author: POLEN, J. TAYLOR, J.,

text:
    Jessica E. SAN MARCO, Appellant, v. Anthony SAN MARCO, Appellee.
    No. 4D06-3326.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Kenneth M. Kaplan, Miami, for appellant.
    John S. Andrews of Andrews & Galatis, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant Jessica E. San Marco appeals a final judgment on supplemental petitions for modification of child visitation and/or custody in favor of Appellee, Anthony San Marco. The parties in this case were formerly married and had one child, A.M. An uncontested final judgment of dissolution of marriage was entered on September 2, 2003. As part of the agreement, the parties agreed that A.M.’s primary physical residence would be with Jessica, parental responsibility and visitation to be shared with Anthony. The parties also agreed that Jessica could relocate her residence without court permission, as long as she stayed within Dade, Broward or Palm Beach counties. Anthony was required to pay child support to Jessica. As a result of the modification at issue in this case, Anthony was awarded primary residential custody of the child and his child support obligation was terminated. We affirm, but write to address Jessica’s arguments below.

Following the dissolution of marriage, Jessica filed a supplemental petition to modify custody and/or other relief. Jessica alleged that Anthony was not following the visitation schedule by failing to bring A.M. home at the arranged times and that this was causing A.M. to miss school. Jessica asked the court to limit Anthony’s visitation rights to every other weekend. Anthony responded by filing a counter-petition to modify visitation. Anthony alleged that Jessica had breached the settlement agreement by: (1) failing to provide A.M. with medical care and attention; (2) failing to have A.M. vaccinated with the chicken pox vaccine, resulting in her contraction of chicken pox; (3) failing to have A.M. vaccinated as per Broward County health ordinances; (4) failing to provide him with the correct address for A.M.’s residence; and (5) moving repeatedly since the parties’ divorce. Anthony alleged there had been a substantial change in circumstances since the parties’ divorce and asked that he be awarded primary physical custody of A.M. Anthony had remarried after the divorce and alleged he could provide a more stable family environment.

The trial court held a hearing on the parties’ motions. During the hearing, John Andrews, Anthony’s counsel, questioned Jessica extensively about her care of A.M. Jessica testified that since the parties’ divorce she had taken A.M. to the pediatrician for treatment of an ear infection and for her routine shots and a physical. Jessica would sometimes wait until Anthony picked A.M. up and have him take her to the doctor, as A.M. was listed on Anthony’s wife’s insurance. Jessica alleged she did not have access to an insurance card. Jessica testified that Anthony had refused to give her the insurance information for some time. Jessica also asserted that Anthony’s new wife was listed as A.M.’s mother at the doctor’s office. Anthony admitted his wife was listed as A.M.’s stepmother at the doctor’s office, but not as her mother.

Jessica admitted to moving six times in the past four years, but asserted it was in the best interest of A.M. and that she was forced to move due to financial difficulties. Jessica agreed that Anthony’s family circumstances had changed since the parties’ divorce, but did not necessarily believe Anthony lived in a better environment than she. Jessica testified that A.M. had been vaccinated but admitted “[s]he had missed a couple of visits from time to time.” Jessica did not have A.M. vaccinated against chicken pox because she had “personal concerns” about the vaccination. Jessica agreed she did not take A.M. to the dentist to deal with an injured tooth but asserted this was because she did not have the insurance card or insurance information.

Anthony testified that he had picked A.M. up on several occasions and due to problems such as an ear infection or pinkeye had to take her directly to the doctor’s office. Anthony asserted that Jessica had lied about getting A.M. vaccinated. Anthony also asserted he was the one to take Jessica to the dentist when she injured her tooth and it began to turn black. Anthony knew of only one time since the divorce when Jessica had taken A.M. to the doctor.

Anthony had a stable job, had been remarried for two-and-a-half years and had twin daughters. Anthony testified that his neighborhood and home were a better, more family-oriented environment than Jessica’s. Anthony pointed out that A.M. was starting kindergarten and if she lived with Anthony, either he or his wife would be home when A.M. got out of school. If she lived with Jessica, Anthony asserted she would have to go to daycare, although Jessica disagreed with this assertion. Anthony agreed that the schools in his neighborhood and Jessica’s neighborhood were both “A” schools.

Mindy Pelliecio, a pediatric nurse, testified on Anthony’s behalf. Pelliecio testified about A.M.’s vaccinations, or lack thereof. A.M. had missed her measles, mumps and rubella vaccines and her chicken pox and pneumococcal vaccines. Pelliecio testified A.M.’s multiple ear infections and contraction of chicken pox could be traced to this lack of vaccination. Pelliecio agreed that some parents did not want to get their children vaccinated but stated these parents usually go through a process with the county to sign forms and to express the reasons why they do not want their child vaccinated. Pelltócio did not believe there was any justifiable reason not to vaccinate a child. Pelliecio had not heard of any virus associated with a . chicken pox vaccination or the onset of autism due to the chicken pox vaccination.

■ Andrea Windsor, Anthony’s new wife, also testified at the hearing. Andrea was a registered nurse. Since being married, Anthony had. gotten a steady job, the two had bought a house in Coral Springs, and they had gotten insurance coverage for A.M. Andrea confirmed there had been several times A.M. needed immediate medical attention when they picked her up from Jessica. Andrea denied withholding access to insurance information and stated the insurance card was on file at the pediatrician’s office. Andrea also denied that she was listed as the mother and stated Jessica was listed as the mother, both at the doctor’s office and in the insurance file.

The trial court made a number of findings in its' final order. The trial court found: (1) Anthony had taken A.M. to the doctor or dentist on more than ten- occasions while Jessica had taken her once; (2) Jessica had not provided A.M. with appropriate medical care by refusing to have her inoculated and by failing to keep her vaccinations current;- (3) there was more structure in Anthony’s home and A.M. would have her own room and bathroom there; (4) if A.M. lived with Anthony she would not have to be in aftercare following school; (5) due to Jessica’s frequent moves, A.M. would likely have a more stable school environment by living with Anthony; (6) Anthony had “a superior capacity and disposition to provide the child with medical care”; and (7) Jessica’s frequent moves resulted in A.M. not having a stable, satisfactory environment. The trial court determined there had been a substantial and material change of circumstances since the parties’ divorce and it was in A.M.’s best interest to reside with Anthony.

On appellate review, an order modifying custody has a presumption of correctness and will not be disturbed absent a showing of abuse of discretion. Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005).

A final divorce decree providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree.

Id. at 932. “To modify such judgments, the trial court must decide whether there is a ‘factual basis sufficient to show that conditions have become materially altered since the entry of the previous decree.’” Id. (quoting Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 467 (1933)). “The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character.” Wade, 903 So.2d at 932. The movant must also show “that the best interests of the child will be supported by such modification.” Id. at 933.

Jessica argues that all of the trial court’s findings regarding changed circumstances were foreseeable at the time of the final dissolution of marriage and do not equal material changes. The trial court’s modification of primary residential custody is based on three primary findings: (1) Jessica did not provide adequate medical care to A.M.; (2) Jessica’s frequent moves made Anthony’s home environment a better, more stable place for A.M.; and (3) the change in Anthony’s circumstances made him a better candidate for A.M.’s primary residence.

We find the trial court did not abuse its discretion in determining that there had been a material change in circumstances since the parties’ divorce. In affirming the trial court’s decision, we note that this is a very difficult case. The evidence showed that neither Jessica nor Anthony is a bad parent and both provided a loving environment for her. However, the trial court considered all the factors in making this decision and the evidence at trial clearly supported a finding that Jessica had not provided A.M. with adequate medical attention. Testimony revealed that on numerous occasions A.M. required immediate medical attention when Anthony picked her up. While Jessica admitted she sometimes waited to have Anthony take A.M. to the doctor, she argued this was because she did not have access to A.M.’s insurance information. Regardless of whether this contention is true, this did not absolve her of the responsibility to provide A.M. with medical care. At the time the parties divorced, neither party had insurance coverage, and the agreement stated they would both divide the cost of medical care.

Further, the evidence at trial supported the trial court’s conclusion that Anthony would provide a more stable environment than Jessica, given her frequent moves and given his remarriage and ownership of a permanent home. In short, the trial court was in a much better position to determine that the totality of these factors constituted a substantial, material, unforeseen change in circumstances warranting modification. While “[fjrequent moves, a less stable lifestyle, [and] even poor relationship choices standing alone may not support a custody modification where the residential parent has moved out of necessity, has subsequently established a stable home, and the child’s needs have always been met,” this was not the case here. Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999).

We affirm the trial court’s finding of changed circumstances and its modification of custody.

STEVENSON, J., concurs.

TAYLOR, J., dissents with opinion.

TAYLOR, J.,

dissenting.

I respectfully dissent and would reverse the trial court’s modification order transferring primary residential custody of the parties’ five-year-old daughter from the former wife to the former husband. I believe the trial court abused its discretion in modifying the final judgment because the former husband failed to meet his burden of showing a substantial and material change of circumstances since the original custody disposition and that a change of custody would promote the best interest of the child.

The trial court transferred physical custody of the minor child to the former husband essentially because it determined that the former husband could provide better medical care and a more stable home for her. The court determined that the former wife " failed to provide adequate medical care for the child because (1) she failed to have her vaccinated for chicken pox and the child later contracted chicken pox, and (2) the former wife did not take the child for doctor or dentist visits as frequently as did the former husband. The court also concluded that because the former wife had moved several times within the four-year period since the divorce, the former husband, who had remarried and settled into a home in a good neighborhood, could provide a more stable environment for the child.

As we held in Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999) (citing Bartolotta v. Bartolotta, 687 So.2d 1385 (Fla. 4th DCA 1997)), “[a] petitioning parent must overcome an extraordinary burden to receive a post-judgment custody modification. A trial court has far less discretion in modifying a custody order than it enjoys in making an original determination. The husband had to prove that circumstances had substantially and materially changed since the final judgment and that a change of custody would promote the best interests of the child.” This requirement for modifying child custody was reiterated in Wade v. Hirschman, 903 So.2d 928, 931 (Fla.2005) (adopting the substantial change test in Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003)). In Wade, the Florida Supreme Court stressed that res judicata attached to the parties’ original final divorce judgment, and that the initial child custody determination contained in the judgment could not be modified without satisfying the substantial change test. Id. at 932-33.

Here, the fact that the former husband took the child for medical and dental visits more often than did the former wife was not a “change in circumstances” that was not contemplated at the time of the final judgment. The final judgment and marital separation agreement made both parents equally responsible for the child’s medical and dental needs. At the time of the divorce, the wife had limited income and financial resources; the parties knew that the former wife would be dependent upon the former husband for child support and that she would have difficulty providing for the minor child’s medical and dental needs without his financial assistance. Neither party possessed health insurance at the time of the final judgment, but the former husband was later able to get insurance coverage for the child through his present wife’s health insurance plan. The former husband failed, however, to provide the former wife with an insurance card and equal access to insurance information to allow her to secure medical attention for the child on her own. As a result, the husband often took the child for medical or dental appointments during his visitation period with the child. The evidence did not show that any of these medical or dental visits were for life-threatening or uncommon childhood ailments.

The trial court also concluded that the former wife failed to provide the child with appropriate medical care by refusing to get the child inoculated for chicken pox. The child contracted chicken pox when she was four years old. However, the former wife’s decision not to get the child immunized against chicken pox was made before the child’s twelve-month birthday (when the immunization would have been given) and pre-dated entry of the final judgment, as well as the marital settlement agreement. Thus, this decision did not constitute a change in circumstances. Further, the former wife’s decision not to obtain the vaccine did not warrant a finding of medical neglect justifying a change in custody. The former wife testified that she had concerns about the risks and dangers surrounding the chicken pox vaccine and chose not to get the vaccine for valid reasons. The former husband did not contradict her concerns or refute recent research indicating the benefits of allowing children to be exposed to the chicken pox disease itself. Further, testimony was presented that the Broward County School Board does not require this vaccine for students if a parent elects not to get it.

As to the former wife’s frequent moves, the former wife, who represented herself at the modification hearing, conceded that she had changed residences six times in the four years since the divorce. She testified, however, that she did so for the child’s best interest and that she now lives in an area close to a park and a school. The former husband offered no evidence whatsoever to contradict her testimony or to show that the child suffered any deprivation or manifested any behavioral or physical changes as a result of the changes in residence. In Sullivan, we stated that frequent moves and a less stable lifestyle alone may not support a custody modification where the residential parent has moved out of necessity, has subsequently established a stable home, and the child’s needs have been met. 736 So.2d at 105.

Here, the trial court contrasted the former wife’s multiple moves with the former husband’s remarriage and settlement with his new wife and children into a large home in an affluent neighborhood close to “A” rated schools. Placing great emphasis on the former husband’s superior financial ability to provide the child with medical care and a stable home, the court transferred physical custody of the child to the former husband. The court did this despite finding that, in every other aspect, the parties have an equal capacity and disposition to provide the child with her needs. In my view, this was an abuse of discretion. “[T]he relative stability of a parent’s home environment is itself inadequate to constitute a substantial and material change” in circumstances that would warrant modification of child custody. Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997).

In sum, the court’s findings in this case are insufficient to justify modification of child custody. The former husband failed to meet his heavy burden of proving that there has been a substantial and material change in circumstances since the final judgment and that removing physical custody of the daughter from the former wife to the former husband is in the best interest of the minor child. I would therefore reverse the modification order and instruct the trial court to immediately return the child to the mother as her primary custodial parent, in accordance with the original custody order.


source: Caselaw Access Project

author: FARMER, J. MAY, J.,

license: Public Domain

text:
    Frances EDWARDS, Appellant, v. Richard J. SIMON, M.D.; Orthopedic Center of South Florida, P.A., Appellees.
    No. 4D06-1502.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied Aug. 29, 2007.
    Donald Feldman, Tamarac, for appellant.
    Roberta G. Mandel of Stephens Lynn Klein La Cava Hoffman & Puya, Miami, for appellees.
   FARMER, J.

In this medical malpractice action, the trial court entered summary judgment in favor of the defendant surgeon because plaintiff failed to respond to the motion with an affidavit by an expert as to the standard of care. Because the discovery record reveals testimony by plaintiffs treating physician that the surgery was unnecessary, we conclude that the record discloses a triable issue of fact as to the standard of care and consequently reverse for further proceedings.

In brief the critical facts are these. Plaintiff slipped and fell in her shower suffering a shoulder injury. She visited Dr. Strain on the next day. He advised her against surgery as unnecessary but, because he was not on her health care plan, he could not treat her. She then went to Dr. Simon who recommended surgery and performed the implantation of rods in her shoulder. That surgery failed to relieve her injury, which became worse. After arranging for her plan to cover him, she went back to Dr. Strain. He reminded her that he did not think she needed surgery when she first visited and, after reviewing Dr. Simon’s films before surgery, said that he still thought surgery was unnecessary.

In plaintiffs suit against Dr. Simon, the issue is whether defendant acted according to the standard of care in performing unnecessary surgery on plaintiff. Dr. Strain testified to the above facts in pretrial depositions. He also testified that he had no opinion as to whether defendant negligently performed the surgery itself.

Defendant moved for summary judgment. He supported the motion with an affidavit of an orthopedics expert that was not filed until 10 days before the hearing on the motion. The affidavit stated that Dr. Simon’s performance of the surgery was within the standard of care. But the affidavit failed to say whether forgoing the surgery would have been a departure from the standard of care. Nor did he state whether recommending surgery would have been a departure. Defendant essentially argued that plaintiff was unable to show that the surgery as performed contributed to or caused her present condition because plaintiff had not offered any expert opinion testimony to that effect. The trial judge agreed and granted summary judgment.

In short, the issue is whether further expert opinion testimony — specifically saying in precise words that having any surgery was below the standard of care — was necessary to defeat the motion for summary judgment. Summary judgment motions present an issue answerable from the record established in the case up to that point. The burden on the moving party is fairly described as conclusively demonstrating that the opposing party could not possibly prove up a cause of action (or defense, if the roles are reversed). Orlando v. FEI Hollywood, Inc., 898 So.2d 167 (Fla. 4th DCA 2005) (party moving for summary judgment must show conclusively the absence of any genuine issue of material fact); Serchay v. NTS Ft. Laud. Office Joint Venture, 657 So.2d 57 (Fla. 4th DCA 1995) (movant for summary judgment has burden of conclusively proving nonexistence of material fact dispute and of disproving fact matters raised as defenses). Also it is critical in summary judgment proceedings to remember that as to evidence already in the record the court must draw every possible inference in favor of the non-moving party. Id.

As with every summary judgment the issue is whether the facts are so crystallized that trial would be superfluous. In this instance, however, the body of medical malpractice law assists in the outcome. There is a distinction between a consent for surgery and a consent induced by an insufficient disclosure. In this case it is clear that plaintiff is complaining of Dr. Simon’s performance of surgery when it was not medically indicated. In support of this claim she has pointed to the pretrial testimony of Dr. Strain. He clearly said that he did not think surgery was indicated when he saw her before Dr. Simon operated on her, and that he continued to have the same opinion after the operation and viewing the films on which Dr. Simon relied. That he disclaimed giving any standard of care opinion as to how well Dr. Simon did the actual surgery hardly changes his opinion that no surgery was indicated.

The question here is whether this pretrial testimony by Dr. Strain is sufficient to show the existence of a triable issue even though it lacks the formal appendage of the words “standard of care.” For that we find an answer in Atkins v. Humes, 110 So.2d 663 (Fla.1959). In reversing an opinion affirming a summary judgment in a medical malpractice action, the court explained:

“Nor was there a lack of expert testimony tending to prove the issue of negligence in failing to heed the classic warnings of Volkmann’s contracture, even though there was no direct testimony to this effect. One physician testified that, if notified of pain in this type of case, he would examine the patient and look for a tight cast, and ‘in the presence of a tight cast, the cast should be bi-valved ... to examine the arm in the area of the fracture and to also release any pressure, if the pressure is present.’ Another physician testified that if there was difficulty in flexing the fingers and an undue amount of pain in attempting to extend them, he ‘would begin looking around a bit more. If the cast was circular, I would bi-valve it, or as you deem necessary’ for the purpose of relieving the apparent pressure. We think there can be no doubt that, in the circumstances here, a jury issue was made as to Dr. Humes’ negligence in this respect.”

110 So.2d at 668. While the nature of the medical issues in this case and those in Atkins is not identical, the role played by the record testimony of the doctor-witnesses is functionally comparable. In Atkins the court relied on record deposition testimony by other doctors tending to show (without stating the exact words, as here) that there was evidence of malpractice by the defendant. Here Dr. Strain made clear that he thought surgery was not indicated and that the actual performance of the surgery by Dr. Simon did not change that opinion. We agree with plaintiffs argument that the performance of unnecessary surgery may constitute medical malpractice where it deviates from the standard of care and which, to defeat this motion for summary judgment, needed no further elucidation by an expert to demonstrate a jury issue.

We next address the trial court’s companion refusal to allow plaintiff to amend her pleadings to state a cause of action for lack of informed consent. Because of deposition testimony by both plaintiff and defendant, plaintiffs counsel sought to amend the complaint to add a claim that Dr. Simon had failed to disclose necessary information to her to inform her consent to the extent necessary for her condition. In other words she wanted the chance to prove a related claim that her consent to the surgery was not valid because she was not given the required medical disclosure for her condition.

In this instance given the trial court’s decision to grant a summary judgment, we cannot say that the accompanying denial of the motion to amend the complaint was an abuse of discretion. On remand, however, we leave it up to the court to determine whether an amendment should be permitted in light of our reversal for a trial on some future calendar.

Reversed.

STONE, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. Three years of litigating a medical malpractice action brought the parties to a hearing on the defendant Richard J. Simon, M.D.’s motion for summary judgment. The defendant doctor provided the court with an affidavit from an expert witness attesting that the surgery he performed was within the standard of care. The plaintiff attempted to counter the affidavit with the deposition testimony of the first doctor consulted by the plaintiff/ The plaintiff did not file an expert witness affidavit even though the trial court gave the plaintiff ten additional days following the hearing to do so. And, the deposition testimony of the first doctor did not address the standard of care.

It is important to note precisely what the first doctor testified to. In his first deposition, he testified that he thought surgery was unnecessary for the plaintiff because she had suffered a minimal fracture and had no displacement at the fracture site. He believed that a sling was all that she needed. He further testified that orthopedic literature supported his view. He did not testify concerning the standard of care and did not testify that the surgery performed by the defendant doctor fell below the standard of care.

At the second deposition, the first doctor reiterated that he neither had an opinion nor was critical of the defendant doctor’s decision to treat the plaintiff by open reduction and internal fixation. “Yeah, I did not evaluate any of this with respect to standard of care.” He also testified that he had not had the benefit of additional x-rays available to the defendant doctor at the time the defendant doctor decided that surgery was the better course of treatment.

When plaintiffs counsel questioned whether the first doctor told the plaintiff he was “just livid,” and that the plaintiff should report the defendant doctor to the Department of Professional Regulation for doing the surgery, he replied: “I don’t recall that, no.” “I don’t remember it. It doesn’t sound like something I’d say.”

“To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984) (citing Wale v. Barnes, 278 So.2d 601, 603 (Fla.1973)). In fact, the legislature has defined standard of care as “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers,” § 766.102(1), Fla. Stat. (2006). Standard of care is a legal term of art, and, in my view, not subject to paraphrasing.

Here, the defendant established by expert attestation that the defendant doctor’s treatment of the plaintiff fell within the standard of care. The best the plaintiff was able to do is present deposition testimony of another doctor who testified that he would have treated the plaintiff differently. That doctor specifically refused to comment on the “standard of care.”

The failure of the plaintiff to create a genuine issue of material fact as to whether the defendant doctor deviated from the standard of care was fatal to her case. The trial court correctly granted the defendant doctor’s motion for summary judgment. I would affirm.

I further disagree with the majority’s suggestion that the trial court may allow the plaintiff to amend her complaint to state a new claim upon remand. In my view, the trial court did not abuse its discretion in denying the plaintiffs motion to amend and that ruling should be affirmed. See Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996) (citing Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc., 553 So.2d 336 (Fla. 4th DCA 1989)).

      . The trial court initially denied the motion for summary judgment without prejudice and gave the plaintiff an additional ten days to file an expert witness affidavit attesting that the defendant doctor had deviated from the standard of care in performing surgery on the plaintiff. The plaintiff chose not to file anything and the court then entered the summary judgment for the defendant.

      . The majority appears to admit that the performance of unnecessary surgery must also deviate from the standard of care to constitute a viable medical malpractice claim. (See majority opinion at 975). Yet, the majority does not require expert testimony that specifically addresses the standard of care to defeat a motion for summary judgment.


author: REYES, ISRAEL U., Associate Judge.

text:
    7-ELEVEN, INC., Appellant, v. STIN, L.L.C., Margaret Kobliska and Paul Flanigan, Appellees.
    No. 4D06-913.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Rehearing Denied Aug. 27, 2007.
    Ronald S. Holliday and S. Douglas Knox of DLA Piper U.S. LLP, Tampa, for appellant.
    Beverly A. Pohl and John R. Gillespie of Broad and Cassel, Fort Lauderdale, for appellee Paul Flanigan.
   REYES, ISRAEL U., Associate Judge.

The Defendant lessee, 7-Eleven, Inc., timely appeals a final declaratory judgment, stating that the owners/lessors, Margaret Kobliska and Stin, L.L.C., were obligated to sell the subject property to prospective buyer Paul Flanigan because 7-Eleven failed to exercise its right of first refusal. The standard of review is de novo. See Lawyers Title Ins. Co. v. Novastar Mortgage, Inc., 862 So.2d 793, 797 (Fla. 4th DCA 2003). We reverse.

In 1974, 7-Eleven and the property owners’ predecessor entered into a lease, which contained a right of first refusal clause that is the subject of this appeal. Paragraph twenty, entitled “Right of First Refusal,” states:

If during the term of this lease, or any extension thereof, Lessor shall receive a bona fide offer to purchase the demised premises, which offer is acceptable to Lessor, Lessor agrees that Lessee shall have and is hereby granted an option to purchase the demised premises upon the same terms and provisions. Lessor agrees immediately after receipt of such offer to give Lessee notice in writing of the terms and provisions thereof, and that Lessee may exercise its option to purchase said property at any time within twenty days after such notice is received by Lessee. If Lessee shall elect to exercise such option it shall do so by giving notice in writing to Lessor within such twenty-day period and a contract of sale shall be executed by the parties and title closed within a reasonable time thereafter.

On October 28, 2004, the owners and Paul Flanigan signed an agreement whereby Flanigan would purchase the property for $2,270,000. Flanigan gave the owners a deposit of $120,000. Flanigan’s contract further provided that Flanigan and the owners would enter into a three-year lease that would have a monthly rent of $10,000. At the closing, which was to be at the end of the lease, the owners would receive the remaining $2,150,000 in the form of wired funds or a cashier’s check. Flanigan would have all risk of condemnation until midnight of the closing date.

By letter dated October 29, 2004, the owners notified 7-Eleven, in accordance with paragraph twenty of 7-Eleven’s lease, that they had received a “bona fide offer” and that 7-Eleven had

20 days from date of receipt of this notice to elect to purchase the property under the same terms and conditions contained in this offer which is acceptable to the Lessor. Your decision to exercise must be in writing and received by the undersigned, on behalf of the Lessor, within such 20 day period.

Upon receiving the letter, 7-Eleven sent a response, stating that

7-Eleven, Inc., hereby exercises its right to purchase the captioned property for Two Million Two Hundred Seventy Thousand and 00/100 Dollars ($2,270,-000.00), pursuant to your letter dated October 29, 2004 and Article 20 of the lease dated March 26, 1974, originally between Palm Cottages and Apartments, Inc. and The Southland Corporation.
Within the next few days, a contract will be prepared and forwarded to you for signature on behalf of the landlord.

On December 2, 2004, the owners rejected 7-Eleven’s first proposed contract, which followed the letter, stating:

[Tjhere [were] a number of essential terms in the Flanigan agreement which 7-Eleven chose not to match in its offer. These terms include, but are not limited to, the net consideration which would be realized by the seller under the Flanigan contract versus that offered by 7-Elev-en, the availability of the deposit to the seller, assessment of closing costs, allocation of risk between buyer and seller in the event of condemnation or casualty prior to closing, and the extent of seller’s and buyer’s remedies in the event of the other party’s default.
Due to the above differences in the contract proposals, the owner must reject 7-Eleven’s offer as not satisfying the requirements of the right of first refusal and will now proceed with the Flanigan contract.

The day after the owners rejected the offer, 7-Eleven informed the owners that it was “prepared to match the terms, as outlined in the Purchase Agreement between [the owners], as Seller and Paul Flanigan, as buyer, dated October 28, 2004.” Thereafter, 7-Eleven sent a followup letter reaffirming that “7-Eleven [was] prepared to meet all material terms of the Flanigan agreement in connection -with its election to exercise its right of first refusal under its Lease Agreement.” This letter also said that enclosed was a “revised Purchase Agreement.” The revised agreement stated that the purchase price was $2,150,000, but, for three years, 7-Eleven would lease the property for an additional $10,000 a month. Unlike the prior agreement, this contract did not mention putting money in escrow, and this agreement said 7-Eleven bore the risk of condemnation. According to the owners’ attorney, this version included the material terms.

After receiving 7-Eleven’s second contract, the owners sought declaratory relief. The owners requested that the trial court determine that 7-Eleven did not properly exercise its right of first refusal, relying on the deficiencies of the first proposed contract. When answering the complaint, 7-Eleven admitted that, in November of 2004, it gave the owners the first “proposed contract.” After the owners said the contract contained “certain deficiencies,” 7-Eleven “transmitted a revised Purchase Agreement to Plaintiffs on December 13, 2004.” 7-Eleven believed that “to the extent the so-called ‘November Agreement’ contained any deficiencies, ... [they were cured] by the [] ‘December Agreement.’ ”

Thereafter, Flanigan and 7-Eleven moved for summary judgment. According to 7-Eleven, the right of first refusal contemplated a three-step process. First, once the owners received a suitable offer, they were obligated to provide 7-Eleven with written notice. Second, 7-Eleven had twenty days to inform the owners of its decision to put-chase the property. Third, 7-Eleven and the owners were obligated to enter into a contract within a reasonable time period.

In its motion, and at a subsequent hearing, 7-Eleven argued it was entitled to summary judgment because it submitted a letter that provided notice and also submitted “a proposed contract” and a revised contract. According to 7-Eleven, the only real difference between its first contract and Flanigan’s was Flanigan’s provision for a lease, and, despite any differences, its agreement met or exceeded Flanigan’s material terms.

The trial court granted summary judgment in Flanigan’s favor. The trial court found that 7-Eleven’s first proposed agreement had material differences because it did not contain a three-year lease provision, failed to require a deposit, and was silent as to the sharing of responsibility in the event of condemnation. Thus, the first proposed contract failed to meet the essential terms, and the company failed to properly exercise the right of first refusal. Having granted summary judgment in Flanigan’s favor, the trial court subsequently declared that 7-Eleven’s right of first refusal expired and that Flan-igan had an enforceable purchase agreement.

We reverse, concluding that, under the specific facts in this case, 7-Eleven properly exercised its right of first refusal by submitting its letter dated November 15, 2004, and the second proposed contract on December 13, 2004.

Before we proceed further, we would note that this factual scenario is not typical because the Flanigan contract contemplated the operation of a restaurant and contained provisions to that end, such as additional construction and parking. These conditions, which the trial court correctly recognized did not have to be matched by 7-Eleven, made the exercise of the right of first refusal by 7-Eleven more complicated than if the property were going to be used for the same purpose by both offerors. Because of this difference in uses, we conclude that 7-Eleven’s first proposed contract should not have been 7-Eleven’s only opportunity to match Flanigan’s offer.

The case of Green v. First American Bank & Trust, 511 So.2d 569 (Fla. 4th DCA 1987), cited by the owners, is distinguishable. In Green, Knight Enterprises, a third party, submitted an offer to a property’s trustee. See id. at 570. Upon receiving notice of the offer, E.G. Green, a minority owner of the property, submitted a letter that said he was exercising his right to purchase the property. See id. at 571 n. 1. The letter’s exact language said:

This will advise you that E.G. Green is exercising his minority right pursuant to paragraph 2 of the Trust Agreement between E.G. Green and others with regard to the land located at Congress and Clint Moore Road in Boca Raton. Pursuant to the terms of a contract from Knight Enterprises, Inc., dated February 7, 1984 and a copy of which was delivered to Mr. Green on February 10, 1984 at 5:00 p.m. This delivery of the contract was also accompanied by a letter directing you to accept the offer in said contract and signed by all beneficiaries except E.G. Green.

Id. Green subsequently submitted an agreement that stipulated he would pay an amount equal to the amount offered by Knight Enterprises less the 10% broker’s commission. See id. at 571. When Green refused to offer the same amount of money as Knight, the trustees sought a declaratory judgment as to whether Green had properly exercised his right of first refusal or whether the trustees could sell the property to Knight Enterprises. See id. The trial court found that while Green’s letter validly exercised the right of first refusal, his proposed offer waived or retracted that offer. See id. at 572.

Similar to the arguments raised by 7-Eleven, Green argued on appeal that his letter legally exercised his right of first refusal and any problems with the price of his offer did not waive that right. This court rejected that contention:

Green’s purported exercise of his option is very questionable because of its phraseology. It never states that he is exercising his right to purchase on the same terms and conditions set forth in Knight’s offer.... [T]he original offer contained in Green’s lawyer’s letter of February 15, 1984, was not a sufficient exercise of the option because, as Green himself admits, he never intended to match Knight’s offer because of the deletion of the brokerage commission, which may well be the reason the offer was stated in such a vague fashion.

Id. at 574-75.

Relying on Pearson v. Fulton, 497 So.2d 898 (Fla. 2d DCA 1986), and Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360, 361 (Fla. 3d DCA 1985), 7-Eleven asserts that it exercised the right of first refusal by sending a letter on November 15, 2004, which stated it was exercising its right and would send a contract. In Pearson, the parties did not dispute that the appellant exercised his right of first refusal when he sent a letter to the trustees of the property stating “[pjlease take notice that we hereby elect to exercise that right of first refusal and hereby demand that you forward any or all executed contracts pursuant to that right to the undersigned at this address.” 497 So.2d at 899. However, the Second District, despite stating that it had no difficulties holding the letter was sufficient to exercise the option, did not address what a party must include in the letter. See id. at 900.

In Keys Lobster, Ocean Divers sent Keys Lobster a letter, stating that “it was exercising its right of first refusal ‘under the terms of the ... Purchase Agreement.’ ” 468 So.2d at 361. Litigation commenced when Keys Lobster refused to sell the property to Ocean Divers. See id. at 362. The Third District agreed with the trial court that Ocean Divers executed the right of first refusal and formed a binding contract by sending its letter to Keys Lobster. See id. at 363. When reaching this conclusion, the Third District explicitly stated that it would have reached the same conclusion

even if Ocean Divers had not included the language “under the terms of the ... Purchase Agreement” in its letter. When a party exercises its right of first refusal, it “elect[s] to take [the subject] property at the same price and on the same terms and conditions as those contained in [a] good faith offer by a third person if the owner manifests a willingness to accept the offer.” Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla. 3d DCA 1970) (emphasis added).

Id. at 363 n. 2.

Contracts should receive a construction that is reasonable, practicable, sensible, and just. See Doctors Co. v. Health Mgmt. Assocs., Inc., 943 So.2d 807, 809 (Fla. 2d DCA 2006), review denied, 956 So.2d 455 (Fla.2007). In its letter exercising its right of first refusal, 7-Eleven cited to Paragraph 20 of the subject lease and the letter sent by the seller. Thus, 7-Eleven, by invocation of Paragraph 20, was agreeing to the same material terms as the contract between the seller and Flanigan. It was not necessary for 7-Eleven to parrot the terms of the Flanigan contract because, by invoking the other two documents, 7-Eleven was essentially agreeing to the terms of the Flanigan contract. It is of no import that other non-material terms remained to be negotiated. See, e.g., Am. Capital Network v. Command Credit Corp., 707 So.2d 874 (Fla. 4th DCA 1998); Hous. Auth. of City of Fort Pierce v. Foster, 237 So.2d 569 (Fla. 4th DCA 1970); Bluevack, Inc. v. Walter E. Heller & Co. of Fla., 331 So.2d 359 (Fla. 3d DCA 1976).

We conclude that, under these specific facts, 7-Eleven properly exercised its right of first refusal by sending the letter and the second contract, which satisfied the objections to the first proposed contract. Although we can see how the trial court concluded to the contrary, based on precedent, in this case, it would have been unreasonable to require 7-Eleven to have only one opportunity to proffer a formal contract because the Flanigan offer contemplated a different use and some conditions were irrelevant if 7-Eleven purchased. Accordingly, we must reverse and remand for entry of a final declaratory judgment in favor of 7-Eleven.

Reversed and remanded for further proceedings.

KLEIN and SHAHOOD, JJ., concur.


author: THOMPSON, J.

text:
    Angela V. PATTERSON, Appellant, v. BROWNING’S PHARMACY & HEALTHCARE, INC., Appellee.
    No. 5D06-1572.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Rehearing Denied July 25, 2007.

      Wayne L. Allen of Allen & Arcadier, P.A., Melbourne, for Appellant.
    Allan P. Whitehead of Frese, Hansen, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   THOMPSON, J.

The trial court’s final judgment in this Family and Medical Leave Act lawsuit transformed Angela Patterson’s favorable jury verdict to a negative judgment after it struck the liquidated damages portion of the verdict. We reverse the order striking liquidated damages and final judgment and remand for a new trial on damages because the mitigation amount fails to comport with the manifest weight of the evidence.

Mrs. Patterson alleged that her employer, Browning’s Pharmacy & Healthcare, Inc., committed unlawful employment practices under the FMLA when it restrained, interfered and denied her right to a leave of absence when her husband required quadruple bypass surgery. The jury found that Browning’s violated the FMLA to Mrs. Patterson’s prejudice. It accepted her valuation of back pay and awarded her that amount and a like amount in liquidated damages.

At this stage of the proceedings, however, the jury’s damages calculation' went awry. In FMLA and other employment law cases, a failure to diligently seek new employment precludes an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT & T Corp., 250 F.3d 820, 838 (4th Cir.2001). The instruction on duty to mitigate tells the jury to reduce the amount of damages by the amount the plaintiff could have reasonably realized if she had taken advantage of reasonable opportunities for substantially equivalent employment. The completed part of the verdict form on damages reads:

Question Four-Damages
What is the amount of damage that Plaintiff should be awarded:
A. Back Pay Damages (include interest): $125,486.72
B. Liquidated Damages (should be the same as A.): $125,486.72
C. Reduction of Damages for failure to mitigate $167,994.40
TOTAL DAMAGES AWARDED : $ 82,879.04

One cannot isolate the source of the problem, whether fault lies with an imprecise damages instruction or a defective verdict form, or both. Had the instruction specified that any mitigation reduced the first line regarding back pay, this problem would not have arisen. Along the same line, if the verdict form specified in its formula that the mitigation amount reduced part A and that the net amount equaled liquidated damages in part B, no miscalculation would have resulted.

In any event, the jury’s monetary finding on Mrs. Patterson’s failure to mitigate is not supported by the manifest weight of the evidence. The only evidence of Mrs. Patterson’s request for damages was her testimony and 2001 W-2 statement of earnings showing gross income of $29,286.72. She sought four years’ back pay from 11 February 2002 through the February 2006 trial date, and that amount with interest totaled $125,438.68. There was no evidence to support a conclusion that she could have mitigated her damages through employment that paid more than she was earning at Browning’s. The jury could have found Mrs. Patterson should have mitigated her damages by an amount equal to her back pay of $125,486.72, or any lesser amount. There is no evidentia-ry basis for the jury’s finding that she should have mitigated her damages by $167,994.40.

Post-trial, the court, when presented with the opportunity to strike the liquidated damages portion of the verdict, expressed its consternation over the verdict:

The jury found a violation. We can only guess as to the exact basis for that. They either found that she did, in fact, ask for a leave, or that she did not ask for a leave, but provided sufficient information to the employer that their obligate [sic] — in either event, enough information exchanged that their obligation to affirmatively advise her as to her FMLA rights until a leave came up and the employer failed to do so.
It is my conclusion that the employer never did figure out that they had done anything wrong until being advised months later, and certainly there was nothing they could do about it at that point other than try to assist her in the part time to the extent they had it. I conclude they did, in fact, proceed in good faith, and as they were doing what they did, had no reason to believe, reasonable grounds — they had no reason to believe they were violating the Act; had reasonable grounds to believe they had not. I feel compelled based upon that to strike the liquidated damages.

Its ruling produced a verdict of negative $42,507.68 or zero. Mrs. Patterson argued below in post-trial motions that the jury’s calculation of a mitigation reduction failed to comport with the manifest weight of the evidence. But, after the trial court considered Mrs. Patterson’s motion for a new trial on damages and remittitur of the mitigation amount, the trial court denied relief and entered a final judgment.

A verdict comes to an appellate court clothed with a presumption of regularity and should not be disturbed if supported by the evidence. Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004). We review a trial court’s award of liquidated damages for an abuse of discretion. Cooper v. Fulton County, 458 F.3d 1282, 1287 (11th Cir. 2006); Hite v. Vermeer Manu. Co., 446 F.3d 858, 868 (8th Cir.2006). The trial court’s rulings will be reversed only if clearly erroneous. Cooper, 458 F.3d at 1287.

29 U.S.C. § 2617(a) provides for the employer’s liability under FMLA and specifies that the employer shall be liable for back pay with interest and an additional amount of liquidated damages equal to the back pay and interest amount. It further provides that the court may reduce, in its discretion, only the liquidated damages amount when the employer proves to the trial court’s satisfaction that the act or omission that violated 29 U.S.C. § 2615 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615. The statute does not allow a reduction in liquidated damages to lessen the back pay and interest element of damages. The court may reduce the liquidated damages award to only compensatory damages if the employer proves the good faith and reasonable grounds prerequisite set out in the statute. Chandler v. Specialty Tires of Am., Inc., 283 F.3d 818, 827 (6th Cir.2002) (emphasis added).

In this case, the verdict does not comport with the manifest weight of the evidence, and the trial court’s post-trial rulings result in a verdict that does not comply with FMLA regarding entitlement to damages. The trial court abused its discretion in reducing the damages to an amount less than the award of compensatory damages and interest. Because its ruling is clearly erroneous, we must reverse.

The employer must show both good faith and reasonable grounds for the act or omission. Chandler, 283 F.3d at 827. The Eleventh Circuit in Cooper cited the Sixth Circuit’s decision in Chandler and held that the same conduct evincing the employer’s good faith did not establish the reasonableness of its conduct. In that case, the court administrator never consulted the FMLA or its implementing regulations and though he consulted the personnel director regarding the employee’s situation, the court found that the director had not read the statute or regulations. Neither superior consulted with an attorney, contacted the Department of Labor, or reviewed any of the DOL’s advisory opinions before terminating the employee. Though the district court found that the employer had acted in subjective good faith, these factors demonstrated that the employer’s conduct was not objectively reasonable. To avoid a liquidated damages award, the defendant bears the burden of establishing that it acted with subjective good faith and that it had an objectively reasonable belief that its conduct did not violate the law. Hite, 446 F.3d at 868. The good faith requirement demands that the defendant establish that it honestly intended to ascertain the dictates of the FMLA and to act in conformance with it. Id. In making a decision whether to award liquidated damages, the trial court should exercise its discretion consistently with the strong presumption under the statute in favor of doubling. Id. at 868-69.

Federal law requires that the employer notify the employee of FMLA entitlements and employee obligations through its employee handbook and also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining the consequences of a failure to meet these obligations. 29 C.F.R. § 825.801(a)(1), (b)(1). The notice shall be given within a reasonable time after notice of the need for leave is given by the employee — within one or two business days if feasible. 29 C.F.R. § 825.301(c). When a medical emergency requires an employee to care for a family member’s serious health condition, written advance notice pursuant to an employers’ internal rules and procedures may not be required when FMLA leave is involved. 29 C.F.R. § 825.303(a). In such a case, the employee should provide notice to the employer either in person or by telephone or other electronic means. 29 C.F.R. § 825.303(b). The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. Id.

In this case, Browning’s violated the FMLA by failing to explain FMLA benefits and leave rights to Mrs. Patterson when she requested leave. See Dodgens v. Kent Mfg. Co., 955 F.Supp. 560 (D.S.C.1997). This failure constitutes actionable interference with the employee’s ability to meaningfully exercise her right to FMLA leave, if the employee can show resulting prejudice. Conoshenti v. Public Svc. Elec. & Gas Co., 364 F.3d 135 (3rd Cir.2004). An employee’s notice to the employer of a spouse’s serious medical condition alone triggers the requirement that the employer provide a detailed FMLA notice.

The specific “act or omission” is the focus of the two-step analysis of good faith that allows the trial court to reduce liquidated damages. The question is whether the specific act or omission violated section 2615. Hence, the objective inquiry here was whether Browning’s demonstrated reasonable grounds for believing that its failure to give Mrs. Patterson a detailed FMLA notice was not a violation of section 2615. The evidence demonstrated that Browning’s human resources staff did not know any such requirement and made no attempt to learn any FMLA requirements or obligations. The burden was on Browning’s to show a pattern of good faith inquiry and consideration of whether it was obligated to supply Mrs. Patterson with proper FMLA notice within a few days of 2 February 2002.

The trial court’s ruling fails to satisfy the objective standard to reduce liquidated damages. First, the gist of the ruling deals with the court’s view of the plaintiffs credibility. Second, the court reasoned that it does not believe that Mrs. Patterson asked for leave, but that she indicated initially that she had a serious medical problem with her husband and wanted to assist him and care for him. FMLA regulations do not require Mrs. Patterson to ask for leave; the burden is on the employer to provide the proper notice of FMLA rights and obligations when the employee informs the employer, even by telephone, of the serious medical condition of the employee or employee’s spouse or child. Browning’s human resource officer testified that Mrs. Patterson advised him of her need to assist her husband for four to six weeks. Mrs. Patterson testified that she desired the benefit of her accrued leave to allow her the time to assist with her husband’s recuperation. Even assuming, however, that Browning’s human resource department offered her leave, a disputed fact, it had already violated FMLA because it received sufficient notice to trigger the employer’s duty to supply a detailed FMLA notice. The fact that Browning’s may have offered her leave does not defeat Mrs. Patterson’s entitlement to damages. No one in human resources made any effort to determine what rights Mrs. Patterson had, if any, or whether they were complying with the law. Browning’s did not demonstrate objective good faith because it, as the trial court’s findings indicate, took no action at all to learn about the employee’s' FMLA rights.

Accordingly, we REVERSE the final judgment and order striking liquidated damages and REMAND for a new trial on damages.

PLEUS, C.J. and SAWAYA, J., concur.

      . Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 ("FMLA”).

      . The jury awarded Mrs. Patterson $125,486.72 in back pay, $125,486.72 in liquidated damages, and determined that she should have mitigated her damages by an amount of $167,994.40, for a net verdict of $82,979.04.

      The total of parts A and B less C.

      . Mrs. Patterson surmises that the jury doubled the mitigation deduction because it assumed she would be entitled to the total of back pay and liquidated damages as reduced by the mitigation amount. Half of the jury’s mitigation deduction is $83,997.20, which, when offset against back pay, equals $41,489.52. The jury awarded total damages of $82,879.04, equal to the aforesaid net amount of back pay plus an equal amount for liquidated damages.


author: PER CURIAM.

text:
    Deautre Ramone WHITLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3149.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2007.
    Rehearing Denied Aug. 3, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Knight v. State, 770 So.2d 663 (Fla.2000), and Bloodsaw v. State, 949 So.2d 1119 (Fla. 3d DCA 2007).

THOMPSON, and MONACO, JJ, and SMITH, T., Associate Judge, concur.


text:
    A.D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3911.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2007.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See A.D. v. State, 939 So.2d 1126 (Fla. 3d DCA 2006); R.C.W. v. State, 507 So.2d 700 (Fla. 1st DCA 1987).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    MIAMI HERALD MEDIA COMPANY, et al., Petitioners, v. S.-P,D. and I.-P,E., X and Y, etc., Respondents.
    No. 3D07-1111.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Holland Knight and Sanford Bohrer, Miami; Rebecca Kapusta, Tallahassee, for petitioners.
    Hogan Hartson and John F. O’Sullivan, Shelby Pasarell Tsai, Natalie N. Barefoot and Miguel A. Gonzalez, Miami; Alan I Mishael, Miami Beach; Kurzban, Kurzban, Weinger Tetzeli and Ira J. Kurzban, Miami, for respondents.
    Before GREEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

The Petitioner, Miami Herald Media Company, seeks an emergency writ of cer-tiorari quashing an order of the trial court that denies the Herald access to closed court proceedings. We grant the petition and quash the order under review.

On April 20, 2006, the trial court closed all proceedings in this dependency proceeding at the request of the temporary legal custodians and the Guardian Ad Li-tem “without prejudice to the Court’s consideration of any Motion for Access which may hereafter be filed.” In March, 2007, the Herald determined to challenge the order, and the court held an evidentiary hearing on the need for continued closure. After considering all of the evidence, the court concluded that the proceeding should remain closed.

Under Florida law, the trial court “may close any [dependency] hearing to the public upon determining that the public interest or the welfare of the child is best served by so doing.” § 39.507(2), Fla. Stat. (2006). However, such a determination must be supported by competent substantial evidence. See Hembree v. Thomas, 906 So.2d 321 (Fla. 1st DCA 2005)(“A trial court’s decision relating to [the best interest of the child] and to the modification of custody must be based on factual findings supported by competent substantial evidence.”). See also R.F. v. Fla. Dep’t of Children & Families (In the Interest of M.F.), 770 So.2d 1189, 1192 (Fla.2000)(“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.”). The evidence presented to the trial court fails to satisfy this requirement.

We quash the order of the trial court without prejudice.


author: WELLS, J.

text:
    Marvin SOLOMON, Appellant, v. NEW ERA MEAT # 2, Appellee.
    No. 3D06-2513.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Marvin Solomon, in proper person.
    Roland Gomez and Richard Gomez, Miami Lakes, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, J.

Affirmed. See Smith v. Orhama Inc., 907 So.2d 594, 596 (Fla. 3 DCA 2005) (observing that it is the appellant’s burden to provide a record that will overcome the presumption of correctness as to the trial court’s findings and that “[wjhere there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)(3), a judgment which is not fundamentally erroneous on its face must be affirmed” (quoting Ahmed v. Travelers Indem. Co., 516 So.2d 40, 40 (Fla. 3d DCA 1987))); Lisanti v. City of Port Richey, 787 So.2d 36, 37 (Fla. 2d DCA 2001) (observing “[t]he elements for negligence are duty, breach, harm, and proximate cause; the additional elements for a claim of premises liability include the defendant’s possession or control of the premises and notice of the dangerous condition”); Warriner v. Doug Tower, Inc., 180 So.2d 384, 385 (Fla. 3d DCA 1965) (concluding “[t]he plaintiff has failed to provide this court with an adequate transcript of the evidence and it must be assumed, therefore, that there was insufficient evidence to take the case to the jury in view of the order granting the motion for directed verdict”).


text:
    R.E.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and The Guardian ad Litem Program, Appellees.
    No. 3D06-2877.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Richard F. Joyce, Orlando, for appellant.
    Bernadette Noe, Tavernier, for appellee Department of Children and Family Services.
    Hillary S. Kambour, for appellee Guardian ad Litem Program.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Based on the facts of this case, we conclude that the trial court did not abuse its discretion in denying R.E.P.’s motion for continuance. See L.M. v. Dep’t of Children & Families, 946 So.2d 42 (Fla. 4th DCA 2006). Therefore, we affirm the trial court’s order adjudicating J.S. dependent as to R.E.P.

Affirmed.


text:
    Ronald Davis SMALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2874.
    District Court of Appeal of Florida, First District.
    June 28, 2007.
    Rehearing Denied Aug. 13, 2007.
    Ronald Davis Small, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

ALLEN, WOLF, and POLSTON, JJ., concur.


text:
    Jeremy Dewayne FOXWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2401.
    District Court of Appeal of Florida, First District.
    June 29, 2007.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant, who was originally sentenced as a youthful offender and successfully completed the Department of Corrections’ boot camp program, challenges as illegal his 76.5-month sentence imposed following revocation of his community control. He contends that he could not legally be sentenced to a term of more than 364 days following revocation of his community control. The state concedes error. We agree. See §§ 958.045(5)(c) & 958.04(2)(b), Fla. Stat. (2001); Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002). Accordingly, we reverse appellant’s 76.5-month sentence, and remand for resentencing, with directions that the sentence imposed not exceed 364 days, although it may be imposed to run consecutively to his 56-month sentence.

REVERSED and REMANDED, with directions.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


author: PALMER, J.

text:
    J.F., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 5D06-3489.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PALMER, J.

J.F. appeals her juvenile disposition order, contending that the trial court reversibly erred by ordering her to pay attorney’s fees in the amount of $400.00 without providing her proper notice of her right to contest the amount as required by section 938.30 of the Florida Statutes (2005) and rule 3.720(d) of the Florida Rules of Criminal Procedure. The State properly concedes error. Accordingly, the order requiring J.F. to pay attorney’s fees is hereby stricken, without prejudice. On remand, the fee obligation may be re-imposed, provided the trial court complies with the provisions of the rule. See D.B. v. State, 761 So.2d 1130 (Fla. 4th DCA 1998). Furthermore, based upon our review of the record, we direct that, on remand, this case must be assigned to a different judge.

Order STRICKEN; case REMANDED.

THOMPSON and MONACO, JJ., concur.


text:
    James CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3992.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2007.
    Rick Sichta, of Tassone Sichta, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Leeman v. State, 357 So.2d 703, 705 (Fla.1978) (reiterating that an offense must be charged “in the very language of the statute, or in language of equivalent import”).

AFFIRMED.

PLEUS, C.J., ORFINGER and TORPY, JJ., concur.


author: CANADY, Judge.

text:
    Kib B. SOUTHERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5801.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
   CANADY, Judge.

Kib B. Southers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the post-conviction court’s denial of Southers’ claims without comment. We note that Southers’ motion for rehearing and the postconviction court’s stay of that motion are nullities. The filing of the notice of appeal foreclosed any consideration by the postconviction court of the motion for rehearing either during or after the appeal. Cf. Cabrera v. State, 623 So.2d 825 (Fla. 2d DCA 1993) (holding that defendant’s subsequent filing of notice of appeal was an abandonment of a pending motion for rehearing and divested the trial court of jurisdiction to consider it).

Affirmed.

WHATLEY and DAVIS, JJ., Concur.


text:
    Juan Bautisa Nina JIMENEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2883.
    District Court of Appeal of Florida, First District.
    June 29, 2007.
    Juan Bautisa Nina Jimenez, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ALLEN, WOLF, and POLSTON, JJ., concur.


text:
    Ardyn D. MILLER, Appellant, v. Twyla HALL o/b/o Gary and Faith HALL, Appellee.
    No. 2D06-3403.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    Ardyn Miller, pro se.
    Twyla Hall, pro se.
   PER CURIAM.

Ardyn Miller appeals from the injunction for protection against repeat violence that was entered against him and in favor of Twyla Hall on behalf of her two minor children. The only issue before this court is whether the evidence presented at the evidentiary hearing on Hall’s petition was sufficient to support entry of the injunction. Therefore, this court has not considered the various documents and other non-record “evidence” submitted directly to this court by either party. Having thoroughly and carefully reviewed the transcript of the evidentiary hearing, we hold that the trial court’s decision to enter the requested injunction was supported by the evidence. Accordingly, we affirm.

Affirmed.

NORTHCUTT, STRINGER, and VILLANTI, JJ., Concur.


text:
    Ardyn D. MILLER, Appellant, v. Twyla HALL, Appellee.
    No. 2D06-3407.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    Ardyn Miller, pro se.
    Twyla Hall, pro se.
   PER CURIAM.

Ardyn Miller appeals from the injunction for protection against repeat violence that was entered against him and in favor of Twyla Hall. The only issue before this court is whether the evidence presented at the evidentiary hearing on Hall’s petition was sufficient to support entry of the injunction. Therefore, this court has not considered the various documents and other nonrecord “evidence” submitted directly to this court by either party. Having thoroughly and carefully reviewed the transcript of the evidentiary hearing, we hold that the trial court’s decision to enter the requested injunction was supported by the evidence. Accordingly, we affirm.

Affirmed.

NORTHCUTT, STRINGER, and VILLANTI, JJ., concur.


text:
    Clifford HOPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-764.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2007.
    Rehearing Denied Aug. 3, 2007.
    Clifford L. Hopkins, South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Guy v. State, 632 So.2d 1085 (Fla. 5th DCA 1994); Adams v. State, 617 So.2d 474 (Fla. 4th DCA 1993).

PLEUS, MONACO and TORPY, JJ„ concur.


text:
    Darryl Solomon HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-923.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Darryl Solomon Hope, Coleman, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We withdraw our opinion in Hope v. State, 908 So.2d 507 (Fla. 4th DCA 2005) and substitute the following:

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla.2006). See also Phillips v. State, 960 So.2d 29 (Fla. 4th DCA 2007).

SHAHOOD, C.J., GUNTHER and HAZOURI, JJ., concur.


text:
    Ricardo LANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2092.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Ricardo Lane, Arcadia, pro se.

      No appearance required for appellee.
   PER CURIAM.

The lower court properly denied appellant’s rule 3.800(a) motion by applying the “could-have-been-imposed” harmless' error test. Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006) (en banc), review granted, 948 So.2d 758 (Fla.2007). As we did in Ghanem v. State, 947 So.2d 1252 (Fla. 4th DCA 2007), we affirm without prejudice to appellant seeking relief in the lower court pursuant to rule 3.850, within the time remaining under that rule. Id. at 1253 (citing Greenwood v. State, 802 So.2d 401 (Fla. 4th DCA 2001)).

FARMER, STEVENSON and MAY, JJ., concur.


author: STONE, J.

text:
    Lemuel HAYWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-936.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Rehearing Denied Aug. 31, 2007.
    Sarah S. Butters and Andrew P. Lannon of Holland & Knight LLP, Tallahassee, and Steven L. Brannock, Tampa, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse the summary denial of Haywood’s rule 3.850 motion for post-conviction relief.

Haywood was convicted in 1984 on two counts of sexual battery with a firearm, one count of kidnapping with a firearm, and one count of robbery with a firearm. He was sentenced to four concurrent terms of life imprisonment. In 2003, the trial court granted Haywood’s motion for DNA testing on evidence taken from the victim. The DNA tests excluded Haywood as the donor of DNA (semen) found on the victim’s underwear and jeans. The DNA, in fact, was that of the victim’s boyfriend. Haywood seeks a new trial based on newly discovered evidence.

To prevail on his claim of newly discovered evidence, Haywood must show that the evidence would “probably produce an acquittal on retrial.” Mills v. State, 786 So.2d 547, 549-50 (Fla.2001) (citing Jones v. State, 709 So.2d 512, 521 (Fla.1998)); see also Rogers v. State, 783 So.2d 980, 1003 (Fla.2001); Williams v. State, 876 So.2d 1234, 1235 (Fla. 4th DCA 2004).

The test for determining whether newly discovered evidence meets the required showing has been clearly stated by the supreme court.

Newly discovered evidence meets this standard if “it weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability”.... The assessment also considers whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.

Williamson v. State, 961 So.2d 229, 2007 WL 1362872 (Fla. May 10, 2007) (citations omitted) (emphasis added).

The state concedes that the DNA evidence is newly discovered evidence, in that it could not have been determined at the time of trial, but disputes the fact that the evidence probably would have produced an acquittal at trial. The trial court evaluated the newly discovered evidence and the trial record to determine whether there is a probability that, with the new evidence, the defendant would have probably been acquitted at trial, see Robinson v. State, 865 So.2d 1259, 1262 (Fla.2004), but the court did not conduct an evidentiary hearing, as the newly discovered facts are undisputed.

The question is essentially one of impeachment as to identification. The victim testified at trial that Haywood was the man that robbed the store where she was working, kidnapped her, and sexually battered her. However, she was not able to identify anyone at the live line-up and was uncertain as to a photo ID. There were also questions raised on cross-examination regarding discrepancies between Haywood’s appearance and the victim’s earlier statement, including some noticeable physical features she had not described. At trial, the victim was not able to recall Haywood’s tattoo and that he had no teeth, even though she was forced to kiss her attacker. The emergency room physician who examined the victim found no injuries. He also testified that the victim reported to him that two men committed the sexual battery. At trial, she testified that only Haywood did so. On cross-examination, the victim stated that the man who robbed the store and assaulted her was wearing sunglasses and had dark skin and craters or pock marks on his face. Haywood is a light skinned black male and does not have a pock marked complexion. The victim also did not see any tattoos, although Haywood has a prominent tattoo on his arm.

The testimony of the other witness to the robbery, the store manager, was also impeached. Although she identified Haywood’s tattoo in her deposition, she stated that the tattoo she saw was red, when in fact Haywood’s tattoo is black and blue. Furthermore, Haywood’s tattoo is on his left arm and, in deposition, the witness stated that the tattoo was on his right arm. Additionally, although she had picked Haywood in a photo line-up, she was not sure if he was the perpetrator identified as wearing a blue suit or the perpetrator stated to be wearing a bathing suit. She also acknowledged that talking to the police about her identification could have influenced her identification.

The state relied heavily on the serology evidence and the identification in its closing argument. At trial, a serologist testified that the blood type of the seminal fluid found on the victim’s underwear and jeans matched Haywood’s blood type and that 70% of the male population, including Haywood, could have contributed the seminal fluid. The serologist also stated that about 22% of the male population had that blood type. The serologist’s testimony was treated by the state as significant. We cannot know the extent to which, if any, the jury may have placed inordinate weight on it, but, clearly, the jury was likely influenced to some extent by this testimony. The trial court, in denying relief, concluded that the jury placed more weight on the other evidence.

Had the jury heard the newly uncovered DNA evidence, it would have had some impact. On the other hand, we recognize that there is proof supporting the victim’s identification of Haywood as the person who committed the robbery, as he was found, the following day, wearing a pair of boots identified as taken from the Payless store on the day of the robbery. The original price sticker was still on the shoes. He told the police that an unidentified “associate” had given them to him. We also recognize that the DNA evidence on the victim’s clothing did not point to some other potential suspect as the perpetrator of the offenses. Rather, it identified the victim’s boyfriend as the donor.

Had the victim not testified that the perpetrator had- entered her and ejaculated, without the serologist testimony, the new evidence might well be deemed of little significance. However, in the context of these facts and given the additional impeachment of the identification, we conclude that the newly discovered evidence was of “such nature that it would probably produce an acquittal on retrial.” See Jones, 709 So.2d at 521; see also Williams.

We, therefore, reverse and remand for new trial.

WARNER and MAY, JJ., concur.

      . However, neither Haywood nor the boyfriend could be excluded as the donor of saliva found on a handkerchief.


text:
    Arthur GEDDES, Appellant, v. AMERICAN AIRLINES, INC., Appellee.
    No. 3D05-2346.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.

      Denise V. Powers, Coral Gables, for appellant.
    Hunton Williams and Terence G. Connor and Grace M. Mora, Miami, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Given our disposition in American Airlines, Inc. v. Geddes, 960 So.2d 880 (Fla. 3d DCA 2007), we dismiss this appeal as moot.


text:
    Michael J. GLYNN, Appellant, v. Ana C. GALLO, Appellee.
    No. 3D06-2087.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Steven N. Abramowitz, for appellant.
    Robert A. Mercer, Miami, for appellee.
    Before COPE, SUAREZ and LAGOA, JJ.
   PER CURIAM.

This is an appeal of a supplemental judgment in a paternity case which denied the father’s petition for modification and granted the mother’s counterpetition. We conclude that the trial court’s rulings are supported by competent substantial evidence at the evidentiary hearing, and affirm on authority of Wade v. Hirschman, 903 So.2d 928, 934 (Fla.2005).

Affirmed.


text:
    Herbert ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3916.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Herbert Arnold, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Herbert Arnold seeks review of an order that denied his multi-point rule 3.850 motion. We remand for the trial court to conduct an evidentiary hearing limited solely to Arnold’s claim that counsel coerced him into waiving his right to testify. See, e.g., Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996); Barrientos v. State, 929 So.2d 705 (Fla. 4th DCA 2006).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Rose CUSACK, et al., Appellant, v. HOMEOWNERS ASSISTANCE GROUP, LLC, Appellee.
    No. 3D06-2950.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Jay Rothlein, Miami Beach, for appellant.
    Arnaldo Velez, Coral Gables; Carrillo Carillo, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)(noting that due process may be met if notice of a tax deed certificate were posted on the front door upon receipt of the certified letter marked as undeliverable).


text:
    Oliver HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4050.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

On September 13, 2006, Oliver Hill appeared before the trial judge for arraignment on a charge of felony driving with a suspended license. After one of the court deputies advised the judge that Hill appeared to be intoxicated, the judge commenced a criminal contempt proceeding. After hearing testimony from two court deputies and Hill himself, the judge found Hill guilty of direct criminal contempt.

The only order in the record is a standard “form” probation order which reflects the sentence imposed and that Hill is being adjudicated guilty of direct criminal contempt. Hill has appealed from the order, citing the trial court’s failure to comply with Florida Rule of Criminal Procedure 3.830’s requirement that a judgment of criminal contempt “shall include a recital of those facts on which the adjudication of guilt is based.” As the order clearly fails to contain the required factual recital, we are obliged to reverse the order appealed and to remand for the entry of an order that complies with rule 3.830. See, e.g., Ward v. State, 908 So.2d 1138 (Fla. 3d DCA 2005); McGlamory v. State, 723 So.2d 388 (Fla. 2d DCA 1999).

Reversed and Remanded.

POLEN, STEVENSON and TAYLOR, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Angel RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-557.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Angel Ramos, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Enrique HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4500.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ulcena v. State, 925 So.2d 346 (Fla. 4th DCA 2006).

GUNTHER, STONE and HAZOURI, JJ., concur.


text:
    Earnell Leonardo RICHARDS, a/k/a Earnell Richards, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-709.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Earnell Leonardo Richards, a/k/a Ear-nell Richards, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Edward Lee GRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-773.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Edward Lee Gray, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Edward Lee Gray appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, he alleges several grounds of ineffective assistance of trial counsel. Gray has raised facially sufficient claims for rule 3.850 relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Consequently, we reverse and remand for further proceedings. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Gray’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.


text:
    Quentin A. BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-70.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: MONACO, J.

text:
    Jefferey PLATMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1968.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.
    Terry L. Locy, Assistant Public Defender, Viera, for Petitioner.
    No Appearance for Respondent.
   MONACO, J.

The petitioner, Jefferey Platman, seeks a writ of prohibition based on the denial by the trial judge of his motion to disqualify her from presiding over the two criminal trials in which he is to be tried. We deny the petition for two reasons. First, the motion is untimely. See Fla. R. Jud. Admin. 2.330(e); Fla. Stat. § 38.01 (2006). Second, the motion is facially insufficient under Florida Rule of Judicial Administration 2.330(c)(8). The motion to disqualify must “be sworn to by the party” either by signing the motion under oath or by filing a separate affidavit. Here, only the attorney for Mr. Platman swore to the motion. Accordingly, the petition is denied.

PETITION DENIED.

GRIFFIN and ORFINGER, JJ., concur.


text:
    C.S.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1153.
    District Court of Appeal of Florida, Second District.
    July 6, 2007.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm C.S.B.’s adjudication of delinquency. We remand this case, however, to strike the requirement in the amended disposition that C.S.B. obtain a general education development credential, i.e., a GED, during the one-year term of probation. C.S.B. is fourteen years old, this condition was not orally pronounced, and the issue has been preserved for review on appeal by a motion to correct disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2).

Remanded with instructions.

NORTHCUTT, C.J., and ALTENBERND and VILLANTI, JJ., Concur.


text:
    Larry M. WYNN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3149.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Larry M. Wynn, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    Donald STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2278.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Special Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. White, 891 So.2d 502 (Fla.2004); Westerheide v. State, 831 So.2d 93 (Fla.2002); Roeling v. State, 880 So.2d 1234 (Fla. 1st DCA 2004).

BARFIELD, KAHN, and PADOVANO, JJ., concur.