source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Christine IRVIN, Doc # T01405, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5364.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    Rehearing Denied Feb. 7, 2008.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Christine Irvin appeals her conviction and sentence for first-degree arson. We affirm her conviction and sentence but write to explain why her challenges to the sentence lack merit. We also remand for the trial court to strike a cost imposed in the charges, fees, and costs order.

After being convicted of first-degree arson, Irvin was sentenced to eight years of prison followed by five years of probation. A cost order was rendered at that time. Irvin filed a timely notice of appeal. Irvin thereafter filed a motion to correct sentencing error with the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not file an order disposing of the motion within sixty days, thereby constructively denying it. See Fla. R.Crim. P. 3.800(b)(1)(B) (“Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.”).

In this appeal, Irvin maintains there are three matters raised in her motion that the trial court should have corrected which must be addressed by this court. First, Irvin argues that the title of the “Order of Community Supervision” creates an ambiguity as to whether she is to serve probation or community control upon release from prison. The body of the order recites that Irvin is to be placed on five years probation consecutive to eight years state prison. There is no ambiguity. Furthermore, it is obvious that the “Order of Community Supervision” was designed to be used for any of the five possible types of supervision that are identified in this form order.

Irvin next asserts that the order of community supervision contains a special condition of probation that should be stricken because it was not orally pronounced. The special condition requires Irvin to pay for random substance testing. This issue was recently addressed by this court in Ladson v. State, 955 So.2d 612, 613 (Fla. 2d DCA 2007) (affirming rather than striking unpronounced special condition of probation because defendant failed to raise substantive objection). As in Lad-son, Irvin’s challenge to the imposition of this special condition involved not a substantive claim but instead a procedural objection. Thus, Irvin’s challenge to the condition fails.

Finally, Irvin asserts that an improper cost was included in the cost order. The charges, fees, and costs order imposes a cost of $65 pursuant to section 939.185, Florida Statutes (2004). Irvin correctly argues that the cost called for by this statute cannot be imposed on a defendant who committed the crime prior to the effective date of the statute. See Griffin v. State, 946 So.2d 610, 614-15 (Fla. 2d DCA 2007) (citing Cubwright v. State, 934 So.2d 667, 668 (Fla. 2d DCA 2006), and certifying conflict with Ridgeway v. State, 892 So.2d 538, 540 (Fla. 1st DCA 2005)). As stated in Griffin, section 939.185 was enacted effective July 1, 2004. Griffin, 946 So.2d at 614 (citing ch. 2004-265, §§ 88, 109, Laws of Fla.). Because Irvin committed her offense on May 16, 2003, prior to the effective date of the statute, the trial court lacked authority to impose the $65 cost authorized by section 939.185.

Accordingly, we affirm the judgment and sentence and remand for the trial court to strike the $65 cost assessed in the charges, fees, and costs order. As we did in Griffin, we certify conflict with the First District’s opinion in Ridgeway, 892 So.2d 538.

Affirmed in part, and remanded.

FULMER and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Ronnie Lee SEWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1209.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
    James Marion Moorman, Public Defender, and John Thor White, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

This is an appeal of a criminal judgment that was converted to an Anders appeal after Ronnie Lee Seward filed a motion to dismiss appellate counsel. During our independent review of the record, we noticed that Seward had filed a motion to suppress in which he argued that he did not knowingly, voluntarily, and intelligently waive his right to remain silent before he made incriminating statements to the police. Specifically, Seward argued that the Miranda? warnings read to him did not inform him of his right to have counsel present during questioning because the warnings stated, “You have the right to talk to a lawyer before answering any of our questions.” We ordered supplemental briefing in light of the fact that, while this case was pending, this court had addressed the validity of the same Miranda warnings in M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA) (en banc), review granted, 962 So.2d 337 (Fla.2007). In M.A.B., this court split evenly on the issue, resulting in an opinion affirming the defendant’s conviction. See id.

During the supplemental briefing process in this case, this court again addressed the validity of the Miranda warnings at issue. This time, we did not review the case en banc. Instead, a divided three-judge panel held that the Miranda warnings were deficient because they did not inform the defendant of his right to have counsel present during questioning. See Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007). Thus, the issue has been decided and we are bound to follow that precedent.

Accordingly, we hold that the Miranda warnings were deficient in this case and the trial court erred in denying Seward’s motion to suppress. Seward’s conviction, which was obtained after a jury trial, is reversed and this case is remanded for further proceedings. As we did in Powell, we certify the following question as one of great public importance pursuant to article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

Reversed and remanded.

STRINGER, DAVIS, and KELLY, JJ., Concur.

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

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


text:
    E.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4041.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Rehearing Denied Feb. 5, 2008.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Anne C. Conley and Natalie D. Kirk, Assistant

      Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant, E.R., seeks review of the trial court’s order committing him to a high-risk residential facility. Although Appellant is correct that the trial court, in deviating from the Department of Juvenile Justice’s recommendation of probation, failed to refer to the characteristics of the chosen restrictiveness level vis-a-vis his needs, see L.B. v. State, 965 So.2d 1214, 1216 (Fla. 1st DCA 2007), defense counsel’s general objection to the trial court’s deviation did not preserve this argument for appeal. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (“ ‘[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection ... below.’ ”) (citation omitted).

Accordingly, we AFFIRM the disposition order.

ALLEN, KAHN, and DAVIS, JJ, concur.


author: STRINGER, Judge.

text:
    Allan Michael ROTH, Appellant/Cross-Appellee, v. Pamela Gertrude ROTH, Appellee/Cross-Appellant.
    No. 2D06-3360.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 2008.

      Timothy W. Weber and Stephen J. Wein of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellant/Cross-Appellee.
    David M. Wall, Clearwater, for Appel-lee/Cross-Appellant.
   STRINGER, Judge.

Allan Michael Roth (the Husband) appeals from the amended final judgment of dissolution of marriage to Pamela Gertrude Roth (the Wife), arguing that the trial court abused its discretion in fashioning its equitable distribution scheme and in imputing income for purposes of child support. He also appeals an order requiring him to pay portions of the Wife’s attorney’s fees and costs and an order holding him in contempt for failing to execute several documents. The Wife cross-appeals from the amended final judgment, arguing that the trial court erred by failing to award her alimony. We reverse the final judgment of dissolution of marriage with respect to the equitable distribution and child support provisions only and remand for further proceedings. Because of this ruling, we also reverse the order on attorney’s fees and remand for reconsideration. On the order finding the Husband in contempt, we affirm.

I. BACKGROUND FACTS

The parties were married on February 14,1995, and the Husband filed his petition for dissolution on July 26, 2001. When the parties married, the Husband was a stockbroker. He owned a house before the marriage, and the Wife and her daughter from a previous marriage moved into the Husband’s residence shortly before the marriage. The Wife was employed when the parties first married; however, after the parties’ first child was born, the Wife worked only sporadically, primarily as an independent contractor furnishing and decorating corporate apartments. There is no dispute that the Husband handled all of the parties’ financial affairs during the marriage.

During the marriage, the Husband worked for two different brokerage houses. However, in 2000 after the dot.com bubble burst, he began to shift his focus away from brokerage activities and toward insurance products. After September 11, 2001, he essentially ceased his brokerage activities and focused almost exclusively on insurance. The parties do not dispute that during the Husband’s best year as a stockbroker he earned $104,000. However, during the pendency of the dissolution proceedings, the Husband averaged an income of approximately $60,000 per year from his insurance business.

In the amended final judgment of dissolution, the trial court found that the parties had $590,749 in marital assets. The trial court divided these assets essentially in half, thus awarding each party $295,379 in the equitable distribution scheme. However, because many of the assets included in the equitable distribution scheme had been dissipated during the dissolution proceedings, there were insufficient liquid assets available to the Husband for him to pay an equalizing payment as a lump sum to the Wife. Therefore, the trial court required the Husband to sign a promissory note for $295,379 in favor of the Wife, and the trial court secured this promissory note with a mortgage on the Husband’s nonmarital residence. The trial court ordered the Husband to pay $1500 per month to the Wife for sixty months in partial satisfaction of the promissory note, with the remainder due in a balloon payment at the end of the sixty months. The trial court also imposed an equitable lien on the Husband’s nonmarital residence in favor of the Wife. Nowhere in the amended final judgment did the trial court value or distribute the significant liabilities listed on the parties’ financial affidavits.

In calculating the child support award, the trial court imputed $150,000 in annual income to the Husband and $12,000 in annual income to the Wife. Based on these figures, the trial court ordered the Husband to pay $2005.85 per month in child support to the Wife. In addition, based on this imputed income, the trial court found that the Husband had the ability to contribute to the Wife’s attorney’s fees, and it ordered the Husband to pay a total of $38,347 to the Wife’s two attorneys at the rate of $800 per month plus interest.

Finally, the amended final judgment ordered the Husband to sign the promissory note and mortgage in favor of the Wife by June 23, 2006. When the Husband failed to do so, the trial court held the Husband in contempt and ordered him jailed until he complied. The Husband now appeals all of these orders.

II. EQUITABLE DISTRIBUTION

Dissipation of Assets

The Husband’s major argument concerning the equitable distribution scheme is that the trial court erred when it included assets in the scheme that had been dissipated during the course of the dissolution proceedings. Based on the evidence presented at the adjudicatory hearing, we agree.

As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994); Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002); Knecht v. Knecht, 629 So.2d 883, 886 (Fla. 3d DCA 1993). However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. In that case, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution. Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005); Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994).

When considering whether the dissipation of an asset resulted from misconduct, the question for the trial court is whether “one spouse use[d] marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Romano, 632 So.2d at 210 (quoting Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990)). The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998). Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. Levy, 900 So.2d at 746 (reversing award of dissipated asset because the wife’s testimony that she used the asset for attorney’s fees and living expenses during the dissolution proceedings was unrebutted and the trial court did not find the wife guilty of misconduct); Cooper, 639 So.2d at 155 (reversing award of dissipated asset when the husband’s testimony that he used the IRA funds to pay temporary support obligations and his own living expenses was unrebutted and there was no finding of misconduct); Bush, 824 So.2d at 294 (reversing award of dissipated asset when the evidence showed that the husband exercised his stock options to pay the parties’ financial obligations during the dissolution proceedings); Knecht, 629 So.2d at 886 (reversing award of dissipated asset when no evidence contradicted the wife’s testimony that she expended the funds in her IRA for support during the dissolution proceedings).

In the amended final judgment in this case, the trial court identified a $100,000 CD, $220,000 in a Mercantile Bank account, and a brokerage account as marital funds and found that the Husband “has given no explanation whatsoever, nor accounting for these sums.” Based on this finding, the trial court included these dissipated assets in the equitable distribution scheme. This was error.

The Husband testified at the adjudicatory hearing that he had liquidated various bank accounts, CDs, and IRAs during the dissolution proceedings and had used the funds to pay his temporary support obligations to the Wife and their children and to pay his own living expenses. The record shows that during the five-year duration of the dissolution proceedings, the Husband earned approximately $60,000 per year. During this same time, he was obligated to pay all of the expenses for the marital residence, including two mortgages, the taxes, insurance, utilities, and maintenance. In addition, he was required to pay the Wife $200 per week in temporary support. The Husband testified that these court-ordered support payments totaled approximately $3500 per month. The Husband also testified, and the Wife did not dispute, that he paid the vast majority of the children’s expenses during this time. Moreover, the Husband maintained a separate residence during these proceedings. The Husband explicitly testified that the funds in the brokerage account had been reduced to nothing after the events of September 11, 2001, and that the CD and other accounts were liquidated to pay living expenses for both himself and the Wife and children during the dissolution proceedings. While there was some evidence that the Husband delayed making certain payments at certain times, the Wife presented no evidence to show that the Husband expended the funds from these dissipated assets on anything other than his court-ordered support obligations and the other needs of his family.

Moreover, when the Husband attempted to provide a more detailed accounting of the use of these funds, the trial court interrupted and asked, “Does it suffice to say that he spent the money and he spent it on the business, the marital home, and residence without going into every withdrawal and expenditure?” Thus, the trial court itself precluded the Husband from presenting the detailed evidence that the trial court later faulted the Husband for not presenting. In light of the testimony presented at the hearing, the trial court’s finding that the Husband had provided no explanation for the use of these monies is not supported by the evidence in the record.

Because there is uncontradicted evidence in the record that the dissipated funds were used to pay marital expenses during the dissolution proceedings and because there is no evidence that the Husband engaged in misconduct in expending the funds, the trial court abused its discretion in including these dissipated funds in the equitable distribution scheme. While the Wife is correct that the trial court could have chosen to disbelieve the Husband’s testimony concerning how he spent the funds, the trial court cannot make a finding that the Husband intentionally dissipated assets in the absence of some evidence of such conduct. Thus, on remand, the trial court must revisit the equitable distribution scheme without including these assets.

Our holding on the dissipation issue moots the Husband’s arguments that certain CDs should not have been classified as marital, that the trial court double-counted certain assets, and that the trial court erred by failing to account for the penalties and interest incurred when the Husband liquidated his IRA. Because the only evidence is that all of these assets were liquidated to pay marital expenses, none of these assets should be included in the equitable distribution scheme on remand.

Distribution of Liabilities

While not raised as an issue on appeal by either party, we note that nowhere in the amended final judgment does the trial court identify the significant liabilities listed on the parties’ financial affidavits as either marital or nonmarital nor does the amended final judgment distribute these liabilities. Section 61.075(3), Florida Statutes (2006), requires the trial court to make written findings clearly identifying the marital and nonmarital assets and liabilities and clearly identifying which spouse is responsible for which liability. Because the trial court will be reconsidering the equitable distribution scheme on remand, we remind the trial court that it must address these liabilities in the new scheme.

Equitable Lien

The Husband also contends that the trial court abused its discretion by securing payment of the equitable distribution award to the Wife through a lien on the Husband’s nonmarital residence. Because we have reversed the equitable distribution award, we must, by necessity, reverse the imposition of the equitable lien. We write to point out that while the trial court may again impose a lien on remand, the amount of that lien is limited to the Wife’s marital interest in the residence.

The parties did not dispute at the adjudicatory hearing that the residence in which the parties lived during their marriage belonged to the Husband before the marriage and so was his nonmarital property. The parties also did not dispute that the residence qualified as the Husband’s homestead. The Husband admitted at the adjudicatory hearing that the Wife had a marital interest in that residence of $91,000 based on marital funds expended on the residence during the marriage.

In the amended final judgment, the trial court properly included the Wife’s marital interest in the residence in its equitable distribution scheme. The trial court also chose to secure the Wife’s equitable distribution award by a lien on the residence. The Husband admits that the trial court could properly impose an equitable lien on his nonmarital homestead to the extent of the Wife’s marital interest in the residence. See Wallace v. Wallace, 922 So.2d 1008 (Fla. 1st DCA 2006) (noting that an equitable lien for wife’s special equity in husband’s nonmarital residence was not a violation of the homestead protections of the Florida Constitution); Hieke v. Hieke, 782 So.2d 443 (Fla. 4th DCA 2001) (same). However, he argues that the trial court abused its discretion in imposing an equitable hen on his nonmarital homestead for the remaining $204,379 of the equitable distribution award. We agree.

Article X, Section 4(a) of the Florida Constitution provides that a person’s homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a hen thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty....” Despite this plain language, the courts have crafted two exceptions to the general rule that homesteads are exempt from forced hens. A court can impose an equitable hen on homestead property when there is evidence of fraud or material misrepresentation. Bessemer v. Gersten, 381 So.2d 1344, 1347 n. 1 (Fla. 1980); Greenberg v. Fontaine, 618 So.2d 299, 301 (Fla. 2d DCA 1993); Sell v. Sell, 949 So.2d 1108, 1112 (Fla. 3d DCA 2007) (noting that an equitable lien can be placed on and enforced against homestead property when “a plaintiff can establish fraud or ‘reprehensible conduct’ on the part of the beneficiary of the constitutional protection”). In addition, a trial court can impose an equitable hen on homestead property to secure the payment of alimony and child support. Anderson v. Anderson, 44 So.2d 652, 654-55 (Fla.1950); Dep’t of Revenue v. Bush, 838 So.2d 653, 655 (Fla. 2d DCA 2003) (noting that the homestead exemption is not generally construed to defeat obligations for family support); Brose v, Brose, 750 So.2d 717, 719 (Fla. 2d DCA 2000).

Here, the equitable hen on the Husband’s nonmarital homestead was not imposed to secure an award of alimony or child support. Further, the trial court made no finding, nor would the evidence have supported a finding, that the Husband had engaged in reprehensible conduct. Neither of the parties has cited to any ease that permits a trial court to impose an equitable lien on a nonmarital homestead for amounts awarded as equitable distribution in the absence of fraud, and this court has been unable to find any such case. Thus, there appears to be no basis upon which the trial court could impose an equitable hen on the Husband’s nonmarital homestead for the amount of the equitable distribution award in excess of the Wife’s marital interest in that homestead. Accordingly, on remand, if the trial court again chooses to secure the Wife’s equitable distribution award through an equitable lien on the Husband’s nonmarital homestead, it may do so only to the extent of the Wife’s marital interest in that property.

Reasonable Rental Value

The Husband next contends that the trial court abused its discretion by awarding the Wife exclusive possession of his nonmarital residence and by refusing to charge her with the reasonable rental value of the residence during her period of occupancy. Under the specific facts of this case, we disagree.

In the amended final judgment, the trial court awarded the Wife and the parties’ children exclusive possession of the Husband’s nonmarital residence for five months. The trial court conditioned the Wife’s vacation of the residence on the Husband’s timely payment of his equitable distribution obligations, his child support obligations, and certain litigation costs. The trial court ordered the Wife to pay the first mortgage and all utilities during the time that she was in exclusive possession of the residence. It is apparent from the amended final judgment and the trial court’s oral rulings that the trial court intended this five-month period to be an opportunity for the Wife to find suitable alternate housing for herself and the parties’ children and to actually accomplish the move.

As the Husband correctly points out, a court may award exclusive use and possession of nonmarital property to a custodial parent incident to an award of child support only if it finds that the noncustodial parent’s income is insufficient to meet the child support obligation. Mitchell v. Mitchell, 841 So.2d 564, 570 (Fla. 2d DCA 2003); Dyer v. Dyer, 658 So.2d 148,149-50 (Fla. 4th DCA 1995). If the court elects to award the custodial parent exclusive possession, it must determine the fair rental value of the residence and include it in the custodial parent’s income for purposes of determining the amount of child support to be paid. Mitchell, 841 So.2d at 571; Dyer, 658 So.2d at 150.

Here, there is no dispute that the trial court did not find that the Husband’s income was insufficient to meet his child support obligation. Further, the trial court did not include the rental value of the residence in the Wife’s income when it determined her child support obligation. Thus, it would initially appear that this portion of the final judgment would have to be reversed.

However, given the limited duration of the exclusive possession in this case, the trial court did not abuse its discretion. The trial court awarded the Wife only five months’ exclusive possession. This was time for the Wife to locate another suitable residence for herself and the children and to move. Because the Wife had no income and was not awarded any liquid assets in the equitable distribution scheme, the trial court anticipated that the Wife would use the monthly equitable distribution and child support payments paid to her by the Husband to obtain a suitable residence. This intent would have been frustrated had the trial court reduced the child support payments to account for the rental value of the house. In addition, had the trial court reduced the child support payments, it would have also had to award the Wife a longer period of exclusive possession.

Moreover, the court did require the Wife — rather than the Husband — to pay a large portion of the expenses for the non-marital residence, including the first mortgage, during the period that she had exclusive possession. In light of this, this court cannot say that the trial court abused its discretion in refusing to account for the reasonable rental value of the house. To charge the Wife with the rental value of the residence while also requiring her to pay the mortgage would have given the Husband a windfall and would have constituted an abuse of discretion.

The Husband’s real complaint appears to be that the trial court conditioned the Wife’s obligation to vacate the residence on his timely payment of his equitable distribution and child support payments. Should the Husband not make these payments in a timely fashion, the Wife may not have to vacate the residence in the short time provided by the court. However, the Husband has not challenged the trial court’s authority to impose these conditions in this appeal. Therefore, because the trial court did not abuse its discretion in awarding the Wife a limited period of exclusive occupancy of the Husband’s non-marital residence, we affirm this portion of the amended final judgment.

Dischargability Finding

The Husband next contends that the trial court abused its discretion when it added a finding in the amended final judgment that its award of periodic payments to the Wife to satisfy the equitable distribution award was “in the nature of support” and that “same shall be non-dis-chargeable in any bankruptcy proceeding.” This provision must be stricken for two reasons.

First, after analyzing the factors set forth in section 61.08, the trial court specifically denied the Wife’s claim for alimony, finding that this was a short-term marriage, that the Wife was in generally good physical and emotional condition, and that the Wife had presented no testimony or other evidence concerning the need for alimony. Having denied the Wife’s claim for alimony, the trial court cannot convert payments intended to satisfy its equitable distribution scheme into support payments.

Second, the provision concerning the dischargeability of the obligation in bankruptcy must be stricken for the reasons expressed in this court’s recent decision in Meeks v. Meeks, 964 So.2d 185 (Fla. 2d DCA 2007). In Meeks, this court addressed a similar provision in a dissolution judgment. In striking the provision finding that a particular award was “not dis-chargeable in bankruptcy,” this court stated:

The problem with the trial court’s judgment is that it reached an issue of federal law that is not yet ripe for consideration. A state trial court is free to place language in a judgment to memorialize factual determinations or legal rulings on questions of state law that may later assist the bankruptcy court in deciding, as a matter of federal law, the dischargeability of obligations created by the judgment. However, the law does not allow a state court to decide the federal issue of discharge prior to the filing of any bankruptcy proceeding.

964 So.2d at 187 (internal citations and footnotes omitted).

Here, as in Meeks, the trial court purported to determine an issue of federal bankruptcy law that was not ripe for determination. While the Husband did file a bankruptcy petition, the issue of the dis-chargeability of any obligations was not reached. Further, the bankruptcy court lifted the automatic stay solely so the parties could have their respective motions for rehearing heard in the dissolution case. The bankruptcy court did not request that the trial court make any determinations of dischargeability, and it is clear from the transcript of the hearing that the bankruptcy court intended to make such determinations itself once the dissolution proceedings were final. Thus, the trial court erred by including this provision in the amended final judgment, and it must be stricken on remand.

III. CHILD SUPPORT

The Husband next argues that the trial court erred in imputing $150,000 per year in income to him for purposes of calculating his child support obligations. We agree on this issue as well.

A court may impute income to a party who has no income or who is earning less than is available to him or her based on a showing that the party has the capacity to earn more by the use of his or her best efforts. Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997); Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991). When a court imputes income, it is finding that the party to whom the income is imputed has chosen to earn less than he or she is able to and that the party has the ability to remedy the situation. Cushman, 585 So.2d at 486. Before imputing income, the trial court must consider evidence concerning the party’s recent work history, occupational qualifications, and the prevailing earnings in the industry in which the party works. Wendel v. Wendel, 852 So.2d 277, 284 (Fla. 2d DCA 2003). The decision to impute income and the determination of the amount of income to be imputed must be based on competent, substantial evidence presented at an evidentiary hearing. Wendel, 852 So.2d at 283; Ritter, 690 So.2d at 1374. Moreover, “ ‘income may not be imputed at a level which the former spouse has never earned, absent special circumstances.’ ” Hinton v. Smith, 725 So.2d 1154, 1157 (Fla. 2d DCA 1998) (quoting Stein v. Stein, 701 So.2d 381, 381 (Fla. 4th DCA 1997)).

In this case, the record is completely devoid of any evidence that would permit the trial court to impute income to the Husband in the amount of $150,000 per year. The only evidence of the Husband’s past earnings shows that, in his best year in 2000, he earned $104,000. Since that time, he has earned between $49,000 and $64,000 per year. Moreover, in the years prior to 2000, the Husband earned $53,417 (1999) and $91,744 (1998). In light of this record of the Husband’s past earnings, there is no evidentiary basis for imputing $150,000 in annual income to the Husband. Further, the Wife made no attempt to establish any “special circumstances” that would permit the trial court to impute income at a level never earned by the Husband.

In this appeal, the Wife seems to assert that the trial court properly imputed this level of income to the Husband because he holds numerous securities licenses. However, this court has held that even expert testimony concerning the earnings levels for persons who hold a particular degree does not constitute evidence sufficient to impute that amount of income to a party. Wendel v. Wendel, 805 So.2d 913, 914 (Fla. 2d DCA 2001); Hinton, 725 So.2d at 1157. Given this case law, certainly the Wife’s testimony that the Husband “should be able to earn more” is insufficient.

At oral argument, counsel for the Wife contended that the trial court was permitted to select an amount of imputed income based on, in essence, the trial court’s “feel” for the case. Thus, counsel for the Wife argued that while $180,000 would have been too high and $120,000 would have been too low, the $150,000 chosen by the trial court was “just right.” Unfortunately, this Goldilocks theory of imputed income is not supported by any Florida case law, which clearly holds that the trial court must base its decision to impute income on evidence of the party’s work history, occupational qualifications, and the prevailing earnings in the industry. Wendel, 852 So.2d at 283; Hinton, 725 So.2d at 1157. Here, the Wife presented no evidence to establish the prevailing earnings in the securities or financial fields nor did she present any evidence of the availability of jobs in that sector. While the Husband is now employed in the health and disability insurance field, the Wife also failed to present any evidence to establish the prevailing earnings in those fields.

Because there was absolutely no evidence in the record to support the trial court’s finding that the Husband could reasonably be expected to earn $150,000 per year, we reverse the imputation of income and remand for further proceedings. On remand, the Wife should be permitted to present additional evidence on this issue should she wish to do so.

IV. ATTORNEY’S FEES

The Husband next argues that this court should reverse the award of attorney’s fees and costs and remand for the trial court to reconsider this order after it addresses the deficiencies in the amended final judgment. Because we are reversing the equitable distribution award and the imputation of income to the Husband, we also reverse the order on attorney’s fees and remand for reconsideration in light of any changes made to the provisions of the amended final judgment.

V. CONTEMPT

Finally, the Husband contends that the trial court erred by using its contempt powers to enforce its equitable distribution scheme when the Husband failed to sign the mortgage and promissory note in favor of the Wife. We disagree.

In the amended final judgment, the trial court ordered the Husband to sign a mortgage on the nonmarital residence and a promissory note in favor of the Wife to secure her award of equitable distribution. The amended final judgment required these documents to be signed by a date certain. When the Husband refused to sign the documents, the Wife asked the trial court to find the Husband in civil contempt. After a hearing, the trial court did so. The trial court jailed the Husband, with the purge provision being that he sign the documents at issue. The Husband contends that this was an improper use of the court’s contempt powers.

The Husband is correct that, as a general proposition, property division awards may not be enforced by contempt. See, e.g., Fisher v. Fisher, 787 So.2d 926, 930 (Fla. 2d DCA 2001); Montanez v. Montanez, 697 So.2d 184, 185 (Fla. 2d DCA 1997). The rationale behind this general rule is that property division awards are simply a debt owed between spouses, and the Florida Constitution bars imprisonment for debt. Burke v. Burke, 336 So.2d 1237, 1238 (Fla. 4th DCA 1976).

However, when the act at issue does not involve the payment of money, a trial court may enforce the property division award through contempt. For example, in Burke, the final judgment of dissolution ordered the husband to execute and deliver various documents necessary to release the wife’s interest in a note and mortgage and to transfer certain securities to the wife. 336 So.2d at 1238. The trial court held the husband in contempt for failing to execute and deliver the documents. The Fourth District affirmed, noting that because the final judgment ordered the husband to perform certain acts and because those acts did not involve the payment of money, the husband’s refusal to perform those acts could be punished by contempt. Id.

Similarly, in Riley v. Riley, 509 So.2d 1366 (Fla. 5th DCA 1987), the final judgment of dissolution ordered the husband to name the wife as the beneficiary of a certain life insurance policy. When the husband failed to do so, the trial court held him in contempt. The Fifth District affirmed, noting that the provision at issue required the performance of an act rather than the payment of money and that the husband’s refusal to perform the act could be punished by contempt. Id. at 1369.

Likewise, in Firestone v. Ferguson, 372 So.2d 490 (Fla. 3d DCA 1979), the final judgment of dissolution ordered the sale of certain marital real estate at a specific price. When a purchase offer was made at that price, the wife refused to sign the sales contract, and the trial court held her in contempt. The Third District affirmed because the provision of the final judgment at issue was one ordering her to perform an act rather than to pay money. Id. at 492.

Each of the above cases relied, at least in part, on Florida Rule of Civil Procedure 1.570(c)(2), which permits the court to enforce an order requiring the performance of an act through contempt. Florida Family Law Rule of Procedure 12.570 incorporates rule 1.570. Thus, the rules of procedure also support the proposition that a trial court may hold a spouse in contempt for failing to perform a specific act, such as signing a note or mortgage, that is required by the final judgment of dissolution.

Based on these authorities, we hold that the trial court did not err in holding the Husband in contempt in this case based on his refusal to sign the mortgage and promissory note. The trial court did not hold the Husband in contempt for failing to pay money, which would be improper. Rather, it held him in contempt for failing to perform an act which he was fully capable of performing. To hold otherwise would permit a party to simply disregard provisions of a final judgment that required that party to perform some act. We will not endorse such a position.

We do recognize that in LaRoche v. LaRoche, 662 So.2d 1018 (Fla. 5th DCA 1995), the Fifth District reversed an order finding the wife in contempt for her failure to give the husband a quitclaim deed to the marital residence. The Fifth District cited the general proposition that property awards are not punishable by contempt and noted that the husband could have filed an action for specific performance to compel the wife to sign the quitclaim deed. However, it its opinion in LaRoche, the Fifth District did not reference rule 1.570(c)(3) or any of the cases cited above, including its own earlier case in Riley. To the extent that our holding in this case appears to conflict with LaRoche, we certify conflict.

VI. ALIMONY

On cross-appeal, the Wife contends that the trial court erred by denying her request for alimony. We disagree for two reasons.

First, while the Wife did seek an award of alimony in her cross-petition for dissolution, during the three-day dissolution hearing, she did not request alimony nor did she present any evidence whatsoever concerning her need for alimony. When a party fails to present any evidence or make any argument at a dissolution hearing in support of a request for alimony, the trial court is entitled to believe that the claim has been abandoned. See Moss v. Moss, 939 So.2d 159, 166 (Fla. 2d DCA 2006) (holding that the husband’s failure to argue his entitlement to attorney’s fees under a prenuptial agreement at a hearing held on the issue of entitlement to attorney’s fees constituted an abandonment of that claim).

Second, based on the evidence that was presented in support of the other issues, the trial court made specific findings concerning the factors included in section 61.80 and denied alimony based on those findings. The trial court found that this was a short-term marriage, that the Wife was physically and emotionally healthy, and that the Wife had presented no evidence concerning a need for alimony. In light of these findings, we cannot say that the trial court abused its discretion in denying the Wife alimony.

VII. CONCLUSION

In conclusion, we reverse the trial court’s equitable distribution scheme and remand for further proceedings. On remand, the trial court may not include the assets dissipated during the course of the dissolution proceedings in that scheme. In addition, the trial court must ensure that it properly considers and distributes the liabilities identified by the parties in their financial affidavits. The trial court may again impose an equitable lien on the Husband’s nonmarital residence, but it must do so in accordance with the limits of Florida law. We also reverse the child support award and remand for recalculation based on the parties’ incomes as supported by competent, substantial evidence. In addition, we reverse the order on attorney’s fees and costs and remand for reconsideration in light of the new equitable distribution scheme and the parties’ incomes as supported by competent, substantial evidence. In all other respects, we affirm.

Affirmed in part; reversed in part; and remanded for further proceedings.

WHATLEY and CASANUEVA, JJ., Concur.


text:
    MIAMI SUBS REAL ESTATE CORP., Miami Subs Corp., & Alaa Elbiali, Appellants, v. MANHATTAN HOUSE, INC., Appellee.
    No. 3D07-1141.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    McDonald Hopkins and Alan M. Burger and Duncan J. Farmer, West Palm Beach; Perlman, Yevoli & Albright, Fort Lauder-dale, and Paul Turner and Joshua Spector, for appellants.
    Sterns Weaver Miller Weissler Alhadeff & Sitterson, Martin B. Woods, Fort Laud-erdale, and Carlos J. Canino, Miami, for appellee.
    Before GERSTEN, C.J., and SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Key Largo Watersports, Inc. v. Whitehurst Family P’ship, 954 So.2d 1278 (Fla. 3d DCA 2007); 2U Main St. Corp. v. Tanksley, 947 So.2d 490 (Fla. 2d DCA 2006).


author: SUAREZ, J.

text:
    UNITED STATES DEVELOPMENT, LTD., Appellant, v. JONES COLLEGE, Appellee.
    Nos. 3D06-1518, 3D06-1221.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    Holland & Knight and Rodolfo Sorondo, Jr. and Rebecca M. Plasencia, Miami, for appellant.
    Robert C. Maland; Philip D. Parrish, Miami, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

United States Development, Ltd. (“U.S. Development”), appeals a final judgment in favor of Jones College and an award of attorney’s fees and costs in a suit for constructive eviction and breach of contract brought by Jones College. The suit arises under a lease between the developer, U.S. Development, and the tenant, Jones College, for space which was to be used by Jones College for college classrooms and facilities. The main point on appeal is whether the trial court erred in disallowing the admission of certain letters into evidence which U.S. Development argues proved its counterclaim for anticipatory breach of the lease by Jones College. We find that the trial court did not err in excluding the letters from evidence and, therefore, affirm the final judgment and award of attorney’s fees and costs.

In May of 1998, U.S. Development and Jones College entered into a lease for 8000 square feet of space in a commercial shopping center built by U.S. Development to be used by Jones College for classrooms. Under the terms of the lease, U.S. Development was required to build an exterior portion of a wall to separate the Jones College space from the remaining space. The lease provided that once U.S. Development had completed the wall and other construction, Jones College was to build out the remainder of the demising wall and occupy the space. As agreed, a construction permit for the interior portion of the demising wall was applied for by Jones College in November of 1998. Prior to the issuance of the permit and before any work on the demising wall had commenced, U.S. Development rented to the next-door tenant, Zone Fitness, the entire 8000 square feet of space for the purpose of extending Zone Fitness’s already existing gym. Although Jones College demanded access to the space to begin construction after the permit was issued, U.S. Development neither requested Zone Fitness to move nor commenced construction of the exterior wall. Jones College then brought this suit alleging constructive eviction and breach of contract. U.S. Development counterclaimed alleging anticipatory breach of contract by Jones College.

Diming trial, U.S. Development attempted to introduce two letters sent by U.S. Development to Jones College (after allowing Zone Fitness to occupy and remain in the Jones College space) requesting confirmation that Jones College was still interested in the space. U.S. Development contends on appeal that the letters served the purpose of showing an anticipatory breach of the lease by Jones College because of Jones College’s non-response.

The trial court excluded the introduction of the letters into evidence. The trial judge found that, prior to U.S. Development sending the letters, it allowed another tenant, Zone Fitness, to occupy the leased premises and took no steps to remove Zone Fitness from Jones College’s space although Jones College’s contractor obtained the permit and wanted to commence work. The lower court found that this conduct by U.S. Development constituted a constructive eviction and a breach of contract as well as an implied breach of good faith. The trial judge awarded damages including prejudgment interest and attorney’s fees and costs in favor of Jones College.

The issue on appeal, whether the trial court properly excluded letters which U.S. Development contends show Jones College’s anticipatory breach of the lease, is subject to an abuse of discretion standard. See Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006). The trial court’s findings in this non-jury trial are given the weight of a jury verdict and will not be disturbed on appeal unless there is no substantial evidence to support them. See Leeb v. Read, 190 So.2d 830 (Fla. 3d DCA 1966). We find that there was no abuse of discretion in the trial court’s exclusion of the letters from evidence. U.S. Development’s letters to Jones College were not relevant to a counterclaim for anticipatory breach of contract. Despite demands by Jones College to occupy the space, as of the date of the letters, the actions of U.S. Development in allowing Zone Fitness to remain in the Jones College space, and its failure to commence construction on the demising wall constituted a constructive eviction and breach of contract. Because the constructive eviction and breach of contract occurred prior to the date of the letters, they were not relevant to the counterclaim of anticipatory breach. See Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So.2d 235, 240 (Fla. 4th DCA 2005) (“It is settled contract law in Florida that a breach ... allows the non-breaching party to terminate his own performance and bring litigation for damages.”). Substantial evidence supports this finding, and we therefore affirm the trial court’s exclusion of the letters from evidence and the final judgment, attorney’s fees and costs in favor of Jones College. See § 90.408, Fla. Stat. (2007); Sharp v. Williams, 141 Fla. 1, 192 So. 476 (1940); Alvarez v. Rendon, 953 So.2d 702 (Fla. 5th DCA 2007); PL Lake Worth Corp. v. 99Cent Stuff-Palm Springs, LLC, 949 So.2d 1199 (Fla. 4th DCA 2007) (holding landlord’s implied duty to cooperate breached by failure to cooperate); Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571 (Fla. 4th DCA 2006), review denied, 959 So.2d 718 (Fla.2007); cf. Gaylis v. Camin-is, 445 So.2d 1063 (Fla. 3d DCA 1984). See generally 23 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 63:30 (4th ed. 2002) (stating anticipatory repudiation of contract occurs before promissor has committed a breach).

Affirmed.

      . The following work is to be done by LANDLORD at LANDLORD'S expense:

      . BUILDING SHELL:

        LANDLORD shall provide the building shell of the DEMISED PREMISES in accordance with the following specifications:
      (a) Frame: Structural steel or concrete frame.
      (b) Walls: Construct rear wall of DEMISED PREMISES with exposed masonry and demising partitions of metal studs and diywall....


text:
    Kristopher COX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1674.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Lawson v. State, 969 So.2d 222 (Fla.2007).


text:
    Ronel OSCAR, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D07-3359.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2008.
    Ronel Oscar, pro se, Appellant.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

By petition for writ of certiorari, Oscar seeks review of an order denying his petition for writ of mandamus filed in the circuit court seeking a transfer to another correctional institution. Because the petition filed in the lower tribunal was a “true” mandamus petition in that the circuit court found that Oscar did not have a clear legal right to a transfer and that the decision to transfer was a discretionary decision, this proceeding is hereby converted to an appeal of a final order. See, e.g., Schlosser v. Singletary, 597 So.2d 304 (Fla. 2d DCA 1991). We affirm the circuit court’s order.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Kristina WARD, Appellee.
    No. 2D07-1501.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals a downward departure sentence imposed on Kristina Ward after she admitted violating her probation in four separate cases. The sentencing guidelines provided for a mini-múm prison sentence of 29.85 months, but the trial court sentenced Ward to 18 months in prison. On appeal, Ward does not argue that there was a valid reason to support the downward departure sentence, but she contends that the State waived this argument because it failed to adequately object to the downward departure during her sentencing hearing. We conclude that the State did sufficiently object to the departure and reverse.

At the sentencing hearing, the State noted that it was not seeking a sentence at the bottom of the guidelines and argued that a sentence of thirty-six months was appropriate. The trial court recognized that the State objected to a departure sentence and pronounced that “over the State’s objection” it would sentence Ward to eighteen months in prison. Thereafter, the State again noted its objection to the departure sentence: “We would like to place our objection on the record that the defendant is not being sentenced to the bottom of the guidelines after her four violations of probation.”

Ward relies on State v. Hamner, 816 So.2d 810 (Fla. 5th DCA 2002), and State v. Stafford, 711 So.2d 612 (Fla. 4th DCA 1998), to support her argument that the State failed to object at the sentencing hearing and therefore waived this issue on appeal. In Hamner, 816 So.2d at 812, the State urged that Hamner be given a guidelines sentence with substantial prison time, but after the sentence was pronounced, the State did not object on the ground that it was a downward departure from the guidelines or on the ground that no reasons were given for the departure. The Fifth District held that the sentencing issue was not preserved for appeal because the State failed to timely object to the sentence after it was imposed or to the lack of reasons to support the departure. Id. Similarly, in Stafford, 711 So.2d at 612-13, the State did not object when the trial court advised Stafford of the sentence that would be imposed. In the present case, unlike Hamner and Stafford, the State did note its objection after the trial court announced that it would impose a downward departure sentence. Therefore, “[t]he State’s objection was ‘sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.’ ” State v. Ayers, 901 So.2d 942, 944 (Fla. 2d DCA 2005) (quoting § 924.051(l)(b), Fla. Stat. (2003)).

Accordingly, Ward’s downward departure sentence is reversed. Pursuant to the State’s suggestion, Ward should be given the opportunity to withdraw her plea on remand. See State v. Jimenez-Porras, 974 So.2d 422, 2007 WL 3034933 (Fla. 2d DCA Oct. 19, 2007).

Reversed and remanded with directions.

WALLACE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . In case numbers CRC 04-5474CFANO, CRC 04-10609CFANO, and CRC 04-14506CFANO, it was Ward's fourth violation of her probation. In case number CRC 04 — 15929CFANO, it was for her third violation of probation.


author: BROWNING, C.J.

text:
    Patricia ROBERSON, Appellant, v. ST. JOHNS COUNTY SCHOOL BOARD and Specialty Risk Services, Inc., Appellee.
    No. 1D06-5839.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.
   BROWNING, C.J.

Appellant/Claimant challenges the denial of her workers’ compensation benefits. We reverse.

Claimant’s claim was accepted as com-pensable at first, but on February 14, 2002, the employer/carrier (E/C) denied the claim on the grounds that her disability was not a result of the job-related injury, but was instead related to a pre-exist-ing condition; the Notice of Denial (form DWC-12) was sent to both Claimant and the Division of Workers’ Compensation. The next day, E/C reported that Claimant’s permanent injury rating was zero percent; the Notice of Action/Change

(form DWC-4) was also sent to both Claimant and the Division of Workers’ Compensation. Three weeks later, E/C received from Claimant’s doctor a form indicating that Claimant had reached maximum medical improvement and had a ten percent permanent impairment rating; however, E/C did not send this Maximum Medical Improvement/Permanent Impairment Determination Certification (form DWC-9a) to either the Division of Workers’ Compensation or Claimant, on the reasoning that the claim had already been denied in its entirety.

Eventually, Claimant learned about the ten percent rating and filed a petition for benefits (PFB) seeking permanent total disability benefits, which was barred by the statute of limitations. See § 440.19, Fla. Stat. (2001). Claimant argues here that E/C are not permitted to rely on the defense of the statute of limitations because they are estopped.

We agree with Claimant that E/C are estopped from relying on a statute of limitations defense, because Claimant showed by clear and convincing evidence that E/C misrepresented a material fact, Claimant relied on the misrepresentation, and, as a result, Claimant changed position to her detriment. See generally Deere v. Sarasota County Sch. Bd., 880 So.2d 825 (Fla. 1st DCA 2004). E/C notified Claimant of her doctor’s zero percent permanent impairment rating, but failed to correct or change the rating to ten percent upon receipt of that information. Claimant relied on the misrepresentation because, as workers’ compensation is an employer-administered system, Claimant had no reason to suspect the doctor’s rating was other than zero percent. Claimant chose not to file a PFB in light of her belief that no portion of her disability was attributable to the workplace injury. This change of position was to her detriment because the ten percent permanent impairment rating suggests that she had a viable entitlement to benefits.

REVERSED and REMANDED for further proceedings.

KAHN and ROBERTS, JJ, concur.

      . E/C’s adjuster testified as follows:
      Q Other than the notice letter which was sent out to my client in the initial stages of the claim, did you ever send any other notice letters to my client subsequent to that?
      A Notice of?
      Q Of anything.
      A Well, we sent her the DWC-12 when we filed the Notice of Denial.
      Q Okay.
      A She would’ve gotten a copy of the DWC-4.
      Q Was there a letter regarding maximum medical improvement sent with that?
      A I don't recall. I don’t think so.
      Q Okay. Is that a requirement when somebody is placed at maximum medical improvement?
      A Not when you file a Notice of Denial at the same time.
      Q Did you send a maximum medical improvement letter after you received the 10% from Dr. Dehgan?
      A No. We had already filed our Notice of Denial and we weren't paying any further benefits or authorizing anything else.


author: CORTINAS, J.

text:
    Soneet KAPILA, as Trustee for Cellular USA, a Florida corporation, Appellant, v. AT & T WIRELESS SERVICES, INC., a Washington corporation, Appellee.
    No. 3D06-2462.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      The Cochran Firm, Leeds, Colby & Paris and Scott Leeds; Karen J. Haas, Miami, for appellant.
    Ackerman, Link & Sartory and David P. Ackerman and Glory P. Ross, West Palm Beach, for appellee.
    Before GREEN, SHEPHERD, and CORTINAS, JJ.
   CORTINAS, J.

Appellant, Soneet Kapila, as Trustee for Cellular USA (“Cellular USA”), seeks review of a judgment awarding attorney’s fees to AT & T Wireless Services of Florida, Inc. (“AT & T”).

I. Factual Background

Cellular USA was a dealer for AT & T and, in that capacity, marketed AT & T wireless telephone services, and provided products, customer service and support to end users. At some point, Cellular USA’s relationship became strained and, on or about August, 1999, Cellular USA filed a ten-count complaint against AT & T and ABC Cellular Corp. (“ABC”), another purported AT & T dealer. The counts included, inter alia, violation of Sections 1 and 2 of the Sherman Antitrust Act (the “Federal Antitrust Counts”) by both AT & T and ABC, violation of sections 542.18, and 542.19, Florida Statutes (the “State Antitrust Counts”), by both AT & T and ABC, breach of contract by AT & T, and violation of the Florida Deceptive and Unfair Trade Practices Act, section 501.201, et seq., Florida Statutes, by ABC.

The lawsuit proceeded in federal court until the Second Amended Complaint was filed, which dropped the Federal Antitrust Counts, at which point the ease was remanded to state court. When the Third Amended Complaint was filed, the State Antitrust Counts were also dropped. Sometime after the filing of the Third Amended Complaint, AT & T sought permission from the bankruptcy court to pursue an award of attorney’s fees against Cellular USA, which was a debtor in bankruptcy. The amount of time this process required is unclear from the record. Approximately nine months after the Third Amended Complaint was filed, AT & T filed a motion for entitlement to attorney’s fees for defending the Federal Antitrust Counts and the State Antitrust Counts.

Several months after the entry of the court’s order awarding attorney’s fees, Cellular USA filed a Motion for Relief from Judgment and Memorandum of Law arguing that 1) the request for fees was unripe and there was no “substantially prevailing party” because the case was ongoing; 2) one of AT & T’s attorneys was not entitled to fees because he was not admitted in Florida and never moved to appear in the state court proceeding; and 3) the motion for fees was untimely. The court granted the motion in part, determining that there was no entitlement to attorney’s fees with respect to the Federal Antitrust Counts.

Subsequently, AT & T filed a motion to determine the amount of attorney’s fees and supporting affidavits. Cellular USA filed a memorandum in opposition and a hearing was then held to determine the amount of fees. AT & T presented a fee expert, but Cellular USA did not. Cellular USA maintained its objections that AT & T could not recover fees for time expended in federal court or for time expended by an out-of-state attorney who never appeared pro hac vice. At the hearing, AT & T apparently testified that the defense of all counts was intertwined and the allocation of fees between the Federal Antitrust Counts and the State Antitrust Counts was done after the fact. The court ultimately awarded the attorney’s fees requested by AT&T.

Cellular USA appeals the fee award and argues that the circuit court erred in 1) ordering prevailing party entitlement to fees prior to the conclusion of the case; 2) awarding attorney’s fees to an out-of-state attorney who did not file a request to appear pro hac vice; and 3) awarding fees for services rendered by AT & T’s lead counsel not related to the State Antitrust Claims.

II. Standard of Review

We review de novo a trial court’s ruling on entitlement to attorney’s fees based on the interpretation of contractual provisions. Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787 (Fla. 2d DCA 2000).

III. Entitlement to Prevailing Party Attorney’s Fees Prior to the Conclusion of the Case

Cellular USA argues that the circuit court committed error by determining entitlement to, and awarding, AT & T prevailing party attorney’s fees. We agree. “Generally, attorney’s fees are not awarded unless authorized by statute or contract.” Cadenkead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996). With respect to attorney’s fees, the Agreement provides as follows:

18.4 Attorney’s Fees. If a court action is commenced by one party against the other, the substantially prevailing party shall be entitled to recover its reasonable costs incurred therein, including any appeals. For the purposes of this Clause 18.4 and Clause 18.2, the term “costs” shall include, without limitation, attorney’s fees, paralegal fees, investigative fees, expert witness fees, administrative costs, and any other charges billed by the attorney to the prevailing party, and the cost of efforts of in-house legal staff which shall be valued at market rates for comparable services from private practitioners.

The Agreement specifically provides that the “substantially prevailing party shall be entitled to recover its reasonable costs,” inclusive of attorney’s fees.

“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). Citing the United States Supreme Court’s decision in Hensley v. Eck-erhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Moritz court found that “the test is whether the party ‘succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Mor-itz, 604 So.2d at 809-10. The circuit court’s determination of AT & T’s entitlement to attorney’s fees as prevailing party on the State Antitrust Counts due to Cellular USA’s abandonment of these claims is premature given that significant counts remain pending in the lawsuit. While there is sufficient precedent for the award of fees on specific counts as cited by AT & T, such cases involve determinations of entitlement to fees made at the conclusion of a case and do not stand for the proposition that attorney’s fees may be awarded during the pendency of a case.

Because stated causes of action remain in the instant lawsuit, it is impossible to determine the “substantially prevailing” party until such time as all pending counts are resolved. While it is possible that, despite Cellular USA prevailing on the remaining counts, AT & T may ultimately be determined to be the “substantially prevailing party,” such a determination should be made after the conclusion of the case. As set forth by the Florida Supreme Court:

It is our view that the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court.

Moritz, 604 So.2d at 807. In the case before us, there remain several counts in Cellular USA’s lawsuit which have not yet been “tried before the court.” While it is also possible that AT & T may prevail on the remaining issues, it is improper for the court to determine AT & T’s entitlement to fees as prevailing party on certain counts prior to the final disposition of the case.

AT & T’s reliance on E & A Produce Corp. v. Superior Garlic International, Inc., 864 So.2d 449 (Fla. 3d DCA 2003), is misplaced. Specifically, in E & A, we acknowledged that there was no transcript of the hearing on the entitlement to attorney’s fees. Because of the lack of a transcript, we were unable to determine whether the trial court abused its discretion in awarding the fees and consequently had to affirm the award. Id. at 452. Upon review of the transcript on the hearing to determine the entitlement to fees, the only case cited and argued by AT & T was E & A, and after AT & T’s brief argument, the circuit court determined that AT & T was entitled to fees. As noted, E & A is not applicable to the instant case and therefore should not have formed a basis for the determination of the award of attorney’s fees. There is no applicable case law supporting AT & T’s entitlement to attorney’s fees at this stage of the lawsuit.

Based upon the foregoing, we need not address the remaining issues on appeal and quash the orders determining entitlement to, and awarding, attorney’s fees to date.

Reversed and remanded.

      . The original dealer agreement (the "Agreement”) was between Cellular USA and McCaw Communications of Florida, Inc., which was subsequently known as Cellular One, and later as AT & T.


author: KLEIN, J. EMAS, KEVIN J., Associate Judge,

text:
    Deborah STANDER, as Personal Representative of the Estate of Samuel Stander, deceased, Appellant, v. DISPOZ-O-PRODUCTS, INC., a South Carolina corporation, Appellee.
    No. 4D07-269.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Joel S. Perwin of Joel S. Perwin, P.A., and Tod Aronovitz and Christopher Mar-low of Aronovitz Trial Lawyers, Miami, for appellant.
    Steven J. Clarfield and John B. Marion, IV, of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellee.
   KLEIN, J.

Plaintiff appeals an order dismissing with prejudice her complaint alleging that the defendant, who sent goods through an independent contractor trucking company, is responsible for an accident in which the decedent was killed by the driver of the truck owned by the independent contractor. We affirm.

In the complaint it was alleged that defendant was liable for the negligence of the independent contractor because the defendant failed to investigate the background, qualifications, or experience of the driver, and knew or should have known the driver was unfit. It was also alleged that the defendant had a non-delegable duty to protect motorists on the highway from the danger that the driver posed. Defendant moved to dismiss, arguing that the complaint contained only conclusions, and no facts which could make someone liable for negligently selecting an independent contractor trucker to transport goods.

Plaintiff relies on Suarez v. Gonzalez, 820 So.2d 342, 344 (Fla. 4th DCA 2002), in which we first set out the general rule:

Generally, the employer of an independent contractor is not liable for the negligence of the independent contractor because the employer has no control over the manner in which the work is done. 2A Fla. Jur.2d Agency & Employment § 138 (1998); see St. Johns & Halifax R.R. Co. v. Shalley, 33 Fla. 397, 14 So. 890, 892 (1894); Singer v. Star, 510 So.2d 637, 639-40 (Fla. 4th DCA 1987).

We found an exception to the general rule in Suarez because an incompetent independent contractor had been hired by a landlord, which resulted in injury to a tenant. Suarez is distinguishable because the landlord in Suarez owed a duty to the tenant which does not exist here. Suarez is a perfect example of why it is necessary to allege facts in order to pursue a negligence lawsuit against a person engaging an independent contractor. In Suarez, the landlord was converting her garage into a rentable apartment and had cabinets installed by a man she saw passing by on the street with some cabinets in his van. She paid the man in cash, signed no contract, and did not know his name or whether he was licensed. The tenant was seriously injured when one of the cabinets fell off the wall and struck him in the head.

Plaintiff has not cited a case from Florida or any other jurisdiction which would support a cause of action under the conclusory allegations contained in this complaint. In the absence of factual allegations as to why someone who hires an independent contractor to transport goods should conduct an investigation into the background, qualifications, or experience of the driver, there is no duty to third parties.

As for Judge Emas’s dissenting opinion that we should reverse so plaintiff can amend, a party who does not seek to amend in the trial court cannot raise the issue of amendment for the first time on appeal. Lutz v. Protective Life Ins. Co., 951 So.2d 884, 888 (Fla. 4th DCA 2007); Merkle v. Health Options, Inc., 940 So.2d 1190 (Fla. 4th DCA 2006); Century 21 Admiral's Port, Inc. v. Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985); Johnson v. RCA Corp., 395 So.2d 1262 (Fla. 3d DCA 1981).

As we noted earlier, the defendant moved to dismiss the complaint because the complaint contained no facts, and the conclusions were insufficient to make the defendant liable for the negligence of an independent contractor. It was plaintiffs position in the trial court, however, that it was unnecessary to allege any facts. Plaintiff actually admitted that “discovery has not begun in earnest and we have no facts upon which to rely.”

Plaintiff further advised the court:

The limited issue that’s before this court in this plaintiffs position is respectfully requesting that this court allow us to plead the well-established cause of action of negligent hiring, period. If the facts don’t bear it out, fine, but that’s not for today’s — that is the position that that is not for today to be addressed. Your honor would not be supplanting the legislative wisdom in either enacting or not enacting legislation that would specifically address this, but we are asking and we have pled a cause of action based on negligent hiring.

After pointing out that plaintiff had cited no cases which would support her position, and reiterating that the mere conclusions in the complaint did not state a cause of action, the court announced that it was dismissing with prejudice and commented to plaintiff “good luck with the Fourth District.” Plaintiffs response was, “Thank you, your Honor.” Plaintiff did not request leave to amend the complaint, nor did plaintiff move for rehearing to amend after the order of dismissal was entered.

Judge Emas states that, at the hearing on the motion to dismiss, defendant “never raised or argued the factual insufficiency of the complaint.” In both the motion to dismiss and the memorandum in support of the motion, defendant stated:

Plaintiff has sued DOP under the heading of “Negligent Hiring,” however, nowhere in the Complaint does Plaintiff allege any facts which would establish a basis to support such a claim.

And, at the hearing, the court stated in response to plaintiffs argument:

THE COURT: Well, the devil’s in the details. What’s the facts of this case?

We cannot, accordingly, agree with Judge Emas that the factual insufficiency of the complaint was not considered.

Affirmed.

HAZOURI, J., concurs.

EMAS, KEVIN J., Associate Judge, dissents with opinion.

EMAS, KEVIN J., Associate Judge,

dissenting.

The majority concludes that the trial court determined plaintiffs complaint was factually insufficient and that, by failing to seek leave from the trial court to amend the complaint, plaintiff is prohibited from raising the issue of amendment for the first time on appeal. See Merkle v. Health Options, Inc., 940 So.2d 1190 (Fla. 4th DCA 2006), review denied, 962 So.2d 336 (Fla.2007). I respectfully dissent because I believe the majority has blurred the distinction between two issues — -the failure to plead a factually sufficient claim (which was neither argued by the parties nor decided by the trial court), and whether, as a matter of law, a cause of action exists for negligent selection of an independent contractor to transport non-hazardous goods on the highway (which was argued by the parties and decided erroneously by the trial court). Based upon the record presented in this appeal, Merkle is inapplicable because the trial court never determined the factual sufficiency of the complaint, and thus there was no reason for plaintiff to seek leave to amend. Moreover, given the trial court’s ruling, seeking leave to amend clearly would have been futile, and we should not impose a requirement that a party engage in an act of futility to preserve an issue for appeal. This cause should be reversed upon a finding that, as a matter of law, a cause of action exists- in Florida for negligent selection of an independent contractor.

Plaintiffs claim arises out of an automobile accident involving a vehicle driven by Samuel Stander and a tractor trailer driven by Thomas Braswell (“Braswell”), the owner of Faiston Transportation, Inc. (“Faiston”). Samuel Stander died as a result of the accident. Deborah Stander, as personal representative of the estate (“Stander”), filed a one-count complaint sounding in negligence, not against Bras-well, the driver, or Faiston, his trucking company, but against Dispoz-O-Products, Inc. (“Dispoz-O-Products”), which hired Braswell to transport its paper goods to Florida. Stander conceded that Braswell was an independent contractor, but asserted that Dispoz-O-Products was liable under a theory of negligent selection. In the complaint, Stander alleged that Dispoz-O-Products was negligent because it knew or should have known that:

—Braswell was an inexperienced, dangerous and/or negligent driver;

—Braswell was unfit to perform the duties for which he had been hired by Dispoz-O-Products; and

—Braswell would act in a manner that would jeopardize the safety of and cause injury to other motorists on the public highways.

Dispoz-O-Products filed a motion to dismiss asserting that, as a matter of law, Stander could not seek to recover for Dis-poz-O-Products’ alleged negligence in selecting an independent trucker to transport Dispoz-O-Products’ paper goods. Although Dispoz-O-Products did include in its motion to dismiss a single sentence that the complaint contained only conclu-sory allegations, the remainder of the three-page, nine-paragraph motion focused upon whether, as a matter of law, such a cause of action could be maintained in Florida.

Moreover, at the hearing on the motion to dismiss, Dispoz-O-Products never raised or argued the factual insufficiency of the complaint. At the beginning of the hearing, Dispoz-O-Products framed the issue for the trial court:

Just to establish a record and to orient the court in the defendant’s argument this is a complaint that was filed by Mrs. Stander and it stems from a motor vehicle accident. And our Motion to Dismiss is. asking the court to dismiss the complaint with prejudice because there is no law, there is no statute that allows the allegations of this complaint to move forward, (emphasis added).

Dispoz-O-Products presented its argument, which lasted eight transcript pages and was directed entirely to the validity of a cause of action under Florida law:

The argument that [we have] put forth is that there is no common law case that we were able to find that says that a company that manufactures goods and transports goods has a nondelegable duty to make sure that the driver of the vehicle is — is a good driver.

Dispoz-O-Products concluded its argument:

This fact pattern with a motor vehicle accident simply does not apply and we would ask the court to grant the defendant’s Motion to Dismiss with prejudice. There is no statute, there is no law that I found that would allow this cause of action to move forward. And unless there is a conflict amongst the district courts where this new theory is budding — which I haven’t been able to find — there is no reason for the court to expand this area of law.

Stander’s counsel began its response to Dispoz-O-Products’ arguments by urging the trial court not to determine at this early stage of the proceedings whether Stander would ultimately be able to prevail on the claim, but only whether such a cause of action can properly be pled in Florida:

Because we’re here on the Motion to Dismiss and not for summary judgment, therefore, discovery has not begun in earnest and we have no facts upon which to rely, the question is whether the plaintiffs — the complaint as pleaded is before this court with a proper legal claim for negligent hiring, period. That is our contention .... (emphasis added). The majority, relying on the italicized

portion of this single statement, taken from a 36-page transcript, determines that Stander’s counsel conceded there was no factual basis for filing the complaint and that plaintiff did not wish to amend. However, a reading of counsel’s statement in the context of the full transcript leads to the conclusion that plaintiff was not addressing the factual sufficiency of the complaint, but rather the validity vel non of the theory pled. Stander never told the trial court that it could not or would not amend the complaint, but only that plaintiff believed a legally cognizable cause of action had been set forth in the complaint, that the facts had not been fully developed at this early stage of the case, and that plaintiffs ultimate ability to prove the claim should not be decided on a motion to dismiss. Given defendant’s framing of the issue at the inception of the hearing, there was no reason for Stander to address the complaint’s factual sufficiency or to seek leave to amend.

This conclusion finds further support in the comments made and questions posed by the trial court to Stander’s counsel. At no point did the trial court question Stander about the factual sufficiency of the complaint, nor did the court determine that the complaint was factually insufficient. Instead, the court engaged in a discussion limited to whether, as a matter of law, such a cause of action exists under Florida law. For example, the trial court asked plaintiffs counsel:

Pray tell, why hasn’t our Florida legislature enacted any kind of statute where as a public policy of the State of Florida ... they have told the business community ... you must take care of who you use as an independent contractor to ship your goods, whether it be intrastate or interstate into Florida. And if you’re not — if you don’t do it carefully you can
be held accountable in a tort action in our circuit courts. Why hasn’t our legislature enacted such a statute?
Give me, cite to me one case ... one case in the thousands and thousands of automobile accidents we’ve had in the State of Florida where analogous to our case a defendant hires an independent contractor, doesn’t own anything, not an employee, just hires somebody to ship goods by a truck in the State of Florida where any court, any court, such a lawsuit has been upheld and where maybe there’s been a plaintiffs verdict against somebody who simply hired a trucking company to ship goods from one part of Florida to another part or from out of Florida to somewhere in state?
What’s my duty? Let’s put you in the hot seat, sir. I’m going to have you shipping your own furniture.... I’d like to know what your obligations are under the law the way you are asking the court. You look in the yellow pages. Do you have some affirmative duty to say to these people by the way, how competent are your drivers? What’s your track record? Have you been involved in accidents and how many?

In response to the court’s questions, Stander’s counsel cited cases in support of the position that a valid cause of action exists, and attempted to distinguish between the duty imposed upon a casual shipper of goods (such as the examples posed by the court) and the duty imposed upon a manufacturer involved in shipping goods on a regular basis:

Your Honor, the well-settled body of negligence law in whatever area acknowledges that people who are engaged in the business that is being in this ease sued, that those people are in a superior position to absorb the losses than are the people who have either died or been injured as a result of alleged negligence, and that is what we are alleging at this point.

The trial court indicated that this was a public policy issue best left to the legislature and not the judiciary. Stander’s counsel responded to the court’s concern:

Your Honor is not being asked to make policy. Your Honor is being requested to recognize that this complaint has alleged a duty, breach, causation, and damages.

Stander’s counsel then concluded his argument:

The limited issue that’s before this court in this plaintiffs position is respectfully requesting that this court allow us to plead the well-established cause of action of negligent hiring, period. If the facts don’t bear it out, fine, but that’s not for today’s — that is the position that that is not for today to be addressed. Your Honor would not be supplanting the legislative wisdom in either enacting or not enacting legislation that would specifically address this, but we are asking and we have pled a cause of action based on negligent hiring.

The court posed a final question to plaintiffs counsel:

Is there such a cause of action when the defendant is not the owner, is not the driver, and the only connection is the fact that they hired this independent contractor to ship their paper products in the State of Florida?

Plaintiffs counsel answered in the affirmative.

The trial court concluded the hearing and issued its ruling:

It’s dismissed with prejudice. There is no such cause of action in Florida and it’s for our legislative branch in Tallahassee to make any such pronouncement. (emphasis added).

The majority’s opinion necessarily holds that the trial court determined that the complaint failed to allege sufficient ultimate facts to state a cause of action; that Stander’s counsel should have sought leave to amend the complaint to plead additional facts; and, by failing to do so, Stander is barred by Merkle from raising this issue on appeal. However, Merkle is inapplicable for two reasons: First, Stander has not, during the course of this appeal, sought to amend her complaint. Stander’s appeal merely seeks review of the trial court’s order which found, as a matter of law, no such cause of action could be pled. Second, to the extent the issue of amendment has impliedly been raised on appeal, the transcript of the hearing on the motion to dismiss plainly reveals that seeking leave from the trial court to amend the complaint would have been a futile and useless act, given the trial court’s determination that no valid cause of action could ever be pled. The law does not require a futile or useless act, see Haimovitz v. Robb, 130 Fla. 844, 178 So. 827, 830 (1937); Young v. State, 664 So.2d 1144, 1145 (Fla. 4th DCA 1995), and imposing such a requirement in this case is contrary to reason and does not advance the underlying purpose for the rule articulated in Merkle.

Although I agree with the majority that the complaint is factually insufficient, this issue is not properly before us because it was never argued to, or decided by, the trial court. I believe the majority should not have reached this issue, but instead should have determined that the trial court erred in its ruling on the issue that was raised, argued and decided below. Based on the analysis that follows, we should hold that Florida law permits a cause of action for negligent selection of an independent contractor to ship non-hazardous goods on the highway.

It has long been the general rule in Florida that the employer of an independent contractor cannot be held liable for the negligence of an independent contractor because the employer has no control over the manner in which the work is done. See St. Johns & H.R. Co. v. Shalley, 33 Fla. 397, 14 So. 890 (1894); Suarez v. Gonzalez, 820 So.2d 342 (Fla. 4th DCA 2002); McCall v. Alabama Bruno's Inc., 647 So.2d 175 (Fla. 1st DCA 1994); Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So.2d 767 (Fla. 3d DCA 1968). See also RESTATEMENT (SECOND) OF TORTS § 409 (1965) ("RESTATEMENT").

However, Florida courts recognize several exceptions to the general rule of non-liability of an employer for the acts of an independent contractor, including situations in which the employer was himself negligent in selecting the independent contractor: See Suarez v. Gonzalez, 820 So.2d 342 (Fla. 4th DCA 2002); Hirschenson v. Westway, Inc., 728 So.2d 1216 (Fla. 3d DCA 1999); McCall v. Alabama Bruno's, Inc., 647 So.2d 175 (Fla. 1st DCA 1994).

To establish a claim for negligent selection of an independent contractor, a plaintiff must plead ultimate facts showing: (1) the independent contractor acted negligently; (2) the independent contractor was incompetent or unfit at the time of its hiring; (3) the employer knew or reasonably should have known of this incompetence or unfitness; and (4) the plaintiffs injury was the proximate result of this incompetence or unfitness. See Kinsey v. Spann, 139 N.C. App. 370, 533 S.E.2d 487, 493 (2000). Plaintiff must establish that the employer knew or reasonably should have known of the specific propensities of the independent contractor that was the proximate cause of plaintiff's injuries. Brien v. 18925 Collins Ave. Corp., 233 So.2d 847 (Fla. 3d DCA 1970); see also Sammons v. Broward Bank, 599 So.2d 1018 (Fla. 4th DCA 1992) (in cause of action against bank for negligent selection of repossessor who allegedly slashed plaintiff's tires and engaged in a chase of plaintiffs car While attempting repossession, trial court properly granted summary judgment on claim of negligent hiring where plaintiff could not demonstrate bank knew or should have known of reposses-sor’s violent propensities when bank hired him). In other words, there must be a causal connection between the particular unfitness and the independent contractor’s negligent act. See Jones v. Beker, 260 Ill.App.3d 481, 198 Ill.Dec. 214, 632 N.E.2d 273 (1994); Puckrein v. ATI Transport, Inc., 186 N.J. 563, 897 A.2d 1034 (2006); Bellere v. Gerics, 304 A.D.2d 687, 759 N.Y.S.2d 105 (2003).

Whether plaintiff ultimately can prove her claim for negligent selection is not for us, or the trial court, to decide at this stage of the proceedings. The limited issue squarely presented is whether such a cause of action can be pled in Florida. I believe we should hold that it can, reverse the order dismissing this cause with prejudice, and remand to the trial court for proceedings consistent with that holding.

      . In its answer brief, Dispoz-O-Products describes its own motion in this way: "DOP [Dispoz-O-Products] filed a Motion to Dismiss the Complaint with Prejudice for failure to state a cause of action. The basis of DOP’s motion was that there is no statutory, common law, or contractual duty imposed upon the supplier of paper goods to investigate an independent contractor hired to ship paper goods." (citation omitted and emphasis added).

      . The transcript of the hearing covers 36 pages. The apparent reason for the lengthy hearing is the dearth of caselaw regarding whether Florida recognizes a cause of action for negligent selection of an independent contractor to transport non-hazardous goods on the highways and, if so, whether one who selects such an independent contractor has an affirmative duty to investigate the independent contractor for fitness or competence. By its holding, the majority avoids reaching these issues.

      .Assuming the transcript accurately reflects the statement by plaintiff's counsel that "we have no facts upon which to rely,” it is difficult to conceive that counsel was acknowledging that he had filed the complaint without any basis in fact. In context, it is certainly much more reasonable to conclude that counsel, though perhaps inartfully, was pointing out the trial court's obligation at this stage of the proceedings to limit itself to the four corners of the complaint, as contrasted with a motion for summary judgment. By reversing and remanding, plaintiff's counsel would be afforded the opportunity to state his position with greater clarity.

      . Stander alleged in the complaint that Dis-poz-O-Products had a legal "duty to investigate and ensure that Braswell ... would be a safe carrier” of Dispoz-O-Products' paper goods. Given the preliminary stage of the proceedings below and the limited record before us, we need not reach the question of whether, and the extent to which, such an affirmative duty exists in this case. Any such duty will necessarily vary with the circumstances of each case, and will depend on factors such as those identified by the RESTATEMENT § 411, cmt. c (1965). For example, even in the absence of a non-delegable duty, the existence of a special relationship between the parties is a relevant factor in determining the necessity and extent of the inquiry required. See, e.g., Suarez, 820 So.2d at 346 (holding that the special relationship between the parties-landlord and tenant-imposed a duty upon the defendant homeowner to inquire into the qualifications of an independent contractor hired to install cabinets in the home rented to, and occupied by, plaintiff; noting, however, that absent such a relationship between the parties, in "run-of-the-mill activities not involving highly dangerous or specialized work, an employer is required to make only minimal inquiry into the qualifications of an independent contractor”); L.B. Foster Co. v. Humblad, 418 F.2d 727 (9th Cir.1969) (employer who is a casual shipper of goods of a character which involves no unusual risk to other users ordinarily has the right to assume that the independent contractor holding itself out as a transport company is properly licensed and equipped, and acting in accordance with applicable regulations); Puckrein v. ATI Transport, Inc., 186 N.J. 563, 897 A.2d 1034, 1044 (2006) (same).