author: WARNER, J.

text:
    CARIB-USA SHIP LINES BAHAMAS LIMITED, Appellant, v. Carmen DORSETT, Appellee.
    No. 4D05-2290.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Roberta G. Mandel, Andrew W. Anderson and Matthew J. Valeourt of Houck Anderson P.A., Miami, for appellant.
    Rebecca B. Watford of The Watford Law Firm, and Charles R. Lipcon of Lip-con, Margulies and Alsina, P.A., Miami, for appellee.
   WARNER, J.

Carib-USA Ship Lines Bahamas, Ltd., appeals the trial court’s denial of its motion to dismiss plaintiffs complaint for lack of personal jurisdiction. Because Carib-USA did not have sufficient minimum contacts with the state to support jurisdiction at the time of the filing of the suit, we reverse.

On August 2, 2003, the plaintiff, Carmen Dorsett, was a passenger aboard the M/V Sea Hauler when the Sea Hauler collided with the United Star, owned by Carib-USA, in Bahamian waters. Dorsett was injured in the collision, and several other passengers were killed. The Sea Hauler was a ferry line between Bahamian Islands, and the United Star made charter cargo runs between Bahamian Islands. The United Star did not make port in the United States.

Dorsett filed suit against Carib-USA in Palm Beach County alleging that it operated a business venture in Palm Beach and was engaged in substantial business activity in the state. Carib-USA filed a motion to dismiss for lack of personal jurisdiction and improper service of process. It maintained that it was not engaged in significant business activities in Palm Beach County nor did it maintain minimum contacts with Florida to support jurisdiction. Attached to the motion was an affidavit of Thomas Hanna, president of Carib-USA, who stated that the company was a Bahamian registered company which owned and operated the United Star in Bahamian waters. United Star did not make any calls in the United States. Carib-USA held no bank accounts in Palm Beach County, nor did it have any offices to conduct business there.

Hanna further stated that Carib-USA owns one other vessel, United Spirit. That vessel was chartered to another company. Based upon the charter terms, Carib-USA does not determine ports of entry for this vessel or its cargo. This vessel does make ports of call in the United States.

Carib-USA was required to appoint a limited statutory agent to receive notices pursuant to United States pollution laws in case one of its vessels does make a call in a United States port. Glen Dias, of Palm Beach County, was appointed by Carib-USA to receive such notices.

In his deposition, Hanna elaborated further on the activities of the United Spirit, the vessel which actually did make ports of call in Palm Beach. The United Spirit is also a Bahamian registered vessel which is on a written time charter to a Bermudian Company, Tropical Shipping and Construction Company, Ltd. This time charter was entered into on October 11, 2003, which was after the accident in this case. Prior to that time, the United Spirit was on a sport charter. Hanna signed the charter in Riviera Beach, Florida at the offices of Tropical Shipping. However, the record is not clear as to whether this entity is a Florida affiliate of the Bermudian Charterer or is simply the United States corporate offices of the Bermudian company.

Under the charter to the Bermudian corporation, the charterers hired the vessel for a period of one year with an option to renew for up to two additional periods of six months. The charter permits the vessel to be employed in trade between ports in the Caribbean, including the United States, “as the Charterers shall direct.” Carib-USA provides the crew for the vessel, but the charterer can request changes upon complaint by the owner. Carib-USA receives $60,000 per month in Bahamian currency from the charterer for the lease of the vessel, which is wired from Tropical Shipping’s Bahamian bank and deposited in Carib-USA’s Bahamian accounts. There is no forum selection clause in the contract, but disputes are to be arbitrated in New York.

Tropical Shipping has offices at the Port of Palm Beach, and provides fuel for the United Spirit. Thus, at the time of Hanna’s deposition, he testified that the United Spirit was refueling in Palm Beach County roughly every six to eight weeks.

The United Star, the vessel involved in the collision, is operated directly by Carib-USA but has not made a visit to the United States since 2000.

At the hearing on the motion to dismiss, the parties relied on the affidavit and deposition of Thomas Hanna, as well as other documents regarding the charter of the United Spirit. At the conclusion of the hearing, the court denied the motion to dismiss, prompting this appeal.

Generally, a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002). Section 48.193, Florida Statutes, is the long-arm statute of this state and provides, in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), our supreme court set forth a. two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. Id. If so, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. Id. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

Due process requires that a nonresident has sufficient minimum contacts with the forum state such that the maintenance of a suit does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In analyzing whether a nonresident has the requisite minimum contacts with a forum state to justify personal jurisdiction, courts should determine whether the nonresident’s “conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In order for a nonresident defendant to anticipate being haled into a Florida court, it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within Florida, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

An assertion of general jurisdiction requires a showing of “continuous and systematic general business contacts” with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). If the burden is met under Florida’s general jurisdiction statute, the constitutional due process burden is necessarily also met. Woods v. Nova Companies Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999).

Contacts are generally assessed over a period of years prior to the filing of the complaint. Id. at 621; see also Helicopteros, 466 U.S. at 409-11, 104 S.Ct. 1868 (examining contacts over a seven year period, up to the time the lawsuit was filed). Thus, contacts established after the time of the service of the complaint generally should not be used to establish minimum contacts at the time the defendant is “haled into court” for the activity giving rise to the cause of action.

Given these legal precepts, we conclude that Dorsett has failed to show that Carib-USA has either engaged in “substantial and not isolated activity within this state” or has minimum contacts with this state sufficient to support the assertion of personal jurisdiction over Carib-USA by our courts.

Dorsett’s complaint alleged that jurisdiction existed under section 48.193 because Carib-USA was engaged in substantial activity within this state, operated vessels in the waters of this state, and was engaged in the business of carrying cargo to and from Florida on the vessel, United Star. However, Hanna’s affidavit, as well as his deposition, which are uncontradicted and were relied upon by all sides at the hearing, show that United Star has not called on ports in the United States at all since 2000.

The only connection of Carib-USA with the United States, or Florida, is through the United Spirit, a vessel owned by Carib-USA but chartered to a Bermudian Company, which had control of its routing and ports of call. That vessel was chartered after the accident in this case, and began making regular calls for fuel at the Port of Palm Beach. From the time that the charter was made until the time the complaint in this case was filed, it would appear that the vessel may have stopped at the Port of Palm Beach two or three times. All of these port calls would have been at the direction of Tropical Shipping.

The control of the ports of call is the key factor in this case. This point is made clear by Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124 (Fla. 1st DCA 1994). There, the First District dealt with a similar case involving personal jurisdiction over the owner, operator, and charterer of a vessel upon which the plaintiff was injured while in Saipan in the Pacific Ocean.

The vessel on which the plaintiffs injury occurred in American Overseas was owned by Wilmington Trust Company, chartered to Braintree Marine Corporation, and operated by American Overseas. American operated several vessels chartered by Braintree, which had contracted with the United States Government to pre-position vessels around the world loaded with equipment for rapid deployment of an amphibious brigade of military forces.

All of the vessels chartered by Braintree and operated by American came to port on occasion in different parts of Florida. Some activity in the Florida port was part of military exercises of loading and unloading equipment, and some constituted repair and maintenance work. The only “agent” American and Braintree had in Florida was the vessels’ “husbanding agent.” The activities of the vessel in Florida were all at the direction of the United States Military pursuant to the charter with Braintree.

Although the charter in American Overseas between the vessel owner and Braintree was a “bareboat charter,” one conferring all possession and control to the charterer, the First District looked to Nicolaisen v. Toei Shipping Co., Ltd., 722 F.Supp. 1162 (D.N.J.1989), a case involving a vessel on time charter, to conclude that minimum contacts had not been established in Florida, even though all of the vessels chartered by Braintree and operated by American had docked at Florida ports. In Nicolaisen, the plaintiff had sought to establish jurisdiction over the owner of the vessel, because the charterer of the vessel had called on New Jersey ports seventeen times over the four years immediately preceding the lawsuit. Those contacts were held to be “haphazard and fortuitous,” not continuous and systematic.

Explaining the Nicolaisen case further, the First District stated:

The court also noted that the vessel’s charterer, not the defendant-owner, controlled the vessel’s itinerary and determined at what ports she would call, and that this provided a second, independent basis for granting the motion to dismiss. Id. In this connection, the court stated as follows:
Toei’s lack of control over where the Tama Rex would make port militates against finding that Toei was reasonably put on notice that it might be called upon to defend actions in New Jersey, especially actions that did not arise in the state. As the Supreme Court stated in the seminal case of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.”

Am. Overseas Marine Corp., 632 So.2d at 1129. The First District also cited to Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir.1990), Conner v. Bouchard Transp. Co., Inc., 1993 WL 388274 (E.D.Pa. September 30, 1993), and Uni-Petrol Gesellschaft Fur Mineraloel Produkte, M.B.H. v. MT Lotus Maru, 607 F.Supp. 108 (S.D.N.Y.1985), for the proposition that jurisdiction over a vessel’s owner (or operator) cannot be established simply by its making calls to ports where control of the ports of call rests with the charterer of the vessel. The First District concluded:

Under the reasoning in Nicolaisen and Asarco, and the other above-cited authorities, appellants’ contacts with Florida cannot permissibly be considered, consistent with the constitutional requirements of due process, since the MPS vessels have called at Florida ports only at the direction of the United States military, not by the choice of any of these defendants.

Am. Overseas Marine Corp., 632 So.2d at 1130. The court thus reversed the denial of the motion to dismiss for lack of jurisdiction as to all the defendants.

Similarly, in this case the United Spirit was chartered to Tropical Shipping which controlled the ports of call for the vessel and directed its movement. That the United Spirit called on the Port of Palm Beach at the direction of Tropical Shipping does not afford minimum contacts which subject Carib-USA, the vessel’s owner, to jurisdiction in Florida. Carib-USA could not be said to be reasonably expected to be “haled into court” in Florida, where the vessel on which the injury occurred had no contact with Florida and the only other vessel owned by Carib-USA stopped in ports of Florida at the direction of the charterer, not Carib-USA.

Because Carib-USA was not subject to jurisdiction in Florida, we reverse the trial court’s order with directions to enter an order granting Carib-USA’s motion to dismiss for lack of jurisdiction.

Reversed with directions.

HAZOURI and GROSS, JJ., concur.

      . It also filed a motion to dismiss for forum non conveniens which we do not address because of our disposition on jurisdictional grounds.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BMW OF NORTH AMERICA, LLC, Appellant, v. Monica LA ROTTA, Appellee.
    No. 4D05-1991.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appellant.
    Rebecca J. Covey of Rebecca J. Covey, L.L.C., Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. See BMW of North America LLC v. La Rotta, 921 So.2d 702 (Fla. 4th DCA 2006).

STEVENSON, C.J., STONE and SHAHOOD, JJ., concur.


text:
    Kevin KONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2850.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cheryl J. Aleman, Judge; L.T. Case No. 04-13069 CF10A.
    Kevin Kong, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of Kong’s rule 3.800(a) motion, without prejudice to the filing of a timely and legally sufficient rule 3.850 motion addressing the claims imper-missibly raised for the first time on appeal in his initial brief.

STONE, KLEIN and MAY, JJ., concur.


text:
    Timothy McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1740.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Maury Halperin, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s Florida Rule of Criminal Procedure 3.850 motion. Appellant, who had registered in Florida as a sexual offender, entered a guilty plea to violating the requirements of section 943.0435(4), Florida Statutes, by failing to report to a driver’s license office within forty-eight hours of changing his address. In his motion, appellant sought to withdraw his plea claiming that he did not commit the charged offense because he was not required to register as a sexual offender in Florida at all. He also claimed that defense counsel was ineffective in permitting him to enter a guilty plea to a crime he did not commit.

In 1991, appellant was convicted of first-degree sexual assault in Colorado. He was released from incarceration for this offense on January 3, 1997. Appellant moved to Florida where he registered as a sexual offender. No evidence was presented that appellant registered as a sex offender in Colorado before coming to Florida.

Section 943.0435(l)(a) defines a “sexual offender” as a person convicted of committing specified sexual offenses in Florida or similar offenses in another jurisdiction. In addition, however, the statute requires that the offender also meet the criteria listed in subsections 2, 3, or 4. No evidence was presented that appellant was under any kind of supervision related to his Colorado conviction, so subsection 4 does not apply. § 943.0435(l)(a)4, Fla. Stat. (2002). Subsection 2 applies to offenders released from the sanction for a qualifying offense on or after October 1, 1997 and does not apply to appellant who was released in January 1997. § 943.0435(l)(a)2, Fla. Stat. (2002).

Subsection 3 reads:

Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction;

§ 943.0435(l)(a)3, Fla. Stat. (2002). Appellant was not designated a sexually violent predator in Colorado only because his conviction predated the effective date of the sexually violent predator statute. See Colo. Rev. Stat. § 18-3-414.5. If appellant resided in Colorado, however, he would be required to register as a sex offender. Colo. Rev. Stat. § 16-22-103(l)(c). Appellant could be posted on the internet as a convicted sex offender. Colo. Rev. Stat. § 16-22-111(1.5).

Because appellant would be required to register as a sex offender if he were a resident of Colorado, we find that section 943.0435(l)(a)3, Florida Statutes, applies and appellant was required to register as a sexual offender in Florida. His plea to violating the reporting requirements of section 943.0435(4) was therefore proper, and counsel was not ineffective in allowing him to enter a plea to this offense.

GUNTHER, KLEIN and SHAHOOD, JJ., concur.


text:
    Michael MADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1488.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm orders denying Madden’s motion to withdraw his guilty plea and striking his motion to mitigate sentence. The record reflects no reversible error or abuse of discretion. We note that we have considered State v. Grandstaff, 927 So.2d 1035 (Fla. 4th DCA 2006), and deem it inapplicable.

STEVENSON, C.J., STONE and POLEN, JJ., concur.


text:
    C.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-364.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. However, we remand the case to the trial court with directions to enter a corrected written order of disposition, reflecting that the appellant was found guilty after an adjudicatory hearing, rather than reflecting that he entered a plea of no contest.

STONE, KLEIN and SHAHOOD, JJ., concur.


text:
    DEPARTMENT OF JUVENILE JUSTICE, Petitioner, v. A.A., J.C., C.B., and M.B., children, Respondents.
    No. 4D06-1513.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    John Milla, Tallahassee, for petitioner.
    Frank A. Kreidler, Lake Worth, for respondent J.C.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for respondents.
    William W. Booth and Michelle Hankey, West Palm Beach, for respondents.
    Robin L. Rosenberg, Holland & Knight LLP, Tampa, and Andrea L. Moore, Coral Springs, for respondents.
   PER CURIAM.

We dismiss the petition for certiorari because we find no departure from the essential requirements of law which will materially injure the petitioner throughout the remainder of the proceedings, which cannot be remedied on final appeal. Henry & Rilla White Foundation, Inc. v. Migdal, 720 So.2d 568 (Fla. 4th DCA 1998).

STEVENSON, C.J., GUNTHER and KLEIN, JJ., concur.


text:
    Damien McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4836.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence for aggravated assault with a firearm. He raises three issues, none of which warrant a reversal. We therefore affirm, but write to address the trial court’s suggestion that the defendant waived the motion to suppress by failing to file it prior to trial.

Rule 3.190(h) of the Florida Rules of Criminal Procedure provides that a “motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.” This rule provides the trial court with discretion to entertain a motion to suppress at trial. In this case, the trial court indicated that the defendant had waived any motion to suppress by failing to file a written motion prior to trial. A motion to suppress is not automatically waived by not having been filed prior to trial. However, having reviewed the merits of the defendant’s prof-ferred motion, we find the court’s reliance on waiver to be harmless.

Affirmed.

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    Carson FILMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2854.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Carson Filmore, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order which denied appellant’s Florida Rule of Criminal Procedure 3.800(a) motion and granted the state’s motion to enjoin appellant from further pro se filings. We find that the trial court afforded appellant notice and an opportunity to be heard before imposing sanctions. See State v. Spencer, 751 So.2d 47 (Fla.1999). The state filed its Motion for Injunction on May 5, 2006. Appellant had an opportunity to respond to the motion, which put him on notice of the potential sanction, and failed to do so. The trial court entered its order granting the state’s motion on June 5, 2006, a full month after the motion had been filed.

Appellant’s motion raised an issue that had been affirmed on direct appeal and rejected in two prior rule 3.800(a) motions which were also affirmed by this court. Filmore v. State, 730 So.2d 1286 (Fla. 4th DCA 1999); Filmore v. State, 854 So.2d 203 (Fla. 4th DCA 2003); Filmore v. State, 926 So.2d 1288 (Fla. 4th DCA 2006). Appellant’s frivolous and repetitive filings are an abuse of procedure, and the trial court properly imposed sanctions.

Affirmed.

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


author: MONACO, J.

text:
    Juan ITTURALDES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1500.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Juan Itturaldes, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

Juan Itturaldes filed a petition for writ of mandamus with this court seeking a belated appeal of his 1999 conviction and sentence and other relief. Mandamus is not the appropriate remedy for seeking a belated appeal, because the granting of that relief is not a ministerial duty. See Austin v. Crosby, 866 So.2d 742 (Fla. 5th DCA 2004). Thus, as required by rule 9.040(c), Florida Rules of Appellate Procedure, we consider his filing as a petition for belated appeal under rule 9.141(c), Florida Rules of Appellate Procedure, which is the proper remedy.

It appears that Mr. Itturaldes filed a pro se notice of appeal from this very same conviction and sentence in 1999. Because he failed to prosecute his appeal, however, it was dismissed. Moreover, Mr. Ittu-raldes has failed to point out any exception to the two-year time limit contained in rule 9.141(c)(4) under which he could seek a belated appeal. Accordingly, we deny the petition.

DENIED.

PALMER and EVANDER, JJ., concur.


text:
    Jack F. DURIE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-570.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Jack F. Durie, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, West Palm Beach, for Respondent.
   PER CURIAM.

Jack F. Durie, Jr., filed a petition for writ of habeas corpus seeking relief from his 1999 convictions. Although Durie filed his petition in the Fifth District Court of Appeal, the petition was assigned, by the Chief Justice of the Florida Supreme Court, to be heard by judges from the Second District Court of Appeal due to the recusal of the regular judges from the Fifth District. In his petition, Durie claims that he was convicted of both Medicaid fraud and grand theft and that these convictions need to be overturned because the facts surrounding the alleged crimes would not support the convictions under the relevant statutes. After reviewing the petition and the State’s response, this court has determined that Durie has only one remaining conviction from 1999 rather than the two convictions from which he claims he is entitled relief. Durie’s only remaining conviction is for grand theft. The claims relating to that conviction should have been properly raised as part of Durie’s original appeal of his judgment and sentence. Accordingly, we deny Du-rie’s petition for writ of habeas corpus.

Denied.

WHATLEY, J.W., CASANUEVA, D.C., and CANADY, C.T., Associate Judges, Concur.


author: PALMER, J.

text:
    Edward J. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-179.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Edward J. Clark appeals his judgment and sentence which were entered by the trial court upon the revocation of his probation. We dismiss the appeal for lack of jurisdiction.

At his violation of probation hearing, Clark entered a plea of guilty to the charge of violating his probation. Clark now argues that it was fundamental error for the trial court to find him guilty of the violation charge because he did not willfully violate his probation. Clark also maintains that he was not competent to enter his guilty plea.

Clark failed to preserve these issues for appellate review by either expressly reserving his right to appeal any dispositive ruling or by filing a motion to withdraw his plea. See Benelhocine v. State, 717 So.2d 104 (Fla. 2d DCA 1998)(holding that, having entered his plea, admitting probation violation, without reserving right to appeal any dispositive issue, and without filing motion to withdraw plea before lower tribunal, defendant did not preserve issues related to validity of plea for appellate review). See also § 924.051(4), Fla. Stat. (2004)(explaining that, if a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dis-positive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence).

Accordingly, our court lacks jurisdiction to consider Clark’s claims. We dismiss Clark’s appeal without prejudice to Clark’s right to seek appropriate and timely post-conviction relief in the trial court.

DISMISSED without prejudice.

ORFINGER and TORPY, JJ., concur.


author: LAWSON, J.

text:
    William V. RODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1097.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    William V. Rodman, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

William Rodman appeals the summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800. Because the trial court neither attached records to its order that would support a denial, nor stated reasons for the denial in its order, we reverse. See, e.g., Heuton v. State, 790 So.2d 1204, 1205 (Fla. 2d DCA 2001).

REVERSED and REMANDED for further proceedings.

THOMPSON and PALMER, JJ., concur.


text:
    Lawerence J. VICKERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1248.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Lawrence Vickers, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the legality of his sentence. Pursuant to remand in Vickers v. State, 875 So.2d 1288 (Fla. 5th DCA 2004), the trial court resentenced Appellant in numerous cases. We reject Appellant’s challenges except as to the sentences in Case No. 02-M82. In that case, although the record is not clear, it appears that Appellant might have received an illegal sentence on Count II, a third-degree felony. Even though Appellant was sentenced as an HFO on that count, the total sentence appears to exceed ten years. Upon remand, the trial court may either resen-tence Appellant on both counts in Case No. 02^482 or provide further record support that the sentence on Count II does not exceed ten years. See Ellis v. State, 869 So.2d 52 (Fla. 5th DCA 2004).

REVERSED in part; REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Ronald McKEEHAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1090.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Ronald McKeehan, Monticello, pro se.
    No Appearance for Respondent.
   PER CURIAM.

In this, his fourth mandamus petition, Ronald McKeehan is again alleging that the State presented false evidence at trial. We deny his mandamus petition on the merits and hold that he is barred from further pro se filings in this court on the basis that his present petition raises a successive claim previously decided on the merits and, therefore, constitutes an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s pro se filings had become frivolous, an abuse of process, and a waste of the taxpayers’ money); Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants).

Accordingly, in order to conserve judicial resources, we prohibit McKeehan from filing with this court any further pro se pleadings concerning Orange County, Ninth Judicial Circuit Court case number 01-183. The Clerk of this court is directed not to accept any further pro se filings concerning this case from Ronald McKee-han. Unless filed by a member of the Florida Bar in good standing, additional pleadings regarding this case will be summarily rejected by the Clerk. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

PETITION DENIED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, SAWAYA and PALMER, JJ., concur.


author: PLEUS, C.J.

text:
    STATE of Florida, Appellant, v. Francheska T. WARD, Appellee.
    No. 5D06-383.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellee.
   PLEUS, C.J.

The State of Florida appeals from a suppression order. The order concludes that the affidavit which formed the basis for the search warrant was based on stale information and was insufficient to establish probable cause.

The defendant, Francheska Ward, is a co-defendant of Cornelius Paige. The State has separately appealed from a similar suppression order in the Paige prosecution and filed a notice of similar issue in each appeal.

This Court recently reversed the suppression order in that appeal. See State v. Paige, 934 So.2d 595 (Fla. 5th DCA 2006). The decision recites the evidence contained in the affidavit for search warrant and holds that it is sufficient to show “a fair probability that [drug related] contraband would be found at the residence” occupied by Ward and her boyfriend, Paige. The opinion repudiates the trial court’s “staleness” finding, rejecting the court’s determination that the October 8, 2003 search was invalid because it was based on an October 1, 2003 search warrant, and some information (a tip and a trash pull) obtained in July and August, 2003. Rather, this Court explained that passage of time must be considered in the context of the specific facts, including the nature of the unlawful activity alleged and the length of the activity. Because police surveillance continued over several months and reflected persistent drug activity, the staleness claim lost any efficacy.

Ward and Paige are co-defendants and the suppression orders are essentially identical. Accordingly, we reverse.

REVERSED and REMANDED.

GRIFFIN and LAWSON, JJ., concur.


author: SAWAYA, J.

text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2363.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Michael Williams, Crestview, pro se.
    No Appearance for Appellee.
   SAWAYA, J.

Michael Williams, pro se, appeals the order denying his rule 3.170(Z) motion to withdraw the plea he entered in case number 03-216.

While serving the probationary portion of his sentence in case number 94-921, Williams violated that probation by committing new law violations, which were charged in case number 03-216. Williams entered guilty pleas in both cases pursuant to a plea agreement with the State and was sentenced at a single sentencing proceeding in both cases. He argues that he had not wanted to enter the plea, but did so because defense counsel advised him that he was exposed to a 30-year sentence in case number 94-921 and thus the 20-year sentence offered by the State was a good deal. He discovered after sentencing, however, that the most he could have been sentenced to was 7 years’ incarceration in case number 94-921.

At this point, the cases became bifurcated through Williams’ admitted oversight. Williams timely filed a motion to withdraw his plea, but his motion identified only case number 03-216. His amended motion to withdraw likewise identified only case number 03-216. Before the court ruled on the amended motion, Williams realized he had failed to include case number 94-921 in his motion to withdraw and, because the 30-day period for filing such motions had expired, Williams filed a rule 3.850 motion alleging ineffective assistance of trial counsel in case number 94-921.

Upon consideration of the rule 3.850 motion, the trial court granted relief by re-sentencing Williams to a legal sentence, but failed to allow Williams the opportunity to withdraw his plea. Thereafter, the trial court denied the amended motion to withdraw the plea in case number 03-216. In Williams v. State, 934 So.2d 632 (Fla. 5th DCA 2006), this court reversed the denial of Williams’ 3.850 motion and remanded for the trial court to grant Williams the opportunity to accept the illegality of the sentence imposed in 94-921 or to withdraw his plea in that case.

Because Williams was granted the opportunity to withdraw his plea in case number 94-921, Williams must also be given the same opportunity in case number 03-216. See Whitaker v. State, 881 So.2d 80, 82 (Fla. 5th DCA 2004) (holding that where several cases are disposed of simultaneously by a plea bargain and the defendant has cause to withdraw his plea as to one count or case, then the defendant must be allowed to withdraw from the entire plea agreement). Accordingly, we reverse the denial of Williams’ rule 3.170(í) motion and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PLEUS, C.J. and ORFINGER, J„ concur.


text:
    Mildred Gibbons SPENCER, Appellant, v. BR CONTRACTING, INC. and Michael Branan, Appellee.
    No. 5D05-2265.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Joseph Morrell, Orlando, for Appellant.
    Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Appellee.
   LAWSON, J.

Mildred Gibbons Spencer appeals the trial court’s order granting appellees’ motion for remittitur, which decreased Spencer’s verdict against appellees from $15,636.56 to $11,233.50, and separate order granting appellees’ motion for additur, which increased the verdict against Spencer on appellees’ counterclaim from $2,206.70 to $6,206.70. Spencer timely objected, and requested a new trial on damages. We agree with Spencer that the trial court erred by entering a final judgment based upon the adjusted verdict amounts without affording Spencer a new trial on damages, and reverse.

Motions for additur and remittitur are governed by section 768.74, Florida Statutes. Although it appears that the trial court properly granted appellees’ motions pursuant to this statute, the statute also affords any party adversely affected by an order of additur or remittitur to reject the trial court’s decision and “have the matter of damages submitted to another jury.” ITT Hartford Ins. Co. of the Southeast v. Owens, 816 So.2d 572, 576 (Fla.2002). As explained by our Supreme Court: “The statute clearly provides for a new trial in the event the party adversely affected by the remittitur or additur does not agree with the remittitur or additur. In other words, the complaining party need not accept the decision of the judge with respect to remittitur or additur. The party may have the matter of damages submitted to another jury. Id. at 576-77 (emphasis in original).

Spencer filed a motion stating that she disagreed with the trial court’s adverse decision as to additur and remittitur, and requesting a new trial on damages “as statutorily mandated by and pursuant to § 768.74(4), Fla. Stat.” Having requested a new trial on damages, the trial court erred in not granting Spencer’s motion. Therefore, we reverse the final judgment, and remand for a new trial on damages.

REVERSED and REMANDED.

PLEUS, C.J., and GRIFFIN, J., concur.

      . Section 768.74(4), Florida Statutes, does not provide a timeline for filing an objection to an order of additur or remittitur, and case law provides no guidance on the issue. Spencer filed her motion within thirty (30) days of the court's orders and final judgment. Because appellees failed to raise a timeliness argument in the trial court or in their brief, any such argument has been waived. See Williams v. Salem Free Will Baptist Church, 784 So.2d 1232 (Fla. 1st DCA 2001)(noting that a procedural error not timely raised in the trial court is waived unless the party asserting the error can demonstrate that such a waiver would be a denial of due process).


author: ALTENBERND, Judge.

text:
    George T. DRAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3988.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    George T. Drayton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

George T. Drayton appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court summarily denied five of Mr. Drayton’s claims and denied the remaining four claims after an evidentiary hearing. We affirm without further comment the denial of grounds one through seven and ground nine. We reverse, however, the portion of the circuit court’s order that summarily denied ground eight of the motion, and we remand for further proceedings on this claim.

Mr. Drayton was convicted of burglary, home invasion robbery, and two counts of sexual battery. He was sentenced to life imprisonment. From our limited record, it appears that the State charged that Mr. Drayton invaded the home of the victim, robbed her, and sexually assaulted her. Mr. Drayton was apprehended near the scene of the crime shortly after it occurred because his appearance was similar to the victim’s description of the perpetrator. Initially, the victim was unable to conclusively identify Mr. Drayton through the use of a photopack. Thereafter, though, she saw the same photo of Mr. Drayton that was used in the photopack in a newspaper next to a story about the crime. She then felt sure that Mr. Drayton was the person who attacked her. Our record suggests there was no forensic evidence at the crime scene to assist in identifying Mr. Drayton as the person who committed the crime. From the context of Mr. Drayton’s arguments, however, it seems he may have had some of the victim’s property when he was apprehended.

The victim indicated to police that she had bitten the perpetrator during her struggle with him. In ground eight of his postconviction motion, Mr. Drayton alleged that his counsel was ineffective in failing to investigate and present evidence at trial establishing that he did not have any bite mark injury when he was apprehended. Mr. Drayton specifically asserted that law enforcement took pictures of him, and the pictures would have shown that he did not have a bite mark where the victim alleged she bit the perpetrator. Mr. Drayton argued that this evidence would have called into further question the victim’s identification of him, such that the result of the trial would have been different.

The State filed a written response to Mr. Drayton’s motion in which it asserted that this claim was conclusively refuted by the record. According to the State, the pictures would not have helped Mr. Dray-ton because they would have revealed that he had scratch marks and other markings that would have proved that he had been involved in a struggle. To support this argument, the State attached one page of the transcript of a deposition. In the deposition, the deponent was asked, “Do we have some pictures of this cut, bite mark thing on the suspect?” The deponent responded:

[The victim] told me that she bit the suspect. I had a phone conversation with [the] acting [s]ergeant.... I asked him to look for that. He said he had some scrapes and stuff but he couldn’t confirm it was a bite mark. I believe I told him to have that photographed and I was under the impression that it was done.

In summarily denying this postconviction claim, the circuit court repeated the State’s argument and attached the same single deposition page.

The single page attached to the order denying this claim does not conclusively refute Mr. Drayton’s claim that counsel was ineffective for failing to present evidence that he did not match the description of the perpetrator because he had no bite mark injury. The deposition does not support the State’s assertion that the scratches were themselves evidence of an altercation or that Mr. Drayton’s trial counsel made a reasoned decision that this evidence would be more harmful than helpful. Further, the rest of our limited record does not conclusively refute this allegation of deficient performance or the assertion that the lack of this evidence prejudiced Mr. Drayton. We therefore reverse the summary denial of this claim and remand for further proceedings. If the circuit court again summarily denies Mr. Drayton's claim, it must attach those portions of the record that conclusively refute the claim. See Fla. R.Crim. P. 3.850(d).

Reversed and remanded.

SALCINES and SILBERMAN, JJ„ Concur.


author: ROTHENBERG, Judge. ROTHENBERG, Judge.

text:
    M.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1357.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Opinion Denying Rehearing and Rehearing En Banc Sept. 1, 2006.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

M.H., a juvenile, appeals from the trial court’s order finding him guilty, withholding adjudication, and placing him on probation for criminal mischief following an adjudicatory hearing. We affirm.

June Peterson, the owner of the motor scooter in question, testified that after riding her scooter on July 29, 2004, she chained it to a tree outside her home. Officer Johns of the Miami-Dade Police Department testified that on that same evening at approximately 7:25 p.m., while on patrol, he heard a loud muffler and observed the appellant riding the scooter with a passenger seated behind him. The scooter had no license tag. Officer Johns activated his lights and siren and attempted to stop the scooter. While both the appellant and his passenger turned and looked at the officer, the appellant refused to stop and attempted to elude the officer by driving through an opening in a fence too small for the officer’s vehicle to drive through. During this maneuver, the appellant hit a parking space bumper and the scooter flipped over, resulting in significant damage to the scooter. The appellant and his passenger who fled on foot, were subsequently apprehended. Ms. Peterson testified that the scooter the appellant was riding belonged to her, and that it was in perfect condition when she chained it to the tree. She stated that when she identified it the next day, it was totaled. The battery had fallen out, the odometer was broken, the ignition was damaged, the wires “were hanging,” and it could not be driven.

The appellant was charged with and convicted of criminal mischief in violation of section 806.13(l)(a), Florida Statutes (2004), which provides that:

A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another....

In the appellant’s brief, the appellant’s attorney argued that criminal mischief is a specific intent crime because the statute requires the State to prove a willful and malicious intent to injure or damage the property. As there was insufficient evidence to support a finding that the appellant specifically intended to damage the scooter, the appellant’s attorney argued that the trial court erred in denying the appellant’s motion for judgment of acquittal. We disagree. Criminal mischief is not a specific intent crime, it does not require proof of a specific intent to injure or damage the property, and at oral argument the appellant’s attorney, to her credit, recognized that criminal mischief is not a specific intent crime and properly conceded that it is not.

The jury instructions specifically provide that:

“Willfully” means intentionally, knowingly, and purposely.
“Maliciously” means wrongfully, intentionally, without legal justification or excuse and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Fla. Std. Jury Instr. (Crim.) 12.4 (emphasis added).

We begin with the premise that our legislature is fully cognizant of the general intent/specific intent dichotomy, and when it intends to create a specific intent crime, it explicitly does so. For example, burglary is the “[e]ntering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein-” § 810.02(l)(b), Fla. Stat. (2004)(emphasis added). It is a specific intent crime because it requires that the “entering or remaining in” be with the intent to commit a crime. It is this specific intent which distinguishes burglary from a simple trespass, which requires no such intent. Likewise, the crime of possession of burglary tools is a specific intent crime, as it provides that “[wjhoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree ....”§ 810.06, Fla. Stat. (2004)(emphasis added). What makes possession of burglary tools a specific intent crime is the requirement that the person not simply have these tools in his/her possession, but that he/she actually intends to use them to commit a burglary or trespass. Specific intent is also what separates a first degree premeditated murder from second degree murder. First degree premeditated murder requires a premeditated intent to kill, whereas second degree murder requires an intentional act done from ill will, hatred, spite or an evil intent without a specific intent to kill. § 782.04(2), Fla. Stat. (2004).

Criminal mischief is similar to the general intent crime of second degree murder, in that it requires an act that is willful (intentional) and wrongful (with evil intent and the knowledge that injury or damage will or may be caused). If the legislature had intended to create a specific intent crime, it would have done so by specifying that the crime is committed if the person “willfully and maliciously does an act with the intent to injure or damage by any means any real or personal, property belonging to another.... ” It, however, did not include any specific intent language.

The District of Columbia Court of Appeals, in Carter v. United States, 531 A.2d 956 (D.C.1987), addressed the accuracy and completeness of a jury instruction for malicious destruction of property, a crime similar to our criminal mischief, and in doing so, specifically found that the malicious destruction of property does not require specific intent.

The case law makes clear, however, that malice is not synonymous with, and does not require, a specific intent to injure or destroy the property.... All that is required is a conscious disregard of a known and substantial risk of the harm which the statute is intended to prevent. [T]he only intent required to be proven is the intent to do the act which results in the injury-in other words, a general intent.

Carter, 531 A.2d at 962.

While malice does not require a specific intent to damage the property, malice cannot be presumed based upon a finding of property damage. Therefore, one must look to the circumstances surrounding the conduct which caused the damage, to determine whether the element of malice was present. J.R.S. v. State, 569 So.2d 1323, 1325 (Fla. 1st DCA 1990). For example, the Fourth District reversed a defendant’s conviction for criminal mischief in Gonedes v. State, 574 So.2d 1198 (Fla. 4th DCA 1991), based upon a finding that the act which caused the damage was an accidental act, rather than one committed wantonly or maliciously. The uncon-troverted evidence was that the defendant drove through a set of glass doors and into a church when he accidentally accelerated forward, believing he was in reverse. Since Gonedes did not intend to commit the act (driving forward) which caused the damage, the element of malice was not proven. Gonedes, 574 So.2d at 1199; see also K.G. v. State, 330 So.2d 519 (Fla. 1st DCA 1976)(reversing conviction for vandalism based upon trial court’s finding that the window in question was broken accidentally).

Likewise, the doctrine of transferred intent cannot sustain a conviction for criminal mischief. Thus, “[t]he intent to damage the property of another does not arise by operation of law where the actor’s true intention is to cause harm to the person of another.... [T]he criminal mischief statute requires that the offender act against the property of another willfully and with malice....” In re J.G., 655 So.2d 1284, 1285 (Fla. 4th DCA 1995)(em-phasis added); see also Sanchez v. State, 909 So.2d 981, 985 (Fla. 5th DCA 2005)(finding that where defendant, with ill will and malice toward a store clerk attempted to rob him, and in the process damaged the clerk’s telephone, there was insufficient evidence that the ill will or malice was in any way redirected from the clerk to the telephone); Insignares v. State, 847 So.2d 1063 (Fla. 3d DCA 2003)(reversing conviction for criminal mischief based upon insufficient intent to damage the property of another; holding that “ ‘[t]he intent to damage the property of another does not arise by operation of law where the actor’s true intention is to cause harm to the person of another’ ”)(quoting In re J.G., 655 So.2d at 1285).

In the instant case, the appellant’s act of driving the scooter through an opening in a fence in order to elude the police was an intentional act, not an accident, as was the case in Gonedes, J.R.S., and K.G. This is also not a case of transferred intent, as in In re J.G., Sanchez, and Insignares. The appellant’s actions were willful and intentional, and were directed toward the scooter, not the owner of the scooter or any other person or property. While there is no evidence of a specific intent to injure or destroy the property, no such specific intent is required. Because we find, as did the jury, that there is sufficient record evidence to establish that the appellant willfully (intentionally, knowingly, and purposely), and maliciously (wrongfully, intentionally, without legal justification or excuse) committed an act (drove the scooter through a narrow opening in a fence in an attempt to elude the police), with the knowledge that injury or damage will or may be caused, we conclude that there was sufficient evidence presented to sustain the appellant’s conviction for criminal mischief.

Affirmed.

On Motion for Rehearing

ROTHENBERG, Judge.

The appellant, M.H. moves for rehearing pursuant to Rule 9.330, Florida Rules of Appellate Procedure. Although this court denies the motion for rehearing, we write briefly to clarify our ruling. In Insignares v. State, 847 So.2d 1063 (Fla. 3d DCA 2003) and Valdes v. State, 510 So.2d 631 (Fla. 3d DCA 1987), this court found that the defendant lacked the requisite intent to support a conviction for criminal mischief because his intent was to cause harm to the person of another. The crime of criminal mischief was never intended to apply where the malice or ill will is directed towards the person. Thus, we held in Insignares and Valdes, because the malice was directed towards the person, rather than the property, the doctrine of transferred intent could not be relied upon to sustain a conviction for criminal mischief. We, therefore, clarify that the holdings in Insignares and Valdes were intended to apply only to those cases in which the prosecution of criminal mischief is depen-dant upon the doctrine of transferred intent, and where the willful act and malice are directed towards the person, which we concluded cannot sustain a conviction for criminal mischief. To the extent that either Insignares or Valdes may be interpreted to suggest that criminal mischief is a specific intent crime, we emphatically hold that it is not.


author: FARMER, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gerald A. ST. GODARD and Rachael St. Godard, Appellees.
    No. 4D05-366.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied Sept. 8, 2006.

      Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellant.
    Barbara J. Compiani and Jane Kreus-ler-Walsh of Jane Kreusler-Walsh, P.A., and Christopher M. Larmoyeux of Lar-moyeux & Bone, P.L., West Palm Beach, for appellees.
   FARMER, J.

This appeal stems from a trial judge’s decision not to limit a judgment on an uninsured motorist’s (UM) claim to the policy limits. Because there was no basis pleaded or litigated in this case for damages greater than the UM coverage afforded by the insurer, we reverse.

Before suit was filed, the attorney for the insureds wrote their motor vehicle insurance carrier, requesting the information specified in section 627.4137. State Farm responded on a letterhead with the legend “State Farm Insurance Companies,” [e.s.] stating a claim number, identifying the insured as Gerry A. St. Godard, and stating a date of loss. The body of the letter said:

In response to your request, please find insurance information regarding policy number 6182-373-59F for the above date of loss.
1. The name of the insurer:
State Farm Mutual Automobile Insurance Company
2. The name of each insured: Gerry A. St. Godard
Rachael St. Godard
3. Available coverage is as follows:
* Bodily Injury Liability: 100,-000/300,000
* Property Damage Liability: 50,-000
* Personal Injury Coverage: P10/No deductible
* Medical Payment Coverage: 5,000
* Comprehensive: $500 Deductible
* Collision: $500 Deductible
* Emergency Road Service
* Rental Coverage: R1 80%/500
* Uninsured Motorist — Non Stacking: 100,000/300,000
4. Policy or coverage defenses known to the Company at this time: None at this time
5. Umbrella or excess insurance known to the Company at this time: State Farm Fire & Casualty Policy * 79CE1564 Limits: $1,000,000

Relying on paragraph 5, the insureds argue that damages under UM policy number 6182-373-59F greater than $100,000 were available because of the reference to umbrella or excess policy number 79CE1564 mentioned in the above response. They also argue that they were asserting a bad faith claim against their UM insurer that was not premature. We set out the history of this case to demonstrate the basis for our disagreement with these arguments.

The insureds filed suit against State Farm Mutual Automobile Insurance Company (State Farm) and alleged in paragraph 5 of their Complaint the following:

At all times material hereto, there was in full force and effect a policy of automobile insurance issued by the Defendant, State Farm Mutual Automobile Insurance Company, which extended uninsured motorist coverage to the Plaintiffs. The policy is identified as number 6182-373-59F. A copy of said policy is attached hereto as Exhibit A.

The Complaint also alleged that an insured suffered an automobile accident caused by an uninsured driver in which he incurred injuries and damages and that he had complied with all conditions precedent to UM coverage. Their pleading closed with a prayer for “judgment for damages” against defendant State Farm Mutual Automobile Insurance Company under the UM coverage afforded by policy number 6182-373-59F.

Thus the only claim alleged in the Complaint against their UM insurer was the husband’s claim for UM benefits arising from the accident in which they alleged that the driver was uninsured or underin-sured, together with his wife’s derivative claim for loss of consortium. The insureds made no allegation or prayer for relief in which they sought damages greater than the UM coverage provided in the insurance contract on which they based their suit. They included no claim against State Farm sounding in bad faith in their action. They sought damages only within the UM coverage provided in policy number 6182-373-59F. Their Complaint never mentioned or sought damages under the umbrella or excess policy, number 79CE1564. Similarly, they failed to name and join State Farm Fire and Casualty as a party defendant in this action.

In its Answer to the Complaint, State Farm Mutual Automobile Insurance alleged in paragraph 5 the following:

Defendant admits that at all times material hereto, there was in full force and effect a policy of automobile insurance issued by said Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, which extended uninsured motorist coverage to the Plaintiffs and that said policy of insurance was policy number 6182-373-59F. Defendants attorney does not have a policy of insurance attached to his copy of the Complaint and does not know if it was attached to the original served upon STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Defendant would further state that said policy of insurance speaks for itself, and Plaintiffs’ claims, if any, are subject to all the terms, provisions, conditions, definitions, exclusions, and limitations of said insurance policy.

Further, State Farm alleged in paragraph 11 that the UM coverage applied only to any difference “between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under the policy alleged." [e.s.] In paragraph 14, State Farm again alleged that plaintiffs’ claims under the UM policy were:

subject to the limits of uninsured and/or underinsured motorist coverage provided in the policy of the Defendant issued to the named insureds/Plaintiffs, and this Defendant’s liability, if any, is entirely dependent and contingent upon the provisions and conditions set forth in the aforementioned policy, [e.s.]

In the same pleading, however, State Farm denied that the insured’s injury or condition had been actually caused by the accident; denied that even if it were caused by the accident the driver was uninsured or underinsured; and denied the insureds’ allegation of compliance with all policy conditions precedent to UM damages from State Farm. The insureds did not file a Reply to the Answer seeking to avoid the UM policy limits.

As a result of these pleadings, coverage under the UM policy up to its stated limits of $100,000 was an admitted fact. From the presuit declaration by State Farm under oath in response to the inquiry of these insureds, the amount of the limits on the UM coverage provided by policy number 6182-373-59F was known to both parties, and neither one had placed this amount in issue by the pleadings. Instead the disputed facts for trial were whether the insured’s injury or condition resulted from the accident, the amount of the damages attributable to the accident, the extent and amount of any covered damages uninsured or underinsured, and whether insureds had complied with the policy’s UM conditions. There was no basis for either party to offer evidence at trial as to the limits of UM coverage.

The case was tried to a jury which returned a verdict finding damages resulting from the accident in the combined amount of $269,105 (which included $25,000 on the consortium claim). Seven days after the verdict, State Farm filed a motion for a remittitur to reduce damages to the UM limits in the policy — namely $100,000. Among other things, the motion said: “Further the contractual limits for the insurance policy that was in effect, again as evidenced by the Affidavit ..., was one hundred thousand dollars ($100,000).” In apparent anticipation that the insureds might argue that State Farm was guilty of bad faith in its handling of the UM claim in suit and that such bad faith would authorize a judgment in excess of UM policy limits, State Farm’s motion asserted that the insureds had failed to give any notice of an intent to claim bad faith damages, as required by statute. State Farm also filed a companion motion for a new trial on various grounds. On the day after these motions were filed, the court entered judgment on the jury verdict without reducing the amount to UM policy limits. Three days later, the court entered an order directing the insureds to file a response to the motion for remittitur within 15 days and, at the same time, a separate order denying State Farm’s motion for a new trial.

Within ten days after the entry of judgment, State Farm filed a post-judgment motion to amend the judgment to UM policy limits. This post-judgment motion repeated the arguments made in its earlier post-verdict motion to limit damages to policy limits. In a later response to the motion for remittitur, the insureds argued that damages greater than the UM policy limits of $100,000 were available because of the excess policy mentioned in the presuit letter from State Farm and because of a bad faith claim that was not premature. Two days after the response by the insureds, the court entered an order denying the motion for remittitur but said nothing about State Farm’s post-judgment motion to amend the final judgment.

Although State Farm later filed a motion for rehearing of the order on its motion for remittitur and other motions related to a stay pending review and su-persedeas, the court took no action on State Farm’s post-judgment motion to amend judgment until nearly three months later, when it finally entered an order denying the motion “as moot.” State Farm timely filed this appeal within 30 days after this last order. We have jurisdiction and reject the insureds’ arguments to the contrary, as well as the companion argument that State Farm has not preserved the issue, without further comment.

The issue is whether there was any basis for a judgment in this case against State Farm Mutual Automobile Insurance in excess of the UM policy limits of $100,000. Two strong principles inform our decision. First, estoppel may not be used affirmatively against an insurer to create or extend coverage otherwise lacking in the policy. Doe v. Allstate Ins. Co., 653 So.2d 371, 374 (Fla.1995); AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989); Crown Life Ins. Co. v. McBride, 517 So.2d 660, 661 (Fla.1987); Six L’s Packing Co. v. Fla. Farm Bureau Mut. Ins. Co., 268 So.2d 560, 563 (Fla. 4th DCA 1972), adopted, 276 So.2d 37 (Fla.1973). Second, as a necessary corollary to the first, in the absence of a judicial finding of bad faith, in an action against an insurer for damages under a policy of insurance, a final judgment against the insurer cannot exceed the stated policy limits. Allstate Ins. Co. v. Sutton, 707 So.2d 760, 761 (Fla. 2d DCA 1998); Gov’t Employees Ins. Co. v. Robinson, 581 So.2d 230, 231 (Fla. 3d DCA 1991); Dixie Ins. Co. v. Lewis, 484 So.2d 89, 89 (Fla. 2d DCA 1986); Allstate Ins. Co. v. Shilling, 374 So.2d 611, 614 (Fla. 4th DCA 1979); Quinn v. Millard, 358 So.2d 1378, 1381 (Fla. 3d DCA 1978), abrogated on other grounds by Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla.1996); Soler v. Kukula, 297 So.2d 600, 601 (Fla. 3d DCA 1974); State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1073 (Fla. 4th DCA 2001); Stella v. Craine, 281 So.2d 584, 585 (Fla. 4th DCA 1973).

We reject out of hand the insureds’ argument that their attempt to initiate a bad faith claim after the verdict would justify a judgment in this action for UM benefits, greater than the UM policy limits. The pleading on which they founded this action, the Complaint, manifestly contained only a claim for UM benefits under policy number 6182-373-59F. They did not include a bad faith claim; they did not seek damages greater than the UM policy limits. They tried their claim solely as a claim for UM benefits. There is simply no theory under which the UM judgment they sought in this action could be read to justify a judgment for bad faith damages as well.

The insureds base their argument on the contention that they did not know what the limits of their UM policy were, and that they thought that their umbrella/excess policy increased the UM limits beyond $100,000. They contend that the wording of State Farm’s presuit response to their inquiry for UM policy information could reasonably be understood to incorporate the excess coverage in the State Farm Fire and Casualty policy number 79CE1564 into the UM coverage provided by State Farm Mutual Automobile Insurance policy number 6182-373-59F. We reject these arguments.

As with almost all writings, context is critical. Here the insureds’ lawyer requested the information under section 627.4137 to facilitate the filing of a lawsuit against State Farm for UM damages. State Farm’s response follows the format in the statute. The response identifies a policy by name and number, policy number 6182-373-59F; states the amounts of all coverages under policy 6182-373-59F, specifically naming UM coverage, among others; identifies the named insureds; and disclaims knowing of any coverage defense. It then states that State Farm Fire & Casualty has provided a policy of umbrella or excess insurance to the insureds, giving policy number 79CE1564. It adds that the excess or umbrella policy has limits of “$1,000,000” but plainly omits any indication that the excess or umbrella policy includes additional UM coverage. The response says nothing more than that. From this context, there is no more reason to read the umbrella/excess coverage limits into the UM coverage in this response than there would be to read it into the bodily injury liability, the property damage liability, the medical payment coverage, the comprehensive coverage, or the rental coverage—each of which was also identified in the response.

As to their contention that they did not know the limits of the UM policy, these insureds were parties to the UM policy issued by State Farm Mutual, as well as the excess or umbrella policy issued by State Farm Fire and Casualty. As parties to these contracts of insurance, themselves, they are charged with knowledge of the contents and are bound by the terms. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347-48 (Fla.1977) (“It has long been held in Florida that one is bound by his contract. Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.” [c.o.]). If the insureds wanted to confirm what coverage was actually afforded by the umbrella/excess policy, they could have made a request to State Farm Fire and Casualty under section 627.4137 for such information and a copy of the policy. In any case, it is impossible under the two principles discussed above to read the response to suggest that the excess/umbrella coverage afforded by a separate affiliate in a separate policy has been incorporated into the UM policy sued upon.

Similarly there is no basis for their contention that State Farm’s attempts to adduce evidence by affidavit after the verdict as to the amount of the UM policy is somehow improper or insufficient. As we have just seen, as parties to the contract, they could not be heard to claim a lack of knowledge as to the limits of their own UM coverage. And anyway, they actually had knowledge of such limits from State Farm’s presuit response to the letter on their behalf under section 627.4137. Having brought suit for damages under the contract of UM insurance, they were in no position to base any issue in their lawsuit on a contention that the limits of UM coverage were unknown to them and in dispute.

And even assuming it were somehow necessary for State Farm to offer evidence as to the amount of the UM policy limits, there is nothing improper or insufficient about its post verdict affidavit. See Stella v. Craine, 281 So.2d 584, 585-86 (Fla. 4th DCA 1973) (holding that where insured did not disagree as to policy limits, and certified copy of liability policy was produced for examination by court and counsel before trial court entered amended final judgment reducing insurer’s liability to amount of policy limits, trial court did not err in amending the final judgment without following cross claim procedure which is required when there is a controversy as to the policy limits); Dixie Ins. Co. v. Lewis, 484 So.2d 89 (Fla. 2d DCA 1986) (holding that final judgment in favor of insured and against insurer was required to be modified so as to limit insurer’s liability to amount of policy limits, which had been revealed to insured in pretrial discovery, no disagreement existed as to policy limits, and insurer filed proper motion for modification of judgment accompanied by supporting affidavit); Allstate Ins. Co. v. Shilling, 374 So.2d 611, 614 (Fla. 4th DCA 1979) (holding that when no dispute exists as to policy limits or available coverage and such limits are made known to all parties during pre-trial discovery, trial court should upon proper verification grant insurer’s motion to limit judgment); see also State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1071 (Fla. 4th DCA 2001) (saying that rule precluding judgment against insurer greater than policy limits has been applied in cases where policy limits were revealed and agreed to in the record in some form, usually during discovery).

On remand, the judgment shall be reduced to UM policy limits of $100,000.

Reversed.

GUNTHER, J., and DONNER, AMY STEELE, Associate Judge, concur.

      . See § 627.4137, Fla. Stat. (2005) (providing that upon written request liability insurer shall furnish to any claimant a statement under oath for each policy of insurance including: (a) name of insurer; (b) name of each insured; (c) limits of liability coverage; (d) whether the insurer believes that any coverage defense is available; (e) copy of policy; and any known excess or umbrella insurance). In this case, the named insureds were themselves making their own claim under their UM coverage.

      . Plaintiffs' counsel argues an inference that the letter indicates a response from a State Farm affiliate (State Farm Fire & Casually) different from the one that actually issued the uninsured motorist coverage in question. As the emphasized word Companies demonstrates, however, the letterhead is obviously intended to be used by or on behalf of any State Farm affiliate.

      . The letter was sworn to and subscribed before a notary public.

      . Gerard St. Godard claimed damages arising directly from a covered accident, and Rachael St. Godard claimed damages from loss of consortium.

      . See § 624.155(3), Fla. Stat. (2005) (condition precedent to bringing statutory action for bad faith is 60-day written notice of violation). But see Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla.2000) (insured claiming an insurer’s bad faith failure to settle UM claim may send statutory notice of alleged violation before a determination of liability or damages); Rubio v. State Farm Fire & Cas. Co., 662 So.2d 956, 957 (Fla. 3d DCA 1995) (before enactment of section 624.155, no common law cause of action for first party bad faith, but insured could allege independent tort such as fraud or intentional infliction of emotional distress).


author: DONNER, AMY STEELE, Associate Judge.

text:
    M. Phillip CARNES and Ann T. Carnes, Appellants, v. T.D. FENDER, Appellee.
    No. 4D04-3100.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied Sept. 8, 2006.

      • Brenda J. Carter, Fort Lauderdale, and Jack Scarola of Searcy Denney Scarola Barnhart & Shipley, West Palm Beach, for appellants.
    Michael J. Napoleone and Gerald F. Richman of Richman Greer Weil Brum-baugh Mirabito & Christensen, P.A., West Palm Beach, for appellee.
   DONNER, AMY STEELE, Associate Judge.

Appellants, M. Phillip Carnes and Ann T. Carnes (“the Carneses”), appeal the decision of the trial court granting summary judgment in favor of Appellee, T.D. Fender (“Fender”), on the allegations of fraudulent conveyance, piercing the corporate veil, and continuation of business. Both the Carneses and Fender have requested attorney’s fees. We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A).

We review the trial court’s grant of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Because material issues of fact remain, we find that summary judgment should not have been granted. Accordingly, we reverse and remand.

I. FACTS AND PROCEDURAL POSTURE

The events precipitating the underlying suit on appeal have previously been reviewed by this Court. See Great Harbour Cay Realty & Inv. Co. v. Carnes, 862 So.2d 63 (Fla. 4th DCA 2003). The first suit was based on the Carneses’ claim against Great Harbour Cay Realty & Investment Company (“Great Harbour”) for non-payment under an employment contract. The Carneses ultimately prevailed with a jury verdict awarding $3 million in damages. Following entry of this verdict, Great Har-bour filed for bankruptcy protection. This Court reversed the judgment entered in the prior action. Id. at 65.

As a result of the Carneses’ inability to collect on the damages award, the instant suit was filed against Fender, personally, based on theories of fraudulent conveyance, piercing the corporate veil of Great Harbour, and continuation of business/alter ego. Each of these claims attempts to show that Fender, as “sole shareholder and decision maker of [Great Harbour],” was responsible for depleting Great Har-bour’s assets such that the Carneses could not receive payment on the judgment. In the firaudulent conveyance claim, the Carneses allege that Fender transferred assets owned by Great Harbour after the July 1992 financial report of Ernst and Young listed the value of the company to be approximately $30 million. Mr. Carnes was terminated in September 1992. In their claim to pierce the corporate veil, the Carneses allege that Fender co-mingled his personal assets and other corporations’ assets and used Great Harbour’s corporate identity as a sham to defraud investors. Similarly, in their claim under a continuation of business theory, the Carneses claim that Fender continued to conduct the business of Great Harbour under other corporate names. All of these claims are based on fraud.

Fender moved for summary judgment, claiming the Carneses failed to produce evidence (1) that a crown grant was issued in 1992; (2) that any assets were fraudulently transferred; (3) showing that Great Harbour continued business under a different name; and (4) showing the requisite fraud required to justify piercing the corporate veil. In support of his motion, Fender provided personal affidavits, deposition transcripts, and official documents related to the crown grant. In opposition, the Carneses filed the transcript of the previous trial, Mr. Carnes’ affidavit, the deposition transcripts of Mr. and Mrs. Carnes, a March 1992 cash flow spreadsheet, and the July 31, 1992 financial report by Ernst and Young. The trial court granted summary judgment, finding that the Carneses had presented no evidence to prove any of their claims.

II. MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is not available where material issues of fact remain. See Fla. R. Civ. P. 1.510(c); Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 506 (Fla.1982). In determining whether to grant a motion for summary judgment, all facts must be taken in the light most favorable to the non-moving party. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Factual questions presented by the evidence should be determined by a jury where the evidence conflicts, permits different inferences, or tends to prove the issues. Id. “An inference is a permissible deduction from the evidence which the jury may reject or accord such probative value as it desires, and it is descriptive of the factual conclusion that a jury may draw from sufficient circumstantial evidence.” Little v. Publix Supermarkets, Inc., 234 So.2d 132, 133-34 (Fla. 4th DCA 1970) (citation omitted). In determining whether issues of fact precluding summary judgment remain, the facts must be taken “in the light most favorable to the non-moving party.” Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000).

The party moving for summary judgment has the initial burden of demonstrating the nonexistence of material issues of fact. Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So.2d 207, 208 (Fla. 4th DCA 1993). Only after “the mov-ant has tendered competent evidence in support of its motion does the burden shift and fall on the other party to come forward with opposing evidence to show that a question of material fact exists.” Id.; Hamilton v. Bank of Palm Beach & Trust Co., 348 So.2d 1190, 1191 (Fla. 4th DCA 1977). To avoid summary judgment, a litigant does not have to provide clear and convincing evidence that issues of material fact exist. Collins v. Brigman, 428 So.2d 373, 374 (Fla. 5th DCA 1983). For purposes of a motion for summary judgment, “it should be assumed that every fact as to which the party moved against has any appreciable evidence may at a trial be established to the satisfaction of a jury.” Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956) (emphasis added).

III. FRAUDULENT CONVEYANCE

Summary judgment is rarely utilized in fraudulent conveyance cases. See Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 153 (Fla. 4th DCA 1994). Here, material issues of fact remain regarding the Carneses’ claim of fraudulent conveyance, precluding summary judgment. During the hearing on the motion for summary judgment, Fender presented sufficient evidence to shift the burden to the Carneses. Fender relied on Mr. Carnes’ deposition to show that Mr. Carnes stated that the crown grant was not intended to be received by Great Harbour, that the grant was not worth $30 million in July 1992, and that Mr. Carnes did not know of any assets that were transferred from Great Harbour to another company. However, the Carneses presented certain purported admissions of Fender to show that issues of material fact remain. According to the evidence in the record, Mr. Carnes claimed that Fender informed him that Great Harbour was the parent company through which the business would be conducted. Great Harbour would also control all related assets either directly or through wholly owned subsidiaries. Additionally, Mr. Carnes asserts that Fender told him Great Harbour was worth $30 million. Ernst and Young, in its July 1992 statement, declared the same $30 million value. Such evidence is sufficient to constitute the scintilla of appreciable evidence required to defeat a motion for summary judgment. The evidence presented by Fender conflicted with that presented by the Carnes-es. Therefore, the trial court erred in granting summary judgment on the allegation that Fender fraudulently transferred assets.

IV. GREAT HARBOUR AS A “SHAM CORPORATION” AND CONTINUING BUSINESS UNDER AN ALTER EGO THEORY: EVIDENCE PRESENTED WAS SUFFICIENT TO WITHSTAND SUMMARY JUDGMENT

In Riley v. Fatt, 47 So.2d 769, 773 (Fla.1950), the Florida Supreme Court stated that “the corporate veil will not be pierced, either at law or in equity, unless it be shown that the corporation was organized or used to mislead creditors or to perpetrate a fraud upon them.” Fender contends that the Carneses are unable to satisfy these elements. Specifically, Fender presented evidence that Mr. Carnes was responsible for establishing Great Harbour and the associated corporation, Great Har-bour Development. Fender also contended that the Carneses could not establish that they were defrauded because the crown grant was not intended for Great Harbour or obtained prior to their employment termination. Finally, Fender asserted that he did not co-mingle his personal funds with that of the corporations. Mr. Carnes’ affidavit contradicts these assertions in several ways. Mr. Carnes claims that Fender admitted transferring assets amongst the corporations without regard to their separate legal status and fabricating promissory notes from Great Harbour.

The following reasonable inferences can be drawn from the conflicting evidence: (1) the transfers took place prior to the Carneses’ termination or (2) the transfers took place afterward in order to defraud the Carneses. Either inference is sufficient to preclude summary judgment. See Reeves v. N. Broward Hosp. Dist., 821 So.2d 319 (Fla. 4th DCA 2002); Byrd v. Leach, 226 So.2d 866, 868 (Fla. 4th DCA 1969). Therefore, summary judgment was inappropriate on the issue of the Carneses’ ability to pierce the corporate veil and the continuation of business theory.

V. APPELLATE ATTORNEYS FEES

Fender requests appellate attorney’s fees based on his offers for settlement in the amount of $1,000.00. The settlement offers additionally required voluntary dismissal and execution of a general release. As the proposal for settlement lacked the specificity required, Fender’s request for attorney’s fees is denied. See Fla. R. Civ. P. 1.442(c)(2)(D); Swartsel v. Publix Super Markets, Inc., 882 So.2d 449, 453 (Fla. 4th DCA 2004).

Likewise, the Carneses’ request for fees is denied. Their request is based on the premise that Fender is inappropriately requesting fees because the settlement offers were invalid. See § 57.105, Fla. Stat. (2005). However, a party cannot receive fees for the time spent litigating fees. Mediplex Constr. of Fla., Inc. v. Schaub, 856 So.2d 13 (Fla. 4th DCA 2003). Therefore, the Carneses’ request for appellate fees is denied.

Reversed and Remanded.

GUNTHER and FARMER, JJ., concur.

      . Mr. Carnes entered into an employment agreement with Great Harbour, which provided certain severance pay provisions. Mr. and Mrs. Carnes were terminated by Great Harbour for failure to timely obtain a crown grant in order to transfer land from the Bahamian Government. In that suit, Fender claimed the corporation was worth nothing, contrary to documentation indicating that, prior to the Carneses' termination, the corporation was worth approximately $30 million.


author: SHAHOOD, J.

text:
    Todd NADRICH, Appellant, v. Renee NADRICH, Appellee.
    Nos. 4D03-2749, 4D04-28.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Rehearing Denied Sept. 6, 2006.

      Hal Vogel, Aventura, for appellant.
    Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellee.
   SHAHOOD, J.

Appellant, Todd Nadrich, appeals the Final Judgment of Dissolution of Marriage entered in the trial court. Two appeals were filed and consolidated. This opinion addresses the issues raised in the consolidated appeals in ease numbers 4D03-2749 and 4D04-28. We affirm in part, reverse in part and remand for proceedings consistent with this opinion.

Appellant, Todd Nadrich (husband), and appellee, Renee Nadrich (wife), were married for ten years when they separated and thirteen years at the time of the entry of the final judgment. The husband was thirty-nine years old; the wife was forty-six years old. They have two sons, Zachary, born on December 5, 1993, and Robert, born June 24, 1992.

The wife filed a Petition for Dissolution and the husband answered and filed a counter-petition for dissolution. The parties entered into a Partial Mediation Settlement Agreement concerning custody and visitation. Pursuant to the agreement, the children would reside with the mother, with the father having substantial timesharing (forty-six percent).

The parties jointly hired CPA John Bush (Bush). At a temporary relief hearing, the general master relied upon Bush’s summaries and projections, over the husband’s objections, and entered a report recommending an award to the wife of $4,000 per month for spousal support, $930 per month in child support, and $45,000 in temporary attorney’s and accounting fees. This order was the subject of a non-final appeal to this court by the husband and resulted in a per curiam affirmance. See Nadrich v. Nadrich, 861 So.2d 1167 (Fla. 4th DCA 2003).

After a three-day final hearing, the trial court adopted the wife’s proposed eighty-two-page final judgment. The husband was found to be delinquent in his payment of temporary support in the amount of $43,004; therefore, the court ordered him to pay the outstanding balance to the wife. The husband was also ordered to pay the wife’s attorney’s fees in the amount of $72,427, not only because of his ability to pay, but also because they were the direct result of his refusal to comply with various court orders, and the accountant’s fees in the amount of $20,000. The final judgment makes it clear, through specific examples, that throughout the course of this litigation, the husband willfully refused to comply with court orders, absconded with marital assets, failed to fully disclose his financial status, and otherwise deliberately thwarted the court’s and the wife’s efforts to discover information and bring this matter to a close. In total, the court ordered the husband to pay the wife a lump sum amount of $185,190.10, which represented delinquent support, attorney’s fees, various costs to experts, and reimbursement for marital assets he depleted.

The first issue we address is whether the evidence supports the trial court’s awards of alimony, child support, life insurance, and attorney’s fees, and whether evidence of the wife’s income sources was improperly excluded.

In the final judgment, the court found that, based on the evidence presented at the final hearing, the husband had the ability to pay the purge amount set forth in a prior order. The court based this finding on not only the fact that the husband continued to borrow money from his parents, but also the facts that (1) the husband’s father still had $50,000 from an account that belonged to the husband; (2) the husband never disclosed what happened to the $222,564 in funds from a Bahamian corporation, TOJO, or the $51,409 in funds from a company called TIFU; and (3) based on the husband’s financial affidavit, he “obviously has income and/or assets that he is not reporting to the Court and thus has the ability to comply with the purge provision.” As a result, the court found that the husband had the ability to pay all support obligations and other financial obligations, including alimony, child support, support arrearages, attorney’s fees, costs, and equitable distribution.

Under the circumstances and in light of the husband’s failure to comply with many discovery orders to disclose his financial information, the court had no choice but to impute some amount of income to the husband beyond what his pay stubs showed. It was clear to the court that the husband had additional sources of income based on his lifestyle. This finding was supported by Bush’s testimony that the husband’s spending patterns and income from offshore accounts most likely amounted to an additional $40,000 per year. Bush compared the husband’s expenditures with the increase in his debt and found that his credit card debt did not increase at a rate which equated with the increased spending. Bush agreed that there was no corresponding documentation of the unexplained cash flow. For a four-month period that Bush gave as an example, the husband had unexplained income of $9,622 and no documentation to suggest that his debt increased by that amount.

In Bromson v. Department of Revenue, 710 So.2d 154, 155 (Fla. 4th DCA 1998), a similar situation occurred. The husband was self employed and claimed he earned a certain amount, which was much lower than his living expenses reflected. Id. at 155. He did not substantiate his additional income. Nevertheless, the court attributed a higher income to him than he claimed. This court affirmed, explaining that this was not a situation in which the court imputed income to an underemployed party, but rather, merely made a factual determination as to the husband’s actual income. Id. at 155. That is precisely what was done in this case, and no specific findings are required. Id. at 155. Because the record contains substantial competent evidence to support the trial court’s finding that the husband had annual income in the amount of $115,000, we affirm as to this issue.

Next, the husband contends that, even assuming the income figure was accurate, he is left with little or nothing to live on each month after deductions are taken for alimony ($4,000), child support ($900.69), the equitable distribution equalizer ($4,000), the obligations for fees, costs, and back support ($185,190). An annual income of $115,000 would yield a monthly gross income of $9,583. Monthly obligations imposed on the husband total $8,900. Thus, it is clear that even with his gross income, the husband would be unable to pay the obligations he is required to pay and his own living expenses. Add in taxes and, as the husband argues, he is working at a deficit. We reverse and remand for reconsideration and re-calculation of the support awards, arrearages, attorney’s fees and costs, taking into account the husband’s income and living requirements.

The next issue we address is whether the husband was entitled to a child support adjustment because of his forty-six percent overnights timesharing.

Section 61.30(ll)(b), Florida Statutes (2001), states that, “[wjhenever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support” accordingly. Contrary to the wife’s argument here and at trial, this court has held that the adjustment is mandatory, not discretionary. See Harwood v. Ying Li, 909 So.2d 396 (Fla. 4th DCA 2005); Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003)(holding that the trial court was required to adjust the child support obligation under section 61.30(11)(b)); Santia go v. Santiago, 830 So.2d 922, 923 (Fla. 4th DCA 2002)(holdlng that the language of the statute is mandatory and finding an abuse of discretion where the trial court failed to reduce the former husband’s child support award even though he did not request it); see also Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003)(holding that section 61.30(ll)(b) also applies to modification proceedings where initially agreed upon guidelines child support did not take into account a parent’s substantial time sharing with the minor child); Keeley v. Keeley, 899 So.2d 387 (Fla. 2d DCA 2005) (holding that the statutory adjustment is mandatory).

The wife acknowledges that “[t]here is no dispute that the Husband’s visitation met the 40% threshold requirement under § 61.30(ll)(b)10, Florida Statutes.” Thus, reversal and remand is required for the court to adjust the husband’s child support obligation accordingly.

The husband also contends that, in violation of Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla.2004), it was error for the trial court to adopt, verbatim, the wife’s proposed final judgment. The wife responds that Perlow is distinguishable from this case because, here, both parties were represented by attorneys and both consented to the procedure of simultaneously submitting proposed orders to the court. Moreover, the wife contends that the fact that the trial judge omitted one paragraph from her proposed judgment, as well as the fact that he entered his ruling thirty-three days after trial and nine days after the submission of the proposed orders, indicates that he independently considered the facts and issues. Compare Perlow, 875 So.2d at 389 (trial court entered final order two hours after submission of proposed orders).

In addition, as held in Perlow, “[a] judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.” 875 So.2d at 388. This was the procedure followed by the trial court in this case, as opposed to the procedure followed in Perlow where the trial judge “actively discouraged the husband from filing a proposed final judgment.” See Perlow, 875 So.2d at 388.

We accordingly affirm as to this issue and all other issues raised by appellant.

Affirmed in part; Reversed in part and Remanded for proceedings consistent with this opinion.

KLEIN, J., and GERBER, JONATHAN D., Associate Judge, concur.