author: THOMPSON, J.

text:
    Jacob ZUREIKAT, Appellant, v. Alwad Al SHAIBANI, Appellee.
    No. 5D04-3697.
    District Court of Appeal of Florida, Fifth District.
    March 10, 2006.

      William N. Asma, of William N. Asma, P.A., Winter Garden, for Appellant.
    Scott W. Spradley, and Maureen A. Vi-tucci, of Gray Robinson, P.A., Orlando, for Appellee.
   THOMPSON, J.

Jacob Zureikat (“Zureikat”) appeals the trial court’s denial of his motion for rehearing, which followed an order that established an equitable lien for $130,000 on real property owned by Zureikat and his wife, Majeda Zureikat (“Majeda”). We affirm.

In August 1996, Zureikat represented to Alwad A1 Shaibani (“Shaibani”) that he was a licensed real estate agent and broker. Zureikat offered to assist Shaibani with the purchase of real property in Orange County, Florida. Shaibani loaned Zureikat $200,000 in September 1997. The $200,000 was to be used as a deposit for Shaibani’s purchase, for which Zureikat would receive a commission. No sale occurred, and Zureikat refused to return the money. Zureikat used the funds for his personal benefit and made false representations concerning his use of funds. During discovery before judgment, Zureikat testified that the $200,000 from Shaibani was used to pay off preexisting debt and the remainder was “lost in the stock market.”

In December 1999, Shaibani filed a complaint for counts on a promissory note and fraud in the inducement against Zureikat. He amended his complaint in 2001 to add a count for civil theft. The case was set for non-jury trial. On 27 September 2001, the court entered a consent judgment that granted Shaibani a $200,000 judgment for Count I and dismissed Counts II and III. Shaibani recorded the judgment with Orange County Public Records.

Shaibani moved for supplementary proceedings and impleader of third parties in May 2002. The motion was accompanied by a copy of the judgment and an affidavit that alleged the Sheriff held a valid and unsatisfied execution. The motion alleged that Zureikat transferred funds and assets to his wife, Majeda Zureikat (“Majeda”), and their children. Shaibani requested that the court: (1) order Zureikat to appear for examination; (2) implead Majeda and their children to plead their defenses and appear to show cause why they should not be ordered to apply their own assets to the judgment debt; and (3) order any property subject to execution be applied to the satisfaction of the judgment debt.

On 13 May 2002, the court entered an order for proceedings supplementary to execution that required Zureikat, Majeda, and their children to appear for examination of their real and personal property and incomes. Court minutes indicate that Zureikat and Majeda testified at the hearing, which was not transcribed.

In July 2003, Shaibani moved for supplementary proceedings to establish an equitable lien and to foreclose hen. Zureikat had repeated his claim during discovery in aid of execution that he lost Shaibani’s money in the stock market, and told Shai-bani to “call AOL” to get his money back. However, Shaibani discovered that Zurei-kat had a bank account he had not disclosed, into which he had deposited Shai-bani’s money, and from which he extracted funds to purchase and improve real property that became Zureikat’s homestead. Shaibani claimed that he was entitled to an equitable lien for those funds traced to the purchase and improvement of Zureikat’s real property.

On 15 July 2003, the court entered an order for supplementary proceedings to establish equitable lien and to foreclose lien, directing Zureikat to appear for hearing in September 2003. The court denied Shaibani’s motion on 4 November 2003, concluding that the consent judgment barred the establishment of an equitable lien.

Shaibani moved for rehearing on 13 November 2003, highlighting caselaw supporting the imposition of an equitable lien. On 1 June 2004, the court held a hearing on Shaibani’s motion for rehearing. Zurei-kat and Majeda were present. Each explicitly agreed to their counsel’s motion to withdraw. Majeda stated that she and Zureikat had been overseas and that neither they nor their anticipated replacement counsel were well prepared. Zurei-kat acknowledged that they had been served with notice of the hearing, but claimed they had only one day to prepare for the hearing. However, the hearing had been set two months in advance, and had been noticed in early May. Zureikat then argued that neither he nor Majeda had been served.

Shaibani’s counsel noted that a hearing had previously occurred on the equitable lien, but that the June 2004 hearing was set because Majeda had not been present. Shaibani had “needed Mrs. Zureikat here ... because we are talking about tenancy by the entirety. That was the sole reason that the Court adjourned the last hearing to enable her to be here.”

The court found that Shaibani demonstrated that $130,000 in the Zureikats’ homestead was derived from Zureikat’s fraudulent use of Shaibani’s money, and held that fraud was not protected by homestead. On 21 September 2004, the court granted the motion for rehearing and held that Shaibani had an equitable lien on Zureikat’s property for $130,000. Copies of the order were distributed to Zureikat and Majeda’s attorney.

Zureikat moved for rehearing, arguing that Majeda was not given an opportunity to respond in writing and that Shaibani was not entitled to equitable relief based on conduct that occurred over four years before the court’s order.

The court denied the motion for rehearing, and Zureikat timely appealed. Zureikat alleges that the proceeding supplemental was barred by the statute of limitations, that the equitable lien was barred by equitable estoppel and res judi-cata, and that Majeda was deprived of due process because she was not implead-ed. We disagree.

We have jurisdiction of the non-final post-judgment order, which imposes an equitable lien and determines with finality the Zureikats’ property rights in their homestead property, under rule 9.130(a)(4), Florida Rules of Appellate Procedure. See also Exceletech, Inc. v. Williams, 579 So.2d 850 (Fla. 5th DCA 1991) (en banc), approved by 597 So.2d 275 (Fla.1992); Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981); but see Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611, 612 (Fla. 1st DCA 1995) (holding that review must await entry of a final order in the third-party action); Gache’ v. First Union Nat’l Bank, 625 So.2d 86, 87 (Fla. 4th DCA 1993) (denying review of order to disclose financial information in post-judgment proceedings).

Zureikat argues that the imposition of the equitable lien on his real property in a proceeding supplementary was barred by the statute of limitations. He asserts that Shaibani had knowledge that Zureikat kept funds as early as 1997 and, therefore, the action is barred as an untimely action for fraud or untimely action for equitable lien. § 95.11(3)©, (k), Fla. Stat. (2004). Zureikat’s argument lacks merit.

Section 56.29, Florida Statutes (2004), described the procedure by which a person holding an unsatisfied execution could initiate proceedings supplementary to execution. Proceedings supplementary are post-judgment proceedings that permit a creditor to effectuate a judgment lien already existing; they are not independent causes of action. Burshan v. Nat’l Union Fire Ins. Co., 805 So.2d 835, 843 (Fla. 4th DCA 2001); see also Henry P. TRAwiCK, Jr., FLORIDA PRACTICE AND PROCEDURE § 27-9 (2006) (describing proceedings supplementary to execution). The judgment here became a lien when Shaibani recorded a certified copy of the judgment with Orange County Public Records. See § 55.10(1); Michael v. Valley Trucking Co., Inc., 832 So.2d 213, 215 (Fla. 4th DCA 2002); Burshan at 838. Because the certified copy was first recorded after 1 July 1994, the judgment is a lien in Orange County for ten years following the recording date. § 55.10(1). Although the judgment lien may be extended upon rerecording, it may not extend beyond 20 years from the date of the judgment’s entry. §§ 55.10(2), (3); 55.081; Michael, 832 So.2d at 217; Burshan, 805 So.2d at 839; Betaco, Inc. v. Countrywide Home Loans, Inc., 752 So.2d 696, 697 (Fla. 2d DCA 2000). Thus, even the passage of over six years will not prevent, by operation of statute of limitations, a judgment creditor from initiating proceedings supplementary. See Salina Mfg. Co. v. Diner’s Club, Inc., 382 So.2d 1309, 1310 (Fla. 3d DCA 1980).

Even if a statute of limitations applied, clear and convincing evidence showed that Zureikat concealed material facts with respect to his available assets and existing checking accounts. See Castro v. East Pass Enters., 881 So.2d 699, 700 (Fla. 1st DCA 2004) (noting that estop-pel elements of false representation or concealment of material facts must be shown by clear and convincing evidence). Zureikat would be equitably estopped from asserting the statute of limitations because any delay in Shaibani’s proceedings supplementary was directly attributable to Zureikat’s misconduct. See Major League Baseball v. Morsani, 790 So.2d 1071, 1076-77 (Fla.2001); Delco Oil, Inc. v. Pannu, 856 So.2d 1070, 1073 (Fla. 5th DCA 2003).

Zureikat next contends that the equitable lien should have been barred by equitable estoppel and res judicata because Shai-bani had initially filed a fraud claim and agreed to dismiss that claim. Zureikat fails to distinguish between his fraudulent conduct during supplementary proceedings and the fraudulent acquisition of Shaibani’s funds that led to Shaibani’s initial action.

We note that “[t]he court may enter any orders required to carry out the purpose of [section 56.29] to subject property or property rights of any defendant to execution.” § 56.29(9), Fla. Stat. (2004). Proceedings supplementary “are equitable in nature and should be liberally construed.” Ferguson v. State Exchange Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972). They enable speedy and direct proceedings in the same court in which the judgment was recovered to better afford to a judgment creditor the most complete relief possible in satisfying the judgment. Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994).

Res judicata does not apply. In the initial proceeding, Shaibani “did not, and was not required to, assert a cause of action based upon an equitable lien.” Whigham v. Muehl, 511 So.2d 717, 718 (Fla. 1st DCA 1987). None of Shaibani’s claims in the underlying action involved a showing that the money solicited from Shaibani was used to improve Zureikat’s real estate. See id. Thus, there was no identity of cause of action, which is one of the required elements of res judicata. Wilson v. County of Orange, 881 So.2d 625, 632 (Fla. 5th DCA 2004); Whigham, 511 So.2d at 718. Moreover, the question of Zureikat’s fraud was not actually litigated in the case in which the underlying judgment was rendered. See Wilson, 881 So.2d at 632.

Zureikat’s assertion of equitable estoppel is also specious. Restated, Shai-bani forever lost the right to litigate Zurei-kat’s fraudulent concealment of assets because Shaibani agreed to dismiss a fraud claim in exchange for entry of a $200,000 judgment; notwithstanding Zureikat’s misrepresentation about money lost in the stock market or his ownership interests, Shaibani “bargained away” his right to an equitable lien. We disagree with this assertion. On the contrary, Shaibani clearly established that “general considerations of right and equity” required imposition of an equitable lien on Zureikat’s property. See Pegram v. Pegram, 821 So.2d 1264, 1266 (Fla. 2d DCA 2002). The trial court’s finding that Shaibani demonstrated Zurei-kat’s fraud and misrepresentation is supported by the record. See id.; Troiano v. Troiano, 549 So.2d 1053, 1057 (Fla. 5th DCA 1989). It is well settled that trial courts may impose equitable liens in proceedings supplementary where there has been a showing of fraud, misrepresentation, or affirmative deception. See id. at 1057; Whigham, 511 So.2d at 718. In this case, the equitable lien afforded Shaibani the most complete relief possible in satisfying his judgment against Zureikat. Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994); see also Whigham, 511 So.2d at 718 (noting that equitable liens have been applied in several circumstances in supplementary proceedings).

Moreover, the equitable lien was properly awarded against homestead property because Shaibani established that proceeds from Zureikat’s fraudulent or reprehensible conduct were used to invest in, purchase, or improve the homestead. See Smith v. Smith, 761 So.2d 370, 372 (Fla. 5th DCA 2000); Dyer v. Beverly & Titile, P.A., 777 So.2d 1055, 1059 (Fla. 4th DCA 2001); Greenberg v. Fontaine, 618 So.2d 299, 301 (Fla. 2d DCA 1993); Whigham, 511 So.2d at 718; see also Havoco of Am., Ltd. v. Hill, 790 So.2d 1018 (Fla.2001) (discussing extensively the treatment of equitable liens on homestead property). More important, the Florida Supreme Court has held that, where funds obtained through one spouse’s fraud are used to invest in, purchase, or improve the homestead, an equitable lien may be established despite the other spouse’s innocence or ignorance of wrongdoing. Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So.2d 267, 270-71 (Fla.1993); In re Crum, 294 B.R. 402, 405 (Bankr.M.D.Fla.2003).

Zureikat argues on appeal that Majeda was never impleaded and never made a party to the proceedings. Also, he apparently takes issue with the court’s failure to comply with the procedure for examining the judgment creditor outlined in Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984). Finally, he contends that Majeda did not have an opportunity to respond in writing. The record belies these arguments.

Notably, Zureikat did not argue below that his wife had not been impleaded. Majeda was impleaded by the court’s order in May 2002. Moreover, the record shows that the June 2004 hearing on the motion to establish an equitable lien was scheduled for the sole purpose of securing Majeda’s attendance and participation. Cf. Varveris v. Alberto M. Carbonell, P.A., 773 So.2d 1275, 1276 (Fla. 3d DCA 2000) (reversing a judgment entered in supplementary proceedings where it was undisputed that the third party was never served).

Zureikat’s claim of error on the basis of Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984) is misplaced. This court receded from cases establishing a requirement to examine the judgment creditor in Exceletech, Inc. v. Williams, 579 So.2d 850 (Fla. 5th DCA 1991) (en banc), approved by 597 So.2d 275 (Fla.1992). Moreover, Zureikat cannot demonstrate that Majeda was deprived of due process merely because she did not file a written response. This is not a case in which the trial court expressly protected the third party from answering or participating. Cf Timothy Dunn Assocs., Inc. v. Seligman, 557 So.2d 207, 209 (Fla. 5th DCA 1990) (noting that the third parties were expressly told they were not parties). Majeda was impleaded, and elected not to file any written response before the hearing that occurred over two years later. The record supports the conclusion that Majeda received procedural due process, which required “(1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case.” Wieczoreck, 450 So.2d at 871, overruled on other grounds by Exceletech, 579 So.2d at 853. Fair notice of Shaibani’s allegations in seeking to collect on his judgment was afforded to Majeda, who was given the opportunity to present her case at a hearing before an impartial decision maker; she was entitled to no more. See Exceletech, 579 So.2d at 852-53.

Therefore, we conclude that Zureikat failed to establish that the trial court abused its discretion by denying his motion for rehearing, and the judgment of the trial court is

AFFIRMED.

PALMER and LAWSON, JJ., concur.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Fredrick L. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4402.
    District Court of Appeal of Florida, Second District.
    May 12, 2006.
   STRINGER, Judge.

Fredrick L. Wilson appeals the postcon-viction court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of the claims raised by Wilson in his motion. However, because the face of the record reveals that Wilson’s sentence is, in fact, illegal, we reverse and remand for resentencing.

In 1995, Wilson was convicted of escape, aggravated assault on a law enforcement officer, robbery with a deadly weapon, false imprisonment, and grand theft auto based on events that occurred in 1994. At sentencing, the trial court relied on a sentencing scoresheet that calculated the sentencing range as 181.2 to 302.1 months in prison. This scoresheet applied the law enforcement protection multiplier to Wilson’s offenses. The trial court sentenced Wilson to 300 months in prison on the escape, aggravated assault, and robbery convictions and to five years each on the false imprisonment and grand theft convictions.

Our review of the record shows that application of the law enforcement protection multiplier in Wilson’s case was improper. Further, without the multiplier, Wilson’s scoresheet would have provided a sentencing range of 123.45 to 205.75 months in prison. As the State concedes in this appeal, the record does not demonstrate that the trial court would have imposed the 300-month sentence under a corrected scoresheet. Accordingly, Wilson is entitled to be resentenced. See Mathews v. State, 907 So.2d 1291 (Fla. 2d DCA 2005) (holding the trial court is required to grant postconviction relief pursuant to rule 3.800(a) unless the record conclusively demonstrates that the defendant would have received the same sentence under a corrected scoresheet). Therefore, we reverse Wilson’s sentences for escape, aggravated assault on a law enforcement officer, and robbery with a deadly weapon and remand for resentencing under a corrected scoresheet.

Affirmed in part; reversed in part; and remanded with instructions.

NORTHCUTT and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    Joseph J. CABRAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5208.
    District Court of Appeal of Florida, First District.
    May 15, 2006.

      Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   PER CURIAM.

Joseph J. Cabral challenges the enhancement of his aggravated battery conviction to a first degree felony for use of a weapon during the commission of the offense. The elements of aggravated battery under section 784.045(l)(a), Florida Statutes (2003), include committing battery “[i]ntentionally or knowingly eaus[ing] great bodily harm, permanent disability or permanent disfigurement; or ... [using] a deadly weapon.” Here, the verdict returned by the jury included findings that appellant knowingly and intentionally caused great bodily harm, permanent disability and permanent disfigurement; that appellant used a weapon; and that appellant used a deadly weapon. In addition, the judgment of conviction describes the offense as “aggravated battery with great bodily harm and with a deadly weapon.” Thus, it cannot be said that appellant’s conviction for aggravated battery was not based on the use of a deadly weapon. Because it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible. Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003), and Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996). Accordingly, appellant’s life sentence is reversed, and the cause is remanded for resentencing of the offense as a second degree felony. The trial court’s finding that Cabral is subject to sentencing as a violent career criminal is not affected by this decision.

REVERSED and REMANDED for re-sentencing.

ERVIN, BARFIELD and VAN NORTWICK, JJ., concur.


author: WARNER, J.

text:
    STATE of Florida, Petitioner, v. Robert Lee SMILEY, Jr., Respondent.
    No. 4D06-479.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, West Palm Beach, for respondent.
   On Motion for Rehearing

WARNER, J.

We deny rehearing but grant respondent’s motion to certify the issue as one of great public importance.

DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE?

FARMER and KLEIN, JJ., concur.


author: LaROSE, Judge.

text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY, a foreign, for profit corporation, Appellant, v. Nancy BAILEY, by and through Rosemary M. BAILEY, as attorney in fact, Appellee.
    No. 2D05-929.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
    Rehearing Denied Aug. 7, 2006.

      Charles W. Pittman of Macfarlane Ferguson & McMullen, Tampa, for Appellant.
    Kimberly S. Mello and Craig P. Clendi-nen of A Bales Weinstein Professional Association, Tampa, for Appellee.
   LaROSE, Judge.

Liberty National Life Insurance Company (Liberty) appeals the trial court’s final order awarding attorneys’ fees and costs, totalling $60,933.50, to Nancy Bailey pursuant to section 627.428, Florida Statutes (2003). Liberty argues that it did not wrongfully deny insurance benefits to Ms. Bailey and, therefore, was not liable for attorneys’ fees. We agree and reverse.

In April 1987 and April 1996, Liberty issued life insurance policies to Ms. Bailey. Each policy included a premium waiver rider. If Ms. Bailey became disabled for six months “as a result of bodily injury sustained or disease originating after the effective date of this rider,” Liberty would waive premium payments on the policies. Liberty required a timely written notice of claim and proof of total disability before it would waive premiums.

In 2002, Ms. Bailey submitted a timely claim to Liberty for total disability benefits. Her claim form disclosed that her debilitating illness began when Ms. Bailey was fifteen years old. Ms. Bailey submitted her treating physician’s statement that also reflected that Ms. Bailey’s illness began at age fifteen. On its face, this information demonstrated that Ms. Bailey’s illness predated the issuance of both policies. In fact, however, the onset of Ms. Bailey’s illness occurred in November 2001, well after issuance of the policies.

Based on the information submitted by Ms. Bailey, and unaware of the error concerning the onset of her illness, Liberty denied her claim for premium waivers:

Since your policies do not provide premium waiver benefits when the illness that resulted in your disability originated pri- or to the effective date of coverage under these policies we are unable to approve your request. Our decision is based on the facts as we know them. If we can be of assistance in the future, please let us know.

Although she did not have immediate access to her medical records, Ms. Bailey knew that her illness began and was diagnosed after the issuance of the policies. After consulting with counsel, Ms. Bailey sued Liberty for breach of contract in May 2003. When she filed suit, Ms. Bailey had not obtained her medical records from her physician but did have copies of her claim documents and Liberty’s denial letter. Despite what appears to be an error, neither Ms. Bailey nor her counsel attempted to contact the Liberty representative who denied her claim.

In August 2003, Liberty answered the complaint, claiming that it denied Ms. Bailey’s premium waiver claim because the information submitted by Ms. Bailey reflected that her illness began before Liberty issued the two policies. Liberty also filed a summary judgment motion; the trial court never ruled on that motion.

In October 2003, Ms. Bailey finally obtained her medical records. Those records confirmed that her illness began after the effective dates of her policies. Upon receipt and verification of this new information, Liberty granted the premium waivers and issued refund checks to Ms. Bailey for the premiums paid from her claim date to the current date, plus interest.

Subsequently, Ms. Bailey sought attorneys’ fees under section 627.428. According to Ms. Bailey, Liberty conceded her entitlement to the premium waivers and that concession operated as a confession of judgment. See Stewart v. Midland Life Ins. Co., 899 So.2d 831, 333 (Fla. 2d DCA 2005). Relying on Insurance Company of North America v. Lexow, 602 So.2d 528, 531 (Fla.1992), the trial court concluded that Ms. Bailey was entitled to fees because Liberty lost.

The trial court later awarded Ms. Bailey almost $61,000 in fees and costs, with a 2.0 multiplier applied to the lodestar fee amount. The trial court recognized that, initially, Ms. Bailey submitted erroneous information to Liberty. Nevertheless, the trial court concluded that Liberty could have reduced or eliminated any enhanced fee by investigating Ms. Bailey’s claim before denying it. The trial court erred. Ms. Bailey’s claim did not trigger a duty to investigate by Liberty. On its face, her initial claim demonstrated that Ms. Bailey was not entitled to premium waivers. Furthermore, Liberty had no statutory obligation to investigate the facially insufficient claim. See § 627.425; cf. § 627.736(4)(b); Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000) (holding that burden is on insurer to authenticate claim under PIP statute and to abide by statutory time period). Moreover, here, the denial of an insurance claim based on erroneous information provided by the insured does not rise to the level of wrongful conduct necessary to impose a fee award against the insurer.

Ms. Bailey’s reliance on Lexow is misplaced. Lexow did not involve a claim for benefits nor was there any issue involving erroneous information submitted to the insurer. Rather, Lexow involved a subro-gation dispute between an insured and its insurer over proceeds paid by a tortfea-sor’s insurer. Significantly, Lexow reiterated the long-established view that the purpose of section 627.428 is to discourage insurers from contesting valid claims and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their policy rights. 602 So.2d at 531. The insurer in Lexow was obligated to pay attorneys’ fees because it “unsuccessfully sought to recover a portion of what it was obligated to pay under the policy....” Id. at 530. In contrast, upon receipt of Ms. Bailey’s initial claim, Liberty had no obligation to pay. We reject Ms. Bailey’s contention that section 627.428 imposes strict liability on an insurer for attorneys’ fees even in cases where a valid claim was not submitted.

Rather, we recognize that section 627.428 is a penalty in derogation of the common law. Thus, we construe it strictly. Hartford Accident & Indem. Co. v. Smith, 366 So.2d 456, 457 (Fla. 4th DCA 1978). Section 627.428 allows an award of attorneys’ fees as a penalty to discourage wrongful refusals to pay policy benefits. Time Ins. Co. v. Arnold, 319 So.2d 638, 640 (Fla. 1st DCA 1975) (holding refusal to pay not wrongful; Time had no obligation to doubt erroneous information contained in notice of claim so it was error to award attorneys’ fees against it). We fail to see how Liberty can be liable for fees in denying a claim that was facially inadequate. Failure to pay such a claim does not constitute wrongful conduct. See, e.g., Equitable Life Assurance Soc’y of U.S. v. Nichols, 84 So.2d 500, 502 (Fla.1956) (holding under predecessor statute that attorneys’ fees were recoverable only when insurer has wrongfully withheld paying of proceeds of policy); Gov’t Employees Ins. Co. v. Battaglia, 503 So.2d 358, 360-61 (Fla. 5th DCA 1987) (stating that purpose of section 627.428 is to penalize insurer for wrongfully causing its insured to resort to litigation; court found no wrongful act by insurer and found it unfair to penalize insurer for trial court’s erroneous failure to grant insurer’s motion for summary judgment); Time Ins. Co., 319 So.2d at 640; but see Stewart, 899 So.2d at 333 (holding that where valid claim was made, insurer required no further information, and insurer wrongfully withheld payment beyond sixty days, section 627.428 authorizes attorneys’ fees to insured or beneficiary).

Based on the record before us, Ms. Bailey was not entitled to an award of attorneys’ fees under section 627.428.

Reversed and remanded to the trial court with directions to vacate the order awarding attorneys’ fees.

WHATLEY and STRINGER, JJ., Concur.

      . The record indicates several factual disputes concerning the completion and submission of the claim documentation. As we will explain, the trial court never resolved these factual disputes.

      . Given Liberty’s actions when it received the correct information from Ms. Bailey, we must wonder whether she could have achieved her objective more expeditiously and efficiently through presuit communications' — a letter, perhaps a telephone call — between Liberty and Ms. Bailey’s counsel.


author: GROSS, J.

text:
    Raymond J. LUCAS, Appellant, v. BANKATLANTIC, Appellee.
    No. 4D05-2285.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Sean P. Sheppard of Scott & Sheppard, P.A., St. Augustine, for appellant.
    Jeremy J. Hart, Barbara Viniegra, and Gregor J. Schwinghammer, Jr. of Gunster Yoakley & Stewart, P.A., Miami, for appel-lee.
   ON MOTION FOR REHEARING

GROSS, J.

We grant BankAtlantic’s motion for rehearing, withdraw our opinion issued April 5, 2006, and substitute the following in its place.

Raymond Lucas appeals the trial court’s entry of summary final judgment in favor of BankAtlantic. We reverse, holding that an issue of fact remains as to whether Lucas “transfer[red]” a check within the meaning of section 674.207, Florida Statutes (2004), so that he is responsible to the bank for the amount of a stolen and altered check, which was deposited into an account that Lucas maintained at the bank.

Lucas is an attorney who maintained a trust account at BankAtlantic. Between April and May of 2003, Lucas entered into an agreement with persons in Africa. The deal provided that Lucas would apply for a loan, deposit the proceeds in his escrow account, and ultimately transfer the money to the individuals in Africa. For his services, Lucas was to keep 3% of the proceeds.

On or about May 9, 2003, a $65,800 check drawn on JP Morgan Chase and payable to Lucas was deposited in Lucas’s BankAtlantic account. Nothing in the record identifies the person who deposited the check. Although the check was payable to “Raymond Lucas” and had his account number written on it, the endorsement on the back of the check was in the name of “Raymond Cohen.” JP Morgan paid the check and BankAtlantic credited Lucas’s account with the proceeds. Between May 14 and May 19, 2003, Lucas withdrew all of the $65,800 by cashing several checks made payable to himself. Lucas then wired a portion of these funds to the individuals in Africa, keeping a share for his “commission.”

On or about July 7, 2003, JP Morgan informed BankAtlantic that the $65,800 check had been altered and stolen and made a demand for reimbursement. The drawer of the check was the Cohoes City School District. The original amount of the check, $19.18, had been raised to $65,800, the date changed from April 21, 2003 to May 2, 2003, and the payee altered from School-Link Technologies to Lucas. Because it was liable to JP Morgan under Florida’s Uniform Commercial Code, Ban-kAtlantic paid $65,800 to JP Morgan. This appeal concerns BankAtlantic’s attempt to recover this money from Lucas.

BankAtlantic filed a three-count amended complaint against Lucas. Count I stated that it was “brought pursuant to § 674.207” and sought recovery for breach of a transfer warranty under the Uniform Commercial Code, Chapters 673 and 674, Florida Statutes (2004).

BankAtlantic moved for partial summary judgment on its Code claim. In opposition to the motion, Lucas filed an affidavit stating that: 1) he never personally deposited the cheek; 2) he did not personally indorse the check; 3) he never authorized anyone else to deposit the check; and 4) he had expected a wire transfer in the same amount, and not a check.

The circuit court granted BankAtlantic’s motion for partial summary judgment. On the bank’s motion, the court dismissed the remaining counts of the complaint without prejudice and entered final judgment in BankAtlantic’s favor for $74,835.33, the amount of the altered check plus prejudgment interest.

Summary judgment is proper

only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available. Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002) (citation omitted). The standard of review of an order granting summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Shreffler v. Philippon, 873 So.2d 1280, 1281 (Fla. 4th DCA 2004).

Lucas correctly contends that summary judgment was inappropriate because his affidavit raised disputed issues of fact as to whether he was a “customer” who “transfer[red] an item” within the meaning of section 674.207(1), Florida Statutes (2004).

Section 674.207(1) provides:
(1) A customer or collecting bank that transfers an item and receives a settlement or other consideration warrants to the transferee and to any subsequent collecting bank that:
(a) The warrantor is a person entitled to enforce the item;
(b) All signatures on the item are authentic and authorized;
(c) The item has not been altered;
(d) The item is not subject to a defense or claim in recoupment ... of any party that can be asserted against the warrantor; and
(e) The warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker or acceptor or, in the case of an unaccepted draft, the drawer.

BankAtlantie contends that the section 674.207(1) warranty is solely “activated by the transferor receiving consideration from the transferee;” the bank argues that “[t]he fact that the Check was deposited to and credited to Lucas’ Account was sufficient to trigger his obligations” under section 674.207. The bank’s position ignores the language of the statute, which requires that a customer both “transfer[ ] an item” and receive “a settlement or other consideration” to activate the statutory warranty.

Neither of the two cases cited by Ban-kAtlantic supports the proposition that a customer’s receipt of funds in the customer’s bank account, without more, activates the section 674.207(1) warranty. Perez v. Charter One FSB, 298 A.D.2d 447, 748 N.Y.S.2d 392, 393 (N.Y.App.Div.2002), upheld a summary judgment in favor of a bank and against a customer on “UCC 3-417 and 4-207” warranty claims, referring to “the customer’s deposit of a check bearing a prior forged endorsement.” From this language, it appears that the customer was also the transferor of the check. First Arlington National Bank v. Stathis, 115 Ill.App.3d 403, 71 Ill.Dec. 145, 450 N.E.2d 833, 840 (1983), applied aversion of “section 4-207” with wording different than that of section 674.207(1).

Cases enforcing a section 674.207 warranty typically involve a customer who made the deposit of a questionable check into the customer’s account. See, e.g., Copple v. Boatmen’s First Nat’l Bank of Oklahoma, 958 P.2d 820, 821 (Okla.Civ. App.1998); Kelton Motors, Inc. v. Phoenix of Hartford Ins. Cos., 522 F.2d 728, 729 (2d Cir.1975). In such circumstances, there is no question that the customer has transferred an item within the meaning of section 674.207(1).

Lema v. Bank of America, N.A., 375 Md. 625, 826 A.2d 504 (2003), involves facts remarkably similar to this case. There, the Maryland Supreme Court indicated that a 4-207 transfer warranty was inapplicable to a bank’s customer who was not involved in the deposit of an altered check into his account, even though the customer withdrew and disposed of the funds attributable to the check.

The Lema facts crystallized in a bench trial. Lema was an accountant with two accounts at Bank of America. Willy Amu-li, a former client and friend of Lema’s, deposited a $63,000 check payable to Lema into one of Lema’s accounts at Bank of America; the check was drawn on an account at the Bank of New York. Lema withdrew the funds and gave them to Amuli in seven different transactions. Id. at 628, 826 A.2d 504.

The Bank of New York notified the Bank of America that the amount of the check had been altered from $3,000 to $63,000. Id. at 629, 826 A.2d 504. The Bank of America returned $60,000 to the Bank of New York and charged back Lema’s account for $60,000. Lema responded by filing suit. At trial, Lema disclaimed responsibility for the altered check:

Lema testified that he had no knowledge of the altered check, that he did not authorize Amuli to deposit it into his account, and that he did not know it was made payable to [Lema’s company]. According to Lema, he first noticed a substantial increase in the balance of his [company] account in late November of 1999. Lema then learned from Amuli that his friend had deposited a check into Lema’s account. Amuli told Lema that the check was to be used to support the children of a former president of Zaire who were living in the United States and explained that he deposited the check into Lema’s account because Amuli did not have a bank account of his own.

Id. at 630, 826 A.2d 504.

The trial court apparently found Lema to be credible, because it entered judgment in his favor for $60,000 plus interest. The trial court rejected the bank’s argument that “Lema was nonetheless liable on the check because he ratified it by his conduct and had breached certain warranties provided for in the UCC.” Id. at 631, 826 A.2d 504.

In an unreported opinion, the intermediate appellate court reversed, ruling that the deposit agreement between the bank and Lema authorized the bank’s charge back. Id. The Maryland Supreme Court affirmed, holding that the customer agreement, which “altered the effect of Section 4-214 of the UCC,” “entitled Bank of America to debit Lema’s accounts for $60,000, the difference between the true amount of the check deposited by Amuli and its altered amount.” Id. at 632, 826 A.2d 504.

Central to the holding in Lema is the assumption that the section 4-207 warranty did not apply because “Lema did not himself transfer the altered check.” Id. at 642, 826 A.2d 504. Had section 4-207 been applicable, then the Lema court could have decided the case on that basis, without resorting to the complex analysis of how the customer agreement interacted with the Uniform Commercial Code. The Maryland court read the statute as applying to a customer “who transfers an item and receives consideration.” Id. (emphasis added). The trial court’s finding of fact, which was binding on the appellate courts, was that Lema had not transferred the check. The Maryland Supreme Court did not rule that this conclusion was legal error. Lema thus supports an interpretation of section 674.207(1) that requires both a customer’s “transferí ]” of a check and receipt of “consideration” to trigger the statutory warranty.

Lucas’s defense is almost identical to that of Lema. He claims that he expected a wire transfer and knew nothing of the check and how it came to be deposited in his account.

The issue on remand will be whether Lucas can be held responsible for the transfer of the stolen and altered check. Section 674.207(1) refers to the “transfer ]” of “an item.” The definition of an “item” includes an “instrument.” § 674.104(l)(i), Fla. Stat. (2004). The check here at issue is an “instrument.” § 673.1041(6), Fla. Stat. (2004). Section 673.2031(1), Florida Statutes (2004), provides that “[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” We see nothing in the code or section 674.207(1) which requires a customer to be the one who physically delivers or deposits a check into a bank account for the section to be applicable. On remand, BankAtlantie may attempt to tie Lucas to the deposit of the check by agency, conspiracy, or other similar theory. If BankAtlantie proves that Lucas is bound by a section 674.207(1) warranty, then it will establish Lucas’s “strict contractual liability” to the bank, as to which the bank’s negligence is no defense. Perez, 748 N.Y.S.2d at 393.

Reversed and remanded.

STONE and MAY, JJ., concur.

      . In its motion for rehearing, the bank correctly observes that its action in the trial court was based on section 674.207. We should not have relied on sections 673.4041 and 673.4161, Florida Statutes (2004), to decide this case in the original opinion, because the bank did not rely upon these statutes in the circuit court.

      . Section 674.207(1) has also been rewritten. Chapter 92-82, section 25, Laws of Florida, rewrote section 674.207, effective January 1, 1993. See § 674.207, Fla. Stat. Ann. (2005), Historical and Statutory Notes.


text:
    Jeffery Lamar FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2039.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.
    Jeffrey L. Frazier, Jasper, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Frazier has filed a petition for habeas corpus, seeking a belated appeal. We deny his petition without prejudice to refile a legally sufficient petition. This petition, although executed with proper legal formality, fails to allege that he requested his attorney to file an appeal on his behalf in a timely manner — within 30 days after his criminal judgment was rendered. If he failed to make a timely request for an appeal, he is not entitled to a belated appeal.

Petition for Writ of Habeas Corpus DENIED without prejudice.

PLEUS, C.J., and LAWSON, J., and SHARP, W., Senior Judge, concur.

      . See Fla. R.App. P. 9.141(c)(3)(F). See also Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005).


text:
    Tyrell JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1740.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court revoked appellant’s probation finding that appellant committed a theft of a firearm, possession of a firearm, escaping the probation office, and disguising his identity. We conclude that the court erred in finding that appellant had disguised his identity, because there was no evidence other than hearsay that the appellant had given a false name while being arrested. We accordingly reverse the violation on that ground. Because we affirm the remaining violations, which were more serious, there is no need to remand for reconsideration by the trial court.

Affirmed in part and reversed in part.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Victor SCONIERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3341.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Victor Sconiers, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PETITION DENIED.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    Clifford G. MARLOWE, as Executor of the Estate of Catherine W. Brown, Appellant, v. Richard E. BROWN, Sr., and Huntington National Bank, N.A., Appellees.
    Nos. 4D03-3076, 4D04-2071.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Rehearing Denied Sept. 22, 2006.

      Stephen Rakusin of The Rakusin Law Firm, A Professional Association, Fort Lauderdale, for appellant, and Russell J. Ferraro, Jr. of Ferraro & Ferraro, P.A., Stuart, withdrawn as counsel after filing brief.
    James L.S. Bowdish and Jennifer L. Williamson of Crary, Buchanan, Bowdish, Bovie, Beres, Elder & Thomas Chartered, Stuart, for appellee Richard E. Brown, Sr.
    Steven L. Perry of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellee Huntington National Bank, N.A.
   GROSS, J.

This consolidated appeal arises from divorce and probate cases involving Catherine Brown and Neuberne Brown, Jr. Neu-berne died before the entry of a final judgment of dissolution of marriage. We hold that a “mediation settlement agreement” entered into at the beginning of the divorce case does not control the distribution of property after the husband’s death.

After a 25-year marriage, the wife filed for divorce on August 21, 2001. The parties came to a “mediation agreement for temporary relief’ on September 1, 2001. At the request of the parties, the trial court approved the mediation agreement. Among the provisions of the agreement was paragraph 11, addressing equitable distribution:

Once the parties reach an agreement as to what their [marital] assets are and their liabilities, they shall divide the assets and liabilities 50/50, excluding the wife’s furs and personal jewelry, and the husbands guns and jewelry. Husband represents that the only liability of the parties that he knows of is the mortgage on the Naked Lady Ranch property.

The mediation agreement did not specify what would happen if one of the parties died during the pendency of the divorce action.

The husband counterpetitioned for dissolution, which the wife perceived as an attempt to disavow paragraph 11. The counterpetition sought unequal distribution of the parties’ assets and partition of the Naked Lady Ranch, but not of other real property. During the dissolution proceeding, the court neither distributed the real estate nor ordered partition of any property-

In March, 2002, the wife moved to enforce the mediation agreement; the trial court ruled that the mediation agreement was “valid and enforceable until and unless it is set aside.” The court found that by the agreement the parties “agreed that the distribution of marital assets shall be 50/50,” that neither party “shall claim special equity or disparate distribution of marital assets at trial,” and that the “equitable distribution issue remaining for trial is whether an item is marital or not.”

The husband moved to set aside the mediation agreement, contending that the agreement was procured by mediator misconduct and that paragraph 11 was merely an unenforceable “agreement to agree.” The trial court denied the husband’s motion in September, 2002.

On September 25 and 26, 2002, the trial court held an evidentiary hearing to determine the marital and non-marital assets of the parties.

After the September hearing, on November 26, 2002, the wife moved the court to equally distribute 22 investment accounts that the parties agreed were marital accounts.

On January 21, 2003, the court entered an “Order Regarding Evidentiary Hearing Held on September 25, 2003 and September 26, 2002.” The order specifically identified the non-marital assets of both the husband and wife. The order listed the parties’ extensive marital assets, which included bank accounts, investment accounts, coins, automobiles, personal property, a business, farm assets, and real estate. For five parcels of real estate— Greenbrier Farm, Naked Lady Ranch, three Hatteras Lots in North Carolina, and a lot in New Jersey — the court rejected the husband’s claim that the real estate was his non-marital property. The order did not place a value on any asset; it provided that the marital assets “shall be split fifty-fifty (50/50) as part of the Court’s equitable distribution.” The order allowed some accounts to be split immediately “if there [was] no question that they be split fifty-fifty.” The court retained jurisdiction to “enter such [other orders] that are necessary given the effect of this Order.”

Also on January 21, 2003, by a separate order, the court granted the wife’s November 26 motion to distribute joint accounts, and ordered that 22 accounts “be immediately divided 50-50.”

On June 30, 2003, the husband died. There had been no final judgment of dissolution, no valuation of the properties, and no plan of equitable distribution.

On July 1, 2003, Richard Brown, the husband’s brother and tentative personal representative of his estate, filed an emergency motion in the divorce proceeding seeking to restrain the wife from disposing of marital property. Richard Brown argued that the divorce had been acrimonious and that he desired to make a proper inventory of the property of his brother’s estate.

The wife responded to the personal representative’s emergency motion the same day it was filed. She argued that, given the husband’s death and the absence of a final judgment, the case should be dismissed. On July 3, the husband’s brother moved to intervene in the divorce proceeding.

On July 21, 2003, the court ruled on the motions filed by the wife and the husband’s brother in the dissolution action. The order restrained the wife from removing anything from the Naked Lady Ranch and Greenbrier Farm, ordered “everything to remain status quo for 30 days” to allow for a personal representative to be appointed, and ordered the wife to release the husband’s address book to his brother. The wife appealed this order.

The husband’s brother commenced a probate proceeding by filing a petition for administration. In August, 2003, the wife submitted an answer and affirmative defenses to the petition for administration.

In September, 2003, the wife moved the probate court to declare certain assets to be hers. Among these assets were the Greenbrier Farm, the Naked Lady Ranch, and “Hatteras Lots;” the dissolution judge’s January 21 order had found that the husband and wife owned these properties as tenants by the entirety. The wife argued that these lots passed to her by operation of law when her husband died. The wife made similar arguments as to other properties based on the way the properties were titled at the time of the husband’s death. For example, the wife argued that 103,114.299 troy ounces of silver passed to her under the provisions of a storage contract which declared that the account was a joint tenancy with right of survivorship.

On May 19, 2004, the probate court denied the wife’s motions. The court held, inter alia, that (1) the September 1, 2001 mediation agreement was binding upon the “Widow and the Deceased (or his estate and trust);” (2) the September 1, 2001 mediation agreement “is not nullified by the death of [the husband], but in fact survives the Deceased’s death,” and (3) all assets of the parties, whether held “individually ... or Jointly” were “all marital assets to be divided fifty-fifty.”

The wife appealed this order.

The wife died on April 1, 2005. Clifford Marlowe, the executor of her estate, has been substituted as a party. The husband’s brother, Richard Brown, Jr., is a party in his capacity as trustee of the husband’s Revocable Living Trust dated July 25, 2001. The Huntington National Bank opposed the wife’s motions in probate in its capacity as the curator of the estate of the husband.

The dissolution of marriage action terminated with the death of the husband and the dissolution judge should have dismissed the case upon the wife’s motion. See Sahler v. Sahler, 154 Fla. 206, 17 So.2d. 105, 106-07 (1944); Messana v. Messana, 421 So.2d 48 (Fla. 4th DCA 1982); Mac-Leod v. Hoff, 654 So.2d 1250, 1251 (Fla. 2d DCA 1995); Simpson v. Simpson, 473 So.2d 299 (Fla. 3d DCA 1985); Jaris v. Tucker, 414 So.2d 1164 (Fla. 3d DCA 1982). Because the husband died before the entry of a final judgment of dissolution, this case is unlike those-which hold that after the entry of a final judgment, a trial court retains jurisdiction to determine property rights after a spouse’s death, if it reserved jurisdiction to do so in the judgment. See Fernandez v. Fernandez, 648 So.2d 712 (Fla.1995); Becker v. King, 307 So.2d 855, 858-59 (Fla. 4th DCA 1975). This case is also unlike Gaines v. Sayne, 764 So.2d 578 (Fla.2000), where a spouse died after a final judgment but before the hearing on a motion for rehearing; the supreme court held that the death did not void the final judgment, where the issues raised on réhearing related to property and other matters “collateral to the adjudication of dissolution.” Id. at 586.

In Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934), the supreme court described the effect of an appellate reversal of a divorce decree, where one spouse dies after the issuance of the decree, but while the appeal is pending:

[0]n such reversal, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had.

Similarly, the husband’s death in this case left the wife in the legal position of one whose marriage was terminated by death, and not by a final judgment. Interlocutory orders in a divorce proceeding generally do not survive the dismissal of a lawsuit when a spouse dies before the entry of a final judgment. See Jaris, 414 So.2d at 1166.

Both paragraph 11 of the settlement agreement and the January 21, 2003 order are similar to the oral order of the court in Sahler, which indicated that property “be divided in certain proportions” but did not “make any division of the property.” 17 So.2d at 106. The supreme court observed that such vague pronouncements would not have amounted to a final decree even had they been reduced to writing. Id.

The husband’s estate contends that the September 1, 2001 mediation agreement, as enforced in the January 21, 2003 order, survives the death of the husband to control the distribution of property after his death. We disagree, because the mediation agreement was too tentative and preliminary to control the disposition of property after the death of the husband.

The husband’s estate relies primarily on Snow v. Mathews, 190 So.2d 50 (Fla. 4th DCA 1966), but that case involves a more definite and complete agreement than the one here at issue. In Snow, a husband and wife entered into a separation agreement which provided, among other things, “that their home which was held in an estate by entirety would be sold and the net amount received therefrom divided equally.” Id. at 51. Executed in accordance with statutory provisions providing for the conveyance of title to property, the agreement specifically described the property and provided that each party would execute the “necessary papers, documents, deeds and transfers” to accomplish the division of the asset. Id. at 51-52. About a month after the execution of the agreement, the husband died. The executrix of the husband’s estate signed a contract to sell the real estate. A $2,500 binder was divided between the husband’s executrix and the wife. Id. at 52. A short while later, the wife died, and her executrix refused to go through with the closing, contending that title to the property had vested in the wife upon the death of the husband. Id.

The purchasers in Snow sued both executrices for specific performance. The trial court ruled that the wife’s estate was entitled to all of the proceeds of the sale. Id. We reversed, reasoning that the “separation agreement between the parties discloses that the agreement was clearly intended to be a complete and final distribution of the jointly owned property of the parties including specifically the home place;” as a result, the “contract effectively terminated the estate by entirety” as of the date of its execution, so that the husband and wife became tenants in common “entitled to an equal division of the proceeds of the sale of the property.” Id.

The September 1, 2001 mediation agreement in this case was not the “complete and final” distribution that we confronted in Snow. The husband opposed the wife’s interpretation of the agreement throughout the divorce proceeding. At most, on September 1, the parties agreed that distribution of marital assets and liabilities would be equal, the beginning premise of all equitable distribution. See § 61.075(1), Fla. Stat. (2004). Paragraph 11 of the settlement agreement identifies no assets. It provides only that the parties will equal-' ly divide those assets which they agree are marital. Paragraph 11 does not address what happens to assets which the parties do not agree to be marital. Neither the settlement agreement nor the court’s January 21, 2003 order sets forth a plan of equitable distribution of assets and liabilities. Neither the agreement nor the order specifies whether the disputed parcels of real property are to be partitioned and sold or whether each party would receive complete title to parcels of equal value. The January 21 order did not value the assets or determine entitlement to them; it contemplates further discovery regarding certain assets and the ultimate entry of an order of equitable distribution. Like the September 1, 2001 mediation agreement, the January 21 order was interlocutory only, a step in the direction of a final solution, the final judgment that was never entered. See Greenwald v. Blume, 812 So.2d 783 (Fla. 3d DCA 1975). For these reasons, neither the settlement agreement nor the January 21 order survives the death of the husband to control the disposition of property.

We reverse the July 21, 2003 order in the dissolution action and remand to the circuit court with directions that the dissolution action be dismissed. We reverse the May 19, 2004 order of the probate court and remand for further proceedings consistent with this opinion.

WARNER and KLEIN, JJ., concur.

      . The wife does not challenge the trial court's entry of the January 21, 2003 order granting her motion and equally distributing 22 accounts. We therefore do not discuss the application of the doctrine of judicial estoppel. See Grau v. Provident Life & Acc. Ins. Co., 899 So.2d 396 (Fla. 4th DCA 2005).

      . The husband’s estate also cites to Kaylor v. Kaylor, 466 So.2d 1253 (Fla. 2d DCA 1985), which holds that in a divorce case, a partial final judgment concerning the parties' property rights is not void when entered before a final judgment dissolving the marriage. This case does not involve such a final judgment resolving all of the parties' property issues.


text:
    Thomas PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2219.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.

      Thomas Parker, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to raise the claim in a rule 3.850 motion.

STEVENSON, C.J., POLEN and KLEIN, JJ., concur.


text:
    Corenza C. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2771.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2006.
    Rehearing Denied Aug. 31, 2006.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Crain v. State, 914 So.2d 1015 (Fla. 5th DCA 2005).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Jason REAVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3482.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Jeffrey Garland of Kirschner & Garland, P.A., Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jason Reaves appeals the trial court’s order that summarily denied his motion for postconviction relief, motion to withdraw plea, or in the alternative, motion to correct illegal sentence. We affirm the denial of all claims except for claim 7.

In that claim, the defendant alleged ineffective assistance of counsel leading to his involuntary plea of guilty. We remand for an evidentiary hearing or record attachments which refute his claim on this ground. See Wells v. State, 881 So.2d 54 (Fla. 4th DCA 2004). See also Robinson v. State, 909 So.2d 497 (Fla. 5th DCA 2005); Patrick v. State, 830 So.2d 248 (Fla. 1st DCA 2002).

STONE, POLEN and MAY, JJ., concur.


text:
    Leon D. DOBBINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3198.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2006.
    Leon D. Dobbins, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Henry MYERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2955.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2006.
    Henry Myers, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Bruce HAY, Appellant, v. Renee HAY, Appellee.
    No. 4D04-4734.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Martha S. Eskuchen, Juno Beach, for appellant.
    James R. Quick and Jaime A. Quick, Jupiter, for appellee.
   On Motion for Rehearing

WARNER, J.

We grant appellant’s motion for rehearing, withdraw our prior opinion and substitute the following in its place.

The husband appeals a final judgment which awarded the wife one-half of all of the assets titled in either the husband’s name or the parties’ names jointly, “bridge the gap” alimony, and attorney’s fees. The court found that the husband had commingled his considerable wealth, acquired prior to this four-year marriage, into joint accounts with his wife. For the most part, we agree with the trial court that the pre-marital assets which flowed into joint accounts lost their non-marital character. Thus, we affirm the final order with respect to equitable distribution, except to the extent that the trial court is directed to reconsider its distribution of a few assets, as discussed more fully below. We reverse the award of “bridge the gap” alimony, because given the length of the marriage and the substantial assets the wife received, the award was an abuse of discretion. We also reverse the award of attorney’s fees, because the court failed to make the Rowe findings.

The husband, age 70 at the time of dissolution, married the wife, age 45, in 2000 in Minneapolis, where the husband had considerable financial success. The parties had cohabited off and on since 1992. The wife was a hairdresser and quit her job when she married the husband. Together with her two children from a prior marriage, the parties moved to Florida. The husband had three children from his first marriage, all of whom were adults. The wife filed for divorce four years after the marriage.

The main issues on appeal in this case relate to the identification of marital assets and non-marital assets and the equitable distribution of the marital assets. The husband claimed that because all of the money used to purchase joint assets came from his pre-marital assets, everything owned by him or the parties jointly were non-marital assets. The wife, on the other hand, contended that his pre-marital assets became so commingled with their joint assets that they had lost their character as non-marital assets. The trial court agreed with the wife. Except for a few assets, which we will discuss, we agree.

The husband had considerable assets prior to marriage. In opening statement, the husband’s attorney stated that the husband came into the marriage with about $2,250,000 in assets. Unfortunately, a concise picture of his pre-marital assets was never revealed. We can glean from the testimony that his most significant asset was a mobile home park in Minnesota that he sold to his sons prior to retirement. He also owned a home in Minnesota, although there was some dispute whether this was also owned by the wife, as her name was on some of the title documents and they had cohabited there for several years. He owned a large motor home which he later sold to his sons. It is unclear what other assets were owned.

When the parties married, they moved to Florida. With the husband’s pre-marital funds they purchased a home in Jupiter and took title in the names of both husband and wife. The home was purchased and then improved. Section 61.075(5)(a)5., Florida Statutes, provides that all real property held by tenants by the entireties is presumed to be a marital asset, and if a person claims a special equity in the property, the burden is on that party to prove the claim. The husband successfully showed that the money to purchase the property came from his non-marital funds. He also had to show that no gift was intended. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991). He testified that he did not intend a gift of the property to the wife. According to the husband, he placed the wife’s name on the deed merely to ensure that she could have the property if something happened to him. The husband testified that jointly titling the home would effectuate this goal without requiring him to place the property in a revocable trust which he had established for estate planning purposes. However, his testimony was countered by her testimony that he told her that, “This is our house,” and that he had purchased it for the two of them and her children. She denied that she understood that she only had a claim to the property if he died. This denial makes this case distinguishable from Hill v. Hill, 675 So.2d 168 (Fla. 5th DCA 1996), upon which the husband relies. There, both the wife and the husband testified to their understanding that the wife’s name was on the deed so that she would get the property in the event of the husband’s death.

In this case, the court listened to the wife and the husband testify at length regarding the acquisition of the home. The trial court is the judge of the facts and the credibility of the witnesses. Santiago v. State, 889 So.2d 200, 203-04 (Fla. 4th DCA 2004) (quoting Holden v. State, 877 So.2d 800, 801-02 (Fla. 5th DCA 2004)) (“[T]he role of the trial court is to weigh the credibility of witnesses and to resolve evi-dentiary conflicts, and on truly discretionary matters, the appellate court must recognize the trial court’s superior vantage point.”). We cannot conclude that the trial court abused its discretion in determining that the husband failed to carry his burden of proving no gift was intended. Therefore, the court acted within its discretion in concluding that the home was a marital asset.

About two years after the home was purchased, the parties signed a second mortgage line of credit on the home. The husband then used these monies, and others, to day trade in the stock market and to cover some household expenses. In addition to the day trading, part of these monies were used to purchase gold coins. Because the house was a marital asset, so too was the income received from the loan against the home. See § 61.075(5)(a)l., Fla. Stat. To the extent that these monies purchased other assets in the husband’s name alone, these too were properly characterized by the trial court as marital assets.

During the marriage, the husband received substantial amounts of money from the refinancing of the mobile home park in Minnesota, admittedly a non-marital asset. These monies were deposited in the parties’ joint account, from which they paid all of their living expenses. Most of the husband’s investment money went in and out of this account, as did monies from the line of credit on the marital home. At one point, the husband transferred nearly $500,000 into the joint account from the refinancing and then transferred $300,000 out to a Scott Trade account that also received infusions of money from the line of credit on the home. Thus, even though the trading account was in the husband’s name, it commingled marital funds from the line of credit as well as non-marital funds from the refinancing. The court did not err in determining that the funds were sufficiently commingled so as to lose their non-marital status. See Lakin v. Lakin, 901 So.2d 186 (Fla. 4th DCA 2005); Williams v. Williams, 686 So.2d 805 (Fla. 4th DCA 1997).

We do, however, believe that the court may have made a double award of the value of the Scott Trade account, because it also made an award of several specific stocks which, as we read the evidence, are simply the stocks in the Scott Trade account. We thus reverse and remand to reconsider the award of the stocks and the Scott Trade account and for the trial court to delete the award of the stock or the trade account to the extent that they are the same assets.

We find no abuse of discretion in the trial court’s disposition as to the parties’ personal property, but we agree with the husband that the wife’s $3,000 IRA was a marital asset subject to equitable distribution. See § 61.075(5)(a)3., Fla. Stat.

We also agree with the husband that the trial court erred in its valuation of the parties’ joint Bank of America account where the wife admitted that she withdrew approximately $2,400 from this account on the day she filed for dissolution. Because this joint account was a marital asset, we direct the trial court on remand to treat the amount withdrawn as marital monies subject to equitable distribution.

With respect to alimony, the trial court determined that the wife had not presented a sufficient plan of rehabilitation, even though the wife had testified as to the requirements to receive her hairdresser’s license in Florida. In particular, she testified that she had a license in Minnesota when she owned and operated her own salon there. She would have to receive a Florida license, which would take approximately ten months to secure. Instead of awarding rehabilitative alimony to permit the wife to obtain this employment, the trial court awarded her $3,000 per month for two years, more than twice the time required to obtain her license and become self-supporting. In addition, the court ordered the husband to pay the expenses of the home until it is sold.

The husband contends that given the substantial equitable distribution of assets to the wife and the short duration of the marriage, the award of “bridge-the-gap” alimony of $3,000 per month for two years is an abuse of discretion. We agree.

Bridge-the-gap alimony is meant to ease the transition of a spouse from married to single life. See Green v. Green, 672 So.2d 49, 51 (Fla. 4th DCA 1996); see also Landow v. Landow, 824 So.2d 278, 279 n. 1 (Fla. 4th DCA 2002) (commenting that bridge-the-gap alimony may be appropriate to “cushion the blow” as the recipient spouse adjusts to single life); Murray v. Murray, 374 So.2d 622 (Fla. 4th DCA 1979)(bridge-the-gap award may be justified after short-term marriage to allow a spouse to bridge-the-gap between the high standard of living enjoyed during the brief marriage and the more modest standard of single life).

In a thirty-year marriage, the second district disapproved a bridge-the-gap award of $500 for one year to the husband, who had changed careers with the concurrence of the wife. Blanchard v. Blanchard, 793 So.2d 989 (Fla. 2d DCA 2001). Relying on its prior opinion in Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999), the court said:

“[B]ridge-the-gap alimony is not a tool to compromise adversarial positions but to assist a spouse with any legitimate, identifiable, short-term need under circumstances where a lump sum award is reasonable and when the other spouse has the ability to pay the award.... It is a useful tool in a relatively small category of divorces.” Id. at 753.
In Borchard, we envisioned a scenario in which a spouse was unable, through his or her own best efforts, to provide for the essentials of a transition from married life to single life. We emphasized that in some cases, a spouse may be unable to afford “basic living requirements” because of a divorce, particularly when there is a “meager” distribution of assets. See id. at 752-53.

793 So.2d at 991. The husband in Blanchard had received $60,000 in liquid assets and was relieved of all marital debt. On those grounds, the court held that he was not entitled to bridge-the-gap alimony to transition into single life.

In circumstances similar to this case, we reduced a bridge-the-gap award to the wife from four years to six months after a seven month marriage between a 72-year-old husband and a 40-year-old wife, even though the parties had lived together for several years prior to the marriage. See Murray v. Murray, 374 So.2d 622 (Fla. 4th DCA 1979).

In this case, where the parties were married for only four years, and the wife received nearly $250,000 in assets, with approximately $150,000 in liquid assets, and no marital debt, the wife needs no assistance to transition from married to single life. The home has been ordered to be sold, and the husband was made responsible for its expense until sale. The wife has sufficient resources to make the transition and sustain herself until she becomes employed. We therefore reverse the award of bridge-the-gap alimony.

As to attorney’s fees, the final judgment stated the following with respect to attorney’s fees: “The Husband has the ability to pay all of Wife’s fees and costs and that [sic] the Wife has the need for the Husband to pay said fees and costs. The sum of $25,537.26 are reasonable fees and costs expended in this case.” The trial court failed to make specific findings with regard to the number of hours reasonably spent on the litigation and the reasonable hourly rate. This was error. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). We reverse for reconsideration in accordance with Rowe.

We do not find any error in the remaining issues raised.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

KLEIN, J., and BAILEY, JENNIFER D., Associate Judge, concur.

      . At the final hearing, the trial court refused to allow the testimony of the husband's adult children as to the husband's intent regarding the marital home and the trust, sustaining the wife's hearsay objections. On appeal, the husband now argues that the trial court erred by excluding the testimony because declarations of donative intent are admissible as hearsay exceptions under section 90.803(3)(a), Florida Statutes. We find that this issue was not properly preserved, as the husband did not raise this precise argument for admissibility below. Carabella v. State, 727 So.2d 270, 271 (Fla. 4th DCA 1999) ("Appellant argues that the trial court erroneously excluded certain testimony upon the state’s hearsay objection. By not raising in the trial court those arguments for admissibility now raised on appeal, appellant failed to preserve his contention that the excluded statements were non-hearsay or that they fell within some exception to the hearsay rule.”).


text:
    T.S., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-181.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Lori D. Shelby, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

The trial court found T.S.’s three minor children “at imminent risk of being abused, neglected and abandoned” and withheld adjudication of dependency. T.S. appeals on the ground that the evidence was insufficient to support the trial court’s conclusion. We reverse.

The Department of Children and Families filed a petition for dependency regarding the three minor children of T.S. and R.S. (who is not a party to this appeal). In Count I, DCF alleged that T.S. neglected the children. In Count III, DCF alleged that “the children are presently at substantial risk of imminent threat of harm as defined in Florida Statute 39.01(30).” In both counts, DCF made the following allegations:

The father, [T.S.], neglected the minor children ... as defined in Florida Statute 39.01(45) in that the father has an alcohol abuse problem and a history of engaging in domestic violence in the presence of the minor children. On or about May 22, 2005, the father was arrested for assault, resisting a law enforcement officer and weapons possession. The mother was the alleged victim of the assault. There were previous incidents of domestic violence in 2002 and 2003. The father has an extensive criminal history.

The trial court conducted a hearing on the dependency petition. R.S. testified that T.S. had never engaged in a physical fight with her, slapped her, or choked her during their thirteen-year relationship (they dated until 2003). She also testified that she did not fear for her safety or that of her children except for once about four years prior to the hearing. R.S. admitted that she applied for domestic violence injunctions in 2002 and 2003 to protect her and her children, but claimed she did so only because DCF suggested it as a measure to keep her children. These applications did not result in restraining orders and are not included in the record on appeal. R.S. then testified that T.S. was not at her home when the police arrived in May 2005 (although he had been at the door prior to their arrival) and that the whole charge was a lie, but that T.S. had kicked the door. She indicated that the children were asleep at the time and remained asleep throughout the incident. She maintained that she and the children were not afraid or hiding in the bathroom while T.S. was at the door.

T.S. testified that he has never been physically violent toward R.S. He also testified that he was a social drinker, who might have a beer, but not often, although he had one on the night in question. T.S. indicated that he knocked on R.S.’s door for approximately ten minutes, asking her to take him home. He did admit that he slammed down a chair that hit the door.

City of Hollywood Police Officer Rush Rudolph testified that he responded to the May 2005 dispatch to R.S.’s house and that when he arrived, T.S. was in the parking lot and was “verbally abusive, very irate, screaming, [and] yelling.” Officer Mark Ruggles arrived on scene and handcuffed T.S. for officer safety reasons. Rudolph testified that R.S. was visibly upset, her voice was shaking, and she explained that she did not want to let T.S. into the house because of past incidents of violence. Officer Ruggles testified that when he arrived on scene, T.S. was using foul language and raising his arms in a combative manner toward Rudolph. Ruggles then observed a knifeholder on T.S.’s belt and handcuffed T.S. for officer safety reasons. Ruggles further indicated that he could smell alcohol on T.S. and that T.S. appeared to be under the influence of alcohol.

At the conclusion of the hearing, based on a motion, the trial court dismissed Count I for neglect against T.S., finding that domestic violence did not occur in the presence of the children and did not affect the children. Following the hearing, the trial court entered a written order entitled Dependency Proceedings Order of Adjudication. The trial court made the following relevant factual findings:

2. Testimony and evidence was presented that [R.S.] and [T.S.] have three children together. They do not live together.
3. Testimony was given that since 2002 the parties have engaged in acts of Domestic Violence. It is unclear whether the acts of Domestic Violence occurred in the “presence” of the minor children. The children were infants or toddlers at this time.
4. The mother, [R.S.] applied for Temporary Restraining Orders on two different occasions in 2002 and 2003 on behalf of herself and her children with [T.S.]. She failed to appear at least one of the hearings and the Restraining Orders were dismissed.
6. In May, 2005, [T.S.] was visiting with his three children at [R.S.’s] home. He left for a period of time and returned around 10:00pm, expecting [R.S.] to drive him back to his home. The testimony was that the children were asleep when [T.S.] knocked on the door. [R.S.] did not open the door as [T.S.] may have been intoxicated. [T.S.] got upset and got loud. He banged on the front door and kicked a chair on the porch. Although [R.S.] testified that her children, who were asleep didn’t awaken, a neighbor heard the commotion and called the police who responded. The police officer arrived and testified that [T.S.] was very loud and belligerent. They arrested him. [R.S.] refused to sign a statement regarding what happened that evening when asked by the police to do so. The trial court considered these facts

and wrote:

This Court believes that there has been substantive competent evidence presented of an ongoing issue of Domestic Violence between [R.S.] and [T.S.], and that [R.S.] has done little to take action in protecting herself and her children from [T.S.’s] actions. This Court has no doubt that if this is allowed to continue without intervention, supervision and education that these acts will continue to occur. This court believes, based on the evidence presented through testimony of several witnesses, [T.S.’s] outbursts in Court and his poor decision in choosing not to see his children because he can’t see them on “his terms”; that this family is a “time-bomb” and that the [minor] children are at imminent risk of abuse, neglect and/or abandonment by [R.S.] and [T.S.].

Based on this analysis, the trial court concluded:

The testimony in this case has established by a preponderance of the evidence that the ... minor children, are at imminent risk of being abused, neglected and abandoned within the meaning of Florida Statute Chapter 39. However, the Court finds that no other action other than supervision with a Domestic Violence/Anger Management class for the parents is required; and that the Court will be withholding the Adjudication of Dependency.

“ ‘A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Competent substantial evidence is tantamount to legally sufficient evidence.’ ” R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004) (citing M.F. v. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000)).

We conclude that there was not competent, substantial evidence in the record supporting the trial court’s withheld adjudication of dependency. In support of the petition for dependency, DCF relied on testimony regarding the May 2005 incident and R.S.’s two applications for domestic violence injunctions. It is undisputed that neither of the applications for injunction resulted in the issuance of a l'estraining order, so it cannot be said that whatever allegations of domestic violence were contained in the application were substantiated.

Furthermore, the evidence regarding the May 2005 incident established only that a neighbor called 911 after hearing a commotion at R.S.’s house, that R.S. was visibly upset and T.S. was combative when the police arrived, and that R.S. and T.S. agreed that T.S. was at the door of R.S.’s house and kicked or threw a chair which hit the door. We conclude that this evidence does not amount to a legally sufficient demonstration that an act of domestic violence occurred in May 2005. See § 741.28(2), Fla. Stat. (“ ‘Domestic violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”).

As such, despite the trial court’s finding to the contrary, the record does not contain competent, substantial evidence establishing an ongoing pattern of domestic violence to support a finding of prospective harm and dependency as to the three minor children of T.S. Therefore, the trial court erred by declaring the minor children dependent and withholding the adjudication of dependency.

In sum, we reverse the finding of dependency as to the three minor children of T.S. and the order withholding adjudication of dependency and remand this case for further proceedings consistent with this opinion.

Reversed.

GUNTHER, FARMER and GROSS, JJ., concur.


author: PER CURIAM. MAY, J.,

text:
    Maritiza DOMINGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2031.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      William S. Abramson, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant this petition for writ of prohibition and quash the trial court’s order denying petitioner Dominguez’s motion to disqualify.

The circuit court denied the motion to disqualify as uncertified, untimely and insufficient. The motion was untimely as the petitioner admits it was filed twelve days after discovering the facts that constitute the grounds for the motion. Fla. R. Jud. Admin. 2.160(e). Furthermore, the motion did not contain the requisite certification by the attorney that the motion and statements contained therein were made in good faith. Fla. R. Jud. Admin. 2.160(c).

The motion’s untimeliness and lack of certification would have justified the denial of the motion to disqualify, and had the matter ended there, no doubt we would have denied the petition. However, the trial court then commented on the truthfulness of the facts asserted in the motion to disqualify, thereby creating a new basis for disqualification. City of Hollywood v. Witt, 868 So.2d 1214 (Fla. 4th DCA 2004) (stating that when ruling on a motion for disqualification a judge may not pass on the truth of the allegations set forth in the sworn motion, “but must take them to be true, deciding only the legal sufficiency of the motion”). While one of the grounds of the motion argued that an e-mail regarding petitioner’s attorney sent by the judge to all the other judges and hearing officers in the circuit warranted disqualification, and although we find that the e-mail was troubling, we do not find that it constitutes a per se basis for disqualification.

Yet disqualification is warranted in this case because the circuit court order takes issue with the facts alleged in the motion to disqualify. The order of the trial court denying the motion to disqualify contains the following:

Lastly, the law provides that adverse legal rulings do not provide a basis for disqualification. The fact that the court found that there was a substantial likelihood that the defendant’s attorney committed a violation of the Rules Regulating The Florida Bar and took appropriate action as required by Canon 3.D.(2) of the Code of Judicial Conduct is also not a legally sufficient basis for disqualification.

We hold this to be a comment on the validity of petitioner’s grounds for disqualification, and therefore violative of Hollywood v. Witt.

As we trust the trial court will act in conformity with this opinion, we withhold issuance of the writ.

STEVENSON, C.J., and POLEN, J., concur.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. I would deny the petition. First, as noted by the majority, the motion for disqualification was untimely and lacked the requisite certification. Second, I respectfully disagree that the wording of the order raised a new basis for disqualifying the trial judge.

In his order, the trial judge stated: “Lastly, the law provides that adverse rulings do not provide a basis for disqualification.” This is a statement of the law that happens to be correct, not a dispute over the factual allegations in the motion. See 5-H Corp. v. Padovano, 708 So.2d 244, 248 (Fla.1997). The judge then stated: “The fact that the court found that there was a substantial likelihood that the defendant’s attorney committed a violation of the Rules Regulating The Florida Bar and took appropriate action as required by Canon 3.D.(2) of the Code of Judicial Conduct is also not a legally sufficient basis for disqualification.” This too is a statement of the law that happens to be correct, not a dispute over the factual allegations in the motion. Id.

I agree with the majority that the trial judge’s action in circulating an e-mail to all the other judges is “troubling.” However, the petitioner has not established, and we cannot discern, that the motion to disqualify was filed within ten days of the discovery of this information. I would suggest that using the words: “I find the motion legally insufficient” is certainly a cleaner way of ruling on a motion to disqualify. I simply do not agree that the words chosen by this trial judge rose to the level of disputing the factual allegations, which of course, would give rise to disqualification of the judge. See, e.g., Hayslip v. Douglas, 400 So.2d 553, 555-56 (Fla. 4th DCA 1981).