author: ANDREWS, MICHAEL F., Associate Judge.

text:
    ESTATE OF Reinaldo VILLANUEVA, by and through Rosalina VILLANUEVA as Personal Representative, Appellant, v. T. Patton YOUNGBLOOD, Appellee.
    No. 2D05-3112.
    District Court of Appeal of Florida, Second District.
    March 22, 2006.
    Rehearing Denied May 17, 2006.

      Kennan George Dandar of Dandar & Dandar, P.A., Tampa, for Appellant.
    T. Patton Youngblood, Jr., pro se.
   ANDREWS, MICHAEL F., Associate Judge.

The Estate of Reinaldo Villanueva seeks review of a final summary judgment entered in favor of T. Patton Youngblood in this automobile accident case. Reinaldo Villanueva was killed when his car was hit by a 1996 Lexus LS400 owned by Young-blood and driven by one Teddy Aponte. Because none of the exceptions to the dangerous instrumentality doctrine were established in the trial court as a matter of law, summary judgment in favor of Young-blood was improper. Accordingly, we reverse and remand for further proceedings.

FACTS

The record in the trial court established that Youngblood was given ownership of the Lexus, which had been titled solely in his wife’s name, in a final judgment of dissolution that was entered on November 14, 2002. On December 4, 2002, Young-blood took the Lexus to Extreme Auto Sales & Accessories, Inc., and consigned it there for sale. Youngblood had discussions with one of Extreme Auto’s principals, Teddy Aponte, about the sales price for the Lexus; however, there were no discussions between Youngblood and Aponte about the use of the Lexus while it was on consignment. Youngblood assumed that he was consenting to Extreme Auto using the Lexus solely for test drives by prospective purchasers, but he never expressly limited Extreme Auto’s use of the Lexus to this purpose. After dropping the Lexus off at Extreme Auto, Young-blood did not expect to regain possession of it; rather, he expected to receive solely the sales proceeds.

On December 24, 2002, Aponte took the Lexus from the Extreme Auto lot and drove it to his home. From there, he drove it to visit several friends and to purchase beer before heading to his sister’s house for a Christmas party. On the way to the Christmas party, Aponte was involved in the accident that killed Mr. Villanueva. Aponte testified at deposition that he decided to take the Lexus home that night for safekeeping because there had been some incidents of vandalism on the Extreme Auto lot. Youngblood testified that he would never have consented to this type of use had he known of it.

After the accident, the Estate sued a number of parties, including Youngblood as the alleged owner of the Lexus. Following significant discovery, both the Estate and Youngblood filed motions for summary judgment. The Estate sought summary judgment based on the dangerous instrumentality doctrine and Young-blood’s status as the owner of the Lexus. Youngblood sought summary judgment on three grounds: the “shop” exception to the dangerous instrumentality doctrine, the theft or conversion exception to the dangerous instrumentality doctrine, and Youngblood’s alleged lack of consent to Aponte’s use of the Lexus. The trial court granted summary judgment in favor of Youngblood without providing a specific reason for doing so, and the Estate appealed.

. DANGEROUS INSTRUMENTALITY DOCTRINE

Florida’s dangerous instrumentality doctrine was first applied to motor vehicles by the supreme court in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. Id. at 682. The doctrine was judicially adopted based on public policy concerns:

The dangerous instrumentality doctrine seeks to provide greater financial responsibility to pay for the carnage on our roads. It is premised upon the theory that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation. If Florida’s traffic problems were sufficient to prompt its adoption in 1920, there is all the more reason for its application to today’s high-speed travel upon crowded highways. The dangerous instrumentality doctrine is unique to Florida and has been applied with very few exceptions.

Aurbach v. Gallina, 758 So.2d 60, 62 (Fla.2000) (quoting Kraemer v. Gen. Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990)).

As the supreme court noted in Aurbach, there are very few exceptions to the dangerous instrumentality doctrine. The legislature has created a statutory exception for automobiles leased under long-term leases if the lessee meets certain insurance requirements. See § 324.021(9)(b), Fla. Stat. (2002). The courts have created three additional exceptions: the “shop” exception, see Castillo v. Bickley, 363 So.2d 792 (Fla.1978); the theft or conversion exception, see Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla.1993); and the “bare naked title” exception, see Aurbach, 753 So.2d at 62. In all situations other than these, an owner who authorizes someone else to operate the owner’s vehicle, whether by express or implied consent, has a nondelegable duty to ensure that the vehicle is operated safely. Aurbach, 753 So.2d at 62.

As is evidenced by these limited exceptions, the supreme court has been very hesitant to create new exceptions to the dangerous instrumentality doctrine. In Kraemer, the supreme court specifically refused to create a judicial exception for long-term lessees, noting that it was “loath to engraft upon this doctrine a further exception.” 572 So.2d at 1365. Subsequently, the supreme court reiterated its “long-standing rejection of any judicial exception to the dangerous instrumentality doctrine in Florida.” Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 580 (Fla.1996). Thus, at this point, it appears that the supreme court has determined that the creation of any further exceptions to the dangerous instrumentality doctrine should be left to the legislature. Cf. Kraemer, 572 So.2d at 1367.

THE “SHOP” EXCEPTION

The Estate’s primary contention on appeal is that summary judgment in favor of Youngblood was improper under the “shop” exception to the dangerous instrumentality doctrine because the facts of this case do not fall within the contours of that exception as explained by the supreme court. We agree.

In Castillo, the supreme court created the “shop” exception for those situations involving “automobile service agencies.” 363 So.2d at 793. In doing so, the supreme court stated:

Our decision to pare back the dangerous instrumentality doctrine in service station and repairman situations stems from considerations of both social policy and pragmatism. An automobile owner is generally able to select the persons to whom a vehicle may be entrusted for general use, but he rarely has authority and control over the operation or use of the vehicle when it is turned over to a firm in the business of service and repair. Moreover, an owner often has no acceptable alternative to relinquishing control of his vehicle to a service center, after which he has no ability to ensure the public safety until the vehicle is returned to his dominion. Persons injured by the acts of garage and service repair agencies are not, however, without protection for their losses. They can and in logic should look to the perpetrator of the injury, who frequently is better able to use due care and to insure against the financial risks of injury. ,

Id. Since then, the supreme court has noted that the “shop” exception applies “only to the vehicle’s negligent use during servicing, service-related testing, or service-related transport of the vehicle.” Michalek v. Shumate, 524 So.2d 426, 427 (Fla.1988). Courts have generally refused to expand the scope of this exception, to the point of refusing to apply it when the vehicle is being driven to or from the repair facility rather than during the course of the repairs themselves. See, e.g., id. at 427 (refusing to extend the shop exception when a cleaning company employee had picked up the owner’s car and was driving it to the cleaning facility); Grilli v. Le-Bo Props. Corp., 553 So.2d 352, 353 (Fla. 2d DCA 1989) (following Michalek and refusing to apply the shop exception to accident that occurred when cleaning company employee was returning car to owner); Lopez v. DeMaria Porche-Audi, 395 So.2d 199 (Fla. 3d DCA 1981).

In this case, Youngblood did not turn the Lexus over to an “automobile service agency” for repair or service. Rather, he consigned the Lexus to a used car dealer for sale. While Youngblood argues that Extreme Auto was providing the service of selling the car, all of the cases applying the “shop” exception have involved servicing or repairing the motor vehicle itself — not providing a service to the owner. For the “shop” exception to retain its meaning, it cannot be extended to a bailment by the vehicle owner to any entity other than a service or repair shop. Instead, it must be limited to those situations specifically contemplated by the supreme court. Thus, because the facts of this case do not fall within the “shop” exception to the dangerous instrumentality doctrine, summary judgment in favor of Youngblood on this basis was improper.

We do agree with Youngblood that some of the policy reasons behind the “shop” exception apply equally to the consignment of a car for sale. In both cases, the owner turns the car over to another and relinquishes control to that entity. In both cases, the owner has no ability to ensure the public safety unless and until the car is returned. In both cases, it is foreseeable that the vehicle will be operated on the public roads for test drives, whether by a repairman testing the vehicle or by a prospective purchaser. Further, in both cases, the perpetrator of the injury, i.e., the repair firm or the dealership, is in the better position to use due care and to insure against the financial risks of injury.

However, we disagree with Youngblood that this court should take this opportunity to extend the “shop” exception to eonsignment-for-sale situations. As this court has previously stated in a comparable context:

[W]e believe precedent requires use to apply the impact rule in this case, absent some recognized exception. In Tanner [v. Hartog], 696 So.2d 705 [ (Fla.1997) ], the supreme court reaffirmed the continued viability of the rule and noted that any exceptions to the rule must be considered on a case-by-case basis. If a new exception to the impact rule is to be drafted, we believe the supreme court is the most appropriate body to do so.

Holt v. Rowell, 798 So.2d 767, 772-73 (Fla. 2d DCA 2001), reversed on other grounds, 850 So.2d 474 (Fla.2003). In this case, given the supreme court’s own stated reluctance to create new exceptions to the dangerous instrumentality doctrine, see Ady, 675 So.2d at 580, we believe that if the “shop” exception is to be extended to new factual situations, the supreme court is the most appropriate body to do so. Accordingly, we decline Youngblood’s invitation to extend the “shop” exception to the facts presented in this case. Having declined to do so, we must reverse the summary judgment granted on this basis.

THEFT OR CONVERSION EXCEPTION

Perhaps recognizing that the “shop” exception does not apply to this case, Youngblood argues in the alternative that the trial court properly entered summary judgment in his favor under the theft or conversion exception to the dangerous instrumentality doctrine. However, it is clear from the record that there are genuine issues of material fact concerning whether the use of the Lexus by Aponte constituted a theft or conversion, thus rendering summary judgment improper on this basis as well.

“Conversion occurs when a person asserts a right of dominion over chattel which is inconsistent with the right of the owner and deprives the owner of the right of possession.... The question of whether a vehicle has been the subject of a conversion is a factual one based on the distinct circumstances of each individual case.” Ming v. Interamerican Car Rental, Inc., 913 So.2d 650, 654 (Fla. 5th DCA 2005).

Here, it is undisputed that Youngblood consigned the Lexus to Extreme Auto and the accident occurred while Extreme Auto had legal possession of the Lexus pursuant to the consignment. At that time, Young-blood had no expectation of ever possessing the Lexus again. Instead, he expected Extreme Auto to retain possession of the Lexus until it was sold. Therefore, Aponte’s use of the Lexus while it was consigned to Extreme Auto did not deprive Youngblood of his right of possession.

In addition, there are factual disputes as to whether Aponte intended to deprive Youngblood of possession. While Young-blood denies that he gave permission for anyone from Extreme Auto to drive the Lexus for other than test drive purposes, it is undisputed that Youngblood did not expressly prohibit Aponte from using the Lexus. Further, Aponte testified in his deposition that, at the time of the accident, he was taking the Lexus to his residence for safekeeping overnight because there had been vandalism at the Extreme Auto car lot. If this testimony is true, Aponte had no intent to deprive Youngblood of his ownership rights." While Youngblood questions the credibility of this testimony, questions of credibility are to be resolved by a jury — not by the court on summary judgment. Ming, 913 So.2d at 652. Therefore, because of these issues of material fact, summary judgment was inappropriate under the theft or conversion exception to the dangerous instrumentality doctrine.

LACK OF CONSENT

Finally, Youngblood contends that even if neither exception to the dangerous instrumentality doctrine applies, the summary judgment should nevertheless be affirmed because the Estate failed to prove that he had knowledge of or had consented to Aponte’s use of the Lexus. This argument has no merit under the facts presented here.

When dealing with the dangerous instrumentality doctrine, the supreme court has broadly defined the scope of the necessary consent so as to effectuate the purposes of the doctrine.

[WJhen control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse. The validity or effect of restrictions on such usé, as between the parties, is a matter totally unrelated to the liabilities imposed by law upon one who owns and places in circulation an instrumentality of this nature.

Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 835-36 (Fla.1959) (emphasis added). Thus, in Susco, even though the renter of a vehicle agreed that he would be the only driver and the accident occurred while someone else was driving the rented vehicle, Susco, as the owner, remained liable under the dangerous instrumentality doctrine because it had voluntarily relinquished control of the vehicle to the renter. While the restrictions on use agreed to between Susco and the renter might have had some effect on their respective liabilities to each other, those restrictions had no effect on Susco’s liability, as the owner of the vehicle, to an injured third party. See also Stupak v. Winter Park Leasing, Inc., 585 So.2d 283, 284 (Fla.1991).

Similarly here, the evidence is undisputed that Youngblood gave permission to Extreme Auto to operate the Lexus. The only question is the scope of that permission. While Youngblood testified that he did not explicitly give permission for Extreme Auto to use the Lexus for any reason other than test drives by prospective purchasers, that restriction. on use between the parties, assuming it was proven to exist, does not affect Youngblood’s liability, as the owner of the Lexus, to injured third parties such as the Estate. Therefore, even if the trial court had entered summary judgment on this basis, such a judgment could not stand.

Reversed.

WHATLEY and CASANUEVA, JJ., Concur.

      . In the trial court, Youngblood contended that he was not a legal owner of the Lexus and therefore was not subject to any liability that might be imposed on a vehicle owner under the dangerous instrumentality doctrine. The trial court found that there were genuine issues of material fact as to the ownership of the Lexus and refused to grant summary judgment on this basis; thus, the issue of the ownership of the Lexus is not before this court in this appeal. Accordingly, for purposes of this opinion, we assume that Young-blood was the owner of the Lexus and was subject to the dangerous instrumentality doctrine.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold E. KENDALL, Jr., individually and as Co-Trustee of the Hasumape Trust, Appellant, v. Susan BRADFORD, Martha Kendall Gilmore, Peter H.J. Kendall and John G. Immer, as Co-Trustees of the Hasumape Trust, Appellees.
    No. 3D05-1349.
    District Court of Appeal of Florida, Third District.
    March 22, 2006.
    Rehearing Denied May 19, 2006.
    Shutts & Bowen, Fort Lauderdale, and William Jay Palmer, for appellant.
    Silver, Garvett Henkel, and Fredric M. Garvett, and Ira Cohen, for appellees.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536 (Fla. 5th DCA 2003).


author: PLEUS, C.J.

text:
    MEMORIAL HOSPITAL-WEST VOLUSIA, INC., Appellant/Cross-Appellee, v. NEWS-JOURNAL CORPORATION, et al., Appellee/Cross-Appellant.
    No. 5D05-925.
    District Court of Appeal of Florida, Fifth District.
    March 24, 2006.
    Rehearing Denied May 10, 2006.

      Arthur J. England, Jr., and Edward G. Guedes of Greenberg Traurig, P.A., Miami, for Appellant/Cross-Appellee.
    Jonathan D. Kaney, Jr., Jonathan D. Kaney, III, and Heather Bond Vargas, Cobb & Cole, Daytona Beach, for Appel-lee/Cross-Appellant, News-Journal Corp.
    Tanner Andrews, DeLand, pro se.
   PLEUS, C.J.

We have once again been asked to determine whether the Public Records Act and Sunshine Law apply to Memorial Hospital-West Volusia, Inc. (“Memorial”). We previously determined that these laws applied to Memorial when it leased a hospital from the West Volusia Hospital Authority (“the Authority”). See News-Journal v. Corp. Memorial Hosp.-West Volusia, Inc., 695 So.2d 418 (Fla. 5th DCA 1997) (“News-Journal Corp.”). The supreme court approved our determination in Mem orial Hosp.-West Volusia, Inc., v. News Journal Corp., 729 So.2d 373 (Fla.1999) (“Memorial I”).

Now that Memorial has purchased the hospital from the Authority, we conclude that these public disclosure laws no longer apply, We therefore reverse the summary judgments entered in favor of the defendants, News-Journal Corporation (“the News-Journal”) and Tanner Andrews (“Andrews”), and remand with directions to enter summary judgment in favor of Memorial.

Facts

The history of the Authority, from its inception in 1957, to its prior relationship and litigation with Memorial through 1999, is chronicled at length in Memorial I. In 2000, the Authority terminated Memorial’s lease and sold the hospital to a reconstituted corporate entity also known as Memorial. As consideration for the hospital, Memorial agreed to (1) forgive the Authority’s unpaid debt to Memorial; (2) fully fund and terminate the hospital employee pension plan; and (3) abide by certain covenants for 20 years.

The covenants obligated Memorial to (1) maintain the hospital’s JCAHO accreditation and its emergency room; (2) maintain 156 licensed beds; (3) name the hospital “Florida Hospital DeLand;” (4) continue any current medical services and programs; (5) provide emergency medical care to indigents; (6) provide medical staff pursuant to the terms of the agreement; (7) create a governing board with 11 members, four of which were DeLand residents; and (8) give the Authority the right of first refusal if Memorial decided to sell the hospital.

In August 2002, Memorial filed a complaint against the News-Journal and Andrews, seeking a declaration that it was no longer subject to the Public Records Act or the Sunshine Law after the sale of the hospital in September 2000. The News-Journal and Andrews filed counter-complaints and all parties later moved for summary judgment.

Along with its motion for summary judgment, Memorial filed several supporting documents and affidavits. In its motion for summary judgment, the News-Journal conceded that “[tjhere is no dispute as to any facts set forth in [Memorial’s] affidavits and evidenced by the documents in [Memorial’s] Appendix.” Andrews disputed three issues. Andrews correctly characterized the first issue as one of law, not fact. The second issue is not material to this discussion. In the third issue, Andrews disputed Memorial’s assertion that the Authority did not provide Memorial any funding other than indigent care reimbursement. Andrews alleged that “the Authority in fact provided approximately $11M since 2000 to make up for [Memorial’s] failure to fund its pension plan.” This assertion was unsupported by any citation to evidence in the record and none is apparent upon our review. Thus, the lower court correctly determined that summary judgment was appropriate because the material facts were undisputed.

The lower court granted summary judgment in favor of the defendants, finding that Memorial was still subject to the public disclosure laws despite the Authority’s sale of the hospital to Memorial. Memorial timely appealed.

On appeal, Memorial argues that the lower court erroneously applied the “delegation” test instead of the “totality of factors” test. Memorial contends that proper application of the totality of factors test leads to the conclusion that it is no longer subject to the Public Records Act and Sunshine Law.

The News-Journal argues that it was not necessary to apply the totality of factors test when there was a clear delegation of the Authority’s statutory responsibility to Memorial. Andrews argues that the trial court’s decision subjecting Memorial to public disclosure laws was correct under either the totality of factors test or the delegation test.

In addition, Andrews filed cross appeal arguing that that the lower court erred in concluding that Memorial’s violation of the Sunshine Law in announcing its intent to terminate the lease was cured by subsequent public meetings of the Authority. Andrews argues that the violations were not cured, and consequently, the lease termination and sale were void. However, we agree with the lower court that the Authority cured the violation and therefore reject this argument without further discussion.

Standard of Review

The de novo standard applies for reviewing the lower court’s decision on cross motions for summary judgment. Memorial Hospital, 729 So.2d at 881.

Constitutional and Statutory Provisions

The Public Records Act: Article I, section 24(a) of the Florida Constitution gives the public the right to inspect or copy public records of “any public body, officer or employee of the state, or persons acting on their behalf,” including an “entity created pursuant to law....” (Emphasis added). Pursuant to this provision, the legislature enacted Chapter 119 of the Florida Statutes. Section 119.011(2) broadly defines the term “agency” to include any private business entity “acting on behalf of any public agency.”

The Sunshine Law: Article 1, section 24(b) of the Florida Constitution requires that “[a]ll meetings of any ... special district” at which public business is transacted or discussed is to be “open and noticed to the public.” Pursuant to this provision, the legislature enacted section 286.011(1), Florida Statutes, which subjects government agencies to the open meetings requirement. Collectively, these provisions are referred to as the Sunshine Law.

Applicable Hospital Acts and Statutes: In 1957, the legislature created the Authority, an independent taxing district in western Volusia County that is “authorized and empowered to establish, construct, operate, and maintain such hospital or hospitals” for use of the people of the district. Ch. 57-2085, § 5 at 310, Laws of Fla. The legislature found the maintenance of such hospitals was a “public purpose” and was “necessary for the preservation of the public health and for the public use and for the welfare of said district and inhabitants thereof.” Id.; see also Memorial I, 729 So.2d at 377.

In 1982, the legislature enacted section 155.40, Florida Statutes (1983), which authorized independent special taxing districts such as the Authority to enter into leases and operating agreements for existing hospital facilities with not-for-profit Florida corporations. In 1996, the legislature amended this section to permit such taxing districts to-lease or sell their hospi-tais. Ch. 96-304, § 1 at 1377, Laws of Fla.; Memorial I, 729 So.2d at 377.

Case Law

The Schwab Totality of Factors Test: In News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So.2d 1029 (Fla.1992) (“Schwab ”), the supreme court adopted a totality of factors test for determining whether a private entity is “acting on behalf of any public agency” under the Public Records Act. The factors it considered, included but were not limited to:

1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency’s chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for who’s benefit the private entity is functioning.

Id. at 1031.

Since Schwab, the supreme court has repeatedly advised private entities to look to the Schwab factors in evaluating their possible agency status under the Public Records Act. See Memorial Hospital, 729 So.2d at 380; New York Times Co. v. PHH Mental Health Services, Inc., 616 So.2d 27, 30 (Fla.1993).

The Delegation Test: In Stanfield v. Salvation Army, 695 So.2d 501, 503 (Fla. 5th DCA 1997), however, this Court held that where the facts compel the conclusion that a public agency has transferred or delegated its statutory responsibility to a private entity, “it is unnecessary to engage in the factor-by-factor analysis outlined by Schwab.” In Stanfield, the Salvation Army contracted with Marion County to provide probationary services for misde-meanants pursuant to section 948.15, Florida Statutes. This Court held that because the Salvation Army contract provided for the “complete assumption of a governmental obligation,” it was subject to the Public Records Act. Id. In so holding, this Court distinguished between merely contracting to provide services to a public agency and contracting to provide services in place of the public agency. Id. at 502-03.

In support of such a distinction, we relied upon our opinion in News-Journal Corp. However, in News-Journal Corp., we nevertheless proceeded to fully analyze the individual factors listed in Schwab and concluded that Memorial was subject to the Public Records Act under the lease agreement.

On review of the News-Journal case, the supreme court approved both our evaluation of the Schwab-factors and our distinction between providing services to or in place of a public agency. It stated as follows:

We find no error in the district court’s legal determinations of each factor listed in our Schwab decision. However, as we made clear in Schwab, an analysis of the individual factors we listed in Schwab “provides guidance for making such a determination,” but it is the totality of factors that controls the determination. Schwab, 596 So.2d at 1031-32.
In this case, the totality of factors demonstrates that the authorized function of the Authority has been transferred and thereby delegated to [Memorial] through the transfer of operation and maintenance of the hospitals.
We likewise agree with the Fifth District in this case in noting the distinction between providing materials or services to a public body to facilitate the public body’s own performance of its public function and an agreement under which a private actor performs the public function in place of the public body. When the agreement transfers the actual public function, public access follows, as was correctly determined by the Fifth District in its more recent decision in Stanfield v. Salvation Army, 695 So.2d 501 (Fla. 5th DCA 1997), in which the district court held that public access was required for a private entity that completely assumed a governmental obligation in its contract with a county government to provide probationary services. Id. at 502-03.

Memorial I, 729 So.2d at 379-81.

Subsequently, in Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So.2d 970 (Fla. 2d DCA 2002), the second district recognized the supreme court’s approval of both tests in Memorial I. It stated:

The case law establishes two general sets of circumstances in which documents in the possession of private entities must be produced as public records. First, when a public entity delegates a statutorily authorized function to a private entity, the records generated by the private entity’s performance of that duty become public records. See [Memorial I], 729 So.2d 373 (Fla.1999). Second, when a public entity contracts with a private entity for the provision of certain goods or services to facilitate the public agency’s performance of its duties, the private entity’s records in that regard may be public if the “totality of the factors” indicates a significant level of involvement by the public agency. See [Schwab], 596 So.2d at 1031.

Id. at 974.

Analysis

Below, the News-Journal argued it was not necessary to evaluate the Schwab factors because the court could simply apply the delegation test. The News-Journal argued that it was immediately apparent that the Authority had delegated its statutory obligation to Memorial, and thus, under Memorial I and Stanfield, public access followed.

The lower court agreed with the News-Journal, finding that it need not analyze the individual Schwab factors because the only “substantial difference” between the current case and the one finally decided by the supreme court in Memorial I was that Memorial leased the hospital in Memorial I and purchased the hospital in the instant case. The lower court concluded that change in relationship did not disturb the ultimate conclusion reached by the supreme court in Memorial I that the “legal effect of this total transfer to [Memorial] ... is in reality a delegation of the Authority’s authorized function to [Memorial].” Memorial I, 729 So.2d at 380.

On de novo review of the record before us, we conclude the lower court failed to give due consideration to the fact that this case came to it on a vastly different record than the record in Memorial I, on which it so heavily relied. The difference in the two cases cannot be so simply summarized as one involved a lease and the other a sale. The sale agreement in this case is significantly different than the lease agreement in Memorial I. In addition, Memorial filed several affidavits and other documents that went uncontested by News-Journal or Andrews.

Even if the only significant difference between these two cases is that one involved a lease and one involved a sale, we would still hesitate to conclude that such difference does not change the ultimate result without first evaluating the Schwab factors. Afterall, the supreme court in Memorial I attributed significance to this distinction, noting that “[p]ublic scrutiny of these assets should continue as long as the Authority owns these assets.” Memorial I, 729 So.2d at 380. Even the News-Journal acknowledged at oral argument that if the Authority had simply sold the hospital to Memorial, without the attached covenants, Memorial would not be subject to the Public Records Act and the Sunshine Law.

In short, we do not believe that a delegation of the Authority’s function is so “immediately apparent” from this record as to relieve us of the obligation to analyze the individual Schwab factors under the changed circumstances of this case. That analysis follows.

Level of Public Funding: Under the lease, we found a high level of public funding because of the artificially low lease amount, the Authority’s agreement to spend tax revenues on hospital operations and the Authority’s transfer of its entire working capital fund to Memorial. News-Journal, 695 So.2d at 421.

Since the sale, public funding has dropped significantly. The Authority has not given Memorial any money for hospital operations or capital improvements. Nor does the Authority lease the hospital to Memorial at a favorable rate. Instead, Memorial owns the hospital and has sole financial responsibility for its operation and maintenance.

The only public funding Memorial receives from the Authority is to reimburse it for indigent care. In an affidavit, the Authority’s financial advisor, Gregory Le-Fils, stated that the Authority spends approximately 25 percent of its revenue to reimburse Memorial for the cost of providing indigent care. For its part, Memorial’s Chief Financial Officer, Lawrence Schalk, stated in his affidavit that since the sale, revenue received by Memorial from the Authority accounts for approximately 4.5 percent of Memorial’s annual net patient revenue. Over 95 percent of Memorial’s net patient revenue comes from other sources such as managed care providers, Medicare, Medicaid and self-paying patients. Accordingly, the level of public funding — 4.5 percent of Memorial’s annual net patient revenue — is low and does not indicate a “significant level of involvement by the public agency.” Schwab, 596 So.2d at 1031.

Commingling of Funds: Under the lease, this Court found commingling of funds because both Memorial and the Authority paid money for hospital expenses. News-Journal Corp., 695 So.2d at 421. In comparing this case to the facts under the lease, we find significance not only in the substantial decrease in the level of public funding, but also in the character of that funding. Under the lease, the Authority spent substantial revenue to reimburse Memorial for the operation and maintenance of the hospital. Because the operation and maintenance of hospitals is deemed to be a public function in the Authority’s enabling legislation, it was easy to understand our conclusion that Memorial was acting on behalf of the Authority.

Since the sale, however, the Authority no longer reimburses Memorial for the operation and maintenance of the hospital. It merely reimburses Memorial for the provision of a service — indigent care. Schwab established that a private entity does not “act on behalf of’ a public agency “merely by entering into a contract to provide professional services to the agency.” Schwab, 596 So.2d at 1032 (citing Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So.2d 343 (Fla. 3d DCA 1983)). Nor does this reimbursement establish any commingling of funds.

Whether Activity Conducted on Public Property: Under the lease, hospital operations occurred on public property. Since the sale, hospital operations occur on private property. Memorial owns the hospital, not the Authority. This factor is significant in at least two respects. First, public assets and tax revenues are no longer being used to operate and maintain the hospital. Second, the Authority no longer has any legal responsibility or liability for those assets. As Gregory LeFils noted in his affidavit, Memorial had the option under the lease to “simply turn over a financially-troubled hospital facility to the Authority and walk away, leaving the Authority with a tremendous problem.” Now, Memorial owns the hospital and cannot give it back to the Authority.

Whether Services Contracted for are an Integral Part of Public Agency’s Chosen Decision-making Process: We previously found that the lease arrangement accomplished the Authority’s goal of operating a hospital. News-Journal Corp., 695 So.2d at 421. Since the sale, the Authority is no longer involved in the operation of the hospital. With the exception of reimbursing Memorial for indigent care, the Authority has chosen to direct its resources elsewhere: to reimbursing other hospitals, clinics and other outpatient providers for indigent care services.

Whether Private Entity is Performing a Governmental Function or a Function Which the Public Agency Otherwise Would Perform: Under the lease, we found that Memorial was providing a service that the Authority would otherwise perform based on the Authority’s enabling legislation. We concluded that “[i]f the Authority did not provide these services either through a contractual arrangement with some entity or through its own management, then there would be no reason for the Authority to exist.” News-Journal Corp., 695 So.2d at 421-22. The supreme court likewise found that the operation and maintenance of hospitals was the “fundamental public mandate” of the Authority’s enabling act, upon which the Authority’s continued viability depended. Memorial I, 729 So.2d at 379.

While we are certainly mindful of these prior pronouncements, we believe they do not apply to the instant facts. As previously stated, the Authority no longer provides for the operation and maintenance of the hospital as it did under the lease. Does this mean the Authority is no longer viable? No. Under its enabling act, the Authority was empowered to “establish, construct, operate, and maintain such hospital or hospitals as in their opinion shall be necessary for the use of the people of said district.” Ch. 57-2085, § 5, at 310, Laws of Fla. (emphasis added). This language expressly contemplates that the authority may “operate and maintain” one or more hospitals in the district.

In addition to hospitals, the act authorizes the establishment of clinics for the use" and benefit of the indigent sick. Ch. 57-2085, § 19, at 310, Laws of Fla. (1957). A subsequent amendment to the act empowers the Authority to:

acquire, construct, reconstruct, extend, make additions to, enlarge, improve, repair, remodel, restore, equip, and furnish hospital and other health care facilities now or hereafter located in the district and which are or may be owned by or under the supervision, operation, and control of the district. For the purposes of this section “hospital” or “health care facilities” means any real property or interest therein, building, structure, facility, machinery, equipment, furnishings, or other property suitable for use by the district in connection with its operations or proposed operations, including, without limitation, real property therefore, a clinic, computer facility, food service and preparation facility, health care facility, long-term care facility, hospital, interns’ residence, laboratory, laundry, maintenance facility, nurses’ residence, nursing home, nursing school, office, professional office building, parking structure and area, pharmacy, recreational facility, research facility, storage facility, utility, or x-ray facility, or any combination of the foregoing; and other structures or facilities related thereto or required or useful for health care purposes, and conducting of research, or the operation of a hospital or other health care facility, including facilities or structures essential or convenient for the orderly conduct of such hospital or other heath care facility and other similar items necessary or convenient for the operation of a particular facility or structure in the manner for which its use is intended.

Ch. 82-383, § 1, Laws of Fla. Pursuant to these provisions, the Authority gives approximately 75 percent of its tax revenue to at least one other hospital and several clinics and other health care facilities in the district.

Furthermore, both the enabling act and section 155.40(4)(b), Florida Statutes, authorize the Authority to sell a hospital. Thus, even if the Authority sells a hospital, it can remain viable by operating and maintaining, or providing for the operation and maintenance of other hospitals, clinics and health care facilities in the district.

Based on this analysis, we conclude that Memorial is no longer performing a function which the public agency otherwise would perform. Unlike the situation under the lease, it is undisputed that the Authority will never resume operation of the hospital, even if Memorial ceases to perform it. The hospital will never revert back to the Authority. The Authority does not want the hospital and does not have to have it. That is why the Authority sold it.

Extent of Public Agency’s Involvement with, Regulation of, or Control over Private Entity: Under the lease, we found that the Authority exercised considerable control over Memorial “by virtue of the requirements of the lease and the performance standards established therein. And if there is a default in the lease or a deficiency in the standards of performance, the ‘lease’ may be terminated. This is real control.” News-Journal Corp. 695 So.2d at 422. However, the control that the Authority had under the lease ended with the sale of the hospital. The Authority can no longer terminate the lease and take possession of the hospital.

The News-Journal relies on the covenants as evidence that the Authority is still ensuring that its mission is fulfilled through Memorial. Similar to the performance requirements in the lease, the covenants require Memorial to maintain the hospital and its programs according to specified terms. But unlike the lease arrangement, the Authority no longer has the remedy of taking possession of and resuming control over the hospital. Under the sale agreement, the Authority may seek redress for breach of the covenants by going into court and seeking specific performance or perhaps money damages, but it cannot resume operation of the hospital. Having the right to sue for breach of contract does not equate to “involvement with, regulation of, or control over” Memorial.

Andrews concedes that the lack of re-verter clause under the sale agreement has eroded the Authority’s control over Memorial, but argues that the authority still has the power of the purse, or the power to cut off public money. Theoretically, the Authority could cut off indigent care reimbursement to Memorial, but this would result in withholding only up to 4.5 percent of Memorial’s net patient revenue. This hardly amounts to any significant level of control over Memorial. Furthermore, the Authority would be in breach of its contractual obligations and public mission to provide for indigent health care in the district. Thus, the Authority has the power to cut off reimbursement, but the exercise of that power would harm the Authority much more than Memorial.

Whether Private Entity was Created by Public Agency: Under the lease, this Court found that Memorial was created “at the behest of’ the Authority. News-Journal Corp., 695 So.2d at 421. However, under the sale, Memorial was reconstituted by its parent company, Adventist Health Systems/Sunbelt, Inc., not by, or at the behest of, the Authority. Accordingly, the Authority had no role in the creation of Memorial other than agreeing to the sale of the hospital and consenting to amendment of Memorial’s articles of incorporation, as required by section 155.40(2)(a), Florida Statutes.

Whether Public Agency has a Substantial Financial Interest in Private Entity: Under the lease, this Court found that although the Authority was not an investor in Memorial, it had a substantial financial interest in Memorial based on the first factor — the level of public funding. News-Journal Corp., 695 So.2d at 422.

As discussed above, the Authority’s financial interest in Memorial is much less since the sale than it was under the lease. It no longer invests capital into Memorial or provides a facility under a favorable lease. It no longer provides funds for the operation and maintenance of the hospital. It has no ownership interest in Memorial or the hospital. The only financial connection between the Authority and Memorial is through a contract to provide indigent care.

For Whose Benefit Private Entity is Functioning: Under the lease, we analyzed this factor as follows:

In a sense, of course, this is the primary issue before this court. Without doubt it is functioning in the financial interest of itself and its parent company. However, in our view, it is just as surely functioning for the benefit of the Authority in a practical sense by providing hospital services to the inhabitants of the taxing district which, but for the lease and transfer agreement, the Authority would be forced to provide.

News-Journal Corp., 695 So.2d at 422. Under the sale, Memorial is still acting in its own financial interest and that of its parent company. Is it also benefiting the authority by providing hospital services and indigent care to the inhabitants of the district. Unlike the lease arrangement, however, the Authority is no longer “forced to provide” such services in the event of Memorial’s breach or its decision to sell the hospital. In such an event, the Authority could sue for damages or specific performance, purchase the hospital under its right of first refusal, or simply choose to direct its resources to new or existing hospitals, clinics or other health care facilities.

Totality of Factors: Analyzing all of the Schwab factors, we conclude that since the sale, Memorial is no longer “acting on behalf of’ the Authority and therefore is not subject to the Public Records Act and the Sunshine Law. Accordingly, we reverse the summary judgments below and remand with directions to enter summary judgment in favor of Memorial.

REVERSED AND REMANDED.

SHARP, W. and PALMER, JJ., concur.

      . The phrase “Public Records Act” refers collectively to Article I, section 24(a) of the Florida Constitution, and Chapter 119 of the Florida Statutes. The phrase, “Sunshine Law,” refers collectively to Article I, section 24(b) of the Florida Constitution and section 286.011(1), Florida Statutes.

      . Joint Commission on Accreditation of Healthcare Organizations.

      . Neither article I, section 24(b) nor section 286.011(1) use the "acting on behalf of” language used in section 24(a) and the . Public Records Act. In fact, the Florida Supreme Court has refused to engraft such language ,onto the Sunshine Law. See Memorial Hospital, 729 So.2d at 383. Nevertheless, under the lease, the court held that both the Public Records Act and the -Sunshine Law apply to the Authority. Id. at 384.

      . Schalk defined "net patient revenue” as:
      revenue received by the hospital minus patient contractual allowances. For example, if a Medicare patient’s charges for hospital services are $20,000, and Medicare only pays the hospital $5,000, the net patient revenue for that transaction is $5,000. The $15,000 which Medicare does not pay is commonly called a "contractual allowance.” Net patient revenue differs from net revenue of the hospital in that net patient revenue does not include write-offs for bad debts or income received from ancillary hospital services, e.g., the cafeteria or the gift shop.


text:
    Mark Andrew SCHUMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3357.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied May 31, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We note that Appellant’s issue concerning double jeopardy is mooted by the subsequent amendment of the judgment. Merging counts VII and VIII into counts I and II effectively vacated counts VII and VIII.

STONE, GROSS and MAY, JJ., concur.


author: KLEIN, J.

text:
    HR MARKETING, INC., Appellant, v. ROI NETWORK, L.L.C.; Myleads, L.L.C.; and Frank Bernal, Appellees.
    No. 4D05-2002.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied May 25, 2006.

      Steve I. Silverman and Leslie A. Press of Kluger, Peretz, Kaplan & Berlin, P.L., Miami, for appellant.
    Gregg W. McClosky and Jennifer J. Kramer of McClosky, D’Anna & Dieterle, LLP., Boca Raton, for appellees.
   KLEIN, J.

HR Marketing appeals an order dismissing its complaint which alleged misrepresentation, fraud and breach of fiduciary duty, for failure to state a cause of action. We reverse.

The complaint alleged that plaintiff HR Marketing and defendant Bernal each owned fifty percent of ROI Network, L.L.C. and Myleads, L.L.C. Defendants approached plaintiff about purchasing plaintiffs one-half interest in ROI and My-leads. They falsely represented that there was no pending negotiation for a sale of ROI or Myleads to Equifax which induced plaintiff to sell its interest in ROI and Myleads. As part of the transaction plaintiff executed a general release. Several months later, contrary to the representation, Equifax purchased ROI and Myleads.

Defendants rely on the release; however, the allegations of the complaint are that the entire sale, which included the release, was fraudulently induced. The fraud would vitiate the entire transaction. D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485 (Fla. 4th DCA 2003). We have considered appellees’ other arguments for affirming and find them to be without merit. Reversed.

WARNER and HAZOURI, JJ., concur.


text:
    Stacy PATRICK and Terrell Patrick, Appellants, v. PALM BEACH COUNTY SCHOOL BOARD, Appellee.
    No. 4D05-1244.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied June 5, 2006.

      Barry M. Silver, Boca Raton, for appellants.
    Dorsey C. Miller, III of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for appellee.
   KLEIN, J.

Appellant Stacy Patrick, a teacher who was injured by a student with a propensity for violence, filed this personal injury action against her employer, the school board. The trial court granted the school board’s motion for summary judgment on the ground of worker’s compensation immunity, and she appeals. We reverse.

The. intentional tort exception to the general rule of worker’s compensation immunity, section 440.11(1), Florida Statutes (2002), requires the employee to show that the employer engaged in conduct that was objectively substantially certain to result in injury. In Travelers Indemnity Co. v. PCR Inc., 889 So.2d 779, 782-84 (Fla.2004), our supreme court explained:

[T]he latter method of satisfying the intentional-tort exception, the substantial-certainty method, calls for an objective inquiry: the relevant question is not whether the employer actually knew that its conduct was substantially certain to result in injury or death but, rather, whether the employer should have known that its conduct was substantially certain to result in injury or death. Accordingly, we held that under the substantial-certainty method of satisfying the intentional-tort exception, “the employer’s actual intent is not controlling.” Rather, this method requires a court to look to the totality of the circumstances “to determine whether a reasonable person would understand that the employer’s conduct was substantially certain to result in injury or death to the employee.” Applying this standard, we held that PCR was not entitled to summary judgment because genuine issues of material fact existed as to whether its conduct had been objectively substantially certain to cause injury or death.

At the hearing on the motion for summary judgment, the school board conceded, for purposes of the motion, that the allegations in the complaint were true. Those allegations, along with the facts contained in plaintiffs affidavit, showed the following facts. The child had been previously placed in a unit for the severely emotionally disabled, based on prior behavior. His file indicated that he had multiple personality disorder and reflected numerous incidents of violence including threats to teachers. The school board also knew that the child had been Baker Acted” by his parents for slamming his mother’s head against the floor, but either concealed or misrepresented .the child’s records in order to place him in this school, which was contrary to the school board’s policies. The placing of him in this school, and not warning the teachers, made it substantially certain that someone would be injured.

A similar worker’s compensation immunity factual situation was presented in Sierra v. Associated Marine Institutes, Inc., 850 So.2d 582 (Fla. 2d DCA 2003), in which a counselor at a residential juvenile detention camp was murdered by two of the camp’s residents. The second district reversed an order dismissing the complaint by the employee against his employer, which was based on the employer’s failure to protect the employees from this type of violence. After citing two similar cases from other jurisdictions, the second district concluded that, in light of the violent histories of the two teenage felony offenders, who had been assessed as escape risks, and the inexperience of the murdered employee who had not received proper training, the allegations met the substantial certainty test.

We agree with Sierra and conclude that the school board did not, on its motion for summary judgment, establish that there were no genuine issues of material fact as to whether the employer’s behavior satisfied the intentional tort exception.

Reversed.

WARNER and HAZOURI, JJ., concur.

      . Under section 394.467, Florida Statutes (2002) (the Baker Act), a court may order inpatient treatment on finding a substantial likelihood that the patient will inflict serious bodily harm on someone.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Crystal M. SHUTTLEWORTH, Appellee.
    No. 2D05-1739.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.
    Rehearing Denied May 17, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Robert E. Heyman of Zimmet, Unice, Salzman & Heyman, P.A., Clearwater, for Appellee.
   LaROSE, Judge.

The State appeals the trial court’s order granting Crystal Shuttleworth’s motion to suppress the cocaine and drug paraphernalia found in her bedroom after a police search. The State argues that Ms. Shut-tleworth consented to the search; thus, according to the State, Miranda warnings were unnecessary. Although the trial court’s order contains limited factual findings and legal reasoning, the record before us reflects adequate support for the ruling. Accordingly, we affirm.

The confusing fact pattern before us stems from what began as an investigation of a reported domestic dispute. Officer Granville was dispatched to investigate an incident where Ms. Shuttleworth’s boyfriend, Don Sullivan, reportedly cut her mother with a knife. Arriving at Ms. Shuttleworth’s home, Officer Granville saw a car pull out of the driveway and hit a trash can. He stopped the car; he asked the driver, Mr. Sullivan, and the passenger, Ms. Shuttleworth, to step out. Because the dispatch mentioned the use of a knife, Officer Granville patted down Mr. Sullivan for officer safety purposes. He found two spoons in Mr. Sullivan’s front pocket; they were coated with a substance that Officer Granville believed to be cocaine. As a result, Officer Granville handcuffed Mr. Sullivan and placed him in the patrol car.

A second officer, Officer Skipper, arrived on the scene and patted down Ms. Shuttleworth. She had no weapons or other contraband on her. Ms. Shuttleworth, however, was not free to leave; the officers had not determined her involvement, if any, in what one officer called an “ongoing investigation.” Officer Skipper knew of the contraband found on Mr. Sullivan but could not recall when, during the investigation, she learned this fact.

With Mr. Sullivan in custody and Ms. Shuttleworth, at a minimum, detained, Officer Skipper entered the house to investigate the reported domestic dispute. Officer Granville remained outside and asked Mr. Sullivan if there were any weapons or drugs in the car. Mr. Sullivan said that if there were, they were not his. Officer Granville then told Ms. Shuttleworth, who was standing at some distance from the patrol car, “Crystal, Donald said if there’s anything in the car, it’s not his.” This comment prompted Ms. Shuttleworth to admit that Mr. Sullivan had given her a bag of cocaine to place under her car seat. Despite this admission, which Officer Skipper later acknowledged was sufficient to arrest Ms. Shuttleworth, Officer Granville did not arrest Ms. Shuttleworth, nor did he advise her of her Miranda rights.

For her part, Officer Skipper returned from the house, concluding that Ms. Shut-tleworth’s mother had not been cut with a knife and that Mr. Sullivan was not the aggressor. Officer Granville advised Officer Skipper of Ms. Shuttleworth’s admission about cocaine. Officer Skipper elicited information from Ms. Shuttleworth that she and her mother had an argument about Mr. Sullivan. Her mother threw a soda can at her and tried to hit Mr. Sullivan. After her mother left the bedroom, Ms. Shuttleworth and Mr. Sullivan locked the bedroom door and left through a window.

In a claimed effort to confirm Ms. Shut-tleworth’s tale, Officer Skipper asked her to climb in the bedroom window, unlock the bedroom door from the inside, and allow Officer Skipper to look for evidence of the reported domestic dispute. Ms. Shuttleworth did so. Upon entering the bedroom, the officers found cocaine and drug paraphernalia in plain view. They then arrested Ms. Shuttleworth and advised her of her Miranda rights.

The trial court granted Ms. Shuttle-worth’s motion to suppress, concluding that the officers should have administered Miranda warnings at some earlier time prior to their entry into her bedroom. The trial court also concluded that Ms. Shuttleworth was in police custody when she led the officers to the drugs and paraphernalia in her bedroom. Consequently, the trial court suppressed the contraband discovered in the bedroom.

Miranda warnings are required before a suspect in custody is interrogated. Miranda, 384 U.S. at 467-68, 86 S.Ct. 1602. The trial court properly found that Ms. Shuttleworth was in custody. The degree of custody needed to trigger a Miranda warning rests on the suspect’s reasonable belief that her freedom of action was “curtailed to a degree associated with actual arrest.” Traylor v. State, 596 So.2d 957, 966 n. 16 (Fla.1992). Four factors are probative of whether a reasonable person in Ms. Shuttleworth’s position would consider herself in custody: (1) the manner in which police summon the suspect to question her; (2) the place, purpose, and manner of investigation; (3) the extent to which the suspect is confronted with evidence of her guilt: and (4) whether the suspect is informed that she is free to leave. Ramirez v. State, 739 So.2d 568, 574 (Fla.1999); see also Killian v. State, 761 So.2d 1210, 1214 (Fla. 2d DCA 2000). Our record reflects that at least two of the listed factors support the trial court’s conclusion that Ms. Shuttleworth was in custody sufficient to warrant Miranda warnings prior to her reentry into the bedroom.

The trial court also properly found that an officer subjected Ms. Shut-tleworth to interrogation. “Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.” Traylor, 596 So.2d at 966 n. 17; see also Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (concluding interrogation is either express questioning or its functional equivalent).

The record supports the determination that Ms. Shuttleworth, when confronted by Officer Granville’s comments about contraband, would think she was going to be arrested and would conclude that his comments were “designed to lead to an incriminating response.” As noted earlier, Ms. Shuttleworth admitted to the presence of cocaine in the car, and at least one of the officers conceded that her admission would have been a basis for arrest.

A ruling on a motion to suppress is presumptively correct and will be upheld if supported by the record. State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001). Our task is to assess “the evidence and reasonable inferences and deductions in a manner most favorable to sustaining the trial court’s ruling.” See State v. R.M., 696 So.2d 449, 450 (Fla. 4th DCA 1997) (quoting Owen v. State, 560 So.2d 207, 211 (Fla.1990)), receded from on other grounds, 696 So.2d 715 (Fla.1997). Although the trial court’s order is short on details, “if there is sufficient evidence ... to sustain the order ... the judge will be presumed to have properly based [her] order on that evidence.” State v. Thomas, 332 So.2d 87, 88 (Fla. 1st DCA 1976). These tenets are crucial where, as here, critical factors — such as witness credibility — cannot be gleaned from a cold record. See id.; see also Glatzmayer, 789 So.2d at 301. We ordinarily defer to the trial court’s factual findings and credibility determinations. See Ault v. State, 866 So.2d 674, 684 (Fla.2003); Lecom v. State, 832 So.2d 818, 819 (Fla. 5th DCA 2002).

To conclude that Ms. Shuttleworth was entitled to Miranda warnings prior to the officers’ entry into her bedroom, the trial judge, based on the evidence before her, could have concluded that the initial domestic violence investigation turned into a drug investigation targeting Mr. Sullivan and Ms. Shuttleworth when Officer Gran-ville found cocaine residue on Mr. Sullivan and Ms. Shuttleworth admitted to the presence of cocaine in the car. While more specificity would have assisted us in our review, see State v. Bell, 873 So.2d 476, 478 (Fla. 2d DCA 2004), we are not left unenlightened as to an apparent basis for the decision below. The evidence before the trial court and the record before us demonstrate that Ms. Shuttleworth was entitled to Miranda warnings before she let the officers search her bedroom. Her alleged “consent” to such a search was made under circumstances reflecting coercion or acquiescence to police authority during her detention. The officers knew of Ms. Shuttleworth’s involvement with contraband. Yet, while continuing to detain her during what apparently became a drug investigation, they failed to provide her the constitutional protections of Miranda. The record before us supports the trial court’s ruling.

Affirmed.

DAVIS, J., Concurs.

SILBERMAN, J., Concurs in result only.

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

      . Ms. Shuttleworth was later charged with possession of the cocaine found in the car. That contraband was not the subject of her motion to suppress and, we do not address it here.


author: THOMPSON, J.

text:
    Hector ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1972.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.
    Rehearing Denied May 10, 2006.

      Hector Rosado, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Hector Rosado appeals the denial of his post-conviction relief under Florida Rule of Criminal Procedure 3.850. He claims ineffective assistance of his privately retained counsel, Ricardo Pesquera. We affirm.

Rosado was adjudicated guilty on 7 March 2002 to armed robbery with a firearm, was sentenced to the minimum mandatory sentence of ten years’ imprisonment, and did not appeal. When Rosado entered his plea, he was serving two concurrent sentences of 22.89 years, with ten-year mandatory minimum sentences, for offenses in Orange and Osceola Counties arising from a similar robbery.

During the November 2001 plea hearing, Pesquera explained the terms of the agreement and that, if the court did not impose the minimum sentence, ten years, Rosado could withdraw his guilty plea. The court asked Rosado if he understood he was giving up his right to trial, if the plea was voluntary, and if he had talked to his attorney. The trial court also explained that it would impose a ten-year sentence and Rosado would not be eligible for gain time and would have to serve the entire sentence. Rosado said he understood and had no questions. The trial court accepted the plea, adjudicated Rosa-do guilty, and imposed the agreed-upon sentence.

In March 2004, Rosado filed a 36-page motion for post-conviction relief. Rosado claimed five grounds for ineffective assistance: (1) failure to file a pretrial discovery demand; (2) failure to conduct adequate pretrial investigation; (3) failure to depose prospective alibi witnesses; (4) failure to prepare a specific defense; and (5) inducing Rosado to plead guilty over his express wish to go to trial.

Rosado now alleges that he had wanted to go to trial, that his wife and mother were alibi witnesses, and that his attorney did not participate in discovery and overruled his request for trial. The record reflects that Pesquera filed a notice of intent to participate in discovery and received the State’s response and reciprocal discovery demand. Therefore, the court correctly denied the first ground for relief, and set for evidentiary hearing the other grounds.

The court denied Rosado’s request for counsel at the hearing. Rosado testified that he pled guilty because he did not understand English. Moreover, he testified that he was suffering from a disease and the medication he was taking caused confusion, memory loss, and indecisiveness which prevented him from understanding the charges and the plea. Further, Rosa-do claimed he did not understand he was pleading to a robbery charge, and that the minimum sentence was never explained.

Pesquera testified that he was a bilingual attorney licensed in Puerto Rico and Florida who represented Rosado in other criminal cases. He stated that Rosado never mentioned an alibi. Rosado had received over 22 years’ imprisonment and accepted this ten-year sentence because he would be in prison anyway and did not want to risk a heavier sentence. Neither Rosado nor his doctor indicated that Rosa-do’s disease or medication caused any cognitive problems. Pesquera also testified that he had spoken with Rosado’s physician and was never told that the medication adversely affected Rosado’s acuity or ability to assist in the preparation of his defense or his ability to understand the plea colloquy. Pesquera could translate for Rosado, but Rosado was conversant and admitted, in English, that he “and [his] friend was driving around. We went to a store and did it. It was stupid.” Pesquera had been working with Rosado over a year and a half, and continued to represent Rosado in a criminal case in Tampa.

The court found that Rosado understood the consequences of the plea and had never asserted an alibi or desire for trial. Accordingly, the court denied Rosa-do’s motion for post-conviction relief, and Rosado timely appealed, arguing that the court should have appointed counsel. We disagree.

“There is no absolute right to appointed counsel in a post-conviction proceeding.” Hylleberg v. State, 729 So.2d 409, 410 (Fla. 5th DCA 1999); see also Henderson v. State, 883 So.2d 891, 892 (Fla. 5th DCA 2004). Appointed counsel may be necessary if the issues are complex or require substantial legal research. Hylleberg, 729 So.2d at 410. The need for counsel turned on the court’s determination of whether representation was required for fair and thorough presentation of Rosado’s motion. See Hylleberg, 729 So.2d at 410. In this case, Rosado’s claims required no legal research and did not present any complex issues. See Ladson v. State, 829 So.2d 305, 307 (Fla. 5th DCA 2002). The trial court correctly concluded that the issues were factual and simple, and there was no need to appoint an attorney. See Henderson, 883 So.2d at 892. Rosado was able to call witnesses and cross-examine his trial attorney. See id. Because the trial court did not abuse its discretion by denying Rosado’s request for counsel and his motion for post-conviction relief, we AFFIRM.

PALMER and MONACO, JJ., concur.


text:
    Stanislaw MATAJEK, a/k/a Stanley Matajek, Appellant, v. Leokadia SKOWRONSKA, Appellee.
    No. 5D04-2783.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.
    Rehearing Denied May 5, 2006.

      Leonard R. Ross, Daytona Beach, for Appellant.
    Louis Ossinsky, Jr., Daytona Beach, for Appellee.
   THOMPSON, J.

Stanislaw Matajek (“Former Husband”) appeals the trial court’s equitable distribution of marital assets, award of permanent periodic alimony, and determination of entitlement to attorney’s fees in a final judgment of dissolution. We affirm in part and reverse in part.

Leokadia Skowronska (“Former Wife”) and the Former Husband were married in Poland in August 1983 and separated in Florida in May 2003. They had no children together. At the time of trial, the Former Wife was 54 and the Former Husband was 55.

The Former Wife moved to New York in August 1983, but the Former Husband did not move there until December 1985. She was a registered nurse in Poland and worked as a phlebotomist and an EKG technician in New York. He worked as an unlicensed contractor performing renovations. The Former Husband and his son were partners in a renovation company in New York.

The parties moved to Volusia County in April 2003 and separated shortly after arrival. She remained in the marital home, and he moved into a house with his son and his son’s wife.

For support, the Former Wife sought $3,883.88 monthly and alleged no income. At trial, she testified that she had received $28,000 or $35,000 from the Former Husband through an agreement for temporary support, but that no money was left because she had to pay bills. The precise amount she received cannot be determined from the record.

The Former Wife has been unemployed since arriving in Florida. She advertised in two newspapers and telephoned employers for work in phlebotomy, with medical records, or at living facilities, but no one called her back. She did not sign up with an employment service. She testified that she had been under a doctor’s care for depression and anxiety.

The Former Husband manages an apartment complex that he owns jointly with his son. The Former Husband stated that he lacked income and borrowed money to pay temporary support. His income cannot be determined from the record, and his financial affidavit was incomplete and inconsistent. He testified that the apartments grossed between $10,868 and $11,780 monthly between January and May 2004, but that apartment expenses were deducted from that income, resulting in a monthly net ranging from a deficit of $2,218 to an income of $1,928. He testified that he lived with and was supported by his son because he has no money.

There are three types of assets or liabilities pertinent to the equitable distribution on appeal. The most significant asset is the apartment complex that the Former Husband owns jointly with his son, who was not joined and did not appear before the court. The Former Husband and son purchased the complex after the parties separated, but before the Former Wife petitioned for dissolution. According to the Former Husband’s financial affidavit, the apartments were valued at $1,150,000, subject to an $800,000 mortgage for which the Former Husband and his son were responsible. The Former Wife did not dispute these figures.

The Former Husband testified that he and his son bought the apartments, and that his son had put money into the complex. The Former Husband stated that the apartments cost $350,000 above the $800,000 mortgage. A substantial portion of the purchase price came from the parties’ sale of the New York home where they previously lived, for which they received $178,074.15. He further testified that he had used money from the New York sale to purchase the Tampa house in which he lived with his son. The Former Husband testified that other money came from his family in Poland and his son. He also testified that he and his son had no formal written partnership agreement, but that everything between them was split equally.

The second category of assets the Former Husband addresses is the court’s valuation of three cars it equitably distributed — the Former Wife’s inoperative 1991 Plymouth and the Former Husband’s 1993 Ford van and 1996 Chrysler. His financial affidavit alleged that each was worth $2,500, but he testified that he guessed at values. The Former Wife estimated that her car was worth $500, but that his Chrysler was worth approximately $10,000. The trial court accepted the Former Husband’s valuation of his two cars, but found that the Former Wife’s car was worth $1,000.

Finally, the Former Husband alleges that the trial court erred by not finding that a $63,475 transaction between the husband and his family was a marital liability. The Former Husband received $63,475 from his family in Poland while he and the Former Wife were still married. He testified that this transaction was a loan and that he sent his family a note promising to pay the money back, but he had no copy of the note. The Former Wife testified that the money the family sent the Former Husband was money that he had previously sent them. The Former Husband did not enter any written evidence of the loan or its remaining balance at the time of trial.

The court’s final judgment awarded the Former Wife the Port Orange marital home, and equitably divided the Tampa house and apartment complex through an imposition of a lien in favor of the Former Wife. It granted the wife the car she had, valued at $1,000. The court ordered the apartment complex, “presently titled in the joint names of the husband and his son ... equitably divided by the imposition of a lien in favor of the wife.” Accordingly, it placed the apartment’s $350,000 equity in the husband’s column. The court concluded that the Former Wife was entitled to half of the $340,850 of property in the Former Husband’s possession. Therefore, she was entitled to $170,425 with 3% interest, payable in five installments of $34,085. This amount was secured by a lien providing that, upon the Former Husband’s nonpayment, the Former Wife could “accelerate all remaining payments and seek a judgment after notice ordering the husband’s interest in the properties [both the apartments and the Tampa house] sold.” The court made no written findings regarding the parties’ needs or ability to pay. Nevertheless, the court awarded permanent alimony to the Former Wife of $1,500 monthly and awarded her attorney’s fees.

The court’s statements at trial offer little additional detail. It found the apartment complex was a marital asset because “the bulk of the money, it looks like, that comes down for the [houses] ... and the apartment building in the Clear-water/Tampa area come from the proceeds of that New York sale.” The Former Wife requested sale of the properties, but the court noted that it had no jurisdiction to make the son sign a mortgage. Rather, the court elected to impose a time limit on payment, after which the Former Wife could proceed with foreclosure.

With respect to alimony, the court stated: “Now, on the question of alimony, there’s been a real cash flow problem here, and I — I think she is entitled to alimony with a 20-year marriage and the fact that she’s unable to find employment at this time. I’m going to award her $1,500 a month going forward.” It also held that the wife was entitled to recover some attorney’s fees, “probably the majority of them,” but reserved for determining the amount on a subsequent hearing.

The appropriate standard of review in a dissolution of marriage is abuse of discretion. Johnson v. Johnson, 847 So.2d 1157, 1158 (Fla. 5th DCA 2003) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). The trial court abuses its discretion only where no reasonable person would take the view it adopts based upon the evidence before it. Canakaris, 382 So.2d at 1203. This court must determine whether the trial court’s order is supported by substantial, competent evidence. Johnson, 847 So.2d at 1158 (citing Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983)).

The Former Husband contends that the trial court erred with respect to equitable distribution of the apartment complex, the family loan, and parties’ cars.

The apartment complex is titled in the names of the Former Husband and his son. However, the Former Wife neglected to join the son as a party to the dissolution. The Former Husband contends that the trial court erred by determining that his interest in the apartments was a marital asset.

We find the trial court did not have jurisdiction to adjudicate property rights of non-parties. Minsky v. Minsky, 779 So.2d 375, 377 (Fla. 2d DCA 2000); Schiller v. Schiller, 625 So.2d 856 (Fla. 5th DCA 1993); Ray v. Ray, 624 So.2d 1146, 1148 (Fla. 1st DCA 1993). The trial court recognized this when acknowledging it could not make the son sign a mortgage to enforce the Former Husband’s obligation. There is competent, substantial evidence to support the court’s finding that the Former Husband used marital funds from the sale of the New York home to acquire his interest in the apartments. Nevertheless, the trial court could not order the distribution to be secured through a lien on the husband’s interest in the property. This was precisely the action deemed reversible error by the First District in Ray. Ray, 624 So.2d at 1148. On remand, the court may consider the establishment of an equitable lien only if the Former Husband’s son is noticed and joined.

Furthermore, the court committed a mathematical error by placing the apartments’ entire $350,000 equity in the husband’s column. The Former Husband testified that he and his son worked “half and half.” Moreover, he presented unrebutted evidence that the son put money into the property. The Former Husband appears to hold a 50% interest as a tenant in common that he acquired through investing marital assets. Thus, his interest in the apartments’ equity would be $175,000 rather than $350,000. Therefore, the court did not award the equitable distribution required by statute, and will have to correct the error on remand. See McPherson v. McPherson, 796 So.2d 1230 (Fla. 4th DCA 2001) (remanding to correct mathematical error affecting equitable distribution scheme); cf. Doyle v. Doyle, 789 So.2d 499, 502 (Fla. 5th DCA 2001) (remanding where mathematical error frustrated the trial court’s stated intent to award spouse more than 50% of marital property in lieu of alimony).

However, the Former Husband’s claims of error with respect to the family loan and the value of his wife’s automobile are unavailing. First, the court did not abuse its discretion by declining to find a marital liability in the $63,475 figure that the Former Husband claimed was a loan from his family. The Former Wife disputed his- characterization of this transaction as a loan. Moreover, “[n]o written evidence of this indebtedness was introduced in the record below.” Santos v. Santos, 773 So.2d 568, 570 (Fla. 3d DCA 2000); cf. Sayegh v. Sayegh, 777 So.2d 1007, 1008 (Fla. 2d DCA 2000). Even if the existence of the debt had been established, the Former Husband’s claim of error on this point should fail because no evidence was introduced below to establish that, at the time of trial, “there was any outstanding balance remaining and[,] if so, what the amount was.” Id. at 571.

Second, the court did not abuse its discretion in its valuation of the automobiles. The court accepted the values that the Former Husband assigned to the two automobiles that he retained. As to the value of the Former Wife’s car, there must be competent, substantial evidence supporting the court’s findings on valuation for marital assets. See, e.g., Reddell v. Reddell, 899 So.2d 1154, 1155-56 (Fla. 5th DCA 2005) (quoting Brock v. Brock, 690 So.2d 737, 740 (Fla. 5th DCA 1997)); Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005). “This is the attorneys’ or prose parties’ burden. A trial judge cannot create findings out of thin air.” Reddell, 899 So.2d at 1156 (quoting Brock, 690 So.2d at 740). The parties presented scant evidence of value, but the court ascribed a value to the Former Wife’s car based on the evidence presented. See Spitulski v. Spitulski, 816 So.2d 1251, 1252 (Fla. 5th DCA 2002). The testimony was that the vehicle was over ten years old and no longer worked. The Former Husband conceded that his estimate of the car’s value was a guess and provided no evidence to support a valuation greater than the Former Wife’s estimate of $500 or the court’s conclusion of $1,000. The Former Husband cannot demonstrate an abuse of discretion where, after he declined to present evidence, the court declined to kick any tires before determining the car’s value to be closer to the estimate offered by the Former Wife.

A reasonable award of alimony should not be disturbed on appeal. Bacon v. Bacon, 819 So.2d 950, 952 (Fla. 4th DCA 2002) (citing Canakaris, 382 So.2d at 1204). Although an alimony award is not usually reversed absent an abuse of discretion, an award is erroneous as a matter of law where the trial judge fails to apply the correct rule. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003). “The trial court’s failure to consider all appropriate factors under section 61.08(2) in determining alimony is such an error.” Id.

Section 61.08(1), Florida Statutes (2004), requires a court granting alimony to include fact-findings regarding relevant economic factors supporting the award. Subsection (2) enumerates relevant factors:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

The failure to consider these factors frustrates meaningful review of the trial court’s award of alimony and constitutes reversible error. Vitalis v. Vitalis, 799 So.2d 1127, 1130-31 (Fla. 5th DCA 2001); see also Peterson v. Peterson, 882 So.2d 528, 530 (Fla. 4th DCA 2004).

The marriage lasted 20 years. The trial court must begin with a rebuttable presumption in favor of an award of permanent alimony. Hill v. Hooten, 776 So.2d 1004, 1007 (Fla. 5th DCA 2001). Even so, the court must determine need and ability to pay. Ondrejack, 839 So.2d at 870; O’Connor v. O’Connor, 782 So.2d 502, 503 (Fla. 2d DCA 2001). To determine need, the court should consider the standard of living the Former Wife enjoyed during the marriage and her age, health, and earning ability. O’Connor, 782 So.2d at 503. The court must do so even where, as here, the Former Husband agrees that permanent alimony is appropriate. O’Connor, 782 So.2d at 503-04; Italiano v. Italiano, 873 So.2d 558, 560 (Fla.2d DCA 2004). The court erred by simply designating the amount of alimony without finding the amount of the Former Wife’s need. O’Connor, 782 So.2d at 504.

The court fundamentally errs when it does not make findings regarding the parties’ previous standard of living because the failure to do so makes it impossible to determine the alimony award’s reasonableness. Nichols, 907 So.2d at 623. The purpose of permanent alimony is to provide for the spouse’s needs as they were established by the marriage. Reddell, 899 So.2d at 1156. Here, there was no testimony about the standard of living, and the only record evidence of lifestyle was that the spouses drove old vehicles. This evidence does not establish their standard of living. See Saporito v. Saporito, 831 So.2d 697, 700 (Fla. 5th DCA 2002).

Similarly, the court erred by making no finding regarding the Former Wife’s earning ability and failing to factor her potential earnings into the alimony award. O’Connor, 782 So.2d at 505. As an example, the court did not determine whether the Former Wife could acquire work as a phlebotomist or EKG technician; rather, the court stated only that “there’s been a real cash flow problem” and noted “the fact that she’s unable to find employment at this time.” Determining the parties’ incomes and earning abilities is vital to determining the proper amount of permanent alimony. Brock v. Brock, 690 So.2d at 742; accord Henin v. Henin, 767 So.2d 1284, 1286 (Fla. 5th DCA 2000). These findings are necessary to establish “an amount sufficient to meet the former wife’s reasonable needs measured by the parties’ former marital standard of living ... limited by the former husband’s ability to meet those needs.” Id.

Courts generally do not consider appeals alleging insufficient fact-finding where the appellant did not present the issue below at trial or in a motion for rehearing. See Alpha v. Alpha, 885 So.2d 1023 (Fla. 5th DCA 2004); Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004); Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001). We adopted this rule “subject to one caveat: Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review if the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings.” Mathieu, 877 So.2d at 741 n. 1. In this case, the required findings are neither “express [n]or apparent within the judgment,” and meaningful review has been hampered by the lack of findings. Id. at 741. Accordingly, because the basis for the trial court’s award is not reasonably clear, we reverse the award of permanent periodic alimony on account of the absence of required findings. Cf. Broadfoot, 791 So.2d at 585. On remand, the court may make the required findings, supported by the evidence, to provide the basis for its alimony award. Saporito, 831 So.2d at 698, 701.

Courts may award attorney’s fees in actions for dissolution of marriage after considering the financial resources of both parties. § 61.16, Fla. Stat. (2004). Attorney’s fees are based on need and ability to pay. See, e.g., Jones v. Jones, 671 So.2d 852, 854 (Fla. 5th DCA 1996). An award of attorney’s fees will not be reversed unless the trial court abused its discretion. Ondrejack, 839 So.2d at 872-73. However, an award of attorney’s fees is inappropriate if the parties are left in relatively equal financial circumstances after the dissolution. Brock, 690 So.2d at 742.

The Former Wife argues that, because the trial court reserved jurisdiction to award attorney’s fees, the trial court’s finding that she was entitled to them is non-final and non-appealable. See Greene v. Greene, 895 So.2d 503, 505 (Fla. 5th DCA 2005); Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997). The Former Wife also argues that the fees were subsequently determined and were not properly appealed. However, we have “jurisdiction to review the issue of entitlement to fees where the amount was later determined.” Ondrejack, 839 So.2d at 872 n. 2.

Because we remand on the issues of equitable distribution and alimony, we also reverse the award of attorney’s fees to the Former Wife. See Schiller, 625 So.2d at 862; Minsky, 779 So.2d at 377. Because the trial court’s overall plan may change upon reconsideration of its equitable distribution or alimony award, it may consider the award of attorney’s fees after refashioning its financial plan. Reddell, 899 So.2d at 1157. Of course, if the court accomplishes an equal distribution of the marital property and equalizes the parties’ incomes through alimony, it should not award attorney’s fees to either party. Vitalis, 799 So.2d at 1133.

We conclude that the court did not abuse its discretion in its valuation of the parties’ automobiles or its determination that the Former Husband did not prove that the family loan was a marital liability. However, the court erred with respect to equitable distribution of the husband’s interest in the apartment complex and by awarding alimony without statutorily required findings. Accordingly, we

AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

PALMER and MONACO, JJ., concur.


text:
    Susan EDEL f/k/a Susan Walker, Appellant, v. A. Grayson WALKER, III, Appellee.
    No. 5D04-2029.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.
    Rehearing Denied May 5, 2006.

      Elizabeth Siano Harris of Stadler Harris, P.A., Titusville, for Appellant.
    Inger M. Garcia of The Law Office of Inger M. Garcia, Hollywood, for Appellee.
   PER CURIAM.

This case presents a long and somewhat tortured history. Susan Edel, i/k/a Susan Walker, filed this action for dissolution of her six-year marriage to A. Grayson Walker, III, on September 21, 1995. The first final judgment, entered September 16, 1997, was reversed on appeal in Walker v. Walker, 719 So.2d 977 (Fla. 5th DCA 1998). In its opinion, this court addressed a number of points simply “to expedite the handling of this already too-delayed and over-litigated case.” Id. at 978. Inexplicably, the matter languished below for over three years before the second trial was held between October 2001 and January 2002.

Following the bench trial, the parties submitted written closing arguments in February 2002. Because of an unreasonably long delay in the issuance of a ruling (a matter for which the trial judge has been disciplined by the Florida Supreme Court), the Chief Judge of the Eighteenth Circuit intervened. According to the record, he met with the parties and offered two alternatives. First, if the parties felt that the long delay would affect the trial judge’s ability to rule fairly, the parties could stipulate to a mistrial. Alternatively, the parties could waive any objection based upon the unreasonable delay and request a ruling. Both parties chose this second option.

Therefore, both parties affirmatively requested the belated ruling from the judge who had presided over the trial of this matter. Once the judge ruled, however, Walker filed a motion to vacate the final judgment, citing as his grounds the trial judge’s unreasonable delay in entering its final order. The trial court granted the motion and vacated the final judgment. This appeal ensued.

Contrary to Walker’s suggestion that the delay in ruling alone makes the final judgment “per se reversible,” the delayed ruling does not, standing alone, justify setting aside the final judgment. E.g., Ascontec Consulting, Inc. v. Young, 714 So.2d 585 (Fla. 3d DCA 1998); Leto v. Dep’t of Env. Protection, 824 So.2d 283 (Fla. 4th DCA 2002); see also B.S. v. Dep’t of Children and Families, 860 So.2d 1038 (Fla. 5th DCA 2003). Rather, there must be “delay plus an indication that something is seriously amiss on the merits,” such as conflicts or inconsistencies between the trial court’s findings at the time of trial and the ultimate judgment, or significant findings not supported by the record. Ascontec, 714 So.2d at 587. Here, there is no indication of anything “amiss” in the final judgment. In preparing the final judgment, the trial court represented that it had reviewed its trial notes (126 pages that included notations regarding witness credibility), the entire transcript of the six-day trial, the parties’ written closing arguments, and each of the eighty-two exhibits submitted into evidence. The final judgment itself also states that the trial court “recalls the case, the parties, the witnesses and the issues clearly....”

Additionally, we find no fault with regard to the many rulings contained within the final judgment that Walker alleges to be “inconsistent” or “contrary to the evidence.” For example, Walker argues that the trial court erred in imputing income to him in the amount of $60,000 annually. However, the record supports the trial court’s findings regarding Walker’s extensive, unreported income and lavish lifestyle. There was also testimony that Walker has a Ph.D., no barriers to employment, an extensive and diverse background as a manager, and earning potential between $40,000 and $80,000 annually.

Walker next argues that the trial court erred by not imputing income to Edel. The record demonstrates that in 1999 Edel worked for Saga Software, Inc., earning $60,000. In 2000, she worked for On Display, earning $80,000. At the time of trial, she worked for Software AG at a salary of $80,000. We find no error in finding Edel’s earnings to be $80,000 annually.

Walker further argues that the court erred in its treatment of settlement proceeds from a wrongful termination suit. The court correctly applied Weisfeld v. Weisfeld, 545 So.2d 1341 (Fla.1989) to determine that the proceeds were not initially a marital asset. However, the court ruled that the parties’ discussions of their plans for the funds, their conduct regarding the funds during the marriage, and the deposit of the funds into a joint account from which funds were expended for marital debts and purchases created a presumption that Walker intended a gift to Edel of a half interest in the jointly-held funds. See Link v. Link, 897 So.2d 533, 537 (Fla. 5th DCA 2005). Under these circumstances, we cannot conclude that the trial judge erred in finding that the settlement award had lost its status as a non-marital asset because it had been gifted to Edel.

Similarly, we find no error in the court’s ruling regarding the marital home. The trial court’s choice of valuation date is well within its sound discretion. E.g., Noone v. Noone, 727 So.2d 972, 974 (Fla. 5th DCA 1998); Catalfumo v. Catalfumo, 704 So.2d 1095 (Fla. 4th DCA 1997); Claughton v. Claughton, 625 So.2d 853, 855 (Fla. 3d DCA 1993). The court did not abuse its discretion by valuing the marital residence as close to the date of dissolution as possible after contrasting Edel’s maintenance of and contribution to the marital residence with Walker’s lack of contribution. See Catalfumo, 704 So.2d at 1099; § 61.075(6), Fla. Stat. (2003).

Walker also contends that the trial court materially erred in its rulings regarding child support, rehabilitative alimony, a 1984 Ferrari, a Mercedes, a boat, real property on Lansing Island, marital debt, and personal property. We find no error in the final judgment as it relates to any of these issues.

In short, we see nothing in the final judgment or record suggesting that the delay in the trial judge’s ruling caused her to have forgotten or confused any material issue. Given these findings, along with the fact that Walker himself affirmatively asked for the delayed ruling, we find that the order vacating and setting aside the final judgment constituted an abuse of discretion. Accordingly, we reverse with instructions to reinstate the amended final judgment.

While we deny both parties’ requests for appellate attorneys’ fees on need and ability to pay, we remand to the trial court to consider E del’s request for fees at the trial level. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997); Simpson v. Simpson, 780 So.2d 985, 987-88 (Fla. 5th DCA 2001) (observing that it is generally appropriate to award attorney’s fees to one party to compensate for fees occasioned by the other party’s misconduct in attempting to hide assets); see also Carr v. Shawfrank, 894 So.2d 272, 278 (Fla. 1st DCA 2004).

REVERSED and REMANDED.

GRIFFIN, MONACO and LAWSON, JJ., concur.

      . We note two minor errors in the final judgment that neither implicate the court’s recollection of the evidence nor otherwise raise concern as to the order’s integrity. With respect to life insurance, the court should have included findings as to the need for insurance, the amount needed, its cost, and Walker's insurability. Byers v. Byers, 910 So.2d 336, 346 (Fla. 4th DCA 2005). Walker should pay the son’s uncovered medical expenses in accordance with his percentage share of child support, and child care costs should be reduced by 25% and added to the basic obligation. See Stem v. Chovnick, 914 So.2d 524 (Fla. 4th DCA 2005); §§ 61.30(7), (8).