author: CORTINAS, Judge.

text:
    WATERHOUSE CONSTRUCTION GROUP, INC., Ofer Zosman, individually, Carlos DeLeon, individually, and Adrian Triana, individually, Appellants, v. 5891 SW 64TH STREET, LLC., and Thomas Hoffman, individually, Appellees.
    No. 3D06-1452.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing Denied March 27, 2007.

      Diane S. Perera and James C. Kellner, for appellants.
    Gustavo Gutierrez, Coconut Grove; Seth Loft; Kimberly L. Boldt, for appellees.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

This is an appeal from the portion of an order denying the defendants’, Water-house Construction Group, Inc. (“Water-house”), Ofer Zosman (“Zosman”), Carlos DeLeon (“DeLeon”), and Adrian Triana (“Triana”) (collectively “defendants”), motion to dismiss or motion to stay litigation pending arbitration and motion to compel arbitration of plaintiffs’ claims and defendants’ counterclaims. We reverse.

5891 SW 64th Street, LLC (“Street”), owned the property which is the subject of this litigation. Thomas Hoffman (“Hoffman”), a real estate developer, and Street (collectively “plaintiffs”) agreed to develop the subject property. Subsequently, in April 2004, Street and Hoffman entered into a joint venture agreement (the “JY Agreement”) with defendants Zosman and DeLeon to build various homes on the subject property. The JV Agreement specified that defendant Waterhouse would act as the general contractor in the development project. Notably, defendants Zos-man and DeLeon are both officers and directors of Waterhouse, and defendant Triana is an agent of Waterhouse. Several months after the parties entered into the JV Agreement, Street entered into a construction contract (the “Construction Contract”) with Waterhouse for the construction of a single family residence on the subject property.

In January 2006, the plaintiffs filed a complaint against Zosman, DeLeon, and Triana for alleged breaches of the JV Agreement. Count I of the complaint alleged that Zosman and DeLeon failed to provide an accounting and diverted joint venture funds by entering into side agreements. Count V of the complaint alleged that Zosman, DeLeon, and Triana violated section 772.108, Florida Statutes, by engaging in a pattern of fraudulent racketeering activity, including forging two Release/Waiver of Liens (“RICO - claims”). The remaining counts of the complaint included damages against Waterhouse for numerous breaches of the Construction Contract with Street; however, at a subsequent hearing on the defendants’ motions to stay litigation and compel arbitration, the plaintiffs voluntarily dismissed all of their claims against Waterhouse. Therefore, the remaining counts of the plaintiffs’ complaint are Count I for breach of the JV Agreement and Count V for the RICO claims.

Defendants Waterhouse, Zosman, and DeLeon filed counterclaims against the plaintiffs for breaches of the Construction Contract and the JV Agreement. Additionally, based on paragraph 15.8 of the Construction Contract, Waterhouse simultaneously moved to stay the litigation and compel arbitration of its counterclaims. Similarly, based on paragraph 21(f) of the JV Agreement, Zosman and DeLeon moved to stay the litigation and compel arbitration of the plaintiffs’ remaining claims and their individual counterclaims.

Thereafter, the trial court held a hearing on the defendants’ motions to compel arbitration. The trial court denied the defendants’ motions as to the plaintiffs’ claims and also denied the motions as to the defendants’ counterclaims for breach of the Construction Contract and the JV Agreement. The defendants now appeal the trial court’s denial of their request to stay litigation and compel arbitration.

We review an order denying a motion to compel arbitration de novo. Briceno v. Sprint Spectrum, L.P., 911 So.2d 176, 179 (Fla. 3d DCA 2005) (citing Tropical Ford, Inc. v. Major, 882 So.2d 476, 478 (Fla. 5th DCA 2004)). There are “three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co., L.P. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). At issue in this case are the last two elements of the analysis set forth in Seifert.

However, in this case we are also confronted with the issue of whether Zosman, DeLeon, and Triana can compel Hoffman and Street to arbitrate the RICO claims. We must address this issue first because if we determine that a party may not be compelled to arbitrate, the issues of whether the plaintiffs’ claims are arbitrable and whether the defendants have waived the right to arbitrate need not be reached.

A. Whether a Non-Signatory Can Compel a Signatory to Arbitrate

Florida courts have clearly recognized that a non-signatory may compel a signatory to arbitration when the non-signatories received rights and assumed obligations under the agreement. Koechli v. BIP Intern., Inc., 870 So.2d 940, 946 (Fla. 1st DCA 2004) (where non-signatories who received rights and obligations under a contract were permitted to compel signatories to arbitration, despite the express language in the contract that only “parties hereto” were subject to arbitration); see also Tenet Healthcare Corp. v. Maharaj, 787 So.2d 241 (Fla. 4th DCA 2001); Ocwen Fin. Corp. v. Holman, 769 So.2d 481 (Fla. 4th DCA 2000). In Turner Construction Co. v. Advanced Roofing, Inc., 904 So.2d 466 (Fla. 3d DCA 2005), we recognized the principle set forth in Koechli, Tenet, and Ocwen, and concluded that, in addition to receiving rights and assuming obligations under the agreement, the non-signatory party must also be an agent, officer, or director of a signatory. Turner, 904 So.2d at 470 (citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)).

Because there are two agreements at issue, which involve five parties, we begin by setting forth all the claims and all the parties that can potentially arbitrate each claim before we begin the analysis set forth in Seifert. We conclude that all the defendants may compel the plaintiffs to arbitration. Zosman and De-Leon may compel Hoffman and Street to arbitrate their counterclaims for breach of the JV Agreement because all parties to the counterclaims are also signatories to the JV Agreement. Similarly, Water-house’s counterclaims are clearly arbitra-ble as the parties to those counterclaims, Waterhouse and Street, are also signatories to the Construction Contract. We also find that Zosman, DeLeon, and Triana can rely on the arbitration provisions in either the Construction Contract or the JV Agreement to compel Hoffman and Street to arbitrate the RICO claims against them. As noted above, the parties to the Construction Contract are Waterhouse and Street, and the parties to the JV Agreement are Zosman, DeLeon, Hoffman, and Street. Pursuant to the Construction Contract, Waterhouse had a duty to furnish Street with the Release/Waiver of Liens at issue, in order to receive the necessary funds to continue construction. Moreover, the JV Agreement created a duty on Waterhouse, Zosman, and DeLeon to provide documentation directly relating to the Release/Waiver of Liens. It is evident from the record that Zosman, De-Leon, and Triana also assumed the obligation of executing these duties under both agreements by preparing and submitting these documents to the plaintiffs. Moreover, as required by Turner, Zosman, DeLeon, and Triana were all officers, directors, or agents of Waterhouse.

B. Whether an Arbitrable Issue Exists

Next, we must determine whether counts I and Y are arbitrable claims. We disagree with the trial court that the plaintiffs’ remaining claims are not arbitra-ble. It is well-settled that “arbitration is a favored means of dispute resolution.... ” Ronbeck Constr. Co., Inc. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992) (quoting Roe v. Amica Mut. Ins. Co., 533 So.2d 279, 281 (Fla.1988)). This court has consistently acknowledged the important public policy in favor of arbitration. See, e.g., Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So.2d 660, 662 (Fla. 3d DCA 2001); Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995); State Farm Fire & Cas. Co. v. Middleton, 648 So.2d 1200, 1201-02 (Fla. 3d DCA 1995); Lapidus v. Arlen Beach Condo. Ass’n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981). Thus, we start our analysis by noting that “[a]ll questions concerning scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it.” Zager, 785 So.2d at 662 (citing Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So.2d 969, 971 (Fla. 5th DCA 1995)).

Here, the JV Agreement stipulates that “the parties agree to an arbitration process, to try to resolve any [and] all disputes.” We construe the terms “any [and] all disputes” to include count I of the plaintiffs complaint for alleged breaches of the JV Agreement and count V for the alleged RICO claims. Moreover, the Construction Contract similarly states that “[a]ll claims or disputes ... shall be decided by arbitration.” We construe these terms to include count V of the complaint for the alleged RICO claims. See Royal Caribbean, 664 So.2d at 1108-09 (where this court construed the terms “[a]ny controversy or claim arising out of or relating to this agreement ...” in the arbitration provision of an employment contract to include all of the plaintiffs fraud, defamation, and business interference claims against the defendant); Ronbeck, 592 So.2d at 346-47 (where the Fourth District construed the terms “all claims or disputes arising out of this contract ...” in the arbitration provision to include all of the plaintiffs fraud, conversion, conspiracy, and civil theft claims against the defendant).

Notably, the plaintiffs’ reliance on Sei-fert is misplaced. Seifert, 750 So.2d at 636. In Seifert, a contract between the Seiferts and U.S. Home explicitly referred only to the purchase and sale of a new home, specifically addressing purchase price, payment schedule, closing costs, and deposits. Id. at 641. The Florida Supreme Court found that Mrs. Seifert’s wrongful death claim for an allegedly defective air conditioning system that distributed carbon monoxide emissions from the garage into the home was not covered by the arbitration clause in the Seifert’s contract. The court stated that in order for a claim to be submitted to arbitration, the resolution of the claim must require “reference to or construction of some portion of the contract itself,” and there must be “some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638-39 (citations omitted). Seifert recognized that Mrs. Seifert’s tort claim related to duties wholly independent of the agreement by U.S. Home to construct the home. See also Sears Authorized Termite & Pest Control, Inc. v. Sullivan, 816 So.2d 603, 605 (Fla.2002) (where the Florida Supreme Court distinguished the non-arbi-trable wrongful death claim in Seifert from the arbitrable personal injury claims in a pest control customer agreement).

This case is clearly distinct from Seifert for three reasons. First, it is evident from the terms of the arbitration provision in the JV Agreement and the Construction Contract that the parties intended that the arbitration provisions encompass all of the disputes directly relating to the performance of the agreements. Second, contrary to the plaintiffs’ argument, the issue of whether Zosman, DeLeon, and Triana violated RICO by forging Release/Waiver of Liens requires a reference to or construction of that portion of the Construction Contract and the JV Agreement regarding Waterhouse, Zosman, and DeLeon’s duties of preparing and submitting the documents at issue. See Sears, 816 So.2d at 605 (where resolution of the plaintiffs personal injury claim required a reference to or construction of a portion of the contract, and the disagreement related to the performance or breach of a requirement within the contract). Additionally, it is clear that plaintiffs’ claim for breach of the JV Agreement arise from the alleged breach of Zosman and DeLeon’s duties under the JV Agreement. Third, unlike the wrongful death claim in Seifert, there is undoubtedly a substantial nexus between the plaintiffs’ claim that Zosman, DeLeon, and Triana forged construction documents and the very essence of the Construction Contract and the JV Agreement, which was to build and develop the subject property. Consequently, because counts I and V are predicated on events directly relating to the performance of both agreements at issue, we find them to be arbitrable.

C. Whether the Right to Arbitration was Waived

We disagree with the trial court that the defendants waived the right to arbitration by simultaneously filing counterclaims and motions to stay litigation and compel arbitration. A party may waive its contractual right to arbitrate by actively participating in a lawsuit or taking action inconsistent with that right. Carnival Corp. v. Booth, 946 So.2d 1112 (Fla. 3d DCA 2006) (citing Lapidus, 394 So.2d at 1103 (finding that the defendant waived his right to arbitration by filing a motion for summary judgment)). However, in Concrete Design Structures, Inc. v. P.L. Dodge Foundation, Inc., 532 So.2d 1334, 1334-35 (Fla. 3d DCA 1988), this court held that filing a counterclaim and motion to dismiss simultaneously with a motion to compel arbitration, without more, does not waive the contractual right to arbitrate. Cf. Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So.2d 69 (Fla. 3d DCA 1987) (finding that the act of implementing discovery, following the simultaneous filings of a counterclaim and motions to arbitrate, waived the right to arbitration). As in Concrete, here, the defendants filed counterclaims simultaneously with requests to stay proceedings and compel arbitration, and have not taken any other actions to pursue judicial resolution of this case. Cf. Hough v. JKP Dev., Inc., 654 So.2d 1241, 1242 (Fla. 3d DCA 1995) (finding that contractor waived its arbitration rights by filing a complaint without simultaneously requesting a stay and an order compelling arbitration); Bon ner v. RCC Assocs., Inc., 679 So.2d 794, 795 (Fla. 3d DCA 1996) (finding that the contractor waived its arbitration rights by filing a complaint and seeking judicial resolution of the dispute, without simultaneously requesting a stay and an order compelling arbitration). Thus, we conclude that the defendants did not waive their contractual arbitration rights by simultaneously filing counterclaims and motions to stay litigation and compel arbitration.

Conclusion

We find that in the instant case (1) all of the defendants may compel the plaintiffs to arbitration, (2) all of the plaintiffs’ and defendants’ claims are arbitrable, and (3) the defendants did not waive their contractual arbitration rights by simultaneously filing counterclaims with requests to stay litigation and compel arbitration.

For the foregoing reasons, we reverse the portion of the trial court’s order denying arbitration and the cause is remanded to the trial court with directions to grant the defendants’ motions to stay litigation and compel arbitration.

Reversed and remanded.

      .The arbitration provision in the Construction Contract states in relevant part, "[a]U claims or disputes between the Contractor and the Owner arising out of or relating to the Contract Documents or the breach thereof, shall be decided by arbitration.... Except by written consent of the person or entity sought to be joined, no arbitration ... shall include ... any person or entity not a party to the Agreement ... unless it is shown that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief is to be accorded in the arbitration....”

      . The arbitration provision in the JV Agreement states "[t]he Parties to agreement agree that in the case of litigation, the parties agree to an arbitration process, to try to resolve any [and] all disputes.”

      . Based on this court’s decision in Zager Plumbing, Inc. v. JPI National Construction, Inc., 785 So.2d 660, 662 (Fla. 3d DCA 2001), the trial court properly granted Waterhouse’s motion to stay litigation pending arbitration solely for its counter-claim to foreclose on the construction lien on the subject property.

      . The appellees argue that the arbitration provision in the JV Agreement is ambiguous and, therefore, cannot be used to compel the parties to binding arbitration. We find that a plain reading of the terms of the provision demonstrate that the parties intended to provide for arbitration.

      . The plaintiffs allege, under count I of the complaint for breach of the JV Agreement, that Waterhouse, Zosman, and DeLeon breached the JV agreement by fraudulently executing the Release/Waiver of Liens.

      . Clearly, the defendants’ breach of contract counterclaims are arbitrable as they arise directly from the respective contracts.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    MIAMI-DADE COUNTY, Petitioner, v. Manuel FENTE and Maria E. Fente, his wife, Respondents.
    No. 3D06-2111.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing Denied March 21, 2007.

      Murray A. Greenberg, Miami-Dade County Attorney and Craig E. Leen, Assistant County Attorney, for petitioner.
    Robert Rossano, Miami, for respondents.
    Before WELLS, and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

In this petition for writ of certiorari, Miami-Dade County seeks to quash an order denying its motion to dismiss Manuel and Maria Fente’s negligence action on sovereign immunity grounds. See Dept. of Health & Rehab. Servs. v. Miller, 413 So.2d 96, 96 (Fla. 1st DCA 1982) (confirming that interlocutory orders determining application of the doctrine of sovereign immunity are, where appropriate, subject to certiorari to review). We grant the petition.

According to the Fentes’ amended complaint, at approximately 1:32 p.m. on October 21, 2004, the burglar alarm system at their home was triggered while they were away. The alarm was reported to the Miami-Dade police department by a private monitoring company, and a police officer was dispatched. The officer arrived at the Fentes’ home at 1:39 p.m., only seven minutes after the alarm was triggered, but failed to notice that a glass door at the rear of the house had been broken and that an exterior alarm box had been tampered with. Although the monitoring company reported that it detected motion inside the home until 1:47 p.m., eight minutes after the officer arrived, the officer “cleared” the scene, placing a “false alarm” tag on the front door, and left, allegedly with the burglar (or burglars) still inside.

The Fentes’ single count complaint seeks damages from the County stemming from the burglary claiming that the County “by and through the actions of its officer, is guilty of misfeasance in carrying out the operational duty owed to the Plaintiffs in following the pre-existing County burglary response policy in a reasonable fashion ... commensurate with the duty that would be owed by a private person to the Plaintiffs under the same circumstances.” According to the Fentes, the officer’s negligent investigation: (1) “created a broader zone of risk” to both them and their son, who arrived home from school after the burglars had left, and to their property, by affording the burglars “unlimited access” to their home; and (2) directly and proximately caused their loss of personal property valued at $150,000 and damage to the interior of their home.

The County moved to dismiss claiming that it owed no duty of care to the Fentes and that it was immune from suit under the doctrine of sovereign immunity. The motion was denied.

“Generally speaking, the state and its subdivisions, including municipalities and counties, are sovereignly immune from tort liability unless such immunity is expressly waived by statute.” Seguine v. City of Miami, 627 So.2d 14, 16 (Fla. 3d DCA 1993); Art. X, § 13, Fla. Const. That immunity has been waived in section 768.28 of the Florida Statutes, which expressly authorizes tort actions caused by the negligent act or omission of government employees “under circumstances in which the [government entity], if a private person, would be liable to the claimant, in accordance with the general laws of this state....” § 768.28, Fla. Stat. (2006); Seguine, 627 So.2d at 16.

There are, however, two recognized exceptions to this waiver of tort immunity: the public duty doctrine exception and the discretionary function exception. See Seguine, 627 So.2d at 16. Where either exception applies, the governmental entity remains immune from tort liability. Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (confirming that a court must “find no liability as a matter of law if either (a) no duty of care existed [under the public duty doctrine exception], or (b) the doctrine of governmental immunity [the discretionary function exception] bars the claim”); Seguine, 627 So.2d at 17. In this case, both exceptions apply.

The Public Duty Doctrine Exception

The public duty doctrine exception to the statutory waiver of sovereign immunity recognizes that “there can be no governmental liability unless a common law or statutory duty of care exist[s] that would have been applicable to an individual under similar circumstances.” Kaisner, 543 So.2d at 734; see Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928, 932 (Fla.2004). A plaintiff suing a governmental entity in tort must, therefore, allege and prove that the governmental entity owed a duty of care to the plaintiff individually rather than to the public in general. Seguine, 627 So.2d at 17. Responding to reports of and investigating criminal activity are duties that law enforcement (or a governmental entity) owes to the public as a whole, not to individuals. See Trianon Park Condo. Ass’n v. Hialeah, 468 So.2d 912, 919 (Fla.1985) (confirming that there has never been a common law duty of care with respect to enforcement of laws and protection of the public safety). As the Florida Supreme Court has confirmed, “[t]he responsibility to enforce the laws for the good of the public cannot engender a duty to act with care toward any one individual, unless an official assumes a special duty with regard to that person.” Pollock, 882 So.2d at 935.

A special tort duty with regard to an individual does not arise absent actions by a law enforcement officer which directly places an individual within a “zone of risk.” As the Florida Supreme Court noted in Pollock, “[t]he premise underlying this theory is that a police officer’s decision to assume control over a particular situation or individual or group of individuals is accompanied by a corresponding duty to exercise reasonable care.” Id. Thus, for example, a motorist detained by the police is owed a common law duty of care by the officers who deprived that individual of the opportunity of protecting himself. Kaisner, 543 So.2d at 734 (finding that “[s]o long as petitioner was placed in some sort of ‘custody’ or detention, he is owed a common law duty of care”); see Sams v. Oelrich, 717 So.2d 1044, 1047 (Fla. 1st DCA 1998) (officers who took a prisoner in their custody to a hospital emergency room owed a special duty of care to others in the hospital who were injured by the prisoner when he attempted to escape). Similarly, a police officer who asserts control over an accident scene or event owes a duty of care to those individuals exposed to harm as a consequence. See, e.g., Dep’t of Highway Safety & Motor Vehicles v. Kropff, 491 So.2d 1252, 1255-56 (Fla. 3d DCA 1986) (officer who takes control of an accident scene owes a special duty of care to those injured as a consequence of the officer’s negligent control of the scene); see also Brown v. Miami-Dade County, 837 So.2d 414, 418 (Fla. 3d DCA 2001) (officer owed a duty to a startled bystander injured when the officer pointed a gun at the bystander and ordered him to “freeze” during a sting operation in a hotel).

The negligent failure to detect, deter, or prevent criminal activity will not, however, subject a governmental entity to liability for injuries which follow such neglect. See Seguine, 627 So.2d at 17 (stating that “a governmental entity cannot be held liable for an allegedly negligent failure to arrest a person who subsequently injures another”). This is so because “the courts have primarily taken the view that the fundamental police function in enforcing the criminal law would be unduly hampered if law enforcement decisions were generally subject to after-the-fact judicial review through private tort litigation; also, the courts have been concerned in this area with protecting governmental entities against the excessive fiscal impact which would necessarily ensue if police decisions of this nature were generally subject to tort liability.” Id. Thus, in Everton v. Willard, 468 So.2d 936, 938 (Fla.1985), the court found no special duty (and thus no liability) owing to the victim of a head on collision caused by an obviously drunk driver who had been stopped by a police officer but allowed to go on his way after a traffic citation was issued. Similarly, in Smith v. City of Plantation, 19 F.Supp.2d 1323, 1332 (S.D.Fla.1998), the court found that the police owed no special duty to an individual who called for help when her former boyfriend arrived at her home with gasoline, a lighter and a machete; took her children hostage; and threatened to kill her and her children, stating “[a]bsent a special relationship [to the person who called for help], Florida law does not place liability on an officer who in the course of performing his job attempts but fails to rescue a person from a danger caused by a third party.”

In this case, the officer neither took control of an individual nor of a situation or an event so as to place any individual within a “zone of risk.” Rather, he allegedly failed in his duty to detect and to deter criminal activity, a duty which he owed to the public at large and to no single individual. See City of Pinellas Park v. Brown, 604 So.2d 1222, 1227 n. 8 (citing Everton, and finding that “[a]ny danger a suspect poses to the public solely on his or her own cannot be imputed to the police who earlier have failed to make an arrest”). And here, unlike the circumstances in Henderson v. Bowden, 737 So.2d 532, 537 (Fla.1999), on which the court below relied in denying the motion to dismiss, the officer did nothing to create a danger that, but for his actions, “would not have otherwise existed.”

Because the public duty exception to section 768.28 applies to this case, the motion to dismiss should have been granted.

Discretionary Duty

Although we need not address the discretionary duty exception, see Pollock, 882 So.2d at 932 (finding that “[i]f no duty of care is owed with respect to the alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached”), we note that the Fentes’ argument that the officer’s failure to comply with the County’s burglary response procedures will not support a claim against the County. In Trianon, the Florida Supreme Court considered whether the City of Hialeah could be held responsible for roof damage to condominium units caused by roof leakage and building defects where the city’s building inspectors failed to properly enforce the city’s building code. To that end, the condominium association argued that once the city decided to inspect the building pursuant to its building code, the act of performing the inspection was an operational level activity rather than a discretionary one, which subjected the city to tort liability under section 768.28, Florida Statutes. Trianon, 468 So.2d at 915. The Florida Supreme Court disagreed, noting that “[h]ow a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care.” Id. at 919. Quite simply, the Trianon court rejected the same planning-operational argument raised by the Fentes here. See also Everton, 468 So.2d at 938 (confirming that a police officer exercises “discretionary judgmental power” when deciding whether to make an arrest and enforce the law).

Accordingly, we grant the County’s petition for writ of certiorari, quash the order denying the motion to dismiss, and remand for entry of an order granting the motion to dismiss with prejudice.

      . In Henderson, an officer, after effectuating a DUI arrest, directed a passenger who also was drunk to drive to a designated location thereby creating a “zone of risk” for others in the car. Henderson, 737 So.2d at 536.


author: PER CURIAM.

text:
    Roger Wayne McKINSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5407.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2007.
    Roger Wayne McKinsey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Dennis W. TURNER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3090.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.
    Dennis W. Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Anthony Miller, Acting General Counsel, and Chris Korn, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Dennis W. Turner seeks review of the circuit court’s denial of his petition for writ of mandamus and of the denial of his motion to vacate the lien placed on his inmate trust account. The mandamus petition challenged respondent’s gain-time forfeiture after Mr. Turner’s probation was revoked. We deny his petition for writ of certiorari, insofar as it challenges the denial of the petition for writ of mandamus filed in circuit court. See Eldridge v. Moore, 760 So.2d 888, 890-91 (Fla.2000); Singletary v. Jones, 681 So.2d 836, 837 (Fla. 1st DCA 1996).

As the State concedes, however, the trial court erred in denying the motion to vacate the lien placed on his inmate trust account insofar as the motion seeks reimbursement. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003). The Florida Supreme Court explained that the purpose of the enactment of section 57.085, Florida Statutes, was “to discourage the filing 'of frivolous civil lawsuits, but not to prevent the filing of claims contesting the computation of criminal sentences.” Schmidt, 878 So.2d at 366. The court below refused to vacate the lien on two grounds: the court found that the issue was moot because the lien had been paid in full; and the court found that reliance on Schmidt was misplaced because the mandamus petition involved gain-time lost, not as a result of a disciplinary proceeding, but as a result of revocation of Mr. Turner’s probation. Schmidt does not distinguish, however, between gain-time lost as a result of a disciplinary proceeding and gain-time forfeited for other reasons.

The court in Schmidt made it clear that what makes the proceeding a collateral challenge in which no lien is authorized is the effect the challenged action has on the petitioner’s sentence.

It is clear that the Supreme Court has refused to be bound by the variations in terminology used in the various challenges to the computation of an inmate’s sentence. Instead, it has looked to the effect the challenged action had on the amount of time an inmate has to actually spend in prison.... [T]hus, we conclude that a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the same — the inmate’s time in prison is directly affected.

Id. at 367 (emphasis supplied). Gain-time forfeiture lengthens the time in prison regardless of the reason for the forfeiture. Thus, the rule in Schmidt applies when gain-time is forfeited, regardless of the reason for the forfeiture, and the court erred in refusing to cancel the lien and order reimbursement.

If a lien is erroneously placed on an inmate’s account, the inmate is entitled to removal of the lien and reimbursement of the funds that were withdrawn from the account to satisfy the lien. See, e.g., Marquez v. McDonough, 945 So.2d 652, 653 (Fla. 1st DCA 2007). Until and unless the funds are reimbursed, the matter is not moot. Accordingly, the petition for writ of certiorari is granted “insofar as it seeks relief from the unauthorized lien.” Id. We vacate the order placing a lien on Mr. Turner’s inmate account, and we “remand for entry of an order directing the reimbursement of those funds withdrawn from his account pursuant to the lien.” Id.

The petition for writ of certiorari is otherwise denied.

DAVIS, BENTON, and ROBERTS, JJ., concur.


text:
    Michael CAJUSTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2551.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Rehearing Denied March 27, 2007.
    Michael Cajuste, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Pope v. State, 702 So.2d 221 (Fla.1997).


text:
    Marilyn R. SELL, Appellant, v. Louis F. SELL, Appellee.
    No. 3D-06-994.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Rudolph & Leacock and Howard Rudolph and David Leacock, West Palm Beach; Sheri Smallwood, Key West, for appellant.

      Louis F. Sell, Lake Placid, in proper person.
    Before WELLS, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Former-wife, Marilyn R. Sell, appeals from a post-decretal order denying payment of attorneys’ fees from the proceeds of the sale of the marital home. We agree with the former-wife that all of the awards made to her, including those for attorneys’ fees and costs, should be paid from these proceeds and reverse for entry of such an award.

The parties were married on December 31, 1995, after living together for almost fifteen years. At the time of the marriage, the former-husband, a 62 year old retired dentist, owned a parcel of real property located in the Florida Keys, on which the former-husband had built a home in which the parties lived. The former-husband also had cash and securities in his name alone valued at over $400,000. The former-wife, a former schoolteacher, was 52 years old at the time of the marriage and had approximately $20,000 in assets. Although neither party was employed during their long relationship, the former-husband received $2,200 per month and an additional $38,000 lump sum payment a year as the sole beneficiary of the Milton Sell Trust.

On the day the parties were married, they executed a pre-nuptial agreement prepared, without the benefit of counsel, by the former-husband. That agreement provided that in the event of a divorce, the former wife would receive $50,000 and one half of any net savings accumulated during the marriage from earned income.

In mid-1996, the former-husband was diagnosed with prostate cancer. A little over a year later, he added the former-wife’s name to several accounts previously held in his name alone. He also deeded the home in which the parties lived to himself and the former-wife.

In August 2001, the former-wife left the marital home taking approximately $19,500 in jointly owned funds with her and filed for a divorce. The former-husband transferred the remainder of the funds then in joint accounts, approximately $377,000, to accounts in his name alone.

On December 15, 2003, after what the trial court described as “heated litigation” by the parties, a final judgment of dissolution of marriage was entered. That judgment confirmed the validity of the prenuptial agreement and also concluded that the former-husband intended to gift an interest in the marital home to the former-wife when he added her name to the title of that property. The parties were ordered to sell this asset.

On February 6, 2004, the final judgment was clarified to expressly confirm that in addition to one half of the proceeds from the sale of the marital home, the former-wife was entitled to one-half of:

• a $100,000 certificate of deposit which the husband had gifted to the former-wife dining the marriage;
• a $277,000 treasury direct account which the husband had gifted to the former-wife during the marriage; and
• $39,000 that the parties divided at separation.

The former-husband was ordered to pay these amounts, less a small set-off to reimburse him for a portion of the funds taken by the former-wife when she left the marital home, “forthwith and without further delay.” He was also ordered to pay a $12,000 temporary alimony arrearage (with interest thereon) at the rate of $1200 per month and $50,000 in attorneys’ fees, the latter to be paid from the former-husband’s “share of the monies and property equitably distributed to him.”

Other than paying the former-wife $50,000 as required by the pre-nuptial agreement, the former-husband complied with no portion of this judgment. Insisting that he was obligated to pay the former-wife only the $50,000 required by the pre-nuptial agreement that he had drafted, he used all of the cash assets in the marital estate on himself and his attorneys and undertook a course of conduct guaranteed to impoverish the former-wife and render the final judgment meaningless.

He appealed from the final judgment and then repeatedly refused to comply with orders obligating him to pay temporary support and appellate attorneys’ fees to the former-wife. The trial court, finding that former-husband had more than $79,000 in cash and an additional $38,000 in the Milton Sell Trust, which he, as sole trustee, could disburse to himself, concluded that the former-husband had acted in “bad faith,” choosing to “use every subterfuge and device to attempt to evade his obligations ... to the prejudice of the Former Wife.” He was found “in willful, contumacious and voluntary contempt” and incarcerated. He immediately filed a petition for writ of habeas corpus in this court seeking release. The petition was denied.

The former-husband then filed an emergency motion for release from jail in the trial court claiming that he had no dental floss, that he was receiving generic rather than name brand drugs, and that he was seriously ill and receiving inadequate medical care. That motion was also denied with the trial court recognizing that it was an unfounded waste of money:

1. ... I find [the former-husband’s] motion to be without merit and unsupported by any reasonable view of the evidence. Moreover, it presents no genuine emergency.
2. This Court has previously found that the Husband has the ability to comply with the Orders entered herein.... The Court confirms its earlier conclusion that the Husband has the keys to the jail in his pocket....
3. The Husband’s complaints regarding the treatment he is allegedly receiving or not receiving at the jail, and the impact he contends is being caused to him by the same, are not borne out by the evidence and testimony. By his own admission, however reluctantly and begrudgingly made, the jail’s medical personnel are attending to his medical needs. He has been and is being seen by the institution’s doctor and medical staff as necessary. He is being given medicines which the doctor has determined are appropriate and adequate for any conditions he may have. His blood pressure is being monitored. He is provided with hygienic items.
8. Whatever sums the Husband expended in support of his so-called Emergency Motion were totally unnecessary and, in the Court’s view, wasted. Nevertheless, the Wife was forced to respond to his Motion and necessarily incurred attorney’s fees and costs in doing so. The Husband should and will be held responsible for the consequences of his actions.

On April 16, 2004, the former-wife advised the trial court that she had no money and no assets with which to support herself or to continue the never ending legal battle. Because the former-husband had refused to cooperate in any manner in listing the marital home for sale or in providing access to appraisers or prospective purchasers, she asked the court to transfer the home to her so that it could be sold. This motion and another motion seeking to hold the former-husband in contempt were set for hearing on July 21, 2004. The former-wife and her attorneys appeared, at substantial expense, for this hearing. The former-husband did not. Instead, he sent facsimile notification of a bankruptcy proceeding which he had initiated, pro se, four days earlier, in which he sought to nullify the awards made to the former-wife. All state court proceedings were stayed.

Long without funds or assets that could be used for support or to pay attorneys fees, the former-wife petitioned for and obtained relief from the bankruptcy stay so that she could obtain a state court order authorizing sale of the marital home. However, at this point, for the first time, the former husband asserted that the home could not be sold as it was his homestead. The court below adopted that position and refused to order sale of the home finding such action barred by Article X, section 4 of the Florida Constitution. This court vacated that part of the trial court’s order prohibiting the sale of the home.

The home was not, however, sold as ordered because, as was his habit, the former-husband refused to cooperate. He refused to allow access to appraisers, real estate agents, or potential purchasers, and had to be ordered to vacate the premises. He did not, of course, vacate but instead had to be forcibly removed by a SWAT team following a five hour stand-off. He further hindered the sale by refusing to respond to correspondence and telephone calls and by making himself scarce; he refused to execute documents necessary to close the sale. A commissioner had to be appointed to execute the closing documents in his stead.

The trial court found the former-husband in “willful violation” of its orders directing the sale of the marital residence and concluded that the former-husband had “increased costs, fees, and expenses to the Former Wife ... without good or valid reason.” As a consequence, the court below reserved jurisdiction to award fees and costs to the former-wife from “any property, funds, or assets belonging to him, including but not limited to his share of the sale proceeds [from the marital home].”

In late-summer of 2005, the bankruptcy court rejected the former-husband’s attempt to discharge the awards made to the former-wife in the final judgment of dissolution of marriage. The bankruptcy stay was lifted and the final judgment of dissolution of marriage was affirmed by this court. By this time, the former-husband had spent all of the funds in the two accounts that were to be equitably distributed in equal shares between the parties and which on February 6, 2004, he had been ordered to pay to her “forthwith.” Consequently, the former-wife sought an equitable lien against the former-husband’s share of the funds from sale of the marital home to secure payment of the balance of her distribution award. She also sought an equitable lien against these funds to secure payment of alimony ar-rearages and attorneys’ fees. Although the trial court ordered the equitable distribution and alimony awards to be paid from this fund, it refused to order payment of her fees, finding this fund exempt under Article X, section 4 of the Florida Constitution.

We agree for a number of reasons that the former-wife attorneys’ fees should have been paid from this fund. First, the final judgment of dissolution of marriage expressly provides for the payment of the former-wife’s fees and costs from the assets being distributed, including the proceeds from the sale of the marital home. That judgment and this provision have already been approved by this court and are binding on the court below.

Second, we agree with the Fourth District Court of Appeal’s statement that because “marital property was designated as homestead before the divorce does not bar imposition of a lien on marital property distributed to one of the partners any more than the previous homestead character bars the distribution itself or partition or sale.” Partridge v. Partridge, 912 So.2d 649, 650 (Fla. 4th DCA 2005).

Third, the exemption enshrined in Article X, section 4 is not absolute in this context. Homestead property may be subjected to equitable liens where fraud, reprehensible or egregious conduct is demonstrated:

The constitutional exemption on homestead property is not absolute. As such, the homestead can be the subject of an equitable lien and foreclosure by a forced sale in an appropriate case. The Florida Supreme Court stated in Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So.2d 267, 270 (Fla.1993), “that where equity demands it this Court has not hesitated to permit equitable liens to be imposed on homesteads beyond the literal language of article X, section 4.”

The first district echoed our supreme court when it stated:

Despite the exemption of homestead property from forced sale as provided in Art. X, § 4(a)(1), the trial court correctly concluded that an equitable lien can be imposed against such property under certain circumstances, namely, where a plaintiff can establish fraud or “reprehensible conduct” on the part of the beneficiary of the constitutional protection.

Partridge v. Partridge, 790 So.2d 1280, 1283 (Fla. 4th DCA 2001) (quoting Isaacson v. Isaacson, 504 So.2d 1309, 1310 (Fla. 1st DCA 1987) (emphasis added in Partridge )).

In Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991), the court approved forced sale of homestead property where the former-husband attempted to use the homestead exemption to defraud the former-wife and escape a debt to her. As the court explained:

‘[t]he Courts have taken the view that inasmuch as the purpose of the exemption statute is to protect not only the husband but also his family from destitution and becoming a public charge, the exemption statute will not, unless the contrary intention is clearly shown, be construed to enable the husband to claim its benefits against the very persons to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise would, at least in part, defeat its avowed object’.

Gepfrich, 582 So.2d at 744 (quoting Anderson v. Anderson, 44 So.2d 652 (Fla.1950)).

This court addressed these same points in Robles v. Robles, 860 So.2d 1014, 1015-1016 (Fla. 3d DCA 2003):

It is a constitutional given that homestead property may not ordinarily be subjected to the imposition of a lien of this kind. See Article X, Section 4, Florida Constitution (“There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, ... the following property owned by a natural person: (1) a homestead_”)• This is true even as to unpaid alimony unless, as in such cases as Radin v. Rodin, 593 So.2d 1231 (Fla. 3d DCA 1992), review denied, 605 So.2d 1265 (Fla.1992) and Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991), the payor is shown to have been guilty of affirmative fraudulent or reprehensible conduct which improperly interfered with the spouse’s ability to recover the award. See Pegram v. Pegram, 821 So.2d 1264 (Fla. 2d DCA 2002); Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055 (Fla. 4th DCA 2001), review denied, 796 So.2d 536 (Fla. 2001); Partridge v. Partridge, 790 So.2d 1280 (Fla. 4th DCA 2001); Smith v. Smith, 761 So.2d 370 (Fla. 5th DCA 2000). See also Callava v. Feinberg, 864 So.2d 429 (Fla. 3d DCA 2003)(no lien on wife’s homestead for attorney’s fees owed her own lawyer).

Robles, 860 So.2d at 1015-1016.

As the Fourth District recently confirmed, contemptuous conduct may “be the functional equivalent of fraud,” representing “the kind of reprehensible conduct” that will justify imposition of a lien on homestead property. See Partridge, 912 So.2d at 650.

In the instant case, the record clearly documents that the fees at issue were incurred as a direct result of the former-husband’s reprehensible, egregious and consistently contemptuous conduct in attempting to nullify the trial court’s property distribution, support, and fee awards. From the outset, his purpose has been to deplete the marital estate so that the former-wife receives only the $50,000 that he intended that she receive in the pre-nuptial agreement that he drafted. To further this end, he has ignored repeated orders to pay the former-wife forthwith and has utilized the funds that were to be paid to her as equitable distribution to finance his share of the legal battle thereby making her award meaningless. He has obstructed, hindered and delayed every action ordered by the court below. He has been jailed for contempt; he filed a baseless bankruptcy proceeding; he had to be removed from the marital home by a SWAT team; and a commissioner had to be appointed to consummate a court ordered sale. Throughout this all, he has been able to pay his attorneys, and expenses. The former-wife is now substantially indebted to a number of attorneys for defending this onslaught. Failure to impose a lien on a portion of the former-husband’s share of the proceeds from the sale of the marital home will simply accomplish the goal the former-husband has undertaken, which is to render the former-wife’s equitable distribution meaningless. This is precisely the kind of “the kind of reprehensible conduct” that justifies imposition of a lien on homestead property, if indeed such an exemption exists.

Accordingly that portion of the order under review that denies imposition of a lien on the former-husband’s share of the proceeds from the sale of the marital residence is reversed and the case is remanded for entry of an order authorizing payment of all of the former-wife’s outstanding attorneys’ fees from that fund.

      . This clarification apparently was not reduced to writing until April 14, 2004.

      . The order awarding appellate attorneys’ fees to the former wife confirmed that the former husband had "paid his attorneys at least $232,555.00 ... on a current and continuing basis” and that all of his attorneys had been paid in full. By contrast, the former-wife had incurred approximately $200,000 in fees, $125,000 of which had remained unpaid for over a year.

      . All of the former-husband's attorneys had been fully reimbursed for their services when he petitioned for bankruptcy. Indeed, some had been paid in advance for their services.


author: DAVIS, Judge.

text:
    Robert K. LEWIS, Appellant, v. SUNBELT RENTALS, INC., Appellee.
    No. 2D06-4182.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.
    Eric P. Gifford of Gilligan, King, Good-ing & Gifford, P.A., Ocala, for Appellant.
    Patricia J. Hill and David B. Wilford of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellee.
   DAVIS, Judge.

Robert K. Lewis challenges the trial court’s order granting Sunbelt Rentals, Inc., a temporary injunction without providing notice to Lewis. We reverse.

On August 14, 2006, Sunbelt filed a complaint seeking an injunction and damages based on Lewis’ alleged violation of the noncompete and nondisclosure clauses of his employment agreement with Sunbelt. On the same day, Sunbelt also filed a motion for a temporary injunction and a request for an emergency evidentiary hearing. On August 17, 2006, the trial court issued an order granting Sunbelt’s motion for a temporary injunction. No notice was provided to Lewis.

In its motion requesting a temporary injunction, Sunbelt cited section 542.335, Florida Statutes (2006), which provides for the enforcement of restrictive covenants, and Florida Rule of Civil Procedure 1.610, which sets forth the requirements for the issuance of temporary injunctions.

Rule 1.610(a)(1) specifies that a temporary injunction without notice may be granted only if (1) the affidavits or verified pleadings demonstrate that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and (2) “the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.” Moreover, rule 1.610(a)(2) provides that “[e]very temporary injunction granted without notice shall be endorsed with the date and hour of entry and shall ... define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given.”

In the instant case, neither the motion requesting the temporary injunction nor the order granting same without notice to Lewis complied with rule 1.610. First, the motion did not request that the temporary injunction be granted without notice. Although it did allege immediate and irreparable harm, it did not specify that such harm would result to Sunbelt before Lewis could be heard. Second, Sunbelt’s attorney did not certify in writing any efforts made to give notice or the reasons why notice should not be required. The motion simply made no mention of notice at all.

Similarly, the order granting the temporary injunction without notice failed to endorse the order with the hour of entry and failed to state why the order was granted without notice. The order merely stated that “[t]he threat of irreparable injury to Sunbelt’s confidential information and to Sunbelt’s relationships with its customers has occurred and will occur in the future in the absence of the entry of a temporary injunction.” However, this does not explain the lack of notice; it explains why the court granted the temporary injunction. As in the motion requesting the temporary injunction, there was no mention of notice at all.

Where the party challenging the temporary injunction fails to first move to dissolve it below, as here, this court is limited in its review to consideration of the legal sufficiency of the order, the complaint, and any supporting documents; we may not address the merits of the issuance of the injunction. See Fla. High Sch. Activities Ass’n v. Marsonek, 805 So.2d 868, 869 (Fla. 2d DCA 2001). Where the complaint and order are insufficient under rule 1.610, this court will reverse. See Fla. High Sch. Activities Ass’n v. Benitez, 748 So.2d 358 (Fla. 5th DCA 1999).

Although Sunbelt argues that reversal is not required despite the deficiencies, we are not persuaded. In Pecora v. Pecora, 697 So.2d 1267 (Fla. 5th DCA 1997), cited by Sunbelt, the trial court failed to state in the order granting the temporary injunction the supporting facts and its finding as to why the order was granted without notice. However, the Fifth District found that those omissions were not prejudicial to the enjoined party because the motion there specifically requested a temporary injunction without notice and because the motion alleged facts demonstrating the peril in giving prior notice. The motion there also alleged that the trial court had “already heard exhaustive testimony” supporting the need for the temporary injunction. Id. at 1268. By contrast, the motion in the instant case did not mention notice at all, failed to allege facts demonstrating the peril in giving prior notice, and specifically requested an evidentiary hearing. Thus, the deficiencies in the trial court’s order here cannot be deemed harmless, as they were in Pécora, based on the allegations contained in the motion.

In Santos v. Tampa Medical Supply, 857 So.2d 315 (Fla. 2d DCA 2003), also cited by Sunbelt, although this court found that the trial court’s findings were insufficient under the rule, there was no notice problem. We remanded for entry of an order setting forth the necessary factual findings and setting a bond following an evidentiary hearing. Thus, neither Santos nor Pécora apply to the instant case.

Having concluded that the trial court’s entry of the temporary injunction without notice failed to comply with the provisions of rule 1.610, we reverse the entry of the temporary injunction.

Reversed.

STRINGER and WALLACE, JJ., Concur.


text:
    DEPARTMENT OF REVENUE, on behalf of Verona SATCHELL, Appellant, v. Veront M. SATCHELL, Appellee.
    No. 1D06-1374.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    Veront M. Satchell, pro se, Appellee.
   PER CURIAM.

The Department of Revenue contends that the trial court erred in ordering the former wife (the nonprevailing obligee) to pay attorney’s fees and costs to the former husband (the prevailing obligor) after determining that the post-dissolution proceedings on the former husband’s motion to determine child support arrearage and overpayment did not constitute an action under Title IV-D of the Social Security Act. Pursuant to section 61.16(1), Florida Statutes (2001), a prevailing obligor is not entitled to recover attorney’s fees and costs from a nonprevailing obligee in a Title TV-D case. See Fla. Dep’t of Revenue ex rel. Troutman v. Troutman, 805 So.2d 56 (Fla. 2d DCA 2001). In this case, the only issue was whether the Department was made a party to the proceedings on the former husband’s motion so as to convert it into a Title IV-D action. The trial court concluded that the Department was not a party because it never filed a motion to intervene. However, the Department correctly argues that it was not required to file a motion to intervene because it was named as a party in the former husband’s motion and participated throughout the proceedings on the motion without objection until it opposed the former husband’s request for attorney’s fees and costs. Because the trial court erred in concluding that the Department had to file a motion to intervene before the proceedings could be considered a Title IV-D action, we reverse the trial court’s order directing the former wife (the nonprevail-ing obligee) to pay attorney’s fees and costs to the former husband.

REVERSED.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.


text:
    Donald L. SYKES, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D06-6511.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Donald L. Sykes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied. See Moore v. Corr. Med. Servs., 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Billie Joe STRICKLAND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3557.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

THOMPSON, ORFINGER and MONACO, JJ., concur.


text:
    Richard Arthur BERTKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1347.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2007.
    Jill S. Barger, St. Augustine, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006).

PLEUS, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Tommy BEAN, Appellant, v. Kraig CORWIN and The Hertz Corporation, Appellee.
    No. 5D06-569.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2007.
    Melvin B. Wright of Colling, Gilbert, Wright, <& Carter, Maitland, and Adam Lawrence of Lawrence & Daniels, Miami, for Appellant.
    Warren Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 587 So.2d 483 (Fla. 4th DCA 1991), approved, 609 So.2d 1315 (Fla.1992).

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    Margaret S. DALTON, Appellant, v. The LIGHTHOUSE FOR CENTRAL, etc., et al., Appellee.
    No. 5D05-4491.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2007.
    Robert E. Boone, of Robert E. Boone, P.A., Starke, for Appellant.
    Warren B. Kwavnick, of Cooney, Matt-son, Lance, Blackburn, Richards & O’Con-nor, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. Buffalo’s Original Wings & Rings II of Tallahassee, Inc., 765 So.2d 983 (Fla. 1st DCA 2000).


text:
    The FARNDISH FOUNDATION, et al., Appellant, v. Jonathan STRAWDER, Lydia Strawder, et al., Appellee.
    No. 5D06-686.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2007.
    Daniel N. Brodersen, of Beusse Wolter Sanks Mora & Maire, P.A., Orlando, for Appellant.
    Jonathan B. Alper, Heathrow, for Appel-lee.
   PER CURIAM.

AFFIRMED. See West Volusia Hosp. Auth. v. Jones, 668 So.2d 635 (Fla. 5th DCA 1996).

PLEUS, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Michael Gene HAMILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5931.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.
    Michael Gene Hamilton, pro se, Petitioner.
    Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because an appeal is pending in case number 1D07-0532 to review an order on petitioner’s motion for postconviction relief, the petition for writ of mandamus is denied on the merits.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


author: RAMIREZ, J.

text:
    Derrick B. BLOODSAW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1982.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Bennett H. Brummer, Public Defender, Miami, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, Orlando, and Angel L. Fleming, Assistant Attorney General, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Derrick B. Bloodsaw appeals his judgment of conviction and sentence. We affirm, finding that Bloodsaw properly exercised his right of self-representation.

At a pre-trial hearing on May 14, 2004, the trial court conducted a full Faretta hearing. The trial court offered Bloodsaw a detailed explanation of the advantages of having a lawyer to represent him, as well as the dangers and disadvantages of self-representation. The trial court also questioned Bloodsaw’s competency level and noted that Bloodsaw was a very intelligent individual who could represent himself quite adequately. The trial court noted that Bloodsaw had a college education and had represented himself previously in court proceedings. The trial court determined that Bloodsaw was competent, understood everything, and had willingly, freely, knowingly, and voluntarily chosen to represent himself. The court appointed a public defender as standby counsel.

Six pre-trial hearings occurred thereafter at which the trial court did not offer to appoint counsel. During the pre-trial hearing on March 9, 2005, the following exchange occurred:

THE COURT: Mr. Bloodsaw, I am required by law to inquire when we have a critical stage, and as I told you previously, I have to inquire whether you wish to continue to represent yourself. Your plea — which we already had long ago. BLOODSAW: Excuse me.
THE COURT: When you pled not guilty in your arraignment. We have your plea of not guilty and of course, should you decide to negotiate with the State and plead, that will also be a plea bringing the jury in for jury selection. He is starting the trial, witness’ testimony, the motion to suppress evidence, confessions, and something like that. Those would be a critical-stage status, but it wouldn’t be a critical stage of the motion to compel discovery. However, I will let you know that to be sure. I will ask you every time whether or not you wish to continue to represent yourself and not avail yourself to the court appointed counsel.
Is it your—
BLOODSAW: I will continue.

The trial commenced on March 21, 2005. At the start of the trial, the trial court conducted the following inquiry:

THE COURT: I understand that you have assumed the responsibility of representing yourself during this trial.
BLOODSAW: That’s correct.
THE COURT: And you have done so freely and voluntarily, is that correct.
BLOODSAW: That’s correct.
THE COURT: And I believe, Judge Soto and other judges in this building have each gone over with in a lot of detail about the consequences and the different possibilities of representing yourself. Have you clearly and fully understood all of those consequences?
BLOODSAW: Yes, I have.
THE COURT: Now, knowing that, are you still willing to go forward and represent yourself in this matter?
BLOODSAW: I am going to, yes.

The court did not discuss Bloodsaw’s self-representation at any time during the course of trial. At trial, Bloodsaw did not testify or present any witnesses. The jury found Bloodsaw guilty of burglary of an occupied dwelling and not guilty of petit theft.

Bloodsaw argues that a new trial is required because the trial court did not renew its offer of assistance of counsel before the start of trial. We do not agree.

Under the circumstances of this case, the trial court fully satisfied the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). It is undisputed that the trial court correctly determined that Bloodsaw waived his right to counsel at the pretrial hearing on May 14, 2004. Id. at 885, 95 S.Ct. 2525 (holding that the trial court must conduct an inquiry to ascertain if a defendant’s waiver of counsel is knowing and intelligent).

We do not believe that Bloodsaw is entitled to a new trial based upon a violation of Florida Rule of Criminal Procedure 3.111(d)(5). When a defendant waives his right to appointed counsel, rule 3.111(d)(5) requires a court to renew its offer of assistance of counsel at each subsequent stage of the proceedings where the defendant appears without counsel. Specifically, rule 3.111(d)(5) provides:

If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

“Each subsequent stage” is construed as each crucial stage that may affect the outcome of the proceedings. See Traylor v. State, 596 So.2d 957, 968 (Fla.1992). Florida courts repeatedly have recognized the renewal requirement at each subsequent' stage. See Segal v. State, 920 So.2d 1279, 1280 (Fla. 4th DCA 2006); Brown v. State, 830 So.2d 203, 205 (Fla. 5th DCA 2002); Pall v. State, 632 So.2d 1084, 1084-85 (Fla. 2d DCA 1994).

We likewise do not believe that the Fourth District Court’s decision in Sproule v. State, 719 So.2d 349 (Fla. 4th DCA 1998), compels us to -order a new trial here for any violation of rule 3.111(d)(5). We do recognize, however, that the commencement of trial is a critical stage of the proceedings, see Enrique v. State, 408 So.2d 635, 637-38 (Fla. 3d DCA 1981), to which every defendant has a right to counsel.

The Fourth District Court of Appeal held in Sproule that a trial court’s failure to renew the offer of assistance of counsel prior to trial requires reversal and remand for a new trial. Id. at 350-51. In that case, like in the case before us, the trial court conducted a proper Faretta inquiry during a pretrial hearing. Id. at 350. At trial, approximately one year after the pretrial hearing, the trial court did not renew the offer of assistance of counsel. Id. The defendant in Sproule, like Bloodsaw, appeared before the trial court on more than one occasion between the pretrial hearing at which the trial court conducted the Far-etta inquiry and trial. Id.

Although the trial court was required to renew its offer of assistance of counsel at the commencement of Blood-saw’s trial, as rule 3.111(d)(5) requires when a “defendant appears without counsel,” the trial court’s non-compliance with the rule here is harmless error. First, Bloodsaw did not appear without counsel at the beginning of trial. Unlike the defendant in Sproule, the trial court appointed standby counsel for Bloodsaw. Blood-saw accepted the appointment of standby counsel at the pretrial hearing on May 14, 2004. The transcript reflects that Blood-saw relied upon standby counsel during proceedings, and standby counsel was present at the commencement of the trial. During the trial, standby counsel assisted Bloodsaw on numerous occasions, and Bloodsaw actually consulted with his standby counsel. At no time did Bloodsaw indicate that he wanted to terminate self-representation. The Florida Supreme Court noted in Knight v. State of Florida, 770 So.2d 663, 670 (Fla.2000), “[S]tandby counsel is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding.” See also Mincey v. State, 684 So.2d 236, 238 (Fla. 1st DCA 1996); Harrell v. State, 486 So.2d 7, 7-8 (Fla. 3d DCA 1986); Jones v. State, 449 So.2d 253, 258 (Fla.1984).

Additionally, Bloodsaw’s waiver at the pretrial hearing at which the trial court appointed standby counsel was knowing and intelligent. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The record reflects that the trial court made Bloodsaw aware of the dangers and disadvantages of self-representation at the pretrial hearing held on May 14, 2004. Bloodsaw unequivocally declared that he wanted to represent himself at the pre-trial hearings held on May 14, 2004 and March 9, 2005, and at the start of the trial. At all times, Bloodsaw persisted on self-representation and, undoubtedly, voluntarily exercised his own free will in so doing.

Moreover, the record demonstrates that the trial court renewed its offer of counsel twelve days before trial at the March 9, 2005 hearing. During the hearing, the trial court asked Bloodsaw if he wanted to continue to represent himself “and not avail [himself] to the court appointed counsel,” to which Bloodsaw responded, “I will continue.” Bloodsaw again reaffirmed his decision to represent himself at the start of trial in response to the trial court’s question, “Now, knowing that, are you still willing to go forward and represent yourself in this matter?”

We find Bloodsaw’s remaining issue raised on appeal to be without merit. Thus, for the reasons stated, we affirm the judgment of conviction and sentence.

Affirmed.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Tracey McLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-39.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied March 21, 2007.
    Charles G. White, Miami, for appellant.
    Bill McCollum, Attorney General, Orlando, and Linda Katz and Michael E. Hant-man, Assistants Attorney General, Miami, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

This is an appeal of the denial of a motion for postconviction relief after an evidentiary hearing. We affirm.

This postconviction proceeding was remanded by the Florida Supreme Court for an evidentiary hearing. McLin v. State, 827 So.2d 948, 958-59 (Fla.2002). Defendant-appellant McLin had filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence based upon recanted testimony of a witness, Jose Salda-na. Id. at 950-51. The Saldana affidavit is quoted in the Supreme Court’s opinion. Id. at 951. The court concluded that the defendant was entitled to an evidentiary-hearing and remanded for that purpose.

On remand the motion came before a successor judge. The successor judge conducted a two-day evidentiary hearing at which she heard testimony from Mr. Sal-dana and from Detective Bogen, the lead detective on the case. The court also reviewed the trial transcript and the transcript of an evidentiary hearing the predecessor judge had conducted on that portion of the defendant’s Rule 3.850 motion which had alleged ineffective assistance of trial counsel.

The trial court ruled that Mr. Saldana’s testimony was not credible and was entitled to no weight. The court entered a written order denying relief. The defendant has appealed.

The evidentiary hearing was a bench trial in which the trial court sat as the trier of fact. “[W]e defer to the trial court’s findings of fact regarding the credibility of witnesses and the weight assigned to the evidence .... ” Lamarca v. State, 931 So.2d 838, 847 (Fla.2006) (citations omitted). “As long as the trial court’s findings are supported by competent substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (citations and internal quotation marks omitted, accord Farina v. State, 937 So.2d 612, 622 (Fla.2006)). The order here meets those standards.

The defendant argues that the trial court employed the wrong legal standard. The defendant maintains that in considering newly discovered evidence, a trial court must evaluate the probable impact of the newly discovered evidence on the jury, and may not make its own credibility determination of the witness’ truthfulness. For that proposition the defense relies on Lee v. State, 899 So.2d 348, 354-55 (Fla. 2d DCA 2005), and Light v. State, 796 So.2d 610, 617 (Fla. 2d DCA 2001).

The defendant’s argument is foreclosed by the Florida Supreme Court’s decision in this case. The Florida Supreme Court’s opinion stated, “Florida law treats recantations with suspicion, and requires a new trial only if the court is satisfied that the recantation is true and that the witness’s testimony will change to such an extent as to render probable a different verdict.” McLin, 827 So.2d at 955 (citations and internal quotation marks omitted; emphasis added); see also id. at 959 (stating that claim of ineffective assistance of counsel would need to be revisited “if Saldana testifies consistently with his affidavit and the testimony is determined to be credible ....”) (emphasis added). The McLin opinion specified that the credibility determination was to be made by the trial court.

The defendant’s reliance on the decisions in Lee and Light is misplaced. Neither case involved recantation testimony, and neither case involved a claim that the testimony of a newly discovered witness was wholly unworthy of belief.

For the stated reasons, the order now before us is affirmed.

       Although Mr. Saldana did not testify at trial, he cooperated with the State and gave a sworn statement implicating the defendant. Mr. Saldana’s later affidavit stated that he and a codefendant participated in a scheme to frame defendant McLin. The Saldana affidavit recanted his earlier sworn statement.


author: LAGOA, Judge.

text:
    Andre ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1211.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael E. Hantman and Linda Katz, Assistant Attorneys General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

Andre Adams (“Defendant”) appeals the denial of his motion to correct an illegal sentence. On appeal, Defendant argues that the trial court’s April 19, 2006 order violated his constitutional right against double jeopardy. We find that Defendant’s rights were not violated and affirm the trial court’s order with regard to this issue. Defendant also argues that the trial court erred by denying his claim that he was not awarded sufficient credit for time served. Because the State conceded below that the error must be corrected if sufficient credit was not awarded, we reverse and remand for a hearing on this issue alone.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant was convicted of robbery and resisting arrest without violence. During sentencing, the trial court found that Defendant qualified as both a prison releasee reoffender and a violent career criminal. Defendant was sentenced to 40 years imprisonment with a fifteen-year mandatory minimum term as a prison releasee reof-fender and sentenced to a 30-year mandatory minimum as a violent career criminal. Defendant received 612 days credit for time served.

On January 4, 2004, Defendant filed a motion to correct illegal sentence pursuant to Rule 3.800(a), Fla. R.Crim. P. The trial court granted the State several extensions to file a response. On March 28, 2006, the trial court orally granted Defendant’s motion as the State had failed to respond, but neither resentenced nor vacated Defendant’s sentence. The trial court also permitted the State to file a motion for reconsideration within one week. Two days after the oral ruling, the State filed a response, which the trial court treated as a motion for reconsideration.

On April 4, 2006, the trial court granted Defendant time to respond to the State’s motion. On April 17, 2006, the Defendant responded to the motion, and on April 19, 2006, the trial court denied Defendant’s motion to correct illegal sentence.

II. ANALYSIS

On appeal, Defendant argues that the trial court’s subsequent denial of his postconviction motion constituted a resen-tencing in violatioh of his right of protection against double jeopardy. In support of this argument, Defendant relies on Pate v. State, 908 So.2d 613 (Fla. 2d DCA 2005). As the trial court correctly concluded, Pate is not applicable. In Pate, the trial court’s written order granted the Defendant’s motion to correct an illegal sentence, reduced his sentence and ordered his immediate release. Subsequent to the trial court’s written order, the State orally moved for a stay, which the trial court granted. The trial court later issued a second order denying the motion to correct sentence and reinstating the original sentence. The Second District concluded that this violated the constitutional protection against double jeopardy:

Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.

Id. at 614.

Here, unlike in Pate, the record is clear that, although the trial court granted Defendant’s motion, the trial ■ court did not take the next step of either resentencing or vacating Defendant’s sentence. No new sentence was imposed by the trial court, and Defendant continued to serve his original 40-year sentence. Because the only action taken by the trial court was to grant Defendant’s motion without more, double jeopardy does not attach.

Moreover, the law is clear that when a trial court grants a 3.800 motion, “it has not and [does] not grant the Defendant any collateral relief until it resen-tences him [as][t]he order granting the Defendant’s 3.800(a) motion is not a final order, as judicial labor, i.e., resentencing, is still required.” State v. Delvalle, 745 So.2d 541, 542 (Fla. 4th DCA 1999). Indeed, an order finding that Defendant was entitled to be resentenced, but not imposing a new sentence, is not an appealable final order. See State v. Rudolf, 821 So.2d 385, 386 (Fla. 2d DCA 2002). As the Second District noted in Rudolf, after a new sentence is imposed the “State [would] have the opportunity to seek review of the sentence when the trial court enters that final order.” Id. at 386. In this case, as no new sentence was imposed for the State to appeal, it was proper for the State to file a motion for reconsideration.

Accordingly, the trial court’s order denying Defendant’s motion to correct illegal sentence is affirmed in part and reversed in part.


text:
    Javon MASON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2346.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied March 27, 2007.
    Javon Mason, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Materials provided to this Court by the State do not remedy the trial court’s failure to attach such materials to its order. Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007), clarifying 31 Fla. L. Weekly D2487 (Fla. 3d DCA Oct. 4, 2006).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evi-dentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: CORTINAS, Judge. SCHWARTZ, Senior Judge

text:
    V.J., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-1123.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied March 21, 2007.
    Herscher & Herscher and llene Herscher, Coral Gables, for appellant.
    Anthony C. Musto, Fort Lauderdale; Hillary S. Kambour, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

We have for review the trial court’s termination of V.J.’s parental rights. We affirm because we find the trial court’s termination of parental rights is supported by clear and convincing evidence of abandonment by V.J., who, entirely of his own volition and choosing, has been a total stranger in the life of his five and a half year old daughter, L.C. Since the time L.C. was three months old until February 2005, her biological father, V.J., was in prison for two separate burglaries he committed. The biological father, who was eighteen years old when L.C. was born, , did not have any contact -with L.C. while incarcerated. Additionally, he has never provided support of any kind to L.C. or communicated any desire to make child support payments. Thus, the very able trial judge, Seymour Gelber, was entirely correct in finding that the biological father had abandoned L.C.

Section 39.806 establishes the grounds upon which a parent’s rights can be terminated. See § 39.806, Fla. Stat. (2004). Once the Department of Children and Family Services (“the Department”) has proven any one of the grounds for termination of parental rights by clear and convincing evidence, the trial court must consider whether termination of parental rights is in the manifest best interests of the child, considering the factors listed in section 39.810. See C.K v. Dep’t of Children & Families, 942 So.2d 469 (Fla. 4th DCA 2006); see also § 39.810, Fla. Stat. (2004).

In this case, the Department alleged, and the trial court found, termination warranted under sections 39.806(l)(b), 39.806(l)(c), and 39.806(l)(e), Florida Statutes. We affirm the trial court’s ruling under section 39.806(l)(b), Florida Statutes. Section 39.806(l)(b), Florida Statutes, provides for termination of parental rights in the case of abandonment, citing the definition of abandonment contained in section 39.01(1). See § 39.806(l)(b), Fla. Stat. (2004). That section defines abandonment as:

a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver responsible for the child’s welfare, while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of the parent or legal custodian, or caregiver primarily responsible for the child’s welfare, to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. The term “abandoned” does not include an abandoned newborn infant as described in s. 383.50, a “child in need of services” as defined in chapter 984, or a “family in need of services” as defined in chapter 984. The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

§ 39.01(1), Fla. Stat. (2004). The trial court found that the evidence showed V.J. “has never had any type of relationship with [L.C.] ” and that “any efforts [V.J.] has made have been marginal at best and do not evince a settled purpose to assume parental responsibilities.” Because a review of the trial transcript demonstrates that this conclusion was supported by clear and convincing evidence, we must affirm.

During the first three years of her life, L.C. was either uncared for by her biological parents or shuffled around among numerous short-term caregivers. In contrast, for almost two and a half years, L.C., who lives with her younger sister, has been thriving, bonded, and devoted to foster parents who desire to adopt the two sisters as soon as legally possible. L.C. and her sister enjoy a positive and loving relationship with foster parents, who they call “Mami” and “Papi.” By all accounts, the girls hug, kiss, and display constant affection towards their foster parents. The Administrator of L.C.’s school testified that, although when L.C. commenced school she was “was very withdrawn, reserved, [and] did not interact socially that well,” a year later “you see a vibrant child, a happy go lucky child, self-sufficient, makes decisions on her own, and is always smiling and happy.” The Administrator testified that she attributes these changes to the “stability,” “nurturing environment,” and “caring home setting” L.C. has been afforded by her foster parents. The guardian ad litem recommended that L.C. remain with her sister in their pre-adop-tive foster home.

The dissent would separate five and a half year old L.C. from the only people who have loved her as parents and ultimately place her in the hands of a biological father who has demonstrated no interest in L.C. during the vast majority of her young life, and is presently unable to provide adequate care as he has not obtained suitable housing or employment to care for L.C. The dissent incorrectly analogizes the facts of this case with those of In re J.B., 923 So.2d 1201 (Fla. 2d DCA 2006). In J.B., the court reversed an order terminating a father’s parental rights because the record evidenced that J.B.’s father had actively sought custody of J.B. prior to his incarceration, purchased necessities for J.B., and had visited J.B. at least, if not more than, once a week, even while J.B. was in foster care. Id. at 1206, 1208. In that case, the Second District noted that “[s]ince he has been in prison, [J.B.’s father] has attempted to maintain contact with [J.B.], even though the child’s young age makes it difficult for him to establish any kind of bond with him.” Id. at 1206. Additionally, the first guardian ad litem appointed to represent J.B. commended J.B.’s father for “working hard at bettering himself at the correctional institution by taking anger management courses, parenting classes, by attending church and AA meetings, and enrolling in a computer course.” Id. at 1204.

These facts are drastically different than the facts at hand, as L.C.’s father made only minimal efforts to establish a relationship with her prior to his incarceration, did nothing to contact L.C. or provide for her during his three to four years of incarceration, and only began to receive necessary services after being released from prison. Although we recognize the efforts V.J. made after his release from prison, we cannot ignore the years that have passed during which V.J. did nothing to parent L.C., and the fact that L.C. has now established a stable, consistent life with the only people she has ever known as family. Here, V.J.’s lack of paternal care for L.C. throughout her young life fully supports the trial court’s finding of abandonment.

Because we find the trial court’s conclusions were supported by clear and convincing evidence, we affirm the trial court’s termination of V.J.’s parental rights.

Affirmed.

FLETCHER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

As in In re J.B., 923 So.2d 1201 (Fla. 2d DCA 2006), a termination based on the same grounds as those asserted in this case, §§ 39.806(l)(b), (l)(c), (l)(e), Fla. Stat. (2004), and on similar facts, I believe that there is a total absence of clear and convincing evidence to support the termination of V.J.’s parental rights for any of those reasons. It is particularly difficult to understand how the claim of abandonment, upon which the majority primarily relies, can be sustained in light of the testimony that after appellant’s incarceration he made every attempt possible to maintain contact with his child; indeed, those efforts resulted in successful supervised visits with the child up to the time of the trial below.

It may or may not be true, as the court stresses, that there are better fathers than V.J. and that the child may be better off with other parents, including the putative ones with whom she now lives. Neither the law nor the Law, however, permits us to use any such test in depriving the person who happens to be her father of his inalienable parental rights. I believe, and genuinely fear, that that is what the court has done.

      . V.J. did not appeal the trial court’s finding that termination was in the manifest best interests of L.C.


text:
    Tatianna SAMUEL, n/k/a Tatianna Mathis, a minor child, by and through her parents and natural guardians, Janicka Mathis and Kina Mathis; and Janicka Mathis and Kina Mathis, individually, Petitioners, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Rene Rivera-Santiago, and Cardiovascular Perfusionists, Inc., Respondents.
    No. 1D07-0228.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Arthur B. Skafidas, Christopher P. Jayson and Camille Godwin of Cohen, Jayson & Foster, P.A., Tampa, for Petitioners.
    Susan L. Kelsey of Anchors, Smith, Grimsley, Tallahassee, for Respondent Shands Teaching Hospital and Clinics, Inc.
   PER CURIAM.

DENIED. Cape Canaveral Hospital, Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005).

WOLF, VAN NORTWICK, and LEWIS, JJ., Concur.


text:
    TAMTECH SERVICES, INC., a Florida corporation, Petitioner, v. Tom HUNT, Larry Ballard, and Cox Building Corporation, d/b/a, Cox Pools, Respondents.
    No. 1D07-0464.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Robert M. Ervin, Jr., of Ervin, Kitchen & Ervin, Tallahassee, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1996).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Vernon GOINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0243.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Vernon Goins, pro se, Petitioner.
    Bill McCollum, Attorney General, Talla-. hassee, for Respondent.
   PER CURIAM.

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

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Michael Antonio GRIMES, Petitioner, v. Ronald McNESBY, as Sheriff of Escambia County, Florida, and the State of Florida, Respondents.
    No. 1D07-0369.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2007.
    Jack Behr, Public Defender, First Judicial Circuit, and Clint Davis, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Dyson v. Campbell, 921 So.2d 692 (Fla. 1st DCA 2006).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.