insurer’s insured is binding and conclusive as to the injured person and underinsured motorist insurer's liability for damages up to its coverage limits. If an insurer has an arbitration clause in its policy and elects arbitration, the arbitration decision is binding and the insurer has no recourse to civil action.

      . We recognize that our decision requiring a separate action does not promote judicial efficiency because, absent settlement, the trial court may well be required to have two trials. We also agree that our decision increases the likelihood of inconsistent judgments. However, where legislative language is clear and unambiguous, we are not free to disregard such language. See Macola v. Gov’t Employees Ins. Co., 953 So.2d 451, 457 (Fla.2006); Wagner v. Orange County, 960 So.2d 785, 789 (Fla. 5th DCA 2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert SELLERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4977.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2007.
    Rehearing Denied Dec. 4, 2007.
    Robert Sellers, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Trevor WOODS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1135.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2007.

      William Kemper Jennings, DeFuniak Springs, for Petitioner.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, and Susan A. Maher, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner appeals the trial court’s order continuing his involuntary commitment after he had been found not guilty of attempted murder by reason of insanity. We treat the appeal of the order as a petition for writ of certiorari, see Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004); Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998); Thomas v. State, 443 So.2d 406 (Fla. 4th DCA 1984), grant the petition, quash the trial court’s order, and remand for further proceedings.

Background

On July 25, 2002, an information was filed charging the petitioner with attempted first-degree murder. On June 12, 2003, the trial court entered an order finding the petitioner not guilty by reason of insanity and ordering his commitment to the Department of Children and Family Services pursuant to section 916.15, Florida Statutes, for treatment in a mental health facility. The proceedings below were commenced upon the filing of a letter by the attorney for the Florida State Hospital indicating that, according to the hospital staff, the petitioner no longer met the criteria for involuntary commitment. Attached to the letter was a clinical analysis, a proposed conditional release plan, and an agreement by the petitioner to conform to all the requirements of the conditional release plan. Also attached was an agreement of Bridgeway Center, Inc., stating that it would provide mental health services to petitioner upon his conditional release.

On February 1, 2007, a hearing on the conditional release plan was held pursuant to Florida Rule of Criminal Procedure 3.218(b). The state objected to the petitioner’s release because it believed the petitioner was still a threat. The state requested that if the petitioner was to be released, that the court order him to wear a GPS monitoring device. The trial court noted its preference for the petitioner to be monitored electronically if released. Ultimately, the Court stated: “Until I get something further that would just convince this court that the safeguards are in place to protect the community, at this time the request for the conditional release will be denied.” On February 7, 2007, the trial court issued an order finding that the petitioner continues to meet the criteria for continued commitment under the supervision of DCF. This appeal followed.

Analysis

The petitioner argues that the trial court’s order was deficient because the trial court did not make any factual findings regarding whether the petitioner was a manifest danger to himself or others. According to section 916.15(2):

A defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant has a mental illness and, because of the illness, is manifestly dangerous to himself or herself or others.

§ 916.15(2), Fla. Stat. (2006) (emphasis added). Thus, for commitment to be continued pursuant to section 916.15, the court must find that the defendant is mentally ill and is manifestly dangerous to himself or to others. See Wisniewski v. State, 805 So.2d 901 (Fla. 2d DCA 2001). In the instant case, the trial court did not find that the petitioner was manifestly dangerous to himself or others and failed to include findings of fact on which such a conclusion could have been based. The court merely made the eonclusory finding that the petitioner “continues to meet the criteria for his continued commitment under the supervision of the Department of Children and Families.” Because the trial court failed to include findings of fact in its commitment order relevant to the issue of whether a defendant is manifestly dangerous to himself or others, the order is facially deficient. See Wisniewski, 805 So.2d at 901 (remanding for the trial court to issue a new order including statutorily required findings); Tavares v. State, 871 So.2d 974 (Fla. 5th DCA 2004); see also Fla. R.Crim. P. 3.217(b)(1) (stating that order committing defendant after acquittal by reason of insanity must contain findings of fact relating to issue of commitment).

The trial court departed from the essential requirements of law by failing to make the required findings. Courts have held that in light of the liberty interests at stake, a trial court departs from the essential requirements of law when it fails to make the required statutory findings to involuntarily commit a child under section 985.223(g). D.H. v. State, 952 So.2d 603 (Fla. 1st DCA 2007); M.H. v. State, 901 So.2d 197 (Fla. 4th DCA 2005). Similarly, because of the liberty interests at stake in this case, we hold that when a trial court fails to make the statutory findings necessary to continue involuntary commitment after a defendant has been found not guilty by reason of insanity under section 916.15, it has departed from the essential requirements of law.

Conclusion

For the foregoing reasons, the appeal is treated as a petition for writ of certiorari, the petition is GRANTED, the order continuing commitment is QUASHED, and the cause is REMANDED for further proceedings. We express no opinion as to whether competent, substantial evidence supports the petitioner’s continued commitment.

WOLF, POLSTON, and THOMAS, JJ., concur.

      . In 2006 the section was renumbered as 985.19 by Chapter 2006-120, § 30, Laws of Florida. That statute lays out the findings required to involuntarily commit a child found to be incompetent.


text:
    Steven Alan HOO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-575.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Steven Alan Hoo appeals an order civilly committing him as a sexually violent predator pursuant to the Jimmy Ryce Act. § 394.10, Fla. Stat. (2004). The single issue presented is whether the trial court reversibly erred by allowing the victim’s mother to testify, over a defense objection, that the victim of the predicate sexually violent offense continued to suffer medical and psychological problems some seventeen years after the victim was raped by the appellant. Finding no abuse of discretion by the trial court in overruling the objection, we affirm the unanimous jury verdict and judgment for commitment.

In 1998, Hoo pled guilty to the rape of a twenty-one month-old baby girl. The 2005 jury trial to determine whether Hoo was a sexually violent predator turned, therefore, on whether he suffered from “a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(b), Fla. Stat. (2004). The State offered the testimony of two expert witnesses with extensive ere-dentials in psychology, counseling, and the evaluation and treatment of sex offenders. Each opined that Hoo suffers from sexual sadism, alcohol and drug abuse, and antisocial personality disorders; has repeatedly refused treatment; and is likely to engage in further sexually violent acts if not committed. Hoo presented opposing experts who testified that he was at low risk for reoffending and should not be committed.

After extensive colloquy, the trial court limited the testimony of the victim’s mother regarding her daughter’s present condition to two areas: whether the victim continues to suffer from medical problems as a result of the rape, and whether she continues to suffer from psychological problems as a result of the rape. The mother answered affirmatively to each of those questions.

Hoo argues that these questions and answers were not relevant and that the trial court reversibly erred in overruling the objection to that testimony. We review rulings on relevance objections for an abuse of discretion. Ortegas-Mantilla v. State, 898 So.2d 1164, 1169 (Fla. 3d DCA 2005).

The mother’s testimony on these points pertained to two issues germane to the diagnosis of sexual sadism: first, the severity of the injuries imposed (injuries far more extensive than digital or penile penetration- — including multiple lacerations, a bloody nose, and bruises to the child’s ear and ear canal); and second, as a foundation for questions (which might have been, but ultimately were not, addressed to later witnesses) regarding Hoo’s remorsefulness. The trial court’s limited admission of testimony by the victim’s mother regarding her daughter’s continued medical and psychological problems did not, considered in light of the diagnostic considerations addressed by the expert witnesses, constitute an abuse of discretion.

We also address Hoo’s argument that the mother’s testimony regarding the victim’s current condition was so “emotionally charged” that the State cannot meet its burden to demonstrate that the trial court’s error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Had we found error in the admission of the limited testimony by the mother on the victim’s condition (which we have not), we would find the error harmless beyond a reasonable doubt in the context of this case. That testimony is only a part of one page in a trial transcript comprising over 1300 pages, and the inclusion of those questions and answers could not have affected the outcome. See Ortegas-Mantilla, 898 So.2d at 1167. Even the cold appellate record discloses that the trial was “emotionally charged” throughout. A detective’s testimony, the expert witness testimony offered by both sides, and all of the other evidence presented to the jury is shocking and prejudicial by its very nature — not the few questions and answers challenged here.

Affirmed.


author: PALMER, C.J.

text:
    Faith O. HORNING-KEATING, Appellant/Cross-Appellee, v. EMPLOYERS INSURANCE OF WAUSAU, etc., et al.
    Nos. 5D05-3903, 5D06-184, 5D06-314.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    Rehearing Denied Dec. 3, 2007.

      Wayne Johnson, of DeCiccio & Johnson, Winter Park, for Appellant/Cross-Appel-lee.
    Nina K. Brown and Antonio D. Morin of Akerman Senterfitt, Miami, for Appel-lee/Cross-Appellant Employers Insurance of Wausau.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellees/Cross-Appellants Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A.
    Robert E. Mansbach, Jr., E. Ginnette Childs of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellees/Cross-Appel-lants Mark Spangler, P.A., Spangler, Mace & Zinaich, P.A., and Mark Spangler.
   PALMER, C.J.

Faith O. Horning-Keating (Keating) appeals the final summary judgment entered by the trial court in favor of Mark Span-gler (Spangler), Employer’s Insurance of Wausau (Wausau), and the law firm of Rissman, Weisberg, Barrett, Hurt, Donahue and McLain, P.A. (Rissman). Determining that there are material issues of fact in dispute as to one count of Keating’s complaint, we reverse in part.

The matters at issue in this case have a long history, beginning in 1991, when Keating’s client, Barney Dreggors, filed a claim for workers’ compensation benefits against his employer’s insurer, Wausau. At the hearing regarding Dreggors’ entitlement to receive benefits, Keating represented Dreggors. Spangler, an employee of the Rissman firm, represented Wausau.

Upon review of the evidence presented, the judge of compensation claims (JCC) found in favor of Dreggors and awarded him, among other things, attendant care benefits. The JCC based the benefits award upon the testimony of doctors who stated that Dreggors needed 24-hour supervision because of memory loss and cognitive and neurological deficits resulting from his head injury.

Of importance to this appeal, the workers’ compensation award included reimbursement to Dreggors for 12 hours a day of family attendant care and an additional 12 hours a day of non-family attendant care. The order indicated that Kerry Dreggors (Barney Dreggors’ wife) had hired Louise Rothstein as the non-family attendant. However, the order awarding attendant care benefits did not mention that Rothstein was specifically entitled to be paid for the care. Instead, the order stated generally that attendant care benefits could be paid according to a certain calculation. Also, the JCC noted, in correspondence with the parties, that Spangler and Wausau hid behind “a wall of willful ignorance” regarding Wausau’s refusal to pay attendant care benefits to Dreggors. The JCC also characterized Spangler’s conduct in handling the case as reprehensible, insufficient, and shameful. Wausau appealed the JCC’s decision to the First District Court of Appeal, which affirmed the JCC’s decision.

The instant litigation began when Keat-ing filed a complaint against Rothstein, Wausau, Rissman, and Spangler. The complaint set forth causes of action for invasion of privacy and violation of Florida’s Security of Communications Act. In her complaint, Keating set forth the following allegations.

First, Keating’s complaint alleged that, upon receipt of the decision from the First District Court of Appeal, Spangler made a decision to have Wausau issue a check to Rothstein for non-family attendant care benefits in an attempt to entrap the Dreg-gors and/or Keating because he believed they were guilty of committing insurance fraud. In furtherance of that plan, Span-gler directed Wausau to issue a check to Rothstein in care of Keating for the sum of $51,900. Since Rothstein was no longer living with the Dreggors, Spangler hired a private investigator, Joel Smith, to find Rothstein. When Smith found Rothstein, he showed her a copy of the Wausau check and told her that if she cashed the check and had not provided any attendant care to Barney Dreggors, she would be guilty of committing insurance fraud. When Rothstein became hysterical in response to that information, Smith advised her to call Spangler. Spangler directed Rothstein to come to his office to give a sworn statement that she did not provide attendant care for Dreggors. After Rothstein provided her statement, Spangler notified the Florida Department of Insurance, Division of Insurance Fraud, that the Dreggors and Keating were engaged in insurance fraud.

The eomplaint further alleged that, subsequently, the Wausau check for $51,900 in attendant care benefits was sent to Keat-ing, who notified the Dreggors that Wau-sau had issued an attendant care benefit check payable to Rothstein for the time she lived with the Dreggors. The Dreg-gors met with Rothstein at least two times to confer about the check and they advised Rothstein to meet with Keating to discuss the issue. Rothstein secretly tape-recorded one of her meetings with the Dreggors.

Before meeting with Keating, Rothstein met with Spangler. During her meeting with Spangler, Rothstein requested a “get out of jail free” letter which could be used in the event she later signed the check for attendant care benefits. Spangler provided Rothstein with a letter stating that she would not be prosecuted if she signed the check during her meeting with Keating. Rothstein told Spangler she intended to secretly tape record her meeting with Keating. Rothstein then met with Keating and secretly tape-recorded the meeting, but did not endorse the check (nor was it ever cashed). After Rothstein left her meeting with Keating, she met with Span-gler, who listened to the tape recording of the meeting. Spangler then again contacted the Division of Insurance Fraud.

By that time, Agent David Locker had been assigned to the case. Spangler and Rothstein went to Locker’s office to play the tape of Rothstein’s meeting with Keat-ing for him. Locker took the case to the Office of the Statewide Prosecutor. Span-gler also contacted Channel 9 News alleging that the Dreggors and Keating had fraudulently obtained workers’ compensation benefits and were being charged by the Office of Statewide Prosecutor. After the prosecutor completed his investigation, the criminal case proceeded against Kerry Dreggors only. At the conclusion of the trial, the jury acquitted Kerry Dreggors on all charges.

In asserting claims for invasion of privacy and for violation of Florida’s Security of Communications Act, Keating’s complaint cited to Rothstein’s act of secretly tape recording her meeting in Keating’s office.

Spangler, Wausau and Rissman all filed answers to Keating’s complaint generally denying liability. Thereafter, following discovery, Rissman filed a motion for summary judgment claiming that judgment should be entered in its favor on Keating’s section 934.03 claim because Spangler had no duty to prevent Rothstein from committing the criminal act of tape recording the conversation in Keating’s office. Additionally, Rissman argued that judgment should be entered in its favor on Keating’s invasion of privacy claim because Keating had no expectation of privacy in her business office which Rothstein was invited into with Keating’s knowledge and consent.

Spangler filed a separate motion seeking summary judgment claiming: (1) the undisputed facts demonstrated that he did not direct, participate in, or procure Roth-stein to tape record the meeting at Keat-ing’s office; (2) Keating’s invasion of privacy claim was barred by the statute of limitations; (3) he was immune from liability under section 440.105 of the Florida Statutes for reporting evidence of suspected insurance fraud; (4) he had a good faith belief under section 934.10(2) of the Florida Statutes that the tape recording was permitted by law; (5) he had no duty to prevent a third person from committing an allegedly criminal act or to warn the alleged victim of the act; and, (6) Keating did not have a legitimate expectation of privacy regarding persons in her business office with her knowledge and consent.

Wausau also filed a motion seeking summary judgment claiming that the undisputed material facts demonstrated that Wausau had no liability under Florida’s Security of Communications Act or for common law invasion of privacy as a result of the secret tape recordings made by Rothstein of the meeting in Keating’s office because: (1) it could not be held responsible for Spangler’s actions in this matter; (2) Spangler had no duty to prevent Rothstein from tape recording Keat-ing’s conversation; (3) Keating could not sustain a claim for violation of the Security of Communications Act or invasion of privacy when there was no objectively reasonable expectation of privacy in a business office under Florida law; and, (4) Keating’s claim for invasion of privacy was barred by the statute of limitations.

After conducting various hearings, the trial court entered a written order fully granting the motions for final summary judgment filed by Spangler, Rissman and Wausau. The trial court found as follows regarding Keating’s claims:

Count I: Invasion of privacy
The statute of limitations barred Keating’s claims for invasion of privacy-
Count II: Security of Communications Act
A. Intercepting Communications Spangler did not procure Rothstein to intercept communications because Spangler did not actively encourage or instruct Rothstein to record the conversations or how to record the conversations. Rothstein’s deposition confirmed that it was her idea to record the conversations and she was not coerced into the situation. Further, the equipment used to record the conversations belonged to Rothstein, as well as the tapes, which she maintained control of until a subpoena removed them from her possession. Spangler merely listened to the tapes with Rothstein, he did not copy or transcribe them.
B. Disclosing Intercepted Communications
Spangler could not have procured Rothstein for the purpose of disclosing illegal tapes to the Department of Insurance because Spangler disclosed the involvement of Rothstein to the fraud investigator, Locker, on April 11, 1997, which was prior to the creation of the tapes. Further, even if Spangler had informed Locker of the existence of the tapes, there was no evidence showing that Spangler knowingly disclosed to Locker the contents of the tapes.

Count III: Immunity under sections 440.105 and 440.1051 of the Florida Statutes

Spangler was immune from liability because even if he disclosed the existence of the tape to the Division of Insurance Fraud, this conduct would be protected under section 440.105(1)(b) because it was in furtherance of the reporting requirement of the statute. Because the claims against Wausau rest on Spangler’s actions and Spangler would be immune for reporting information, Wausau would also be immune from liability.
Further, there was no evidence that Spangler acted in bad faith in making a report to the Department of Insurance.

Subsequently, the trial court issued a final summary judgment in favor of all defendants except Rothstein on all of Keating’s claims.

Keating challenges the trial court’s final summary judgment, claiming the record contains genuine issues of material fact which warrant the case being submitted to the jury.

On a motion for summary judgment, unless and until material facts at issue presented to the trial court are so crystallized, conclusive, and compelling as to leave nothing for the court’s determination but questions of law, those facts, as well as any defenses, must be submitted to jury for its resolution. Hastings v. Demming, 682 So.2d 1107 (Fla. 2d DCA 1996). The presumption of correctness generally applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence. Maynard v. Household Finance Corp. III, 861 So.2d 1204 (Fla. 2d DCA 2003).

Keating first argues that the trial court erred by ruling that her claims for invasion of privacy were barred by the statute of limitations. We disagree.

Keating filed her initial complaint on January 17, 2002, alleging that the invasion of her privacy specifically occurred on April 18, 1997, when Rothstein secretly tape recorded the meeting between herself, Keating, and the Dreggors. Applying the applicable four year statute of limitations, the limitation period expired in April 2001, months before Keating filed her complaint. See Haskins v. City of Ft. Lauderdale, 898 So.2d 1120 (Fla. 4th DCA 2005); Heekin v. CBS Broadcasting, Inc., 789 So.2d 355 (Fla. 2d DCA 2001). Notably, Keating failed to allege in her complaint that her privacy was invaded each time Spangler presented evidence of the taping to different individuals over the course of this case. Compare Baucom v. Haverty, 805 So.2d 959 (Fla. 2d DCA 2001).

Keating also argues that the trial court erred in entering summary judgment on her section 934.01 claim regarding the issue of whether Spangler procured Roth-stein’s illegal taping. We disagree. The undisputed evidence shows that Rothstein made the decision unilaterally to record her meeting with Keating. As a matter of law, the fact that Spangler did not stop Rothstein from taping the conversation does not constitute procurement of the taping.

Keating further argues that the trial court erred in granting summary judgment on the issue of whether Spangler improperly disclosed or used the contents of Rothstein’s illegally obtained tapes. We agree.

Section 934.03(1)(c) and (d) of the Florida Statutes (1995), sets forth criminal penalties for any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication.” The statute further provides criminal penalties for any person who “intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.” See § 934.03(1)(c) & (d), Fla. Stat. (1995).

The evidence of record reveals that a question of material fact exists as to whether Spangler disclosed or used Roth-stein’s tapes such that summary judgment should not have been granted on this issue. Specifically, a reasonable jury could conclude that Spangler disclosed or used the tapes based on the following facts: (1) Spangler played the tape that Rothstein made of the meeting and attempted to copy/transcribe it; (2) Spangler took Roth-stein to a meeting with Locker to play the tape; and, (3) the tape was played in his presence for Locker, who testified that the tape played a role in filing a charging affidavit against Keating.

Keating next argues that the trial court erred in ruling that Spangler was entitled to an immunity defense for reporting workers’ compensation fraud. We again agree.

Section 440.105(1) of the Florida Statutes (1995) provides as follows:

440.105. Prohibited activities; reports; penalties; limitations
(l)(a) Any insurance carrier, any individual self-insured, any commercial or group self-insurance fund, any professional practitioner licensed or regulated by the Department of Health, except as otherwise provided by law, any medical review committee as defined in s. 766.101, any private medical review committee, and any insurer, agent, or other person licensed under the insurance code, or any employee thereof, having knowledge or who believes that a fraudulent act or any other act or practice which, upon conviction, constitutes a felony or misdemeanor under this chapter is being or has been committed shall send to the Division of Insurance Fraud, Bureau of Workers’ Compensation Fraud, a report or information pertinent to such knowledge or belief and such additional information relative thereto as the bureau may require....
(b) In the absence of fraud or bad faith, a person is not subject to civil liability for libel, slander, or any other relevant tort by virtue of filing reports, without malice, or furnishing other information, without malice, required by this section or required by the bureau, and no civil cause of action of any nature shall arise against such person....

§ 440.105(1), Fla. Stat. (1995)(emphasis added).

The trial court noted that Spangler was protected from civil liability provided that his reports to the Department of Insurance were made in good faith. The trial court then concluded that Spangler’s reports to the Department of Insurance were not made in bad faith because Rothstein informed Spangler that she had not provided attendant care for Barney Dreggors, and Kerry Dreggors had testified at the compensation claim hearing that Rothstein had provided such care. However, disputed issues of material fact exist as to whether Spangler acted in good faith given the following facts in the record: (1) Spangler instigated the investigation; (2) Spangler directed Wausau to issue a check for attendant care benefits for Rothstein without anyone requesting such a payment; (8) Spangler sent an investigator to find Roth-stein, show her the check, inform her that she would be guilty of insurance fraud if she signed the check, and frighten her into cooperating with his plan; (4) Spangler gave Rothstein a letter indicating that she would not be prosecuted if she signed the benefit check while at Keating’s office; and, (5) Spangler took Rothstein to the meeting with Locker to play the illegal tape (which played a role in the filing of the charging affidavit).

As for her claims against Wausau under Florida’s Security of Communications Act, Keating argues that material issues of fact exist as to whether Spangler was acting as an agent for Wausau in an attempt to prosecute Keating for insurance fraud. Wausau admits that the trial court did not address the question of whether Wausau could be held vicariously liable for Spangler’s acts regarding Rothstein’s taping of the conversation in Keating’s office. Nevertheless, Wausau argues that it cannot be held vicariously liable for Spangler’s actions and summary judgment for Wau-sau should be affirmed.

Review of the record reveals that issues of fact regarding whether Spangler was acting as Wausau’s agent exist. The following evidence supports Keating’s claim of liability against Wausau:

Spangler’s deposition of March 22, 2000:

Spangler believed, in his role as an attorney for Wausau, that Wausau’s position was that Dreggors did not need attendant care and was never actually provided attendant care.

Investigator Joel Smith’s deposition:

Smith stated that he was going to bill Wausau for his time going to the deposition.

Spangler’s deposition of May 7, 2004:

Spangler stated that he was acting as an attorney for Wausau when he reported the fraud to Statewide Prosecutor Robert Finkbeiner. He also stated that the first time he made a written formal request for the Department of Insurance to investigate the Dreggors’ case, he was acting on behalf of Wausau. Wausau was copied and billed for all of the letters that Spangler wrote to the Fraud Division. Spangler admitted that he wrote to Finkbeiner requesting that the Fraud Division open up an investigation on this matter. Spangler admitted that he was acting as a representative of Wausau Insurance. Spangler copied Talmadge at Wausau with this letter. Spangler requested that the statewide prosecutor, Finkbeiner, file charges against Barney and Kerry Dreggors. Spangler told Finkbeiner that it was extremely important to Wausau to have the charges filed because they were seeking to have Judge Hoch’s (the JCC) original award letter overturned. Span-gler stated that he kept Wausau informed of the developments in the case as it proceeded. Spangler admitted that he billed Wausau for all his appearances in the criminal case against Kerry Dreg-gors and in several other spin-off cases related to the Dreggors.

Spangler’s deposition of May 9, 2005:

Spangler stated that Wausau authorized him to conduct surveillance of Rothstein and Keating on April 10, 15, and 18 of 1997.

Finkbeiner’s deposition:

Finkbeiner testified that Spangler, as an agent of Wausau, voluntarily provided him with evidence for the prosecution. Finkbeiner stated that Spangler told him that Wausau viewed this as an important case and would provide any and all cooperation and support (investigatory, financial, or otherwise) to assist in the prosecution. Finkbeiner stated that Wausau may have paid to have the tapes electronically enhanced by NASA, but he wasn’t sure. Wausau paid for an expert physician to testify at Kerry Dreggor’s trial.

Additionally, Spangler wrote the following letter to Carl Talmadge, the Wausau insurance adjuster, informing Talmadge that he needed to issue a second check to Keating:

[Keating] is returning the check previously issued for $51,900 and she is requesting another check made payable to the claimant and her for the attendant care provider by non-family members. I believe we should go ahead and issue a replacement check in the same amount made payable to the claimant and claimant’s attorney that she will be responsible for directly paying the providers. If claimant’s attorney deposits these funds, I believe it is very probable that this would be a criminal act in furtherance of insurance fraud when she had actual knowledge that Ms. Rothstein did not provide any attendant care. Please contact me upon receipt of this letter so we may discuss our strategy in this very important case.

Based on the evidence in the record, there is a question of fact regarding what the scope of Spangler’s authority was regarding his investigation of this matter. See M.S. v. Nova Southeastern University, Inc., 881 So.2d 614 (Fla. 4th DCA 2004)(holding agency status is a question of fact, except in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts); Sears Roebuck and Co. v. Williams, 877 So.2d 5 (Fla. 3d DCA 2004)(holding the question of agency and/or apparent agency is generally a question of fact which must be determined by a jury).

Similarly, Keating argues that the trial court erred in entering summary judgment in favor of Rissman on her claims that Rissman is liable under Florida’s Security of Communications Act for Spangler’s actions under the theory of res-pondeant superior up until the time he left Rissman’s employment in November of 1997. Rissman ignores this argument on appeal and, instead, answers that Rissman is not liable because Keating cannot prove that Spangler procured Rothstein to tape the meeting. We conclude that, like the question of whether Spangler was acting as an agent of Wausau, the question of whether Spangler was acting within the scope of his employment with Rissman when he instigated the investigation against Keating and the Dreggors is a question for a jury to decide. See Canaveras v. Continental Group, Ltd., 896 So.2d 855 (Fla. 3d DCA 2005)(holding where there is conflicting evidence on the issue of whether an employee is acting within the scope of employment, a jury question is presented).

Based upon the reversal set forth herein, we reverse the cost judgment entered against Keating on behalf of the defendants. In addition, the cross-appeal filed by Wausau is rendered moot.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and LAWSON, JJ., concur.

      . See § 934.01 et seq., Fla. Stat. (1995).

      . After the meeting, Keating wrote a letter to Spangler requesting that the check be reissued in the Dreggors’ name. Wausau reissued the check but neither Keating nor the Dreggors ever cashed it. Eventually, Keating sent the check back to Spangler telling him that she could not accept a check for attendant care services because the Dreggors had not kept good records.

      . Section 440.105 of the Florida Statutes (1995) provides immunity for individuals who, in good faith, report insurance fraud.

      . With regard to the appellees’ argument that entry of summary judgment on Keating’s invasion of privacy claim was warranted on the theory that Keating possessed no expectation of privacy in her office as to persons invited therein, the case law is to the contrary. In Guilder v. State, 899 So.2d 412 (Fla. 4th DCA 2005), the court held that tape recording of a face-to-face conversation in which one is participating, without prior consent from all participants, constitutes an unlawful interception of an oral communication. Similarly, in Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla. 1977), the supreme court expressed its belief that recording a conversation in which one is a participant constituted intercepting a conversation and noted that there was a policy decision by the Florida legislature to allow each party to a conversation to “have an expectation of privacy from interception by another party to the conversation.” Id. at 727. In State v. Tsavaris, 394 So.2d 418 (Fla. 1981), receded from on other grounds, Dean v. State, 478 So.2d 38 (Fla.1985), the supreme court answered in the affirmative the following certified question: "Does the recording of a conversation by one of the participants constitute the interception of a wire or oral communication within the meaning of Chapter 934, Florida Statutes (1979)?”


text:
    A.B., Mother, In the Interest of: J.B., C.B., and L.B., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-2069.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Walter Flinn of Marsee & Flinn, Lake City, and Angela M. Ball, Perry, for Appellant.
    Joye M. Clayton, Department of Children and Families, Lake City, Lucy Goddard-Teel, Department of Children and Families, Gainesville, Susan W. Fox of Fox & Loquasto, Tampa, Wendy Loquasto of Fox & Loquasto, Tallahassee, and Sandra H. Peterson, Guardian Ad Litem Program, Lake City, for Appellee.
   PER CURIAM.

A.B., the mother of three children, appeals a final order terminating her parental rights. The finding of the trial court’s order terminating A.B.’s parental rights is supported by competent substantial evidence and termination is warranted under section 39.806(1)(c) and (e), Florida Statutes (2006), providing a basis for termination where the mother’s conduct threatens the well-being of her children irrespective of the provision of services by the Department of Children and Families and where she fails to comply with the case plan offered to her by the Department. The trial court erred, however, in terminating A.B.’s parental rights based on abandonment as the competent substantial evidence does not support termination based upon abandonment under section 39.806(1)(b). Accordingly, we affirm the termination of A.B.’s parental rights under section 39.806(1)(c) and (e), but reverse that portion of the order terminating her parental rights on the ground that she abandoned her children under section 39.806(1)(b) and remand for this finding to be stricken from the order. See J.C. v. Dep’t of Children and Families, 959 So.2d 431 (Fla. 4th DCA 2007).

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

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


text:
    Daniel Albert FISHER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3651.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 17, 2007.
    David Albert Fisher, Jr., Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

This appeal arises from the denial of Appellant’s motion pursuant to rule 3.800(a), Florida Rule of Criminal Procedure in which he makes two claims. First, Appellant alleged that errors were made in calculating his scoresheet which equated to a lower minimum possible sentence. The circuit court did not err in summarily denying this claim as Appellant entered into a negotiated plea agreement and the sentence imposed was not illegal. See Trigg v. State, 900 So.2d 674 (Fla. 4th DCA 2005).

Second, he alleged that his counsel was ineffective in representing him in the plea negotiation. The circuit court did not err in summarily denying Appellant’s contention. This issue is more properly raised under Florida Rule of Criminal Procedure 3.850. Therefore, the issue of ineffective assistance of counsel is affirmed without prejudice to Appellant filing a motion that includes the oath required by Florida Rule of Criminal Procedure 3.850(c) within the time remaining under rule 3.850(b).

Affirmed.

WARNER, STEVENSON and HAZOURI, JJ., concur.


text:
    James DISPOTO and Elaine Dispoto, Appellants, v. MARION COUNTY, Florida, Appellee.
    No. 5D06-3197.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.

      Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Minneola, for Appellant.
    Thomas L. Wright, County Attorney, and Thomas D. MacNamara, Chief Assistant County Attorney, Ocala, for Appellee.
   EVANDER, J.

James and Elaine Dispoto appeal from a temporary injunction order requiring them to (1) remove a 130-foot high radio broadcast tower from their residential property, and (2) cease operation of a radio station from that property. We affirm.

Marion County’s Land Development Code prohibits the construction of a commercial radio broadcast tower in excess of fifty feet without a special use permit. The Code also prohibits the operation of a radio station from residentially-zoned property without a special use permit. In September, 2003, the Dispotos illegally constructed the 130-foot tower without a building permit. The Dispotos then began operating a low power radio station from their residence without first obtaining a special use permit. After the County received complaints from residents in the Dispotos’ subdivision, the County notified the Dispotos of the violations and specified necessary corrections. These corrections were never made.

In November, 2004, the County granted the Dispotos a special use permit to operate a radio station from the residence conditioned upon removal of the 130-foot tower. The Dispotos would be permitted to use an approved off-site broadcast tower located outside their subdivision. When the Dispotos refused to remove their tower, the special use permit to operate the radio station was revoked. The Dispotos, nonetheless, continued to operate a radio station from their residence.

The County then brought the underlying action, seeking to enjoin the Dispotos from operating a radio station from their property and requiring the removal of the 130-foot tower. Shortly after the lawsuit was filed, the Dispotos applied for a special use permit for a 100-foot tower, claiming it would be used for amateur radio (“ham radio”) purposes. The County refused to accept the application because of the Dis-potos’ non-compliance with it’s building and zoning codes.

A trial court’s denial or grant of a temporary injunction is subject to an abuse of discretion standard of review. DiChristopher v. Bd. County Com’rs, 908 So.2d 492, 495 (Fla. 5th DCA 2005). To obtain a temporary injunction, the moving party must establish that: (1) irreparable injury will result if the injunction is not granted; (2) there is no adequate remedy at law; (3) it has a clear legal right to the requested relief; and (4) the public will be served by the temporary injunction. Id. The Dispotos contend that the County failed to satisfy this four-prong test. We disagree.

The County satisfied the first two prongs of the test for a temporary injunction because “[w]here the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed.” Metro. Dade County v. O’Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995). The County satisfied the third prong — that it had a clear legal right to relief — because the Dispotos were engaged in continuing violations of the County’s building and zoning codes. Ware v. Polk County, 918 So.2d 977, 980 (Fla. 2d DCA 2005). As to the fourth prong, the trial court could properly find that the public had an interest in seeing that the County’s ordinances and permit requirements were observed. Id. Accordingly, we find the trial court did not abuse its discretion in granting the County’s request for a temporary injunction.

We also reject the Dispotos’ contention that the County violated an FCC regulation requiring state and local governments to make reasonable accommodations for antenna structures related to amateur service communications. See 47 C.F.R. § 97.15 (1985); FCC declaratory ruling, Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952, 50 Fed.Reg. 38,813 (1985). First, the evidence supported the trial court’s finding that the Dispotos were using the tower for commercial radio purposes. Second, the FCC has determined that local governments do not have to make reasonable accommodations for “ham radio” antenna structures where the structures are prohibited by residential subdivision covenants, conditions and restrictions. See In re Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, 17 F.C.C.R. 19,408 (2002) (reasoning that “[pjurchasers or lessees are free to choose whether to reside where such restrictions on antennas are in effect or settle elsewhere.”). Here, the County produced evidence that the subdivision restrictions in the Dispotos’ neighborhood prohibited the construction of television or radio antenna that extended more than 10 feet above the building it served.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . We note that the FCC, in a declaratory ruling, has declined to delineate the limitations of local zoning and other local and state regulatory authority over federally licensed radio facilities; refused to specify any particular height limitation below which a local government may not regulate; and refused to suggest the precise language that must be contained in local ordinances, variances, special exceptions. The ruling requires state and local governments to afford "appropriate” recognition to federal interests and avoid "unnecessary” conflicts with federal policy. In re Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985).


text:
    Grady L. BLACKMON, Appellant, v. Carolyn J. BLACKMON, Appellee.
    No. 1D07-0438.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.

      Neibra Washington Collins, Tallahassee, for Appellant.
    Christine C. Hardin, Pensacola, for Ap-pellee.
   PER CURIAM.

Appellant, Grady L. Blackmon (former husband), appeals the trial court’s Final Judgment of Dissolution of Marriage (Final Judgment) on several grounds. We reverse the portions of the Final Judgment regarding alimony, the determination of former husband’s annual income, and partition of the marital home, and remand for further proceedings consistent with this opinion. In all other respects, we affirm the Final Judgment.

The parties were married on May 17, 1989. The parties have one minor child. Appellee, Carolyn J. Blackmon (former wife), filed a petition for dissolution of marriage on August 23, 2004. Dissolution of marriage proceedings were held on November 13, 2006. Former wife petitioned the court to find former husband had $2000.00 per month in additional income from side masonry work. Evidence was presented that former husband earned $2174.00 for masonry work on October 24, 1998. The trial court entered a Final Judgment of Dissolution of Marriage on December 20, 2006. The court stated the following in its order:

The Husband has supplemental income presented during litigation. While varying amounts were presented for different years, it is clear to the Court that based upon the Husband’s past earning record, present physical condition, and availability to work, whether limited or unpredictable, the Husband can earn in excess of $2000.00 per year doing side masonry work. A fair average per year is more realistically $6000.00....

The court ordered former husband to pay $1000.00 per month in alimony until the parties’ minor child reached majority, and at that time, the payments were to increase to $1200.00 per month. The court based its determination of alimony on former wife’s inability to work and former husband’s ability to pay. The trial court granted former wife exclusive use and possession of the marital home until the parties’ minor child reached majority. Within sixty days of the child’s emancipation, former wife was to refinance the marital home and remove former husband’s name from the mortgage, or sell the marital home and pay former husband his equity. If former wife needed additional time to refinance or sell the home, the court would extend the deadline without a hearing for an additional ninety days. If, after the additional ninety days, former wife was still unable to refinance or sell the home, she would be required to obtain former husband’s consent and approval in writing, or seek permission from the court for an extension of time.

Former husband timely appealed the trial court’s Final Judgment. Former husband argues, inter alia, that the trial court erred in (1) ordering an automatic increase in alimony upon the termination of former husband’s child support obligations, (2) imputing $6000.00 to former husband’s annual income for side masonry work, and (3) failing to set a final deadline for partition of the marital home.

With regard to the lower court’s determination of alimony, “[jjudgments providing for automatic changes in alimony and support payments upon the occurrence of future events have not usually found favor in Florida.” Kangas v. Kangas, 420 So.2d 115, 116 (Fla. 2d DCA 1982) (citations omitted). “[TJhere is an adequate procedure for modification when changes in the circumstances of the parties occur.” Id. In Swanston v. Swanston, 746 So.2d 566, 568 (Fla. 1st DCA 1999), the court held that the lower court “reversibly erred by including in the final judgment a provision automatically adjusting the amount of alimony upon termination of his child support obligation without making specific factual findings of extenuating circumstances that would support the automatic increase in alimony after the child reaches majority.” See also, Davis v. Davis, 751 So.2d 1286, 1286 (Fla. 5th DCA 2000).

In this case, as in Swanston, the trial court provided for an automatic increase in alimony upon termination of child support payments without making a specific finding of circumstances justifying the increase. Therefore, we reverse the portion of the Final Judgment regarding the automatic increase of former husband’s alimony obligations upon the termination of his child support obligations, and remand for the trial court to provide factual findings justifying an automatic increase in alimony, or to remove the language ordering an automatic increase upon the emancipation of the parties’ minor child.

Former husband also correctly asserts that the trial court provided an insufficient factual basis to justify imputation of $6000.00 annually to former husband’s income based on side masonry work. Section 61.30(2)(b), Florida Statutes, provides that income shall be imputed to an underemployed parent when such underemployment is found to be voluntary. If the court finds voluntary underemployment, “the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community.” § 61.30(2)(b), Fla. Stat. “In determining actual income for purposes of awarding alimony, the trial court must set forth factual findings regarding a spouse’s probable and potential level of earnings, the source of actual and imputed income, and any adjustment to income.” Smith v. Smith, 737 So.2d 641, 643 (Fla. 1st DCA 1999). For example, in Jobe v. Jobe, 934 So.2d 576, 579 (Fla. 1st DCA 2006), this Court remanded because there was nothing in the trial court’s order explaining why it calculated the former husband’s income at the high end of his average yearly salary.

Courts properly impute income from a second job or secondary source where record evidence clearly reveals that such secondary income has been earned on a recurrent or steady basis. Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 180 (Fla. 3d DCA 1995). In Mitzenmacher, the court found that the former husband was not voluntarily underemployed so as to permit imputation of additional income where there was no evidence that his supplemental employment “was anything other than occasional or sporadic.” Id. Likewise, in Misdraji v. Misdraji, 702 So.2d 1292, 1294 (Fla. 3d DCA 1997), the court found that the lower court had abused its discretion in finding that the former husband could earn a living, as there was no competent substantial evidence that the former husband could earn income at seventy-two years of age sufficient to justify the disproportionate award of the marital home to former wife.

Here, the trial court did not make specific findings of fact as to why it imputed $6000.00 per year to former husband’s income. The court merely cited conclusor-ily former husband’s earning record, physical condition, and availability of work as its basis for imputing the additional income, as opposed to referencing evidence of steady additional income. Therefore, we reverse the portion of the trial court’s order determining the value of former husband’s income, and remand for the court to make specific factual findings justifying the imputation of income to former husband.

The trial court also erred when it failed to include a deadline by which former wife was required to effectuate a private sale of the marital home or purchase former husband’s equity. When a court orders property to be partitioned in a dissolution of marriage proceeding, “the judgment must fix some reasonable deadline for such arrangements to be completed.” Carlsen v. Carlsen, 346 So.2d 132, 133 (Fla. 2d DCA 1977); see also, Sullivan v. Sullivan, 363 So.2d 393, 395 (Fla. 2d DCA 1978) (holding that “if the court allows the parties to conclude a nonjudicial sale the judgment must fix a reasonable deadline by which the sale must take place”). A trial court “has jurisdiction to order a public sale if a private sale cannot be accomplished within a reasonable time.” Leatherwood v. Sandstrom, 583 So.2d 390, 392-93 (Fla. 4th DCA 1991) (reversing and remanding for the court to hear evidence as to how long would be a reasonable time to effectuate a sale at the stipulated price). The Leatherwood court also held that the trial court should reserve jurisdiction to effectuate a public sale should the parties’ attempts at a private sale fail. Id. at 393.

Here, the trial court did not set a specific deadline for the completion of a private sale or buyout of former husband’s equity in the marital home in its Final Judgment. The court ordered former wife to effectuate a private sale or buy out former husband’s equity through refinancing within sixty days after the emancipation of the parties’ minor child. In addition, the court provided that if former wife was unable to sell or refinance during that time period she would be granted a ninety-day extension without a hearing, and could possibly receive an additional extension of time with former husband’s written approval or a court order. The court never set forth an absolute deadline at which, had former wife failed to sell the home privately or refinance, the court would order a public sale. Therefore, we reverse the portion of the trial court’s Final Judgment which failed to set an absolute deadline for partition of the marital home, and remand for the trial court to provide a deadline by which private sale or refinancing must be completed, and to provide that if the deadline is not met, the home is to be sold through a public sale.

Accordingly, we reverse the portions of the trial court’s Final Judgment of Dissolution of Marriage regarding alimony, the determination of former husband’s annual income, and partition of the marital home, and remand for further proceedings consistent with this opinion. In all other respects, the trial court’s Final Judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

BARFIELD, DAVIS, and LEWIS, JJ., concur.