author: WALLACE, Judge. LaROSE, Judge, SILBERMAN, Judge,

text:
    Dwain D. WALLACE, III, a/k/a Dwaine Denorris Wallace, a/k/a Dwayne D. Wallace, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-189.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.
    Rehearing Denied Aug. 7, 2007.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Dwain D. Wallace, III, challenges the investigatory detention that led to the revocation of his probation. After Mr. Wallace was detained, he made inculpatory statements to the police. However, the informant — whose tip to the police was the basis for Mr. Wallace’s detention — was not simply an honest, disinterested citizen. Because this informant’s reliability was doubtful and because the police failed to corroborate the information that he had provided, Mr. Wallace’s detention was not based on a well-founded suspicion. For this reason, the trial court erred in failing to suppress the statements made by Mr. Wallace after his illegal detention. Accordingly, we reverse the trial court’s order that revoked Mr. Wallace’s probation.

The Facts

On April 12, 2002, eight officers from the Tampa Police Department — including one K-9 officer — were investigating narcotics offenses outside a lounge on Nebraska Avenue in Tampa. The officers were part of a special unit. They were not dressed in standard police uniforms. Instead, they each wore a vest that identified them as “POLICE.” There were four to six police vehicles at the scene.

Officer Randall J. Camp noticed a gold Mercedes Benz automobile parked in the vicinity of the lounge. The Mercedes attracted Officer Camp’s attention because it was illegally parked. Officer Camp shined his flashlight into the Mercedes and saw the handle of a pistol that was partially hidden beneath the front passenger seat. The pistol was not visible by looking through the front passenger window. Officer Camp was able to observe the handle of the pistol only by leaning over the vehicle’s hood to look directly under the seat. After Officer Camp spotted the pistol in the Mercedes, the police ran the license plate number to determine the identity of the vehicle’s registered owner. In addition, the K-9 officer walked her dog around the vehicle. The dog alerted for the presence of narcotics.

Next, Officer Camp went into the lounge. He testified later that there were at least forty men in the lounge. Officer Camp arranged for the lounge’s bouncer to ask for the owner of the Mercedes to step outside; the bouncer warned the patrons that the Mercedes would be towed unless it was moved. In response to this announcement, Mr. Ifeanyi Ike-Onyechi left the lounge and approached the Mercedes with his keys in his hand. The officers immediately detained Mr. Ike-Onyechi and handcuffed him. Officer Camp searched the Mercedes and recovered the pistol from beneath the front passenger seat. He also found a cigar containing marijuana on the floor in the back of the vehicle. Based on the presence of the firearm and the marijuana in the Mercedes, Mr. Ike-Onyechi was placed under arrest.

Officer Michael Liberti informed Mr. Ike-Onyechi of his rights under Miranda. After being advised of his rights, Mr. Ike-Onyechi agreed to speak with the officers. He told Officer Liberti that he had arrived at the lounge in the Mercedes with two other men. Mr. Ike-Onyechi said that one of these men was called “Mooch.” According to Mr. Ike-Onyechi, he knew “Mooch” through an automotive detailing shop. Mr. Ike-Onyechi never identified the third individual.

Mr. Ike-Onyechi told Officer Liberti that after he and the two other men had arrived at the lounge and he had parked and locked the Mercedes, “Mooch” asked him to unlock the car. According to Mr. Ike-Onyechi, “Mooch” explained that he had a gun that he could not take into the lounge and that he needed to lock it in the car. Using his keyless-entry remote, Mr. Ike-Onyechi unlocked the Mercedes and watched as “Mooch” opened the passenger door and placed an object in the car. Mr. Ike-Onyechi believed that the object was a gun. Mr. Ike-Onyechi then relocked the car, and the three men went into the club. In addition, Mr. Ike-Onyechi denied ownership of the marijuana cigar that was found on the floor in the back of the car.

After Mr. Ike-Onyechi had made these statements to Officer Liberti, Mr. Wallace walked out of the lounge. According to the officers, Mr. Wallace appeared to be calm and relaxed, and he walked at a casual pace. As Mr. Wallace walked past the officers, Mr. Ike-Onyechi identified him as “Mooch,” the man who had placed the pistol in the car. Officers Camp and Liberti immediately approached Mr. Wallace and detained him. Officer Camp testified that he advised Mr. Wallace of his rights under Miranda. Mr. Wallace acknowledged that he understood his rights, and he agreed to speak to the officers.

Officer Camp then interrogated Mr. Wallace. According to Officer Camp, Mr. Wallace initially denied that he had arrived at the lounge in the Mercedes with Mr. Ike-Onyechi. He also denied placing the pistol under the car’s front passenger seat. Mr. Wallace claimed that he had arrived at the lounge in a blue Corolla. However, after further questioning, Mr. Wallace admitted that he had been a passenger in the Mercedes and that he had placed the pistol under the front passenger seat. Mr. Wallace denied that he owned the pistol. Mr. Wallace ' said that Mr.. Ike-Onyechi had given, him the pistol when they had arrived at the lounge and that he had handled it only briefly after Mr. Ike-Onyechi asked him to place it under the seat. Mr. Wallace also admitted that he was a convicted felon.

Based on Mr. Wallace’s admissions, Officer Camp arrested him for being a convicted felon in possession of a firearm. The officers charged Mr. Ike-Onyechi with possession of marijuana, and they released him on his own recognizance. Mr. Wallace’s probation supervisor 'subséquently filed an affidavit alleging that Mr. Wallace had violated the terms and. conditions- of his probation by being in possession of a firearm.

The Proceedings in the Trial Court

Mr. Wallace moved to suppress the statements that he had allegedly made after he was detained outside the lounge. The trial court heard the motion to suppress and the violation of probation at the same time. The State called three witnesses at the hearing: (1) Mr. Wallace’s probation supervisor, (2) Officer Camp, and (3) Officer Liberti. The State did not call Mr. Ike-Onyechi. At the hearing, defense counsel represented to the trial court that Mr. Ike-Onyechi was “on the run” and that there was “an outstanding warn rant for his arrest.” The prosecutor did not contradict defense counsel’s representations.

At the hearing, Mr. Wallace testified that he had arrived at the lounge with his wife in a Ford Thunderbird. He denied that he had been in possession of a firearm, and he denied that he had made incriminating statements to the police officers... On the motion to suppress, defense counsel argued that Mr. Ike-Onyechi was an unreliable informant whose tip was not sufficient to give the police officers a well-founded suspicion to detain Mr. Wallace. The trial court ruled “that the detention was okay.” On the violation of probation, the trial court deemed the police officers to be more credible than Mr. Wallace and found that he had violated condition five of his probation.

When Mr. Wallace was arrested outside the lounge in Tampa, he was serving the probationary portions of two “true split sentence^].” See Poore v. State, 531 So.2d 161, 164 (Fla.1988), superseded on other grounds as recognized in Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000). Mr. Wallace had originally been sentenced to serve two concurrent twenty-five-year sentences. After serving fifteen years, the balances of the sentences were to be suspended and Mr. Wallace was to be placed on probation for a period of ten years. On October 21, 2002, after the trial court revoked Mr. Wallace’s probation, it reimposed the two concurrent twenty-five-year sentences. The trial court gave Mr. Wallace credit for all of the time he had previously served in the Department of Corrections and credit for the time he had spent in jail before the reimposition of his sentences. Unfortunately, Mr. Wallace’s trial counsel failed to file a timely notice of appeal on his behalf. On January 4, 2005, this court entered an order granting Mr. Wallace’s petition for a belated appeal. This appeal followed.

The Issue and the Standard of Review

On appeal, Mr. Wallace raises two issues. We need address only Mr. Wallace’s argument that the trial court erred in denying his motion to suppress the statements that the police testified that he had made after he was detained. We employ a mixed standard of review in considering the trial court’s ruling on Mr. Wallace’s motion to suppress. The trial court’s determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

Discussion

As a preliminary matter, we note that the exclusionary rule applies in proceedings for the revocation of probation. See State v. Scarlet, 800 So.2d 220, 221-22 (Fla.2001). Thus “evidence discovered during an unlawful detention and search is not admissible during a hearing to revoke probation.” Lanier v. State, 936 So.2d 1158, 1162 (Fla. 2d DCA 2006) (citing Scarlet and Williams v. State, 791 So.2d 37, 38 (Fla. 2d DCA 2001)). Accordingly, if Mr. Wallace’s detention was unlawful, then any statements that he allegedly made during that detention should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); J.G. v. State, 883 So.2d 915, 926-27 (Fla. 1st DCA 2004); Lee v. State, 868 So.2d 577, 581-82 (Fla. 4th DCA 2004).

There are three levels of police encounters: (1) a consensual encounter; (2) an investigatory stop as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) an arrest. See Popple v. State, 626 So.2d 185, 186 (Fla. 1993). In this case, the parties agree that the police made an investigatory stop of Mr. Wallace after he walked out of the lounge and was identified as “Mooch” by Mr. Ike-Onyechi.

In Popple, the Supreme Court of Florida outlined the characteristics of an investigatory stop:

At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151 Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

Id. at 186. In assessing whether the police had a well-founded suspicion to conduct an investigatory detention of Mr. Wallace, we must consider all facts known to the police at the time of the stop. See Parsons v. State, 825 So.2d 406, 408-09 (Fla. 2d DCA 2002) (citing Bartlett v. State, 508 So.2d 567, 568 (Fla. 2d DCA 1987)). The factors to be considered include “time, location, suspect’s physical appearance, suspect’s behavior, or anything unusual that suggests criminal activity.” Id. at 409.

In this case, the testimony of both officers suggested that they believed that Officer Camp had found an illegally concealed firearm when he observed a pistol partially hidden beneath the passenger seat of the Mercedes. The parties have assumed that Officer Camp’s observation raised a reasonable suspicion that someone had committed or was committing the crime of carrying a concealed firearm, a violation of section 790.01(2), Florida Statutes (2001). But there was nothing about the presence of a pistol in Mr. Ike-Onye-ehi’s Mercedes that linked Mr. Wallace to any criminal activity. Instead, Mr. Ike-Onyechi’s account of what had happened when he arrived at the lounge with “Mooch” and the unidentified third man— not the presence of a pistol in the Mercedes — was the factor that prompted the police to detain and interrogate Mr. Wallace. Thus, in assessing whether the police had a reasonable suspicion to detain and interrogate Mr. Wallace, we must turn our attention to Mr. Ike-Onyechi’s tip.

“When an officer acts on an informant’s tip, the reliability of the information must be established before the officer can make an investigatory stop.” Jacoby v. State, 851 So.2d 913, 915 (Fla. 2d DCA 2003) (citing Travers v. State, 739 So.2d 1262, 1263 (Fla. 2d DCA 1999)). “[A]n informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[H]owever, ... these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case.” Id. “[A] deficiency in one [element] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233, 103 S.Ct. 2317. Thus the reliability of an informant may be established by a variety of methods.

In this case, we are not concerned with an anonymous tipster. Instead, Mr. Ike-Onyechi was an informant who had been identified by name and who was providing information to the police in person. The State argues that these facts alone were sufficient to establish the reliability of Mr. Ike-Onyechi’s tip and to provide a reasonable suspicion for the investigatory detention of Mr. Wallace. In effect, the State suggests that for the purpose of determining his veracity, Mr. Ike-Onyechi should be treated as a “citizen-informant.”

Generally speaking, a citizen-informant is an ordinary citizen who has either been the victim of or a witness to a crime and who reports the pertinent facts to law enforcement officials. See, e.g., State v. Gavin, 594 So.2d 345 (Fla. 2d DCA 1992) (report by a witness concerning the burglary of a restaurant). “A citizen-informer is one who is ‘motivated not by pecuniary gain, but by the desire to further justice.’ ” State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982) (quoting Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981)). Information provided by a citizen-informant “is at the high end of the tip-reliability scale.” State v. Maynard, 783 So.2d 226, 230 (Fla.2001). “[I]f an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — ... rigorous scrutiny of the basis of his knowledge [is] unnecessary.” Gates, 462 U.S. at 233-34, 103 S.Ct. 2317.

Here, when Mr. Ike-Onyechi gave his tip to the police, he was already detained and in handcuffs. He had just watched the police remove a partially hidden firearm and a marijuana cigar from his car. Whether or not the presence of the firearm in the vehicle was a crime, the police were treating the incident as a violation of section 790.01(2). For these reasons, Mr. Ike-Onyechi could have had a strong motive to fabricate an explanation for the presence of the hidden firearm in his vehicle that exculpated himself and implicated someone else. Even Officer Liberti conceded at the hearing in the trial court that but for Mr. Ike-Onyechi’s statement implicating Mr. Wallace, there was “a good possibility” that Mr. Ike-Onyechi would have been arrested for the possession of a concealed firearm. Thus Mr. Ike-Onyechi did not qualify as a citizen-informant. Further police investigation of his tip was necessary before Mr. Wallace could be detained.

The State’s argument assumes that the report of an informant who has been identified — as opposed to an anonymous tipster — need not otherwise be shown to be reliable. This is not the case. See State v. Novak, 502 So.2d 990, 993 (Fla. 3d DCA 1987). As one astute commentator on the subject observes:

It does not follow ... that if the name of the person providing the information is disclosed, then he is by virtue of that fact alone properly characterized as a citizen-informer entitled to the presumption of reliability. “That a person is named is not alone sufficient grounds on which to credit an informer, but it is one factor which may be weighed in determining the sufficiency of an affidavit.” Thus, if the person giving the information to the police is identified by name but it appears that this person was a participant in the crime under investigation or has been implicated in another ■ crime and is acting in the hope of gaining leniency, then the more strict rules regarding the showing of veracity applicable to an informer from the criminal milieu must be followed.

2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.4(a), at 236-37 (4th ed. 2004) (citation and footnotes omitted). Here, Mr. Ike-Onyechi was not only an apparent participant in the possession-of-marijuana offense that was under investigation by the police, but he also had an obvious self-interest in implicating Mr. Wallace to avoid additional criminal liability for the supposed firearms offense. Thus Mr. Ike-Onyechi’s veracity was doubtful, and his tip — standing alone — did not give the police a well-founded suspicion to conduct an investigatory detention of Mr. Wallace. See Dudley v. State, 667 So.2d 428 (Fla. 2d DCA 1996); Dial v. State, 798 So.2d 880 (Fla. 4th DCA 2001); Roper v. State, 588 So.2d 330 (Fla. 5th DCA 1991); Novak, 502 So.2d 990; State v. Rizo, 463 So.2d 1165 (Fla. 3d DCA 1984).

Our conclusion about the unreliability of Mr. Ike-Onyechi’s tip does not end our analysis. We must still determine whether any other facts known to the police when they detained Mr. Wallace — considered together with Mr. Ike-Onyechi’s tip — provided a reasonable suspicion for the investigatory detention. However, the possibility of additional facts that might bear on the reliability of the tip is limited. Mr. Ike-Onyechi did not provide detailed and verifiable information that the police could have used to corroborate his tip. See, e.g., State v. Walker, 898 So.2d 198, 200-01 (Fla. 2d DCA 2005). Nor could the tip be corroborated by reference to predictions about Mr. Wallace’s future behavior. See, e.g., State v. Evans, 620 So.2d 802, 803 (Fla. 2d DCA 1993). On the contrary, Mr. Ike-Onyechi’s tip amounted to nothing more than a bare accusation that Mr. Wallace was a participant in conduct that the police were investigating as a criminal offense. Moreover, Mr. Ike-Onyechi’s statements to the police did not qualify as a declaration against penal interest. See, e.g., United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Irizarry, 948 So.2d 39 (Fla. 5th DCA 2006). Mr. Ike-Onyechi denied any connection to either the pistol or the marijuana. Perhaps the unidentified third man who had also arrived at the lounge in the Mercedes might have bolstered Mr. Ike-Onyechi’s claims. See, e.g., Green v. State, 946 So.2d 558, 562 (Fla. 1st DCA 2006). However, the police did not attempt to locate and speak with the third man to obtain a corroborating statement before they detained Mr. Wallace. Instead, they detained Mr. Wallace as soon as Mr. Ike-Onyechi identified him.

The foregoing review of the likely sources of corroboration for Mr. Ike-Onyechi’s tip seems to exhaust the available possibilities. Since the uncorroborated tip was insufficient to provide a well-founded suspicion for Mr. Wallace’s detention, the trial court erred in failing to suppress Mr. Wallace’s statements. Accordingly, we reverse the order of revocation of probation.

The only evidence presented at the hearing that linked Mr. Wallace to the possession of the pistol were his statements as testified to by the police and the hearsay accusation made by Mr. Ike-Onyechi. With the suppression of Mr. Wallace’s statements, the only evidence supporting the revocation of his probation is the hearsay accusation made by Mr. Ike-Onyechi. A revocation of probation may not be based solely upon hearsay statements. See Garcia v. State, 701 So.2d 607, 608 (Fla. 2d DCA 1997). Thus, on remand, the trial court shall reinstate Mr. Wallace’s probation.

Reversed and remanded with instructions.

LaROSE, J., Concurs with opinion.

SILBERMAN, J., Dissents with opinion.

LaROSE, Judge,

Concurring.

I concur in Judge Wallace’s analysis and ultimate conclusion. Based solely on Mr. Ike-Onyechi’s uncorroborated accusations, law enforcement officers subjected Dwain Wallace to an investigatory stop. Given the situation in which he found himself, Mr. Ike-Onyechi was motivated to exculpate — and in fact tried to exculpate — himself from the crimes under investigation.

The cases cited establish that Mr. Ike-Onyechi’s information was insufficient to detain Mr. Wallace. Nevertheless, the officers believed that Mr. Wallace had committed a crime. Mr. Ike-Onyechi’s tip, however, gave the officers no more than a mere suspicion of criminal conduct by Mr. Wallace. More was needed to support Mr. Wallace’s detention.

In reviewing the record, I am struck by the several readily-available opportunities the officers had at the scene to verify Mr. Ike-Onyechi’s tip. I am forced to wonder whether a brief, minimally intrusive citizen encounter with Mr. Wallace would have yielded information sufficient to bolster Mr. Ike-Onyechi’s accusations.

SILBERMAN, Judge,

Dissenting.

I share the majority’s concern, expressed in footnote 3, as to whether the police had a reasonable suspicion that a concealed firearm violation had occurred. However, as the majority correctly states, Mr. Wallace did not raise this issue in the trial court or on appeal. Instead, Mr. Wallace argues that Mr. Ike-Onyechi’s statements to the police did not support an investigatory stop and, therefore, that Mr. Wallace’s incriminating admissions to the police should have been suppressed. I respectfully dissent from the majority decision because in my view, considering the totality of the circumstances, the investigatory stop of Mr. Wallace was legal.

Before the officers detained Mr. Wallace, they arrested Mr. Ike-Onyechi and were questioning him at the scene about the gun and marijuana found in his car. Mr. Ike-Onyechi stated that he, a person he knew from past contact as Mooch, and a third person had driven together to the lounge. He stated that Mooch had been seated in the front passenger seat and had placed the gun under that seat so as not to take it into the lounge.

Minutes later, Mr. Wallace came out of the lounge and was walking nearby. Mr. Ike-Onyeehi immediately pointed him out to the officers and identified him as Mooch. Based on the testimony of one of the officers, it appears that other individuals were also in the area and that Mr. Ike-Onyechi did not simply point to the first person who happened by in an effort to shift blame from himself.

After Mr. Ike-Onyechi identified Mr. Wallace, the officers approached and stopped him. Officer Camp read him the Miranda warnings and began asking him questions. Mr. Wallace did not invoke his right to an attorney or refuse to speak with Officer Camp. Officer Camp indicated that Mr. Wallace did not seem upset and that he spoke in a normal voice.

Mr. Wallace first denied that he had arrived in Mr. Ike-Onyechi’s car but then admitted that he had been a passenger in the car and that he had put the gun under the car seat. He also told Officer Camp that he had recently gotten out of prison. Officer Camp did a criminal history check, confirmed Mr. Wallace’s felony conviction, and then arrested him for being a felon in possession of a firearm.

In Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (citations omitted), the Supreme Court recognized:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

The Court observed that because the informant was personally known to the police officer and had provided information in the past, the case was stronger than if the information had been provided by an anonymous telephone tip. Id. at 146, 92 S.Ct. 1921. Further, the informant personally provided information that was immediately verifiable at the scene and “might have been subject to immediate arrest for making a false complaint” had the tip been proven to be incorrect. Id. at 146-47, 92 S.Ct. 1921.

In Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court concluded that the totality of the circumstances must be considered in evaluating whether an informant’s tip provided probable cause for the issuance of a search warrant. See also J.P.N. v. State, 931 So.2d 1066, 1069 (Fla. 4th DCA 2006) (recognizing that “whether reliance on the tip is reasonable depends on the totality of the circumstances”). In Gates, the Court observed that “even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” Id. at 234, 103 S.Ct. 2317.

In State v. Gil, 780 So.2d 297, 299 (Fla. 3d DCA 2001), the noted the distinction “between a true anonymous tip and the situation where there is a specific confidential informant whose reliability has not been determined.” The court stated as follows:

[W]hen an informant comes forward personally to give information that is immediately verifiable at the scene, that information is more reliable than any received via an anonymous phone tip. Although an unverified tip from an untested informant may be insufficient to justify an arrest or a search warrant, if the tip itself carries sufficient indicia of reliability, it may justify an investigatory stop.

Id. (citations omitted).

Although Mr. Ike-Onyechi had not previously provided information to the police, he was not an anonymous tipster. He was in custody, and the police had ascertained his identity. He told the police about the gun’s presence in his car based on his personal knowledge, and he identified Mr. Wallace as the person who put the gun in the car before they went into the lounge. Mr. Ike-Onyechi gave this information at the scene shortly after his arrest, and Mr. Wallace was detained at the scene. Significantly, while Mr. Ike-Onyechi told the police that Mr. Wallace had put the gun in the car, he did not try to blame Mr. Wallace for the presence of marijuana in the car. Further, if Mr. Ike-Onyechi’s information proved to be false, he may have been subject to a charge of making a false report under section 837.05(1), Florida Statutes (2001).

In summary, the police officers were investigating purported criminal conduct relating to a firearm and marijuana. They arrested Mr. Ike-Onyechi, who claimed innocence, and as to the firearm, he told the officers that Mooch had accompanied him to the lounge and had placed the firearm in his car. Mr. Wallace then exited the same lounge from which Mr. Ike-Onyechi had exited. Although other individuals were in the area, when Mr. Wallace exited the lounge Mr. Ike-Onyechi specifically identified him as the person who had placed the firearm in his car. The officers then conducted an investigatory stop to ascertain whether Mr. Wallace was, in fact, connected to Mr. Ike-Onyechi and the firearm.

Consistent with Adams, the officers were not required to simply shrug their shoulders as Mr. Wallace walked by. Rather, they stopped him “to determine his identity or to maintain the status quo momentarily while obtaining more information.” Adams, 407 U.S. at 146, 92 S.Ct. 1921. Under these circumstances, I agree with the trial court that the information that Mr. Ike-Onyechi provided to the police was sufficient to allow the investigatory stop of Mr. Wallace.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Standard condition five of Mr. Wallace’s probation required that he "live and remain at liberty without violating the law.”

      . Section 790.001(2) defines the term "concealed firearm," which appears in section 790.01(2). A concealed firearm is "any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2). Section 790.01(2) provides that "[a] person who carries a concealed firearm on or about his or her person commits a felony of the third degree.” In this case, the evidence suggests that the pistol may not have been visible by ordinary observation to a person standing beside the gold Mercedes. Thus the pistol may have been hidden "from the ordinary sight of another person” within the meaning of section 790.001(2). See Dorelus v. State, 747 So.2d 368, 372-73 (Fla.1999); L.G. v. State, 693 So.2d 1020, 1022 (Fla. 3d DCA 1997). But to constitute a "concealed firearm” under the statute, the firearm must also be carried "on or about a person.” A firearm is carried on or about a person if it is "physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked.” Ensor v. State, 403 So.2d 349, 354 (Fla.1981), modified on other grounds by Dorelus, 747 So.2d at 371-73. Here, when the police found the pistol, it was located inside a locked, unattended vehicle. For that reason, the pistol was not on any person, and it was not readily accessible to any person either. Mr. Ike-Onyechi, who had the keys to the Mercedes, was inside the lounge. Although the issue is not before us, we question whether — -under these circumstances — the police had a reasonable suspicion that anyone had violated or was violating section 790.01(2). See Gehring v. State, 937 So.2d 169, 170-71 (Fla. 2d DCA 2006); Lamb v. State, 668 So.2d 666, 667-68 (Fla. 2d DCA 1996); White v. State, 902 So.2d 887, 888 (Fla. 1st DCA 2005). Additionally, the police did not know that Mr. Wallace was a convicted felon when they detained him outside the lounge. But on this point, Mr. Wallace has argued only the unreliability of Mr. Ike-Onyechi’s tip to link him to the supposed concealed firearm violation that the police were investigating, not the absence of a reason to believe that any violation had occurred at all. Accordingly, in disposing of this case, we have not considered the possibility that the police did not have a reasonable suspicion to believe that a violation of section 790.01(2) had occurred when they detained Mr. Wallace.


source: Caselaw Access Project

author: CORTIÑAS, Judge. RAMIREZ J, SHEPHERD, J.,

license: Public Domain

text:
    Ernesto MULLER, Appellant, v. Melonie R. MULLER, Appellee.
    No. 3D06-2700.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing and Rehearing En Banc Denied Oct. 11, 2007.

      Jesus O. Cervantes, for appellant.
    Lisa S. Walsh, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

Ernesto Muller (the “Father”) appeals from a final judgment of dissolution of marriage which granted Melonie Muller’s (the “Mother”) petition to relocate to Grand Junction, Colorado with their minor child. We reverse.

The parties were married in Grand Junction, Colorado in July 2002. Shortly thereafter, they moved to Miami, Florida. In April 2004, the minor child was born in Miami, Florida. In October 2004, the Father filed a petition for dissolution of marriage. The Father also filed a motion to compel the child’s return to Miami from Grand Junction, Colorado on the ground that the Mother had taken the child without his consent or knowledge. The trial court ordered the Mother to return with the child and remain in Miami during the pendency of the divorce action. Subsequently, the Mother sought to relocate with the child to Grand Junction.

In September 2006, following -an eviden-tiary hearing on the issue of relocation, the trial .court entered a final judgment of dissolution of marriage. In its order, the trial court granted the Mother’s petition for relocation. The Father’s appeal follows.

We review a trial court’s. order regarding relocation under an abuse of discretion standard. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003)(citing Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001)). In reviewing the trial court’s Order, we must determine if there is substantial competent evidence to support the trial court’s findings under section 61.13001(7), Florida Statutes (2006). Id. Further, “we do not engage in reweighing- the evidence and making value judgments that are appropriate for the trial judge.” Id. (citing Flint v. Fortson, 744 So.2d 1217, 1218 (Fla. 4th DCA 1999)).

Florida law does not recognize a presumption in favor of or against a primary residential parent seeking to relocate a child. See § 61.13001(7), Fla. Stat. (2006). Instead, in making a determination as to whether the primary residential parent may relocate with a child, section 61.13001(7) requires a trial court to consider the following factors:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons of each parent or other person for seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or objecting other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor' affecting the best interest of the child or as set forth in s. 61.13.

Id.

After a thorough review of the entire record, we find that the trial court abused its discretion in granting the Mother’s petition to relocate with the child to Grand Junction. Although the trial court noted each of the factors listed under section 61.13007(7) in its order, the record is devoid of corroborating facts supporting nearly every subsection of the statute. Therefore, we find that the trial court erred in granting the Mother’s petition for relocation. See Cecemski v. Cecemski, 954 So.2d 1227 (Fla. 2d DCA 2007)(reversing an order granting relocation because the trial court’s findings were not supported by substantial competent evidence).

For example, with respect to the first factor, the trial court noted that the Mother was more involved in caring for the child as an infant and that the Father took a greater role when the child was a little older. The court also observed that the maternal grandparents are not employed while the paternal grandparents work. Without more, these facts do not constitute substantial competent evidence to support a finding that the proposed relocation would improve the nature, quality, extent of involvement, and duration of the child’s relationship with the Mother and the Father or others.

Similarly, regarding the second factor, the trial court focused almost exclusively on the fact that the child would be cared for by the maternal grandmother in Colorado as opposed to receiving daycare services in Miami. The trial court did not consider the very young age of the child or any other impact the relocation will have on the child’s physical, educational, and emotional development.

In considering the third factor, the trial court found that, despite the relocation, it would be feasible to foster a meaningful relationship between the Father and the child. However, the record clearly shows the hardships and complications of traveling between Miami and Grand Junction. For example, visitation in Grand Junction would require the father to purchase an airline ticket to Denver, which he cannot easily afford given his monthly net income of approximately $1,300. Moreover, the record shows that travel to Grand Junction entails 'a four-hour flight followed by a four-hour drive from Denver to Grand Junction. This would require the Father to take several days, if not weeks off from work, to facilitate any direct contact with the child. Recently, in Segarra v. Segarra, 947 So.2d 543, 546 (Fla. 3d DCA 2006), we affirmed the trial court’s finding that relocation from Miami to Bryceville, Florida, where transportation costs and driving distances posed a burden on both parents, would significantly diminish the excellent relationship between the father and the child. As in Segarra, there is no substantial competent evidence that relocation would foster and preserve any type of meaningful relationship between the Father and the child.

The trial court found the fourth factor, the child’s preference, to be inapplicable since we are dealing with a two year old child.

In examining the fifth, sixth, and seventh factors combined, the trial court found that the proposed relocation to Grand Junction would enhance the general quality of life for both the Mother and the child because the Mother would no longer have to work as a store clerk, would spend more time with the child, and would attend nursing school. However, the record reveals that the Mother did not have any job offer in Colorado and had not applied to any nursing school in Grand Junction. Further, there was no evidence whatsoever that the Mother would earn a higher income, would be working less hours, or would be in a better position to spend more time with the child. The trial court relied on the Mother’s hopes and expectations, without requiring a showing of either employment prospects or educational enrollment, to support its findings under the foregoing factors. Thus, we find that there was no substantial competent evidence to support the trial court’s findings with respect to these factors. See Cecemski, 954 So.2d at 1229 (concluding that there was no substantial competent evidence to support the trial court’s finding that the quality of life for the mother and child would improve when the mother testified that she had no jobs lined up or even applied for any jobs in Louisiana); cf. Segarra, 947 So.2d at 546 (determining that there was substantial competent evidence to support the trial court’s finding that the quality of life for the mother and child would not improve when the record showed that the mother did not have a job offer in Bryceville, Florida); Botterbusch, 851 So.2d at 904 (concluding that there was substantial competent evidence to support the trial court’s finding that the quality of life for the mother and child would improve when the record reflected that the mother accepted a job offer with the United States Customs Department, and would earn more money and work fewer hours in her new position).

Because there was no substantial competent evidence to support relocation under the factors set forth in section 61.13001(7), we find that the trial court abused its discretion in granting the Mother’s petition for relocation.

Reversed and remanded.

RAMIREZ J,

concurring.

I concur with Judge Cortifias’ opinion for the following reasons:

First, there is no evidence in the record before this Court that the mother has a greater chance to obtain better employment in Colorado. This is an entirely speculative conclusion that the trial court reached which is unsupported by the evidence presented. Second, there is nothing to substantiate the dissent’s presumption that the mother has applied or registered in nursing school. Third, the one-year trial period in Miami that the wife had agreed to had long-ago expired when the petition for dissolution of marriage was filed.

Finally, the suggestion that the father may use his child support obligation to pay child support to defray the cost of traveling to Grand Junction is not authorized under any statute or court precedent. Given that child support belongs to the child, the mother’s offer to use the money in this manner is not hers to make. See Imami v. Imami, 584 So.2d 596 (Fla. 1st DCA 1991); de Jesus Paris v. Bollon, 503 So.2d 1387, 1388 (Fla. 4th DCA 1987).

SHEPHERD, J.,

dissenting.

In situations such as this there are no true winners. The evidence in the case reflects that the former husband, Ernesto Muller, and former wife, Melonie Muller, came to Miami for a one-year trial period and agreed to return to Colorado if things did not work out. Shortly after arrival, Melonie learned she was pregnant. Dissolution proceedings followed not long after the birth of the child. Both parents are good and caring parents. The former wife’s parents and support structure are in Colorado. The evidence as chronicled in the Final Judgment reflects that, support structure in place, the former wife has a greater chance of bettering herself economically and educationally in Colorado for the support of the minor child in the future. See § 61.13001(7)(e), Fla. Stat. (2006)(stating that one consideration is “[w]hether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including but not limited to, financial or emotional benefits or educational opportunities.”)(emphasis added). Cf. Segarra v. Segarra, 947 So.2d 543, 546 (Fla. 3d DCA 2006)(approving the denial of a motion for relocation where the trial court found “no evidence that the proposed move would improve the general quality of life for the mother and the child.”). The trial court placed heavy reliance on this factor, and conditioned relocation upon the former wife applying for and registering in nursing school before leaving. Having left with the child, I presume she has done so. Finally, the husband has testified that if the child goes, he considers himself employable in Colorado and probably would move there. This statement, made with commendable candor, is consistent with the agreement of the parties when they left Colorado.

The trial court considered all of the above in its determination of former wife’s motion to relocate. An opposite result, the one reached by this court, could also have been reached by the trial judge. I am unable to say that the trial court abused its discretion. See Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001); Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003)(“An appellate court’s standard of review of a trial court’s order regarding relocation is whether the trial court abused its discretion. We look to see if there is substantial competent evidence to support the trial court’s findings concerning the statutory factors listed in section 61.13(2)(d), Florida Statutes (2002). We do not engage in reweighing the evidence and making the value judgments that are appropriate for the trial judge.”)(internal citations omitted). On the record before us, I would leave this matter in the capable hands of the trial court.

      . The trial judge properly applied the 2006 version of the relocation statute as section 11(a) mandates that this version apply "[t]o orders entered before October 1, 2006, if the existing order defining custody, primary residence, or visitation of or with the child does not expressly govern relocation of the child.” See § 61.13001(1 l)(a)(l), Fla. Stat. (2006).

      . Moreover, in a court pleading, the Mother's counsel informed the court that, during the time she was living in Colorado with the minor child, the Mother had lost her job.

      . The concurrence asserts that ”th[is] one year trial period in Miami that the wife had agreed to had long ago expired when the petition was filed.” This is not true. The parties were married on July 7, 2002. The Miami move occurred in July, 2003. The former wife learned she was pregnant within days of arrival. The child was born on April 4, 2004. According to the wife, she told the husband in July, 2004 she wanted to move back to Colorado. Marital problems already existed. The Petition for dissolution was filed on October 4, 2004. The vaunted departure to Colorado, apparently material to the decision of the majority, occurred in the midst of strife on October 22, 2004. If some option period is to be imputed, I see no "expiration].” Disturbingly to me, the majority today decrees from afar that, absent a substantial change of circumstances in the future, these two adults and the minor child must henceforth live in Miami when there is scant evidence that either adult has made such a commitment.

      . I can find no record evidence to support the assertion of the majority at p. 736, that she "ha[s] not applied” to nursing school as required by the trial court's order. E.I. Du Pont De Nemours & Co. v. Native Hammock Nursery, 698 So.2d 267, 270 ("[A]ppellate review is confined to the record on appeal.”). If it were so, I would have expected this appeal to have been by now pretermitted by a more efficient motion to enforce judgment below, including return of the child on that basis. See also majority opinion at p. 735 ("Moreover, in a court pleading, the mother’s counsel informed the court that, during the time she was living in Colorado with the minor child, the Mother lost her job”)(emphasis added). But see Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006)("[U]n-sworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”); State v. Bauman, 425 So.2d 32, 35 n. 3 (Fla. 4th DCA 1982)(“We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court. Facts are established by testimony, affidavits and stipulations.”).

      . Alternately, a full measure of substitute visitation was ordered for the former husband here and there, as proposed by the former wife, with adjustments made by the trial judge to compensate for the admitted financial and logistical difficulty. Cf. Segarra, 947 So.2d at 546 (denying relocation where trial court found that mother would be unlikely to comply with substitute visitation and "relocation would end one chapter, yet begin another chapter, of conflict between the parents.”). If, as the concurrence suggests, there is a legal infirmity in the agreed arrangement, it can certainly'be remedied short of ordering all concerned to live in Miami-Dade County.


author: PER CURIAM’.

text:
    Eduardo Valencia SALAZAR, Appellant, v. The STATE of Florida, Appellee.
    No. 07-911.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Oct. 4, 2007.
    Eduardo Valencia Salazar, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM’.

Affirmed. See McKenley v. State, 937 So.2d 223 (Fla. 3d DCA 2006).


author: THOMPSON, J.

text:
    Delores NICHILO, Appellant, v. Charles FISHER, Trustee, Appellee.
    No. 5D06-2657.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Rehearing Denied Sept. 24, 2007.

      Lisa L. Hogreve of Hogreve & Hogreve, LC, Cocoa, for Appellant.
    Daniel B. Fowler of Fowler, Brink & Fowler, P.A., and Christopher J. McClat-chey, Merritt Island, for Appellee.
   THOMPSON, J.

Delores Nichilo challenges a nonfinal order that she pay rents due into the registry of the court, or failing that, immediately vacate the property and surrender possession to the court. We affirm.

This court has jurisdiction to review the circuit court’s nonfinal order that determined the right to immediate possession of property; to wit, the rental proceeds. Fla. Discount Prop., Inc. v. Windermere Condo., Inc., 763 So.2d 1084, 1084 (Fla. 4th DCA 1999); Fed. Home Loan Mortgage Corp. v. Molko, 584 So.2d 76, 77 (Fla. 3d DCA 1991).

This lawsuit commenced upon the filing of an eviction proceeding by appellee, Charles Fischer, trustee, against Nichilo in county court in July 2005. Nichilo answered with affirmative defenses and counterclaimed for specific performance of a real estate purchase contract concerning the property, breach of contract, and fraud in the inducement. The lease ran from 15 February 2004 through 28 February 2005, the anticipated closing date for the real estate purchase contract.

The contract provided that Nichilo would purchase the subject real property for $219,900. She deposited $10,000 as earnest money and agreed to assume an existing mortgage of about $200,000 and pay the balance by a rent credit of $2200 and a $7700 purchase money mortgage and note to the seller. Fischer allegedly presented Nichilo’s attorney with copies of the written agreements for her counsel’s review and, later, without notice to Nichilo or her counsel, inserted a handwritten addendum into the closing documents package that spelled out the seller’s financing as well as a provision that any difference between the mortgage indebtedness and $200,000 would be due at closing. Both Nichilo and Fischer signed the addendum.

Before closing, Fischer advised Nichilo by letter dated 23 February 2005 that the mortgage indebtedness was $191,359.98 and, without acknowledging the agreement for seller financing, informed her that the balance due at closing was $16,340.02, which included the rent credit. Nichilo interpreted the contract differently; she contended that her assumption of the existing mortgage, earnest money deposit, rent credits, and purchase money mortgage and note would not require any additional cash settlement at closing. Fischer’s letter to Nichilo informed her that the property had significantly appreciated that year and offered to refund half of her earnest money if she declined to perform the purchase contract. Problems ensued, the closing did not occur, and Nichilo continued to live in the house. Disagreements arose concerning her payment of any additional rent for the period after the one-year tenancy ended in February 2005. Ni-chilo’s delinquent rental payments resulted in the eviction proceeding.

Nichilo sought to transfer the case to circuit court because the county court lacked subject matter jurisdiction over a dispute between a buyer and seller of real estate. The case was transferred to circuit court, but not before the county court entered an order that Nichilo pay into the registry of the court the accrued rent of $1600 per month commencing 1 June 2005, and thereafter all such rent that accrued during the pendency of the action.

Meanwhile, Fischer filed an amended complaint in circuit court to allege that the lease had terminated in February 2005, Nichilo was in default on rental payments, and, having given her three-day notice, he now demanded judgment for possession of the property. Nichilo sought to dismiss the circuit court action, and Fischer responded with a motion for default and writ of possession because Nichilo had failed to pay rent since November 2005 as ordered by the county court. The circuit court subsequently entered the order on appeal that Nichilo pay rents due at the rate of $1600 per month to the registry of the court or surrender possession and vacate the property.

Nichilo failed to appeal the county court’s order entered in October 2005 that she pay rent or vacate the premises. She now argues that because the county court’s order was a nullity, the circuit court may not enforce the order. It is without dispute that the circuit court, not the county court, had exclusive original jurisdiction to preside over actions of ejectment and those involving the title of real property. § 26.012(2)©, Fla. Stat. (2006). However, Nichilo cannot now challenge the county court’s order. We conclude that the circuit court’s order was not a nullity regardless of whether the county court’s order was. Any claim concerning the county court’s jurisdiction is moot because the matter is now before the circuit court. Accordingly, this argument lacks merit.

Nichilo’s second argument is that the court lacked authority to enter the order requiring her to pay rent or vacate without first holding an evidentiary hearing. The appellee counters that the order must be presumed correct due to the lack of a transcript. Nichilo is correct that if, at the evidentiary hearing, the court determines that the basis of the occupant’s claim is a contract for sale and purchase and not a lease agreement, the court may not order payments be made into the registry of the court under threat of eviction during the course of the litigation. See Frey v. Livecchi 852 So.2d 896, 897-98 (Fla. 4th DCA 2003) (holding trial court could not require occupants to deposit rent into court registry in a tenant eviction action without first holding an evidentiary hearing to determine whether they were tenants or whether they occupied property under a contract for sale of the property); Grimm v. Huckabee, 891 So.2d 608, 610 (Fla. 1st DCA 2005). As the Frey and Grimm courts held, section 88.42(2), Florida Statutes (2006), renders inapplicable the Florida Residential Landlord and Tenant Act.

The appellee contends that a record without a transcript of the hearing is inadequate to determine whether error occurred in the conduct of the hearing. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). In any event, the court’s order was consistent with a determination that the court found that the parties’ relationship was as landlord-tenant, not seller-buyer. The court’s order contains no recitation or finding whether the claim was supported by a contract for sale or a landlord-tenant dispute. Nichilo’s motion for rehearing states that the court made no such oral pronouncement at the hearing and that the hearing was not an evidentiary one. Nonetheless, based upon the record before us, it cannot be determined that the trial court did not conduct an evidentiary hearing. Further, there is no requirement, as Nichilo urges, that specific factual findings be made in the record or order.

In summary, we hold that the circuit court’s order was not a nullity and the record is incomplete to permit us to determine whether error occurred in the conduct of the hearing.

Accordingly, we AFFIRM.

GRIFFIN and SAWAYA, JJ., concur.


author: FARMER, J.

text:
    Matthew LEVINE, Appellant, v. Loren LEVINE, Appellee.
    No. 4D05-4169.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Rehearing Denied Sept. 28, 2007.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellant.

      Annette J. Szorosy and Henry B. Handler of Weiss, Handler, Angelos & Corn-well, PA., Boca Raton, for appellee.
   FARMER, J.

Dissolving the 15-year marriage of 39-year-old spouses, the trial court awarded her $23,000 in monthly alimony. The final judgment also prohibited her from moving away from the marital home without his consent or order of the court. We find discretion has been abused.

Both are graduates of Tufts University. She quit working early in the marriage to run the household and raise the children. He is an electrical engineer with patents to his name and money in the bank.

They enjoyed a high standard of living during the marriage. At trial he reported monthly income over $100,000. The court ordered child support for their 5 children of $11,111 monthly.

As to property, he held more than $8,000,000 in non-marital assets. Marital property was valued at $4,200,000 — of which $3,000,000 was in his name alone. After specifying transfers of various accounts and property to the one or the other, the trial court awarded her a lump sum equalization payment, thus leaving each with $2,000,000 in marital assets. The home is nearly half of her $2,000,000 equitable distribution.

Although she has a college degree and no disabilities, the court attributed to her no ability to produce income. Instead it found that her role would continue to be the primary caregiver for the children. Among the properties equitably distributed to him was the family corporation which, apart from stock holdings and bank accounts, was the only asset with any income-producing potential. On the other hand, all of its potential depended on his labor and ingenuity, without which it would cease to turn profits. From the disparity in income-producing assets between them, permanent alimony seems to serve also as a form of de facto asset distribution to her. Indeed he does not challenge permanency.

A 15-year marriage is poised somewhere between short and long without presumptions as to alimony. See e.g. Jaffy v. Jaffy, — So.2d-, 32 Fla. L. Weekly D1593, 2007 WL 1827238 (Fla. 4th DCA June 27, 2007) (presumption is against permanent alimony for 10-year marriage where payee was educated and able). Given these facts, we cannot say that in making alimony -permanent the court necessarily abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property; these remedies are interrelated; their eventual use in given case makes them part of one overall scheme that must be reviewed by appellate courts as a whole).

But we do find that the record fails to support the amount of $23,000 a month. Her accountant testified that her needs plus the children’s together amounted to a net of $23,000 monthly. Here the trial judge ordered monthly child support of $11,111 in addition to the monthly alimony. The alimony thus duplicates the child support and should be reduced at least to that extent.

The record also shows that the $23,000 figure includes unnecessary personal expenses. For one example only— and there are others — she sought monthly boat expenses of over $1,000. Where a high standard of living is met during marriage, the purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. Donoffv. Donoff 940 So.2d 1221, 1225 (Fla. 4th DCA 2006) (trial court erred when it tried to ensure wife would live at same level as when husband and wife shared financial resources and income).

Then there is the problem of the marital home. Although this nearly-$1,000,000 asset was distributed to her, it came burdened with a considerable restraint. She is barred from moving elsewhere. The trial judge gave no reasons to justify such an onerous condition. On appeal he essentially argues that the limitation is a matter of convenience to him. We are unable to uphold this restriction for the reason he gives.

Joint custody of minor children exists to achieve maximum participation by both parents in the lives of their children. It is not a mere convenience to parents. In some unusual circumstances it might conceivably be necessary to require a primary residential parent to remain in a specified geographic area to enable the other parent to have such participation. No reasons were offered on appeal. Neither should we overlook the wealth of the father, whose monthly income exceeds $100,000 and personal assets approach $10 million. Are there no means in such plenty by which he can arrange to be in the lives of his children wherever they may reside in south Florida? The record does not suggest that he lacks resources to adjust to such a relocation.

On remand the trial court shall remove the restriction. The court may consider a reasonably limited mileage restriction but only if it is able to find from the existing evidence some basis to do so. The court shall also make a new finding as to the amount of alimony, accounting for the now available asset of the marital home, separating her needs from the children’s, and eliminating unnecessary personal expenses.

Reversed and remanded with instructions.

GUNTHER and MAY, JJ., concur.

      . All other issues — none having been overlooked — are affirmed.


author: PER CURIAM.

text:
    Jason B. KELLOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2949.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Rehearing Denied Sept. 21, 2007.
    Jason B. Kellom, pro se.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the lower tribunal did not rule on appellant’s motion for extension of time to file his motion for rehearing pursuant to Florida Rule of Criminal Procedure 3.050, appellant’s motion for rehearing was not timely filed. Therefore, rendition of the order denying appellant’s postconviction relief motion was not postponed pursuant to Florida Rule of Appellate Procedure 9.020(H)(1), and appellant’s notice of appeal was not timely filed. Accordingly, we dismiss this appeal for lack of jurisdiction.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: LaROSE, Judge.

text:
    Jose Oscar PEREZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2577.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.
    Rehearing Denied Sept. 27, 2007.
    James Marion Moorman, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Jose Oscar Perez, Jr., appeals his conviction for second-degree murder with a firearm. He argues that the trial court erroneously denied his new trial motion after the prosecutor asked a question that Mr. Perez claims improperly shifted the burden of proof to the defense. Mr. Perez failed to preserve this issue for appeal; he did not move for a mistrial after the trial court sustained his objection to the question and gave a curative instruction. See Sloan v. State, 438 So.2d 888, 890 (Fla. 2d DCA 1983); Newton v. S. Fla. Baptist Hosp., 614 So.2d 1195, 1196 (Fla. 2d DCA 1993). We also conclude that no fundamental error occurred at trial. See Maddox v. State, 760 So.2d 89, 95-96 (Fla.2000).

Affirmed.

CANADY and VILLANTI, JJ., Concur.


text:
    David Alden SHAW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3524.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    Rehearing Denied Sept. 20, 2007.
    David Alden Shaw, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WOLF, and LEWIS, JJ., concur.


author: WEBSTER, J.

text:
    R. Lamar WHEELER, Appellant, v. WHEELER, ERWIN & FOUNTAIN, P.A., a dissolved Florida professional corporation, and Erwin, Fountain & Jackson, P.A., a Florida professional association, Appellees.
    Nos. 1D06-2665, 1D06-4334.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Rehearing Denied Sept. 20, 2007.

      Earl M. Barker, Jr., of Slott, Barker & Nussbaum, Jacksonville, and Tyrie A. Boyer of Boyer, Tanzler & Sussman, Jacksonville, for Appellant.
    Michael J. Korn, and Tonya H. Walker of Korn & Zehmer, P.A., Jacksonville, for Appellees.
   WEBSTER, J.

In these two consolidated appeals, appellant seeks review of two final judgments. Because we conclude that the trial court erred when it entered judgment against appellant on his claim seeking payment pursuant to a deferred compensation agreement, we reverse that portion of the first judgment and remand with directions that the trial court enter judgment for appellant on that claim. We also reverse the second judgment, and remand for further proceedings consistent with this opinion on the claims addressed in that judgment.

In 1988, appellant entered into agreements to make his two staff accountants equal shareholders in his public accounting practice, which became known as Wheeler, Erwin & Fountain, P.A. The three contemporaneously executed a Stock Restriction and Retirement Agreement, an Employment Agreement and a Deferred Compensation Agreement. The Stock Restriction and Retirement Agreement provided that, if a stockholder became disabled or died, the other stockholders were obliged to purchase the disabled or dead stockholder’s stock. It further provided that, if a stockholder ceased his employment with the firm for any other reason, he was deemed to offer his stock for sale, giving the other stockholders the option either to purchase the stock or to dissolve the firm in accordance with the agreement’s terms.

The Deferred Compensation Agreement provided in paragraph 1, entitled “Date of Retirement”:

The Employer [appellee Wheeler, Erwin & Fountain, P.A.] agrees that the Employee may retire or withdraw from the employment of the Employer upon delivery to the Employer of written notice of the Employee’s intention to retire or withdraw from the employment of the Employer, provided that such written notice shall be given at least ninety (90) days prior to the date of such actual retirement or withdrawal. The date of such actual retirement shall be specified in the written notice and shall hereinafter be referred to as the “Retirement Date.”

The agreement further provided in paragraph 2 that, “[u]pon the close of business on the Retirement Date of the Employee, the Employer shall become obligated to pay to the Employee on account of his retirement each month an amount equal to one-sixtieth (1/60) of the Employee’s Deferred Compensation Benefit ... for a period of sixty (60) consecutive months.” Paragraph 5 of the agreement provided that “[t]he value of the Deferred Compensation Benefit payable in the event of the retirement ... of the Employee shall be an amount equal to twenty and 83/100 percent (20.83%) of the gross fees billed and collected by the Employer determined as of the close of the fiscal year immediately preceding ... the Retirement Date....”

In 1997, a fourth person was admitted as a stockholder, and further contracts were prepared. The Deferred Compensation Agreement was amended to change the percentages used to calculate the deferred compensation benefit, revised employment agreements were executed, and the new firm member acceded to the Stock Restriction and Retirement Agreement. The employment agreements included a nonsolicitation clause which provided, as an exception, that “the Employee may accept employment with, solicit the services of, or seek remuneration from any clients or customers of the Employer where Employee was, as of the date of termination of employment, the billing manager of such client or customer.... ”

Appellant subsequently delivered a letter to each of the other stockholders which stated:

In view of recent events I have decided that I will retire and withdraw from Wheeler, Erwin & Fountain effective 90 days from the date of this letter or, if you agree, as of October 31, 1999. I believe that recent events have rendered untenable any attempt for me to continue as a member of Wheeler, Erwin & Fountain, P.A. Since I founded the firm and introduced all of you to its practice, acknowledgment of the reality that I no longer can continue in the firm is a profound disappointment to me. I will continue my practice of accountancy in other offices.

The parties eventually agreed that appellant’s last day would be November 2, 1999. The next day, appellant opened a new public accounting practice. A few weeks later, appellant received written notice of intent to dissolve Wheeler, Erwin & Fountain pursuant to the Stock Restriction and Retirement Agreement. Soon thereafter, the other three stockholders commenced practicing accounting as Erwin, Fountain & Jackson, P.A.

Appellant subsequently filed suit, alleging (among other things) that Wheeler, Erwin & Fountain, P.A., had breached the Deferred Compensation Agreement by failing to pay him according to its terms; and that Erwin, Fountain & Jackson, P.A., was liable for that breach on a number of theories. Erwin, Fountain & Jackson eventually moved to bifurcate the action; stay discovery as to the claims against it; and proceed to trial on the claim for breach of the Deferred Compensation Agreement only, because the claims against it required that appellant first obtain a judgment against Wheeler, Erwin & Fountain on the breach of contract claim. The trial court granted that motion.

A nonjury trial was held on the claim alleging breach of the Deferred Compensation Agreement. Over objection that the Deferred Compensation Agreement was unambiguous and, therefore, there was no reason to consider parol evidence, the trial court permitted the attorney who had drafted the Deferred Compensation Agreement and the Stock Restriction and Retirement Agreement to testify at length as to the parties’ intent regarding those agreements. He testified that the Deferred Compensation Agreement provided for a deferred compensation benefit to be based on the overall value of the firm. The intent was to create a structure in which the value of the firm would be split between the Stock Restriction and Retirement Agreement and the Deferred Compensation Agreement. This provided a tax advantage. No money was actually being put aside to pay deferred compensation. The Deferred Compensation Agreement permitted a party either to “retire” or to “withdraw,” with the latter term intended to permit a party the option of continuing the practice of public accounting elsewhere. However, the Stock Restriction and Retirement Agreement contemplated that, if a party elected to leave, the other stockholders would have the option of either remaining in business or dissolving the firm. According to the drafting attorney, the intent was that, if the remaining stockholders elected to dissolve the firm, the Deferred Compensation Agreement would become “moot” because the intent was that deferred compensation would be paid only if the firm elected to remain in business. However, the drafting attorney conceded that the Deferred Compensation Agreement did not expressly make payment of deferred compensation subject to the purchase of a departing shareholder’s stock or the continued existence of the firm. On the contrary, the language of that agreement appeared to create an unconditional obligation upon receipt of written notice of an employee’s intent to retire or withdraw from employment; and to provide that, if Wheeler, Erwin & Fountain were dissolved, the obligations set out in that agreement would be binding against the dissolved firm.

In a lengthy final judgment in favor of appellee Wheeler, Erwin & Fountain on the breach of contract claim, the trial court first determined that parol evidence had properly been admitted “to enable the Court to interpret the various agreements and to give them their proper and equitable application,” apparently on the ground that the Deferred Compensation Agreement contained a latent ambiguity, although the precise nature of that ambiguity was never identified. Based on the parol evidence regarding the supposed intent of the parties when the various agreements were prepared, the trial court further concluded that the parties had intended that, upon retirement or withdrawal by a stockholder, deferred compensation would be payable only if the remaining stockholders elected for the firm to remain in business; if, instead, the remaining stockholders elected to dissolve the firm, no obligation to pay deferred compensation would arise. Accordingly, the trial court entered judgment for Wheeler, Erwin <& Fountain on the breach of contract claim. Because it had previously concluded that the claims against Erwin, Fountain & Jackson were essentially derivative of the breach of contract claim, it subsequently entered judgment in favor of that firm on those claims. These consolidated appeals follow.

Appellant contends that the Deferred Compensation Agreement was unambiguous and that, therefore, the trial court erred when it concluded otherwise and permitted parol evidence. According to appellant, construction of the pertinent terms of the Deferred Compensation Agreement compels the conclusion that he was entitled to a judgment in his favor as a matter of law. We agree.

Absent an ambiguity, interpretation of a contract is a question of law to be decided by the court. E.g., Gainesville-Alachua County Reg’l Airport Auth. v. R. Hyden Constr., Inc., 766 So.2d 1238, 1239 (Fla. 1st DCA 2000). Whether an ambiguity exists is also a question of law. E.g., Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 565-66 (Fla. 1st DCA 2000). Only when an ambiguity exists requiring resolution by resort to extrinsic evidence is a question of fact presented. E.g., Wagner v. Wagner, 885 So.2d 488, 492 (Fla. 1st DCA 2004). Accordingly, our standard of review as to appellant’s contentions regarding construction of the Deferred Compensation Agreement is de novo. See Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999); Centennial Mortgage, 772 So.2d at 565-66.

“As a general rule, in the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence.” Lee v. Montgomery, 624 So.2d 850, 851 (Fla. 1st DCA 1993). Extrinsic evidence is admissible regarding the intent of parties to a contract only if a latent ambiguity exists. E.g., United States on Behalf of Small Bus. Admin, v. S. Atl. Prod. Credit Ass’n, 606 So.2d 691, 695 (Fla. 1st DCA 1992). “A latent ambiguity arises when a contract on its face appears clear and unambiguous, but fails to specify the rights or duties of the parties in certain situations.” E.g., Jenkins v. Eckerd Corp., 913 So.2d 43, 52-53 (Fla. 1st DCA 2005).

Appellant maintains that the Deferred Compensation Agreement unambiguously provides that Wheeler, Erwin & Fountain became unconditionally obligated to pay deferred compensation benefits on appellant’s date of retirement, which occurred when appellant withdrew from his employment. Appellees respond that the Deferred Compensation Agreement must be construed together with the Stock Restriction and Retirement Agreement, which provided that, if appellant ceased his employment with Wheeler, Erwin & Fountain other than by death or disability, the remaining stockholders had the option of dissolving the firm rather than buying appellant’s stock. According to appellees, this created an ambiguity in the Deferred Compensation Agreement as to whether the firm’s obligation to pay deferred compensation benefits survived its dissolution. The trial court agreed with appellees, and relied on extrinsic evidence to conclude that the firm’s obligation to pay deferred compensation benefits did not survive its dissolution. This was error.

We conclude that, contrary to the trial court’s finding, the Deferred Compensation Agreement does not contain any ambiguity. It clearly states that the firm became obligated to pay appellant deferred compensation “[u]pon the close of business on the Retirement Date of the Employee,” which occurred when appellant “retire[d] or withdr[e]w from the employment of the Employer.” Nothing in that agreement conditions payment of deferred compensation on appellant’s actual retirement from the practice of public accounting. Likewise, nothing in that agreement provides that the firm’s obligation to pay deferred compensation would not survive dissolution of the firm as provided in the Stock Restriction and Retirement Agreement. Although silence can create a latent ambiguity in certain circumstances, “[t]he laws which exist at the time and place of the making of a contract enter into and become a part of the contract made, as if they were expressly referred to and incorporated in its terms, including those laws which affect its construction, validity, enforcement or discharge.”- S. Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771, 773 (Fla. 1st DCA 1983). Appellant correctly notes that dissolution of a corporation does not extinguish its debts. At common law, a legal action could not be maintained against a dissolved corporation because it ceased to exist as a legal entity. See Levine v. Levine, 734 So.2d 1191, 1196 (Fla. 2d DCA 1999); Bahl v. Fernandina Contractors, Inc., 423 So.2d 964, 965 (Fla. 1st DCA 1982). However, this rule has been altered in Florida insofar as “[a] dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including ... [discharging or making provision for discharging its liabilities[.]” § 607.1405(l)(e), Fla. Stat. (1999); Levine, 734 So.2d at 1196. Thus, in the absence of any provision to the contrary, dissolution of the firm did not extinguish its obligation to pay deferred compensation pursuant to the Deferred Compensation Agreement.

Contrary to appellees’ contention, the Deferred Compensation Agreement and the Stock Restriction and Retirement Agreement clearly contemplate separate obligations that are subject to different conditions. When appellant withdrew from his employment with the firm, the Deferred Compensation Agreement created an unconditional obligation on the firm’s part to pay a deferred compensation benefit, whereas the Stock Restriction and Retirement Agreement gave the remaining stockholders the option either to purchase appellant’s stock and remain in business or to dissolve the firm. There is nothing in the agreements, themselves, to support the trial court’s conclusion “that it was the stockholders’ intent that the Deferred Compensation Agreement was simply a conduit by which [Wheeler, Erwin & Fountain], as an ongoing entity, could make tax deductible payments to a departing stockholder for one-half of the agreed value of the [Wheeler, Erwin & Fountain] stock, with the other one-half coming from the Stock Restriction and Retirement Agreement.” Such a conclusion is inconsistent with the concept of “deferred compensation,” which means “funds already earned but for which payment is deferred.” Ruberg v. Ruberg, 858 So.2d 1147, 1152 (Fla. 2d DCA 2008). See also Black’s Law Dictionary 801 (8th ed.2004) (defining “deferred compensation” as “[p]ayment for work performed, to be paid in the future or when some future event occurs”).

We are, of course, obliged to construe contract provisions according to their plain and ordinary meaning unless the agreement specifically provides for a different meaning. See Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.2d 719, 722 (Fla. 3d DCA 2002); Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999); Heck v. Parkview Place Homeowners Ass’n, 642 So.2d 1201, 1202 (Fla. 4th DCA 1994). Construing the provisions of the two agreements according to their plain and ordinary meaning, we conclude that there is nothing in either the Deferred Compensation Agreement or the Stock Restriction and Retirement Agreement to indicate that the firm’s obligation to pay deferred compensation benefits would be extinguished if the firm were dissolved. Accordingly, we hold that the trial court erred as a matter of law when it found the agreements to be ambiguous regarding the firm’s obligation to pay deferred compensation benefits after the firm was dissolved; received parol evidence on the subject; and concluded that the firm’s obligation to pay deferred compensation benefits ceased upon its dissolution.

Because the Deferred Compensation Agreement clearly and unambiguously provides that Wheeler, Erwin & Fountain was to become unconditionally obligated to pay deferred compensation benefits on appellant’s date of withdrawal from the firm, we reverse that portion of the trial court’s first judgment which denied appellant’s claim for such benefits (count II of the amended complaint), and remand with directions that the trial court enter judgment for appellant on that claim. Moreover, because counts III through VI of the amended complaint, which sought relief on various theories against Erwin, Fountain & Jackson, P.A., are essentially derivative of count II, we reverse the supplemental final judgment which denied appellant relief as to those claims, and remand those claims for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

LEWIS and THOMAS, JJ., concur.


text:
    Edward HOWLAND, Appellant, v. Barry S. SCHRAGER, Appellee.
    No. 4D05-3644.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Rehearing Denied Oct. 15, 2007.

      Peter E.S. Wallis of Wallis & Wallis, Pompano Beach, for appellant.
    Steven H. Meyer of Steven H. Meyer, P.A., Boca Raton, for appellee.
   PER CURIAM.

The trial court entered a default and default final judgment in this action brought by appellee, Barry S. Schrager, against appellant, Edward Howland, for fraudulent transfer of property by appel-lee’s former wife to appellant. We find no abuse of discretion in the trial court’s order denying appellant’s motion to vacate the default judgment, given that appellant failed to demonstrate excusable neglect or inadvertence. However, we agree with appellant that he was not given proper notice before the trial court entered final judgment awarding damages based solely on appellee’s affidavit. Because this action involves unliquidated damages, appellant was entitled to notice of an order setting the matter for trial and an opportunity to defend. See Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA2006).

Accordingly, we reverse the damages portion of the order and final judgment and remand for trial, after notice, on the damages issue.

Affirmed in part, reversed in part, and remanded.

SHAHOOD, C.J., GROSS and TAYLOR, JJ., concur.


author: MONACO, J.

text:
    INFINITY DESIGN BUILDERS, INC., Appellant, v. M.F. HUTCHINSON, Appellee.
    No. 5D06-2730.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    Rehearing Denied Sept. 24, 2007.

      Penny W. Schmidt and R. Gregg Jerald, of Schutt, Schmidt, Burnett & Noey, Jacksonville, for Appellant.
    P. Campbell Ford and Ali A. Tedrick, of Ford, Miller & Wainer, P.A., Jacksonville, for Appellee.
   MONACO, J.

Infinity Design Builders, Inc., appeals an order of the trial court denying its motion to stay arbitration proceedings. Because there was no agreement between the parties to arbitrate, and because Infinity did not knowingly waive its constitutional right to litigate its dispute with the appellee, M.F. Hutchinson, in court, we reverse.

The relevant facts of this case begin in 2001, when the parties executed a contract in which Infinity agreed to construct an oceanfront custom residence on Mr. Hutchinson’s real property. Infinity thereafter and in due time constructed the house. In 2005, Mr. Hutchinson notified Infinity and the American Arbitration Association (“AAA”), that he was demanding arbitration with respect to his claim that during the hurricanes of the previous year, significant leaking occurred around the windows of the home. As a result, according to Mr. Hutchinson, the windows were damaged and mold and mildew infiltrated the house. Mr. Hutchinson attached to his demand for arbitration a copy of an AIA construction contract that required disputes over the construction of the residence to be resolved by arbitration and mediation. The contract, which was purported to be the one entered into by the parties, bore no signatures. An addendum also submitted by Mr. Hutchinson was signed by the parties, but contained no reference to arbitration.

During the four-month period between the filing of the demand for arbitration and the objection to arbitration, the parties had exchanged letters concerning the arbitration proceeding, and Infinity filed a motion with the AAA to abate the arbitration until Mr. Hutchinson complied with the notice requirements of Chapter 558, Florida Statutes (2006), which deals with construction defects. In addition, Infinity denied liability and reserved the right to assert affirmative defenses. The parties further agreed that the arbitration would be held in Jacksonville, and that certain AAA procedures would not apply. Finally, the parties sent a checklist for conflicts to the AAA, agreed on the selection process and the criteria for the arbitrator, and took a number of other steps consistent with their participation in arbitration.

At that point Infinity filed an objection to arbitration with the AAA asserting that in fact no arbitration agreement existed between Infinity and Mr. Hutchinson, because the contract attached to the demand for arbitration was not an accurate copy of the contract actually executed by the parties. The correct contract, according to Infinity, was actually signed by the parties, but had the entire section on- mediation and arbitration crossed out. The crossed out section was, moreover, initialed by each of the parties.

A month later Infinity filed a complaint in circuit court seeking a stay of the arbitration proceeding in accordance with section 682.03(4), Florida Statutes (2006). The trial court granted a temporary stay of the arbitration and set a hearing date to consider Infinity’s motion to stay arbitration.

At the conclusion of the hearing, which was non-testimonial in nature, the trial court entered an order on Infinity’s motion to stay arbitration in which it related that the contract attached to the demand for arbitration “was not the correct, signed contract.” It also confirmed that the correct contract was the one offered by Infinity in which the arbitration provision had been struck by the parties. Nevertheless the trial court, considering only the documents submitted by the parties and legal argument, denied the motion to stay arbitration on the theory that Infinity’s participation in the arbitration process waived its right to have its disputes -with Mr. Hutchinson decided in a trial forum. Infinity appeals. Our jurisdiction is based on rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure. As the only evidence before the court was in the form of the same documents that are now before us, we review the order de novo.

Article I, section 21 of the Florida Constitution requires the courts of this state to be “open to every person for redress of any injury.” As with any other constitutional right, the right of access to the courts may be relinquished. See Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 761 (Fla. 2d DCA 2005), review denied, 929 So.2d 1053 (Fla.2006).

Arbitration stands on a different foundation because it is a matter of contract. Accordingly, a party cannot be compelled to arbitrate any dispute that he or she did not agree to submit to arbitration. Kemiron Atl., Inc. v. Aguakem Int'l, Inc., 290 F.3d 1287, 1290 (11th Cir.2002); Technical Aid Corp. v. Tomaso, 814 So.2d 1259, 1261 (Fla. 5th DCA 2002). In deciding whether arbitration is required, therefore, one must necessarily begin by asking whether the parties contractually agreed to arbitrate. If they did not, then unless there is a waiver of the right, Article I, section 21 requires submission of the legal dispute to the courts.

In the present case it is abundantly clear that the parties did not agree to arbitrate any dispute, including any that might arise out of the construction contract. The trial court nevertheless ruled that the matter of the water leakage around the windows would remain in arbitration because it found that Infinity had waived its right to have its dispute with Mr. Hutchinson litigated in the courts. We think the trial court erred.

Waiver is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707 (Fla.2005); see also LeNeve v. Via South Florida, L.L.C., 908 So.2d 530, 535 (Fla. 4th DCA 2005).

When a party moves to compel arbitration of an issue, a trial court must consider the following three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Raymond James, 896 So.2d at 711; Seifert v. U.S. Home Corp., 750 So.2d 638, 636 (Fla.1999). Here, of course, there is no valid written agreement to arbitrate, and there are, accordingly, no arbitrable issues under the contract. Thus, unless Infinity has waived its right to seek a resolution of the dispute in the courts, as the trial court indeed found, the conclusion that Infinity may not be forced to arbitrate is compelled.

Whether a party has waived its right to arbitrate — or presumably to litigate — depends on the trial court finding: (1) the existence of a right which may be waived; (2) actual or constructive knowledge of the right; and (3) an intent to relinquish the right. See LeNeve, 908 So.2d at 535. Proof of waiver may either be express or implied from “conduct or acts that lead a party to believe that the right has been waived.” Id.

Here, Infinity actually began participating in the arbitration process, but did so as a result of the attachment by Mr. Hutchinson of a document that had never been executed by the parties. In fact, the parties had specifically and unequivocally agreed not to arbitrate, as the true contract amply demonstrated. Moreover, only after a delay in the exchange of some documents that were demanded by Infinity did Infinity find the real contract in its files. Upon doing so, Infinity immediately acted to enforce its right to litigate. Under these circumstances where no more than the preliminary stages of arbitration had begun, we conclude that there was simply no waiver because there was no knowing intent to do so. Infinity’s negligence in not locating the valid contract sooner is not sufficient to void its constitutional right to a judicial resolution of the claims.

The courts of this state have frequently recognized that by participating in litigation, a party might waive its right to arbitration. See, e.g., Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32 (Fla. 2d DCA 2005). Thus, it is helpful to consider the obverse in the context of the present case. We have located two significant cases in Florida in which a participant in arbitration has been determined to have waived its right to litigate in the courts. See LeNeve; Victor v. Dean Witter Reynolds, Inc., 606 So.2d 681 (Fla. 5th DCA 1992), review denied, 614 So.2d 502 (Fla.1993). Each of these cases, however, is readily distinguishable from the case currently before us.

The first case, LeNeve, was relied upon by the trial court as support for its conclusion that Infinity had waived its right to litigate. The facts there, however, were substantially different from those of the present case. In LeNeve, the appellant was not an original party to a general partnership contract, but was the president and director of one of the contracting partners. The contract contained an arbitration provision that specifically excluded any additional persons who were not signatories to the agreement. The appellant, however, specifically authorized his attorney to include him as a counter-petitioner and to file an answer in a matter that arose from the contract, even though the appellant was not named in the dispute. When the arbitration panel discovered that the appellant was not a party to the contract, it raised the issue of whether the parties wanted to allow him to participate. The appellant responded in writing by affirmatively waiving his non-party defense to arbitration and his right to submit his claims to the circuit court. The other parties agreed, and the panel recognized the appellant’s “consent to jurisdiction.” The petitioner then amended its complaint to include the appellant, and the parties litigated the matter aggressively.

After the arbitration panel found in favor of the petitioner, the appellant filed an objection to arbitration, claiming that he really only waived his right to arbitrate claims made by him, but not against him. He then attempted to withdraw his counterclaims and discontinue participation in arbitration. The Fourth District Court, however, affirmed the finding of the trial court that appellant waived his right to litigate in court. The appellate court held that because arbitration jurisdiction derives from the agreement of the parties, it can be broadened during the course of arbitration by consent, waiver, or failure to object. Thus, even if the appellant thought he was only waiving his right to litigate his counterclaims, the court found that his active participation in arbitration for six months constituted an implied waiver of all of his claims. See LeNeve, 908 So.2d at 535.

The present case is markedly different from LeNeve. In LeNeve the appellant was fully aware that he did not have to use arbitration to resolve the conflicts, yet specifically and intentionally sought to do so in writing. Here, on the other hand, Infinity began its relatively short participation in the arbitration process in the mistaken belief that it was compelled to arbitrate by the contract. The constitutional right to access to the courts of this state should not, without more, be waived by mistake, particularly where there is little harm wrought by the mistake.

Similarly, in Victor an investment brokerage agreement between the parties specifically called for arbitration, and both parties willingly participated in it. Only after many months of wrangling and just before the scheduled arbitration, Dean Witter Reynolds, Inc., the stock brokerage firm filed suit to have the courts, rather than the arbitration panel, decide a statute of limitations issue. This court found, however, that the brokerage firm had waived its right to seek a judicial determination of the limitations issue because of its long, active, knowledgeable and intentional participation in the arbitration process. We said there, in fact:

Dean Witter’s problem, however, is of its own making. For its own purposes, Dean Witter chose to draft customer agreements requiring customers to submit to arbitration of ‘any controversy.’ It is not surprising that, in circumstances like those presented in this case, Dean Witter would not prefer the procedural and substantive advantages of a judicial forum for the prompt and dispassionate application of such dispositive legal defenses as the statute of limitations. But Dean Witter elected a different, nonjudicial forum for resolution of ‘any controversy’ with its customers. Having provided for arbitration in its customer agreement, Dean Witter will have to trust the arbitrators to do their jobs properly.

Victor, 606 So.2d at 686.

The present case is once again different. There is no contract document that conferred jurisdiction of the controversy on the arbitrators. There was no choosing by Infinity to submit any contract issues to arbitration. Here, there is little question but that Infinity participated in arbitration only by mistake, and that as soon as it discovered its mistake, it sought a judicial determination of its rights. There was no knowing waiver of Infinity’s right to have the dispute litigated in the courts of Florida. Under these circumstances the use of arbitration should not have been compelled.

Accordingly, we reverse and remand for further action consistent with this opinion.

REVERSED AND REMANDED.

PALMER, C.J. and THOMPSON, J., concur.


text:
    Merriel Gamble BROWN, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 1D07-1428.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.
    Rehearing Denied Sept. 25, 2007.
    Merriel Gamble Brown, pro se, Appellant.
    Wings S. Benton, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 22, 2007, the Court has determined that the notice of appeal was not filed within 30 days of rendition of the order on appeal as required by Florida Rule of Appellate Procedure 9.110(b). Accordingly, the appeal is dismissed as untimely.

WOLF, DAVIS, and POLSTON, JJ., concur.