author: SUAREZ, J.

text:
    Kenneth J. NIBLACK, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, OFFICE OF CHILD SUPPORT ENFORCEMENT ex. rel. Letricia BACON, Appellee.
    No. 3D06-2423.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Jason A. Setchen; Peter J. Solnick, for appellant.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Kenneth J. Niblack appeals a final order denying his exceptions to the general master’s report enforcing a child support order entered in San Diego County, California, in 1986, and domesticated in Miami-Dade County, Florida, in 2003. The trial court affirmed the report of the general master which enforced the arrearage in child support for approximately $46,658.00. We affirm and remand for an evidentiary hearing with directions.

Because unpaid child support payments remain a vested right of the child and cannot be canceled or reduced retrospectively absent extraordinary or compelling circumstances, see, e.g., State v. Ductant, 957 So.2d 658 (Fla. 3d DCA 2007), we affirm the trial court’s order enforcing the appellant’s child support ar-rearage; however, we remand with directions for the trial court to hold an evi-dentiary hearing to determine Niblack’s ability to pay, and to credit him with any set-offs for child support which he has already paid.

Affirmed, remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    N.R.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and The Guardian Ad Litem Program, Appellees.
    No. 3D06-3124.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Dennis E. Berger, Miami, for appellant.
    Karla Perkins, Department of Children and Families, Miami; Hillary S. Kambour, Guardian ad Litem Program, for appellees.
    Before SUAREZ, CORTIÑÁS, and ROTHENBERG, JJ.
   SUAREZ, J.

The father, N.R.R., appeals from a final order terminating his parental rights to the minor child, C.R. We affirm.

N.R.R. was alleged to have sexually abused C.R.’s half-sibling, who was twelve years old at the time of removal from his custody. An expedited petition to terminate the father’s parental rights was filed on September 8, 2006, under section 39.806(l)(f), Florida Statutes (2006), which provides for termination when the parent has committed “egregious abuse” of a child or the child’s sibling. Termination of parental rights was also requested pursuant to section 39.806(l)(d)l, Florida Statutes (2006), which provides for termination when the parent is incarcerated for a substantial portion of the child’s minority.

N.R.R. was convicted of sexual battery and was sentenced to life plus thirty years for the abuse which occurred to C.R.’s sibling. The trial court terminated the father’s parental rights, based on the repeated sexual abuse of his step-daughter, and the incarceration for sexual battery for a substantial portion of time before C.R. would reach eighteen years of age.

Upon review of the record, we find the final order terminating N.R.R.’s parental rights is supported by substantial competent evidence. Therefore, the trial court’s order is affirmed.


author: PER CURIAM.

text:
    William J. ALBRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4175.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    Rehearing Denied July 13, 2007.
    William J. Albritton, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Albritton filed a motion for post-conviction relief in six separate cases. The trial court summarily denied the motion. We find Albritton was entitled to relief as to Count III in case number 02-3160-CF-A-W. It was improper for the trial court to sentence Albritton to five years in the Department of Corrections followed by five years probation on his grand theft charge. Moore v. State, 882 So.2d 977 (Fla.2004). Accordingly, we direct the probationary term for this count to be stricken. We affirm the remainder of the trial court’s order.

AFFIRMED in part; REVERSED in part.

ORFINGER, TORPY and EVANDER, JJ., concur.


author: MONACO, J.

text:
    Michael LASSITER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2794.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.

      James S. Purdy, Public Defender, Michael S. Becker and Edward J. Weiss, Assistant Public Defenders, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Michael Lassiter, seeks review of the denial by the trial court of his motion to suppress in connection with his conviction of trafficking in MDMA. Because the search executed pursuant to a valid search warrant was reasonable, and, in any event, the involved law enforcement officers had probable cause to stop Mr. Lassiter in his car and to search the vehicle, we affirm.

Based on information received from a confidential informant, Mr. Lassiter’s daughter, law enforcement authorities began an investigation into a suspected MDMA manufacturing and distributing operation. The informant, who had earlier been arrested for a drug violation, discussed in detail her father’s operation with the police. With her full cooperation the police thereafter monitored numerous telephone conversations between Mr. Lassiter and his daughter. The investigating officers learned from the informant and from the monitored calls that Mr. Lassiter would receive packages of chemicals necessary for the production of MDMA at his home in Daytona Beach, and would transport these items to a house in Palm Coast.

Surveillance confirmed the receipt of the chemicals by Mr. Lassiter, his transportation of them to Palm Coast, and the distribution of the MDMA pills in connection with this operation. In the intervening time period Mr. Lassiter was observed at the Palm Coast house on numerous occasions driving a black Camaro automobile registered to his wife. In addition, the police had observed the informant paying Mr. Lassiter $1,000 in cash for previously received MDMA. The investigating officers also conducted a trash pull from the Palm Coast house and discovered marijuana, a ledger and other documentation, and a plastic bottle containing a corrosive material. Finally, the police learned that Mr. Lassiter was on probation during this time period as a result of a prior narcotics violation.

Mr. Lassiter advised his daughter that the newly manufactured pills would be ready for distribution on a particular date. His daughter was to purchase 200 of the pills from her father in Daytona Beach. On that same day, the Florida Department of Law Enforcement secured a warrant authorizing a search of the premises in Palm Coast, as well as “the yard and curti-lage thereof and any vehicles parked thereon, and any person on the Premises reasonably believed to be engaged in or connected with the illegal activity.” (Emphasis added). 'The investigation was thoroughly described in the affidavit for the search warrant.

According to the testimony adduced, a law enforcement operational briefing followed the issuance of the search warrant, during which the police agencies involved discussed precautions to be taken while executing the warrant. Some officers went to the residence to begin surveillance and were maintaining radio contact with other officers. The black Camaro was already at the residence when the surveillance team arrived. At 2:45 p.m. that same day, Mr. Lassiter called his daughter and told her the pills she had previously ordered were ready for delivery. This information was relayed to the police within fifteen minutes. Because of the volatile nature of the chemicals involved in the production of MDMA, the law enforcement agencies elected not to storm the residence in order to execute the warrant. Rather, the officers chose to wait for persons already in the house to exit because they wanted the house to be empty before trying to enter.

The police officers observed Mr. Lassi-ter exit the Palm Coast house, walk to the black Camaro that was on the premises, lift and close the hood of the automobile, and then drive away. Because the authorities did not want to alert anyone still in the house of their impending execution of the warrant, and in order not to jeopardize the safety of either persons in the residence or the police officers involved in executing the warrant, they decided to wait until Mr. Lassiter drove a safe distance away before making a stop.

Mr. Lassiter was stopped about five miles away from the Palm Coast house, and was immediately advised of his Miranda rights. Shortly thereafter a police dog alerted to the front and back of the vehicle. At that point Mr. Lassiter told the officers that there were drugs under the hood of his car. He then became very cooperative in discussing his involvement with the manufacturing of the MDMA.

Mr. Lassiter filed a motion to suppress “all physical evidence gathered from his detention,” including the package of MDMA pills found underneath the hood of his car, and “any and all statements made to law enforcement following his detention and arrest.” He argued that even if the State had the authority to search the Palm Coast house, the State did not have sufficient corroborating evidence creating a reasonable suspicion allowing the authorities 'to stop Mr. Lassiter when he was miles away from the residence.

At the suppression hearing an officer who had been a narcotics investigator for many years explained that homemade drugs in general, and MDMA pills in particular, are made with various unstable chemicals, Bunsen burners, and sterilized equipment in clandestine labs, and that there is a significant volume of volatile fumes and flammable equipment associated with the process. Fumes from the process of making MDMA in a non-professional, residential setting could, according to the officer, “unite and cause explosions.” In view of this danger, and because in the past people have been hurt or killed by explosions at clandestine labs, officers who execute warrants on clandestine labs are, in fact, often given special training in that regard.

The testimony further indicated that if police officers storm a structure' being used in the clandestine manufacture of MDMA and other drugs in order to execute a warrant, there is a great concern that people inside may knock over some volatile substance in the commotion and accidentally spark an explosion. Though the search warrant in the present case did not expressly give permission to conduct a traffic stop and did not mention “trafficking” of narcotics, the officer believed they had probable cause for the stop and search because they had evidence that Mr. Lassi-ter was involved in the manufacture of MDMA at a clandestine lab and that he was planning to make a narcotics transaction with his daughter.

Another officer testified that they allowed Mr. Lassiter to get five miles from the lab before stopping him so they could ensure that other people involved with the lab would not see the police activity. Additionally, the police needed some time to allow for communication and coordination among the officers conducting the stop.

The trial court, finding that probable cause existed under the totality of circumstances, denied Mr. Lassiter’s motion to suppréss. The court found in addition that from “the body of the search warrant affidavit, monitored phone calls, various trash pulls, the training and experience of law enforcement involved, and surveillance of the defendant,” law enforcement had sufficient facts to arrest Mr. Lassiter and to search the car. The court found, as well, that the confidential informant had a “special insight and credibility” based on evidence that she had previously supplied information to police officers in another county, and because she and Mr. Lassiter had a close, loving relationship. Finally, the court found that any statements made to the police after Mr. Lassiter was stopped were given freely and voluntarily after Mr. Lassiter had been read his Miranda rights. Before entering a no contest plea, Mr. Lassiter reserved the right to appeal the trial court’s decision on the motion to suppress.

Because a motion to suppress involves mixed questions of law and fact, we use a compound standard of review. We first review the decision of the trial court to grant or deny such a motion to determine whether there is competent substantial evidence to support the factual findings. See Dewberry v. State, 905 So.2d 963, 965 (Fla. 5th DCA 2005). In doing so, we construe all evidence and reasonable inferences to be drawn from the evidence with a view to upholding the trial court’s determination. Id. at 965. We then apply a de novo standard of review to the application of the trial court of its conclusions of law to the facts. Id.'

Mr. Lassiter first asserts that the search warrant did not authorize the stopping and search of his vehicle at some point away from the house and grounds described in the warrant. He points out that the Cá-maro he was driving was not specifically described in the warrant and was not located within the curtilage of the Palm Coast house when it was searched. He next posits that the police did not have either a reasonable suspicion or probable cause to stop and search his car, irrespective of the warrant. We disagree with both positions.

First, we think the warrant was properly executed. A number of prior decisions are instructive in this regard. In Terhune v. State, 470 So.2d 840 (Fla. 2d DCA 1985), for example, the police obtained a warrant to search a residence and the persons inside for evidence of cocaine distribution. The house was believed to have weapons within it, and was located near a school that was about to dismiss its students for the day. As a result, the police delayed implementing the search warrant. In the interim, a police officer, posing as a taxi driver, picked up the appellant at the house. A patrol car stopped the cab two blocks from the residence, searched the appellant, and found cocaine in his possession. The appellant filed a motion to suppress, arguing that the police could not execute the warrant on him after he left the curtilage of the house. The Second District concluded, however, that the facts presented sufficient exigent circumstances for the execution of the warrant away from the home. Because the police action was patently reasonable, the evidence seized was not subject to the exclusionary rule. See also Crain v. State, 914 So.2d 1015, 1023 (Fla. 5th DCA 2005), review denied, 940 So.2d 427 (Fla.2006); State v. Hendrix, 855 So.2d 662 (Fla. 1st DCA 2003).

Similarly, in State v. Freeman, 673 So.2d 139 (Fla. 5th DCA 1996), Mr. Freeman drove onto the driveway of a residence that was being searched by law enforcement officials pursuant to a warrant. He attempted to back out of the driveway, but was detained by the police, who then searched his vehicle and found cocaine, marijuana and a gun. The warrant that had been issued authorized the search of the house and any vehicle within the curti-lage. Mr. Freeman’s vehicle had been seen at the residence by the police during a controlled buy of drugs. This court held that under those circumstances, the search was lawful. In addition, we held that no nexus is required between any vehicle found on the premises and the alleged illegal activity when the warrant authorizes the police to search any vehicle within the curtilage of the premises. Id. at 141.

The warrant in the present ease authorized law enforcement to search the Palm Coast house as well as the “yard and curti-lage thereof and any vehicles parked thereon.” It does not seem to be disputed that the warrant could have been executed while Mr. Lassiter was physically located in the Palm Coast house, and that the Camaro could have been searched pursuant to the warrant while it was parked for a number of hours in the driveway associated with that house. Given the volatile nature of the drug being manufactured at the residence, we find it both prudent and reasonable for the police to have waited for Mr. Lassiter to leave in the car from the location described in the warrant before executing the warrant. In coming to this conclusion, however, we underscore that this off premises search is permissible because of the peculiar and dangerous nature of the product involved, as well as the reasonable time and distance that elapsed before the search occurred.

Beyond the warrant, we conclude as well that the police had probable cause to arrest Mr. Lassiter based on the informant’s information and the other evidence arising out of the police surveillance and other investigative activities. Probable cause is defined as “a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged.” See Schmitt v. State, 590 So.2d 404, 409 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (Fla.1992). See also Simmons v. State, 934 So.2d 1100 (Fla.2006), cert. denied, — U.S.-, 127 S.Ct. 1334, 167 L.Ed.2d 80 (Fla.2007); Bell v. State, 944 So.2d 448 (Fla. 5th DCA 2006), review dismissed, — So.2d - (Fla. Feb. 22, 2007).

Here, the police had reliable information from Mr. Lassiter’s daughter, corroborated by surveillance of his home and the Palm Coast house, monitored telephone calls, and a trash pull, reasonably demonstrating that Mr. Lassiter was involved in the manufacture and sale of MDMA. After they stopped Mr. Lassiter, a police dog was brought to the scene and alerted to the presence of drugs in the vehicle. A cautious person would certainly believe under these circumstances that there was probable cause to arrest him.

Accordingly, we affirm.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.


author: EVANDER, J. PLEUS, C.J.,

text:
    James R. THERRIEN, Appellant, v. Barry LARKINS a/k/a Barry Larkins, LLC, Appellee.
    No. 5D06-2052.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    Richard D. Sierra, of Kosto & Rotella, P.A., Orlando, for Appellant.
    Stephen R. Ponder of Van Houten, Ponder & Hahl, P.A., Daytona Beach, for Ap-pellee.
   EVANDER, J.

The seller, James Therrien, appeals from a final judgment granting specific performance of a purchase contract in favor of the buyer, Barry Larkins. Because we believe the trial court improperly interpreted the contact, we reverse.

The material facts are relatively undisputed. On July 26, 2004, Therrien and Larkins entered into a written contract whereby Larkins agreed to purchase certain real property from Therrien for $564,000. The property was encumbered by a mortgage, which Therrien had the obligation to satisfy.

The contract required the payment of two non-refundable deposits totaling $21,000. Paragraph 11(g) of the contract provided that the balance of the contract amount ($543,000) was to be paid at closing “by cash or locally drawn cashier’s or official bank check(s) ...” However, paragraph PV(d) titled “seller financing” was check marked and referenced the contract addendum. The addendum was apparently drafted by a broker who was not an agent of either party.

Addendum paragraphs 3 and 4 are the crucial paragraphs in this case. These paragraphs read as follows:

3. If buyer does not close by January 26th, 2005 the buyer is to pay seller 12% interest, which is to be paid monthly. Failure to do so makes this contract null and void, and all monies paid are nonrefundable.
4. Seller will only carry a mortgage for an additional six months from January 26th, 2005.

Larkins timely paid the $21,000 of nonrefundable deposits. At closing, Larkins tendered to Therrien a note and mortgage executed by Westview Place, LLC, for the balance of the monies owed under the contract. Westview Place, LLC, was a limited liability corporation solely owned by Larkins. The purchase contract permitted Larkins to assign the contract provided Larkins remained liable under the contract.

Therrien refused to close because Ther-rien did not believe the contract permitted Larkins to purchase the property by tender of a note and mortgage. Larkins subsequently filed a two-count complaint against Therrien for Therrien’s alleged wrongful failure to convey the property. Count I was for specific performance and Count II was for monetary damages.

It is Larkins’ position that the contract provided him with three options at closing. First, Larkins could tender the balance of the purchase price by cash, cashier’s check or official bank check. Second, pursuant to addendum paragraph 3, Larkins could obtain a six (6) month extension to close by paying monthly payments at 12% interest on the purchase price. Third, addendum paragraph 4 granted Larkins the right to tender a six (6) month promissory note and mortgage as “payment” of the purchase price.

Therrien contends the contract provided Larkins with only two options at closing. It was Therrien’s position that the contract did not grant Larkins the right to tender a note and mortgage as “payment” of the purchase price.

The trial court accepted Larkins’ argument and entered a final judgment requiring Therrien to convey the real property to Larkins.

This court’s review of the trial court’s interpretation of the contract is subject to a de novo standard of review. Whitley v. Royal Trails Property Owners’ Ass’n, Inc., 910 So.2d 381 (Fla. 5th DCA 2005). The interpretation of a contract is a question of law, and an appellate court may reach a construction contrary to that of the trial court. Id. at 383 (citing Inter-Active Servs., Inc. v. Heathrow Master Ass’n, Inc., 721 So.2d 433, 434 (Fla. 5th DCA 1998)).

In this case, it is undisputed that at the scheduled closing, Larkins did not tender cash, a cashier’s check, or an official bank check. Furthermore, Larkins did not allege in his complaint that Therrien wrongfully refused to grant him a six (6) month extension of the closing date. Thus, the primary issue in this case is whether the purchase contract required Therrien to accept a six (6) month note and mortgage as “payment” of the purchase price.

The parties disagree as to whether addendum paragraph 4 should be construed in conjunction with addendum paragraph 3, or whether the two paragraphs should be construed independent of .the other.

In construing a written contract, every provision should be given meaning and effect and apparent inconsistencies reconciled if possible. Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979). A reasonable interpretation of a contract is preferred to an unreasonable one. Id.

We agree with Therrien that addendum paragraphs 3 and 4 must be construed together. By doing so, we conclude the intent of the two paragraphs was to provide that if Larkins was unable or unwilling to close on the property by January 26th, 2005, he would have the right to extend the closing date for an additional six months, provided he made monthly payments to Therrien of 12% interest of the purchase price. Therrien would remain obligated to make payments on the existing mortgage encumbering the property for this six-month period.

By contrast, we believe it would be unreasonable to construe paragraphs 3 and 4 as providing separate and independent options to Larkins. As previously noted, Larkins contends that paragraph 3 granted him the right to extend the closing date provided he made monthly interest payments and paragraph 4 granted him the alternative right to make “payment” at closing by tendering a six (6) month note and mortgage. However, standing alone, neither paragraph is complete. Paragraph 3 fails to state the length of time for which Larkins can extend the closing date. Paragraph 4 fails to state the interest rate, dates of payments, or payment amounts on any note to be given to Therrien.

Indeed, at the scheduled closing, Lar-kins implicitly recognized that paragraphs 3 and 4 must be construed together because he tendered a six (6) month balloon note at 12% interest with interest only payments to be made on a monthly basis. The six (6) month term was apparently derived from paragraph 4, while the 12% interest rate with interest only payments being made monthly was apparently derived from paragraph 3.

Unfortunately for Larkins, the first words in paragraph 3 are “[i]f buyer does not close by January 26th, 2005.” Thus, reading paragraphs 3 and 4 together, the mortgage referenced in paragraph 4 must refer to the existing mortgage encumbering the property because obviously Ther-rien would not be holding a mortgage from Larkins (or Westview) if a closing did not occur. Therefore, it is clear that addendum paragraph 4 did not grant Larkins the right to tender a six (6) month note and mortgage at closing as “payment” of the purchase price.

In conclusion, Larkins had two options available to him at the scheduled closing. First, he could proceed with the closing by paying the balance of the purchase price by cash, cashier’s check, or official bank check. Second, he could obtain an extension of the closing for up to six (6) months provided he made monthly payments of 12% interest on the purchase price. Lar-kins did neither. Instead, Larkins tendered a six (6) month balloon note and mortgage executed by Westview. Ther-rien was not obligated to accept this note and mortgage. Larkins failed to prove he was ready, willing and able to perform the contract. Taylor v. Richards, 32 Fla. L. Weekly D1538, — So.2d-, 2007 WL 1755803 (Fla. 4th DCA June 20, 2007); see also Hollywood Mall, Inc. v. Capozzi, 545 So.2d 918 (Fla. 4th DCA 1989). Accordingly, final judgment should have been entered in favor of Therrien.

REVERSED and REMANDED with Directions to Enter Final Judgment for Appellant.

ORFINGER, J., concurs.

PLEUS, C.J., concurring specially in part, dissenting in part, with opinion.

PLEUS, C.J.,

concurring in part, dissenting in part, with opinion.

Save for the issues of the deposit and attorney’s fees, I agree with the result, albeit for a different reason. The written document (I hesitate to call it a contract), particularly paragraphs 3 and 4 of the addendum, is so ambiguous as to the terms and conditions for closing that it must be concluded that the parties never reached a meeting of the minds regarding that crucial term. If you were to sit ten judges in a room and ask them to interpret the contract, you would likely get ten different interpretations of what was meant.

My problem with the majority opinion is that it interprets a “contract” which is impossible to interpret with any confidence as to paragraphs 3 and 4 of the addendum. Conclusions with any degree of certainty about the intent of the parties are beyond comprehension. Specifically, paragraph 3 allows the buyer to make monthly interest payments apparently to extend the closing date if the closing does not occur on or before January 26, 2005, but says nothing about a note and mortgage securing payment of such sums or as to the duration of these monthly payments. Further, what does paragraph 4 of the addendum mean when it states, “Seller will only carry a mortgage for an additional six months from January 26, 2005.”? What mortgage is referenced by this language? The existing mortgage on the property? Or rather does it constitute the seller’s agreement to accept a note and mortgage covering six months of monthly interest payments due under paragraph 3 so that the transaction can close? Or does it all mean something else? The trial court attempted to make a “reasonable” reading of the two paragraphs, as does the majority. However, the real problem is that the vague language employed in paragraphs 3 and 4 makes it impossible to conclude that the parties reached a meeting of the minds regarding the terms and conditions applicable to the closing.

In King v. Bray, 867 So.2d 1224 (Fla. 5th DCA 2004), this Court was faced with a similar dilemma. The prospective buyers of real property brought action for specific performance against the sellers. The trial court denied specific performance and this Court affirmed, holding the contract was not enforceable.

Writing for this Court in King, Judge Sawaya noted that specific performance may be denied when a contract is unenforceable because, based on an ambiguity in the contract, the parties never reached a meeting of the minds regarding essential terms of the agreement. After concluding that the contract was ambiguous, the trial court determined that the parties never formed an enforceable contract because, based on their different views of what the contract meant, they never arrived at a meeting of the minds. “It is well established that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract....” 867 So.2d at 1227, quoting from Greater New York Corp. v. Cenvill Miami Beach Corp., 620 So.2d 1068, 1070 (Fla. 3d DCA 1993).

Based on King, the absence of the requisite meeting of the minds on the essential element of the terms and conditions applicable to closing renders this contract judicially unenforceable. Accordingly, I would reverse as to the grant of specific performance, order a return of the $21,000 deposit, and find no basis for any recovery of attorney’s fees.

The contract and addendum in this case were drafted by transactional broker Ted Rugg on a FARBAR form. This lawsuit is an excellent example of why lawyers, and not brokers, should draft contracts in complex real estate transactions. As a transactional broker, Rugg owed a fiduciary obligation to both seller and buyer. He served neither.

Had Ted Rugg suggested that an experienced real estate attorney draft the contract, he might now be enjoying the $22,500 commission called for in one of the less ambiguous clauses of the contract.

      . The broker's testimony as to the intent of the contract addendum was consistent with Therrien’s position.

      . We find it unnecessary to address the issue of whether Larkins was also required to have tendered a personal guarantee on the note given by Westview.

      . There was evidence presented at trial that Larkins did propose that the closing date be extended for six months with Larkins paying monthly payments of 12% interest of the purchase price. However, Larkins conditioned this offer on Therrien placing the $21,000 of deposits previously paid into an escrow account. Therrien, as he had a right to do, rejected this proposed modification of the contract. The purchase contract specifically provided that the $21,000 of deposits was non-refundable.


text:
    Mack Edward RICHIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3215.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2007.
    Rehearing Denied July 6, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Hale v. State, 891 So.2d 517 (Fla.2004), cert. denied, 546 U.S. 828, 126 S.Ct. 39, 163 L.Ed.2d 75 (2005); State v. White, 891 So.2d 502 (Fla.2004), cert. denied, 546 U.S. 827, 126 S.Ct. 37,163 L.Ed.2d 74 (2005); Westerheide v. State, 831 So.2d 93 (Fla.2002).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


author: BARFIELD, J.

text:
    ORANGE COUNTY SCHOOL BOARD and United Self-Insured Services, Appellants, v. Mary Kathy POWERS, University of Central Florida, and State of Florida, Division of Risk Management, Appellees.
    No. 1D06-0069.
    District Court of Appeal of Florida, First District.
    June 13, 2007.

      Debrah L. Zeitler and Thomas A. Moore, of Moore, Peterson & Zeitler, P.A., Orlando, for Appellants.
    Mike E. Nebel, Orlando, and Bill McCabe, Longwood for Appellee Mary Kathy Powers; and William H. Lore, of Lore & Anger, P. A., Winter Park, for Appellees University of Central Florida and State of Florida, Division of Risk Management. ■
   BARFIELD, J.

Appellants, the employer/servicing agent, appeal an order of the Judge of Compensation Claims awarding workers’ compensation benefits to the claimant. The appeal raises the issue of whether the claimant, a student at the University of Central Florida (UCF) who was injured while interning in an Orange- County School Board (OCSB) classroom, was an employee of the school board. We reverse the finding of the Judge of Compensation Claims that the claimant was an employee of the school board.

The claimant had previously worked as a paraprofessional for OCSB. In April of 2003, she elected an unpaid leave of absence to continue her studies full-time at UCF in order to complete internships required in order to obtain a degree in education. ' The claimant was assigned to intern at an elementary school in Orange County, working in a classroom for exceptional education students. The claimant paid UCF for 12 semester hours in order to participate in the internship. The claimant was not paid by OCSB for interning.

The claimant was injured on March 23, 2004, ‘ when a student shoved her • from behind, resulting in her hitting a wall. The claimant reported the incident to the school, which completed a visitor accident/incident report. When she inquired about medical treatment, she was advised by the school to contact UCF. UCF advised the claimant that the university was not responsible for her injuries. The claimant then filed a petition for benefits, seeking benefits from OCSB. OCSB filed a notice of denial, asserting the claimant was not an employee of OCSB at the time of her accident. The Judge of Compensation Claims determined the claimant was an employee of OCSB at the time of her injuries.

“Employee,” for purposes of workers’ compensation coverage, is defined at section 440.02(15)(a), Florida Statute (2003):

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, -oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

The Judge of Compensation Claims found the claimant was an employee of OCSB because she received remuneration or valuable consideration from OCSB, even though she received no monetary remuneration, because the internship was required in order for the claimant to obtain her degree in education.

We reject the Judge of Compensation Claims’ interpretation of the definition of “employee.” Although the claimant obviously received a benefit from the internship because it was required to obtain her degree, the claimant was merely a full-time student of UCF who was participating in a course entitled “Internship II.” Education received in exchange for payment of tuition is not remuneration for purposes of section 440.02(15)(a), Florida Statutes.

The Judge of Compensation Claims also found that the claimant was entitled to workers’ compensation benefits pursuant to section 1012.39(3), Florida Statutes (2003). This subsection provides:

A student who is enrolled in a state-approved teacher preparation program in a postsecondary educational institution that is approved by rules of the State Board of Education and who is jointly assigned by the postsecondary educational institution and a district school board to perform a clinical field experience under the direction of a regularly employed and certified educator shall, while serving such supervised clinical field experience, be accorded the same protection of law as that accorded to the certified educator except for the right to bargain collectively as an employee of the district school board.

Section 1012.69, however, provides in part that nothing in chapter 1012 “shall supersede any of the provisions of the Workers’ Compensation Law.” Section 1012.39(3) does not automatically provide workers’ compensation coverage. The claimant must still meet the definition of an employee in section 440.02(15)(a).

We also reject the claimant’s assertion that if she was not an employee, she was a volunteer eligible for workers’ compensation benefits under section 440.02(15)(d)(6), Florida Statutes (2003). This subsection provides that “employee” does not include a volunteer “except a volunteer worker for the state, county, municipality or other governmental entity.” As the Judge of Compensation Claims correctly found, the claimant was not at the OCSB elementary school for the purpose of aiding. She was there to further her own goal of completing the required UCF course entitled “Internship II.” UCF provided a handbook which set forth the goals and tasks the claimant was to pursue and achieve during the internship.

Because the claimant does not meet the definition of “employee,” the order on appeal is reversed. We grant, however, the claimant’s motion for appellate attorney’s fees. As this Court observed in City of Miami v. Burnett, 596 So.2d 478, 479 (Fla. 1st DCA 1992), although “we seldom have awarded fees when the claimant did not prevail, there is no limitation as such in the statute. Furthermore, judicial imprimatur on the discretionary allowance of attorney fees is enveloped in an aura of age.” In finally determining that claimant should receive a fee in this case at the expense of the employer, we are persuaded by the absence of any objection or challenge from the employer. Additionally, this case is one of particular importance as it determines whether the numerous postsecondary education level students participating in internships throughout the state are “employees” eligible for workers’ compensation benefits. We grant the ap-pellee’s motion for attorney’s fees payable by the employer and remand this case to the Judge of Compensation Claims to determine the amount of the fee, if the parties are unable to agree.

REVERSED and REMANDED.

KAHN and VAN NORTWICK, JJ., concur.


author: WEBSTER, J.

text:
    James JANNOTTA, Former Husband, Appellant/Cross-Appellee, v. Deborah HESS, f/k/a Deborah Jannotta, Former Wife, Appellee/Cross-Appellant.
    No. 1D06-5883.
    District Court of Appeal of Florida, First District.
    June 13, 2007.
    Angela Brown Swenson, Jacksonville, for Appellant/Cross-Appellee.
    William L. Roelke, Jr., of Stutsman Thames & Markey, P.A., Jacksonville, for Appellee/Cross-Appellant.
   WEBSTER, J.

The former husband appeals, and the former wife cross-appeals, an order modifying their final judgment of dissolution of marriage to change the primary residential custody of one of the parties’ four children from th'e former husband to the former wife, while leaving the remaining three children in the primary residential custody of the former husband. We conclude that the portion of the trial court’s order that gave the former wife custody of one child was not supported by competent substantial evidence and, therefore, constituted an abuse of discretion. Accordingly, we reverse that portion of the order, while affirming as to the issues raised by the former wife on her cross-appeal.

A final judgment dissolving the parties’ marriage was entered in February 2001. Among other things, the final judgment awarded primary residential custody of the parties’ four children, Nicole (who wás then 11), Alexandra (who was then 5), and twins Zachary and Jarod (who were then 3), to the former husband. In October 2004, the former husband sought an increase in the amount of child support awarded by the final judgment. The former wife responded with a counter-petition seeking a change in custody of the four children. Following an evidentiary hearing, the trial court granted the former wife’s counter-petition to the extent of changing custody of Alexandra to the former wife, while continuing custody of the remaining three children with the former husband. The former husband appeals, challenging the change in custody of Alexandra; and the former wife cross-appeals, challenging the decision to leave the remaining three children in the custody of the former husband.

When a party seeks modification of a final judgment of dissolution of marriage to change the custody of a child, that party bears the burden of establishing the existence of a substantial and material change in circumstances since entry of the final judgment, and that the change in custody will be in the best interests of the child. E.g., Wade v. Hirschman, 903 So.2d 928, 933-34 (Fla.2005). Our standard of review is abuse of discretion. Id. at 935. To determine whether an abuse of discretion has occurred, we look to the record for competent substantial evidence to support the trial court’s decision. Id. Accord Zediker v. Zediker, 444 So.2d 1034, 1038 (Fla. 1st DCA 1984).

Here, there was evidence that the former wife had overcome an alcohol abuse problem which had alienated her from the children; had remarried, improving her life financially and otherwise; and was somewhat better able than the former husband to provide a stable home for the children. However, we have repeatedly held that such evidence is insufficient to constitute a substantial and material change in circumstances justifying a change in custody. E.g., Kilgore v. Kilgore, 729 So.2d 402, 406-07 (Fla. 1st DCA 1998); Holmes v. Greene, 649 So.2d 302, 304 (Fla. 1st DCA 1995); Bridges v. Bridges, 625 So.2d 93, 94 (Fla. 1st DCA 1993); Buttermore v. Meyer, 559 So.2d 357, 359 (Fla. 1st DCA 1990). There was also evidence that the former husband had moved from Jacksonville to Boca Raton after the final judgment, making it difficult for the former wife to visit the children. This did not constitute a substantial and material change in circumstances because it was undisputed that the former wife was notified of the intended move and did not object, instead later moving to Boca Raton herself. See Ogilvie v. Ogilvie, 954 So.2d 698, 701 (Fla. 1st DCA 2007) (holding that relocation, alone, does not constitute a substantial and material change in circumstances). In addition, there was evidence that the former husband had agreed to permit Alexandra to live with the former wife on a temporary basis, in the hope of improving Alexandra’s low self-esteem stemming from her being overweight, and that the temporary change had been somewhat successful in that regard. However, we have repeatedly held that a temporary agreement such as this cannot constitute a basis for modification of custody because it would discourage parents from making temporary changes in their children’s living arrangements which serve the children’s best interests. E.g., Smoak v. Smoak, 658 So.2d 568, 569 (Fla. 1st DCA 1995); Henderson v. Henderson, 537 So.2d 125, 127 (Fla. 1st DCA 1988); Evans v. Evans, 490 So.2d 1035, 1036 (Fla. 1st DCA 1986); Hood v. Hood, 479 So.2d 269, 272 (Fla. 1st DCA 1985).

Having carefully considered all of the evidence, we conclude that there is not competent substantial evidence to support the trial court’s decision to change custody of Alexandra. This is particularly true given the fact that the order would separate Alexandra from her three siblings. See Arons v. Arons, 94 So.2d 849, 853 (Fla.1957) (siblings should not be separated absent compelling reasons); Henderson, 537 So.2d at 128 (same, quoting from Arons). Accordingly, we hold that the portion of the order changing custody of Alexandra constitutes an abuse of discretion. We reverse the trial court’s order to the extent it directs that custody of Alexandra be changed from the former husband to the former wife. We affirm without discussion as to the issues raised by the former wife’s cross-appeal.

AFFIRMED IN PART and REVERSED IN PART.

DAVIS and VAN NORTWICK, JJ., concur.


author: WELLS, J.

text:
    Robert MOSS, Jr., Appellant, v. Bernetta MOSS, Appellee.
    No. 3D06-1529.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.

      William C. Robinson, Tallahassee, for appellant.
    Bernetta Moss, in proper person.
    Before GREEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

Robert Moss, Jr. appeals from an order setting aside a stipulation regarding payment of past due child support based on a finding that he failed to comply with an earlier court order recommending approval of that stipulation. We reverse the order nullifying the stipulation because no material breach occurred that would support nullification.

On February 17, 2006, Robert and Bernetta Moss appeared before a child support enforcement hearing officer on motions to abate child support and to determine arrearages: At the time of the hearing, Mr. Moss, who claimed to have been disabled in a work-related incident, had not worked for six years.

Because the parties’ youngest child had attained majority on March 1, 2005, the hearing officer abated Mr. Moss’ child support obligations as of that date. The hearing officer also determined that a $47,148.85 child support arrearage was due.

During a break in the proceedings, the parties agreed that rather than paying the entire arrearage due, Mr. Moss (who wanted to settle the arrearage claim before finalizing settlement of his pending workers’ compensation claim) would pay $30,000 to Ms. Moss within thirty days:

MR. SCHOLL [Assistant State Attorney]: The 30,000. We have agreed that we will set this case for hearing in the 30 days. It’s a date certain. If the check has not been deposited and everything else, we will come back to court and basically we may be starting from scratch again.
If the check is paid before then, we will cancel the hearing. That is the agreement....

(Emphasis added).

Based on this agreement, the hearing officer entered an order re-setting the matter for March 24, 2006, one week after payment was due, but confirmed that if payment was made before that date, the parties did not have to attend. The hearing officer also confirmed that if Mr. Moss did not pay, “arrears will remain at $47,148.85.”

Two days later, Ms. Moss notified Mr. Moss and her attorney that she was unilaterally repudiating the agreement. Mr. Moss nonetheless settled his workers’ compensation claim so that he could make the agreed upon $30,000 payment. On March 14 or 15, 2006, Mr. Moss’ attorney received a check in settlement of Mr. Moss’ workers’ compensation claim. But because this check had to clear counsel’s account before Ms. Moss could be paid, the $30,000 settlement check was not tendered to her attorney until March 20 — three days late. Ms. Moss’ counsel refused to accept it.

Four days later, the parties appeared before the child support hearing officer. Mr. Moss tendered the settlement check again. It was again refused because, as counsel for Ms. Moss explained, Ms. Moss had repudiated the agreement long before the first tender was due and the first tender was three days late:

MR. SCHOLL: ... Now, [Ms. Moss] notified me a couple of days after the [February 17] hearing saying that she found out about this additional information [about the workers’ compensation claim settlement] and that she no longer wanted to go through with the deal.
Counsel appeared — Mr. Robinson appeared here on the 20th wanting me to accept the $30,000 check, and I told him based on [the order requiring payment by the 17th] and based upon what my client had said to me that I could not accept the check....

Finding that Mr. Moss “failed to comply with the Court order of February 17, 2006,” the hearing officer nullified the settlement agreement.

Mr. Moss argues here that the settlement was predicated on the imminent resolution of his pending workers’ compensation claim, and that his tender of the settlement proceeds three days late— a delay caused by not receiving the workers’ compensation settlement proceeds in time to make a tender within thirty days — was not a material breach that would justify nullifying the agreement. We agree.

As explained in Sublime, Inc. v. Boardman’s Inc., 849 So.2d 470, 471 (Fla. 4th DCA 2003):

As a general rule, time is considered to be of the essence where an agreement specifies, or where such may be determined from the nature of the subject matter of the contract, or where treating time as non-essential would produce a hardship, or where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be a reasonable time according to the circumstances.

See Centurion Air Cargo, Inc. v. United Parcel Service Co., 420 F.3d 1146, 1151 (11th Cir.2005) (stating that “to constitute a material breach, the late payment must occur where time is of the essence”).

As observed in Rose v. Ditto, 804 So.2d 351, 352 (Fla. 4th DCA 2001), quoting National Exhibition Co. v. Ball, 139 So.2d 489 (Fla. 2d DCA 1962), “[t]he modern trend of decisions concerning brief delays by one party in performance of a contract or conditions thereunder, in the absence of an express stipulation in the contract that time is of the essence, is not to treat such delays as a failure of a constructive condition discharging the other party unless performance on time was clearly an essential and vital part of the bargain.” In Rose, the Fourth District concluded that a two day delay by a former husband in making the first installment payment due on a settlement agreement of a child support arrearage was not a material breach.

In this case, the parties did not stipulate that time was of the essence. Both of the parties’ children had attained majority long before this agreement was reached and there is no evidence that treating time as non-essential would produce a hardship on either party. Rather, the thirty day deadline appears to have been selected as a reasonable amount of time for Mr. Moss to finalize the pending settlement of his workers’ compensation case and to make payment of the support arrearage from those proceeds. There is nothing in the record to suggest that Mr. Moss did not diligently pursue finalizing that settlement, only that the settlement check did not arrive in time to clear and be used to make the arrearage payment within thirty days.

Accordingly, we conclude the proffer of an attorney’s trust account check on March 20 and again at the time of the March 24 hearing should have been deemed to constitute substantial compliance with the parties’ agreement. The order under review is, therefore, reversed and this cause remanded for further proceedings in accordance herewith.


text:
    Larry MATHIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1084.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Larry Mathis, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

We dismiss the appeal from the denial on the merits of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) as from a non-appealable order. See McKinzy v. State, 949 So.2d 1153 (Fla. 3d DCA 2007). The dismissal is without prejudice to Mathis filing those claims which are cognizable via Florida Rule of Criminal Procedure 3.850.


text:
    U.S. FOUNDRY & MANUFACTURING, INC., a/k/a U.S. Holdings, Inc., et al., Appellants, v. Vaughn CARNER, Appellee.
    No. 3D06-3105.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.

      Kelley, Kronenberg, Gilmartin, Fichtel & Wander and Luis F. Estrada, for appellants.
    Levine, Busch, and Schnepper and R. Cory Schnepper, Miami, for appellee.
    Before GREEN, WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

U.S. Foundry & Manufacturing, Inc., appeals an order denying its motion to dismiss and granting a rule nisi enforcing temporary disability benefits awarded to its employee, Vaughn Carner. We reverse.

Carner filed a worker’s compensation action against U.S. Foundry and was awarded permanent and temporary disability benefits. U.S. Foundry appealed to the First District Court of Appeal. U.S. Foundry & Mfg., Inc. v. Carner, 951 So.2d 927 (Fla. 1st DCA 2007). During the pen-dency of the appeal, Carner petitioned the circuit court for a rule nisi to enforce the temporary benefits. § 440.24(1), Fla. Stat. (2006). Carner argued that the temporary benefits issue had been abandoned on appeal because they were not included as an issue in the initial brief. See Fla. R.App. P. 9.180(d)(1). Hence, Carner asserted that the circuit court had jurisdiction to issue the rule nisi. U.S. Foundry filed a motion to dismiss the case, arguing that the court had no jurisdiction in view of the pending appeal.

The circuit court denied the dismissal motion, finding that the issue had been abandoned on appeal, and granted the rule nisi. U.S. Foundry appeals.

The court erred in granting the application for the rule nisi. “[T]he circuit court’s jurisdiction, on the claimant’s application for a rule nisi, is solely limited to enforcing the terms of such a compensation order if the latter is still in full force and effect.” North Shore Medical Center v. Capua, 634 So.2d 1141, 1143 (Fla. 3d DCA 1994). Accord Maranje v. Brinks of Florida, Inc., 610 So.2d 1293 (Fla. 3d DCA 1992); Venne v. Kleuver, 435 So.2d 350 (Fla. 3d DCA 1983). The rule nisi in this case was premature because the appeal from the worker’s compensation award was pending. The employer’s notice of appeal divested the circuit court of jurisdiction to consider the application for rule nisi. See Fla. R.App. P. 9.180(c)(l)(lower tribunal retains jurisdiction to decide issues not subject to review on appeal). The employer listed the temporary benefits, which were the subject of the rule nisi proceeding, in its notice of appeal. Fla. R.App. P. 9.180(c)(3). Hence, the court’s order enforcing these benefits went beyond its rule nisi jurisdiction.

Based on the foregoing, we reverse the order on appeal.

Reversed.


text:
    Samuel O. MILLER, Appellant, v. MIAMI-DADE COUNTY PROPERTY APPRAISER, Appellee.
    No. 3D06-2637.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Rehearing Denied July 18, 2007.

      Samuel 0. Miller, in proper person.
    Murray A. Greenberg, Miami-Dade County Attorney, and Eric A. Hernandez, Assistant Miami-Dade County Attorney, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See §§ 194.171(5), (6), Fla. Stat. (2003); Bystrom v. Diaz, 514 So.2d 1072, 1075 (Fla.1987).


text:
    M.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2673.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied July 25, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

M.A. challenges his commitment to a level 8 program. Finding that the circuit court had jurisdiction over appellant at the time of the commitment, we affirm.

On August 18, 2004, M.A. entered pleas of guilty or no contest in eight cases. He was adjudicated delinquent and placed in a Level 6 moderate risk commitment. The preprinted, form disposition order stated:

The placement is for an indeterminate period, but no longer than 5 years or the child’s 19th birthday, or as expected in section 985.201(4)(b) 1 and 2, whichever comes first.[]
Upon release, the child shall be placed on post-commitment probation, or conditional release, including, but not limited to minimum risk non residential programs status under the conditions specified in this order.

While waiting for placement in a Level 6 commitment, M.A. was placed on home detention. He absconded from home detention and was subsequently taken into custody. Later, in September, 2004, he was admitted to Falkenburg Academy, a moderate-risk program, where he resided until May 19, 2005. During M.A.’s stay at Falkenburg, he was not on task with his program, conflicted with authority, and did not meet his behavioral objectives. Nonetheless, on May 19, M.A.’s father picked him up to begin a conditional release transition program.

M.A. soon absconded from the supervision of the conditional release program. He failed to appear at a June 1, 2005 restitution hearing and was later taken into custody. After being released, he absconded from a reentry program and was arrested for a new charge on September 10, 2005. On September 28, 2005, the reentry program requested a transfer of M.A. to a high risk facility, “where [M.A.’s] behavioral issues could be addressed to help him deal with his erratic behavior at home, school and in the community.” The Department of Juvenile Justice (DJJ) specified ■ four reasons for making the transfer request: (1) M.A. “failed to comply with the curfew goal of his Reentry Supervision Plan to maintain curfew and positive behavior at home and in the community;” (2) M.A. “failed to comply with the goal to obtain and maintain employment;” (3) M.A. “failed to comply with the goal of maintaining a drug free life style and not associating with known substance users and/or sellers,” and (4) M.A. violated the law, as evidenced by his August arrest for possession of cocaine and his September arrest for grand theft auto. On October 7, 2005, the trial court signed the order approving MA’s transfer to the high risk facility.

Meanwhile, on the charges arising from his September 10 arrest, M.A. was held in the Broward County Jail as an adult for over 200 days. On April 20, 2006, he pleaded guilty to the crimes of aggravated fleeing and eluding, grand theft, resisting without violence, trespass of a conveyance, and operating a vehicle without a valid driver’s license and was sentenced to youthful offender probation.

M.A. returned to juvenile court on May 3, 2006 on the issue of whether the court would set aside his transfer to the high risk commitment program that was ordered in October, 2005, while M.A. was in jail on adult charges. On behalf of the reentry program, a witness from the reentry program explained the reason for the transfer request:

He wasn’t complying. He was re-arrested ... he didn’t comply with curfew. He did — wasn’t looking for a job. I mean, he wasn’t available for me to see when I needed him, which is why we went ahead and filed for the transfer.

At the conclusion of the May 3 hearing, the juvenile court considered the extent of M.A.’s juvenile record, denied the motion to release him, and ordered that he attend and complete the level 8 program.

DJJ alerted the court that M.A. turned 19 on May 15, 2006. The court scheduled a hearing on May 30. M.A. argued that he should be released because he had turned 19. The state contended that section 985.231, Florida Statutes (2004), gave the court jurisdiction over M.A. until he turned 21. The court refused to set aside the level 8 commitment. In a written order, the juvenile court explained its ruling:

This court did not sentence the child to a level eight (8) program (High Risk). The child was internally transferred to a high risk program after violating the terms of his conditional release. This court ultimately ‘approved’ said transfer and refused defense counsel’s request to allow the child to terminate his commitment after he had turned nineteen (19) years of age.

M.A.’s main point on appeal is that the juvenile court lost jurisdiction of him on his 19th birthday because it was “bound by the terms of the disposition order with regard to the extent” of its jurisdiction.

“Subject matter jurisdiction is ‘the power of the court to adjudicate the class of cases to which the particular ease belongs.’ ” Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001) (quoting VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956, 957 (Fla. 4th DCA 2000) (quoting Crill v. State Road Dep’t, 96 Fla. 110, 117 So. 795, 798 (1928))). “Jurisdiction of the juvenile court is limited to that mandated by statute.” Cesaire v. State, 811 So.2d 816, 817 (Fla. 4th DCA 2002). The difficulty with Chapter 985 is that different statutes provide different jurisdictional time limits. Thus, section 985.201(4)(a), Florida Statutes (2004), states a general rule that “[jurisdiction of the court terminates when the child attains the age of nineteen.” Id. However, section 985.231(l)(a)(3), which provides courts with disposition authority in delinquency cases, gives a circuit court jurisdiction over an “adjudicated delinquent” “until the child is discharged by the Department or until he or she reaches the age of twenty-one.” S.L.K. v. State, 776 So.2d 1062, 1065 (Fla. 4th DCA 2001). A trial court’s order is not “defective for failing to explicitly state the limitations of the trial court’s jurisdiction over” a juvenile. See M.S. v. State, 946 So.2d 1136, 1138 (Fla. 4th DCA 2006).

Here, M.A. was sentenced under section 985.231(l)(a)(3), which provides that “the term of the commitment must be until the child is discharged by the department or until he or she reaches the age of 21.” (Emphasis added). A commitment under this section is to the DJJ. The term of commitment is mandatory; it cannot be shortened by a court order. Jurisdiction of the court extends until a juvenile is discharged by the department or until age 21, whichever occurs first. The court’s jurisdiction over M.A. continued beyond his nineteenth birthday.

In this case, M.A. was never discharged by the Department. As authorized by the statute, appellant was released into a “po-stcommitment nonresidential conditional release program.” Id. Because appellant was “not successful in the conditional release program,” the Department used the “transfer procedure under s. 985.404.” Id. Section 985.404(4) allows the Department to transfer a child from one program to another facility or program; the section requires the Department to notify the “court that committed the child to the department and any attorney of record, in writing, of its intent to transfer the child from a commitment facility or program to another facility or program of a higher or lower restrictiveness level.”

Contrary to appellant’s arguments, it was not necessary to hold a probation revocation hearing before a transfer because appellant was originally committed to the Department and not placed on probation. Indeed, probation is defined as a legal status imposed “in lieu of commitment to the custody of the Department of Juvenile Justice.” § 985.03(43), Fla. Stat. (2004). “Commitment!,] and a probation program that is supposed to be in lieu of commitment!,] are mutually exclusive.” Dep’t of Juvenile Justice v. K.B., 784 So.2d 556 (Fla. 1st DCA 2001).

The cases M.A. relies upon are inappo-site, involving juveniles who were originally placed on probation or community control, in lieu of being committed. See B.S. v. State, 886 So.2d 1062 (Fla. 4th DCA 2004) (“the court stayed the [level 6] commitment and ‘in lieu of,’ placed appellant on juvenile probation.”); M.T. v. State, 805 So.2d 898 (Fla. 2d DCA 2001) (“appellant was adjudicated delinquent of robbery and was [not committed, but] placed on community control”); see also G.F. v. State, 927 So.2d 62 (Fla. 5th DCA 2006) (“G.F.’s post-commitment conditional release was subsequently changed to probation by agreement of the parties, nunc pro tunc to the date of sentencing”).

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.

      . The words "whichever comes first” were handwritten on the form.


author: ORFINGER, J.

text:
    Donna R. KLINKA, Appellant, v. D. Richard KLINKA, Appellee.
    Nos. 5D06-1732, 5D06-2055.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.

      Tristen W. Sanders, of Sublette, Sanders & Sanders, P.A., Orlando, for Appellant.
    Donna R. Klinka, Apopka, Pro Se.
    Jay M. Levy, of Jay M. Levy, P.A., and Keith D. Diamond, of Keith D. Diamond, P.A., Miami, for Appellee.
   ORFINGER, J.

In this consolidated appeal, Donna Klin-ka, the former wife, appeals two post-judgment orders. In the first order, the trial court found the former wife in contempt for failure to sign a real estate listing agreement after being directed to do so. In the second order, the trial court altered the distribution of assets that had been previously determined in the final judgment. We affirm in part and reverse in part.

The former wife, and D. Richard Klinka, the former husband, were divorced by final judgment of dissolution of marriage rendered in 2003, and amended in 2004. The final judgment ordered that four parcels of real property owned by the parties “shall be sold with the proceeds being split equally between the parties.” Suffice it to say that the former wife was less than cooperative in listing the property for sale, and, indeed, obstructed the process in many ways. As a consequence, after much wrangling, the former wife was ordered by the trial court to sign the listing contract presented at the status conference. When she refused, she was held in contempt. We affirm the contempt order without comment. However, with respect to the second order which determined that the former husband was to receive a minimum of $1,000,000 from the sale of the property, instead of the even division ordered in the final judgment, we are constrained to reverse.

On appeal, the former wife argues that the former husband did not file any pleadings seeking an amendment to or relief from final judgment, and, therefore, she was afforded no due process. On the merits, she submits that the second order improperly modified the parties’ property rights. She contends that the court lacked jurisdiction to modify the property rights that had been fixed by the final judgment. See Mandy v. Williams, 492 So.2d 759 (Fla. 4th DCA 1986) (holding that property rights in dissolution action are fixed and vested upon entry of final judgment of dissolution of marriage).

The former husband counters that in the absence of a transcript, these contentions may not be addressed. However, when, as here, the deficiencies are obvious on the face of a final judgment, record or order, the existence of a transcript of proceedings is irrelevant to resolution of such claims and appellate review is not precluded. Marshall v. Marshall, 953 So.2d 23, 25 (Fla. 5th DCA 2007); Mayfield v. Mayfield, 929 So.2d 671, 672 (Fla. 5th DCA 2006).

“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003); see Sabine v. Sabine, 834 So.2d 959, 960 (Fla. 2d DCA 2003) (stating that when “a judgment is not based on an issue that had been framed by the pleadings, noticed for hearing, or litigated by the parties, it may not stand” because “[t]he failure to follow these basic procedural requirements implicates due process concerns”). The former husband does not point to the existence of any pleading seeking modification or relief from the final payment. Hence, the second order denied the former wife due process by adjudicating an issue that was not before it.

Further, we find that the second order is invalid as it improperly modified the property rights, which were settled in the final judgment. It is well established that once the property rights of the parties have been settled by the court in a final judgment of dissolution of marriage, the trial court cannot thereafter modify those rights. Mandy, 492 So.2d at 760; see also Davis v. Dieujuste, 496 So.2d 806, 809-10 (Fla.1986) (holding that “a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations”).

The former husband does not contend that the order on the status conference does not modify the final judgment. Instead, he asserts that the former wife dragged her feet in having the property sold. While we agree that the former wife obstructed the sale of the property, this argument misses the mark. The issue is whether the order on status conference modified the final judgment without proper invocation of the trial court’s subject matter jurisdiction and without affording the former wife procedural due process. Even if the request to reallocate the proceeds of the sale had been noticed for hearing (which apparently it was not), the trial judge lacked the authority to reallocate the proceeds since the judgment had become final. Upon proper motion, the judge was free to sanction the former wife for misconduct or delay, but to simply reallocate the proceeds in a manner not contemplated by the final judgment was an action without authority. As we said in Encarnacion v. Encarnacion, 877 So.2d 960, 963-64 (Fla. 5th DCA 2004):

At the time a judgment of dissolution of marriage becomes final, the parties’ property rights, if determined by the judgment, are fixed as a matter of law. A court may clarify what is implicit in the final judgment, and enforce the judgment. But after a final judgment is rendered, the trial court lacks jurisdiction under chapter 61 to determine property rights, unless the final judgment reserves jurisdiction for a specific purpose regarding identified property.

(Internal citations and footnotes omitted).

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

PLEUS, C.J., and EVANDER, J., concur.

      . Our case number 5D06-1732.

      . Our case number 5D06-2055.


author: WHATLEY, Judge.

text:
    Jeffery Dana WATKINS, Appellant v. STATE of Florida, Appellee.
    No. 2D06-5074.
    District Court of Appeal of Florida, Second District.
    June 15, 2007.

      James Marion Moorman, Public Defender, and Cynthia A. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Jeffery Dana Watkins appeals his judgment for habitual offender driving while licensed revoked. Watkins contends that the trial court failed to conduct an adequate Faretta hearing before accepting his no contest plea. We agree and reverse.

Florida Rule of Criminal Procedure 3.111(d)(2) provides as follows:

A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.

Pursuant to the requirements of rule 3.111(d)(2) and Faretta, when a defendant indicates that he wants to discharge his attorney, a trial court is required to inform the defendant of the disadvantages and dangers of self-representation and to warn him of the severity of the charge and the possible sentence. See Vera v. State, 689 So.2d 389, 391 (Fla. 2d DCA 1997). The failure of a trial court to conduct an adequate Faretta hearing is per se reversible error. Hutchens v. State, 730 So.2d 825, 826 (Fla. 2d DCA 1999); Wilson v. State, 947 So.2d 1225, 1226-27 (Fla. 1st DCA 2007).

In the present case, Watkins wanted to accept a plea offer, which was against the advice of his attorney, and therefore, he wanted to discharge his attorney. The following discussion occurred before Watkins entered his plea:

MR. WATKINS: Yeah I want to fire my lawyer.
THE COURT: You want to fire your lawyer and represent yourself?
MR. WATKINS: Yes.
THE COURT: Okay, you want to do that?
DEFENSE COUNSEL: That’s fine, Your Honor.
THE COURT: Okay, very well, let’s go back to it. Uh, Mr. Uh, Jeffery Dana Watkins, you want to discharge your lawyer?
MR. WATKINS: Yes.
THE COURT: You want to represent yourself?
MR. WATKINS: Yes, Sir.
THE COURT: Okay, very well. You’re charged with a crime of driving while license suspended or revoked as a habitual traffic offender. It’s a felony in the third degree, carries up to five years in state prison.
MR. WATKINS: Yes, Sir.

Thereafter, the trial court began the plea colloquy. The trial court erred in failing to conduct an adequate Faretta hearing. It was required to inquire about Watkins’ age, education, mental condition, and experience and knowledge of criminal proceedings. See Jones v. State, 658 So.2d 122, 125 (Fla. 2d DCA 1995). Further, the trial court was required to inform Watkins of the disadvantages and dangers of self-representation. Id. “Without such warnings, Faretta’s mandate that the record establish that a defendant has knowingly and intelligently exercised the right of self-representation ... cannot be fulfilled.” Id. at 126.

Accordingly, we reverse Watkins’ judgment and sentence for driving while license revoked and remand for further proceedings consistent with this opinion.

Reversed.

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

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


text:
    Todd W. STEPHENS, Appellant, v. Janeen J. STEPHENS, Appellee.
    No. 1D06-0810.
    District Court of Appeal of Florida, First District.
    June 18, 2007.

      Allison E. Folds of Folds & Walker, LLC, Gainesville, for Appellant and Cross-Appellee.
    Steven D. Turnage, Gainesville, for Ap-pellee and Cross-Appellant.
   PER CURIAM.

Todd W. Stephens (the former husband) appeals and Janeen J. Stephens (the former wife) cross-appeals a final judgment of dissolution raising seven issues. We address only the trial court’s valuation of certain real property and determination of the amount of child support. We affirm all remaining issues raised on appeal and cross-appeal without further discussion. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

In the final judgment under review, the trial court determined the value to be given to a parcel of real property purchased by the parties during their marriage and subject to equitable dissolution. An expert retained by the former wife testified that this undeveloped lot located in Alachua County, which the parties have referred to as the “Wyngate lot,” had a fair market value of $218,000. The trial court, however, rejected this valuation, finding that the methodology employed by the expert was questionable because the expert established a value for the Wyngate lot based upon comparison with other lots of much larger size. Our review of the record reveals that the expert established a value for the Wyngate lot by using sales prices of undeveloped properties of far greater size without making an adjustment in the value of the Wyngate lot to reflect the price per acre paid for the lots. We therefore find no basis for disturbing the court’s rejection of this valuation.

In rejecting the expert’s valuation, however, the trial court erroneously found that the Wyngate lot had a value of $150,000 based on the opinion of the former husband. The record reflects that the former husband testified below that the Wyngate lot had a value of $120,000. We have been directed to no evidence in the record which would support a finding that the property is worth $150,000. Because the trial court’s valuation of the Wyngate property is not based on competent and substantial evidence, we reverse this finding and remand for entry of a valuation based on evidence of record. See Mullen v. Mullen, 825 So.2d 1078 (Fla. 4th DCA 2002)(“Prop-erty valuation which is not supported by competent, substantial evidence cannot stand.”); Noone v. Noone, 727 So.2d 972, 974 (Fla. 5th DCA 1999).

Further, we are unable to determine from the final judgment of dissolution how the trial court reached the figure of $1,803 per month as the amount of child support owed by the former husband. Accordingly, we cannot determine whether the trial court properly applied the child support guidelines in section 61.30, Florida Statutes (2005). Thus, the cause is remanded so that the trial court may set forth in more detail the bases for the amount awarded. On remand, the trial court has the discretion to modify the amount of child support ordered should it be determined that the prior award was erroneous or is no longer appropriate given the temporary child visitation schedule established in the final judgment, a schedule which the court clearly intended to be an interim arrangement. See Smith v. Smith, 912 So.2d 702 (Fla. 2d DCA 2005) (remanding a child support award for further findings because neither the final judgment nor the record on appeal disclosed with any meaningful specificity the manner in which the trial court calculated the husband’s child support obligation).

AFFIRMED in part, REVERSED in part and REMANDED.

WEBSTER, VAN NORTWICK, AND PADOVANO, JJ., concur.