author: COHEN, J.

text:
    Victor Manuel ROSARIO-PAREDES, Appellant, v. J.C. WRECKER SERVICE and Bill Farmer, Sheriff of Sumter County, Florida, in his official capacity, Appellees.
    No. 5D06-4317.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.

      Thomas John Dandar of Dandar & Dan-dar, P.A., Tampa, for Appellant.
    Ceci Culpepper Berman and Sarah Lah-lou-Amine of Fowler, White, Boggs, Banker, P.A., Tampa, for Appellee J.C. Wrecker Service.
    Linda L. Winchenbach of John M. Green, Jr., P.A., Ocala, for Appellee Bill Farmer.
   COHEN, J.

Victor Rosario appeals an adverse final judgment and denial of a motion for new trial following a jury verdict of no liability on the part of J.C. Wrecker Service or Bill Farmer, Sheriff of Sumter County, in Rosario’s motor vehicle negligence lawsuit. We affirm.

In the early morning hours of August 1, 2001, a tractor-trailer ran off CR 475 into woods. J.C. Wrecker Service was called to extricate the disabled rig; its initial attempts, however, proved unsuccessful. J.C. Wrecker determined the extraction procedure required placing a steel cable across the road. They contacted the Sumter County Sheriffs Department to arrange for traffic control during the towing operation, and Deputy Tucker responded to the scene.

J.C. Wrecker decided to await first light to begin the towing operation. A cable was laid flat across the road and connected to the disabled tractor-trailer. Deputy Tucker parked his patrol vehicle, activated his emergency lights, and began to direct traffic. No flares were deployed. During the initial setup, traffic was allowed to pass over the cable, but once the towing company prepared to initiate the process of hauling out the tractor-trailer, Deputy Tucker began to stop traffic. One vehicle was stopped when Mr. Rosario, driving another tractor-trailer, came over the crest of a hill about 1000 feet from the initial accident scene. Mr. Rosario blew his horn and changed lanes to pass around the stopped vehicle, despite the presence of the patrol vehicle and tow truck. Although Mr. Rosario slowed as he approached the scene, Deputy Tucker ran off the roadway because he believed Mr. Rosario did not intend to stop. The cables were still flat across the road, but were attached to the tow truck’s high fixed booms and were higher at the rear. Mr. Rosario’s tractor-trailer caught the cable stretched from two steel booms on the rear of the wrecker. Once the cable played out, it cut through the top of Mr. Rosario’s cab, grazing his head. His speed at the time of impact was less than ten miles per hour.

The trial testimony conflicted on numerous issues ranging from the time of the incident, lighting conditions, placement of the patrol vehicle, and the operational condition of the emergency lights for both the deputy’s patrol vehicle and tow truck.

Mr. Rosario raises a number of issues on appeal; only two merit discussion. He argues that the verdict was against the manifest weight of the evidence and that improper closing argument deprived him of a fair trial.

Denial of Motion for New Trial

The issue for the appellate court to resolve is not whether the verdict was contrary to the manifest weight of the evidence, but rather, whether the trial court abused its discretion in denying a motion for new trial. Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000). In order to reach that conclusion, the evidence must be clear and obvious, and not conflicting. Id. We conclude that the trial judge did not abuse his discretion in denying the motion for new trial. When the evidence is in conflict, as it was in this case, it is the function of the jury to weigh the evidence and resolve those conflicts. It is neither the trial judge’s nor the appellate court’s role to disturb that determination. Reversal of a jury verdict is appropriate only in the absence of conflicting evidence, when there is no rational basis in the evidence to support the verdict. Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 118 (Fla. 4th DCA 2007) (citing Sifford v. Trans Air, Inc., 492 So.2d 407, 408 (Fla. 4th DCA 1986)).

Closing Argument

Mr. Rosario objected to statements of personal opinions by the Sheriffs counsel as well as to the following argument made by J.C. Wrecker’s counsel to discredit his treating physicians:

[T]hey do an amazing job, they do an amazing job of trying to convince people of these injuries, but that’s why they keep on hiring these doctors over and over; that’s why Dr. Hoffman has testified 15 times for this Plaintiffs firm, they’re good. They’re good at what they do and they’re paid very handsomely for it. That’s why these guys are so good. I mean, there’s a network of lawyers and doctors and all working together, everybody is making money. That’s what these guys do for a living, they testify, they’re professional witnesses. They do this for a living. And how dare they make us look like the bad guy for hiring our own doctors.

Mr. Rosario’s counsel objected and moved for a mistrial, which the court denied. We conclude that counsel’s argument and expressions of personal opinion were improper. The question, however, is whether the improper arguments were so highly prejudicial that it denied Mr. Rosario the right to a fair trial. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla.2006). We decide that they did not.

While attorneys are given broad latitude in closing arguments, their comments must be confined to the evidence and to issues and inferences that can be drawn from the evidence. Venning v. Roe, 616 So.2d 604, 604 (Fla. 2d DCA 1993). Closing argument may focus on an expert’s response to permissible areas of inquiry, including the scope of employment in the pending case and compensation, the percentage of income derived from litigation-related matters, and the percentage of work performed for plaintiffs and defendants. See Flores v. Miami-Dade County, 787 So.2d 955, 957-58 (Fla. 3d DCA 2001). In this case, Dr. Hoffman testified without objection to the number of times he had been employed by the plaintiffs law firm. A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness’s financial incentive to continue the financially advantageous relationship. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997-98 (Fla.1999); Sanchez v. Nerys, 954 So.2d 630 (Fla. 3d DCA 2007), review denied, 969 So.2d 1014 (Fla.2007). Arguments that go beyond bias, and instead attack opposing counsel or suggest fraud or collusion are not acceptable and will not be condoned. Wall v. Costco Wholesale Corp., 857 So.2d 975, 976 (Fla. 3d DCA 2003); Johnnides v. Amoco Oil Co., 778 So.2d 443, 444-45 (Fla. 3d DCA 2001). In response to Mr. Rosario’s objection, the trial court offered to fashion a curative instruction, which plaintiffs counsel declined. The closing arguments complained of in this case were isolated and, while improper, did not rise to the level that deprived Mr. Rosario of a fair trial.

Accordingly, we AFFIRM the final judgment.

GRIFFIN and SAWAYA, JJ„ concur.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    ISLANDER BEACH CLUB CONDOMINIUM, etc., Appellant, v. SKYLARK SPORTS, L.L.C., Appellee.
    No. 5D06-503.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.

      Robert W. Thielhelm, Jr. and Leslie B. Bissinger, of Baker & Hostetler, LLP, Orlando, for Appellant.
    Neal A. Sivyer and Paul D. Watson, of Sivyer, Barlow & Watson, P.A., Tampa, for Appellee.
   SAWAYA, J.

The issue we must resolve is whether the following attorney’s fee provision in a lease agreement entered into between Islander Beach Club Condominium Association of Volusia County, Inc. and Skylark Sports, LLC is enforceable:

ATTORNEY’S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys’ and costs incurred by the other party.

Islander contends this fee provision is not enforceable because it is “nonsensical” and, therefore, requests this court to reverse the order awarding Skylark $192,167.39 for costs and attorney’s fees as the prevailing party in a suit brought by Skylark against Islander seeking damages for fraudulent inducement to enter into the lease agreement and for constructive eviction.

Skylark leased restaurant space on the first floor of the seven-story Islander timeshare condominium and operated a restaurant on the premises before vacating due to the four-month closure of the condominium occasioned by repairs to the building. Skylark filed suit against Islander for fraudulently failing to disclose, prior to Skylark’s execution of the lease agreement, its knowledge that the building had structural problems the repairs of which would adversely impact the restaurant. In another count, Skylark claimed that there had been an actual breach of the lease due to constructive eviction. Islander asserted various affirmative defenses and filed a counterclaim for breach of the lease seeking recovery of the unpaid rent based upon Skylark’s abandonment of the premises.

Following a jury trial, the jury found in favor of Skylark only on its common law fraud in the inducement count, awarding Skylark $226,555 in damages, and found against Islander on its breach of lease counterclaim. Upon receipt of the favorable verdict on its fraud claim, Skylark moved for attorney’s fees and costs.

At the hearing on Skylark’s motion, the trial court inquired how the fee provision came to be worded as it was. Islander’s attorney responded that the fee provision was being negotiated back and forth and Skylark’s principal, Mr. Della Valle, had made changes himself. The court granted Skylark’s motion, finding that Skylark “is the party that prevailed on the substantial issues in this case and is entitled to recover its attorneys’ fees and costs ... pursuant to the Lease... .” In a subsequent hearing, the trial court determined that $192,167.39 was the appropriate amount to be awarded to Skylark for fees and costs.

We review de novo a trial court’s determination of entitlement to attorney’s fees based upon the court’s interpretation of a contract. Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000) (holding that de novo review is appropriate when entitlement to attorneys fees is based on interpretation of contractual provisions); see also Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000).

The starting point of our analysis begins with the general principle that “[t]he right to attorney’s fees under any contractual provision is limited by the terms of such provision.” Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 664 (Fla. 5th DCA 1983); see also B & H Constr. & Supply Co. v. Dist. Bd. of Trs. of Tallahassee Cmty. Coll., Fla., 542 So.2d 382, 387 (Fla. 1st DCA 1989) (“The right to contractual attorney’s fees is limited by the terms of the provision .... ” (citing Bowman)), review denied, 549 So.2d 1013 (Fla.1989); Bay Lincoln-Mercury-Dodge, Inc. v. Transouth Mortg. Corp. of Fla., 531 So.2d 1027 (Fla. 1st DCA 1988).

Application of this legal principle leads us to conclude that the attorney’s fee provision in the lease is unenforceable. Iteration of the provision here is helpful:

ATTORNEY’S FEES: In the event that either party incurs legal fees or costs in the enforcement of this Lease or any provision hereof, whether suit is filed or not, shall be entitled to recover and to receive payment of reasonable attorneys’ and costs incurred by the other party.

The provision as written clearly makes no sense: It provides that if either party incurs attorney’s fees or costs when trying to enforce the lease, some unnamed entity (presumably, at least, a party) is entitled to recover the fees and costs that were incurred by the other party rather than those incurred by that entity. Thus, it does not reflect any clear intention of the parties as to whom, when, and how attorney’s fees or costs should be allowed. We, therefore, conclude that as written, the fee provision in the lease is unenforceable. See also Vill. 45 Partners, LLC v. Racetrac Petroleum Inc., 831 So.2d 758, 760 (Fla. 4th DCA 2002) (“Florida requires that agreements providing for the award of attorney’s fees be clear and specific.”); Sunshine Bottling Co. v. Tropicana Prods., Inc., 757 So.2d 1231, 1233 (Fla. 3d DCA 2000) (“In the absence of a clear and unambiguous contractual provision or a statutory right, Sunshine is not entitled to attorney’s fees.”); Toyota Motor Credit Corp. v. Dollar Enters., Inc., 702 So.2d 1319 (Fla. 3d DCA 1997); Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So.2d 1114, 1118 (Fla. 4th DCA 1997) (“[T]he rule is that if an agreement for one party to pay another party’s attorney’s fees is to be enforced it must unambiguously state that intention and clearly identify the matter in which the attorney’s fees are recoverable.... If the agreement is clear, no construction is necessary. If it is ambiguous, the court will not struggle by construction of the language employed to infer an intent for fees that has not been clearly expressed; nor will it allow intentions to indemnify another’s attorney’s fees to be ambiguously stated and then resolved by the finder of fact.”); Fla. Med. Ctr., Inc. v. McCoy, 657 So.2d 1248 (Fla. 4th DCA 1995).

In order to award fees to Skylark, the trial court: (1) read into the clause the language necessary to make it a prevailing party provision, and (2) rewrote the final portion, changing “by the other party” to “from the other party.” We believe the trial court went too far in rewriting the agreement for the parties as it did. It is a simple matter to include a cogent prevailing party provision and here, the parties did not do so. Perhaps the parties did not intend a prevailing party provision. Perhaps they did intend that one party receive the amount of fees expended by the other party in an effort to make the parties mindful of keeping fees down. What is clear is that there was no meeting of the minds regarding these specific provisions, and it was error for the court to insert them when they were not included by the parties. B & H Construction, 542 So.2d at 387 (“The attorney’s fee provision in the construction contract does not require a ‘prevailing party’ analysis. It simply and clearly requires a finding that B & H breached the contract in order for TCC to recover fees. The right to contractual attorney’s fees is limited by the terms of the provision and should be strictly construed. Therefore, we reject the application of a ‘prevailing party’ analysis to the present case.”) (citations omitted); Dan Galasso Waste Serv., Inc. v. Hemery, 528 So.2d 1356, 1358 (Fla. 3d DCA 1988) (holding it was error for trial court to construe provision, “In the event of a breach of this agreement by either party, the breaching party shall pay all reasonable attorney’s fees ...,” to mean that the prevailing party in any action on the contract was entitled to attorney’s fees; there was no “prevailing party” language in the clause and to rewrite the clause by construing it to include the term is “a result strictly forbidden by well-established principles of contract law.”) (footnote omitted), review denied, 537 So.2d 569 (Fla.1988).

Because the attorney’s fee provision in the lease is unenforceable, we reverse the order under review awarding Skylark its attorney’s fees and costs. We do not remand for reconsideration of a fee award because there is no basis for the award other than the unenforceable fee provision. See Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995) (“[A]ttorney’s fees may only be awarded by a court pursuant‘to an entitling statute or an agreement of the parties.”); Plapinger v. E. States Props. Realty Corp., 716 So.2d 315, 317 (Fla. 5th DCA 1998). However, we do remand for reconsideration of Skylark’s costs pursuant to section 57.041, Florida Statutes.

REVERSED and REMANDED.

PALMER, C.J. and MONACO, J., concur.

      . Islander also contends that even if the attorney’s fee provision is enforceable, the trial court erred by: 1) concluding that the claim for fraudulent inducement was an action "in the enforcement” of the lease such as would trigger the fee provision; and 2) awarding fees for not only the fraudulent inducement claim, but also for the constructive eviction count on which Skylark was not successful. As to the first issue, we would briefly note that there is a difference between a clause that provides for fees "arising out of a contract” and a clause that provides for fees incurred "in the enforcement of a contract.” An action for fraud in the inducement is not considered an action "in the enforcement of a contract,” but it may be considered an action that "arises out of the contract.” See W.G. Techs., Inc. v. PC Franchise, Inc., 814 So.2d 458, 459 (Fla. 4th DCA 2001) (holding that an action for negligent misrepresentation is not an action "in the enforcement of a contract” and the prevailing party in that action would not be entitled to fees pursuant to a fee provision containing that clause); see also Caufield v. Cantele, 837 So.2d 371 (Fla.2002) (holding that a claim for fraudulent misrepresentation concerning the subject matter of the contract does "arise out of the contract,” thus entitling the prevailing party to fees pursuant to a contractual provision containing that clause). Because the fee provision provides for fees "in the enforcement of the lease,” we agree with Islander on that issue. In any event, these two issues are rendered moot by virtue of our holding that the provision is unenforceable, and we will comment no further on either of them.

      . Islander appealed both the order finding that Skylark was entitled to fees and the final order entered on the verdict. The appeal as to the fee order was stayed pending the outcome of the appeal of the final judgment. This court per curiam affirmed the final judgment on the merits. Islander Beach Club Condo. v. Skylark Sports, L.L.C., 942 So.2d 896 (Fla. 5th DCA 2006). In that appeal, Skylark sought its appellate fees and costs, citing to section 57.105(7), Florida Statutes, and the fee provision in the lease. Appellate fees were denied. During the pendency of the appeal of the final judgment, an evidentiary hearing was held by the trial court to determine the amount of fees to which Skylark was entitled.

      . Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 915 (Fla.2001) ("A prevailing party is entitled to recover from the losing party 'all his or her legal costs and charges which shall be included in the judgment.' § 57.041, Florida Statutes.”); Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986) ("Although section 57.041 provides for costs to ‘the party recovering judgment' and section 768.56 provides for 'prevailing party’ attorney fees, we concede that the same principles should be applied under each provision.”); Wyatt v. Milner Document Prods., Inc., 932 So.2d 487 (Fla. 4th DCA 2006) (applying a prevailing party standard to determine costs under section 57.041, Florida Statutes); Granoff v. Seidle, 915 So.2d 674, 677 (Fla. 5th DCA 2005). But see Bessey v. Difilippo, 951 So.2d 992, 995 (Fla. 1st DCA 2007) (declining to use the prevailing party standard and certifying conflict with Granoff).


author: EVANDER, J.

text:
    Lawrence BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2624.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.

      Lawrence Burns, DeFuniak Springs, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Burns appeals from a summary denial of his Rule 3.800(a) motion to correct sentencing. We reverse.

In 1998, Burns pled no contest to lewd and lascivious assault upon a child for an incident which allegedly occurred on November 1, 1996. As a result of this plea, Burns was sentenced to five years of sex offender probation.

Burns subsequently violated his probation and was sentenced in March, 2000, to fifty-one weeks incarceration followed by another five years of sex offender probation.

In May, 2002, Burns again violated his probation. He was arrested for the VOP on January 10, 2007. The following month, Burns. admitted the violation and was sentenced to ninety months incarceration.

Shortly thereafter, Burns filed his motion to correct sentence, alleging that the trial court utilized the wrong scoresheet at the 2007 sentencing. Specifically, Burns alleged that the trial court utilized a 1995 sentencing guideline scoresheet — rather than a 1994 scoresheet, as required by Heggs v. State, 759 So.2d 620 (Fla.2000). Burns argues, and the State appears to agree, that under the 1994 scoresheet, the maximum allowable sentence would be 82.5 months.

On remand, the trial court must either attach records conclusively refuting Burns’ claim, or alternatively, resentence Burns in accordance with Heggs.

REVERSED and REMANDED.

PALMER, C.J. and MONACO, J., concur.

      . Fla. R.Crim. P. 3.800(a).

      . In Heggs v. State, 759 So.2d 620 (Fla.2000), the Florida Supreme Court held that Chapter 95-184, Laws of Florida, containing, inter alia, the 1995 sentencing guidelines, was unconstitutional because it violated the Florida Constitution’s single-subject rule. Accordingly, where a defendant was sentenced under the unconstitutional 1995 guidelines and his sentence could not be imposed under the 1994 guidelines without a departure, a defendant would be entitled to resentencing under the 1994 guidelines. In Trapp v. State, 760 So.2d 924 (Fla.2000), the Supreme Court elaborated on the window period for defendants to raise such a claim under Heggs. There, the Supreme Court stated:
      [Piersons ... who are challenging a sentence imposed under the sentencing guidelines as amended by chapter 95-184 have standing to do so if the relevant criminal offense or offenses occurred on or after October 1, 1995, and before May 24, 1997.

        Id. at 928.


text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2713.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

J.S., a juvenile, appeals an order of indirect criminal contempt stemming from a delinquency proceeding. On January 16, 2007, J.S. was arrested and detained for battery upon his younger brother. Detention for such an offense is authorized under section 985.255(l)(d), Florida Statutes (2006). A detention review hearing was held on February 1, 2007, at which time the trial court, exercising its discretion, ordered J.S. released from detention to his parents’ custody under conditions set forth in a document entitled “Standard Behavior Order for Juveniles Charged with Committing a Delinquent Act.” A condition of his release was that he conform to the behavior order.

On July 12, 2007, the father of J.S. submitted an affidavit, which triggered the contempt proceeding. His affidavit reflected that J.S. smoked marijuana daily, had been arrested for possession of an ounce of marijuana, stayed out until the early morning hours, continued to be physically abusive to his siblings, robbed a convenience store, and otherwise failed to abide by the terms and conditions of the behavior order. In response to what can only be characterized as the father’s plea for help, the trial court issued an order to show cause and set a hearing. At that hearing, counsel for J.S. objected to the validity of the behavior order, and, based upon the court’s prior rulings on the same issue, J.S. entered a plea of no contest and was sentenced to five days in secure detention. This appeal followed.

The first issue centers upon the court’s authority to issue the behavior order. The initial secure detention order was lawful, and at the time of the February 1, 2007 detention review hearing, the court had authority to continue to detain J.S. Instead, she allowed J.S.' to return home upon compliance with the behavior order’s conditions. Those conditions were clearly less restrictive than secure detention. When the court otherwise has the authority to impose secure detention, it may also condition release from detention upon reasonable terms and conditions to insure the presence of the child at trial and protect the public, including the victim.

The remaining issue involves the court’s refusal to allow credit for time served over the weekend. The court’s decision apparently was motivated by the unavailability of an alternative placement because neither the parents nor the child desired a placement within the family home. Notwithstanding the reasons proffered, the record is devoid of any basis to impose a sentence greater than five days. § 985.037(2), Fla. Stat. (2006). The court is without authority to exclude weekends when calculating time served. J.B. v. State, 829 So.2d 376, 378 (Fla. 4th DCA 2002); L.K. v. State, 729 So.2d 1011, 1011 (Fla. 4th DCA 1999). While the written order lawfully sentenced J.S. to five days in secure detention, the corresponding provision that ordered his release after five weekdays had elapsed was error.

AFFIRMED in part, REVERSED in part.

TORPY and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Christopher L. COON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-3109.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.
    Christopher L. Coon, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

As the oath contained in the petition to this court alleging ineffective assistance of appellate counsel is deficient, the petition is dismissed without prejudice. Petitioner is given thirty (30) days to refile a petition containing a proper oath.

MONACO, LAWSON and COHEN, JJ., concur.


text:
    Romun JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4145.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.
    Romun Jenkins, Lake Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his rule 3.850 motion. We agree with the State that, as to witness Espute, this issue should have been raised on direct appeal. Accordingly, we affirm the trial court on this issue. As to potential witness Tomlinson, based on the State’s concession that the trial court erred in not permitting Appellant to amend his motion, we reverse and remand with instructions that the trial court permit Appellant to amend his motion. See Spera v. State, 971 So.2d 754 (Fla.2007).

AFFIRMED in part; REVERSED in part, and REMANDED.

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    James D. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0174.
    District Court of Appeal of Florida, First District.
    March 7, 2008.
    James D. Robinson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: WOLF, J.

text:
    MATRIX EMPLOYEE LEASING and FCIC/First Commercial Claim Services, Appellants, v. Leopoldo HERNANDEZ, Appellee.
    No. 1D07-1455.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Kristin J. Longberry of Alvarez, Sam-bol, Winthrop & Madson, P.A., Orlando, for Appellants;
    Yolanda Hewling, Port St. Lucie; and Bill McCabe, Longwood, for Appellee.
   WOLF, J.

The employer/carrier (E/C) raises two issues on appeal. We affirm as to both, and choose to discuss one: Whether the Judge of Compensation Claims (JC.C) erred as a matter of law in finding that, although claimant unlawfully presented a false social security card for the purpose of obtaining employment, claimant was still owed workers’ compensation benefits. .

Claimant is a thirty-year-old male who began working for Robert Hershberger through Matrix, the employer. Matrix is the company that provides Mr. Hershber-ger’s workers’ compensation insurance. When claimant was hired, he presented to Mr. Hershberger what appeared to be a valid,' legitimate social security card. A copy of the card was faxed to the employer upon claimant’s hiring. However, the employer did not verify whether the social security number was valid. The E/C’s witness claimed that the E/C did not find out the card was invalid until the day of the accident.

The E/C argues that the JCC erred in its application of sections 440.105(4)(b)(9) and 440.09(4)(a), Florida Statutes. It argues that, pursuant to the plain and unambiguous language of those' statutes, the fraudulent obtaining of employment by claimant pursuant to section 440'.105(4)(b)(9) is sufficient to trigger the provisions of section 440.09(4)(a), thus mandating that claimant not be entitled to workers’ compensation benefits.

Whether the JCC erred in finding that claimant was entitled to workers’ compensation benefits even though he was unlawfully employed. depends on whether the JCC erred in its interpretation of sections 440.105(4)(b)(9) and 440.09(4)(a), Florida Statutes, which is a question of law. The standard of review, therefore, is de novo. Mylock v. Champion Int’l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).

Section 440.09(4)(a), Florida Statutes (2005), provides:

An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation Claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers’ compensation benefits.

Section 440.105(4)(b)(9), Florida Statutes (2005), provides:

(b) It shall be unlawful for any person:
9. To knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits.

It is undisputed that claimant violated section 440.105(4) (b) (9), Florida Statutes (2005). What is disputed by the E/C is whether this violation was cause for forfeiture of compensation benefits pursuant to section 440.09(4)(a), Florida Statutes.

“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.” James W. Windham Builders, Inc. v. Overloop, 951 So.2d 40, 42 (Fla. 1st DCA 2007). “The statute must be given its plain and obvious meaning.” Id. (citing McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998)). Although both parties argue the statute in question is clear and unambiguous, their interpretations are contradictory.

The E/C, on one hand, asserts that section 440.09(4)(a) should be read to mean that an employee shall not be entitled to compensation or benefits under this chapter if a JCC determines that the employee has knowingly or intentionally engaged in any of the acts described in section 440.105. Thus, according to the E/C, because it is clear that claimant violated section 440.105(4)(b)(9) by procuring work with a false social security card, claimant should not be entitled to workers’ compensation benefits. Claimant, on the other hand, interprets section 440.09(4)(a) differently. Specifically, claimant argues that pursuant to the statute, an employee shall not be entitled to compensation benefits only if a JCC determines that the employee has knowingly or intentionally engaged in any of the acts described in section 440.105 for the purpose of securing workers’ compensation benefits. The question thus becomes whether the Legislature intended “for the purpose of securing workers’ compensation benefits” to modify just “any criminal act” or, also, “any of the acts described in s. 440.105.” Because at first glance both interpretations appear reasonable, the statute is ambiguous and this court must undergo an exercise in statutory interpretation.

This court must interpret statutes by the well-established norms of statutory construction which require rendering the statutory provision meaningful. Crutcher v. Sch. Bd. of Broward County, 834 So.2d 228, 232 (Fla. 1st DCA 2002). To properly determine the scope of a statutory term, it is necessary to consider the act as a whole, the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence on the subject. Stivers v. Ford Motor Credit Co., 777 So.2d 1023, 1025 (Fla. 4th DCA 2000).

In 2003, section 440.09(4)(a), Florida Statutes (2003), was amended by chapter 2003-412, section 6, Laws of Florida, which added the words “or any criminal act,” to read:

An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers’ compensation benefits.

Accordingly, prior to the 2003 amendment to this statute, it was clear that “for the purpose of securing workers’ compensation benefits” modified any act described in section 440.105. Chapter 2003-412, Laws of Florida, was entitled “An act relating to workers’ compensation.” It described the amendment to section 440.09(4)(a), Florida Statutes, as “specifying effect of criminal acts.” Ch. 2003-412, § 6, Laws of Fla. Accordingly, the act does not indicate that the Legislature intended the prepositional phrases “for the purpose of securing workers’ compensation benefits” to no longer modify section 440.105, Florida Statutes, as they had previously. Instead, the addition of “or any criminal act” appears to have simply broadened the application of section 440.09(4)(a) to cover not only acts described in section 440.105, but also other criminal acts, as long as all of those acts are done for the purpose of securing workers’ compensation benefits.

Additionally, this interpretation is supported by existing case law. In Pavilion Apartments v. Wetherington, 943 So.2d 226, 227-28 (Fla. 1st DCA 2006), this court cited to section 440.09(4)(a), Florida Statutes (2004), and analyzed it as rendering a claimant ineligible for workers’ compensation if it was determined “that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 ... for the purpose of securing workers’ compensation benefits.”

The record contains no evidence that claimant violated section 440.105(4)(b)(9), Florida Statutes, for the purpose of obtaining workers’ compensation benefits. We, therefore, affirm.

BENTON and PADOVANO, JJ., concur.


author: WEBSTER, J.

text:
    U.S. AGRI-CHEMICALS CORP. and AIG Claim Services, Inc., Appellants, v. Larry CAMACHO, Appellee.
    No. 1D07-0272.
    District Court of Appeal of Florida, First District.
    March 10, 2008.

      Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellants.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   WEBSTER, J.

In this workers’ compensation case, the employer and servicing agent seek review of a final order determining that the rupture of claimant’s congenital arterial venous malformation was job-related and, therefore, compensable, and awarding benefits. We affirm as to all issues raised, writing only to address briefly two matters.

The employer and servicing agent contend that the judge of compensation claims erred when he admitted, over a timely objection, the deposition and records of Dr. van Loveren, a neurosurgeon who repaired claimant’s rupture. Because Dr. van Loveren was not an authorized treating provider, an independent medical examiner or an expert medical advisor, we agree that the judge should have sustained the timely objection and not admitted the deposition and records. See § 440.13(5)(e), Fla. Stat. (2005) (“[n]o medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims”); Chudnof-James v. Racetrac Petroleum, Inc., 827 So.2d 369, 370-71 (Fla. 1st DCA 2002) (“[t]he law is clear that a JCC errs in admitting the opinion testimony of a physician who does not fall into one of the [] categories” listed in section 440.13(5)(e)). However, because the judge stated in his order that he would have reached the same result even without the deposition and records of Dr. van Lov-eren and that result is supported by competent substantial evidence in the form of the testimony of claimant’s independent medical examiner, we conclude that the error is harmless.

The employer and servicing agent also complain that, because a disagreement existed between the two independent medical examiners regarding causation, the judge was obliged to appoint an expert medical advisor. However, the employer and servicing agent never requested that the judge appoint an expert medical advisor. Accordingly, we conclude that they have failed to preserve this issue, and may not raise it for the first time on appeal. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1355 n. 3 (Fla. 1st DCA 1997) (indicating that, while the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure to do so does not constitute fundamental error, and may not be raised for the first time on appeal). Cf. Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So.2d 355, 357 (Fla. 1st DCA 1998) (concluding that a party may not complain about the failure to appoint an expert medical advisor when a request for appointment is not made “with reasonable timeliness”).

AFFIRMED.

BENTON and POLSTON, JJ., concur.


text:
    Ivan LACAJ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and A-1 Temps, Inc., Appellees.
    No. 1D08-0374.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Ivan Lacaj, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Sunshine Dodge, Inc. v. Ketchem, 427 So.2d 819 (Fla. 5th DCA 1983) (stating that Florida Rule of Appellate Procedure 9.110(b) requires the notice of appeal to be filed within 30 days of the rendition of the order to be reviewed and noting that the rule does not say “business days”).

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Richard D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0276.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Richard Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. The motion to recall mandate is denied.

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Wilson CROSBY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-2846.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Wilson Crosby, pro se, Petitioner.

      Kim Fluharty, General Counsel, and Sarah J. Rumpf, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Wilson Crosby seeks review of an order of the circuit court denying his petition for writ of mandamus, in which he challenged the revocation of his conditional release supervision. Our scope of review is limited to determining whether the circuit court afforded procedural due process and whether it observed the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). We conclude that under the circumstances of this case, procedural due process was not afforded by the circuit court.

In a prior proceeding addressing the circuit court’s initial order denying relief, we concluded that because it was not clear from the hearing examiner’s records or the Parole Commission’s revocation order whether the violation was found to be willful, the circuit court could not have reviewed the matter in accordance with the essential requirements of law. See Crosby v. Fla. Parole Comm’n, 949 So.2d 1181 (Fla. 1st DCA 2007). Accordingly, the circuit court’s order was quashed, the matter was remanded, and the circuit court in turn remanded the matter to the Parole Commission - to determine whether Crosby’s violation was willful and substantial. Based on a review of the record of the original revocation hearing, the hearing examiner concluded that the violation was willful and substantial, and the Parole Commission thereafter issued an order adopting that finding. Shortly thereafter, the circuit court entered the order for which review is now sought, concluding that in. light of the finding of the examiner and the Parole Commission’s adoption thereof, petitioner was not entitled to relief from the revocation order.

Crosby now argues that his due process rights were violated when the circuit court failed to allow him an opportunity to be heard before again denying relief, and we agree. Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue, and requires fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner. See Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940 (Fla.2001). The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). As noted by this court in its initial opinion, the record at that point was devoid of any finding that petitioner’s violation was willful and substantial. Such a finding was not made until the matter was remanded to the Commission, and under these circumstances, due process requires that petitioner be given the opportunity to address the newly made finding before the issue is resolved on the merits. Doing so will allow the circuit court to address in the first instance Crosby’s claims that' the Parole Commission erred by not conducting a supplemental revocation hearing, and that the findings of willfulness and sub-stantiality are in any event without adequate evidentiary support.

Accordingly, the circuit court’s order denying mandamus relief on remand is QUASHED, and the matter is REMANDED for further proceedings consistent herewith.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    F.A. RICHARD AND ASSOCIATES and Palm Beach County School Board, Appellants, v. Segunda R. FERNANDEZ, Appellee.
    No. 1D07-2623.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Kimberly A. Hill and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants.
    Alan M. Aronson, West Palm Beach; and Bill McCabe, Longwood, for Appellee.
   WOLF, J.

F.A. Richard and Associates and Palm Beach County School Board, employer/carrier (E/C), appeal an order denying the E/C’s Motion to Tax Costs after prevailing in the proceedings before the Judge of Compensation Claims (JCC). The issue before us is whether the JCC erroneously denied the E/C’s Motion to Tax Costs pursuant to section 440.34(3), Florida Statutes (2005), where the E/C failed to plead entitlement to such costs. We determine that pleading entitlement to costs is not a prerequisite to collecting costs pursuant to the statute and, thus, reverse.

On January 12, 2006, claimant filed a petition for benefits seeking (1) compensa-bility for her pulmonary and bronchial injuries stemming from repetitive exposure to mold, mildew, and other occupational irritants and (2) authorization and payment of medical care. The E/C denied compensability, and the dispute proceeded to a hearing. Following the final hearing on January 22, 2007, the JCC entered an order denying compensability of the claim and concomitant benefits. Subsequently, on March 19, 2007, the E/C filed a Motion to Tax Costs pursuant to section 440.34(3), Florida Statutes (2005). A hearing on the Motion to Tax Costs was held on April 17, 2007. At the hearing, the only exhibit entered into evidence was the E/C’s attachments to its Motion to Tax Costs, illustrating the actual costs of the litigation. The amount of costs requested totaled $13,266.14. Claimant’s only argument at the hearing rested in the unfairness of the assessment of costs for a good faith claim. Claimant did not raise a waiver argument or otherwise assert that the E/C’s failure to timely serve notice of its intent to seek costs barred the request.

Following the hearing, the JCC entered an order denying the motion based on the E/C’s failure to assert their entitlement to costs on the original pretrial stipulation or any of the subsequent amendments to the pretrial stipulation. Specifically, the JCC held that “[c]laimant is entitled to notice, prior to proceeding to Final Hearing, of the opposing party’s intent to request the payment of costs if the opposing party prevails at Hearing.”

On appeal, the E/C contends they are entitled to costs pursuant to section 440.34(3), Florida Statutes (2006), which provides in pertinent part:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonpre-vailing party the reasonable costs of such proceedings, not to include attorney’s fees....

(Emphasis added). In the instant case, the JCC acknowledged section 440.34(3), but denied the request for costs because:

The Employer/Carrier’s timely assertion of a 440.34(3) claim for costs may play an important role in a Claimant’s decision affecting a case, and may be determinative in a decision on whether to pursue a claim, dismiss it, or settle. The Employer/Carrier’s failure to plead its claim of costs constitutes waiver of that claim.

Section 440.34(3), Florida Statutes, came into effect pursuant to the October 2003 statutory amendments to the Workers’ Compensation Laws. § 440.34(3), Fla. Stat. (2003). Prior to this amendment, only claimants were automatically entitled to costs against the E/C, not to include attorney’s fees; the E/C had no similar entitlement. § 440.34(3), Fla. Stat. (2002). A plain reading of section 440.34(3), Florida Statutes (2005), dictates that the JCC shall tax costs against the non-prevailing party regardless of whether that party is the claimant or the E/C. There appears to be no discretion in this assessment. However, claimant asserts that the JCC did have the discretion to deny the costs based on the E/C’s failure to assert its entitlement to those costs at any point in the proceedings prior to the final order on the issue of compensability.

We find the case of First Protective Insurance Co. v. Featherston, 33 Fla. L. Weekly D272, 2008 WL 183647 (Fla. 2d DCA Jan. 23, 2008), to be instructive on the necessity for the prevailing party to plead entitlement to costs. In First Protective, the Second District, in an en banc opinion, concluded that, while attorney’s fees must be pled prior to the determination of the “prevailing party,” costs do not require pre-judgment pleading. In distinguishing costs and attorney’s fees, the court noted:

In considering the appropriate pleading requirements, there is a material difference between attorney’s fees and costs. Unlike costs, ordinarily attorney’s fees are not recoverable and thus are not at issue. There is no generally applicable statute which entitles a prevailing party to a recovery of attorney’s fees. Accordingly, where there is a statutory or contractual basis for an award of attorney’s fees, proper pleading requires that a party seeking attorney’s fees put the other party or parties on notice that attorney’s fees are at issue in the litigation.
Under section 57.041, the recovery of costs is generally available to any “party recovering judgment.” This general provision may be displaced by context-specific statutory costs provisions.... Although the standard for the award of costs may-based on specific statutory provisions-vary from the general standard set forth in section 57.041, it is universally true that costs are at issue when a lawsuit is brought. The availability of a recovery of costs is part of the warp and woof of litigation. Every party to litigation enters the litigation on notice that costs are at issue. Given this reality, it is unnecessary to require that litigants assert a claim for costs in the pleadings.

First Protective, 33 Fla. L. Weekly at 273 (emphasis added).

Likewise, just as every party in civil litigation is on notice that costs are at issue, in light of the mandatory language in section 440.34(3), Florida Statutes (2005), all parties to workers’ compensation cases are on notice that costs are at issue. We, therefore, reverse the order denying prevailing party costs.

KAHN and VAN NORTWICK, JJ., concur.


text:
    Petro Lucar SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1543.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Petro Lucar Small, challenges his conviction for possession of a controlled substance. Appellant argues, and we agree, that the trial court erred by denying defense counsel’s request for a continuance after the State committed a discovery violation. Therefore, we reverse Appellant’s conviction and sentence and remand for a new trial.

Several police officers went to Timothy James’ house as part of an operation targeting street level drug sales. Officer Jay Gazani observed Appellant, who was standing inside Mr. James’ house, throw what appeared to be a controlled substance near a sofa. Officer Gazani entered the home and located a plastic bag that appeared to contain cocaine behind the sofa. Officer Gazani immediately arrested Appellant and conducted a search of his person. The officer found another plastic bag that appeared to contain cocaine on Appellant’s person.

Until the day of jury selection, the State had only submitted the substance found behind the sofa to the Florida Department of Law Enforcement for testing. This substance tested positive for cocaine. After jury selection was completed, the prosecutor informed defense counsel that he was sending the substance found on Appellant’s person for testing. Appellant’s trial was scheduled to begin the following day. On the day of the trial, the prosecutor informed defense counsel that the substance found on Appellant’s person also tested positive for cocaine. Defense counsel immediately informed the trial court of what had transpired and argued that it was a discovery violation. Defense counsel argued that he made a strategic decision to not file a motion to suppress based on the fact that the State had only tested the substance found behind the sofa and based on his belief that this was a constructive possession case.

The trial court properly conducted a Richardson hearing and concluded that a wilful and prejudicial violation had occurred. Both the prosecutor and defense counsel agreed that the best remedy for this violation would be to continue the trial so that both sides could properly prepare for a motion to suppress hearing. The trial court expressed its disagreement with defense counsel’s strategic decision and stated that defense counsel should have filed a motion to suppress long before jury selection. The trial court granted defense counsel an opportunity to speak with the officer and witnesses present at the courthouse so that he could immediately make an oral motion for suppression of the evidence. Defense counsel informed the court that he was not prepared to argue the motion at that time and requested a continuance. The trial court found that defense counsel waived his right to file a motion to suppress and immediately proceeded with the trial. The jury found Appellant guilty of possession of cocaine.

The trial court abused its discretion by denying the motion for continuance. Appellant’s failure to raise a motion to suppress prior to trial was not an automatic waiver of the right to file such a motion. McKenzie v. State, 935 So.2d 1281, 1282 (Fla. 4th DCA 2006). Moreover, Appellant was prejudiced by the State’s failure to submit the substance for testing at an earlier date. Procedural prejudice occurs when there is a reasonable possibility that the non-offending party’s trial preparation or strategy would have been materially different absent the discovery violation. A.L.H. v. State, 915 So.2d 242, 245 (Fla. 4th DCA 2005); Greehan v. State, 830 So.2d 878, 881 (Fla. 2d DCA 2002). In this case, defense counsel stated that he would have filed a motion to suppress if he knew that this was not going to be a constructive possession case. The best way to remedy the prejudice caused by this violation would have been to continue the trial to allow defense counsel a reasonable amount of time to prepare a motion to suppress or to engage in negotiations with the prosecutor. Thus, the trial court erred by denying the request for a continuance. Appellant’s conviction and sentence are REVERSED and the case is REMANDED for a new trial.

DAVIS, BENTON, and THOMAS, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


author: BAILEY, JENNIFER D., Associate Judge.

text:
    Dmytro VORONIN, Appellant, v. Olena VORONINA, Appellee.
    No. 2D07-1079.
    District Court of Appeal of Florida, Second District.
    March 12, 2008.
    Andrew J. Rodnite, Jr., of Reeser, Rod-nite, Outten & Zdravko, P.A., Palm Harbor, for Appellant.

      Lynn E. Hanshaw of Matusek, McKnight & Hanshaw, P.A., St. Peters-burg, for Appellee.
   BAILEY, JENNIFER D., Associate Judge.

Dmytro Voronin, the Husband, appeals a final judgment of dissolution. He challenges the award of child support and the equitable distribution of assets and debts. Our review is hampered by his failure to have a court reporter in attendance at the trial. Nevertheless, two matters on the face of the judgment require reversal.

There are two children of this marriage. The final judgment gives primary residential responsibility to Olena Voroni-na, the Wife, but both parents have shared parental responsibility. The visitation schedule in the final judgment is elaborate and provides the Husband with more than 40 percent of the annual overnights. The judgment does not specify an amount of child support, but instead refers to the amount determined by “the child support guideline, attached hereto and incorporated herein.” Unfortunately, there is no child support guideline attached to the judgment. The record contains two different guidelines calculation sheets with different numbers. Neither of these sheets has any adjustment for the extensive visitation with the Husband as required by section 61.30(11), Florida Statutes (2006). We are inclined to believe that the trial court may have prepared a revised child support guideline that simply never made its way into the record for attachment to the judgment. Accordingly, we must reverse the complete omission of a child support award in section V of the final judgment and remand for the trial court to conduct a new hearing on this issue.

As to equitable distribution of marital assets and liabilities, the parties had no real estate. Prior to trial, they filed a stipulation resolving the distribution of most of their personal property, including their two automobiles and the related debt. At trial, they intended to resolve distribution of joint marital bank accounts and the parties’ significant credit card debt, which totaled more than $30,000.

The final judgment is entered on a form based on Florida Family Law Rules of Procedure Form 12.990(c)(2). It made the Wife responsible for a Toys “R” Us debt of approximately $3400 and made the Husband responsible for the remaining debt. The current fair market value of the marital bank accounts is never established in the judgment, and this asset is never distributed to either party. Nevertheless, the section of the judgment entitled “other provisions” references a $10,000 amount owed by the Husband to the Wife as equitable distribution of the parties’ joint bank account and provides for various offsets of other contingent liabilities.

Although this court has no transcript, we do have the exhibits introduced at trial. The trial court placed approximately 90 percent of the marital debt on the Husband. Even if the trial court thought it awarded the bank accounts to the Husband, which it did not, the distribution of assets and debts is still dramatically unequal and section 1(E) of the judgment has no explanation of the basis for an unequal distribution. See Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004); § 61.075(3)(b), Fla. Stat. (2005).

We distinguish Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007), where the appellant, having provided no transcript of the trial, was not entitled to relief because the judgment contained no specific findings of fact supporting alimony and failed to value certain marital property. In this case, while more findings certainly would have been helpful to this court, the harmful errors in this judgment arise from its failure to award child support and its failure to distribute the only significant marital asset.

We reverse and remand for the trial court to conduct another hearing to establish child support and to provide a new equitable distribution of assets and liabilities. This may also require the trial court to adjust the section entitled “other provisions.”

Reversed and remanded.

ALTENBERND and STRINGER, JJ., Concur.


author: FULMER, Judge.

text:
    Khrystal K. HILTON, Appellant, v. Paul Albert ACOSTA, Appellee.
    No. 2D07-1322.
    District Court of Appeal of Florida, Second District.
    March 12, 2008.
    Philip S. Wartenberg and Damien L. McKinney of Philip S. Wartenberg, P.A., Tampa (withdrew after briefing), for Appellant.
    Elba C. Martin, Tampa, for Appellee.
   FULMER, Judge.

Khrystal Hilton (the Mother) challenges the denial of her Motion to Dismiss, or in the Alternative, Motion to Transfer Venue in this paternity action filed by Paul Acosta. We affirm the order on appeal because the Mother has not shown that the trial court erred in finding subject-matter jurisdiction over the dispute.

The child was born in Florida on July 4, 2005. The Mother and the child moved to Missouri on November 5, 2005. Mr. Acosta filed the paternity action in Florida on April 27, 2006. At the hearing below, the trial court limited the issue under consideration to whether Florida could exercise jurisdiction over the child. Because the trial court did not allow the presentation of evidence on which state, Florida or Missouri, would be more convenient for the evidentiary issues, our affirmance of the order on appeal is without prejudice to the Mother’s ability to raise her inconvenient forum argument in the trial court.

Affirmed.

DAVIS and WALLACE, JJ., Concur.


text:
    Todd SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-835.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Bennett H. Brummer, Public Defender, and Jessica Zagier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. Delva, 575 So.2d 643 (Fla.1991).


author: PALMER, Associate Judge.

text:
    K.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-876.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and PALMER, Associate Judge.
   PALMER, Associate Judge.

K.F. appeals his adjudication of guilt on the offense of trespass. Determining that the State failed to prove all the necessary elements of trespass, we reverse.

K.F. was charged with committing a burglary of an unoccupied dwelling. At trial, a State witness testified that she heard glass break at a house across the street from her house and that she saw five boys outside the house trying to pry open the back door. She identified one of the boys as K.F., whom she saw pick up a rock and throw it at the house, breaking a window. She further testified that she did not see any of the boys inside the house. An officer testified that K.F. told him that he was at the property to watch, not to participate, and that another boy broke the window.

At the conclusion of the State’s case, K.F. moved for entry of a dismissal of the burglary charge, arguing that there was no evidence that he had entered the property, and that the building, which had no roof, did not qualify as a dwelling. The trial court found that the State failed to meet its burden of proof on the burglary charge because the house did not have a roof and thus did not qualify as a dwelling. The trial court then reduced the charge to trespass and, ultimately, found K.F. guilty of that charge. The trial court stated: “[PJutting it all together leads us to believe the defendant got in with a bunch of kids and threw a rock. That’s the case.” We conclude that, based upon the trial court’s factual determinations, the State failed to meet its burden of proving the crime of trespass.

Section 810.08 of the Florida Statutes (2006), defines the crime of trespass in a structure, in pertinent part as follows:

810.08 Trespass in structure or conveyance.—
(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

The trial court found, consistent with the testimony presented by the State’s witnesses, that K.F. never entered the building. Accordingly, K.F. could not be found guilty of violating that statute.

Section 810.09 of the Florida Statutes (2006), the trespass statute dealing with trespass on property other than a structure, provides:

810.09 Trespass on property other than structure or conveyance.—
(l)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:
1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011; or
2. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass, commits the offense of trespass on property other than structure or conveyance.
(b) As used in this section, the term “unenclosed curtilage” means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.

Since the trial court found that K.F. never entered the premises, K.F. was not guilty of violating this trespass statute either.

Accordingly, we reverse and remand for entry of a dismissal of the trespass count.

      . See § 810.02(3), Fla. Stat. (2005).


text:
    1611 EUCLID AVENUE, INC., Appellant, v. RITTER, RITTER & ZARETSKY, a limited liability partnership for profit, and Louis Zaretsky, Esq., and Mark Lynn, Esq., Appellees.
    No. 3D07-1633.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Arthur J. Morburger; Stephen M. Zu-koff, Miami, for appellant.
    Gaebe, Mullen, Antonelli, Esco & DiMatteo, and Mark R. Antonelli, and Anne C. Sullivan, Coral Gables, for appellees.
    Before COPE, GREEN, and WELLS, JJ.
   PER CURIAM.

This is an appeal from an order dismissing the plaintiffs fifth amended complaint, with prejudice, for failure to state a cause of action. We reverse.

“A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client.” Law Ofc. of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla.2007). The complaint and attached exhibits properly alleged these elements. As such, the dismissal was in error. Accordingly, we remand with instructions that plaintiffs cause be reinstated.

Reversed and remanded.


author: GROSS, J.

text:
    Michael SPOOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2675.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse the conviction in this case because the prosecutor improperly argued facts not in evidence during his closing.

Michael Spoor was convicted of lewd or lascivious exhibition on a person less than sixteen. The conviction arose from an incident where Spoor exposed himself to a girl while sitting in his Jeep. Five days later the girl and her friend, who had been playing with her at the time of the exposure, identified Spoor from a photo lineup. On cross examination, both girls said they had not seen a tattoo on the driver’s arms. Spoor displayed the tattoos on his right arm to the jury.

In closing argument, defense counsel urged that the girls had mistakenly identified Spoor, because they did not notice his “extensive, disfiguring tattoos.”

The prosecutor first responded to this argument by explaining why the girls would not have noticed the tattoos. This was fair rebuttal. Then the prosecutor continued and said that the defendant had “proudly showed his arm” because “[i]n the mean time over the last year, he’s gone out and gotten that arm tattooed. You know why he did that? So he could stand up here in court and go like this and say, “Look, I’ve got tattoos”.” The defense objected because there was no evidence to support the prosecutor’s statement. The trial court did not sustain the objection; the judge told the jury to rely on their own recollection of the testimony. The prosecutor then amplified this theme and argued: “He went out and got a tattoo in the meantime, because he knew what was going on. He knew that the testimony in the depositions was the fact that short sleeves [sic] and how could they not see a tattoo. So, did that tattoo look old and smudged like old tattoos do? No, it looked fresh and sharp and clear.”

In his extensive amended motion for new trial, defense counsel contended that the state’s argument was improper because it was too late for Spoor to put on evidence that the defendant “had the[] grotesque and visible tattoos prior to the incident.” The motion refers to “the booking records” and other evidence that “showed that Defendant had these extensive tattoos when arrested shortly after the incident.”

A prosecutor must confine his closing argument to record evidence and “must not make comments which could not be reasonably inferred from the evidence.” Hazelwood v. State, 658 So.2d 1241, 1243-44 (Fla. 4th DCA 1995). Applying this principle in Henry v. State, 651 So.2d 1267, 1268 (Fla. 4th DCA 1995), we reversed a conviction where a prosecutor attempted to explain the change in a witness’s trial testimony by arguing that “somebody got to her;” we “strongly disapprove^]” of this comment that “impugnfed] the defense without any basis.” See also Jones v. State, 449 So.2d 313, 314 (Fla. 5th DCA 1984).

Here there was no evidence as to when Spoor obtained his tattoos. Nor was there any evidence linking the sharpness and clarity of a tattoo to its age. The prosecutor’s argument was improper. In this contested identification case, the error was not harmless.

Reversed and remanded for a new trial.

STONE and WARNER, JJ., concur.


text:
    David E. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4151.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

After he was illegally stopped, David Wells disclosed information to a detective that the police pursued along a short but twisty investigatory road until they found a crucial witness who turned physical evidence over to them and later testified at trial. We hold that the evidence derived from this witness was sufficiently attenuated from the illegal stop, so that the trial court did not err by permitting the jury to see and hear it.

Shortly after midnight on September 21, 2004, Louie Allen went to a bank ATM to withdraw $240. As the money came out of the machine, Allen saw a black man with a butcher knife. The man wore a maroon tee shirt and sneakers; he had a plastic hat on his head, like a shower cap. The man said, “I’ll take all of that.” Allen told the man to get the money himself and backed away from the ATM. The man grabbed the cash, turned, and sprinted around the side of the building. Allen called the police. In addition to the clothing description, Allen said the assailant was 25-32 years old, 5 feet 11 inches tall, and about 152 pounds.

One hour later, Officer Oscar Dominguez observed a black man “roughly matching the physical description” of the assailant, but wearing different clothing. As officers approached, the man fled. The police set up a perimeter, but did not find him.

Two hours later, the police saw a car occupied by two black men in the general area of the bank ATM. David Wells was in the passenger seat of the car. The police ordered Wells and the driver out of the car at gunpoint. Wells was wet, wearing clothing different than that described by Allen, but similar to what Officer Dominguez had seen on the unknown man an hour earlier. The police handcuffed Wells. A search of the car revealed $240 in cash. A pat down of Wells uncovered a crack pipe.

The state conceded below that the police stopped the car in violation of the Fourth Amendment of the United States Constitution.

After advising Wells of his Miranda rights, Detective James Kelly interviewed him at the police station. Wells told the detective that his name was “Carl Reese” and that he had stolen the $240 found in the car from his girlfriend Carla.

Kelly then called Carla at the phone number Wells gave him. Carla told the detective that Wells was supposed to be at work. She said he had taken $80 from her, not $240. She then asked about the location of her car. This was the first Kelly had heard about a link between Wells and a ear. Carla said her car was a black Nissan Altima with a temporary tag in the back window. Carla also told the detective Wells’s true name.

That night, Kelly radioed Sergeant Allen Brumley and told him about Carla’s car. The sergeant found Carla’s Altima across the street from the bank ATM machine in the parking lot of the Tropical Palms Motel.

At the police station the night of the arrest, victim Allen overheard Wells talking to Detective Kelly and he recognized Wells’s voice as the voice of the person who robbed him.

The day after the robbery, Kelly went to the motel with a photograph of Wells looking for someone who might have seen Wells the night before. He knocked on apartment doors and found Eric Thompson. Thompson recognized a picture of Wells from “being in the area and that’s it.”

On the morning after the robbery, Officer Dominguez also went to the Tropical Palms Motel to look for a knife or clothing associated with the robber. He went to the motel because he knew that Brumley had located Carla’s Altima in the parking lot. When he asked some motel residents about the car, they told him it belonged to a black male who hung around apartment 12. The motel manager told Dominguez that Eric Thompson was staying in apartment 12 and that he had seen Thompson with a black male. Dominguez obtained Thompson’s driver’s license number from the manager. Back at the police station, Dominguez ran the license and found that Thompson had active warrants from Palm Beach County. The warrants were for crimes unrelated to the ATM robbery. The officer then went off duty.

Dominguez started a new shift at 11:00 p.m. that night. He obtained a warrant for Thompson and went to serve it on Thompson at 3:00 a.m. Thompson answered the door and Dominguez arrested him.

Dominguez read Thompson the Miranda warnings. Then Dominguez began to question Thompson about the previous night’s ATM robbery. He asked him about the black male who drove the black Altima parked outside Thompson’s apartment. At first Thompson was evasive, but soon he said he knew the black male as “David” and admitted that David had been in his apartment.

Thompson described for Dominguez how Wells came to his apartment the night of the robbery and lit up a crack pipe. Wells asked Thompson to go with him to get more cash, but Thompson refused. Wells left the apartment alone. A short time later, he came back banging on the door for Thompson to let him in. When Thompson opened the door, Wells was soaking wet. Wells said he needed help finding his keys. He said he had fallen into a pond and lost them. Thompson looked outside and saw police lights. Due to his active warrants, Thompson told Wells that he wanted to avoid the police, so Wells was on his own. Wells asked him for some dry clothes. Thompson gave Wells a pair of dark slacks and a white t-shirt. Wells left a red t-shirt and slacks behind.

Thompson consented to a search of his apartment. Dominguez seized the clothing Wells had left in Thompson’s room and a butcher knife from Thompson’s sink. Having come to the scene to back up Dominguez, Sergeant Brumley overheard Thompson telling the officer that Wells had fallen into a puddle and lost his keys. Brumley found the car key at the bottom of the motel retention pond.

Wells filed a motion to suppress the evidence seized as a result of the illegal traffic stop. The circuit court granted toe motion as to the items found in the car— the crack pipe and the $240 in cash. The court denied the motion as to all other matters including Carla’s statements, the car keys, all information about the Altima, Allen’s stationhouse identification, and Thompson’s testimony.

At the October, 2006 trial, victim Allen described the robbery and identified Wells in court. Dominguez told about finding Thompson and seizing the clothes and butcher knife. Knowles testified about finding the keys in the pond. Kelly found a yellow rain slicker cap or shower cap under Thompson’s sink and determined that the pond key started the Altima. A witness testified that she had sold the Altima to Wells.

Thompson was the primary witness at trial — he described in detail what Wells did in apartment 12 before and after the robbery. Thompson stated that although he had other, unconnected charges pending against him, it was his decision to testify against Wells. Thompson testified that no one from the state promised him anything in exchange for his testimony. Thompson said that he was testifying voluntarily for the state and that his testimony was not being given based on any expectation of leniency:

I was told at under [sic] no time there’s no deals being made or nothing. They asked me to give my testimony as a State, a State witness of the State of Florida.... I was told I wasn’t going to give, get nothing for nothing.

The state concedes that the initial stop of the car in which Wells was a passenger violated the Fourth Amendment. Under the “fruit of the poisonous tree” doctrine, the exclusionary rule bars the admission at trial of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of the police illegality. Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, a court may admit such evidence if the state can show one of three exceptions to the exclusionary rule:

(1) an independent source existed for the discovery of the evidence, or (2) the evidence would have inevitably been discovered in the course of a legitimate investigation, or (3) sufficient attenuation existed between the challenged evidence and the illegal conduct.

Moody v. State, 842 So.2d 754, 759 (Fla.2003) (internal citations omitted).

Focusing primarily on the admissibility of Thompson’s testimony, the state contends that the attenuation doctrine applies because the causal connection between the illegal stop and Thompson’s decision to cooperate and turn over physical evidence became “so attenuated as to dissipate the taint” of the illegality. See United States v. Ceccolini, 435 U.S. 268, 274, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978) (quoting Wong Sun, 371 U.S. at 487, 83 S.Ct. 407). The suppression of witness testimony must meet stricter standards than the suppression of physical evidence. In Ceccolini, the Supreme Court recognized that “since the cost of excluding live-witness testimony will often be greater, a closer more direct link between the illegality and that kind of testimony is required.” 435 U.S. at 278, 98 S.Ct. 1054. Thus, “[t]he exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.” Id. at 280, 98 S.Ct. 1054.

In Ceccolini, the Supreme Court set forth an analytical framework to evaluate the admissibility of live witness testimony under the attenuation doctrine. The Court emphasized that live witness testimony should be excluded when “the basic purpose of the exclusionary rule will be advanced by its application” in a particular case. Id. at 276, 98 S.Ct. 1054. Two crucial considerations are the costs of permanently disabling a witness from testifying and the degree of free will exercised by the witness in testifying. Id. at 276-77, 98 S.Ct. 1054. The Court explained that where the cooperation of a witness is the result of the exercise of a person’s free will, unaffected by police misconduct, the purpose of the exclusionary rule would not be served by disallowing the testimony. Id. at 276, 98 S.Ct. 1054. To determine whether a witness’s testimony is sufficiently attenuated from the illegal conduct to be admissible, Ceccolini directs a court to consider: “(1) the stated willingness of the witness to testify; (2) the role played by the illegally-seized evidence in gaining the witness’ cooperation; (3) the proximity between the illegal behavior, the witness’ decision to cooperate and the actual testimony at trial[,] and (4) the police motivation in conducting the search.” United States v. Hooton, 662 F.2d 628, 632 (9th Cir.1981).

Here, the record reflects that Thompson testified willingly at trial. Officer Dominguez did not threaten him to obtain his cooperation; his statements to the officer were voluntarily given. The state did not secure Thompson’s participation at trial by offering something in return in this case or in his unconnected charges. Thompson did not testify as part of a plea bargain.

Concerning the second Ceccolini factor, the illegal stop of the vehicle played no role in securing Thompson’s cooperation. Nothing seized from the car implicated him. “Tainted evidence from the [car] search was not used to coerce or induce” testimony from Thompson. Hooton, 662 F.2d at 632. If anything, it was the arrest on the outstanding warrants that led to Thompson’s participation in this case. Initially, Thompson spoke to Detective Kelly, but he gave no information of value. After Officer Dominguez arrested him on the warrant, Thompson extensively detailed Wells’ conduct before and after the robbery. The arrest on the warrant was an intervening event that broke the causal connection with the illegal vehicle stop. In a different context, the Florida supreme court has held that an outstanding arrest warrant can be an intervening circumstance that attenuates the connection between an unlawful traffic stop and a search incident to the driver’s arrest on the warrant. See State v. Frierson, 926 So.2d 1139 (Fla.2006).

Thompson first spoke to the police about 24 hours after the illegal search and he testified at trial two years later. See United States v. Mergist, 738 F.2d 645, 648 (5th Cir.1984) (indicating that lapse of two years between illegal interrogation and trial testimony supported finding of attenuation). A short time span between the illegal stop and Thompson’s statement to Officer Dominguez does not preclude a finding of attenuation where the witness was not the one stopped and was not coerced or influenced by the police misconduct. See United States v. Brookins, 614 F.2d 1037 (5th Cir.1980).

The fourth Ceccolini factor weighs against a finding of attenuation. The police illegally stopped the car looking for evidence of the ATM robbery and not for some other reason.

Weighing these four factors, we find that the trial court’s refusal to suppress Thompson’s testimony was supported by three of the four Ceccolini considerations. The police misconduct played no role in gaining Thompson’s willing cooperation. Thompson’s consent to a search of his apartment was an intervening circumstance that broke the chain of events that began with the stop, so that the items taken from the apartment were sufficiently attenuated from the illegal stop for the state to offer them in evidence at the trial. Florida courts have held that a defendant’s own voluntary decision can be an intervening circumstance between an illegal stop and the recovery of evidence by the police. For example, in Reilly v. State, 557 So.2d 1365 (Fla.1990), after a defendant was illegally arrested, he made incriminating statements to inmates. The supreme court held that intervening circumstances — attendance at a first appearance, representation by an attorney, and a visit from parents — rendered the statements admissible at trial. See also Sanchez-Velasco v. State, 570 So.2d 908 (Fla.1990); State v. Stevens, 574 So.2d 197 (Fla. 1st DCA 1991); Wimberly v. State, 393 So.2d 37 (Fla. 3d DCA 1981). It follows that a third party’s consent to a police search is also an intervening circumstance that purges the taint of the illegal search. See Williams v. State, 640 So.2d 1206 (Fla. 2d DCA 1994).

We agree with Wells that the trial court should have suppressed evidence pertaining to the Altima, which the police located before they found Thompson, closer in time to the illegal search. However, the evidence of the Altima was harmless beyond a reasonable doubt; it served only to place him in the general area of the bank ATM.

Affirmed.

WARNER and FARMER, JJ., concur.

      . At trial, Detective Kelly did not testify about (1) talking to Wells at the police station and (2) his conversation with Carla where he learned about Wells’s real name and the Nissan Altima. Officer Dominguez testified that the Altima was brought to his attention, but did not explain how it led to his discovery of Thompson.


author: POLEN, J.

text:
    Andres LEDESMA and Marta Ledesma, Appellants, v. Carlos IGLESIAS, Appellee.
    No. 4D07-734.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Downs Brill Whitehead, Pembroke Pines, and Ralph 0. Anderson of Ralph O. Anderson, P.A., Davie, for appellants.
    Green, Ackerman & Frost, P.A., Boca Raton, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for appellee.
   POLEN, J.

Appellants Andres and Marta Ledesma appeal the trial court’s final order awarding attorney’s fees and costs to Appellee Carlos Iglesias. The trial court entered the award on the basis of Iglesias’ settlement proposal to the Ledesmas which they did not accept within the prescribed time frame. In this appeal, the Ledesmas argue they did not accept the proposal because they would have to “falsely swear under oath that there are no unpaid obligations or liens or the like when, in truth, there are unpaid obligation or liens or the like” and because the clauses “were ambiguous and/or stated with insufficient particularity and/or that it was impossible for Plaintiffs to sign either or both the Release and the No-Lien Affidavit and Hold Harmless with the respective clauses.” We find the Ledesmas’ argument unpersuasive and affirm the trial court’s award of costs and fees.

This case began when the Ledesmas brought a personal injury lawsuit against Iglesias for injuries sustained by Andres when he fell off a ladder at Iglesias’ home. The case went to trial in July 2006 and resulted in a verdict for the defense as well as an award of costs and fees to Iglesias. The Ledesmas timely appealed the verdict and requested this court overturn the verdict and grant a new trial. This court per curiam affirmed the verdict below in October 2007. See Ledesma v. Iglesias, 966 So.2d 401 (Fla. 4th DCA 2007). The Ledesmas separately appealed the trial court’s award and taxation of costs and fees to Iglesias based on his proposal for settlement. The separate appeal was stayed until resolution of the appeal of the underlying verdict.

The Ledesmas argue Iglesias’ proposals for settlement were invalid as a matter of law because they did not comply with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, and because acceptance of the proposals would have required them to lie under oath. “The question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo.” Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006). “[R]ule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney’s fees, and thus the statute and rule must be strictly construed.” Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007).

The Settlement stated, in relevant part: This Settlement Proposal is to resolve, completely release, and forever discharge Defendant, CARLOS IGLE-SIAS, from all manners of action or actions, cause and causes of action, controversies, claims and demands whatsoever in law or in equity, present and future which Plaintiff, ADRES LEDESMA, hereafter can, shall, or may have against CARLOS IGLESIAS, including all claims arising from or related to the October 25, 2005 incident that occurred at or near 1515 S.W. 193rd Avenue, Pembroke Pines, in Broward County, Florida, including all claims that could have been brought in the lawsuit filed in Broward Circuit Court, Case No. 05-016889(12).
Under the terms of this settlement proposal, the Plaintiff, ANDRES LEDES-MA, for and in consideration of the settlement amount identified in paragraph 6, shall execute a General Release, and a No-Line Affidavit and Hold Harmless Agreement in favor of CARLOS IGLE-SIAS, concerning the claims that are the subject of this lawsuit, copies of which are attached hereto ...

Attached to Iglesias’ proposal for settlement was a Release of All Claims form and a No-Lien Affidavit and Hold Harmless form. The Release of all Claims form contained language stating:

The Releasing Party represents to the Released Party that they and their attorneys alone are entitled to the settlement funds and that there are no liens or claims made to these funds by any insurance carrier for medical payments or health insurance benefits.
The Releasing Party agrees to be responsible for, and to satisfy out of the proceeds of this settlement, any and all liens and or subrogated interests, known and unknown, for medical treatment, health care related expenses, and attorneys fees incurred by or on behalf of the Releasing Party, on account of the October 25, 2005 incident referred to above. The Releasing Party agrees to indemnify and hold harmless the Released Party from any and all claims and/or liens and/or subrogated interests herein for which these funds are intended.

The No-Lien Affidavit/Hold Harmless Agreement form stated, in relevant part:

Affiant hereby states under oath that there are no unpaid obligations incurred and owing by claimant to any hospital in the State of Florida or elsewhere for services or medicines or medical appliances or x-rays of any kind rendered to the undersigned, either as an inpatient or an outpatient, on or since the day of the accident mentioned above, and further Affiant states under oath that there are no unpaid obligations or liens due any insurance company, medical provider, and/or governmental agency incident to the subject accident except as follows:
NO EXCEPTIONS
THIS AFFIDAVIT is made to induce the said Releasee and those making payment on behalf of Releasee to enter into such settlement and pay said sum of money to Affiant without securing any release or releases or lien from any insurance company and/or governmental agency and/or medical provider, hospital or hospitals in any state, including in the State of Florida, under the Statutes of the State of Florida ... and THE UNDERSIGNED SPECIFICALLY UNDERTAKES AND AGREES TO INDEMNIFY the said Releasee and those making such payment in connection with such settlement, against any and all loss, costs, expenses, and attorney’s fees incurred as a result of the falsity or inaccuracy of this Affidavit in any respect, including all losses, costs, expenses and attorney’s fees incurred in the defense of any such claim and/or enforcement of this indemnity agreement.

The Ledesmas argue the releases attached to the proposals for settlement were ambiguous and unenforceable as they required the Ledesmas to falsely swear there were no outstanding medical bills or claims pending. We disagree. “[T]he language in a general release, ‘even though expansive, is typical of other general releases and is clear and unambiguous.’ ” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006) (quoting Bd. of Trs. of Fla. Atl. Univ. v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003)).

In this case, the releases clearly indicated that Iglesias was seeking to be released from any and all claims by the Ledesmas arising out of the October 25, 2005 incident. Further, the language in the releases dealing with the existence of liens is unambiguous and does not imply what the Ledesmas represent it does. The Release of All Claims form language requires the Ledesmas to agree that there are no liens or claims on the settlement funds and to agree to indemnify Iglesias against any liens or claims that might arise. The release is not asking the Ledesmas to swear they have no unpaid claims or bills in general. The No-Lien Affidavit and Hold Harmless Agreement language furthers this end by requiring the Ledesmas to agree that if there are liens or unpaid obligations then, by signing the form, they are releasing Iglesias from any payments above and beyond the settlement amount and indemnifying him from any third party claims arising from this accident. While the Ledesmas argue the language used is confusing, looking at the document as a whole, we find the language of the release is clear and unambiguous. See Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006) (“contractual language should be given its plain and ordinary meaning, and read in the context of the document as a whole”).

We find there was no error in the award of attorney’s costs and fees to Iglesias and affirm.

SHAHOOD, C.J., and MAY, J„ concur.


author: COPE, J.

text:
    E.G., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and the Guardian Ad Litem Program, Respondents.
    No. 3D08-288.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Joseph P. George, Jr., and Mark Graham Hanson and Rosa Armesto, for petitioner.
    Hillary S. Kambour; Karla Perkins, for respondents.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   COPE, J.

This is a petition for certiorari which seeks to quash a shelter order. We grant the petition.

The Department of Children and Family Services filed a petition for court ordered services and protective supervision under Florida Rule of Juvenile Procedure 8.601(2). The petition requested court-ordered services for the mother and the three children, and recommended that the children remain in the home.

At the hearing on the petition, the mother attended and counsel was appointed. After reading the Department’s petition, the trial court concluded that the three children should be removed from the home immediately. Over objection, the trial court entered a shelter order.

The mother filed an emergency motion asserting that the trial court had acted without jurisdiction insofar as the court had ordered shelter care. The mother argued that the trial court should not have acted in the absence of a petition which requested shelter care. The motion also complained of a lack of due process notice, and requested the opportunity to present additional evidence.

At a non-evidentiary hearing, the Department recommended that the two older children, ages seventeen and fifteen, be returned to the mother. The Department argued that the thirteen-year-old child should remain in shelter care. The trial court accepted the Department’s recommendation. The mother has filed this petition for writ of certiorari.

The mother contends that the trial court was without jurisdiction. We disagree and conclude that the trial court had jurisdiction. The circuit court’s jurisdiction was properly invoked by the filing of the petition for court-ordered services and protective supervision.

The mother contends that the trial court did not have the power to place the child in shelter care, since the pending petition for court-ordered services did not request that relief and the mother made a timely objection. It is our conclusion that the trial court has the power to take immediate action if, in the course of hearing a petition for court-ordered services, the trial court finds that the facts of the case are such that the children are in immediate peril. In that circumstance, the trial court has the authority to take emergency action to place the children in a shelter, even though the pending petition did not request such relief. The court’s authority arises from section 39.402, Florida Statutes (2007).

Under the statute, “A child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after a shelter hearing.” Id. § 39.402(8)(a). Thus, in a case in which the trial court takes immediate action to place the children in shelter care, it is necessary that a shelter petition be filed. The Department may file a new shelter petition, or the Department may amend the already-pending petition for court ordered services. See Fla. R. Juv. P. 8.660(c). A shelter hearing must be held within the time specified by the section 39.402 and Florida Rule of Juvenile Procedure 8.655.

The procedural problem now before us is that a shelter order was entered, but there is no pleading which requested shelter care. The mother timely objected on this ground. The court’s emergency shelter order was not followed up with a shelter petition or an amendment requesting shelter care, nor was there a shelter hearing.

We therefore grant the petition as follows. The Department shall amend the petition to include a request for shelter care within seven days of the date of this opinion. A prompt shelter hearing shall be conducted pursuant to section 39.402, Florida Statutes (2007), and rule 8.665. See In the Interest of J.P., 875 So.2d 715, 718-19 (Fla. 2d DCA 2004). We express no opinion on the merits of the parties’ respective positions.

In order to avoid disruption of the living arrangements of the youngest child, the youngest child should remain in her current placement pending the shelter hearing. This opinion is effective immediately and will not be delayed by the filing of a motion for rehearing or other post-decision motion.

Certiorari granted.


text:
    Chavaris BESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4166.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to defendant’s right to seek post-conviction relief. See Wilson v. State, 814 So.2d 1203 (Fla. 2d DCA 2002).

STONE, STEVENSON and TAYLOR, JJ., concur.


text:
    Dexter ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-421.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See J.O.S. v. State, 689 So.2d 1061 (Fla.1997).

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