text:
    Robert A. McMONIGLE, Appellant, v. Ronald J. McMONIGLE, Personal Representative of the Estate of John E. McMonigle, Sr., deceased, Appellee.
    No. 2D04-2838.
    District Court of Appeal of Florida, Second District.
    March 29, 2006.
    Theodore “Ted” E. Karatinos of Prugh, Holliday, Deem & Karatinos, P.A., Tampa, for Appellant.

      Sallie D. Skipper of Law Offices of Skipper & Skipper, P.A., New Port Richey, for Appellee.
   DAVIS, Judge.

Robert A. McMonigle challenges the trial court’s final judgment granting attorney’s fees to Ronald J. McMonigle, as Personal Representative of the Estate of John E. McMonigle, Sr. (“the Estate”), pursuant to section 57.105, Florida Statutes (1997). We reverse.

Robert A. McMonigle and Ronald J. McMonigle are two of the four children of John E. McMonigle, Sr. (“the Decedent”). By the terms of his will, the Decedent devised his estate to his four children in equal shares and named Ronald as Personal Representative.

Prior to his death, the Decedent had certain physical limitations that required him to have assistance in performing even routine activities. For nearly three years prior to the Decedent’s death in 1999, Ronald assisted him with his banking and business affairs. During that time, Ronald stopped working and asked the Decedent for financial assistance. From 1996 to 1999, Ronald received checks worth approximately $84,000 from the Decedent. Ronald admitted that he did not repay these funds.

After the Decedent’s will was admitted to probate, Robert concluded that the money given to Ronald prior to their father’s death was in the nature of a loan rather than a gift. Accordingly, Robert took the position that Ronald should repay the money to the Estate. To secure this repayment, Robert filed a statement of claim in the Estate for $80,000. Ronald, as Personal Representative, filed an objection to the claim.

Believing that probate law required the filing of a civil action within thirty days of the filing of the objection, Robert then filed a separate cause of action in which he asked for declaratory relief in the form of a determination of what interest the Estate had in the $80,000 received by Ronald prior to the Decedent’s death. Robert also asked that a constructive trust be ordered to protect the $80,000 for the benefit of the Estate. Although the action was filed against Ronald individually and in his capacity as Personal Representative, the relief requested was specifically addressed to Ronald individually.

Ronald moved to dismiss, alleging that Robert did not have standing to file an action on behalf of the Estate to recover the funds. In response to that motion, Robert filed an action in the probate case to remove Ronald as Personal Representative, alleging that since he held the contested funds in his personal capacity, he had a conflict with the Estate and should be removed so that another personal representative could file the action to recover the funds. The issue in the probate action was whether the money the Decedent gave to Ronald was a loan or a gift; if the money was a loan, Ronald would have a conflict with the Estate. The probate court determined that the money was a gift and denied Robert’s request that Ronald be removed as Personal Representative of the Estate. Robert immediately thereafter filed his voluntary dismissal of the separate civil action.

Subsequently, Ronald petitioned the trial court in the civil action to award attorney’s fees pursuant to section 57.105. The trial court granted the motion, citing Tiedeman v. City of Miami, 529 So.2d 1266 (Fla. 3d DCA 1988), in which the Third District concluded that a lack of standing may be the basis for a finding that a case lacks a justiciable issue of law or fact. Robert now appeals that award of attorney’s fees. We reverse.

Although Tiedeman does suggest that the lack of standing may be the basis of an award of section 57.105 fees, it does not require that the fees be awarded. Clearly, Robert did not have standing to bring the separate civil action. However, the factual issues raised in the civil action were the same factual issues litigated in the probate action seeking the removal of Ronald as Personal Representative. To award fees under section 57.105, the trial court must conclude there is a total absence of a justi-ciable issue of either fact or law. Haas v. Roe, 696 So.2d 1254 (Fla. 2d DCA 1997); Fernandez v. Chiro Risk Mgmt., Inc., 700 So.2d 65 (Fla. 2d DCA 1997). Since the factual issues here were actionable, the trial court abused its discretion by finding a total lack of justiciable issue of fact. Because we conclude there was a justicia-ble issue of fact, fees should not have been awarded under section 57.105.

Furthermore, we find the facts of this case to be similar to those in O’Brien v. Sarka, 613 So.2d 47 (Fla. 2d DCA 1993). In O’Brien, Sarka, who was serving as the guardian of the deceased at the time of the deceased’s death, filed an independent action against the estate to collect guardianship fees allegedly owed by the estate. O’Brien was a beneficiary of the estate and concluded that the personal representative had a conflict due to her business relationship with the guardian. Accordingly, O’Brien moved to intervene in the independent action, and the motion was granted. The guardian, Sarka, then moved for a judgment on the pleadings, which was granted. She then moved for section 57.105 fees against O’Brien, arguing that O’Brien should not have been allowed to intervene in the action as the estate already was represented and O’Brien’s interest was but a claim under the estate. The trial court awarded the fees, but this court reversed. “As a beneficiary, [O’Brien] was attempting to protect the assets of the estate. Although her intervention was invalid, the action was not so frivolous as to require that she and her attorney be punished for attempting it.” Id. at 47.

We find the O’Brien reasoning persuasive. Here, Robert had a factual issue that was justiciable. Although he initially chose the wrong forums in which to resolve the issue, when he did file the proper action — the petition to remove Ronald as Personal Representative — and lost, he immediately dismissed the improperly filed civil action. This is not conduct that requires Robert and his attorney to be punished by the awarding of section 57.105 fees. Accordingly, the trial court erred in awarding the fees.

Reversed.

CASANUEVA and KELLY, JJ., Concur.

      . Robert filed his civil complaint on September 22, 1999. We note that section 57.105 was amended effective October 1, 1999. However, based on the stipulation of the parties, the trial court specifically based its final judgment on the preamendment version of the statute in effect as of the date of the filing of the complaint. Whether the amended statute is applicable to this case has not been raised on appeal, and our opinion does not address whether the result would be different if, in fact, the new statute were applied.

      . We note without explanation that although Ronald admitted receiving $84,000 from his father, in the separate civil action, Robert sought to recover only $80,000.

      . See § 733.705(4), Fla. Stat. (1997).

      . Robert argues that he had standing to file the claim and the civil action to recover $207.64 in earnings on his father's trust account that belonged to him but were deposited by Ronald into the Estate account. However, neither the claim nor the independent action specifically asked for relief regarding these funds; both pleadings refer only to the contested $84,000.

      . Robert was not a creditor of the Estate; thus, the statement of claim and the separate civil action were not the proper actions to attempt to collect the money for the Estate.


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Russell Ross LOVELESS, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2678.
    District Court of Appeal of Florida, Second District.
    March 29, 2006.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Russell Ross Loveless, III, appeals the judgment and sentences imposed upon his entry of a guilty plea to the offenses of felon in possession of a firearm and grand theft of a firearm. Appellate counsel has filed an Anders brief. We affirm the judgment and sentences without prejudice for Loveless to file a timely, facially sufficient motion for postconviction relief if he so desires.

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM.

text:
    Prayther GODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2668.
    District Court of Appeal of Florida, Second District.
    March 29, 2006.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Prayther Godwin appeals her convictions for child neglect, petit theft, and giving a false name to an arresting officer. We affirm without prejudice to any right Ms. Godwin may have to file a timely, legally sufficient motion for postconviction relief in the trial court.

WHATLEY, CASANUEVA, and WALLACE, JJ., Concur.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Kenneth McCULLERS, Appellee.
    No. 2D04-753.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

In this case involving the application of Florida’s speedy trial rule, the State appeals the trial court’s dismissal of a felony battery charge against Kenneth McCul-lers. The dismissal was based on the trial court’s determination that the State had failed to comply with speedy trial requirements. The State argues that although MeCullers was arraigned after expiration of the speedy trial period, the charge against him should not have been dismissed without affording the State an opportunity to bring him to trial during the recapture period provided for in the speedy trial rule. Because we conclude that the trial court erred in failing to afford the State the benefit of the ten-day recapture period, we reverse.

Background

MeCullers was arrested for the battery offense on April 17, 2003. At the time of his arrest, MeCullers was a juvenile; accordingly, he was placed in juvenile detention. After spending twenty-one days in detention, he was released on May 7, 2003. His release was followed by the filing on May 13, 2003, of an information charging him as an adult with the battery offense. McCullers was arrested again for the offense on December 31, 2003, and arraigned on January 26, 2004. A jury trial was then set for February 11, 2004, but on February 5, 2004, McCullers filed his motion to dismiss based on the State’s failure to comply with speedy trial requirements. The trial court conducted a hearing on the motion on February 6, 2004.

At the hearing, McCullers contended that he was entitled to be discharged because he had not been arraigned until after the 175-day speedy trial period had expired. McCullers testified concerning the circumstances that followed his first arrest when a juvenile hearing was conducted:

I spent 21 days in detention, went to court. The judge said nothing was filed; there was no ease and I was under the impression when I was released that that was it.... It was like five seconds in front of the judge. He said there was nothing filed, that state hadn’t filed anything yet and there wasn’t a case, and they released me after 21 days.

The trial court determined that the 175-day speedy trial period — measured from the time of McCullers’ initial arrest — had expired on October 9, 2003, prior to McCullers’ rearrest and arraignment. In ruling that McCullers was entitled to be discharged, the trial court relied on two factual circumstances: (1) “That there’s no indication that [McCullers] knew or should have known that he was wanted or that he was in any way evading arrest”; and (2) that “there’s nothing in the record to indicate that the state conducted a, search, let alone a diligent search to locate [McCul-lers].”

The trial court ruled that under these circumstances, the State was not entitled to the recapture period provided for in the speedy trial rule. In reaching this conclusion, the trial court relied in particular on Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997). The trial court also cited State v. Agee, 622 So.2d 473 (Fla.1993).

Analysis

Under Florida Rule of Criminal Procedure 3.191(a), a person charged with a felony generally must be brought to trial without demand within 175 days of when the person is “taken into custody.” Rule 3.191(d) provides that a person is taken into custody “when the person is arrested” or “when the person is served with a notice to appear in lieu of physical arrest.” If a “trial is not commenced” within the time required, rule 3.191(a) provides that the defendant is “entitled to the appropriate remedy as set forth in subdivision (p).” Under rule 3.191(p)(2), a defendant may file a “ ‘Notice of Expiration of Speedy Trial Time,’ ” which triggers a requirement set forth in rule 3.191(p)(3) that the court hold a hearing on the notice within five days. Unless the court finds that one of the reasons enumerated in subdivision (i) exists to support a determination that the speedy trial period has not expired, rule 3.191(p)(3) provides that the court must “order that the defendant be brought to trial within 10 days.” Rule 3.191(p)(3) further provides: “A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.” This 10-day period is frequently referred to as the “window of recapture,” see, e.g., State v. Hall, 903 So.2d 1001, 1002 (Fla. 2d DCA 2005); Ricci v. Parker, 518 So.2d 284, 286 (Fla. 2d DCA 1987), or “recapture period,” see, e.g., State v. Naveira, 873 So.2d 300, 309 (Fla.2004); Brown v. State, 715 So.2d 241, 243 (Fla.1998).

Rule 3.191(o) addresses the effect of a nolle prosequi on the operation of the speedy trial requirements:

The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

In Agee, 622 So.2d at 475, the court observed that allowing

the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule — a prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial while the State strengthens its case.

The court went on to “hold that when the State enters a nol pros, the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired.” Id. The court concluded that the window of recapture does not apply in such cases. See id. at 476.

In Genden v. Fuller, 648 So.2d 1183, 1183 (Fla.1994), the court considered whether the rule articulated in Agee extended to a case where prosecution was terminated by the State “announcing that it would bring ‘no action’ ” rather than by a nolle prosse. The court held that the speedy trial period “continues to run when the State voluntarily terminates prosecution before formal charges are filed and the State may not file charges based on the same conduct after the speedy trial period has expired.” Id. at 1185. The Genden court concluded that the circumstances before it could not be distinguished from the circumstances present in Agee: “[Wjhether the State voluntarily terminates a prosecution before an information is filed ... rather than after the defendant has been formally charged, as was done in Agee, ‘is a distinction without a legally cognizable difference.’ ” Id. (quoting Fuller v. Genden, 630 So.2d 1150, 1150 (Fla. 3d DCA 1993)).

The principle applied in Agee and Gen-den was extended by the decision in State v. Williams, 791 So.2d 1088 (Fla.2001), to circumstances where the State simply failed to file charges during the speedy trial period. The court held that the speedy trial time “continues to run even if the State does not act until after the expiration of that speedy trial period” and that “[t]he State may not file charges based on the same conduct after the speedy trial period has expired.” Id. at 1091. As in Genden and Agee, the Williams court held that “the State was not entitled to a recapture period under rule 3.191.” Id.

In Agee, Genden, and Williams, the failure of the State to file charges prior to the expiration of the speedy trial period made it impossible for the defendant to file a notice of expiration pursuant to rule 3.191(p)(2), upon the expiration of the period. The State’s right to recapture must be understood as linked to the defendant’s ability to exercise the right to file a notice of expiration when the 175-day period has run. Since the State’s failure to file charges within the speedy trial period defeated the defendant’s right in Agee, Gen-den, and Williams, the State was not given the benefit of the recapture period.

A defendant’s right to file a notice of expiration is similarly defeated even where charges are filed before expiration of the speedy trial period if the State has previously acted affirmatively to terminate its prosecutorial efforts but then has filed charges without rearresting or otherwise giving notice to the defendant before expiration of the period. In such circumstances, the conduct of the State effectively lulls the defendant into the belief that the exercise of the right to file a notice of expiration is unnecessary.

In Cordero, 686 So.2d at 737-38, the court addressed circumstances in which the State had “no actioned” a case after the defendant was first arrested, then filed an information before expiration of the speedy trial period but did not rearrest the defendant until after expiration of the period. The court held that the State was not entitled to the benefit of the recapture period because providing the benefit of the window of recapture “would promote the same evils the [sjupreme [cjourt warned against in Genden and Agee.” Id. at 738. The court explained the significance of accepting the State’s argument that the recapture period should be available:

An individual could be arrested and the state, for whatever reason, may “no action” the case. The state could soon thereafter file charges within the speedy trial period and then, do nothing. The defendant, if he is not rearrested or notified in some manner, has no idea charges have been filed (or refiled in the case of a nolle prosequi) against him. Then, long after the speedy trial time has expired, the state can arrest the defendant and, if he files a motion for discharge, the state still has fifteen days to bring him to trial.

Id. The court concluded that “[sjuch a result is clearly disapproved of by Genden and Agee.” Id. See also State v. Gantt, 688 So.2d 1012, 1013 (Fla. 3d DCA 1997); State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995).

In the instant case, as in Cordero, charges were filed prior to expiration of the speedy trial period. But here, in contrast to Cordero, the State never took any action to terminate its prosecutorial efforts. McCullers was simply released from custody because his further detention as a juvenile was not permissible. See § 985.215(5)(c), Fla. Stat. (2002). The State thus had done nothing to lull McCul-lers into the belief that it was unnecessary for him to exercise his right to file a notice of expiration. McCullers remained on notice that he was potentially subject to prosecution by the State. Once the State filed charges within the speedy trial period, nothing prevented McCullers from exercising his right to file a notice of expiration when the 175-day period had run. Since the State did nothing to defeat McCullers’ right to file a notice of expiration, the State should not be deprived of the benefit of the recapture period. The trial court erred in concluding that the recapture period was not available and in dismissing the charge and discharging McCullers.

Conclusion

Accordingly, we reverse the trial court’s order dismissing the felony battery charge against McCullers and remand the case for further proceedings.

Reversed and remanded.

FULMER, C.J., and SALCINES, J., Concur.


author: STRINGER, Judge.

text:
    Kem MATEO, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1191.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.

      James Marion Moorman, Public Defender, and Heather M. Gray, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Kem Mateo challenges his convictions and sentences for aggravated assault on a law enforcement officer, introduction of contraband into a detention facility, and resisting an officer without violence, raising four grounds for relief. We find no merit in Mateo’s arguments that the trial court should have dismissed the charges against him or that the trial court should have granted his motion for judgment of acquittal. However, we agree with Mateo that the trial court abused its discretion in refusing to permit him to present evidence that supported his defense. Accordingly, we reverse and remand for a new trial. This resolution renders Mateo’s remaining argument moot.

Mateo was originally charged with two counts of aggravated assault against a law enforcement officer, introduction of contraband into a detention facility, and resisting an officer with violence. These charges stemmed from an incident that occurred while Mateo was being held in a Hillsbor-ough County jail. According to the State’s witnesses, the incident began when Ma-teo’s request for additional juice with his lunch was denied. Mateo then allegedly refused to return his lunch tray to jail officials and subsequently broke the tray and fashioned one of the pieces into a shank. Mateo then covered the window to his cell and flooded it by clogging the toilet. Jail officials attempted to calm Ma-teo down by reasoning with him, but ultimately they decided to forcibly remove Mateo from his cell. As they tried to do so, Mateo allegedly swung at the officers with the shank he made from his lunch tray. Mateo was then sprayed with pepper spray, after which he gave up resisting and was removed from his cell. The State’s witnesses admitted that Mateo had several cuts and bruises after he was removed from his cell and that he was kept in a form of disciplinary confinement for seven hours after this incident.

Mateo’s theory of defense was that the jail officials became angry when he refused to return his lunch tray and used the opportunity to punish him with excessive force. Mateo admitted that he had been in this particular jail before, and he contended that because he was vocal about complaints, the jail officials did not like him and “had it in for him.” Mateo contended that the jail officials made up the story about the shank and the assault as a cover for their use of excessive force.

In support of this defense, Mateo sought to introduce the substance of a telephone conversation that had occurred between Mateo’s wife and a placement official at the jail several days before the alleged incident. During that conversation, the following occurred:

MS. MATEO: Yes, Ms. Brown, my name is Kathy Mateo—
MS. BROWN: Uh-huh.
MS. MATEO: — and they’ve got my husband in lockdown.
MS. BROWN: I’m moving him out.
MS. MATEO: Okay. I just wondered because he said he hadn’t done anything.
MS. BROWN: He hadn’t done a thing. You know, they did it based on his past behavior.
MS. MATEO: Right. Well, he’s trying his hardest — ■
MS. BROWN: Right. To hang in there and do right.
MS. MATEO: Right. Right.
MS. BROWN: I understand. So I’m moving him out. I talked with the lieutenant today and told him that I was going to move him, but I’m going to move him over to Orient Road.
MS. MATEO: Okay.
MS. BROWN: That way the supervisor won’t go after him.

During Mateo’s first trial on these charges, the substance of this conversation was admitted in evidence through the in-court testimony of Ms. Brown. At the conclusion of that trial, the jury found Mateo not guilty on one of the two aggravated assault charges, but it was unable to reach a verdict on the remaining three charges, and the trial court declared a mistrial as to those charges.

Before the retrial on the remaining three charges, the parties determined that Ms. Brown was unavailable to testify at the retrial due to previously scheduled surgery. Rather than agreeing to a continuance of the scheduled retrial, the State stipulated to the authenticity and chain of custody of an audiotape of the conversation and indicated that it had no foundational objections to the use of the audiotape in lieu of Ms. Brown’s live testimony. However, when Mateo sought to introduce the audiotape in evidence, the State objected to its introduction based on relevance. Despite Mateo’s argument that the tape was relevant to show that the jail officials had a predisposition against him, the trial court sustained the objection and held that the audiotape would not be admitted because it was irrelevant. The trial court then also stated that even if there was some way that the audiotape was relevant, any relevance was outweighed by the prejudicial effect.

At the conclusion of the retrial, the jury found Mateo guilty as charged on the counts for aggravated assault and introduction of contraband into a detention facility and guilty of the lesser-included offense of resisting an officer without violence. The trial court subsequently denied Mateo’s motion for new trial based on the trial court’s alleged error in refusing to admit the tape.

Florida law is clear that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Rivera v. State, 561 So.2d 536, 539 (Fla.1990). This principle is based, in part, on the U.S. Supreme Court’s holding that “[fjew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Thus, as a general proposition, any evidence that tends to support the defendant’s theory of defense is admissible, and it is error to exclude it. Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005); Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998).

Further, “while the defense is bound by the same rules of evidence as the state, the question of what is relevant to show a reasonable doubt may present different considerations than the question of what is relevant to show the commission of the crime itself.” Vannier, 714 So.2d at 472. Thus, in Vannier, the court held that it was error for the trial court to have excluded evidence of letters written by the victim that tended to show that she was depressed and thus arguably supported the defendant’s theory that the victim was not murdered but instead committed suicide. Id. at 472-73. Similarly, in Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994), this court held that it was error for the trial court to refuse to permit the defendant to cross-examine a witness as to prior altercations between the defendant and his father when the theory of defense was that the father had “set up” the defendant in retaliation for the altercations. Likewise, in Dean, the court held that it was error for the trial court to refuse to permit the defendant to introduce a pawn slip when the defense theory was that the person who pawned the jewelry, rather than the defendant, was the perpetrator of the robbery. 916 So.2d at 964.

In this case, Mateo’s theory of defense was that the jail officials were biased against him because he had been vocal about jail conditions in the past and that they made up the story about the lunch tray and the shank to cover up their misconduct. The audiotape in question does provide some evidence that supports this theory. The jail employee indicated that Mateo was placed in lockdown based solely on his “past behavior” and that she would be moving Mateo to a different facility so that “the supervisor won’t go after him.” These statements, made by an employee of the jail where the incident occurred, provide at least some evidence of a pre-exist-ing animosity between Mateo and the jail officials. This animosity, in turn, could provide evidence of a bias against Mateo by the jail officials that might affect the jury’s assessment of their credibility and/or their recollections and interpretations of the events supporting the charges. Thus, the audiotape was relevant in that it tended to support Mateo’s defense, and the trial court erred in excluding it from evidence.

The State argues that the trial court correctly excluded the audiotape under section 90.403, Florida Statutes (2001), because its probative value was substantially outweighed by its prejudicial effect. However, at trial, the State presented absolutely no argument or evidence to show that it would be prejudiced by the admission of the audiotape. In fact, it was clear that the State actually anticipated that the audiotape would be admitted. Further, given the short length of the audiotape and its limited content, there is no evidence to support any finding that the jury would have been confused or misled by its admission. To the extent that certain of Mateo’s wife’s statements could be seen as irrelevant, those statements could have been redacted so as to avoid undue prejudice while still allowing Mateo to present the portions that supported his defense. See Story v. State, 589 So.2d 939, 942 (Fla. 2d DCA 1991) (holding that relevant evidence supporting a defendant’s theory of defense should not be excluded unless no other remedy suffices). Thus, the trial court’s ruling that the audiotape should be excluded in its entirety under section 90.403 constituted an abuse of discretion.

Finally, this error is not harmless for several reasons. First, while Mateo was able to bring out some aspects of his theory of defense on cross-examination, the exclusion of this audiotape effectively left Mateo with no evidence to present to the jury in support of his defense. Such a decision is generally considered harmful error. See Zanicchi v. State, 679 So.2d 40, 41 (Fla. 4th DCA 1996) (finding exclusion of the defendant’s only proffered evidence in support of his defense to be harmful error). Second, the State made the jail officials’ credibility a feature of the trial in its closing argument, during which the prosecutor strenuously argued that the jail officials had no motive to seek to convict Mateo. The audiotape provided some evidence of bias or motive that would have rebutted this argument to some extent. Third, the fact that the case mistried when the substance of the conversation was admitted and went to a guilty verdict when it was excluded tends to show that the error may not have been harmless. For these reasons, we conclude that the error in excluding the audiotape was not harmless.

Reversed and remanded for a new trial.

CASANUEVA, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . The State did not object to the audiotape on hearsay grounds, perhaps because it had stipulated to the use of the tape rather than agreeing to a continuance so that Mateo could secure Ms. Brown’s in-court testimony. Because we do not know whether Ms. Brown will be available for the retrial now required, we do not comment on how the parties should address the potential hearsay issue on remand.


author: LaROSE, Judge.

text:
    Deandre Lee HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1119.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.

      James Marion Moorman, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Deandre Lee Hayes appeals his conviction for first-degree premeditated murder. Only one of the four issues he raises requires reversal. We affirm, without comment, the trial court’s denial of Mr. Hayes’ motions to allow rehabilitation testimony from an impeached witness and to allow evidence concerning the victim’s violence-themed tattoo. We reverse, however, the trial court’s denial of Mr. Hayes’ motion for a mistrial. Although the remaining issue about the premeditation jury instruction is not necessary for our decision, we discuss it merely to assist the trial court on remand.

Mistrial

In opening statement, the State told the jury that it would present evidence that Mr. Hayes admitted his crime to a fellow inmate, Carlos Brim. This promise went unfulfilled; Mr. Brim testified that he recalled no such conversation. Mr. Hayes moved for a mistrial, arguing that the opening statement tainted the jury. The trial court gave a curative instruction but denied the mistrial motion. This was error. See Mills v. State, 875 So.2d 823, 826 (Fla. 2d DCA 2004) (citing Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002); Maddox v. State, 827 So.2d 380, 381 (Fla. 3d DCA 2002)).

Although the State titillated the jury with the prospect of a jail-house confession, the State failed to present the evidence for cross-examination and jury evaluation. See Id.; Jackson, 818 So.2d at 542. This failure of proof may have occurred through no fault of the State. Nevertheless, Mr. Hayes was unduly prejudiced; the opening statement created the impression that he had confessed his guilt. Mills, 875 So.2d at 825-26; Jackson, 818 So.2d at 542; Maddox, 827 So.2d at 381. The error was not harmless. The State presented no physical evidence linking Mr. Hayes to the crime. Rather, this case was a credibility contest between the State’s witnesses and Mr. Hayes’ alibi witnesses. See Jackson, 818 So.2d at 542. Accordingly, we reverse and remand for a new trial.

Jury Instruction

Mr. Hayes objected to a jury instruction. Because we are remanding the case for a new trial on another ground, we need not resolve this issue to dispose of Mr. Hayes’ appeal. We discuss the issue briefly, however, to aid the trial court on remand.

The trial court gave the standard jury instruction on first-degree premeditated murder at Mr. Hayes’ trial:

To prove the crime of Premeditated Murder in the First Degree, the State must prove the following three elements beyond a reasonable doubt:

1. [The victim] is dead.
2. The death was caused by the criminal act of DeAndre Hayes.
3. There was a premeditated killing of [the victim].
“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

(Emphasis added.)

During deliberations, the jury asked the trial court to define the phrase “consciously deciding to do so.” Over Mr. Hayes’ objection, the trial court instructed the jury that it meant “deliberately done; subjectively known; aware of one’s thoughts.” Mr. Hayes argues that this additional instruction permitted the jury to convict him based upon evidence that did not meet the definition of first-degree premeditated murder.

Where a jury asks for clarification, the trial court has discretion to “clarify a point of law with a brief, clear response.” Perriman v. State, 731 So.2d 1243, 1246-47 (Fla.1999). We will not reverse a trial court’s decision to give a particular instruction “unless the error complained of resulted in a miscarriage of justice, or where the instruction ... was reasonably calculated to confuse or mislead the jury.” Reyka v. Halifax Hosp. Dist., 657 So.2d 967, 969 (Fla. 5th DCA 1995). Of course, a trial court does not necessarily err in giving the jury an expanded, yet legally accurate, definition of premeditation. Kearse v. State, 662 So.2d 677, 682 (Fla.1995). “Deliberately done” is an accurate statement of the law. See Floyd v. State, 850 So.2d 383, 397 (Fla.2002) (deliberate selection and transportation of gun to victim’s home was consistent with conscious purpose to kill); Knowles v. State, 864 So.2d 1262, 1266 (Fla. 2d DCA 2004) (“focused and deliberate” actions were consistent with premeditation). The terms “subjectively known” and “aware of one’s thoughts,” however, are less concrete and do not necessarily convey the requisite element of an intent to kill. Thus, the trial court’s additional instruction reasonably might have misled or confused the jury.

Reversed and remanded.

CANADY and WALLACE, JJ., Concur.


text:
    HARBOR SPECIALTY INSURANCE COMPANY, Appellant, v. Sally SCHWARTZ and Steven English, Appellee.
    No. 2D05-2248.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.

      Jeffrey D. Kottkamp and Robert C. Shearman of Henderson, Franklin, Starnes & Hold, P.A., Fort Myers, for Appellant.
    Mark C. Menser of Viles & Beckman, LLC, Fort Myers, for Appellee Sally Schwartz.
    Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellee Steven English.
   STRINGER, Judge.

Harbor Specialty Insurance Company (“Harbor Specialty”) seeks review of the trial court’s order denying its post-judgment motion for leave to intervene in this automobile negligence action. We conclude that the trial court did not abuse its discretion in denying the motion because Harbor Specialty does not have a direct and immediate interest in the cause of action that would justify intervention. Accordingly, we are compelled to affirm.

In 1998, Sally Schwartz was rendered a quadriplegic when her vehicle was involved in a collision with a vehicle driven by Steven English and insured by Harbor Specialty. English was eventually convicted of DUI, leaving the scene of an accident with injuries, and violation of license restrictions stemming from this accident. In the meantime, Schwartz accepted Harbor Specialty’s policy limits of $10,000 in full settlement of any and all claims against English or Harbor Specialty. Schwartz signed a “Release of All Claims,” which specifically released English and Harbor Specialty “from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever” resulting from the accident. All three parties were represented by counsel at the time of settlement.

Notwithstanding the settlement and release, Schwartz subsequently filed a lawsuit against English arising out of the accident. English, who was serving his prison sentence for the convictions stemming from the accident, filed a pro se motion to dismiss the complaint in which he argued that the settlement and release barred the cause of action. The court denied the motion to dismiss, and thereafter English filed a pro se answer in which he asserted the affirmative defense of settlement and release. In the course of pretrial discovery, Schwartz served English with a request for admissions which asserted that (1) the defense of settlement and/or release was waived; (2) there was a lack of consideration when the release was signed; (3) there was never a meeting of the minds between the parties; (4) any agreement entered into by Schwartz and English and/or Harbor Specialty was the result of mistake or inadvertence; (5) English was under the influence of alcohol and legally drunk at the time of the accident; (6) English acted with wanton and reckless disregard and caused Schwartz to be permanently paralyzed; and (7) Schwartz was entitled to punitive damages. English did not respond to the request for admissions, and his failure to respond resulted in a summary judgment on liability based on the technical admissions.

At least a month before trial on damages, English left a phone message with Harbor Specialty in which he gave his name and a phone number and stated that he was going to “court” later in the month. English did not leave a claim number, the court location, the date and time of “court” appearance, the name of the policy holder, or an address where he resided. Harbor Specialty asserted that it attempted to call the number left by English and received a “fast busy.” Eight days before trial, Attorney Mark Boyle sent a letter to Harbor Specialty advising that he had been “asked to represent the interests of English.” Attorney Boyle requested that Harbor Specialty enter a defense on behalf of English and agree to indemnify him-from any results of the upcoming trial. Harbor Specialty responded to Attorney Boyle’s correspondence by a letter asserting that it did not have a duty to defend based on the settlement and release. Harbor Specialty enclosed a copy of the release and the settlement check and requested that Attorney Boyle provide these documents to the court and opposing counsel.

Harbor Specialty took no further action until Attorney Boyle called Harbor Specialty while the jury was deliberating to inform Harbor Specialty that he did not present the evidence of the settlement as requested and that English was representing himself in trial. Harbor Specialty then sent an attorney to court to present a copy of the release and the settlement check but did not formally seek to defend English or intervene. The court declined to entertain any defenses based upon the release and settlement and indicated that the issue could be raised with posttrial motions. After the jury returned a verdict in favor of Schwartz and the trial court entered final judgment for $35 million against English, Harbor Specialty filed its motion to intervene. At the time, a motion for relief from judgment filed on behalf of English by other counsel was pending.

At the hearing on the motion, Harbor Specialty revealed that its purpose in seeking intervention was to re-argue the affirmative defense of release and settlement. Counsel for Harbor Specialty conceded that Harbor Specialty’s alleged “interest” in the judgment was actually a concern over a possible “bad faith” lawsuit, and he acknowledged that any issues pertaining to the release and settlement or Harbor Specialty’s potential exposure could be fully litigated in the bad faith action. English informed the court that he had negotiated a postjudgment agreement in which Schwartz would not execute on the punitive damages claim in exchange for English’s assignment of his bad faith claim against Harbor Specialty. He also withdrew his motion for relief from judgment.

The court denied Harbor Specialty’s motion to intervene based on its determination that Harbor Specialty had failed to demonstrate or show a sufficient interest in the judgment. The court stated that “[a]t most Harbor has alleged only a contingent interest that could have an effect on the Company’s future obligations to pay monies to Ms. Schwartz, pending the outcome of other litigation.” Harbor Specialty subsequently filed a declaratory action against English, denying any responsibility for his defense and denying any obligation to participate in the tort case on behalf of English. That action remains pending.

Florida Rule of Civil Procedure 1.230 provides that “[ajnyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Intervention is proper when the intervenor’s interest is in the litigation and is “ ‘of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.’ ” Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992) (quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918)).

Once the trial court determines that the intervenor’s interest is sufficient, it exercises its discretion to determine whether to permit intervention. Carlisle, 593 So.2d at 507. “In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance.” Id. at 507-08. This court reviews an order denying a motion to intervene for an abuse of discretion. Barnhill v. Fla. Microsoft Anti-Trust Litigation, 905 So.2d 195, 199 (Fla. 3d DCA 2005); Hausmann ex rel. Doe v. L.M., 806 So.2d 511, 513 (Fla. 4th DCA 2001).

It is well settled that an insurance company’s interest in protecting its subrogation rights is sufficient to justify intervention in its insured’s tort litigation. Carlisle, 593 So.2d 505; Provident Life & Accident Ins. Co. v. Prichard, 636 So.2d 731 (Fla. 4th DCA 1993); Southland Life Ins. Co. v. Abelove, 556 So.2d 805, 806 (Fla. 5th DCA 1990). In this case, however, Harbor Specialty has no subrogation right to any amount of the $35 million jury verdict. Nor does Harbor Specialty have any liability for the $35 million award because it has already paid out its policy limits on behalf of English. Instead, Harbor Specialty is worried that it will have to pay Schwartz the $35 million if it loses a bad faith lawsuit initiated on behalf of English by Schwartz based on its failure to defend. Because Harbor Specialty does not have a subrogation interest in this case, its reliance on the above three cases is not persuasive.

Harbor Specialty’s interest in this case is analogous to the interest of the appellant in Kissoon v. Araujo, 849 So.2d 426 (Fla. 1st DCA 2003), which the First District found insufficient to support intervention. In the underlying tort action in that case, the plaintiff sued the defendant doctors for wrongful death. Id. at 428. In one of the defendants’ expert’s depositions, the expert alleged that Dr. Kissoon was actually the legal cause of the decedent’s death. Id. Dr. Kissoon sought to intervene, alleging that the comments “could potentially have a devastating effect on his reputation, subject him to professional investigation by the Florida Board of Medicine, and hinder the practice of medicine at the children’s hospitals where he provides treatment.” Id. at 429. The trial court denied the motion based on its conclusion that any effect on Dr. Bassoon would not be a direct result of the judgment. Id. at 428.

The First District agreed, noting that any judgment in favor of the defendants would not automatically result in an investigation by the board or impose any liability on Dr. Kissoon. Id. at 429. The court explained that it was possible that a verdict for the plaintiff could be supported by a reason other than Dr. Kissoon’s alleged negligence. The court also stated that, even if administrative proceedings were initiated against Dr. Kissoon, he would have a forum in which to address the allegations made against him and the judgment in the wrongful death action would have no impact on that proceeding. Id. at 430 n. 3.

In this case, the trial court determined that intervention was not permissible because Harbor Specialty’s interest was nothing more than a “contingent interest that could have an effect on the Company’s future obligations to pay monies to Ms. Schwartz pending the outcome of other litigation.” As in Kissoon, the judgment against English will not have any direct effect on Harbor Specialty. Harbor Specialty sought to intervene to argue that a release Schwartz executed in favor of Harbor Specialty and English precluded recovery in tort against English. Harbor Specialty claims that, if it was permitted to raise this argument, the court would have had to vacate the judgment against English. In turn, English would not have a potential bad faith cause of action against Harbor Specialty based on its failure to defend.

Although a bad faith action could be initiated by Schwartz on behalf of English as a result of the final judgment, the final judgment will not automatically result in such an action being filed. Furthermore, like Dr. Kissoon, Harbor Specialty will have a forum in which it can raise its objections if it is in fact sued for bad faith. In fact, counsel for Harbor Specialty conceded this point at the hearing on its motion to intervene. Harbor Specialty’s argument that it would be precluded from relying on the release by the doctrines of res judicata or collateral estoppel is without merit because Harbor Specialty was not a party to the tort action. Both doctrines require the identity of persons and parties to the actions. See Campbell v. State, 906 So.2d 293, 294 (Fla. 2d DCA 2004).

For these reasons, the trial court properly determined that Harbor Specialty does not have a direct and immediate interest in the cause of action that would justify intervention. We are not unsympathetic to Harbor Specialty’s argument that “something smells rotten in Denmark.” Schwartz was able to invalidate a release and obtain a $35 million verdict against a pro se defendant based solely on his failure to respond to requests for admissions. On the other hand, Harbor Specialty had the opportunity to defend the action and declined to do so. More importantly, the only issue pertinent to whether intervention was permissible is the extent of the intervenor’s interest. Because the trial court found that Harbor Specialty’s interest was not sufficient in this case, it did not reach the question of whether the particular circumstances of the case support intervention.

Affirmed.

CASANUEVA and SILBERMAN, JJ„ Concur.

      . English was not the named insured on the policy.

      . Dr. Kissoon was not named as a Fabre defendant on the verdict form. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).


author: WALLACE, Judge.

text:
    Jo Manuel PEREZ, Appellant, v. Leslie FERRELL and AMEX Assurance Company, Appellees.
    No. 2D05-5254.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.

      Robert S. Walton, III, Tampa, for Appellant.
    Amy M. Goucher and Matthew D. Powell of Eaton & Powell, Tampa, for Appellee Leslie Ferrell.
    No appearance for Appellee AMEX Assurance Company.
   WALLACE, Judge.

Jo Manuel Perez filed this nonfinal appeal from the trial court’s order that denied his motion to dismiss for improper venue or, in the alternative, to sever for improper joinder. Although joinder was proper in this case, the venue is improper for Mr. Perez. Because another venue exists that would be proper for both defendants, we reverse the trial court’s order.

BACKGROUND

In August 2002, Ms. Ferrell, the appel-lee, suffered injuries to her neck and back when an uninsured motorist collided with the rear of her car. The collision occurred in Hillsborough County, Florida. Because of continuing medical problems from that accident, Ms. Ferrell filed suit in Hillsbor-ough County against AMEX, her uninsured/underinsured insurance carrier. Ms. Ferrell did not join the uninsured motorist as a party in the suit. In February 2005, after a trial date was set for the Hillsborough County action, Mr. Perez collided with Ms. Ferrell’s car, causing an exacerbation of her prior injuries. The collision with Mr. Perez occurred in Martin County, Florida. Mr. Perez resides in Palm Beach County, Florida. Because of the difficulty in allocating the damages caused by each collision, Ms. Ferrell joined Mr. Perez as a defendant in the pending Hillsborough County action.

Mr. Perez filed a motion to dismiss for improper venue or, in the alternative, to sever for improper joinder. The trial court denied Mr. Perez’s motion. At the hearing on the motion, the trial court announced that its ruling was based on Froats v. Baron, 883 So.2d 885 (Fla. 5th DCA 2004). Because the facts are undisputed, this case presents a question of law that we review de novo. Sch. Bd. v. State Bd. of Educ., 903 So.2d 963, 966 (Fla. 5th DCA 2005).

DISCUSSION

When Ms. Ferrell joined Mr. Perez in her Hillsborough County action, she brought together two otherwise unrelated causes of action. However, because her amended complaint alleged that it would be difficult to apportion her injuries between the accidents, Ms. Ferrell has fulfilled the prerequisite for a proper joinder. See Froats, 883 So.2d at 887.

Florida’s venue statutes, chapter 47, Florida Statutes, allow a plaintiff to select the venue in which to bring his or her action. See Breed Techs., Inc. v. AlliedSignal Inc., 861 So.2d 1227, 1230 (Fla. 2d DCA 2003) (stating that a plaintiff generally has the “prerogative to select the venue”). Section 47.011, Florida Statutes (2005), allows actions to be brought “in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” In her defense of the trial court’s order, Ms. Ferrell argues that section 47.011 allows her to select Hillsborough County because that is where the first cause of action accrued. However, section 47.011 refers to only an individual defendant and a single cause of action. In the case before us, there are two defendants and two causes of action that accrued in different counties.

Next, Ms. Ferrell urges us to find that section 47.041 controls because her case involves multiple causes of action. Section 47.041 provides:

Actions on several causes of action may be brought in any county where any of the causes of action arose. When two or more causes of action joined arose in different counties, venue may be laid in any of such counties, but the court may order separate trials if expedient.

In cases that have discussed section 47.041, the courts have upheld the plaintiffs choice of venue when the defendant is the same in both causes of action, e.g., Costner v. Costner, 263 So.2d 852 (Fla. 1st DCA 1972), or when there are multiple defendants with no common place of residence, see, e.g., Highland Ins. Co. v. Walker Mem’l Sanitarium & Benevolent Ass’n, 225 So.2d 572, 574 (Fla. 2d DCA 1969).

In response, Mr. Perez argues that section 47.021—as it has been interpreted by the Florida courts—should control the venue of Ms. Ferrell’s action. “Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.” § 47.021. On its face, section 47.021 could support venue in Hillsborough County because AMEX, a foreign corporate defendant, resides in Hillsborough County for venue purposes. However, the supreme court has limited the application of section 47.021 when foreign corporate defendants are involved. “[W]here an individual defendant is joined as a party defendant with a foreign corporation defendant, and the corporate defendant has an agent in the county in which the individual defendant resides, Section 46.02 cannot be applied to defeat the individual defendant’s venue privilege granted by Section 46.01.” Enfinger v. Baxley, 96 So.2d 538, 540-41 (Fla.1957); see ch. 67-254, § 3, Laws of Fla. (renumbering § 46.01 as § 47.011 and § 46.02 as § 47.021).

Following the teaching of Enfinger, we have stated that section 47.021 “applies only when codefendants reside in ‘different’ counties.” Commercial Carrier Corp. v. Mercer, 226 So.2d 270, 271 (Fla. 2d DCA 1969). We held that when the codefen-dants have a common residence, the action should be filed in that county of residence. Id. Mr. Perez argues that because AMEX has an agent in his county of residence, Palm Beach County is the proper venue.

Both parties correctly construe the sections of chapter 47 on which each relies. Our review of Florida’s venue law does not reveal that either section 47.021 or section 47.041 should trump the other when there are multiple defendants and multiple causes of action joined in one action. We do note, however, that section 47.041 includes a provision that would allow the court to order separate trials, a provision that is not contained in section 47.021. Additionally, chapter 47 “confer[s] a venue privilege in the defendant ].” James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487, 488 (Fla. 2d DCA 1970). The pin-pose of the venue statutes “is to require that litigation be instituted in the forum which will cause the least amount of inconvenience and expense to those required to respond thereto.” Id. The plaintiff may make the final choice when the defendants have conflicting venue interests, but where there is no conflict, the plaintiff may not “defeat the individual defendant’s venue privilege.” Enfinger, 96 So.2d at 540-41.

CONCLUSION

Under the unusual circumstances present here, multiple defendants and multiple causes of action are properly joined in one action. Although Ms. Ferrell may choose an appropriate venue, she may not disregard Mr. Perez’s right to defend the suit in his county of residence without claiming an appropriate exception to the venue statutes. See Enfinger, 96 So.2d at 540. The cause of action that accrued in Hillsborough County did not involve Mr. Perez. And, unlike other cases where there were multiple causes of action but no common county of residence, here all the defendants reside in Palm Beach County for venue purposes. Proper venue also lies in Martin County, where the accident involving Mr. Perez accrued and where AMEX has an agent. There is no venue conflict among the defendants. To allow Ms. Ferrell to bring Mr. Perez into an ongoing action on the eve of trial and require him to defend from across the state would defeat the purpose of the venue statutes.

Accordingly, we reverse the trial court’s order denying Mr. Perez’s motion to dismiss for improper venue.

Reversed.

FULMER, C.J., and WHATLEY, J., Concur.

      . At the hearing on Mr. Perez’s motion, counsel for Ms. Ferrell agreed that AMEX "sell[s] insurance in probably every county in Florida.”


text:
    Amanda MYRICK, Appellant, v. DIRECT GENERAL INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 2D05-3574.
    District Court of Appeal of Florida, Second District.
    March 31, 2006.
    Christopher DeBari of Law Office of Papa & Gipe, P.A., Clearwater, for Appellant.
    Anthony J. Russo and Dennis M. Hudson, Jr., of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   WALLACE, Judge.

Amanda Myrick, the plaintiff in an action for uninsured motorist benefits against Direct General Insurance Company, appeals the circuit court’s order that dismissed her complaint with prejudice for fraud on the court. We reverse the circuit court’s order, and we remand this case for further proceedings.

The circuit court decided to dismiss Ms. Myrick’s complaint with prejudice because of alleged discrepancies between her discovery responses and the evidence developed by Direct General in its investigation of her claim. No witnesses testified at the hearing on the motion to dismiss. The circuit court reached its decision based on Ms. Myrick’s interrogatory answers, her deposition, medical records, and a videotape. Because we have the same cold document record before us for review that the circuit court had, we give its ruling less deference than if it had heard witness testimony. See Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003).

It would not add anything to the jurisprudence of this state to detail Ms. Myr-ick’s discovery responses and the matters relied on by Direct General to show inconsistencies. It is sufficient to say that Direct General failed to demonstrate by clear and convincing evidence that Ms. Myrick had “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. at 1169 (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)); see also Laschke v. R.J. Reynolds Tobacco Co., 872 So.2d 344, 346 (Fla. 2d DCA 2004) (reaffirming the stringent standard adopted in Jacob concerning the level of misconduct necessary to justify the extreme sanction of dismissal). For this reason, the circuit court abused its discretion in imposing the extreme sanction of dismissal with prejudice.

Reversed and remanded.

FULMER, C.J., and CASANUEVA, J., Concur.


text:
    Robert M. GORDON, Petitioner, v. Emily J. GORDON, Respondent.
    No. 4D06-952.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2006.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for petitioner.
    Siobhan Helene Shea, Palm Beach, for respondent.
   PER CURIAM.

Petitioner challenges the trial court’s issuance of an amended writ of bodily attachment, which directs the Sheriffs of Florida to arrest him in Maryland and to bring him to Florida for a hearing to determine his ability to pay support following a contempt finding. We grant the petition as the language of section 61.11(2), Florida Statutes (2005), limits its application to Florida. See also § 30.15(1)(b), Fla. Stat. (2005); Sanders v. Laird, 865 So.2d 649 (Fla. 2d DCA 2004).

STEVENSON, C.J., TAYLOR and HAZOURI, JJ., concur.


author: ALTENBERND, Judge.

text:
    Laura L. SMITH, f/k/a Laura L. Crider, Appellant, v. Benjamin C. CRIDER, Appellee.
    No. 2D05-5606.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.

      Brandon J. Rafool of Brandon J. Rafool, L.L.C., Winter Haven, for Appellant.

      Jean Marie Henne, Winter Haven, for Appellee.
   ALTENBERND, Judge.

Laura L. Smith (the “mother”), appeals an order denying her motion to dissolve an ex parte temporary injunction. The injunction temporarily modifies a final judgment of dissolution of marriage by (1) awarding Benjamin C. Crider (the “father”), Ms. Smith’s former husband, immediate temporary sole parental responsibility of the parties’ two minor children and (2) prohibiting the mother from removing the children from the jurisdiction of the court without the consent of the father or without a court order. In fact, this “temporary injunction” is not a distinct order entered by the trial judge but consists of a copy of the father’s “motion for temporary injunction and for other relief’ that is stamped “Motion Heard, Considered And Granted” and dated and signed by a circuit court judge. The entry of this “injunction” or “order” raises serious due process concerns. Based upon those concerns and other reasons, the trial court was required to dissolve the injunction. We therefore reverse the order denying the motion to dissolve the injunction.

The parties were divorced pursuant to a final judgment of dissolution of marriage entered on October 31, 2000. The final judgment awarded the parties shared parental responsibility for the children with the mother designated as the primary residential parent, subject to visitation by the father. On August 22, 2005, the father filed a supplemental petition for modification of the final judgment, seeking sole parental responsibility of the children. On the same date, the father also filed a “motion for temporary injunction and other relief.” This motion was “sworn to and subscribed” by the father before a notary public. In the motion, the father made serious allegations regarding the mother’s fitness as a parent. The most serious allegations involved alleged drug use. However, as alleged, it is clear that the source of much of the allegations was not the father’s personal knowledge but accusations made by third parties, none of whom presented similar affidavits. The father also alleged that the children were in the care of a maternal grandmother who was in poor health, and that the mother’s “present whereabouts are unknown.”

Notably, this motion did not explicitly request ex parte relief. Perhaps this explains why the motion did not allege the elements necessary to obtain an injunction nor the factual matters generally required to obtain ex parte emergency relief. It is unclear from our record how the motion was presented to the trial judge or how it resulted in the granting of such ex parte relief. Nevertheless, one day after the father filed his petition and motion, the trial judge stamped the motion “granted.” That same day, the mother was somehow located and personally served with the petition, the motion, the “order” granting the motion, and other documents. She immediately responded by filing a motion to dissolve the temporary injunction and by scheduling a prompt but brief hearing on her motion.

At the hearing, the mother presented legal argument regarding her motion to dissolve the injunction. The father did not present or proffer any evidence, and indeed it appears that the time scheduled for this hearing would not have permitted the same. The father did indicate his willingness to schedule an evidentiary hearing at some unspecified time in the future. The mother objected and argued that the order should be immediately dissolved. The trial judge acknowledged that the order might have “procedural deficiencies” but indicated he felt the allegations were serious enough that he was compelled to act upon the motion. The court pointed out that the mother had now received notice of the proceedings and an opportunity to be heard. The court denied the mother’s motion to dissolve the injunction, and the mother appealed that ruling.

The trial court’s error in denying the motion to dissolve the injunction is, to a significant degree, intermingled with its error in entering the ex parte injunction in the first instance. The trial court did not follow the procedures necessary to comport with due process when it entered the injunction, and then compounded the error by failing to require the father to plead and prove those elements necessary to support such an order when the mother sought to dissolve the order. The trial court seems to have assumed that the mother had the burden of proof to establish the propriety of dissolving the injunction, even though the trial court had never had any basis in law or fact to enter the injunction.

The initial “order” entered by the trial court provides ex parte relief in the form of a temporary modification of custody and a temporary injunction prohibiting the removal of the children from the jurisdiction of the court. As to the portion of the order granting injunctive relief, the issuance of such an injunction requires compliance with Florida Rule of Civil Procedure 1.610(a), which provides:

(1) A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

See also City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1192 (Fla. 4th DCA 2000) (stating a trial court should issue an ex parte injunction only where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice). As such, a motion seeking an ex parte temporary injunction — or for that matter, seeking almost any immediate ex parte relief — must demonstrate how and why providing reasonable notice would actually accelerate, precipitate, or otherwise permit the threatened irreparable injury to occur. Id. at 1193. It is also important to note that a temporary injunction is an extraordinary remedy that should be granted sparingly. City of Boca Raton, 768 So.2d at 1192.

In this case, the father’s motion did not present any facts suggesting that there was an immediate threat that the children would be removed from the jurisdiction of the court. Indeed, the father alleged that the children were in the care of the maternal grandmother and the mother’s whereabouts were unknown. Thus there appears to have been no basis for the entry of a temporary injunction prohibiting the mother from taking the children from the jurisdiction of the court for any length of time.

Even if the father had established a basis for the issuance of an injunction, the order entered by the court failed to comply with rule 1.610(a)(2) and (c). Rule 1.610(a)(2) requires every temporary injunction entered without notice to be “endorsed with the date and hour of entry” and to “define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice.” Further, rule 1.610(c) requires every injunction to specify the reasons for entry and to describe in reasonable detail the acts restrained, “without reference to a pleading or another document.” Certainly the rubber-stamping of the motion for injunction is in violation of the rule and calls into question the subsequent enforceability of such an “order.”

Although the entry of such an ex parte temporary injunction in this case is problematic, the granting of a temporary modification of custody based largely upon what appears to be unsubstantiated hearsay and without any notice to the mother or prompt opportunity to be heard is extremely troublesome. Generally, a court may not modify a final judgment of dissolution of marriage on a temporary basis pending a final hearing on a petition for modification unless there is an actual, demonstrated emergency. Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995). This rule is founded upon the principles of res judicata arising from the entry of a final judgment and upon the due process concerns raised by altering the rights of the parties affected by the judgment.

This court has recognized that under extraordinary circumstances, a trial court may not only enter an order temporarily modifying custody of a child, but may do so without affording prior notice to the opposing party. Again, however, such an order requires an emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. See Loudermilk v. Loudermilk, 693 So.2d 666, 667-68 (Fla. 2d DCA 1997); see also Williams v. Williams, 845 So.2d 246, 248 (Fla. 2d DCA 2003) (citing Wilson v. Roseberry, 669 So.2d 1152 (Fla. 5th DCA 1996), and Gielchinsky, 662 So.2d at 733). Even where a trial court properly enters such an order, an opportunity to be heard should be provided to the opposing party as soon thereafter as possible. Loudermilk, 693 So.2d at 668. Failure to give notice to the opposing party prior to the entry of an order when no emergency exists, or failure to provide notice and an opportunity to be heard promptly after the entry of an order when an emergency is presented, deprives the opposing party of his or her right to procedural due process. See, e.g., Loudermilk, 693 So.2d at 668; Wilson, 669 So.2d at 1154. In Wilson, the Fifth District explained: “[T]he trial court should make every reasonable effort to allow both parties to be heard prior to issuing an emergency modification order. If this is not possible, however, an opportunity to be heard should be provided as soon thereafter as possible.” 669 So.2d at 1154.

Here, the mother was not provided notice of the father’s motion for temporary custody until after it was granted. Under these circumstances, a prompt hearing on the father’s allegations was required. In some cases, trial courts insure a prompt hearing by entering an order that grants the relief ex parte but also schedules and provides notice of a prompt evidentiary hearing on the issues raised. We note that this method is not mandated by rule or required by due process, but if the trial court does not employ this method, some provision must be made to schedule a prompt hearing at which the movant must support the allegations made in the ex parte motion. In this case, neither occurred.

The father argues that because he offered to schedule an evidentiary hearing at the hearing on the mother’s motion to dissolve the ex parte order, the mother cannot be heard to complain about the lack of a timely hearing on the matter. It is true that any alleged deficiency in the notice provided to an opposing party of a request for ex parte relief may be rendered moot upon a timely hearing at which the opposing party is afforded an opportunity to defend against the allegations. See Williams, 845 So.2d at 248. However, at such a hearing, the burden remains upon the movant to provide competent, substantial evidence supporting the relief requested. Id.; see also Matin v. Hill, 801 So.2d 1003, 1006 (Fla. 4th DCA 2001). Here, the burden remained on the father to present evidence establishing the grounds for an emergency temporary change in custody. Because he failed to present or proffer such evidence at the first available opportunity, the trial court should have dissolved the temporary emergency order. See Matin, 801 So.2d at 1005; Fee v. Usler, 761 So.2d 361, 365 (Fla. 5th DCA 2000). The burden should not have shifted to the mother to schedule a return hearing on the motion for temporary relief or to present evidence rebutting the allegations of the motion.

We agree with the trial judge that the father’s motion made serious allegations that required the judge’s immediate attention. The allegations, if supported by proper sworn evidence, may have merited the entry of an order temporarily modifying custody of the children, pending a prompt return hearing on the matter once the mother was located and served with the motion. Nevertheless, because the necessary procedural requirements and safeguards were not observed when the ex parte order was entered, the trial court was required to grant the mother’s motion to dissolve the order. Indeed, the entry of such ex parte orders in custody proceedings without notice or without a prompt opportunity to be heard not only violates due process, but it is also fraught with the danger that children will be subjected to sudden traumatic changes in custody based solely upon unsubstantiated and untested allegations.

We reverse the order denying the mother’s motion to dissolve the temporary injunction and order. Because we have found no basis for the issuance of an injunction prohibiting the removal of the children from the jurisdiction of the court, we direct the trial court to vacate this portion of the temporary order.

At this time, however, months have elapsed since the entry of this order during which the children have presumably remained in the care of the father. This court has no present information regarding the well-being of the children or the parents. Thus, although we reverse the order denying the mother’s motion to dissolve the temporary order, we remand this case with directions that the custody provisions of the temporary order remain in effect and that the trial court must conduct an evidentiary hearing on the father’s motion within twenty days from the issuance of our mandate, unless both parties agree to hold a hearing at a later date. See Dibble v. Bowlin, 857 So.2d 374 (Fla. 2d DCA 2003); Crooks, 657 So.2d at 919. At that hearing, the father must present competent, substantial evidence supporting his request for an emergency temporary modification of the custody provisions of the final judgment. See Williams, 845 So.2d at 248.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . The father's appellate counsel is not the attorney who represented him before the trial court.

      . Pursuant to Florida Family Law Rule of Procedure 12.610(a), injunctive relief in family law cases is governed by rule 1.610, with the exception of injunctions for domestic, repeat, dating, or sexual violence.

      . We note that the order entered also failed to comply with rule 1.610(b) which provides that "[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper,” with the exception of injunctions entered "solely to prevent physical injury or abuse of a natural person.” This injunction also did not provide for a bond nor did it explain why the requirement of a bond was unnecessary. Although the fact that this case involved the welfare and custody of children may have supported a decision to waive the requirement of a bond or to require only a modest amount for a bond, a trial court should explicitly refer to such a decision in its written order.

      . The due process concerns raised by the lack of notice and an opportunity to be heard here are exacerbated by the fact the father's allegations relied in large part on unsubstantiated hearsay. Both ex parte injunctions and ex parte orders providing for a temporary modification of custody require the requesting party to submit sworn evidence to support the relief requested. Crooks v. Crooks, 657 So.2d 918, 919 (Fla. 4th DCA 1995). Generally, the sworn evidence supporting the entry of such an order may not consist solely of unsubstantiated hearsay. See, e.g., Phillips v. Wintter, 835 So.2d 1283, 1285 (Fla. 4th DCA 2003). Here, many of the father’s more serious allegations were clearly not made upon his personal knowledge but involved hearsay from third parties. Though the existence of a true emergency regarding the welfare of children may sometimes require immediate action that will not permit the movant to verify each allegation made, the movant must present some modicum of competent sworn evidence. The more the movant relies upon hearsay to allege an emergency, the more critical prompt notice to the opposing party and an opportunity for that party to be heard become.


author: DAVIS, Judge.

text:
    In re ESTATE OF Pamela Jane Andreas STISSER. Lowell W. Andreas and David L. Andreas, as Cotrustees of the Second Restatement of Pamela Andreas Stisser Grantor Trust Agreement, dated June 6, 2001, Appellants, v. Vernon L.E. Stisser, Jr., as Personal Representative of the Estate of Pamela Jane Andreas Stisser, Appellee.
    No. 2D05-2918.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
    Rehearing Denied June 29, 2006.

      Harold N. Hume, Jr., Ernest H. Hatch, Jr., and J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellants.
    Robert W. Goldman of Goldman Felco-ski & Stone, P.A., Naples, for Appellee.
   DAVIS, Judge.

In this appeal from the probate court’s order refusing to quash service of process upon Lowell W. Andreas and David L. Andreas (“Cotrustees”), as cotrustees of the Second Restatement of Pamela Andre-as Stisser Grantor Trust Agreement, dated June 6, 2001, the Cotrustees argue that the probate court erred in finding that it had jurisdiction over the persons of the Cotrustees and over the trust res itself. We agree and reverse.

We have jurisdiction to review this appeal in view of the probate court’s decision to leave the Cotrustees in the case as parties defendant. See Fla. RApp. P. 9.130(a)(3)(C)(i).

On June 6, 2001, Pamela Stisser, a Minnesota resident, executed a restatement, or amendment, of her inter vivos trust. She executed the document in Minnesota, where the trust assets were then and are now located. Both Cotrus-tees, her brother and her father, were Minnesota residents. Pursuant to a provision in the trust agreement which specifies that Minnesota law would control its administration, the trust has always been administered in Minnesota. Some time after executing the trust agreement, Pamela and her husband, Vernon, moved to Florida, where Pamela died. Vernon L.E. Stis-ser, Jr., as personal representative of the Estate of Pamela Jane Andreas Stisser (“the Estate”), began probate proceedings.

Because the trust document contains a provision stating that the Cotrustees shall, at the request of the personal representative, pay certain estate taxes and expenses out of the trust assets, Vernon Stisser requested the Cotrustees pay these taxes and expenses. When the Cotrustees refused to pay, Stisser filed an action in the Florida probate proceeding, entitled, “Complaint for Determination of Trustees’ Duties.” In it, he alleged that he was the personal representative of the Estate and that Lowell and David Andreas were the cotrustees of the trust. He stated that the complaint’s purpose was as follows: “This is an action to determine the trustees’ responsibility to the estate and to resolve a question concerning the administration of the probate estate.” In the prayer for relief, Stisser asked the court to determine that “the trustee is required to pay estate expenses requested by the personal representative and grant such additional relief as the Court deems appropriate.”

The Cotrustees filed a motion to quash service upon them, arguing that the probate court lacked jurisdiction over them personally due to their Minnesota residency and due to the fact that the probate court lacked jurisdiction over the trust res itself, which was also located in Minnesota. Thus they argued that the court lacked jurisdiction to rule on Stisser’s complaint. We agree.

In order to rule on the complaint, the probate court was required to interpret the terms of the Minnesota trust agreement, which provided the parameters for the Cotrustees’ responsibilities, and to issue an order determining whether the Cotrustees were required to pay the estate expenses out of the trust assets, as requested by Stisser.

However, the probate court could not enter such a ruling in the absence of the Cotrustees. “ ‘The law is settled that, in suits against the trustee affecting trust property, the trustees as well as the ces-tuis que trustent should be made parties defendant.’ ” First Nat’l Bank of Hollywood v. Broward Nat’l Bank of Fort Lauderdale, 265 So.2d 377, 378 (Fla. 4th DCA 1972) (quoting Griley v. Marion Mortgage Co., 132 Fla. 299, 182 So. 297, 300 (1937)). The general rule is that a “trustee is an indispensable party in all proceedings affecting the estate.” Id. Yet, in the instant case, both the probate court and the parties appeared to agree that the court did not have personal jurisdiction over the Cotrustees. The probate court stated that it did not require personal jurisdiction over the Cotrustees and proceeded without it in the mistaken belief that it had in rem jurisdiction, which it believed was sufficient. Stisser conceded at the hearing that the probate court did not have personal jurisdiction over the Co-trustees.

Given the fact that the law requires the probate court to have personal jurisdiction over the Cotrustees of a trust in order to enter a ruling affecting the corpus of the trust and given the fact that the court lacked such jurisdiction over the Cotrus-tees, the probate court was without authority to rule on the complaint filed by Stisser. We conclude therefore that the probate court erred in denying the Cotrus-tees’ motion to quash service of process and in taking jurisdiction over the instant case. Accordingly, we reverse.

Reversed.

STRINGER and WALLACE, JJ., Concur.

      . At some point during these proceedings, Pamela's father, Lowell Andreas, resigned from his duties as trustee, leaving Pamela’s brother, David, as the sole trustee.