author: DAVIS, Judge.

text:
    S & S DIRECTIONAL BORING AND CABLE CONTRACTORS, INC., Appellant, v. AMERICAN NATIONAL BANK OF MINNESOTA f/k/a Credit America Savings and DC Financial Services, Inc., Appellees.
    No. 2D06-522.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    Paul Sidney Elliott, Tampa; and Gary E. Williams, Seminole, for Appellant.
    Betsy Lu McCoy of Law Offices of Betsy L. McCoy, Coral Gables, for Appellees.
   DAVIS, Judge.

S & S Directional Boring and Cable Contractors, Inc. (“S & S”), challenges the trial court’s final order dismissing with prejudice its declaratory judgment action against American National Bank of Minnesota f/k/a Credit America Savings (“American National”) and DC Financial Services. We reverse.

S & S, a Florida corporation with its principal place of business in Hillsborough County, entered into an equipment lease agreement with Vermeer Southeast Sales & Service, Inc. The lease agreement lists S & S as the “customer” and Vermeer as the “supplier,” but because American National provided financing for the deal, it is listed as “owner.” At the completion of the lease term, S & S returned the equipment. It then received a letter from DC Financial, the company to which American National assigned its interests in the lease agreement, demanding $20,000 for damage to the leased equipment. In response to the demand, S & S filed an action against American National and DC Financial in the Thirteenth Judicial Circuit in Hillsborough County, seeking “a declaratory judgment of [its] rights, status, and other equitable and legal relations with the Defendants.”

American National and DC Financial (“Appellees”) moved to dismiss the action “for lack of personal jurisdiction,” pointing to the following provision of the lease agreement:

This agreement will be deemed fully executed and performed in our or as-signee’s principal place of business and will be governed by and construed in accordance with the state law. You expressly consent to jurisdiction of any state or federal court in that state our [sic] or our assignee’s principal place of business or any other court so chosen by us.

In their motion to dismiss below, Appellees contended that because both of their principal places of business are in Minnesota, any action against them arising out of the lease agreement must be brought in Minnesota. The trial court agreed and granted the motion to dismiss without prejudice.

S & S then refiled its action, alleging in its second amended complaint that “the [lease assignment’s] forum selection clause does not designate Minnesota as the forum for jurisdiction” but rather that it gives Appellees the option of choosing a particular forum. Appellees again moved to dismiss, arguing that S & S had “failed to state facts sufficient to overcome or void the jurisdiction selection clause in the contract.” In granting the motion with prejudice, the trial court found “the forum selection clause contained in the contracts sued upon to be enforceable and to restrict venue of any suit to Minnesota.” We do not agree.

We first note that our review of this issue is de novo. See Am. Boxing & Athletic Ass’n v. Young, 911 So.2d 862, 864 (Fla. 2d DCA 2005) (“[A]n appellate court reviews the interpretation of a contractual forum selection provision as a matter of law.”).

“Florida courts recognize a distinction between mandatory jurisdiction clauses in contracts which require that a particular forum be the exclusive jurisdiction for litigation concerning the contract, and permissive jurisdiction clauses which only provide that there may be jurisdiction over such litigation in a particular forum.” Shoppes Ltd. P’ship v. Conn, 829 So.2d 356, 357-58 (Fla. 5th DCA 2002) (citing Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274 (Fla.1987)). “[F]orum selection clauses which state or clearly indicate that any litigation must or shall be initiated in a specified forum are mandatory.” Id. at 358. However, clauses that merely “consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum” are permissive. Granados, 509 So.2d at 274-75. Accordingly, “the general rule is that [a forum selection] clause will be considered permissive where it lacks words of exclusivity.” Shoppes Ltd. P’ship, 829 So.2d at 358.

The forum selection clause at issue here does indeed lack words of exclusivity. Pursuant to the language of the lease agreement, S & S merely “consented] to [the] jurisdiction” of Minnesota. The clause is therefore permissive. See Am. Boxing, 911 So.2d at 865 (“A consent to jurisdiction is a hallmark of a permissive venue provision.”). As such, the trial court erred in determining that venue of S & S’s declaratory action is restricted to Minnesota and in dismissing the action with prejudice.

Reversed and remanded for further proceedings consistent with this opinion.

CANADY, J., and SULLIVAN, IRENE H., Associate Judge, Concur.

      . The agreement specified that "[t]he words WE, US, and OUR refer to the Owner.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard Lee ZACHERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4380.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Files v. State, 586 So.2d 352, 356 (Fla. 1st DCA 1991), approved as modified, 613 So.2d 1301 (Fla.1992); see also Tillman v. State, 522 So.2d 14, 17 n. 1 (Fla.1988).

NORTHCUTT, C.J., and KELLY and CANADY, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Nolan Nathaniel EDWARDS, Appellant, v. CITY OF ST. PETERSBURG, Appellee.
    No. 2D06-5433.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.

      Nolan Nathaniel Edwards, pro se.
    John C. Wolfe, City Attorney and Deborah Glover-Pearcey, Assistant City Attorney, St. Petersburg, for Appellee.
   NORTHCUTT, Chief Judge.

The circuit court erred when it dismissed Nolan Edwards’ action against the City of St. Petersburg for lack of prosecution. Accordingly, we reverse.

Acting pro se, Edwards filed suit against the City in December 2003, seeking copies of certain public records allegedly created by the St. Petersburg Police Department. In 2004, the City filed a motion to dismiss and a motion to strike interrogatories. According to our limited record, these motions have never been set for hearing or ruled upon. In 2005, Edwards filed a pro se motion for trial, which included a request that he be transported from prison to attend. This latter request was denied in an order that did not rule on Edwards’ motion for trial.

On July 10, 2006, the clerk of the circuit court mailed to the parties a “NOTICE OF LACK OF PROSECUTION.” The notice stated that the face of the record revealed no activity for the preceding ten months. Citing Florida Rule of Civil Procedure 1.420(e), the notice stated that the case could be dismissed if no record activity occurred within sixty days and if no stay was issued, unless good cause was shown. On August 23, 2006, Edwards filed a motion for hearing and for witness attendance. Over a month later, the City filed a motion to dismiss for lack of prosecution. The circuit court granted the City’s motion and dismissed the action with prejudice, finding from a review of the file “that from 7/12/05-8/23/06 Plaintiff did not file record activity.”

Dismissals for failure to prosecute are governed by rule 1.420(e), which was amended in 2005. In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 176-77 (Fla.2005) (setting January 1, 2006, as effective date for amendments). The parties agree that the amended rule applies to this case. Under the new provisions of rule 1.420(e), a notice of lack of prosecution may be sent when there has been no record activity— by filing of pleadings, order of court, or otherwise — for a period of ten months. Such a notice was sent in this case.

The amended rule then provides a sixty-day period in which a party must act in order to avoid a dismissal for failure to prosecute. Fla. R. Civ. P. 1.420(e). “[A]n action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-eommence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420(e) committee notes (2005 amend.). See In re Amendments, 917 So.2d at 176 (“Following proper service of the notice, the party has sixty days to conduct record activity in order to avoid dismissal.”). In this case, Edwards acted within the sixty-day period following the notice by filing a motion on the forty-fourth day.

As the supreme court has stated, whether a case is subject to dismissal for failure to prosecute is determined by a bright-line test. “[Tjhere is either activity on the face of the record or there is not.” Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005) (quoting Metro. Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001)) (receding from precedent that attempted to characterize the quality of record activity as passive or active and reverting to plain meaning of rule 1.420(e) to promote resolution of cases on the merits and to decrease litigation over rule’s meaning). In this case, even a cursory review of the record reveals that there was record activity during the applicable time period. Accordingly, we reverse.

Reversed and remanded for further proceedings.

ALTENBERND and VILLANTI, JJ., Concur.


author: KAHN, J.

text:
    Julius G. SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-5024.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Leonard S. Magid of Magid & Williams, P.A., Jacksonville, for Appellant.

      Scott Shevenell, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   KAHN, J.

Julius G. Smith appeals a final order from the Public Employees Relations Commission (“PERC”). In the order, PERC rejected the hearing officer’s recommendation that Smith’s termination be reduced to a sixty-day suspension without pay. On appeal, Smith argues PERC erred as a matter of law when it found that marital strife and emotional turmoil never qualify as mitigating factors in its review of agency action. We vacate the order and remand for further proceedings consistent with this opinion.

BACKGROUND

Smith worked for the Department of Corrections (“Department”) for twenty-two years. In 2005, Smith, while arguing with his estranged wife, got into a violent confrontation with a fellow law enforcement officer. The State Attorney’s Office declined to pursue any charges against Smith. As a result of the incident, however, the Department terminated Smith’s employment. Smith appealed the dismissal to PERC.

After a hearing on the matter, the hearing officer determined that Smith’s long and distinguished service with the Department, as well as the emotional turmoil surrounding the incident, called for a mitigated penalty. The hearing officer recommended a sixty-day suspension without pay. PERC accepted all of the hearing officer’s findings of fact, but rejected the recommended penalty and upheld Smith’s termination. In the final order, PERC stated, “marital strife and emotional states are not mitigating factors [in PERC proceedings].”

ANALYSIS

As the question of whether emotional turmoil may ever constitute a mitigating factor in PERC proceedings is a question of law, our review is de novo. See Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 597 (Fla. 1st DCA 2000) (explaining the reviewing court does not defer when the adjudicatory process does not involve a factual dispute or exercise of discretion). Here, PERC never considered the factors of Smith’s marital strife and emotional turmoil; instead, PERC stated that such factors may never warrant mitigation. Accordingly, PERC’s discretion is not implicated. We conclude that relevant statutory history calls PERC’s conclusion into doubt.

Until 2001, the Legislature limited PERC’s discretion in reducing a public employee’s dismissal to consideration of four statutory criteria. See § 447.208(3)(d), Fla. Stat. (2000); see also Bamawo v. Dep’t of Corrs., 785 So.2d 610, 611 (Fla. 3d DCA 2001) (“[Section 447.208(3)(d) ] allows PERC the discretion to reduce dismissals and suspensions to lesser penalties after consideration of four statutory factors.”). Under this previous statutory scheme, PERC determined that daily stresses of life, such as marital strife, did not qualify as mitigating factors. See, e.g., Lorde v. Dep’t of Health & Rehab. Servs., 11 FCSR ¶ 005 (1996).

Then, in 2001, the Legislature substantially amended the provisions governing PERC’s discretion. See ch.2001-43, § 22, at 199, Laws of Fla. These amendments severely limited PERC’s discretion with regard to most public employees:

If the commission finds that cause did not exist for the agency action, the commission shall reverse the decision of the agency head and the employee shall be reinstated with or without back pay. If the commission finds that cause existed for the agency action, the commission shall affirm the decision of the agency head. The commission may not reduce the penalty imposed by the agency head, except in the case of law enforcement or correctional officers, firefighters, and professional health care providers, if the commission makes specific written findings of mitigation.

Id. (codified at § 110.227(6)(c), Fla. Stat. (2001)) (italicized emphasis added). Instead of requiring review under the previous four criteria, the new statute directed PERC to simply determine if cause existed for the employee’s discipline. If cause did exist, PERC was compelled to affirm the action; if cause did not exist, PERC was required to reverse the decision and reinstate the employee. Significantly, the Legislature removed all discretion with regard to the degree of punishment, except in cases involving law enforcement or correctional officers, firefighters, and professional health care providers. Finally, the Legislature removed the four criteria found in section 447.208(3)(d). See ch.2001-43, § 38, at 207, Laws of Fla. (amending § 447.208, Fla. Stat: (2000)).

It is presumed the Legislature intends to change the law when it repeals or amends a statute. See Mikos v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 497 So.2d 630, 633 (Fla.1986) (“[T]here is a strong presumption that, when the legislature amends a statute, it intends to alter the meaning of the statute.”); Capella v. City of Gainesville, 377 So.2d 658, 660 (Fla.1979) (“When the legislature amends a statute by omitting words, we presume it intends the statute to have a different meaning than that accorded it before the amendment.”); Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968) (“The rule of construction, instead, is to assume that the Legislature by the amendment intended it to serve a useful purpose. Likewise, when a statute is amended, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment.” (citations omitted)); Sam’s Club v. Bair, 678 So.2d 902, 903 (Fla. 1st DCA 1996) (“Certainly, by enacting a material amendment to a statute, the legislature is presumed to have intended to alter the law unless the contrary is made clear.”) As a result of the 2001 amendments, PERC maintains discretion to reduce penalties imposed upon correctional officers. . . Further, PERC is no longer restricted to the four criteria once contained in section 447.208(3)(d), Florida Statutes (2000). Accordingly, when reviewing employment discipline meted out to a law enforcement or correctional officer, firefighter, or professional health care provider, PERC may now consider a broad range of factors in the decision of whether to mitigate the penalty.

Here, the hearing officer considered and credited Smith’s emotional turmoil. Although the hearing officer’s conclusions are not binding, PERC erred as a matter of law when it enunciated a policy that marital strife and emotional turmoil never qualify as mitigating factors. By failing to consider all of the hearing officer’s findings regarding mitigation, PERC’s conclusion also contravenes a general requirement of the Administrative Procedure Act that an administrative agency may not increase a recommended penalty unless it reviews the complete record and justifies its actions in writing. See § 120.57(1)(Z), Fla. Stat. (2006); see also Palm Beach County Police Benevolent Ass’n, Inc. v. City of Riviera Beach, 774 So.2d 942, 944 (Fla. 1st DCA 2001) (requiring PERC to comply with section 120.57(l)(i), Florida Statutes).

Based on the foregoing, we must vacate PERC’s conclusion that marital strife and emotional turmoil will never qualify as mitigating factors. We VACATE the final order and REMAND this case for further proceedings.

LEWIS and HAWKES, JJ., concur.


author: BROWNING, C.J.

text:
    D.O., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0401.
    District Court of Appeal of Florida, First District.
    July 24, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

D.O. (Appellant), a juvenile, appeals the trial court’s final disposition order imposing a stricter sanction than what the Department of Juvenile Justice (DJJ) recommended. Because a preponderance of the record evidence — which is set forth in detail in the disposition order — supports the court’s decision to deviate upward from the DJJ’s recommended level of restrictiveness, we find no abuse of discretion. Accordingly, we affirm the disposition. See P.W.G. v. State, 682 So.2d 1203 (Fla. 1st DCA 1996), aff'd, 702 So.2d 488 (Fla.1997); J.L.K. v. State, 894 So.2d 984 (Fla. 1st DCA 2004); C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002); Q.L.J. v. State, 714 So.2d 628 (Fla. 1st DCA 1998).

Appellant was born on August 20, 1992. The State’s amended petition for delinquency charged him with sexual battery (by oral and/or anal and/or vaginal penetration) upon M.H., who was less than 12 years old, when Appellant was less than 18 years old, in violation of section 794.011(2)(b), Florida Statutes; and with unlawfully engaging in sexual activity, i.e., lewd or lascivious battery (by vaginal penetration), with M.H., who was 12 years of age or older but less than 16 years old, in violation of section 800.04(4)(a), Florida Statutes. The sexual battery was alleged to have occurred between October 1, 2005, and October 1, 2006. The lewd or lascivious battery was alleged to have occurred on or about October 21, 2006. Appellant pled no contest to both offenses.

The trial court heard testimony indicating that the 12-year-old victim (Appellant’s cousin) was in her bed when Appellant entered the bedroom and started rubbing the victim’s bottom, which she described as her private area. Appellant asked the victim to suck his “thing,” which she identified as his penis. Appellant placed his penis into the victim’s mouth. The victim testified that Appellant also placed his “thing” into her “bottom,” whereupon the victim tried to get away and called her grandmother. The victim testified that Appellant tried to choke her as she attempted to elude his grasp. By the time the grandmother entered the room, the victim had been dragged to the floor, and Appellant was zipping his pants. The victim described another incident outdoors when Appellant had attempted to put his “private area” into her “bottom.” The victim expressed fear of Appellant. The grandmother did not learn of the first incident until after the second incident occurred.

The DJJ’s predisposition report recommended probation. The prosecutor sought a stricter, Level 8 program with sex-offender therapy. After a disposition hearing, the trial court cited Q.L.J. to support the imposition of a moderate-risk residential placement pursuant to section 985.03(44)(c), Florida Statutes (2006). Appellant contends that all the grounds on which the trial court relied are either wrong as a matter of law or are unsupported by a preponderance of the evidence.

A trial court’s decision to disregard the DJJ’s recommendation of the restrictiveness level must be supported by stated valid reasons and a preponderance of the evidence. See § 985.433(7)(b), Fla. Stat. (2006); T.A. v. State, 862 So.2d 13, 14 (Fla. 2d DCA 2003). The appellate standard of review is whether the factual findings are supported by competent substantial evidence. See S.L.K. v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001). We review the trial court’s decision on the proper level of placement for an abuse of discretion. See J.L.O. v. State, 721 So.2d 440, 442 (Fla. 5th DCA 1998).

The trial court’s reason(s) for disregarding the departmental recommendation must specifically reference the characteristics of the restrictiveness level relative to the child’s needs, and the court must explain why it came to a different conclusion from the DJJ’s recommendation. See D.J. v. State, 954 So.2d 1282 (Fla. 1st DCA 2007); S.L.K., 776 So.2d at 1062. The disposition order lists five grounds for deviating upward from the DJJ’s recommendation of probation: 1) the DJJ was not wholly objective in its lenient recommendation; 2) the victim was especially vulnerable; 3) defense expert Dr. Spoerl was not really familiar with the DJJ’s programs and did not score the alleged violence; 4) the State’s expert, Dr. Hume-Guilford, was very familiar with the DJJ’s programs and recommended moderate-risk residential placement; and 5) factual similarities between Q.L.J. and Appellant’s case justify the stricter sanction.

As to the first ground, the trial court apparently reasoned that the DJJ was not objective because Appellant’s mother used to work at a center for psychiatric adults and at a juvenile assessment center affiliated with the DJJ. However, no evidence in this record suggests a causal connection between the mother’s former employment and the relatively lenient departmental recommendation.

The court’s second ground is based on the vulnerability of the young victim, who is mentally and emotionally handicapped. The victim’s range for verbal and nonverbal reasoning is low/average, her spatial abilities are in the mild mentally handicapped range, and her overall intellectual abilities fall within the borderline range. Although Appellant asserts that the victim’s special vulnerability is not relevant to Appellant’s placement, the record suggests that a key purpose of sexual and behavioral counseling is to identify and discourage inappropriate conduct, including violent sexual acts against especially vulnerable subjects. The record suggests that Appellant and the victim were frequently in close proximity to each other due to their kinship. The victim was unable to protect herself from Appellant’s predatory sexual advances. Other evidence in the record indicated that Appellant has a habit of grabbing the buttocks and breasts of his female schoolmates. At home, Appellant was allowed to watch pornography. His mother provided him with condoms without discussing sexual activity and personal responsibility. Appellant is at least a moderate risk to public safety. Thus, the trial court properly considered the special vulnerability of the young female victim.

The third ground is based on a fair reading of the testimony of defense expert Dr. Spoerl, who testified she did not know very much about the local program for outpatient sex offender therapy and would defer to the opinions of the State’s expert regarding whether Appellant qualified for a particular treatment program.

The record supports the fourth ground. Dr. Hume-Guilford, who performed comprehensive evaluations and sexual offender treatment for the DJJ, demonstrated her familiarity with in-patient and out-patient sexual offender counseling for juveniles in Florida. After reviewing Appellant’s case, Dr. Hume-Guilford opined that his is not an appropriate case for solely out-patient treatment and probational residence in the community, due to the serious and violent nature of the primary offense. Specifically, the duration of the weekly out-patient treatment sessions in Leon County is not intensive enough for Appellant’s type of ease. This expert expressed concern that some “minimization” of the seriousness of Appellant’s offenses seemed to be occurring, given Appellant’s reputation as a good kid who would not offend. Mere probation and out-patient treatment would make it harder to correct this minimization, especially for a child like Appellant who had never received sexual offender treatment. Dr. Hume-Guilford recommended in-patient treatment and a moderate-risk residential placement, which very likely would be more efficient and therapeutic and would allow Appellant to receive the specific type of needed treatment — sexual education and counseling and anger management — sooner, and more often.

The trial court correctly noted the factual similarities to Q.L.J., 714 So.2d at 628. Q.L.J., a 14-year-old with no prior referrals to the DJJ, committed a sexual battery upon a 5-year-old. The DJJ recommended commitment in a moderate-risk facility. Noting that Q.L.J.’s act would be a life felony if the child were an adult, and that the recommended placement was inappropriate because the child was a danger to society, the trial court placed Q.L.J. in a more secure, high-risk residential program. See Id. at 629. This court affirmed the disposition order and stricter sanction in light of the serious nature of the crime and the circumstances surrounding the commission of the offense. See Id. at 629-30.

Four of the five reasons stated by the trial court for imposing a higher level of restrictiveness are clearly supported by the evidence. Although the record does not support the court’s conclusion that the DJJ was “not being wholly objective” in making its recommended lenient disposition, it is clear from this record that the trial court would have deviated upward for the four valid reasons, irrespective of the unsupported reason. The inclusion of an unsupported ground is harmless error. See J.L.W. v. State, 814 So.2d 1223 (Fla. 3d DCA 2002) (finding harmless error in trial court’s limiting juvenile’s cross-examination of co-respondent who testified for state in delinquency adjudication proceeding).

Accordingly, we AFFIRM the disposition order.

BARFIELD and ROBERTS, JJ., concur.


text:
    Denise D. THOMAS, Appellant, v. Mildred SMITH, Bennie Thomas, Elvira Jackson, Evelyn Jackson, Appellees.
    No. 1D07-2070.
    District Court of Appeal of Florida, First District.
    July 24, 2007.

      Rodney K McIntyre, Jacksonville; William S. Graessle of William S. Graessle & Assoc., Jacksonville, for Appellant.
    Conrad C. Bishop, Jr. of The Bishop Law Firm, Perry, and Michael S. Smith, Perry, for Appellees Bennie Thomas, Elvira Jackson and Evelyn Jackson.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 7, 2007, the Court has determined that the appeal is untimely. Although the lower tribunal granted the appellant’s motion for extension of time within which to file the motion for rehearing, it was without authority to do so. Fla. R. Civ. P. 1.090(b). Consequently, the appellant’s untimely motion for rehearing failed to delay rendition of the underlying order pursuant to Florida Rule of Appellate Procedure 9.020(h). As a result, the notice of appeal, which was filed more than 30 days after rendition of the final judgment, failed to timely invoke the Court’s jurisdiction. Accordingly, the appeal is dismissed for lack of jurisdiction.

BARFIELD, KAHN, and THOMAS, JJ., concur.


text:
    George BROWN, Petitioner, v. Captain James R. WOODARD, et al., Respondents.
    No. 1D07-2220.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    George Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charles J. Stafford, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Hartley v. Fla. Dep’t of Corr., 954 So.2d 684 (Fla. 1st DCA 2007).

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


author: PER CURIAM. FARMER, J.,

text:
    Toby GREENE, Appellant, v. Arlene BORSKY and Joseph Nardinocchi, Appellees.
    No. 4D06-4823.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Sept. 6, 2007.

      Gary L. Rudolf of Rudolf & Hoffman, P.A., Fort Lauderdale, for appellant.
    Lawrence J. Miller and Amy B. Beller of Miller & O’Neill, P.L., Boca Raton, for appellees.
   PER CURIAM.

Toby Greene sued Arlene Borsky and Joseph Nardinocchi, the trustees under a former version of the Toby Greene Trust, regarding the validity of an amendment to the trust. Borsky and Nardinocchi sought, and were granted, attorney’s fees and witness fees to be paid from the trust assets to fund their defense of the trust. Greene appeals the orders granting the fees. We affirm. However, we write to explain the basis of this Court’s jurisdiction over this case.

The orders in this case are appealable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Rule 9.130(a)(3)(C)(ii) provides that appealable non-final orders include those that determine “the right to immediate possession of property.” This Court has previously held that a sum of money is property to which Rule 9.130(a)(3)(C)(ii) can apply. In Florida Discount Properties, Inc. v. Windermere Condominium, Inc., 763 So.2d 1084 (Fla. 4th DCA 1999), a lessor filed a motion to have disputed rent paid into the registry of the court. Id. at 1084. The trial court denied the motion, and the lessor appealed. Id. On appeal, this Court concluded that the order was an appeal-able non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), because it determined “the right to immediate possession of property, i.e., the rent payments.” Id. Likewise, in the present case, the trial court orders determined the right to immediate possession of property, here trust assets to be used by trustees to pay for attorney’s fees and witness fees expended in defense of the trust. As such, we conclude that this Court possesses jurisdiction over this appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and affirm in all respects without further comment.

Affirmed.

GUNTHER, J., and HOROWITZ, ALFRED J., Associate Judge, concur.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Rule 9.130(a)(3)(C)(ii) allows non-final appeals of orders determining the right to immediate possession of property. In describing the purpose of the rule, the Committee Note explains that “[i]t applies to such cases as condemnation suits in which a condemnor is permitted to take possession and title to real property in advance of final judgment. See Ch. 74, Fla. Stat. (1975).” I agree that this description of purpose was not meant to foreclose other applications but merely to suggest the kind of immediate review the drafters had in mind for transfers before judgment of physical property whether real or personal. Nevertheless in Marina Bay Hotel and Club, Inc. v. McCallum, 733 So.2d 1133, 1134 (Fla. 4th DCA 1999), we held that the rule should be narrowly applied.

Its application to orders determining that a sum of money is owed to one of the parties is very dubious. Such an indiscriminate construction enlarges its use to a whole range of orders never contemplated by its drafters. A fundamental principle of appellate courts is to avoid piecemeal review. If this rule were deemed to extend to orders finding that a specific sum of money is due, then this limited exception to piecemeal review would end up swallowing that principle whole. Any order determining that a particular sum is payable could then be appealable. Civil litigation is dominated by attempts to fix a sum due. I do not believe that rule 9.130 was ever intended to have such a sweeping effect.

My belief is strongly sustained by a decision having special application to the present case. In Brake v. Swan, 767 So.2d 500 (Fla. 3d DCA 2000), as here, the probate judge faced a contention by a party to an adversary proceeding claiming that his legal fees should be paid from the estate. That court’s order, like this one, even dealt with a specific sum representing fees owed for services already rendered — in short, a sum said to be now due and payable. Con-cededly Brake was based on a different subdivision of rule 9.130(a)(3)(C)(iv) allowing non-final review of orders determining liability in favor of a party seeking affirmative relief, since repealed. In holding that non-final review of the attorneys fee order was not allowed, the court reasoned:

“Although the probate court set the amount of fees and costs to be awarded, the order deferred to a future date the determination of who should pay the award. The court has reserved jurisdiction to decide whether part of the award should be surcharged against Mrs. Brake individually, or charged against Mrs. Brake’s distributive share of the estate, or whether the estate itself should be charged. Absent that determination, the order is not appealable either as a final judgment or as a non-final appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).” [e.s.]

767 So.2d at 502. The identical construct faces this court. The sum due may have been set, but not who will ultimately pay: the trustee or the trust.

Notwithstanding the difference in the rule 9.130 subdivisions at issue, Brake’s rationale should apply to this case. In Brake the rule allowed appeals from orders determining liability in favor of a party seeking relief, and here the rule allows appeals from orders determining liability for the immediate possession of money. Both subdivisions are based on a liability determination, and so at bottom both are analytically fungible.

In both cases the amount owed by the representative party was fixed but the question was whether the entity could be surcharged for the funds if allowed. Both cases involve whether fees for pending litigation should be paid from the funds administered by the fiduciary. Both are founded on a determination that fees are owed now but the ultimate responsibility for payment awaits the outcome of the dispute. There is no reason for a different interpretive principle. In each case because of the issue left hanging — whether a surcharge would relieve the fund of ultimate responsibility for the debt — the order lacked the immediacy contemplated by the rule.

In my opinion, Florida Discount Properties Inc. v. Windermere Condominium Inc., 763 So.2d 1084 (Fla. 4th DCA 1999), is wrong. It is too expansive an interpretation of a rule that should be tightly circumscribed. The too-generous reading of the rule has led to the decision in this case, which is even further afield from the purpose of the rule. What will be next? Rent payments? Mortgage payments? Alimony payments? Any debt will do. I strongly urge the court to retreat from Windermere and limit rule 9.130(a)(3)(C)(ii) to those rare instances where physical or real property must be transferred before final judgment and hold squarely that money debts are not covered by it.

I would dismiss this appeal.


author: STEVENSON, J.

text:
    T.C., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-645.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Frank A. Kreidler, Lake Worth, for appellant.

      Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Wendie Michelle Cooper, Orlando, for appellee Guardian ad Litem Program.
   STEVENSON, J.

In this case, a mother’s parental rights to sons, E.C. and D.R. were terminated. To terminate parental rights, the State must establish (1) the existence of one of the statutory grounds set forth in chapter 39; (2) that termination is in the child’s best interests; and (3) that termination is the least restrictive means of protecting the child from harm. See, e.g., C.M. v. Dep’t of Children & Families, 953 So.2d 547 (Fla. 1st DCA 2007) (on reh’g). The trial court relied upon sections 39.806(l)(c), 39.806(l)(e) and 39.802(8) as the statutory grounds warranting termination. We affirm. The mother raises a number of issues on appeal. We write to address only one — her contention that termination was not appropriate under any of these statutes because the time for completion of the case plan had not expired and any failures on her part were the result of her incarceration and DCF’s failure to provide services. The record simply does not support the mother’s claim in this regard.

Section 39.802(8), Florida Statutes, provides:

If the department has entered into a case plan with a parent with the goal of reunification, and a petition for termination of parental rights based on the same facts as are covered in the case plan is filed prior to the time agreed upon in the case plan for the performance of the case plan, then the petition must allege and prove by clear and convincing evidence that the parent has materially breached the provisions of the case plan.

The concept of “material] breach!]” is addressed in section 39.806(l)(e)2., which allows for termination where the child has been adjudicated dependent, a case plan has been filed and

[t]he parent has materially breached the case plan by making it unlikely that he or she will be able to substantially comply with the case plan before the time for compliance expires. Time is of the essence for permanency of children in the dependency system. In order to prove the parent has materially breached the case plan, the court must find by clear and convincing evidence that the parent is unlikely or unable to substantially comply ... before time expires ....

“ ‘A trial court’s determination that evidence is cléar and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.’ ” C.M., 953 So.2d at 550 (quoting L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002)).

The mother’s case plan, formally approved on February 15, 2006, required drug treatment, random drug testing, psychological and psychiatric evaluations and recommended treatment, parenting classes, counseling, stable employment and housing, and not committing any new law violations. It is true that the mother was incarcerated from May 23, 2006 through October 6, 2006; that DCF offered the mother no services while she was incarcerated; and that the petition for termination of parental rights was filed some three months prior to the expiration of the case plan.- And, it is these facts the mother relies upon in asserting that the termination was in error as she was not afforded the opportunity to comply.

These facts alone, though, fail to portray the complete picture. The children were initially removed from the home as a consequence of allegations of drug abuse and deplorable conditions in the home. The children were removed a second time about a month later based on similar allegations and placed in shelter in December of 2005. The mother was deemed to have consented to their adjudication as dependent children due to her failure to appear for the proceedings.

As a consequence of the conditions of the home and children, the mother was charged with, and pled guilty to, child neglect. She was sentenced to two years probation. A little less than two months prior to formal adoption of a case plan, DCF held a formal staffing. The mother expressed a desire to immediately begin taking steps to have her children returned and DCF began making referrals. Shortly thereafter, when DCF attempted to contact the mother, they found the number she had provided disconnected and DCF was unable to reach her for approximately the next month. When DCF did finally speak with the mother at the end of January 2006, she had been admitted to a drug abuse halfway house. When DCF tried to contact her there about two weeks later, the mother had left the program as a consequence of a medical condition and failed to return. The mother then failed to appear for a scheduled visit with the children and could not be reached from February 10 through February 14. The next day, the mother’s case plan was formally approved by the court.

On February 15th, the same day her case plan was judicially approved, the mother tested positive for drugs — a violation of her probation for the child neglect charges and her case plan. The mother was incarcerated from February 15 through February 28, 2006, and then released to a drug treatment program and returned to probation. DCF had contact with the mother in March and April, facilitating visitation with the children and making referrals for a psychological evaluation, parenting classes, and counseling. By the middle of April, the mother had left the drug treatment program. The mother did not follow up on any of the referrals nor attempt to advise DCF of her whereabouts. On May 23, 2006, the mother again tested positive for drugs and was arrested for violation of probation.

It is clear that from the time of the children’s removal until the mother’s May 2006 incarceration, DCF made the necessary referrals and attempted to help the mother complete the tasks in her case plan. The mother failed to avail herself of these services. Rather than pursue drug treatment — perhaps the most significant aspect of her case plan, the mother continued to use drugs and twice violated the conditions of her probation by so doing. She failed to take advantage of referrals made by DCF in January, February, March, and April. She had on multiple occasions left DCF without a means of contacting her. By the time of the mother’s May 2006 incarceration, she had already materially breached the terms of her case plan. The breach was not occasioned by DCF’s failure to provide services. And, by the time of the mother’s October release from jail, there was little likelihood that she would or could substantially comply with the case plan. The mother apparently had no inclination to undergo drug treatment because, as of the December 20, 2006 termination hearing, she was not attending AA or NA meetings or receiving any other type of treatment. Further, upon the mother’s release from jail, there were only about two months remaining on a case plan that required the mother to obtain stable housing and employment.

Accordingly, on this record, we find there was competent, substantial evidence to support termination pursuant to sections 39.802(8) and 39.806(l)(e)2. and reject the mother’s claim that the order of termination must be reversed because any breach or failures on her part were occasioned by her incarceration and DCF’s failure to provide her services during such time. Cf In re D.R., 812 So.2d 447 (Fla. 2d DCA2002).

Affirmed.

SHAHOOD, C.J., and WARNER, J., concur.

      . While the mother claimed to have gotten drug treatment while incarcerated, she failed to provide any documentation to substantiate her claims.

      . Our holding makes it unnecessary to consider whether termination was warranted under section 39.806(l)(c). See J.C. v. Dep't of Children & Families, 959 So.2d 431 (Fla. 4th DCA 2007). We have considered the other issues raised by the mother and find them to be without merit.


author: SCHWARTZ, Senior Judge.

text:
    D.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3120.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Rehearing Denied Aug. 10, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

D.G., an eighth grader, appeals from a determination of delinquency based on his possession of the cannabis revealed after, based on the statement of a student-informant that D.G. “may have been in possession of marijuana,” the assistant principal of his middle school ordered him, first from his classroom to her office, and then to empty his pockets. Over the contention that the order, which was undoubtedly equivalent to a fourth amendment search, see C.G. v. State, 941 So.2d 503 (Fla. 3d DCA 2006); Evans v. State, 546 So.2d 1125 (Fla. 3d DCA 1989), was constitutionally improper, we affirm.

The parameters of the inquiry are all clearly established. First, there is no question of the assistant principal’s plenary authority, with or without justification, to summon a student to her office. See J.D. v. State, 920 So.2d 117 (Fla. 4th DCA 2006). Second, Terry standards of reasonable or founded suspicion, see Baptiste v. State, 959 So.2d 815 (Fla. 3d DCA 2007), rather than the ordinary requirement of probable cause to justify a warrantless search apply in the supervisor-student-school setting. See New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); C.G., 941 So.2d at 504. Third, and determinative of the result here, information given by an informant known to the “investigator” — as opposed to a paid confidential informant or a simple anonymous tipster — is widely regarded as itself providing the reasonable suspicion necessary to meet that constitutional test. See State v. J.H., 898 So.2d 240 (Fla. 4th DCA 2005); State v. Bullard, 891 So.2d 1158, 1159-60 (Fla. 4th DCA 2005); State v. Whorley, 720 So.2d 282 (Fla. 2d DCA 1998); State v. D.S., 685 So.2d 41 (Fla. 3d DCA 1996); R.L. v. State, 738 So.2d 507 (Fla. 5th DCA 1999).

This principle finds particular application in the present situation. As was said in New Mexico v. Michael G., 106 N.M. 644, 748 P.2d 17, 20 (1987), cert. denied, 106 N.M. 627, 747 P.2d 922 (1987):

Statements by eyewitness citizen-informants are subject to much less stringent credibility verification requirements than ordinary police informants’ statements because citizens presumably have nothing to gain by fabrication.... In the absence of facts indicating a reason for rejecting this doctrine where students are the informants, we will apply it in this case. A student’s direct statement to a person in authority, indicating personal knowledge of facts which establish that another student is engaging in illegal conduct, may provide school authorities reasonable grounds to search the ... student[ ]_ The willingness to identify oneself to the authorities as an eyewitness provides an accurate indicator of credibility.

Similarly, in C.B. v. Driscoll, 82 F.3d 383, 388 (11th Cir.1996), the court held:

The tip in this case provided sufficient probability, viewed against the “reasonable grounds” standard, to justify the search here. A fellow student provided the information that C.B. carried drugs with the intent of selling them ... to administrators directly, rather than anonymously, and was thus more likely to be reliable because the student informant faced the possibility of disciplinary repercussions if the information was misleading.

Accord, e.g., Wofford v. Evans, 390 F.3d 318 (4th Cir.2004)(students-informants’ tips provided a reasonable basis for belief that student had violated the law); Roy v. Fulton County Sch. Dist., (N.D.Ga. Case no. CrVA 1:06CV08862007, opinion filed, Mar 7, 2007)[2007 WL 757648, at *5](“a direct tip from a student informant generally supplies sufficient grounds to justify a search”); Mass. v. Carey, 407 Mass. 528, 554 N.E.2d 1199, 1203 n. 4 (1990)(“Unlike the anonymous informer, the eyewitness students could be presumed reliable. ‘If the citizen or victim informant is an eyewitness, this will be enough to support probable cause even without specific corroboration of reliability.’ ”) (citations omitted); S.C. v. Miss., 583 So.2d 188, 192 (Miss.1991)(finding reasonable grounds to search student’s locker based on a student tip and stating that because high school students fall into a “less suspect class” than other informants, “[ajbsent information that a particular student informant may be untrustworthy, school officials may ordinarily accept at face value the information they supply.”).

The appellant’s only real response to the adverse application of these principles is that the assistant principal stated that the child who told her about D.G. had given her information on a single prior occasion and that that report had proven incorrect. While this fact may well have been permissibly considered as one of the “mix” of factors which go into the determination of founded suspicion, see S.V.J. v. State, 891 So.2d 1221 (Fla. 2d DCA 2005); A.N.H. v. State, 832 So.2d 170 (Fla. 3d DCA 2002); T.J. v. State, 538 So.2d 1320 (Fla. 2d DCA 1989); State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983); A.B. v. State, 440 So.2d 500 (Fla. 2d DCA 1983); see also State v. Thomas, 960 So.2d 869 (Fla. 2d DCA 2007), it surely does not, as a matter of law, rebut the presumption of reliability or the reasonable basis of the assistant principal’s (and the trial court’s) conclusion that the report was sufficient. See Wofford, 390 F.3d at 326 (“We have no reason to doubt the decision of school officials to credit the pupils’ claims. Indeed, [the school officials’] educational expertise and familiarity with the students involved invite deference to their judgment.”); Carey, 554 N.E.2d at 1203, n. 4 (“the eyewitness account of [the student’s] possession of a gun at school by two students to a teacher who knew them, may well have constituted probable cause to search”); Morse v. Frederick, — U.S. -, 127 S.Ct. 2618, — L.Ed.2d - (2007)(Roberts, C.J.)(affording great weight to school authorities’ judgment); id. at 2636 (Alito, J., concurring); see also Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)(sufficient indicia of reliability to justify stop where informant was personally known to officer, had provided officer with information in the past, had come forward personally to give immediately verifiable information and was subject to immediate arrest for making a false statement if tip incorrect); State v. Miranda, 701 So.2d 424 (Fla. 3d DCA 1997)(citing Adams); see generally Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)(noting that “reasonable suspicion can arise from information that is less reliable than that required to show probable cause” (citing Adams)); Adams, 407 U.S. at 147, 92 S.Ct. 1921 (“[W]hile the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, the information carried enough indicia of reliability to justify the officer’s forcible stop.”) (citations omitted); id. at 156-57, 92 S.Ct. 1921 (Marshall, J., dis-sentingXnoting that only information previously given by informant was unsubstantiated); 2 Wayne R. LaFave, Search and Seizure, § 3.4(a) at 229-30, and cases cited at 230 nn. 55-56 (4th ed.2004)(if a witness initially gives false information, it should be acted upon only when there is “a reason for the earlier false information which does not carry over to the later allegations”). As the Supreme Court said in Illinois v. Gates, 462 U.S. 213, 245 n. 14, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), “we have never required that informants used by the police be infallible and can see no reason to impose such a requirement in this case.” See Jenkins v. State, 924 So.2d 20, 24 (Fla. 2d DCA 2006)(“When the police rely on information from a confidential informant, they must have some basis for establishing the informant’s reliability, but there is no ‘require[ment] that informants used by the police be infallible.’ ” (quoting Gates)), review granted, 944 So.2d 345 (Fla.2006).

Affirmed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    S.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-597.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Herscher & Herscher and llene Herscher, Coral Gables, for appellant.

      Department of Children and Family Services and Karla Perkins, Assistant District Legal Counsel, for appellee.
    Before COPE and SUAREZ, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

S.A. appeals from a decision of the trial court adjudicating her two children dependent. We affirm.

S.A. was observed driving recklessly, i.e., driving into oncoming traffic and making turns across several lanes of traffic, on a major roadway in Tampa, Florida, as though she were trying to cause a serious accident. When stopped by Officer Hogue of the Tampa Police, S.A. stated that she was trying to kill herself. The two children were also in the car. S.A. was taken to a local hospital, where she checked herself in for observation but was not immediately allowed to leave. The children were placed in a shelter on July 10, 2006 and thereafter placed in the custody of their father, who lives in Hialeah. S.A. has been hospitalized in the past for mental illness. A petition for dependency was filed on July 17, 2006.

At the adjudicatory trial on November 16, 2006, the Department of Children and Family Services (“DCFS”) moved to allow Officer Hogue to testify telephonically because he was on vacation and the Tampa Police Department refused to fly him to Miami for the trial. S.A., through counsel, objected to Officer Ho-gue’s testifying by telephone. Officer Ho-gue was allowed to testify by telephone, over S.A.’s objection.

Rule of Judicial Administration 2.530(d)(1) states: “A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.” (Emphasis added). Communication equipment includes a conference telephone such as was used in this case. Id. R. 2.530(a).

Under the rule, trial testimony can be taken by telephone only if all parties consent. S.A. objected. The objection should have been sustained. The court erred by allowing the officer to appear by telephone.

The next question is whether the error was harmless. We conclude that it was. This was a dependency proceeding decided by a preponderance of the evidence. Even if Officer Hogue had been excluded, we think that by a preponderance, the trial court would have entered the dependency order based on the other evidence in the case.

S.A.’s second issue on appeal is that the trial court allowed Dr. DiThomas-so, a psychologist, to testify at trial as to S.A.’s mental health when he was not listed as a witness. Dr. DiThomasso’s office had recently evaluated S.A. and the two children. He stated that S.A. suffered from major mental illness, provisionally diagnosed as bi-polar disorder. He also testified that S.A. did not understand the severity of her illness and this kept her from obtaining regular psychiatric care. Dr. DiThomasso also stated that without psychiatric treatment, S.A. could have another episode and if the children were with her they would be at risk of harm.

Under the applicable rules, S.A. had the right to be notified in advance of trial that DCFS would be calling Dr. DiThomasso to testify as to the results of the mental examination. See Fla. R. Juv. P. 8.245(b)(2)(A), (E). The trial court recognized that the objection was well taken. Counsel for S.A. indicated that she wanted to interview Dr. DiThomasso for twenty or thirty minutes before Dr. DiThomasso testified. After some discussion about whether to hear Dr. DiThomasso’s testimony the same day, or continue the hearing to a future date, it was agreed to proceed the same day. As requested, counsel for S.A. interviewed Dr. DiThomasso before he testified. Because the court granted the relief requested by S.A.’s counsel, we conclude that the failure to list the witness was cured.

For the above stated reasons, the adjudication of S.A.’s children as dependent is affirmed.

      . S.A. later denied she told Officer Hogue that she was trying to kill herself.


author: POLEN, J.

text:
    Larry POMERANZ, Appellant, v. Ina T. POMERANZ, Appellee.
    No. 4D06-2158.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Sept. 7, 2007.

      Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellant.
    No brief filed for appellee.
   POLEN, J.

Larry Pomeranz (“former husband”) appeals an order on Ina T. Pomeranz’s (“former wife”) motion to compel, deriving from a final judgment of dissolution of marriage. We reverse in part the appealed order granting former wife’s motion to compel.

Former wife filed a petition to dissolve her six-year marriage to former husband. In its final judgment of dissolution of marriage, the trial court designated former wife primary residential custodial parent of the parties’ minor children and determined that the parties would have shared parental responsibility. Former wife later filed a motion to compel former husband to, among other things, attend the children’s swimming lessons, cease engaging the children in inappropriate conversation involving the litigation and/or disputes between him and former wife, and help make plans for one of their children to receive counseling/therapy. The trial court held a hearing and granted former wife’s motion, stating:

The parties have shared parental responsibility and it shall be the responsibility of the father to set up a legitimate conference with the mother concerning any major decision regarding the health, education and general welfare of the children. The parties are to confer and consult with one another about these subjects. In the event the parties are unable to agree, the mother’s decision shall prevail for all reasons stated in the transcript....

On appeal, former husband argues that the trial court abused its discretion when, in granting former wife’s motion to compel, the court modified the terms of the final judgment to allow former wife ultimate authority over decisions relating to the health, education and general welfare of the children. He claims that this constituted an improper modification of the final judgment without proper pleadings. We agree.

A modification seeks to change the status quo and seeks a new benefit for one party. Dickinson v. Dickinson, 746 So.2d 1253, 1254 (Fla. 5th DCA 1999). On the other hand, a clarification does not seek to change rights and obligations, but to make a judgment more clear and precise. Fussell v. Fussell, 778 So.2d 517, 518 (Fla. 1st DCA 2001). In order for the trial court to modify a final judgment, the moving party must present the issue by appropriate pleadings. McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999). To obtain modification, a party must also demonstrate a substantial change in circumstances necessitating the modification together with a determination that the best interests of the child will be promoted by the change. Sullivan v. Sullivan, 736 So.2d 103, 105 (Fla. 4th DCA 1999).

Here, the trial court granted former wife primary residential custodianship and ordered shared parental responsibility in its final judgment. It did not grant former wife ultimate responsibility over specific aspects of the child’s welfare, including education and healtheate, pursuant to section 61.13(2)(b)2.a, Florida Statutes (2004). Four months after entry of the final judgment, former wife filed a motion to compel. In her motion, former wife did not seek sole parental authority (nor did she ask the court to modify the final judgment), yet the trial court gave her this right should the parties not agree in decisions relating to the children’s welfare. The court did so because the parties had been unable to resolve these issues themselves. However, this constituted a modification of the final judgment because it conferred a new benefit on former wife. See Dickinson, 746 So.2d at 1254. Absent a petition for modification, the trial court lacked subject matter jurisdiction to make this change to the parties’ rights. See McDonald, 732 So.2d at 506.

We therefore find that the court abused its discretion in modifying the final judgment and we accordingly reverse in part its order on former wife’s motion to compel. Reversal should not be construed as prohibiting the court from considering a properly filed petition for modification.

As to the other issue raised on appeal — whether the trial court abused its discretion in denying former husband’s motion to enforce former wife’s compliance with the Hillel school provision of the final judgment — we affirm. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) (standard of review for dissolution of marriage proceedings is abuse of discretion).

In the final judgment, the court ordered that, “As the primary residential parent, the Wife shall make the decision with regard to school; however, if the Husband wants to provide for the full tuition, up front, for the children to attend Hillel, then they may continue to attend Hillel....” Former husband subsequently arranged for payment of the Hillel Day School of Boca Raton tuition in advance of the upcoming school year (the final judgment was entered in the summer of 2005), albeit through scholarship. But former wife refused to permit the children to attend Hillel. Former husband consequently filed a Motion to Enforce Mother’s Compliance with Hillel School/Motion for Contempt, in which he alleged that former wife placed the children in public schools in willful and intentional violation of the final judgment and requested that the trial court enter an order allowing the minor children to attend Hillel.

The trial court, however, denied former husband’s motion. In so doing, it found the Hillel school provision of the final judgment meant that former wife had the option of sending the children to Hillel should former husband pay tuition. Thus, according to the court, choice of school was ultimately former wife’s. The court explained that it had not reconsidered or corrected the final judgment, but had clarified what it had previously said.

As noted above, a clarification does not seek to change rights and obligations, but to make a judgment more clear and precise. Fussell, 778 So.2d at 518. Furthermore, “A court may clarify what is implicit in a final judgment, and enforce the judgment.” Encarnacion v. Encarnacion, 877 So.2d 960, 963 (Fla. 5th DCA 2004). Here, the relevant language in the final judgment was ambiguous as to whether former wife had final authority to determine which school(s) the minor children attended. The court’s use of “may,” as in “if the Husband wants to provide for the full tuition, up front, for the children to attend Hillel, then they may continue to attend Hillel ....”) (emphasis added), could have been interpreted as allowing former wife this ultimate authority, even should former husband offer to pay the tuition. Thus, it was within the trial court’s discretion to make a clarification. See id. This is particularly the case where, as here, the clarification had an equitable result (former wife sends the children to an A-rated public school). See Stebbins v. Stebbins, 435 So.2d 383, 386 (Fla. 5th DCA 1983) (Sharp, J., dissenting) (stating that although property settlement agreement was somewhat ambiguous in its terms, trial court’s interpretation should be affirmed because it had an equitable result).

Affirmed in Part; Reversed in Part.

STEVENSON and TAYLOR, JJ„ concur.


author: GROSS, J.

text:
    HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, INC., Manor Care Health Services, Inc., d/b/a Heartland Health Care, Petitioners, v. Peggy BRADLEY as Personal Representative of the Estate of Buford Allen Fennel, Jr., Respondent.
    No. 4D07-437.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Aug. 27, 2007.

      Christopher J. Kaiser and Sylvia H. Walbolt of Carlton Fields, P.A., St. Peters-burg, and Barry A. Postman and Lee M. Cohen of Cole, Scott & Kissane, P.A., West Palm Beach, for petitioners.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, for respondent.
   GROSS, J.

In Health Care and Retirement Corporation of America v. Bradley, 944 So.2d 508 (Fla. 4th DCA 2006), this court granted a petition for writ of certiorari because the circuit court erred in failing “to apply the irrefutable presumption” of Florida Rule of Professional Conduct 4-1.9 that confidences were disclosed between a client and its former attorney. We did not “make any determination as to whether Manor Care has made a sufficient showing of the second factor needed to disqualify its former lawyer: [that] the former representation was ‘in the same or a substantially related matter.’ ” Health Care, 944 So.2d at 513. We indicated that the trial court could hear additional evidence on the issue of disqualification pursuant to Rule 4-1.9(a).

On remand, without taking any additional evidence, the circuit court again denied the motion to disqualify the law firm of Gordon & Doner, P.A. The court’s oral ruling correctly applied the “irrefutable presumption” and focused on the issue identified in our earlier opinion; however, the order supplied by counsel and signed by the court appears to contradict the presumption. Nonetheless, because we find that this case was not “substantially related” to the earlier representation under the rule, we deny the writ.

Filed on August 24, 2005, this lawsuit involves allegations of neglect at a nursing home leading to the death of a resident in Manor Care’s Boca Raton facility on September 13, 2003. The complaint brings six causes of action, including claims arising under Chapter 400, Florida Statutes and general negligence counts. The complaint contends that the facility failed to monitor the decedent’s “skin integrity,” allowing for the development of “pressure ulcers.” Also, the complaint alleges that the facility failed to take adequate measures to prevent falls.

From February, 2001 to December, 2004, Scott Fisher represented Health Care and Retirement Corporation of America (“Manor Care”) as an associate with the law firm of Cole, Scott & Kissane, P.A. Fisher billed in excess of 2,100 hours to Manor Care in at least 60 cases. Many of the cases involved the same type of negligence as in this case, concerning pressure ulcers and falls.

At the end of December, 2004, Fisher left Cole, Scott. He began to work for Gordon & Doner in January, 2005. Manor Care filed a motion to disqualify Fisher and Gordon & Doner due to Fisher’s prior representation of Manor Care.

As we wrote in Health Care,

Cases which seek the disqualification of a party’s chosen counsel present complicating issues that oftentimes result in conflict between important rights: (1) the right to choose one’s own counsel, and (2) the protection of the judicial system’s appearance of fairness.

Rules Reg. Fla. Bar 4-1.9 cmt. (2006).

944 So.2d at 510 (citations omitted). The Comment to Rule 4-1.9 indicates that the rule is not to be broadly applied to require disqualification:

[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.

In 2006, the supreme court approved amendments to the Comment that narrowly defined the concept “substantially related”:

Matters are “substantially related” for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client. For example, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent.

In re Amendments to the Rules Regulating the Florida Bar, 933 So.2d 417, 445 (Fla.2006).

The Rule 4-1.9 comment defining “substantially related” is consistent with the leading case of Sears, Roebuck & Company v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979). The supreme court cited Stansbury with approval in State Farm Mutual Automobile Insurance v. K.A.W., 575 So.2d 630, 633 (Fla.1991). In Stans-bury, a lawyer represented Sears and its manufacturer/supplier in a 1969 products liability lawsuit alleging a defect in a Craftsman rotary power lawnmower. 374 So.2d at 1052. In 1978, a lawyer in the same firm filed a products liability lawsuit on behalf of a plaintiff against Sears and its manufacturer/supplier alleging a defect in the same lawnmower that was involved in the 1969 action. Id. Applying Canon 4 of the Florida Code of Professional Responsibility, the fifth district stated the rule that controlled the case:

[B]efore a client’s former attorney will be disqualified from representing a party whose interests are adverse to the former client’s, the former client must show that the matters embraced in the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client.

Id. at 1053. The court found that the connection between the two cases was “obvious,” so that they were “substantially related” and disqualification was required.

The holding of Stansbury would be the same under the 2006 Comment to Rule 4-1.9. The second lawnmower lawsuit required the attorney to “attack[ ] work that the lawyer performed for the former client[s]”; the lawsuit sought to establish the defectiveness of the same lawnmower that the lawyer defended from the same attack in the first lawsuit.

Here, Fisher handled a “type of problem” for Manor Care — negligence cases involving patients who suffered from pressure ulcers or falls; the current case, filed after Fisher left Cole, Scott, is a “wholly distinct problem of that type.” Rules Reg. Fla. Bar 4-1.9 cmt. (2006). Unlike two products liability cases involving the identical product, each negligence case turns on its own facts. Therefore, the work in this case does not involve Fisher “attacking [the] work that [Fisher] performed for the former client.” Id. This lawsuit is not “substantially related” to the earlier cases within the meaning of Rule 4 — 1.9(a).

The petition for writ of certiorari is denied.

SHAHOOD, C.J., and POLEN, J., concur.

      . Petitioner Health Care and Retirement Corporation of America, Inc.


text:
    Ryan John WEBBER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1047.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Lyons, Lurvey Expósito, P.A., and Daniel Lurvey, Miami, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., FLETCHER, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Johnson v. State, 944 So.2d 474 (Fla. 4th DCA 2006); Perez v. State, 717 So.2d 605 (Fla. 3d DCA 1998).


author: KLEIN, J.

text:
    Mark FEINSTEIN, Appellant, v. William H. ASHPLANT, Appellee.
    No. 4D06-2446.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

      Jason B. Dubow of Dubow, Dubow & Wallace, Dania Beach, for appellant.
    No brief filed for appellee.
   KLEIN, J.

Appellant obtained a summary judgment of foreclosure of a mortgage against appel-lee, but the trial court refused to award appellant a prepayment fee which was required by the promissory note. The pertinent portion of the note provided:

Acceleration of the debt as set forth hereinunder constitutes an involuntary prepayment for which the prepayment fee provided for elsewhere herein shall be due and payable.

The trial court denied the fee on the ground that prepayment fees are discretionary. We reverse.

The trial court concluded that it had discretion to not award the prepayment fee based on Florida National Bank v. Bankatlantic, 589 So.2d 255, 258-59 (Fla.1991), which adopted the following reasoning of this court in Florida National Bank v. Bankatlantic, 557 So.2d 596, 598 (Fla. 4th DCA 1990), as follows:

We endorse the general rule that unless otherwise specifically provided for in the note, the lender cannot upon the lender’s acceleration also collect the prepayment penalty. Such a rule is based on the premise that it was the lender’s voluntary choice of exercising the option to collect full payment now, rather than waiting, that accelerated the maturity date of the loan. However, it is axiomatic that a party to a contract should not profit from his own intentional default. We feel that courts should deal with the difficulty of intentional defaults by denying the acceleration exception and finding liability for the prepayment penalty in appropriate cases. In commercial settings, under scenarios such as the instant case, courts should be allotted the discretion to consider the question of timeliness of default, the voluntary nature of the tender of full payment of the note and the involuntary nature of the lender’s action to accelerate the note and make exceptions to the general rule. The trial court weighed these considerations and we affirm its finding of liability-

Fla. Nat’l Bank v. Bankatlantic, 589 So.2d at 258-59. That case is distinguishable, however, in that the Bankatlantic promissory note included two entirely separate and unconnected clauses, one providing for involuntary acceleration of the loan upon default, and the other providing for prepayment fees upon voluntary prepayment. In this case, the contract expressly provides that involuntary acceleration upon default would constitute prepayment subject to the prepayment fee.

The precise issue involved in this case was recently addressed in Feinstein v. New Bethel Missionary Baptist, 938 So.2d 562 (Fla. 3d DCA 2006), involving this same appellant and a similar provision.

In holding that, where the note specifically provides that acceleration by the lender will obligate the borrower to pay the prepayment fee, the fee is owed, the court quoted from Westmark Commercial Mortgage Fund IV v. Teenform Associates, L.P., 362 N.J.Super. 336, 827 A.2d 1154, 1161 (N.J.Super.Ct.App.Div.2003):

While there is a certain ineluctable logic to the statement that payment after acceleration cannot be considered prepayment, we can perceive no reason why the debtor should be relieved of the terms of the contract freely entered into. The terms were clear and unambiguous, the parties clearly experienced and sophisticated in loan transactions of this type. The certainty of the remedy provided by the clause undoubtedly affected the pricing of the loan. If we were to deem the clause unenforceable, we would be providing defendants with a better contract than they were able to negotiate for themselves; we decline to do so.

We agree with Feinstein and hold that under a provision requiring the prepayment fee where the lender accelerates, there is no discretion to deny payment of the fee.

Reversed.

STEVENSON and MAY, JJ., concur.


text:
    ADULT COMMUNITIES TOTAL SERVICES, INC., a Commonwealth of Pennsylvania, not-for-profit corporation, Appellant, v. ESTATE OF Anna S. ZIMMERMAN and Frederick C. Ermel, Personal Representative of the Estate of Anna S. Zimmerman, Appellees.
    No. 4D06-4020.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Sept. 6, 2007.
    Guy M. Shir and Patrick Dervishi of Kahan, Shir, P.L., Boca Raton, for appellant.
    Casey Walker of Murphy & Walker P.L., Vero Beach, for appellees.
   GROSS, J.

We reverse a summary final judgment entered in favor of appellees. The judgment awarded an entrance fee refund, with credits, arising after the termination of a resident contract with a continuing care facility. We agree with appellant that under the terms of the contract, a resident’s entitlement to a refund depended upon the “termination” of the contract; termination did not become effective until either 30 days after receipt of notice of termination or surrender of the unit, whichever occurred later. In the light most favorable to appellant, the record shows that appellant waived the requirement of written notice, but not the “30 day” or “surrender” requirements necessary to complete a termination of the contract. Mrs. Zimmerman died nine days after her daughter gave the oral notice of termination. We do not address any issues under Chapter 651, Florida Statutes (2006), because the trial court did not rule on them.

Reversed and remanded.

STONE and POLEN, JJ., concur.


text:
    Juan MATOS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1790.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Aug. 28, 2007.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Juan Matos has filed a petition for writ of prohibition arguing that the trial court is without jurisdiction to proceed because the statute of limitations has expired. Prohibition is a proper method to bring this type of challenge. Pontius v. State, 932 So.2d 618 (Fla. 4th DCA 2006) (citing Cheffer v. Judge, Div. ‘S’, 15th Judicial Circuit, 614 So.2d 632 (Fla. 4th DCA 1993)). We grant the petition and direct the dismissal of the charges.

This is not a case like those relied on by the trial court and the State which involved the State’s filing of an amended information. See, e.g., Rubin v. State, 390 So.2d 322 (Fla.1980); State v. Garofalo, 453 So.2d 905 (Fla. 4th DCA 1984). Here, the State filed a nolle prosequi after the statute of limitations had expired. A nolle prosequi effectively ends the proceeding and any subsequent action is a nullity. See, e.g., State v. Vazquez, 450 So.2d 203, 204 (Fla.1984) (nolle prosequi amounts to nullification of information and renders nugatory any proceedings carried on subsequently under same information); Pur chase v. State, 866 So.2d 208 (Fla. 4th DCA 2004); see also Sadler v. State, 949 So.2d 303 (Fla. 5th DCA 2007). Though the State immediately refiled the information addressed to the same charges, it was after the statute of limitations expired. Compare Geiger v. State, 532 So.2d 1298 (Fla. 2d DCA 1988). Consequently, Ma-tos’s motion to dismiss should have been granted. See, e.g., Ball v. Goodman, 249 So.2d 481 (Fla. 3d DCA 1971).

Petition Granted.

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


author: THOMAS, J.

text:
    LAND O’SUN MANAGEMENT CORPORATION, Appellant, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Appellee.
    No. 1D06-5331.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Rehearing Denied Aug. 31, 2007.

      Robert D. Fingar of Frank, Gramling & Fingar, Tallahassee, for Appellant.
    Richard Burton Bush of Bush, Augspur-ger & Lynch, P.A., Tallahassee; Richard S. Kuhl, M. Elizabeth Medaglia and Daniel J. Lynn of Jackson & Campbell, P.C., Washington, D.C., for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s order dismissing its claim without leave to amend and ordering that any further action by Appellants shall be brought in the state of New York. We affirm.

Appellee issued an insurance policy insuring Appellant’s gas station. The policy included coverage for defense costs which may be incurred in administrative proceedings seeking to impose clean-up costs to Appellant due to underground pollution occurring at the gas station. When Appellee was notified of a pending administrative action, it refused to defend, contending the contamination occurred prior to the retroactive date of the policy. The Florida Department of Environmental Regulation agreed; however, it found that Appellant was entitled to remediation costs pursuant to section 376.3072, Florida Statutes (1992). Appellant then filed a lawsuit seeking reimbursement for its defense costs, alleging that Appellee wrongfully failed to defend it in the administrative action before the determination was made regarding the date of contamination.

Appellee filed a motion to dismiss or transfer Appellant’s lawsuit for improper venue based on the Choice of Law and Forum selection clause contained in the policy. The provision states:

IX. CHOICE OF LAW AND FORUM
If the Company and the Insured disagree about the meaning, interpretation or operation of any term or condition of this Policy and the disagreement results in litigation, arbitration or other form of dispute resolution, then such litigation, arbitration or other form of dispute resolution shall take place in the state of New York and New York law shall apply-

(Emphasis supplied.)

Appellant concedes this is a mandatory forum selection clause, but argues that its enforcement is unreasonable and unjust because it violates Florida’s interest in environmental protection and insurance regulation. We decline to accept Appellant’s invitation to declare the forum selection clause invalid on public policy grounds because the constitutional requirement of the separation of powers precludes this court from directing the legislative branch to adopt certain policy statements such as the one Appellant urges upon us. See Fla. Const., Art. II, § 3.

A mandatory forum selection clause must be enforced unless it is shown to be unreasonable or unjust. Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986). In order to show that a clause is unreasonable, the party seeking to escape the clause must demonstrate more than “mere inconvenience or additional expense.” Id. at n. 4.

[I]t should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain.

Id. (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

This court has explained, “Man-rique essentially adopted the three-pronged test announced by the United States Supreme Court in Bremen .... ” Haws & Garrett Gen. Contractors, Inc. of Ft. Worth v. Panhandle Custom Decorators & Supply, Inc., 500 So.2d 204, 205 (Fla. 1st DCA 1986). The three-pronged test adopted in Manrique requires that the chosen forum not be the result of unequal bargaining power by one of the parties; that enforcement of the agreement does not contravene strong public policy enunciated by statute or judicial fíat in the forum where the litigation is required to be pursued or in the excluded forum; and that the clause does not transfer an essentially local dispute into a foreign forum. Id.; Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1082 (Fla. 5th DCA 2003). A clause which violates one of the enumerated factors should not be enforced. See Haws at 206.

The legislature has not specifically addressed forum selection clauses contained in environmental insurance policies; however, it has determined that the Office of Insurance Regulation must review and approve insurance policies drafted by insurance companies doing business in Florida. See §§ 624.401(1), 627.410(1), Fla. Stat. (2006). Because the policy here, including the forum selection clause, was reviewed and approved by the Office of Insurance Regulation, it cannot be said that the clause violates strong public policy enunciated by statute or judicial fiat. In addition, the clause represents a contract obligation assumed by one of the contracting parties. The contracting parties have the right to demand that the litigation occur in the contractually selected forum. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999).

Because the constitutional requirement of the separation of powers precludes this court from directing the legislative branch to adopt certain policy statements, and because Appellant has not shown that the forum selection clause violates any of the factors listed in Haws and Manrique, we must affirm.

AFFIRMED.

BENTON and PADOVANO, JJ., concur.


author: PER CURIAM. KAHN, J.,

text:
    Janet Starnes FULMER, Appellant, v. Hobson FULMER, Appellee.
    No. 1D06-3132.
    District Court of Appeal of Florida, First District.
    July 26, 2007.

      Thomas L. Powell of Powell & Mack, Tallahassee, for Appellant.
    J. Gordon Shuler of Shuler & Shuler, Apalachicola, for Appellee.
   PER CURIAM.

The former wife seeks review of the final judgment which dissolved her marriage to the former husband. The former wife raises several issues regarding the equitable distribution of property, and the denial of alimony and attorneys’ fees. We affirm the dissolution of the parties’ marriage and the denial of alimony, but reverse the award of equitable distribution and the denial of attorneys’ fees, and remand to the trial court for further proceedings consistent with this opinion.

Section 61.075(3), Florida Statutes, requires a trial court to make written factual findings when determining the equitable distribution of property in a dissolution of marriage. These factual findings required by section 61.075(3) are necessary in order to facilitate effective appellate review of the trial court’s property distribution scheme. See Shoffner v. Shoffner, 744 So.2d 1157 (Fla. 1st DCA 1999); Walsh v. Walsh, 600 So.2d 1222, 1223 (Fla. 1st DCA 1992); Plyler v. Plyler, 622 So.2d 573 (Fla. 5th DCA 1993). When a trial court fails to make the statutorily required factual findings, a remand is necessary. See Shoffner, 744 So.2d at 1157; Crockett v. Crockett, 708 So.2d 329 (Fla. 1st DCA 1998); Walsh, 600 So.2d at 1223. Furthermore, the trial court is required to make factual findings with regard to the award or denial of alimony. See § 61.08, Fla. Stat. (2005); See Zeigler v. Zeigler, 635 So.2d 50, 53 (Fla. 1st DCA 1994). Failure to provide these required findings also constitutes reversible error. See Perrin v. Perrin, 795 So.2d 1023 (Fla. 2d DCA 2001); Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001). In addition, the absence of findings of fact regarding the parties’ needs and ability to pay renders a trial court’s decision regarding attorneys’ fees impossible to review. See Perrin, 795 So.2d at 1023; Walsh, 600 So.2d at 1223.

In the instant case, the trial court failed to make the requisite factual findings with regard to the equitable distribution of property and, likewise, failed to determine the parties’ respective needs and ability to pay their attorneys’ fees. We, therefore, reverse the equitable distribution of property and the denial of attorneys’ fees and remand for further proceedings.

However, with regard to the denial of alimony, although the trial court did not make all of the requisite factual findings mandated by section 61.08, Florida Statutes, the denial was not in error. The age of the parties and the length of the marriage were not in dispute, and the trial court found that the appellant’s contribution to the marriage was somewhere between negligible and extraordinary. The appellant was awarded three pieces of real property capable of producing rental income, earned approximately $36,000 per year, and was awarded a $330,000 equalizer payment by the trial court. Furthermore, the marriage of the parties lasted fourteen years, which is in the “grey area” between short-term and long-term marriages, and there is no presumption for or against alimony. See Zeigler, 635 So.2d at 53. Therefore, because competent substantial evidence supports the trial court’s denial of th'e appellant’s request for alimony, a remand is not necessary due to a lack of factual findings. See Freilich v. Freilich, 897 So.2d 537, 542-43 (Fla. 5th DCA 2005) (internal citations omitted).

Accordingly, we affirm the judgment of dissolution of marriage and the denial of alimony; however, we otherwise reverse the final judgment of dissolution of marriage due to the trial court’s failure to make findings of fact in support of its equitable distribution of property and denial of attorneys’ fees. We remand for factual findings as required by Chapter 61. If necessary, the trial court may hear additional evidence in order to make the required factual findings in support of its determinations. See Shoffner, 744 So.2d at 1157. Furthermore, in the interests of the parties and judicial economy, the chief judge of the circuit court is directed to assign this case to the trial judge who entered the final judgment for the purpose of conducting further proceedings consistent with this opinion. Id.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LEWIS, and HAWKES, JJ., concur.

KAHN, J., concurs with written opinion.

KAHN, J.,

concurring.

I concur in the judgment of the court reversing as to the equitable distribution and attorneys’ fees. A final judgment of dissolution lacking in the statutorily-mandated findings regarding equitable distribution is nevertheless subject to harmless error analysis. See, e.g., Stern v. Stern, 636 So.2d 735 (Fla. 4th DCA 1993); cf. Maddox v. Maddox, 750 So.2d 693, 694 (Fla. 1st DCA 2000) (“The final judgment may offer support for the trial court’s equitable distribution even though the relevant findings are not properly labeled as finding of fact pursuant to section 61.075(3), Florida Statutes (1997).”) The present order is not amenable to such analysis. The order fails to delineate marital and non-marital property and further lacks justification for the distribution of those assets actually addressed. I therefore agree with the majority that we are hamstrung in our attempt to apply the familiar abuse of discretion test to the order before us. For these reasons, I join in the judgment of the court, but reiterate the general application of the harmless error test in these cases. The existence of such a test on review should never encourage trial courts to craft final judgments of dissolution that do not meet the requirements of section 61.075:

The obligation to make findings may well be viewed as burdensome by some trial judges. Nevertheless, such a requirement serves the laudatory goals of avoiding arbitrary outcomes and facilitating efficient appellate review. Findings of fact are also required in cases of equitable distribution of marital assets under section 61.075, Florida Statutes (1997). Of note, the equitable distribution statute recognizes that such findings are necessary not only to facilitate review, but also “to advise the parties ... of the trial court’s rationale .... ” § 61.075(3)(d), Fla. Stat. (1997).

McCarty v. McCarty, 710 So.2d 713, 715 (Fla. 1st DCA 1998).