author: CASANUEVA, Judge.

text:
    Roberto E. DENIZARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5710.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.

      Bryant R. Camareno of Bryant R. Ca-mareno, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Roberto E. Denizard appeals his sentences after the trial court denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b) and raises three issues. We affirm in part and reverse in part.

Mr. Denizard was charged with multiple counts and pleaded open in six cases. The counts in each case were the following: In circuit court case no. 07-02773, violation of community control for possession of cocaine and possession of drug paraphernalia; in circuit court case no. 07-14640, armed robbery with a firearm of two victims and armed burglary of a conveyance with a firearm, all in the same criminal episode; in circuit court case no. 07-14641, armed robbery with a firearm against one victim and aggravated assault against another victim in the same criminal episode; in circuit court case no. 07-14642, robbery; in circuit court case no. 07-14659, armed robbery with a firearm; and in circuit court case no. 07-15301, attempted robbery with a weapon, burglary of a conveyance with a weapon, and aggravated battery with a weapon, all against one victim. The trial court imposed incarceration on eleven counts, ranging from five years to forty years, all concurrent. However, the trial court also imposed consecutive ten-year minimum mandatory terms for the four counts in which Mr. Denizard brandished a firearm. Thus, even though his longest sentence was forty years, his total sentence was effectively a minimum mandatory forty years. On appeal, Mr. Deni-zard contends (1) that the trial court erred in sentencing him for one of the counts in circuit court case no. 07-15301, (2) that the trial court erred in ordering that the two ten-year minimum mandatory sentences in circuit court case no. 07-14640 be consecutive, and (3) that the trial court abused its discretion in basing its sentencing scheme on juvenile dispositions that occurred more than nine years prior to the instant offenses, on adult charges that were dismissed due to lack of evidence, and on hearsay about an alleged battery on a pregnant victim.

In his first claim Mr. Denizard raises an issue of fundamental error. In count one of circuit case no. 07-15301, Mr. Denizard pleaded guilty to attempted armed robbery with a deadly weapon (a floor jack handle). Attempted armed robbery with a deadly weapon is classified by statute as a second-degree felony bearing a maximum penalty of up to fifteen years’ imprisonment. See §§ 812.13(2)(a), 777.04(4)(c), 775.082, Fla. Stat. (2007). However, here the trial court imposed a sentence of thirty years’ incarceration because it reclassified the crime to a first-degree felony. See § 812.13(2)(a), Fla. Stat. (2007) (“If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree .... ”). Mr. Denizard contends the sentence is illegal. The State concedes error and we agree. The offense to which Mr. Denizard pleaded guilty, attempted armed robbery with a deadly weapon, is one where the use of a weapon constitutes an essential element of the crime. See Tripp v. State, 610 So.2d 1311 (Fla. 1st DCA 1992), affirmed, 642 So.2d 728, 730 n. 2 (Fla.1994) (reclassification of an attempted armed robbery from a second-degree felony to a first-degree felony where a weapon is involved is improper where an essential element of the offense was the use of a weapon). Accordingly, we reverse the judgment which improperly reclassified the crime as a first-degree felony; the judgment should show that he was found guilty of a second-degree felony. We also reverse the thirty-year sentence imposed for this count and remand for imposition of a sentence of not more than fifteen years.

Next, Mr. Denizard asserts that the imposition of consecutive mandatory minimum ten-year sentences as to counts one and two in case no. 07-CF-014640 was error. The facts adduced at the change of plea hearing established that counts one and two involved separate victims. Mr. Denizard pointed his gun at the victim in count two, the vehicle’s passenger, and then took property from this passenger and the driver who was the victim in count one; but at no time did he actually fire the weapon. Specifically, Mr. Deni-zard contends that because the two counts arose from the same criminal episode the mandatory minimum sentence for each count cannot be consecutive.

The State again concedes error and we agree. Church v. State, 967 So.2d 1073 (Fla. 2d DCA 2007), is dispositive. In Church, this court, applying State v. Sousa, 903 So.2d 923 (Fla.2005), concluded that “imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired.” 967 So.2d at 1074.

We further note, as the State points out, that the written sentencing document differs from the oral pronouncement for count three in this case. For count three, the trial court orally pronounced a sentence of forty years for the armed burglary of a conveyance but the written sentence for this count shows the sentence to be four years. See Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006) (“If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement. Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003).”). The trial court, on remand, shall correct this error.

Finally, Mr. Denizard claims that the trial court abused its discretion when imposing sentence by considering aspects of his prior record that he contends were either too remote or did not result in conviction. For the former, he relies on Graham v. State, 950 So.2d 526, 526 (Fla. 4th DCA 2007) (“It was error to fail to delete from Graham’s sentencing score-sheet prior juvenile dispositions on offenses committed more than five years before the offense for which he was being sentenced.”). And, for the latter, he relies on the prejudicial and irrelevant nature of details the court noted of charges that were dismissed or did not result in conviction. Even disregarding the items of which Mr. Denizard complains, the result of the sentencing hearing would have been the same. Therefore, we cannot find that the court abused its discretion. Given the multiple crimes and their egregious nature, it is clear to this court why the trial court sought to remove him from the streets of the community for a long time.

We affirm the convictions in all cases, reverse the judgment and the sentence for count one in circuit court case no. 07-15301, affirm in part and reverse in part the sentences in circuit court case no. 07-14640, and remand with directions to correct the sentences and written judgments as outlined above.

KELLY and KHOUZAM, JJ., Concur.

      . The sentence for the twelfth count, possession of drug paraphernalia, was “time served.”

      . The trial court in this way precluded Mr. Denizard from benefitting from the eighty-five percent rule in section 944.275(4)(b)(3), Florida Statutes (2007). This section states in relevant part:
      For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain-time, except that no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner’s release, prior to serving a minimum of 85 percent of the sentence imposed. For purposes of this sub-paragraph, credits awarded by the court for time physically incarcerated shall be credited toward satisfaction of 85 percent of the sentence imposed. Except as provided by this section, a prisoner shall not accumulate further gain-time awards at any point when the tentative release date is the same as that date at which the prisoner will have served 85 percent of the sentence imposed.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Guy PETRAMALE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-122.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.

      James Marion Moorman, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Guy Petramale appeals the order denying his motions for postconviction relief. Mr. Petramale filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 raising eighteen claims. After the circuit court appointed counsel to represent Mr. Petramale at an evidentiary hearing, his counsel filed additional claims. We affirm the court’s denial of all claims except for claim three and a portion of claim nine, both of which were summarily denied. Because the records attached to the postconviction orders do not conclusively refute these two postcon-viction claims, we reverse the denial of relief of these claims and remand for further proceedings.

A jury convicted Mr. Petramale of scheming to defraud ($50,000 or more) for events occurring between January 2001 and February 2004. The trial court sentenced him to thirty months’ imprisonment, followed by ten years’ probation. This court affirmed his direct appeal in 2007. Petramale v. State, 961 So.2d 947 (Fla. 2d DCA 2007) (table decision).

In February 2008, Mr. Petramale filed his initial pro se motion seeking postcon-viction relief pursuant to rule 3.850. Judge DeFuria was assigned to handle the motion. He wrote to Mr. Petramale, disclosing that he knew the family of one of the owners of the victimized businesses and offering to recuse himself. His offer did not contain a specific date by which Mr. Petramale needed to ask him to re-cuse himself. After waiting several weeks, Judge DeFuria entered an order summarily denying many of the claims. This order and Mr. Petramale’s letter asking Judge DeFuria to recuse himself probably passed one another in the mail.

After Judge DeFuria received Mr. Pe-tramale’s letter, he recused himself, but he did not rescind his earlier order. Much has been made of this circumstance on appeal. Although the matter undoubtedly could have been handled differently in the circuit court, the issues resolved by Judge DeFuria were purely legal and have been reviewed de novo by this court. One of the claims that we reverse emanates from Judge DeFuria’s order. We find no harmful error in the other rulings made by Judge DeFuria.

In claim three, Mr. Petramale alleges that trial counsel was ineffective because he failed to exercise a peremptory strike of a juror whose husband worked for the victim. The circuit court summarily denied relief on this claim without leave to amend. It concluded that the seating chart in the record showed that this juror was an alternate and that Mr. Petramale had not alleged that this juror actually participated in deliberations. We cannot conclude that the seating chart by itself conclusively refutes Mr. Petramale’s claim. At a minimum, Mr. Petramale should have been allowed an opportunity to amend this claim. See Spera v. State, 971 So.2d 754, 757 (Fla.2007). The State argues that this summary denial could be affirmed on alternative theories, but those theories are not fully supported by our limited record. We conclude that this claim must be remanded for further proceedings.

In claim nine, Mr. Petramale alleged that trial counsel was ineffective because he failed to object when the prosecutor committed misconduct during the trial. This claim was refined in a second amended motion. For purposes of this appeal, we focus on the claim that his attorney did not object when the prosecutor called Mr. Petramale’s defense “ridiculous.”

Although this claim was denied after an evidentiary hearing, procedurally it is a summary denial. The circuit court concluded that this comment was an isolated comment that did not deprive Mr. Petra-male of a fair trial and would not have resulted in a mistrial if a motion had been made. Unfortunately, the circuit court’s order contains no attachments to support its reasons for denying this claim. Thus, we reverse the circuit-court’s ruling on this ground and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

KELLY and LaROSE, JJ., Concur.

      . § 817.034(4)(a)(l), Fla. Stat. (2003).

      . There are multiple postconviction motions and filings in this proceeding. Several of these raised additional postconviction claims or otherwise amended some of the claims in Mr. Petramale's initial pro se motion for post-conviction relief. They add complexity to the case, but we do not need to describe them in detail to resolve this appeal.


author: KHOUZAM, Judge.

text:
    BANK OF NEW YORK as Trustee for the Certificateholders CWMBS, Inc., CHL Mortgage Pass-Through trust 2006-OA5 Mortgage Pass-Through Certificates, SERIES 2006-OA5, Appellant, v. The MOORINGS AT EDGEWATER CONDOMINIUM ASSOCIATION, INC., Successor by Merger with the Moorings at Edgewater II Condominium Association, Inc.; Cynthia Jo Payton; Unknown Tenant I n/k/a Janet Ross; Household Finance Corporation III; Countrywide Home Loans, Inc. d/b/a America’s Wholesale Lender; and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above-named Defendants, Appellees.
    No. 2D10-4792.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.

      Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A., Orlando, for Appellant.
    Scott K. Peterson of Becker & Poliakoff, P.A., Sarasota, for Appellee The Moorings at Edgewater Condominium Association, Inc.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

The Bank of New York (Bank) appeals the circuit court’s order imposing sanctions for contempt on the Bank as well as the Bank’s counsel following The Moorings at Edgewater Condominium Association’s (Association) motion for contempt and sanctions in this foreclosure case. We reverse and remand because the circuit court imposed sanctions for indirect criminal contempt without complying with the procedural requirements of Florida Rule of Criminal Procedure 3.840.

The Bank filed a foreclosure action on February 8, 2007, and the Association responded with its answer brief on February 20, 2007. The Bank filed its motion for summary judgment on August 27, 2008. A hearing on the motion for summary judgment was set for November 6, 2008, but was cancelled. On March 20, 2009, the Association filed a motion to compel. In its motion, the Association explained that Cynthia Jo Payton, the owner of the property in question, had been in default of the payment of special and quarterly assessments since January 2007. The assessments were continuing to accrue, and the Association was bearing the financial burden. The Bank had failed to conclude the case with a foreclosure sale, and this delay limited the amount of special and quarterly assessments that the Bank would have to pay if it acquired title to the property— which it likely would. See § 720.3085(2)(c), Fla. Stat. (2008). The Association argued that the court should compel the Bank to proceed with the foreclosure sale or pay the assessments due to the Association.

A hearing on the Association’s motion was held on September 24, 2009. The Bank’s counsel attended the hearing by phone. On May 29, 2009, the court granted the Association’s motion, finding that the Bank should either move forward with the case or pay the assessments due while the case remained pending. To that end, the court ordered the Bank to either conduct its summary judgment hearing before June 29, 2009, or show cause why it should not be ordered to pay the assessments.

Before the June 29 deadline, the Bank moved for rehearing and the Association objected. A hearing was held. On October 9, 2009, the court denied the Bank’s motion for rehearing, found that the Bank had failed to show cause why it had not complied with the May 29 order, and ordered the Bank or the Bank’s counsel to pay special and quarterly assessments due to the Association. The trial court ordered the Association to submit an affidavit addressing the amount due. On December 8, 2009, the Association filed the affidavit of the treasurer of the Association, who stated that the Bank owed the Association a total of $14,974 in assessments, which had accrued from April 1, 2007, to October 1, 2009.

On December 24, 2009, the Association demanded that the entire amount as stated in the affidavit be paid within ten days and threatened that it would file a motion for contempt if the Bank failed to pay. The Bank did not comply with the Association’s demand, and the Association moved for contempt and an award of sanctions on January 13, 2010. The Bank responded to the motion for contempt and moved for the October 9 order to be vacated.

The court heard the Association’s motion for contempt on March 2, 2010, but no transcript of the hearing was prepared. On March 10, 2010, the court heard the Bank’s motion for summary judgment and denied the motion. Then, on March 18, 2010, the trial court issued an order holding the Bank and the Bank’s counsel in contempt for failing to comply with the October 9 order; failing to attend previous hearings; and failing to attend the September 24, 2009, hearing in person (the attorney had attended by phone). The court ordered the Bank and the Bank’s counsel to pay $13,394 in sanctions within sixty days. The Bank appealed.

The contempt sanction imposed in this case is an indirect criminal contempt sanction. First, it is criminal as opposed to civil contempt because it does not contain a purge provision or aim to compensate the Association. Instead, the order imposes a monetary sanction on the Bank to be paid within sixty days without giving the Bank the ability to avoid paying the fine by complying with the court’s directives. Any “ ‘flat, unconditional fine’ totaling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance.” Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (quoting Penfield Co. of Cal. v. SEC, 330 U.S. 585, 588, 67 S.Ct. 918, 91 L.Ed. 1117 (1947)). Further, the fine does not appear to be compensatory because the amount does not correspond to the amount owed to the Association and the court did not indicate in its order that the fine was meant to compensate the Association. See Parisi v. Broward Cnty., 769 So.2d 359, 363-64 (Fla.2000) (explaining that criminal contempt sanctions are meant to punish while civil contempt sanctions are meant to coerce compliance or compensate the injured party).

Second, the sanction constitutes indirect as opposed to direct criminal contempt. Direct criminal contempt sanctions are imposed for conduct that takes place in the judge’s presence while indirect criminal contempt sanctions are imposed for conduct that takes place outside the judge’s presence. Gidden v. State, 613 So.2d 457, 460 (Fla.1993). And an attorney’s failure to appear at a court proceeding is considered indirect criminal contempt. Lowe v. State, 468 So.2d 258, 258 (Fla. 2d DCA 1985); see also Fredericks v. Sturgis, 598 So.2d 94, 96 (Fla. 5th DCA 1992). Here, the sanction was based on the Bank’s failure to comply with the court’s order and failure to appear.

Because the contempt sanction in this case is an indirect criminal contempt sanction, the court was required to follow the procedure outlined in Florida Rule of Criminal Procedure 3.840 before imposing it. Under rule 3.840, the court must issue an order to show cause delineating the essential facts of the charged criminal contempt and directing the defendant to appear before the court. Fla. R.Crim. P. 3.840(a). The court must arraign the defendant, and a hearing must be held to determine the defendant’s guilt or innocence. Fla. R.Crim. P. 3.840(d). The defendant is entitled to representation, to testify on his own behalf, and to have witnesses subpoenaed to testify. Id. After hearing all issues of law and fact, the court must enter a judgment of guilty or not guilty. Fla. R.Crim. P. 3.840(d), (f). If the court finds the defendant guilty, the facts supporting the finding of contempt should be delineated in the judgment. Fla. R.Crim. P. 3.840(f). And finally, the defendant must be given the opportunity to show cause why he or she should not be sentenced and to present mitigating evidence before the court sentences him or her in open court. Fla. R.Crim. P. 3.840(g).

Here, the court did not provide the necessary procedural safeguards provided by rule 3.840 before imposing indirect criminal sanctions on the Bank and the Bank’s attorney. Failure to comply with rule 3.840 constitutes reversible error. Van Hare v. Van Hare, 870 So.2d 125, 126 (Fla. 4th DCA 2003). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


author: RAMIREZ, J.

text:
    Olson PIERRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1434.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Olson Pierre appeals from the trial court’s summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850. We reverse.

Pierre alleged in his motion that his trial counsel was ineffective for failing to call certain witnesses, who he contends would have supported his theory of an alibi and misidentification. The witnesses testified at a pretrial hearing, but not at trial. The trial court summarily denied Pierre’s motion without holding an evidentiary hearing or addressing the specific portions of the trial court record at issue in Pierre’s motion. This was error.

Rule 3.850(d) outlines a specific procedure for a trial court’s consideration of motions for post conviction relief:

In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file an answer or other pleading.... If the motion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an evidentiary hearing is required, the court shall grant a prompt hearing thereon ... determine the issues, and make findings of fact and conclusions of law with respect thereto.

(Emphasis added). Failure to adhere to these requirements is reversible error. See, e.g., Nottage v. State, 61 So.3d 1231, 1232 (Fla. 3d DCA 2011); Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006). “A claim that trial counsel failed to investigate or call exculpatory witnesses when facially sufficient must either be refuted by attachments or an evidentiary hearing held.” Ford v. State, 825 So.2d 358, 361 (Fla.2002).

The State concedes Pierre’s motion is facially sufficient in its allegations regarding ineffective assistance of trial counsel, but argues that this Court can nevertheless affirm because of the “tipsy coachman” doctrine, based upon the record as it currently exists. “The key to application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.” Robertson v. State 829 So.2d 901, 906-07 (Fla.2002). Because of the trial court’s summary disposition, there is no record upon which to examine the trial court’s reasoning and its support for that reasoning, and thus it would be improper to create a record upon which to apply the doctrine.

Moreover, the State’s argument requires that this Court replace the trial court and examine the record in the first instance, which would actually hurt judicial efficiency. In calendar year 2011, this Court addressed 782 post conviction appeals under Florida Rules of Criminal Procedure 3.850, 3.800, and 3.853. If we accept the State’s position, the work of trial courts in these and more cases would shift to this Court. In this case, for example, the merits of Pierre’s motion would require examination of the pretrial hearing transcripts, the trial transcripts, and other elements of the record, in their entirety. When applied to the entirety of this Court’s post conviction appeals, and the potential additional claims that might be made, this additional labor would unfairly and adversely affect other litigants before this Court.

Because the trial court did not comply with the requirements of Rule 3.850, we reverse the summary denial of Pierre’s motion for post conviction relief.

Reversed.


author: PER CURIAM.

text:
    Robert McLEAN, Appellant, v. JP MORGAN CHASE BANK NATIONAL ASSOCIATION, not individually but solely as Trustee for the holders of Structured Asset Mortgage Investments II, Inc., Mortgage Pass-Through Certificates, Series 2006-ARS, Appellee.
    No. 4D10-3429.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Stuart N. House of Giunta & House, P.A., Fort Lauderdale, for appellant.
    Heidi J. Weinzetl of Shapiro & Fishman, LLP, Boca Raton, for appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant appellee’s motion for clarification, withdraw our previously issued opinion, and substitute the following in its place.

Robert McLean appeals a final judgment of foreclosure entered in favor of JP Morgan Chase Bank (“Chase”) as Trustee for holders of certain mortgage pass-through certificates. We reverse, concluding that the trial court erred in entering summary judgment in Chase’s favor, where the record lacked any evidence that Chase had standing to foreclose at the time the lawsuit was filed.

On May 11, 2009, Chase filed a two-count mortgage foreclosure action against the appellant, Robert McLean. The complaint generally alleged that McLean had defaulted under the note and mortgage, and that Chase was “the legal and/or equitable owner and holder of the Note and Mortgage and has the right to enforce the loan documents.” Count I of the complaint was entitled “Mortgage Foreclosure,” while Count II was entitled “Reestablishment of Lost Note.” Count II alleged that Chase “is not in possession of the subject Promissory Note and [Chase] cannot reasonably obtain possession of said Note because it is lost, stolen, or destroyed.” The copy of the mortgage attached to the complaint stated that the lender was American Brokers Conduit and that the mortgagee was MERS.

McLean filed a motion to dismiss, which the trial court denied on April 7, 2010. However, in the order denying McLean’s motion to dismiss, the trial court ordered Chase to file and serve within fifteen days “a copy of the assignment by which it obtained its rights and standing to proceed in this cause.... ” In compliance with the trial court’s order, Chase filed an Assignment of Mortgage, which reflected that MERS assigned the mortgage to Chase. However, the Assignment of Mortgage was signed by MERS representatives on May 14, 2009, three days after Chase filed the instant foreclosure complaint.

McLean filed a second motion to dismiss, arguing that Chase did not have standing to file its complaint because on the date of filing, May 11, 2009, Chase was not the owner of the Note and Mortgage. The trial court denied McLean’s second motion to dismiss. Subsequently, on May 13, 2010, McLean filed an Answer and Affirmative Defenses, raising various affirmative defenses, including the defense that Chase did not have standing to file its complaint.

Subsequently, Chase filed the original note and mortgage, as well as a reply to McLean’s affirmative defenses. The original note bore a special endorsement, stating: “Pay to the Order of JPMorgan Chase Bank, N.A., as Trustee Without Recourse By: American Brokers Conduit.” The endorsement to the note was not dated.

Chase filed a motion for summary judgment, as well as an affidavit in support of summary judgment. The affidavit, which was executed by a representative of American Home Mortgage Servicing after the lawsuit was filed, set forth the amounts due and owing under the loan. The affidavit further stated that Chase “is the holder and owner” of the mortgage originally given by Robert McLean to MERS. However, the affidavit did not specifically state when Chase became the owner of the note and mortgage, nor did the affidavit indicate that Chase was the owner of the note and mortgage before suit was filed. In fact, the affidavit failed to mention any endorsement of the note to Chase. Following a hearing on Chase’s motion for summary judgment, the trial court entered a final judgment of foreclosure in favor of Chase. McLean appealed.

The standard of review of an order granting summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). When reviewing a final summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Princeton Homes, Inc. v. Morgan, 38 So.3d 207, 208 (Fla. 4th DCA 2010). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose. See Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010); Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006).

Standing may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682-83 (Fla. 4th DCA 2004) (“[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt .... ”); see also Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117-18 (Fla. 2d DCA 2011). For example, standing may be established from a plaintiffs status as the note holder, regardless of any recorded assignments. Harvey v. Deutsche Bank Nat’l Trust Co., 69 So.3d 300, 304 (Fla. 4th DCA 2011).

If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1106-07 (Fla. 4th DCA 2010); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. See Servedio, 46 So.3d at 1107.

Even in the absence of a valid written assignment, the “mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.” Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938). Thus, where there is an indication that equitable transfer of the mortgage occurred prior to the assignment, dismissal of the complaint is error, even if the assignment was executed after the complaint was filed. See Salomon, 874 So.2d at 682-83 (“At a minimum, as WM Specialty suggests, the court should have upheld the complaint because it stated a cause of action, but considered the issue of WM Specialty’s interest on a motion for summary judgment. An evidentiary hearing would have been the appropriate forum to resolve the conflict which was apparent on the face of the assignment, i.e., whether WM Specialty acquired interest in the mortgage prior to the filing of the complaint.”) (emphasis added).

While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special endorsement in favor of the plaintiff, this does not alter the rule that a party’s standing is determined at the time the lawsuit was filed. See Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1286 (Fla. 2d DCA 2005). Stated another way, “the plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.” Id. at 1285. Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. Id. at 1286.

To summarize, the plaintiff must prove that it had standing to foreclose when the complaint was filed. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”); see also Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990) (holding that a foreclosure complaint failed to state a cause of action where plaintiffs relied on assignment of mortgage that was dated four months after the lawsuit was filed).

Even where an assignment of mortgage does not occur until after the complaint is filed, there are several ways a plaintiff may establish its standing to foreclose at the inception of the suit. Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit. If the note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing. See, e.g., Taylor, 74 So.3d at 1117-18. Similarly, if the plaintiff relies upon an affidavit of ownership to prove its status as a holder of the note on the date the lawsuit was filed, it is sufficient if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed. Alternatively, if the affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff is the “owner and holder of the note” is sufficient to establish the plaintiffs standing at the inception of the lawsuit.

In the present case, as is common in recent foreclosure cases, Chase did not attach a copy of the original note to its complaint, but instead brought a count to re-establish a lost note. Later, however, Chase filed with the circuit court the original promissory note, which bore a special endorsement in favor of Chase. Because Chase presented to the trial court the original promissory note, which contained a special endorsement in its favor, it obtained standing to foreclose, at least at some point. See, e.g., Kaminik v. Countrywide Home Loans, Inc., 64 So.3d 195, 196 (Fla. 4th DCA 2011) (reversing fee award but otherwise affirming summary final judgment of foreclosure where the record demonstrated that the appellee “tendered the original promissory note to the trial court, which contained a special indorsement in its favor”).

Nonetheless, the record evidence is insufficient to demonstrate that Chase had standing to foreclose at the time the lawsuit was filed. The mortgage was assigned to Chase three days after Chase filed the instant foreclosure complaint. While the original note contained an undated special endorsement in Chase’s favor, the affidavit filed in support of summary judgment did not state when the endorsement was made to Chase. Furthermore, the affidavit, which was dated after the lawsuit was filed, did not specifically state when Chase became the owner of the note, nor did the affidavit indicate that Chase was the owner of the note before suit was filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed. See U.S. Bank Nat’l Ass’n v. Kimball, 27 A.3d 1087 (Vt.2011) (bank that filed a foreclosure complaint against a homeowner did not show that, at the time it filed the complaint, the bank possessed the original promissory note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to the bank; although the bank ultimately submitted the promissory note with an undated specific endorsement to the bank, the bank provided no information as to when such endorsement was made).

We therefore reverse the summary judgment and corresponding final judgment of foreclosure. On remand, in order for Chase to be entitled to summary judgment, it must show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed (i.e., that the note was endorsed to Chase on or before the date the lawsuit was filed). By contrast, if the evidence shows that the note was endorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint. See Jeff-Ray Corp., 566 So.2d at 886. An evidentiary hearing may also be required if there is disputed evidence on an issue, such as to the date the note was endorsed to Chase.

Reversed and Remanded for further proceedings consistent with this opinion.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    Stuart R. KALB as Trustee, Appellant, v. NACK HOLDING, LLC, et al., Appellees.
    No. 3D10-2331.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Guy Spiegelman, for appellant.
    Robert Cooper, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   RAMIREZ, J.

Stuart R. Kalb as Trustee appeals the trial court’s award of attorney’s fees to appellee Nack Holding, LLC. Because Nack Holding did not timely request trial level attorney’s fees, we reverse that part of the trial court’s order that awarded such fees. We affirm the trial court’s order in all other respects.

The full facts of this case are addressed in our prior opinion, Nack Holdings, LLC v. Kalb, 13 So.3d 92 (Fla. 3d DCA 2009), and thus we discuss only the facts relevant to the attorney’s fees. Nack Holding prevailed in its claim that Kalb violated Section 701.04, Florida Statutes (2010), which requires timely recording of satisfactions of judgment. That statute includes a provision which entitles the prevailing party to seek reasonable attorney’s fees. Although this Court and the Florida Supreme Court determined Nack Holding was entitled to appellate attorney’s fees, neither court opined on trial level attorney’s fees. On remand, on October 20, 2009, the trial court signed an agreed judgment which granted relief on the merits, and “reserve[d] jurisdiction to enter such additional orders.” On March 12, 2010, Nack Holding moved in the trial court for an award of both trial and appellate attorney’s fees. The trial court granted the motion, and Kalb appeals.

Under Florida law, “statutes awarding attorney’s fees must be strictly construed.” Gershuny v. Martin McFall Messenger Anesthesia Prof'l Ass’n, 539 So.2d 1131, 1132 (Fla.1989); see also Atl. Nat’l Bank of Fla. v. Tworoger, 448 So.2d 616, 617 (Fla. 3d DCA 1984) (stating “Section 701.04 is a statute in derogation of the common law and must be strictly construed”). Section 701.04 does not specify the mechanism by which the attorney’s fees are requested and awarded, but, under Florida Rule of Civil Procedure 1.525, “[a]ny party seeking a judgment taxing ... attorneys’ fees ... shall serve a motion no later than 30 days after filing of the judgment ... which ... concludes the action as to that party.” Thus, a motion for attorney’s fees must be filed within thirty days of entry of final judgment to permit a trial court to award such fees. Saia Motor Freight Line, Inc., v. Reid, 930 So.2d 598, 600 (Fla.2006); Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 207-08 (Fla.2009). The only recognized exception to this requirement is when the trial court has already, in the judgment, determined entitlement to attorney’s fees as part of the relief granted to the prevailing party. See Lait, 2 So.3d at 207; Ramle Int’l Corp. v. Greens Condo. Ass’n., 32 So.3d 647, 648 (Fla. 3d DCA 2010).

In this case, Nack Holding is not entitled to trial level attorney’s fees because it did not comply with the applicable requirements. The trial court’s judgment was issued on October 20, 2009, while Nack Holding’s motion for fees in this case was filed March 12, 2010. The thirty-day bright line had already expired when Nack Holding filed its motion. Further, Nack Holding incorrectly contends no motion was necessary after the judgment because it served a demand for attorney’s fees in July 2007, and the trial court reserved jurisdiction to enter additional orders. The trial court’s reservation of jurisdiction “to enter such additional orders,” does not suffice because it does not determine Nack Holding is entitled to attorney’s fees. See Lait, 2 So.3d at 207.

In contrast, Nack Holding is entitled to its appellate attorney’s fees and costs. Both appellate courts ruled upon Nack Holding’s request for attorney’s fees and costs, and thus included Nack Holding’s entitlement to such fees in their final adjudications. As a result, we affirm the award of appellate attorney’s fees. Lastly, we determine that there was competent substantial evidence to support the trial court’s determination regarding appellate attorney’s fees, and thus reject Kalb’s challenge to the amount of appellate fees awarded. See Lawrence v. Vilac, Inc., 932 So.2d 1151, 1152 (Fla. 3d DCA 2006).

Reversed in part; affirmed in part.

      . Kalb v. Nack Holdings, LLC, 25 So.3d 1222 (Fla.2009).


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Pedro ORTIZ, Appellee.
    No. 3D11-405.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.
    Grisel Ybarra, Miami, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

The State appeals the trial court’s order granting Pedro Ortiz’s (“the defendant”) motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and vacating the judgment and sentence entered on January 31, 1996, following the defendant’s negotiated plea. Because the defendant accepted the terms of the plea offered and has enjoyed the benefits of the bargain, the trial court erred in granting the requested relief. Accordingly, we reverse with instructions to reinstate the 1996 judgment.

The facts are not in dispute. The defendant was charged with purchase of cannabis, a third degree felony, and unlawful possession of cannabis, a second degree misdemeanor. The defendant pled no contest to the charges in exchange for a withhold of adjudication and a suspended entry of sentence. A suspended sentence standing alone is however an illegal sentence. See Helton v. State, 106 So.2d 79, 80 (Fla.1958) (holding that “the power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation”); State v. Galazz, 2 So.3d 1083, 1084 (Fla. 3d DCA 2009); Sainz v. State, 811 So.2d 683, 686-88 (Fla. 3d DCA 2002). On August 20, 2011, over fourteen and one-half years after accepting the plea and its benefits without objection, the defendant filed a rule 3.800(a) motion for postconviction relief seeking to vacate his plea.

The law is clear that “where a sentence has already been served, even if it is an illegal sentence, the court lacks jurisdiction and would violate the Double Jeopardy Clause by resentencing the defendant to an increased sentence.” Sneed v. State, 749 So.2d 545, 546 (Fla. 4th DCA 2000); see also Willingham v. State, 833 So.2d 237, 238 (Fla. 4th DCA 2002); Palmer v. State, 182 So.2d 625, 626-27 (Fla. 4th DCA 1966). Thus, the trial court may not correct the illegal suspended entry of sentence by imposing probation or community control after the defendant accepted and entered his plea, because to do so would violate the Double Jeopardy Clause by increasing the sentence imposed. However, this does not mean that, because the illegality of the sentence imposed cannot be corrected, the sentence must be vacated.

Where a defendant has already served his sentence and he has reaped the benefit of an illegal sentence, he is es-topped from challenging the sentence, especially in the context of a negotiated plea. See Vause v. State, 803 So.2d 799, 800 (Fla. 1st DCA 2002) (affirming the denial of the defendant’s motion to correct an illegal sentence pursuant to rule 3.800(a), finding that because the defendant accepted the benefits of the suspended sentence, he was estopped from challenging the impropriety of the sentence); Dupree v. State, 708 So.2d 968, 971-72 (Fla. 1st DCA 1998) (holding that where one takes advantage of an invalid sentence and accepts its benefits, he is estopped to assert the invalidity of the sentence); Huff v. State, 672 So.2d 634, 635 (Fla. 1st DCA 1996) (“[Although his original suspended sentence may have been improper ..., it is not reversible on this appeal because Appellant has already received the benefits of the improper sentence.”); Gaskins v. State. 607 So.2d 475, 476 (Fla. 1st DCA 1992) (“Existing case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”), disapproved on other grounds, State v. Powell, 703 So.2d 444 (Fla.1997); Whitchard v. State, 459 So.2d 439, 439 (Fla. 3d DCA 1984) (holding that a defendant may not accept and enjoy a probationary sentence and then challenge it as illegal after violating its terms); Rodriguez v. State, 441 So.2d 1129, 1131 (Fla. 3d DCA 1983) (holding that because the defendant agreed to and benefitted from the sentence, he has waived his right to attack it).

In the instant case, the defendant agreed to the illegal suspended sentence which did not include a term of probation, and he clearly benefitted from the improper sentence. Upon a conviction, he could have received a sentence of incarceration, community control, probation, or a combination of these sentencing options. Instead, the defendant was not made to serve any time under any of these sentencing alternatives.

This Court and others have upheld otherwise defective sentences when they were voluntarily accepted by the defendant as a part of a mutually advantageous agreement with the State. See, e.g., Novaton v. State, 610 So.2d 726, 727 (Fla. 3d DCA 1992) (holding that “a defendant who enters into a negotiated plea and sentence bargain with the prosecution thereby waives an otherwise viable double jeopardy objection to sentences which form a part of the agreement”); Jacobs v. State, 522 So.2d 540, 541 (Fla. 3d DCA 1988) (affirming the denial of a motion to correct an illegal sentence as a result of a negotiated plea); Preston v. State, 411 So.2d 297, 298-99 (Fla. 3d DCA 1982) (holding that a defendant who should have been sentenced as a youthful offender but was placed on probation waived his right to question the legality of a probation he enjoyed and violated).

We also agree with the State that because the defendant had already served his sentence to completion, the trial court lacked the authority to set it aside because the question became moot. See Maybin v. State, 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) (holding that “[e]ven though May-bin’s modified sentence was invalid, he had already served it to completion, and the trial court could not set it aside because the question had become moot”); Sneed, 749 So.2d at 546 (holding that once a sentence has been served, even if it is an illegal or an invalid sentence, the trial court loses jurisdiction).

Reversed and remanded with instructions to reinstate the judgment.

      . Count one carried a maximum sentence of five years' imprisonment; count two carried a maximum sentence of sixty days in the county jail.

      . We note, however, that a waiver cannot be effective when the sentence in question is "void.” Rodriguez, 441 So.2d at 1129; see e.g., Ruiz v. State, 537 So.2d 682, 683 (Fla. 3d DCA 1989) (vacating sentence and remanding for further proceedings where sentence exceeds the statutory maximum and is therefore illegal); Solomon v. State, 341 So.2d 537, 538 (Fla. 2d DCA 1977) (holding that order placing Solomon on "probation was void for lack of jurisdiction, and this is fundamental error even if not raised at the trial court”).


author: EMAS, J.

text:
    Jerrold WINGATE and the Wingate Law Firm, Appellants, v. CELEBRITY CRUISES, LTD., Appellee.
    No. 3D11-400.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood and Diane H. Tutt, Da-vie, for appellants.
    Mase Lara Aversole, and Curtis J. Mase, Andrew D. Craven, Richard D. Lara, Miami, and Valentina M. Tejera, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Jerrold K. Wingate and the Wingate Law Firm (hereinafter collectively referred to as “Wingate”) appeal an order denying their motion for disbursement of costs incurred during their representation of several of the seventy-seven plaintiffs in cases against Celebrity Cruises, Ltd. and Royal Caribbean Cruises, Ltd. (“RCL”). We affirm.

In 2007, plaintiff Charles Mackarthy, represented by Wingate, filed suit against RCL. On January 8, 2008, RCL filed a motion to disqualify Wingate as counsel for Mackarthy, alleging Wingate had been paying an RCL employee to provide insider information on the cruise line’s claims files. At the time this motion to disqualify was filed, Wingate also represented seventy-six other plaintiffs in separate lawsuits against RCL.

Attached to the motion to disqualify was an affidavit from the RCL employee, who verified she had received payments from Wingate in exchange for providing settlement authority information from RCL’s files, including the settlement value which RCL assigned to those claims and the maximum amount RCL had reserved to settle each claim. RCL further alleged that Wingate, “armed with this confidential information ... would attend the mediation and refuse to negotiate an amount lower than the amount set as a maximum by RCL internally.” RCL’s motion to disqualify Wingate also requested sanctions, including an award of attorney’s fees to RCL.

At the hearing on the motions to disqualify, Wingate stipulated that it would withdraw from representing all seventy-seven plaintiffs. Accordingly, the trial court entered an omnibus order on January 28, 2008, finding, inter alia: (1) the motion to disqualify was moot because Wingate agreed to withdraw; (2) Wingate must cease and desist representation of all plaintiffs in the subject seventy-seven eases; and (3) Wingate would be permitted to file a charging lien for fees and costs incurred in representing the subject plaintiffs, but said permission to filé such lien was not to be construed as approval or disapproval of the lien; and (4) the merits of any such claims for fees and costs, including both entitlement and amount, would be adjudicated by the court at a future hearing.

On February 21, 2008, the court held a hearing on RCL’s motion for sanctions. Wingate maintained that sanctions should not be imposed because Wingate had withdrawn and no wrongdoing had been proven. Wingate also represented to the court that Wingate had not yet decided whether, and the extent to which, it would seek recovery of its fees and costs, and told the court that many of the former clients hired another firm, Rivkind, Pedraza & Margu-lies, P.A. (“the Rivkind firm”), to represent them in the RCL cases.

At a hearing held on January 15, 2009, it was brought to the court’s attention that Wingate had entered into a secret agreement with successor counsel (the Rivkind firm), through which Wingate would receive, and had in fact already begun to receive, as attorney’s fees and costs, a portion of the funds recovered in the RCL cases. The court found that Wingate had “intentionally subverted” the January 28, 2008 order, and ordered Wingate to show cause why they should not be held in criminal contempt of court.

On February 18, 2009, the court held a hearing on the order to show cause. During the hearing, Wingate agreed to withdraw (or refrain from filing) any charging lien for attorney’s fees on all of the seventy-seven cases. However, Wingate contended that they should be permitted to seek reimbursement of costs actually expended in the course of representing the seventy-seven plaintiffs. The following exchange took place between the court and Wingate’s counsel:

THE COURT: Well, let’s deal with Mr. Wingate’s position.
COUNSEL: Yes.
THE COURT: What is his position?
COUNSEL: His position is that ... he is entitled to recover cost[s] as the cases are resolved, whatever costs were expended.
THE COURT: I found this man acted improperly in obtaining these monies.
COUNSEL: Cost[s], please let me separate cost[s] from fees.
THE COURT: I am not going to give this man a nickel if I already found, as I have, that in fact he obtained an unfair advantage by bribing an employee on the other side to let him know what the settlement value of the case was.
COUNSEL: Judge—
THE COURT: I am not going to give him a nickel.
COUNSEL: Judge, Judge, I’m not asking you to agree with—
THE COURT: Then he does it behind my back by getting a nickel plus.
COUNSEL: Judge, Judge, I am not asking you to agree with me. You asked me what his position was.
THE COURT: All right, if that is his position, I reject it.
COUNSEL: His position is, at this point, he’s entitled to recover costs expended.

(Emphasis supplied.)

Thus, the court made it abundantly clear that, based upon its findings of Wingate’s illegal and unethical conduct, Wingate was not entitled to “recover cost[s] as the cases are settled” from any of the seventy-seven cases. Thereafter, the court entered a contempt order against Wingate, finding the agreement with the Rivkind firm was “a secret, self-serving and illegal arrangement intended as a means of evading this Court’s order concerning Wingate’s claim to fees and costs from files which he abandoned.” (Emphasis supplied.) The trial court recounted the relevant history of the case, noting that in its previous order confirming Wingate’s withdrawal from representation of the seventy-seven plaintiffs, the court ordered that any claims by Win-gate for fees and costs would be adjudicated by the court. The court found that, by entering into the secret agreement with the Rivkind firm, Wingate “willfully disobeyed its Orders regarding the right to seek fees and costs arising out of the seventy-seven (77) cases in question, and for having knowingly received fees and costs in violation of this Court’s Orders.” (Emphasis supplied). The court found Wingate in criminal contempt for this conduct.

Wingate appealed the trial court’s contempt order. Wingate framed the issue on appeal:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN ORDERING, AS A CONTEMPT SANCTION, WIN-GATE TO DISGORGE MORE ATTORNEYS’ FEES THAN THEY HAD RECEIVED AND IN ORDERING WINGATE TO DISGORGE COSTS INCURRED.

Other than correcting a mathematical error, this Court affirmed the trial court’s contempt order, finding that Wingate’s argument on appeal “lacks merit.” Wingate v. Celebrity Cruises, 47 So.3d 934, 934 (Fla. 3d DCA 2010). Thus, this Court has already addressed and rejected the contention that the trial court erred in ordering Wingate to disgorge monies paid to them for costs incurred in the course of their representation.

Mr. Wingate was evidently unfazed by the order of criminal contempt, undaunted by the unsuccessful appeal of that order, and undeterred by the disciplinary proceedings and his ultimate disbarment. Four days after this Court issued the mandate in the first appeal, and in what appears to be a textbook example of legal chutzpah, Wingate filed a motion with the trial court for disbursement of costs, asserting Wingate was entitled to costs incurred in cases which had not yet been settled at the time of the contempt hearing. Once those cases were settled, amounts representing costs were deposited by the Rivkind firm with the clerk of court. The trial court denied Wingate’s motion “in light of the dishonest and contumacious conduct of ... Wingate ... as set out in the Contempt Order previously entered by this court,” finding Wingate was “not entitled to such relief.” This appeal followed.

Wingate contends that the trial court’s denial of Wingate’s motion seeking costs for cases which had not yet been settled at the time of the contempt hearing was tantamount to imposing a new sanction for the same conduct for which Wingate had already been sanctioned. Wingate argues that double jeopardy principles preclude punishing them twice for the same conduct. Alternatively, Wingate argues that the trial court was required to conduct a new contempt hearing and follow the procedures of Florida Rule of Criminal Procedure 3.840 before imposing a sanction of denying costs for the cases which were settled after the contempt order was issued. We disagree.

We first note that Wingate’s motion was legally insufficient. Although it was styled “Motion for Disbursement of Costs”, the motion wholly fails to:

• Identify which of the seventy-seven cases Wingate was seeking reimbursement of costs;
• Set forth the actual and specific amount of costs incurred for each of those cases; and
• Attach a copy of any documents itemizing the actual costs incurred.

Indeed, Wingate’s two-page motion states simply that in its “representation of various claimants, Wingate incurred and advanced payment of certain costs on behalf of its former clients. The costs included hearing and deposition transcripts, filing fees, long distance telephone charges, mailing, deliver and courier service fees, expert fees, and costs for obtaining copies of medical records.” No further detail is given, and Wingate did not provide the exact amount for the total costs sought, stating only: “[u]pon information and belief, the total amount of costs disbursed by Wingate for and on behalf of those former clients and now deposited to the Registry of the Court [by the Rivkind firm] is in the approximate amount of One Hundred and Fifty Thousand Dollars ($150,000).”

In the ordinary case, an attorney would not be required to obtain the trial court’s authorization before disbursing costs following settlement of these cases. However, these were no ordinary cases. In January 2008, when the trial court allowed Wingate’s withdrawal from all seventy-seven cases (including those which had already settled and those which remained pending), the court ordered that any claim for reimbursement of costs be brought before the trial court for an adjudication of Wingate’s entitlement to costs and the amount. The court’s determination would include an adjudication of both entitlement and amount.

As described above, Wingate’s motion failed to include any of the requisite detailed information which would permit the trial court to make a determination of entitlement or amount. Additionally, Wingate failed to provide a transcript of the hearing on the motion, which precludes our ability to provide meaningful review. Based upon the facial insufficiency of the motion, and the absence of a transcript, we affirm the trial court’s order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Furthermore, Wingate misapprehends the trial court’s contempt order, as well as the nature and extent of the sane-tions imposed. At the show cause hearing on February 18, 2009, the trial , court expressly rejected Wingate’s position that it was entitled to reimbursement for costs expended on any of the seventy-seven cases. Wingate’s counsel advised the court at the hearing that Wingate’s position was that he “is entitled to recover cost[s] as the cases are resolved, whatever costs were expended.” The trial court responded: “All right, if that is his position, I reject it.” The trial court made it clear that Wingate was not entitled to any fees or costs on any of the seventy-seven cases from which Wingate had withdrawn — not because he withdrew, but for the reasons which led to his withdrawal, together with the fact that Wingate thereafter entered into a secret and illegal agreement under which he received fees and costs without the court’s knowledge, and in violation and circumvention of the court’s order.

Wingate argues that, because the court’s contempt order addressed only the fees and costs which had already been paid for cases that had been settled, Wingate was free to seek reimbursement for costs on cases that were settled after the contempt order was issued. We do not agree. The settlement status of the seventy-seven cases fell into three different categories:

• “Settled and disbursed” cases, meaning that RCL had already paid a settlement to the Rivkind firm and a portion of those monies were paid to Wingate;
• “Settled, not disbursed”, meaning that RCL had already paid a settlement to the Rivkind firm but no portion of those monies had been paid to Win-gate;
• “Pending”, meaning RCL had not yet paid any settlement monies to the Riv-kind firm.

As to the first category of cases (“settled and disbursed”), the court ordered that the monies received by Wingate from the Riv-kind firm be repaid by Wingate to the clerk of court within thirty days. As to the second category of cases (“settled, not disbursed”), the court ordered that the Rivkind firm “shall forthwith pay all of the fees and costs otherwise payable to Win-gate” to the clerk of court. As to the third category of cases (“pending”) no provision was included in the order, as no settlement had yet been reached and no monies had yet been paid by RCL.

It is this “omission” which Wingate seizes upon in an effort to seek reimbursement of costs for cases which were “pending” at the time of the contempt hearing and which were later settled. Wingate has offered no rational basis for the contention that he is entitled to such costs, other than the fact that the court did not include a provision directing the “disbursement” of these funds. Of course, the reason why no such provision was included in the order is quite simple: there had been no settlement in any of these cases; there was no way of knowing if there would be a settlement in any of these cases; and if there was a settlement, there was no way of knowing how much money would be paid by RCL.

The fact that the trial court’s contempt order addressed the disposition of monies only from the first two categories of cases (settled and disbursed; settled, not disbursed) and did not address the third category (pending) was neither an invitation for Wingate to seek reimbursement for costs once those cases settled, nor a recognition that such costs would be treated differently than the costs for cases in the other two categories. Such a contention would make a mockery of the underlying contempt order and ignore the court’s express findings at the hearing, as well as the fact that Wingate already appealed — unsuccessfully—the trial court’s authority to order Wingate to forfeit all fees and costs from the seventy-seven cases.

More to the point, the trial court’s contempt order expressly found that Wingate had to repay fees and costs he already received, and also expressly found that Wingate was not entitled to fees and costs on cases which had settled but the monies (being held by the Rivkind firm) were not yet disbursed to Wingate. There is no basis in logic or law to distinguish the fees and costs in the “settled, not disbursed” category from the “pending” category. The court prohibited the Rivkind firm from paying Wingate in the former, and directed those monies be deposited with the clerk of the court. The same would necessarily hold true for the latter if and when the cases moved from the “pending” category to the “settled, not disbursed” category. The fact that the trial court did not expressly direct the disposition of the as-yet-unpaid monies from as-yet-unsettled cases was nothing more than a practical acknowledgment of the fact that, until those cases were settled, and monies paid to the Rivkind firm, there was nothing for the court to order disbursed or distributed.

Accordingly, we affirm the trial court’s order denying Wingate’s motion for disbursement of costs. We remand this cause to the trial court for the appropriate disbursement of monies which continue to be held by the clerk of court. It would appear that, given the unique circumstances presented, the most appropriate course would be to return to each of the applicable claimants the respective share of the monies which were deducted as “costs” from the settlement of their claim and deposited with the clerk. In the event that some of the individual claimants cannot be located following a diligent search, we are confident that the trial court will fashion the appropriate disposition of any remaining monies.

Affirmed.

      . Celebrity merged with Royal Caribbean Cruises in 1997. Accordingly, Celebrity/Royal Caribbean will hereinafter be collectively referred to as "RCL”.

      . RCL subsequently filed motions to disqualify Wingate in the other seventy-six cases filed by Wingate, and moved to consolidate those cases with the Mackarthy case. All seventy-seven cases were consolidated and transferred to Judge Stettin for the limited purpose of disposing of the motions to disqualify Win-gate.

      . It was soon discovered that Wingate had entered into this secret agreement before the February 21, 2008 hearing.

      . In addition to finding Wingate guilty of criminal contempt, the trial court referred Mr. Wingate to the Florida Bar. The Florida Bar initiated a disciplinary action based upon the conduct described herein. A referee, appointed to conduct the disciplinary proceedings, recommended that Mr. Wingate be found guilty of violating Rules of Professional Conduct 4-4.4(a) (respect for rights of third parties); 4-5.3(b) (failure to supervise a non-lawyer); 4-5.4(a) (sharing fees with nonlaw-yers); 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (conduct prejudicial to the administration of justice). Mr. Wingate did not contest the referee’s report. The Florida Supreme Court approved the report and disbarred Mr. Wingate. See The Fla. Bar v. Wingate, 13 So.3d 1057 (Fla.2009).

      . Zabrani v. Riveron, 495 So.2d 1195, 1197 (Fla. 3d DCA 1986) ("[Tjhis expressive Yiddish word appears in modern English dictionaries as meaning ‘colossal effrontery’ or 'brazen gall' but as stated in The Joys of Yiddish by Leo Rosten, "The classic definition of ‘chutzpah’ is that quality enshrined in a man, who having killed his mother and father, throws himself upon the mercy of the court because he is an orphan.” (quoting Williams v. State, 126 Ga.App. 350, 190 S.E.2d 785, 785 & n. 1 (1972))). See also Ramirez v. United Auto. Ins. Co., 67 So.3d 1174, 1175 (Fla. 3d DCA 2011); Jack Achiezer Guggenheim, The Evolution of Chutzpah As A Ilegal Term: The Chutzpah Championship, Chutzpah Award, Chutzpah Doctrine, and Now, the Supreme Court, 87 Ky. L. J. 417 (1999).

      . We address this issue only because the trial court expressly stated that it was denying the motion "in light of the dishonest and contumacious conduct of ... Wingate ... as set out in the Contempt Order previously entered by this court.”

      . The court determined that the Rivkind firm had paid Wingate a total of $219,653.07: $124,474.67 in fees and $95,178.40 in costs.

      . We are, of course, bound by the law of the case doctrine which provides that "points of law adjudicated in a prior appeal are binding in order to promote stability of judicial decisions and to avoid piecemeal litigation.” Bueno v. Bueno de Khawly, 677 So.2d 3, 4 (Fla. 3d DCA 1996), quoting Jacobson v. Humana Med. Plan, Inc., 636 So.2d 120, 121 (Fla. 3d DCA 1994).

      . While we do not direct how the trial court should direct the disbursement of such monies, we note that Chapter 7 of the Rules Regulating the Florida Bar, entitled "Clients' Security Funds Rules”, establishes a fund for the purpose of providing "monetary relief to persons who suffer reimbursable losses as a result of misappropriation, embezzlement, or other wrongful taking or conversion by a member of the Florida Bar....” Rule 7-3.2 provides that the Florida Bar Board of Governors "is authorized to accept for the fund any contribution or gift offered to it for use in furtherance of the purposes of the fund.”


text:
    Duvenson Jean a/k/a Duvensen JEAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2628.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Thomas A. Kennedy, Yero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Carlos Alberto CENTENO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-93.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    The Corona law firm, Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Ana LEAL, Appellant, v. MIAMI-DADE COUNTY, etc., Appellee.
    No. 3D10-3199.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    John H. Ruiz and Karen J. Barnet-Backer, Miami, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Siegel v. Deerwood Place Corp., 701 So.2d 1190, 1191-92 (Fla. 3d DCA 1997) (holding that summary judgment is appropriate where the defendant lacks actual or constructive notice of the alleged dangerous condition).


text:
    Fire WILSON a/k/a Brenda Wilson, Petitioner, v. LOREY KATZ TRUST, Respondent.
    No. 3D11-310.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Fire Wilson a/k/a Brenda Wilson, in proper person.
    Suarez and Taylor and Rodolfo Suarez, Jr., Delray Beach, for respondent.
    Before RAMIREZ, SALTER, and EMAS JJ.
   PER CURIAM.

Fire Wilson a/k/a Brenda Wilson filed a notice of appeal from a trial court order dated February 9, 2011, which precluded her from filing any further pleadings or other documents in this case unless signed by an attorney licensed to practice law in Florida. We treat the appeal as a petition for a writ of certiorari. See Favreau v. Favreau, 940 So.2d 1188 (Fla. 5th DCA 2006).

This Court only has jurisdiction to consider the February 9, 2011, order because no appeal was filed from any other final court orders. See Fla. R.App. P. 9.110(b); Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286 (Fla. 4th DCA 2004). Finding no clear departure from the essential requirements of law resulting in irreparable harm, we deny the petition for writ of certiorari.

Petition denied.


author: STEVENSON, J.

text:
    Julia Couper LEO, Appellant, v. Brian LEO, Appellee.
    No. 4D10-5127.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Cynthia L. Greene of Law Offices Greene Smith & Associates, P.A., Miami, and Law Offices Koltun & Lazar, P.A., South Miami, for appellant.
    Andrew S. Berman and Brian M. Karpf of Young, Berman, Karpf & Gonzalez, P.A., Miami, for appellee.
   STEVENSON, J.

The appellant, Julia Couper Leo, appeals from an order finding her in civil contempt. Because that order was entered without an evidentiary hearing, we reverse and remand.

This appeal stems from a final judgment of dissolution of marriage as between the appellant (“Former Wife”) and the appel-lee, Brian Leo (“Former Husband”). Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court.

A hearing was scheduled on Former Husband’s motion for civil contempt. Pri- or to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. For-

mer Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful noncompliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

“A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So.2d 349, 355 (Fla. 4th DCA 2007). Former Wife was not given this opportunity. While our review of the record indicates that relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. See Voigt v. Voigt, 505 So.2d 626, 626 (Fla. 3d DCA 1987) (reversing order finding wife in contempt for refusing to return husband’s belongings where trial court failed to conduct evidentiary hearing on wife’s present ability to comply).

Reversed and remanded.

POLEN and TAYLOR, JJ., concur.


text:
    Titilayo DOKUN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4523.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Nancy A. Daniels, Public Defender, Ronald Thomas, Assistant Public Defender, and Kathleen Stover, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Ralph F. Guerra, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Titilayo Dokun challenges her conviction of public assistance fraud, asserting that the state failed to present sufficient evidence of identity. She maintains that the trial court erroneously denied her motion for judgment of acquittal on this ground. We agree and reverse.

The state presented ample evidence that a person by the name of Titilayo Dokun applied for and received public assistance from the Department of Children and Families. It also presented ample evidence that a person by the name of Titi-layo Dokun received income that may have disqualified her from receiving such benefits. However, as the state now correctly concedes, the evidence presented at trial was not sufficient to prove that the defendant is the same person who had applied for public assistance under the name Titi-layo Dokun or that she is the same individual who received the disqualifying income. We therefore reverse with directions to enter a judgment of acquittal.

Reversed.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Ted K. BROWN, Former Husband, Petitioner, v. Valerie Hays BROWN, Former Wife, Respondent.
    No. 1D11-5138.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Ted K. Bi-own of Ted K. Brown, P.A., Jacksonville, pro se, Petitioner.
    John S. Mills, JoLen Rawls Wolf, and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, the former husband, seeks certiorari review of a final judgment of indirect civil contempt. He argues that the trial court departed from the essential requirements of the law in (1) finding him in willful violation of prior court orders for sending a letter to his child’s teacher with a note for the child and sending emails to the child’s school; (2) modifying the 2009 injunction; (3) failing to grant him sufficient time to present his defense on the child support issue; and (4) finding him in willful violation of his child support obligation. Because the trial court withheld imposing sanctions for the violations pertaining to Petitioner’s contact with the child’s school pending any future violations of the court’s orders, Petitioner has not established irreparable injury with respect to his first argument. See Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1042 (Fla. 5th DCA 2007) (rejecting an irreparable harm argument as being premature and speculative). Petitioner has also failed to show any irreparable injury with respect to his second argument given that the trial court merely clarified what conduct would be considered contemptuous in the future. We, therefore, dismiss the certiorari petition as to these allegations for lack of jurisdiction. See Jackson v. Computer Sci. Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010) (“Certiorari jurisdiction does not arise unless the court first establishes irreparable harm.”). As to Petitioner’s third and fourth arguments concerning his child support obligation, we deny those portions of the petition on the merits.

DISMISSED in part and DENIED in part on. the merits.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    James FLEISCHMAN, Petitioner, v. Doctor MADAN of Suwannee Correctional Institution, Respondent.
    No. 1D11-6151.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    James Fleischman, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Moore v. Correctional Medical Services, 817 So.2d 963, 964 (Fla. 1st DCA 2002). To the extent the petition seeks to compel a ruling on Petitioner’s Motion for Telephonic Hearing, the petition is denied as premature.

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    James FLEISCHMAN, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-6322.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    James Fleischman, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for mandamus is denied. See Moore v. Correctional Medical Services, 817 So.2d 963, 964 (Fla. 1st DCA 2002). To the extent the petition seeks to compel a ruling on Petitioner’s Motion for Telephonic Hearing, the petition is denied as premature.

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    Gloria McNEALY, Appellant, v. VERIZON SUPPORT CENTER/SEDGWICK CLAIMS MANAGEMENT SERVICES INC. #1, AIG Holdings, Inc. # 2, Appellees.
    No. 1D11-1451.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Bill McCabe, Longwood, and Joey Oquist, St. Petersburg, for Appellant.
    J. Craig Delesie, Jr. of Kadyk & Delesie, Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in denying her request to select or change her primary care provider and likewise erred in denying her claim for attorney’s fees and costs. We agree the JCC erred and reverse for further proceedings consistent with this opinion.

Background

The relevant facts are not in dispute. Claimant sustained a compensable repetitive motion injury on April 11, 2001, involving both hands/wrists. At all times relevant to this appeal, medical treatment was provided to Claimant via a managed care arrangement. When Claimant became dissatisfied with her initial treating orthopedic physician, Dr. Rodriguez, she filed a petition for benefits seeking an alternative physician, which resulted in her and her attorney selecting Dr. Okun, also an orthopedic physician, to provide treatment. Claimant first saw Dr. Okun on September 16, 2009, and remained under his care through the time of the hearing under review.

On October 22, 2010, Claimant filed another petition for benefits, this one seeking authorization for a primary care provider as well as attorney’s fees and costs. The Employer/Carrier (E/C) asserted that Dr. Okun, based on the definitions in chapter 440, Florida Statutes, was both a primary care provider and an authorized treating physician and, under the facts of this case, such a combination was not inappropriate. The JCC denied the claims, finding that authorization of a separate primary care provider seemed redundant and not medically necessary. The JCC specifically accepted the E/C’s argument that Dr. Okun could serve as both an authorized treating physician and a primary care provider.

Analysis

Because resolution of this issue requires statutory interpretation, our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Two provisions, one statute and one rule, are relevant in this analysis. Section 440.134(6)(c)10., Florida Statutes (2000), provides that the managed care plan of operation must include “[a] provision for the selection of a primary care provider by the employee from among primary providers in the provider network.” Florida Administrative Code Rule 59A-23.003(7)(i) requires this of the provider network:

The insurer or delegated entity, may direct injured employees to a single primary care provider or a selected group of primary care providers .within the provider network for assessment and initial treatment. However, the employee shall have the right to select a primary care provider and thereafter, to request one change of primary care provider and of each authorized treating specialty provider during the course of treatment for each injury.

The E/C’s managed care program states that it “shall include”:

j. A provision for the selection of a [primary care provider] by the employee from among primary providers in the provider network:
The provision for the selection for a primary care provider by the employee from among primary providers in the provider network is described in the policy entitled “Assuring Covered Employees Receive All Initial Services From a [Primary Care Provider] Participating in the Provider Network, Except for Emergency Care”.

The policy referenced in that statement was not included in the record; however, such an omission does not preclude this analysis. See Theiss v. City of Panama City Beach, 65 So.3d 117, 118 (Fla. 1st DCA 2011) (holding right to select primary care provider is legislatively decreed; thus, it was not necessary for claimant to introduce into evidence managed care plan to establish rights).

The record is unclear as to whether Claimant’s request for a change in physician from Dr. Rodriguez to Dr. Okun was a request for a change only as to the authorized treating specialist or whether it was also her initial selection of a primary care provider. Based on the plain language of the rule, however, the answer to that question is not relevant here. Because an injured employee whose medical treatment is provided via a managed care arrangement is entitled to select a primary-care provider and thereafter select one change in primary care provider, Claimant was entitled to make a selection. See Fla. Admin. Code R. 59A-23.003(7)(i). Claimant was not required to establish the medical necessity of the request. See Theiss, 65 So.3d at 118 (“Moreover, because an injured employee has been legislatively granted, in mandatory language, the unmitigated right to select and change his or her primary care provider during the course of treatment for an injury, we conclude that this right is not dependent upon a showing of medical necessity.”). Finally, because Claimant was entitled to the claimed benefit, Claimant was entitled to E/C-paid attorney’s fees and costs.

Accordingly, we REVERSE the order denying Claimant the right to select or change her primary care provider, and REMAND for entry of an order granting Claimant the benefits requested.

LEWIS, ROBERTS, and RAY, JJ„ concur.


text:
    Timothy LEE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0097.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Timothy Lee, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

VAN NORTWICK, JR., THOMAS, and ROWE, JJ., concur.


author: GRIFFIN, J.

text:
    Donald Eugene McCLUNE, Appellant, v. Rebecca Anne McCLUNE, Appellee.
    No. 5D10-4160.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.

      Clyde M. Taylor, III, of Taylor & Taylor, P.A., St. Augustine, for Appellant.
    Allyson Boyles Currie, of Upchurch, Bailey and Upchurch, P.A., St. Augustine, for Appellee.
   GRIFFIN, J.

Donald Eugene McClune [“Former Husband”] appeals a non-final order in which the trial court found Former Husband to be in indirect civil contempt, awarded Rebecca Anne McClune [“Former Wife”] attorney’s fees, and denied Former Husband’s motion for clarification. The appeal arises out of a dispute between Former Husband and Former Wife over the meaning of certain provisions of their mediated settlement agreement [“MSA”], which was the basis for the consent final judgment that dissolved the parties’ thirteen-year marriage in May 2010. The consent final judgment provides in pertinent part:

5. RETIREMENT BENEFITS and PENSION PLANS: The Wife shall receive 50% of the marital portion of the pension, retirement accounts and IRA’s. The Court reserves jurisdiction for entry of necessary Qualified Domestic Relations Orders.
The Wife shall receive all of the Bank of America stock in existence at the time of filing as lump sum alimony and further waives any alimony entitlement.

Prior to the entry of the consent final judgment, each party filed a financial affidavit. Former Husband was a long-time employee of Bank of America. In the assets section of his financial affidavit, under the category Stocks/Bonds, Former Husband listed “Bank of America ESPP” with a value of “21,804.00;” and, under the category of Retirement Plans, he listed “Fidelity IRA” with a value of “212,-373.17;” and a second “Fidelity IRA” with a value of “10,238.08.”

In the assets section of Former Wife’s financial affidavit, Former Wife checked the category Stocks, Bonds, Notes and listed a value of $10,000.00; she checked the category Retirement Plans (Profit Sharing, Pension, IRA, 401(k)s, etc.) and listed Fidelity with a value of $210,000.00; and Bank of America Pension and Stocks and inserted a question mark as to value.

On July 21, 2010, in an amended motion for civil contempt/enforcement, Former Wife asserted in part that Former Husband had failed to comply with paragraph 5 of the MSA:

7. Paragraph 5 of the Final Judgment provides in pertinent part that the Former Wife shall receive “all of the Bank of America stock in existence at the time of filing as lump sum alimony.”
8. The Former Husband has refused to provide the Former Wife with all the Bank of America stock. He now claims that “all of the Bank of America stock in existence” does not include the Bank of America stock contained in his 401K account.

Former Husband responded with a motion for section 57.105 attorney’s fees, asserting in part:

6. The Former Wife is to receive a marital share [of] Former Husband’s retirement 401K. This 401K contains Bank of America stock as part of his 401K investment portfolio. This is not individually purchase stock and was not meant to be a part of the “all of the Bank of America stock in existence”. The Former Wife is well aware of the individual stock account specific to Bank of America for which the Former Husband is in the process of transferring to the Wife’s name. Had the Consent Final Judgment intended the Former Wife to have the Bank of America stock in the 401K as well, then the 401K would not have been addressed separately in the manner in which it is currently specified.

On September 17, 2010, the trial court entered an order deferring contempt and requiring compliance with the consent final judgment. The order is not clear about what is to be done or why, however. In a motion for clarification, filed on October 19, 2010, Former Husband asserted:

1. A Consent Final Judgment of Dissolution of Marriage was entered in the above-styled cause on or about May 14, 2010.
2. Pursuant to paragraph 5 of the Consent Final Judgment the Former Wife shall receive “50% of the marital portion of the pension, retirement accounts and IRA’s” which is contradictory to other language in that paragraph that she shall receive “all of the Bank of America stock.”
3. The Former Husband had an employee stock purchase plan from Bank of America containing only Bank of America stock, worth approximately $18,000.00 on 5/14/2010, this is what the parties contemplated as “all of the Bank of America stock” due to the Former Wife as lump sum alimony. Said monies have already been transferred to the Former Wife.
4. The Former Husband had a separate 401(k) that contained some Bank of America stock, the Bank of America stock in the 401(k) was to be divided along the same lines as the remainder of the 401(k), with the Former Wife receiving 50% of the amount accrued during the marriage.
5. It would be unconscionable to award the Former Wife 100% of the Bank of America stock in the 401 (k) because she would receive a grossly disproportionate share of the parties’ assets.
6. If the Former Husband is required to pay the Former Wife all of the Bank of America stock in the 401 (k) plus half of the marital share he would not have sufficient funds remaining to pay her the equity in the marital home in full.
7. The majority of the Bank of America stock in the 401(k) was acquired prior to the marriage.

On October 28, 2010, after conducting a hearing on the parties’ motions, the trial court entered an order finding Former Husband to be in indirect civil contempt; awarding Former Wife attorney’s fees, requiring the parties to re-attend parent education and stabilization class; and denying Former Husband’s motion for clarification. The trial court provided in part:

THIS CAUSE came before the Court upon an amended motion for contempt and enforcement. The Court entered its Order on September 17, 2010 requiring the Former Husband to complete all equitable distribution transfers by October 15, 2010. The Former Husband did not even get around to working on this Court Order until October 11th or 12th, three days before the deadline. Nothing has been done other than one payment of $10,000.00 leaving a balance of $53,000.00 due to the Former Wife.
The Former Husband is in contempt of this Court’s Order requiring transfer of $53,500.00 as part of a lump sum alimony payment to the Former Wife as contained in paragraph 5, page 3 of the Final Judgment. Ordinarily, failure to equitably distribute funds as required in the Final Judgment does not subject the offending party to contempt but this matter is different, i.e., the Former Wife waived any alimony entitlement and agreed to receive all the Bank of America stock in existence at the time of the filing, i.e., December 30, 2009. In addition, the Court finds that the Former Husband’s efforts at refinancing the home which would resolve this matter have been half-hearted at best. He claims he is in the “finance business” and “knows” that he will not be eligible to refinance his home but has made no formal application, provided the Court with no rejection letter, nothing. This half-hearted effort is pervasive throughout this case.

Although the terms of this MSA appear clear on their face (i.e. the IRAs are to be equitably distributed and the stock account goes to Former Wife as lump sum alimony), the trial judge reached the opposite interpretation based on the extrinsic fact that there is Bank of America stock in the two IRAs. An agreement is ambiguous if it “is susceptible to two different interpretations, each one of which is reasonably inferred from the terms” of the agreement. Miller v. Kase, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001). “A latent ambiguity is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings.’” Kirsch v. Kirsch, 933 So.2d 623, 626 (Fla. 4th DCA 2006) (citation omitted).

It is a close question whether Former Wife’s interpretation is reasonable. If the agreement is understood in accordance with Former Husband’s interpretation, the calculation and mechanics of distribution are plain. If, on the other hand, Former Wife’s interpretation is correct, the calculations are varied and obscure. Is Wife to have all of the IRAs valued for purposes of her fifty percent share of the marital portion and then have the Bank of America stock in the IRAs transferred to her? Or is Former Wife to have all the Bank of America stock in the IRAs transferred to her and then receive fifty percent of the marital portion of the IRA residue? The MSA provides that Former Wife is to receive stock not the value of the stock, raising questions of feasibility and tax consequences.

We agree with Former Husband that it was error to order all the stock in the IRAs transferred to Former Wife without conducting an evidentiary hearing. Assuming an ambiguity, there are numerous facts that might bear on an accurate interpretation. For example, the record before this Court is unclear concerning the amount of Bank of America stock in either IRA, what part of the IRAs is marital, whether the stock in the IRAs is transferable, and what the parties intended or negotiated. An evidentiary hearing will be required to ascertain the meaning of paragraph 5.

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.

      . Given the remand, the parties and the trial court may also need to revisit the findings concerning the unpaid portion of Former Wife’s equitable share of the marital home. The trial court referred to this as "lump sum alimony” in finding Former Husband in contempt, but the agreement appears to provide differently.


author: SAWAYA, J.

text:
    Jennifer E. STOOTHOFF, Appellant, v. Delbert M. HOBDY, Jr., Appellee.
    No. 5D10-3250.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    James L. Homich, Mt. Dora, for Appellant.
    Kristopher A. Vanderlaan, Tavares, for Appellee.
   SAWAYA, J.

The issue in this case is whether the mother, Jennifer Stoothoff, and the father, Delbert Hobdy, had a valid and binding settlement agreement concerning the time-sharing schedule of their children. Because no such agreement exists, we reverse.

The record reveals that the parties were negotiating the terms of a Parenting Plan governed by section 61.046(14), Florida Statutes (2010). Time-sharing of the children is just one aspect of the Plan; other issues remained for negotiation between the parties before a written, binding agreement could be reached. There was no written document executed by the parties regarding all aspects of the Plan, as contemplated under section 61.046(14), and, therefore, the trial court erred in concluding that a valid and binding settlement agreement had been reached. See DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So.3d 313, 326 (Fla. 4th DCA) (“Where it appears ‘that the parties, or either of them, intended that the contract should be reduced to writing, so that its terms would be fully understood and definitely stated in the writing, the contract will not be regarded as complete or binding until it is reduced to writing and acquiesced in by both parties.’ ” (quoting Ocala Cooperage Co. v. Fla. Cooperage Co., 59 Fla. 390, 52 So. 13, 16 (1910))), review granted, 47 So.3d 1288 (Fla.2010); Am. Capital Network v. Command Credit Corp., 707 So.2d 874, 875 (Fla. 4th DCA 1998) (“Where the parties intend that there will be no binding contract until the negotiations are reduced to a formal writing, there is no contract until that time.”).

Accordingly, we reverse the order under review entitled “Final Judgment of Time-Sharing” and remand this case for further proceedings.

REVERSED and REMANDED.

MONACO, and COHEN, JJ., concur.