author: HAWKES, J.

text:
    Stacey C. CRAVEN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Gray Television Group, Inc., Appellees.
    No. 1D10-3838.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.

      Bradley R. Johnson, Latasha Garrison-Fullwood and Shalisa M. Francis of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
    A. Robert Whaley, General Counsel, Florida Unemployment Appeals Commission, and Rebecca Shanlever and Tashwan-da C. Pinchback and Robert H. Buckler of Troutman Sanders LLP, Atlanta, for Ap-pellees.
   HAWKES, J.

This appeal concerns whether the Unemployment Appeals Commission (UAC) acted properly in finding claimant Stacey C. Craven was not entitled to unemployment benefits. In the order on appeal, the UAC upheld an appeals referee’s finding that Craven was sexually harassed during the course of her employment. The UAC went on to agree with the referee that despite such harassment, Craven was still not entitled to benefits because she left without giving her employer a reasonable opportunity to address the problem.

While the UAC may be correct in finding Craven’s employer did not have sufficient time to address the harassment, its scant fact findings — some of which are completely without record support — make it impossible for us to verify that this was the correct result. Therefore, we reverse and remand for further fact findings, as described below.

Facts

Craven was employed as a morning meteorologist for WJHG-TV, a station owned by Gray Television Group (the employer). During the course of her employment, Craven was sexually harassed and, eventually, quit on September 23, 2009, approximately two weeks before her contract was set to expire. She then applied for unemployment benefits, citing the prolonged sexual harassment and the hostile work environment it created. An Agency for Workforce Innovation adjudicator granted her request, finding she had “good cause” to leave due to the poor working conditions allowed by the employer. However, the employer appealed the determination and a formal hearing was held.

During the hearing, Craven testified to the following chronology of events:

• June 2008 — Craven initially reports the harassment to Curt Molander — the station’s general manager — although she refuses to identify her harasser. Molander, who also testified at the hearing, confirmed that he spoke with Craven regarding the harassment at this time.
• September 2008 — Craven speaks about the harassment with Tom Lewis — the station’s news director — and identifies her harasser by name. She also shows Lewis a lewd picture the harasser had sent her of his genitals. Craven testified Lewis instructed her not to tell anyone of the harassment.
• September 2008 — September 2009— The employer takes no action on the allegations of harassment.
• September 17, 2009 — Craven files a formal complaint with the station.
• September 23, 2009 — Craven quits one day after the station initiates an investigation into her complaint. Craven, who was pregnant at the time, testified the stress of the situation had caused her to begin leaking amniotic fluid, prompting her decision to quit.
• October 27, 2009 — The employer extends an unconditional offer to have Craven return to employment as a meteorologist. Craven does not accept the offer, fearing that returning to work for the employer might cause stress which would complicate her pregnancy.

Following the hearing, the appeals referee issued an order reversing the adjudicator’s initial determination which found Craven qualified for unemployment benefits. In its order, the referee found Craven was harassed, that she reported the harassment to Molander in July 2008, and that she refused to identify the harasser at that time. Oddly, the order does not mention Craven’s conversation with Lewis in September 2008, in which she claimed to have identified the harasser. Instead, it states she “ultimately divulged the identity of her harasser in August 2009, and the employer then began an investigation [although Craven left] before the investigation was completed.” Nor does the order mention the offer of re-employment or Craven’s reasons for refusing it.

Based on these findings, the referee concluded Craven was not entitled to unemployment benefits. He stated that to receive benefits after voluntarily leaving employment, Craven had to show by a preponderance of the evidence that her decision to quit was for “good cause” attributable to the employer. The referee explained that when sexual harassment is alleged as a reason for leaving employment, an employee can only demonstrate “good cause” by showing: (1) that the harassment occurred; and (2) that the employer was given reasonable opportunity to address the problem. The referee stated Craven did not satisfy the second prong because she initially refused to identify her harasser and, once an investigation was initiated, left employment prior to its completion. The referee concluded that because Craven did not give the employer a reasonable opportunity to address her claims, she did not have “good cause” to leave employment and, therefore, was ineligible for benefits.

Craven appealed the referee’s denial to the UAC, which affirmed the decision without further discussion of the facts or law. This appeal followed.

Standard of Review

On appeal, we give a decision by the UAC a presumption of correctness. We review the fact findings to ensure they are supported by competent, substantial evidence, and the legal conclusions to ensure they are not clearly erroneous. In the instant case, we need not even consider the UAC’s legal conclusions. Its fact findings alone require reversal for two reasons: (1) several findings are not supported by competent, substantial evidence; and (2) the findings do not address crucial portions of hearing testimony pertaining to whether Craven gave the employer a reasonable opportunity to address the harassment.

Competent, substantial evidence does not support the fact finding that Craven identified her harasser in August 2009

In its order, the UAC upheld the referee’s fact finding that Craven revealed the harasser’s identity in August 2009. There is no evidence in the record to support this finding. Indeed, Craven’s uncontested testimony was that she told Lewis — the news director — of the harasser’s identity in September 2008. This inaccuracy affects other fact findings made by the referee, such as his finding that the employer began a prompt investigation after the harasser was identified. Assuming the harasser was identified in September 2008, the investigation — which began in September 2009 — was delayed and hardly prompt.

On remand, the UAC should correct this erroneous fact finding, and assess what effect, if any, it has upon other portions of the decision.

Further fact finding is required to determine if the employer had reasonable opportunity to address the harassment

The referee’s decision — upheld by the UAC — hinged upon his finding that Craven did not give the employer a reasonable opportunity to investigate the allegations of harassment before quitting. This may indeed be true. However, the referee arrived at this conclusion with apparent disregard for certain testimony directly related to the employer’s opportunity to respond.

Of critical importance was Craven’s testimony regarding her conversation with Lewis in September 2008. According to Craven, she informed Lewis at that time of her harasser’s identity and showed him a picture the harasser had sent her of his genitals. Craven testified Lewis told her not to tell anyone of the harassment. This conversation may be integral to determining whether Craven gave the employer a reasonable opportunity to address her claims. If it is true that the conversation occurred and that Lewis told Craven to remain quiet, this might explain why she waited a full year — until September 2009— before bringing a formal complaint. The purpose of this alleged conversation is also important. If Craven went to Lewis in an attempt to report harassment and obtain relief, it may have impacted the employer’s responsibility to take action a full year before an investigation actually commenced. The question of responsibility would hinge on the context of the conversation, specifically Craven’s intent in discussing the matter.

Unfortunately, the referee made no fact findings regarding this conversation. His order fails to even mention Lewis. Without such findings, it is difficult to understand how the referee could conclude that Craven’s actions were unreasonable. For this reason, further fact findings must be made regarding Craven’s conversation with Lewis. These findings should discuss whether the conversation occurred, and, if so, Craven’s intent for broaching the subject, Lewis’ response, and what effect, if any, it had upon the employer’s duties.

Further fact finding may be required regarding the offer of reemployment

Once the UAC conducts further fact finding concerning Craven’s conversation with Lewis, it may still conclude she is ineligible for benefits. However, in the event that such further findings convince the UAC otherwise, it will have to address what effect, if any, .Craven’s refusal of the offer for re-employment had upon her claim for benefits. This was yet another area not mentioned in the referee’s order.

Craven’s decision to refuse the offer of re-employment could affect the dates of her eligibility for unemployment benefits, if such benefits are awarded. At the hearing, Craven testified she quit on September 24, 2009. She stated that although the employer extended an offer of re-employment on October 27, 2009, she declined for health-related reasons. Section 443.101(2), Florida Statutes (2009), states that if the Agency for Workforce Innovation finds an applicant for benefits “has failed without good cause to [] accept suitable work when offered to him or her,” the applicant will be disqualified from receiving unemployment benefits from that point on. “Suitable work,” for the purpose of the statute, requires the Agency to consider such factors as the degree of risk to the employee’s health and safety, as well as the employee’s physical fitness.

Here, Craven claimed the offer of reemployment was not “suitable” as it could have caused stress which would complicate her pregnancy. If Craven is correct, she would continue to be entitled to benefits after the date of the offer; however, if she is incorrect, her eligibility for unemployment benefits would cease on the date that she rejected the offer. Therefore, should the UAC find Craven eligible for unemployment benefits upon remand, it must conduct additional fact finding to discern if the position offered was “suitable” for her.

Conclusion

This appeal demonstrates the need for the UAC to demand accurate, specific fact findings from its referees. Even a cursory examination of the record shows the insufficiency of several of the referee’s findings, as well as the need for additional findings to reach his conclusion. We remind the UAC of the need to carefully review the referee’s findings, and not to sacrifice thoroughness for the sake of expediency. For these reasons, we REVERSE and REMAND for further fact findings consistent with this opinion.

WOLF and MARSTILLER, JJ., concur.

      . Molander testified that because Craven refused to identify the harasser or file a formal complaint, the employer could do nothing at that time except have each employee resign a copy of the station's sexual harassment policy, which they did in July 2008.

      . See Tallahassee Primary Care Assocs. v. Fla. Unemployment Appeals Com'n, 930 So.2d 824, 825 (Fla. 1st DCA 2006).

      . Id. at 826; see also Howell & O'Neal v. Fla. Unemployment Appeals Com'n, 934 So.2d 570, 575 (Fla. 1st DCA 2006).

      . See Gibbs v. Fla. Dep't of Commerce, 368 So.2d 651, 652 (Fla.1979) (finding a claimant was only eligible for benefits up to the date upon which her former employer offered her a comparable job).

      . See § 443.101(2)(a), Fla. Stat. (2009).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terry Lynn BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0002.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2011.

      Terry Lynn Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(B).

WOLF, HAWKES, and WETHERELL, JJ., concur.


author: CIKLIN, J.

text:
    PNC BANK, N.A., Appellant, v. PROGRESSIVE EMPLOYER SERVICES II, a Florida Limited Liability Company; Progressive Employer Services III, a Florida Limited Liability Company; Progressive Employer Services IV, a Florida Limited Liability Company; Progressive Employer Services V, a Florida Limited Liability Company; Progressive Employer Services VI, a Florida Limited Liability Company; Progressive Employer Services VII, a Florida Limited Liability Company; Progressive Employer Services, a Florida Limited Liability Company; and West Wind Holding Company, LLC, a Florida Limited Liability Company, Appellees.
    No. 4D09-1720.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      Don A. Lynn and Stephen T. Maher of Shutts & Bowen, LLP, Miami, for appellant.
    Roger Slade and Adam J. Shapiro of Pathman Lewis, LLP, Miami, for appel-lees.
   CIKLIN, J.

PNC Bank, N.A. appeals the trial court’s final order granting summary judgment in favor of Progressive Employer Services, LLC, et al. (collectively referred to as “the borrowers”) on the borrowers’ claim that PNC Bank breached the credit agreement entered into between the parties. We reverse as PNC Bank did not breach the credit agreement since the borrowers could only early terminate the fixed two-year agreement upon ninety days’ advance notice which the borrowers admit that they did not provide.

In June 2005, PNC Bank and the borrowers executed a two-year revolving credit and security agreement (the “Agreement”) whereby PNC Bank provided the borrowers with a multi-million dollar working capital credit line. To secure any outstanding money lent, PNC Bank had a lien on the borrowers’ accounts receivable. The Agreement was to remain in full force and effect until June 9, 2007. Paragraph 13.1 of the Agreement included the sole method for terminating the Agreement and releasing the lien, prior to June 9, 2007:

13.1. Term. This Agreement ... shall become effective on the date hereof and shall continue in full force and effect until June 9, 2007 (the “Term”) unless sooner terminated as herein provided.... Borrowers may terminate this Agreement at any time upon ninety (90) days prior written notice upon payment in full of the Obligations. In the event the Obligations are prepaid in full prior to the last day of the Term ..., Borrowers shall pay ... an early termination fee in an amount equal to ... .25% of the Maximum Facility Amount if the Early Termination Date occurs on or after the first anniversary of the Closing Date to and including the date immediately preceding the second anniversary of the Closing Date.

In September 2006, about nine months before the end of the agreed term, the borrowers decided to terminate the credit line. The borrowers stipulated that they did not provide the required ninety days’ prior written notice as set forth in the Agreement. PNC Bank contends that the borrowers only provided it with a one-day notice by sending a letter on September 19, 2006 advising the bank of their intention to terminate the Agreement the next day.

The borrowers acknowledged that they made a business decision to terminate the Agreement because they had obtained a credit line with another bank (HSBC) at a more favorable interest rate. The borrowers had figured that the only penalty would be the “early termination fee” of $23,750. As such, they requested that PNC Bank provide them with an “estoppel letter” stating the amount due for PNC Bank to release its lien on the borrowers’ accounts receivable. In response to the borrowers’ request, PNC Bank provided them with a letter (the “Estoppel Letter”) which set forth the total outstanding indebtedness owed to PNC Bank as of September 20, 2006. The Estoppel Letter set out the amounts that the borrowers would be required to pay PNC Bank for it to release its lien on their receivables the next day. The itemized list in the Estop-pel Letter included an “Early Termination Fee” in the amount of $23,750, and a “90 Day Written Notice” charge in the amount of $153,048.28.

In an email dated September 20, 2006, in-house counsel for the borrowers wrote to PNC Bank’s lawyer advising him that the borrowers did not dispute the Early Termination Fee but were protesting the “90 Day Written Notice” charge. In this email communication, the borrowers acknowledged that they would pay the “90 Day Written Notice” charge of $153,048.28, but claimed it was under coercion because of the “impending circumstances of having to close” their new loan that day. In this email, the borrowers’ counsel wrote that the borrowers’ decision to pay off the loan with PNC Bank, including the “90 Day Written Notice” amount, did not constitute a waiver of their rights under the loan documents. Upon receipt of the demand funds outlined in the Estop-pel Letter, PNC Bank released its lien and terminated the credit line.

Within seven months of the release and termination, the borrowers followed up with a one-count complaint against PNC Bank seeking damages for breach of contract. The borrowers sought return of the $153,048.28 “90 Day Written Notice” charge plus interest, court costs and attorney’s fees. In its answer and affirmative defenses, PNC Bank denied that it breached the Agreement and asserted the following affirmative defenses: (i) waiver and estoppel; (ii) accord and satisfaction; and (iii) anticipatory breach. PNC Bank did not assert a counterclaim in its initial answer.

The borrowers moved for summary judgment and PNC Bank filed a cross-motion for summary judgment. After a hearing on both motions, the trial court entered an order granting the borrowers’ motion for summary judgment, denying PNC Bank’s motion for summary judgment, and ordering PNC Bank to pay $193,050.49 to the borrowers ($153,048.28 for the “90 Day Written Notice” payment it had previously received and $40,002.21 as prejudgment interest).

PNC Bank filed a “Motion for Rehearing or, in the Alternative, Motion for Leave to File Counterclaim.” PNC Bank argued that prior to the trial court’s granting the borrowers’ motion for summary judgment, PNC Bank had suffered no damages as a result of the borrowers’ breach. However, PNC Bank argued, because the trial court ordered PNC Bank to return the disputed funds, PNC Bank then had a viable claim for breach of contract against the borrowers for not providing them with ninety days’ written notice prior to terminating the Agreement. The trial court denied PNC Bank’s motion and PNC Bank appealed.

Review of an order granting summary judgment is de novo. Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010). “Summary judgment is proper, if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Furthermore, “[construction of a contract is a question of law which an appellate court may consider de novo provided that the language is clear and unambiguous and free of conflicting inferences.” Miller v. Kase, 789 So.2d 1095, 1097 (Fla. 4th DCA 2001). “The contract should be reviewed as a whole and all language given effect, and where the language is clear and unambiguous, the contract should be enforced as it reads.” Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003). “[An] interpretation which gives a reasonable meaning to all provisions of a contract is preferred to one which leaves a part useless or inexplicable.” Premier Ins. Co. v. Adams, 632 So.2d 1054, 1057 (Fla. 5th DCA 1994).

Contrary to the trial court’s holding, PNC Bank did not breach the Agreement. Paragraph 13.1 of the Agreement set forth the borrowers’ sole available method to terminate the contract prior to the end of its two-year term. The early termination requirements were unambiguous: “Borrowers may terminate this Agreement at any time upon ninety (90) days prior written notice upon payment in full of the Obligations.” Thus, the borrowers had two plainly simple requirements to meet to entitle them to terminate early: 1) provide PNC Bank with ninety days’ written notice prior to the planned early termination date, and 2) pay all obligations in full by the early termination date. Pursuant to paragraph 13.2 of the Agreement, PNC Bank was not obligated to release its lien on the borrowers’ collateral “unless and until this Agreement shall have been terminated in accordance with its terms and all Obligations paid in full.”

There is no dispute that the borrowers failed to provide the required ninety days’ written notice prior to early terminating the Agreement. Accordingly, the Agreement was not terminated “in accordance with its terms.” As a result, PNC Bank was under no obligation to release its lien on the borrowers’ collateral until the two-year term ended or on the ninety-first day after receiving the required early termination notice from the borrowers. Since PNC Bank was not obligated to release its lien, PNC Bank could not have breached the Agreement by refusing to do so. See Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995) (“To establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.”). The borrowers’ only claim against PNC Bank sounded in breach of the credit Agreement. As such, the trial court erred in granting summary judgment in favor of the borrowers because, based on the undisputed facts in this case, PNC Bank did not breach the Agreement.

The borrowers’ breach of contract claim focused on the “early termination fee” which was also included in paragraph 13.1 of the Agreement. The borrowers claimed, and apparently the trial court agreed, that this “early termination fee” was essentially a liquidated damages provision which specified the total amount due to compensate PNC Bank if the borrowers terminated the Agreement early — regardless of whether the required ninety day notice was provided. Such a contractual interpretation, however, would give no effect to the “ninety (90) days prior written notice” language in the same paragraph. Instead, “an interpretation which gives a reasonable meaning to all provisions of a contract is preferred to one which leaves a part useless or inexplicable.” Premier Ins. Co., 632 So.2d at 1057. Therefore, the more reasonable interpretation of the Agreement is that the borrowers could only terminate the contract early by 1) providing the ninety days’ prior written notice and 2) paying all obligations (including the early termination fee).

In essence, PNC Bank’s Estoppel Letter was its unilateral offer to the borrowers whereby it agreed to immediately release the collateral even without the required ninety day early termination notice. The borrowers were not obligated to accept PNC Bank’s offer and instead they simply could have waited for ninety days.

PNC Bank has also appealed the trial court’s denial of its motion to amend its answer to include a counterclaim for breach of contract. PNC Bank argued that prior to the trial court’s granting the borrowers’ motion for summary judgment and essentially ordering the borrowers to return the “90 Day Written Notice” charge (by entering a final monetary judgment in a like amount), PNC Bank had suffered no damages as a result of the borrowers’ breach. Once PNC Bank was ordered to make the payment, however, PNC Bank incurred- damages as a result of the borrowers’ alleged breach and therefore should have been permitted to amend its complaint.

The standard of review of a trial court’s denial of leave to amend to add a counterclaim is abuse of discretion. Dimick v. Ray, 774 So.2d 830, 882 (Fla. 4th DCA 2000). A trial court’s refusal to allow amendment, however, generally constitutes an abuse of discretion “unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.” Fields v. Klein, 946 So.2d 119, 121 (Fla. 4th DCA 2007). “A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment.” Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422 (Fla. 5th DCA 2003).

Here, PNC Bank did not abuse the privilege to amend as this was its first motion to amend. Furthermore, allowing the amendment, would not clearly prejudice the borrowers as the counterclaim merely restated issues which were already present in the case. See Newman v. State Farm Mut. Auto. Ins. Co., 858 So.2d 1205, 1206 (Fla. 4th DCA 2003). Finally, it does not appear from the record that PNC Bank’s amendment would be futile as it was legally sufficient to state a counterclaim for breach of contract. See Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009) (“A proposed amendment is futile if it is insufficiently pled, or is ‘insufficient as a matter of law.’ ” (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999))). Thus, the trial court should have permitted PNC Bank to amend its pleadings.

Because the matter came before the trial court on cross-motions for summary judgment, we reverse the final summary judgment entered in favor of the borrowers and remand with instructions to the trial court to enter summary judgment in favor of PNC Bank. If PNC Bank believes it is necessary, the trial court shall grant its motion for leave to amend its answer. If the borrowers believe further litigation is required — even in light of our holding — they too should be permitted to amend their pleadings.

Reversed and remanded for further proceedings consistent with this opinion.

HAZOURI and LEVINE, JJ., concur.

      . It was PNC Bank's position that $153,048.28 represented the amount of interest that the borrowers would have paid to the bank if the credit line had remained open for an additional ninety days. That is, had PNC Bank received the ninety day termination notice to which it was entitled, it would have been entitled to $153,048.28 in interest.

      . The borrowers have acknowledged that they engaged in a cost-benefit analysis in conjunction with their business decision to terminate the credit line with one-day notice to PNC Bank. The borrowers apparently concluded that the rate of interest offered by HSBC Bank made immediate refinancing worth the penalties associated with breaching the Agreement. Whether the $153,048.28 charge was warranted or was otherwise a fair estimation of the loss PNC Bank incurred by not receiving the contractually required ninety days’ notice is perhaps another issue but is not part of this appeal.


author: GERBER, J.

text:
    Kenneth SEARCY, as Personal Representative of the Estate of Sue Ellen Kelly, deceased, Appellant, v. Lynn ZAWACKIS and FedEx Express, Appellees.
    No. 4D09-3605.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Rehearing Denied March 28, 2011.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, William W. Price, P.A., West Palm Beach, and Ned C. Lofton, P.C., Stoneham, Massachusetts, for appellant.
    David P. Herman and Michael G. Shannon of Murray, Morin & Herman, P.A., Coral Gables, for appellees.
   GERBER, J.

We reverse the circuit court’s summary final judgment in the defendants’ favor in this negligence case involving a two-vehicle crash resulting in one driver’s death. The defendants did not meet their burden of showing the absence of any genuine issue of material fact regarding the defendant FedEx driver’s alleged lack of negligence.

The crash occurred at an intersection a few days after Hurricane Wilma struck Palm Beach County. Due to the hurricane, the intersection’s traffic lights were inoperative. In such a situation, Florida law requires motorists to treat the intersection as a four-way stop. See § 316.1235, Fla. Stat. (2005) (“The driver of a vehicle approaching an intersection in which the traffic lights are inoperative shall stop in the manner indicated in s. 316.123(2) for approaching a stop intersection.”); § 316.123(2)(b), Fla. Stat. (2005) (“At a four-way stop intersection, the driver of the first vehicle to stop at the intersection shall be the first to proceed.”). The local municipality also had placed stop signs facing all four directions of the intersection as a substitute traffic control device.

On the day in question, the defendant FedEx driver was stopped at the intersection facing west. She intended to make a left turn to head south. At her deposition, she described how she proceeded forward:

I keep looking left, you know, and I glanced to the right because there was no one there, but I glanced to the left and keep looking left until I’m inching slowly forward, forward and I don’t see anything. But when I first initially would come off the line, you look left, right, left[,] make sure there’s no pedestrians, bicycles, whatever. There was no one there you could see. So, as far as I’m going into the lane, I constantly look mostly left with my eyes scanning back and forth.

The FedEx driver later described the first time she saw the decedent’s car, which entered the intersection from her left:

A. ... When my eyes started going right ... in the corner of my eye I see a flash, white ...
Q. So you saw the white car out of your peripheral vision on your left? A. Yes.
Q. Split second before impact?
A. Split second. That was it, split second. Don’t know where she came from.

A northbound driver who was approaching the intersection was deposed. He testified as to what he saw:

I saw the FedEx truck sitting at the four-way stop and [the decedent’s] car came blowing past me.... I looked down at my speedometer and I was speeding. I was doing about 42, and it’s a 35 mile an hour [zone]. And I looked up at [the decedent] and I said, wow, she’s really going fast. And ... when I was coming up before [the decedent] passed me I saw the FedEx truck at the intersection. [The FedEx driver] started to pull out in the right of way because there was no traffic on that side and there was none here. She started to pull out and I just, I was on the phone ■with my girlfriend. I said, oh, my God, honey, [the decedent’s] driving straight through the stop signs. She never hit the brakes, nothing. The car hit the FedEx truck so hard that the whole rear end of the car came up off the ground....

A southbound driver who was stopped at the intersection also was deposed. He testified that when he stopped at the intersection, he looked ahead and saw that the FedEx truck “was next in line to go, and so ... I was looking straight at the driver.” He then testified that he saw the FedEx driver look

right, left, and then she looked down, and then she looked right again and straight ahead, and went to move forward. There were no cars coming. And she moved out into the intersection and then [the decedent’s] car came flying into the intersection and barely had time to put her brakes on, hit the FedEx truck.

(emphasis added). When asked for more detail about the FedEx driver looking down before moving forward, the southbound driver testified:

She wasn’t looking at the dashboard. She was looking between the seats. She looked down at something. I don’t know what she was looking at but I could see her head moved down like that, some brief preoccupation.

The southbound driver added that the FedEx driver looked down for approximately two to three seconds, and never looked left again before the crash occurred.

The FedEx driver testified that there is a communications unit bolted onto the engine compartment in the truck’s center “down lower.” She also testified that she kept on her hip a handheld computer pad for getting addresses and signatures for deliveries. However, she testified that she did not look down at the communications unit or the computer pad in between looking left and entering the intersection.

The decedent’s estate filed a negligence action against the FedEx driver and against FedEx for vicarious liability. The defendants’ answer alleged, among other affirmative defenses, that the decedent was negligent and that she failed to follow the applicable traffic laws.

The defendants later moved for summary judgment alleging that the evidence “unequivocally demonstrate^] that: (1) the accident occurred in a four-way-stop intersection; (2) the accident occurred while [the FedEx driver] had the right-of-way; (3) the ... decedent failed to stop at the stop sign governing her direction of travel; (4) [the] decedent was speeding ...; and (5) [the FedEx driver was] not a contributory cause of the accident as a matter of law.”

The estate responded that the FedEx driver’s testimony of having “looked right and left” before proceeding through the intersection

is the primary fact which [the estate] believes is inaccurate based on witness testimony of [the southbound driver]. The disagreement on this particular fact creates a material fact issue, which thus precludes Summary Judgment....
... Based on the eyewitness testimony of [the southbound driver] ..., [the FedEx driver] after looking left looked to her right and then was distracted for approximately three seconds when she was looking down in between her seats. She then looked up and forward and then to the right again, but never looking to her left. Therefore, several seconds elapsed since she had last looked left. Obviously, traffic conditions would have changed over the several seconds before she entered into this dangerous intersection....

The estate then relied on its accident reconstructionist’s deposition testimony that, viewing the facts as the southbound driver described, the FedEx driver was a contributing cause to the accident “because she did not make certain that northbound traffic was clear prior to proceeding into the intersection as she was looking down prior to pulling out and did not look left.” According to the accident reconstructionist’s calculations, the FedEx driver had a clear view of northbound traffic for 300 to 400 feet, and the decedent’s car would have been visible 131 feet away at two seconds before the crash.

After hearing argument, the circuit court entered a summary final judgment in the defendants’ favor.

This appeal followed. The parties’ arguments basically mirror those which they raised in the circuit court. We review a circuit court’s decision to grant summary judgment de novo. Rosemont Farms Corp. v. Blueberries, S.A., 48 So.3d 207, 208 (Fla. 4th DCA 2010).

As our supreme court stated in Moore v. Morris, 475 So.2d 666 (Fla.1985):

The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by [the jury].

Id. at 668 (internal citations omitted).

We find that the defendants did not show conclusively the absence of any genuine issue of material fact regarding the FedEx driver’s alleged lack of negligence. The FedEx driver testified that she did not look down between looking left and entering the intersection, while the southbound driver testified that she looked down for two to three seconds and then failed to look left again before entering the intersection. Whether the FedEx driver looked down and then failed to look left again is material because, if that occurred, then the two to three seconds of delay may have been sufficient for her to see the decedent speeding towards the intersection in the northbound lanes. Thus, a jury could determine that, even though the FedEx driver had the right-of-way, her alleged failure to look left again before entering the intersection was negligence, and that such negligence was a legal cause of the decedent’s death. See § 316.123(2)(a), Fla. Stat. (2005) (“After having stopped [at a stop sign], the driver shall yield the right-of-way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.”); see also Gordon’s Tractor Serv., Inc. v. Bilello, 336 So.2d 1208, 1209 (Fla. 2d DCA 1976) (“The true rule is that even though another has violated his right of way, the favored driver must still take such reasonable steps as are available to him to avoid the collision.”).

The defendants argue there is no evidence that the decedent constituted an immediate hazard at the time the FedEx driver entered the intersection, and that the estate’s alleged issue of material fact is based upon an impermissible stacking of inferences. For the reasons described in the previous paragraph, we summarily reject those arguments based on the direct evidence which the southbound driver provided at his deposition.

The defendants further argue that they should be absolved from liability as a matter of law because a driver is entitled to assume that others will obey the traffic laws and will stop at a stop sign. However, the primary case upon which the defendants rely for that proposition, MacNeill v. Neal, 258 So.2d 268 (Fla. 2d DCA 1971), actually demonstrates that, despite such assumptions, a driver still must exercise reasonable care before entering an intersection.

MacNeill involved a collision at an intersection with a traffic light. The defendant’s car ran a red light and struck the plaintiffs vehicle. The trial court directed a verdict on the issue of liability in favor of the plaintiff. The defendant appealed, contending that the issue of whether the plaintiff was contributorily negligent was a question for the jury. The second district affirmed, reasoning:

A motorist about to enter an intersection with the traffic signal in his favor has the right of way. He also has a right- to assume others will obey the law and exercise due care to avoid an accident. However, even though he has a .favorable light he must exercise reasonable care to determine that there is no impending traffic which would impede safe passage through the intersection. He has not exercised reasonable care once he knows or should have known that another motorist is going to run a red light and he has a clear opportunity to avoid the collision. Therefore, the issue in this case is whether or not there is any evidence, directly or inferentially, to suggest that the [plaintiff] did not exercise reasonable care in entering the intersection.
The evidence is quite clear ... that the [plaintiff], prior to entry into the intersection, looked to his left and was only able to see one car which was stopped waiting for the signal to change, and that there was nothing to alert the [plaintiff] that the [defendant] was about to enter the intersection against the red light.
It would appear from this evidence that the [plaintiff] exercised reasonable care in entering the intersection and that the lower court properly directed a verdict in favor of [the plaintiff] on the question of liability.

253 So.2d at 264 (internal citations omitted; emphasis added).

Here, in contrast, the southbound driver’s testimony indicates that the FedEx driver did not look to her left in the last two to three seconds before entering the intersection. Further, the accident recon-structionist’s testimony indicates that, if the FedEx driver had looked to her left in those last two to three seconds, then the decedent’s car would have been in plain view to alert the FedEx driver that the decedent was about to run the stop sign. Thus, it would appear from the evidence in this case that a genuine issue of material fact remains as to whether the FedEx driver exercised reasonable care before entering the intersection. As such, the summary final judgment must be reversed.

Reversed.

WARNER and STEVENSON, JJ., concur.


text:
    Dr. Massood JALLALI, Appellant, v. NOVA SOUTHEASTERN UNIVERSITY, INC., Appellee.
    No. 4D09-3401.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Rehearing Denied March 29, 2011.
    Dr. Massood Jallali, Davie, pro se.
    Richard A. Beauchamp and Jason R. Friedman of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The plaintiffs third amended complaint alleged that the defendant committed fraudulent and negligent misrepresentation. Specifically, the plaintiff alleged that, after the defendant dismissed him from its school of osteopathic medicine, the defendant misrepresented to a national examining board as to whether he was “approved” or “not approved” to sit for a certification exam. The defendant moved for summary judgment on the basis that it had not made any misrepresentation. At the hearing on the motion, the circuit court orally granted the motion. The court then entered a written final judgment containing detailed findings of fact and conclusions of law supporting the oral ruling.

The plaintiff raises two arguments on appeal. First, the plaintiff argues that genuine issues of material fact remain regarding whether the defendant’s decisions as to his approval status were arbitrary and capricious and thereby constituted an actionable misrepresentation. Second, the plaintiff argues that the circuit court’s written final judgment was inconsistent with its oral ruling.

We affirm on both arguments. First, the defendant’s affidavits established without genuine issue of material fact that, regardless of the reasoning behind its decisions as to the plaintiffs approval status, its representations of those decisions to the examining board were true. Thus, the defendant was entitled to summary judgment on both of the plaintiffs claims. See Butler v. Yusem, 44 So.3d 102, 105 (Fla.2010) (first element of a fraudulent misrepresentation claim is “a false statement concerning a material fact”) (citation omitted); Fla. Women’s Med. Clinic, Inc. v. Sultan, 656 So.2d 931, 933 (Fla. 4th DCA 1995) (first element of a negligent misrepresentation claim is “a misrepresentation of material fact”) (citation omitted).

Second, the circuit court’s written final judgment was not inconsistent with its oral ruling. The written final judgment merely provided more detailed findings of fact and conclusions of law supporting the oral ruling. See Carter v. Capri Ventures, Inc., 845 So.2d 942, 944 (Fla. 5th DCA 2003) (“Review of the record demonstrates that the written summary judgment order is consistent with the oral ruling issued by the trial court at the conclusion of the summary judgment hearing.”).

Affirmed.

WARNER and STEVENSON, JJ., concur.


text:
    Kevin L. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6473.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2011.
    Kevin L. Hall, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Edwards v. State, 36 Fla. L. Weekly D216 (Fla. 1st DCA Feb. 4, 2011).

KAHN, DAVIS, and HAWKES, JJ., concur.


author: BLACK, Judge.

text:
    Ernest D. BENNETT, Appellant, v. Mike WELLS, Pasco County Property Appraiser; Ann Hildebrand, Chairman, Value Adjustment Board; and Jed Pittman, Clerk, Value Adjustment Board, Appellees.
    No. 2D09-2996.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.

      Ernest D. Bennett, pro se.
    Loren E. Levy and Larry E. Levy of The Levy Law Firm, Tallahassee, for Ap-pellee Mike Wells, Pasco County Property Appraiser.
    Catherine P. Teti, Tampa, for Appellee Ann Hildebrand, Chairman, Value Adjustment Board.
    No appearance for Appellee Jed Pittman, Clerk, Value Adjustment Board.
   BLACK, Judge.

Ernest D. Bennett appeals the order dismissing with prejudice his complaint against the Pasco County property appraiser and the chairman of the Value Adjustment Board (VAB). Mr. Bennett also sued the clerk of the VAB, who was formerly clerk of the circuit court. The dismissal as to the clerk was a nonfinal order, the clerk is not a party to this appeal, and we do not address any claims against him. We affirm the circuit court’s dismissal of Mr. Bennett’s suit against the chairman of the VAB without comment but reverse and remand the dismissal of the suit against the property appraiser.

Mr. Bennett filed his lawsuit pursuant to section 194.171, Florida Statutes (2008), challenging the denial of a homestead exemption for the 2007 tax year. Section 194.171 governs suits against the property appraiser contesting tax assessments and provides that a taxpayer must file his complaint within sixty days from the date the tax assessment is certified for collection or within sixty days from the date a decision is rendered by the VAB as to such assessment. § 194.171(2). In Mr. Bennett’s case, he was required to file his lawsuit within sixty days of January 7, 2008, the date of the VAB’s decision upholding the property appraiser’s denial of the homestead exemption.

Following the filing and service of Mr. Bennett’s complaint, all three defendants filed motions to dismiss. The property appraiser’s motion was filed pursuant to Florida Rule of Civil Procedure 1.420(b), involuntary dismissal, and was intended to dismiss the entire action. Two bases for dismissal were raised: first, that the circuit court lacked subject matter jurisdiction because Mr. Bennett’s lawsuit was date-stamped August 2008, well beyond the March 2008 deadline; and second, that service of process was untimely, in violation of rule 1.070(j). The motion was not verified and no affidavits were filed. Following a twenty-three-minute hearing on all three defendants’ motions, at which counsel for the defendants argued their positions and Mr. Bennett, appearing pro se, was given an opportunity to respond, the circuit court granted the motions to dismiss. The court expressly granted the property appraiser’s motion based upon section 194.171 but denied it as to the service of process issue.

We first note that the appropriate vehicle for the property appraiser’s motion to dismiss was rule 1.140, not rule 1.420(b). A rule 1.420(b) “motion for involuntary dismissal is the proper method by which a defendant may obtain a judgment in his favor following the presentation of the plaintiffs case in chief.” Valdes v. Ass’n I.N.E.D., H.M.O., Inc., 667 So.2d 856, 856 n. 1 (Fla. 3d DCA 1996); see also Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989) (concluding a motion to dismiss pursuant to rule 1.420(b) is used in nonju-ry trials and was previously referred to as a motion for directed verdict). Here, no evidence or testimony was presented to the court prior to or during the hearing. Because Mr. Bennett had not been afforded the opportunity to present his case to the coui’t, a rule 1.420(b) motion to dismiss was improper. In contrast, a rule 1.140 motion to dismiss for lack of subject matter jurisdiction may be made at any time or may be stated as an affirmative defense in a responsive pleading. Fla. R. Civ. P. 1.140(b), (h)(2).

Nevertheless, in his motion to dismiss, the property appraiser correctly argued that the sixty-day filing period in section 194.171 is not a statute of limitation or repose but is a jurisdictional requirement. See Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 815 (Fla.1988) (“No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (8) [of section 194.171] have been met”). Therefore, the argument continued, because Mr. Bennett’s lawsuit was date-stamped August 20, 2008, the court lacked jurisdiction. The motion, however, does not address Mr. Bennett’s allegations that the clerk of the court failed to process his case properly and that Mr. Bennett spoke with an employee of the clerk’s office who informed him that his case had been mistakenly filed under a “dead case number.”

Regardless of the rule under which the motion was filed, as the moving party, the property appraiser had the burden of establishing the claim made in the motion — that Mr. Bennett’s lawsuit was untimely filed. Florida Rule of Civil Procedure 1.080(e) provides, “The date of filing is that shown on the face of the paper by the judge’s notation or the clerk’s time stamp, whichever is earlier.” “[T]he file marking is merely evidence of filing but is not essential to the validity of the document.” Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So.3d 741, 743 (Fla.2010); see also Cook v. Walgreen Co., 399 So.2d 523, 524 (Fla. 2d DCA 1981) (concluding the date shown by the filing stamp is only the presumptive date of filing and that such presumption may be rebutted by other evidence). “[T]he intent of rule 1.080(e), as amended in 1984, is to create a rebuttable presumption that the filing date is the date shown by the clerk’s time stamp placed on the face of the document.” Strax, 49 So.3d at 744.

In those rare cases in which a paper is delivered to the clerk’s office within the jurisdictional time frame, but for some reason — through inadvertence or error — is not timely stamped by the clerk, the litigant will be denied a just determination of the action if the litigant is precluded from presenting competent, substantial evidence to prove that the deadline was met.

Id.

In evaluating factual matters, “unproven utterances documented only by an attorney are not facts that a trial court or this court can acknowledge.” Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991). “ ‘The [c]ourt may receive testimony on a preliminary question to determine its jurisdiction, and is not bound to dismiss the suit on a mere allegation of lack of jurisdiction, but may inquire into the correctness of the averment.’ ” Hernandez v. Coopervision, Inc., 661 So.2d 33, 35 (Fla. 2d DCA 1995) (emphasis omitted) (quoting State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175, 177 (1939)); see also Barnes v. Ostrander, 450 So.2d 1253, 1254 (Fla. 2d DCA 1984) (“Speaking motions with supporting affidavits may be filed in order to attack jurisdiction over the subject matter.”). “The only possible basis in the record for the trial court’s conclusion is [the property appraiser’s] version of the facts documented by its attorney” in the motion to dismiss. See Hernandez, 661 So.2d at 35. The circuit court “did not make a sufficient evidentia-ry inquiry into the correctness of the ap-pellee[’s] allegation that the court did not possess subject matter jurisdiction.” See id.

Our record, including the motion to dismiss and the transcript of the hearing, establishes that the property appraiser failed to meet his burden. Mr. Bennett’s lawsuit and the date-stamp thereon were not admitted into evidence at the hearing. Only the arguments of the attorneys and Mr. Bennett were presented to the court. Therefore, the property appraiser failed to establish by any competent, substantial evidence that the circuit court did not have subject matter jurisdiction over Mr. Bennett’s lawsuit. We also note that had the property appraiser met his burden, Mr. Bennett would have been given an opportunity to submit evidence rebutting the presumption created by the date-stamp on his lawsuit.

Accordingly, we reverse the circuit court’s order granting the property appraiser’s motion to dismiss with prejudice. Our reversal is without prejudice to the property appraiser to again raise the question of subject matter jurisdiction. If raised, the circuit court should conduct an evidentiary hearing as discussed above.

Reversed and remanded for further proceedings.

DAVIS and CRENSHAW, JJ., concur.


author: NORTHCUTT, Judge.

text:
    ALL CHILDREN’S HOSPITAL, INC.; and Florida Birth-Related Neurological Injury Compensation Association, Appellants, v. DEPARTMENT OF ADMINISTRATIVE HEARINGS; Courtney Lynn Glenn, a minor, by and through Gregory H. Fisher, as court-appointed guardian of the property of Courtney Lynn Glenn; Anna Lentini, f/k/a Anna Glenn; and Christopher Glenn, individually; Appellees.
    No. 2D02-1638.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.

      C. Howard Hunter and Marie A. Bor-land of Hill, Ward & Henderson, P.A., Tampa, for Appellant All Children’s Hospital, Inc.
    Kenneth J. Plante, Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Brewton Plante, P.A., Tallahassee, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    No appearance for Appellee Department of Administrative Hearings.
    Steven C. Ruth and Jennifer R. Beltz of Beltz & Ruth, P.A., St. Petersburg, for Appellees Courtney Lynn Glenn and Anna Lentini.
    Timothy F. Prugh of Prugh <& Associates P.A., Tampa, for Appellee Christopher Glenn.

      . Judges Altenbernd and Whatley have been substituted for Judges Canady and Stringer.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

NORTHCUTT, Judge.

This case previously was before us on appeal from a proceeding under the Florida Birth-Related Neurological Injury Compensation Act (NICA). All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings, 863 So.2d 450 (Fla. 2d DCA 2004). The supreme court quashed our decision and remanded, Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705 (Fla.2007), whereupon we rendered another decision in the case, All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings, 989 So.2d 2 (Fla. 2d DCA 2008). The supreme court has quashed our second decision, as well, and again it has remanded the case to us for further consideration. Fla. Birth-Related Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So.3d 992 (Fla.2010).

This litigation began when Gregory and Anna Glenn filed suit seeking damages for severe injuries suffered by their daughter during labor or birth or shortly thereafter. The Glenns sued and eventually settled with the obstetrician who delivered the child, his professional partnership, and Bayfront Hospital, where the child was born. The suit proceeded against the remaining defendant, All Children’s Hospital, the employer of the neonatal nurses who attended the child just after her birth.

All Children’s asserted that it was immune from tort liability under NICA, section 766.303(2), Florida Statutes (1997), and that the Glenns’ exclusive remedy was to pursue a claim against the Florida Birth-Related Neurological Injury Compensation Plan. Accordingly, the circuit court abated the lawsuit to permit the Glenns to obtain an administrative determination as to whether their child had suffered a compensable injury under NICA. The NICA proceeding produced a holding by the administrative law judge that the Glenns had not received notice of the defendants’ participation in the plan sufficient to deprive the Glenns of their right to sue in tort. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 311 (Fla.1997) (holding that giving the statutory NICA notice is a condition precedent to immunity from tort liability). Having held that the Glenns’ remedies were not limited to making a NICA claim, and the Glenns declaring their intention to proceed with their lawsuit in circuit court, the administrative law judge forwent determining whether the child’s injury was compensa-ble under NICA.

The NICA notice requirement is set forth in section 766.316. It provides that each physician who participates in the plan and each hospital with plan participants on its staff must give notice to their obstetrical patients explaining the plan, its limitations, and the patients’ rights under it. The administrative law judge reasoned that all medical providers involved in an event giving rise to a NICA-compensable injury must have complied with then* respective statutory notice obligations, else none of them enjoy immunity from tort liability. In this case, the obstetrician was required to give notice of his participation in the plan, and he did. Bayfront, a hospital with plan participants on its staff, was also obliged to give notice, but it did not. All Children’s, which does not offer obstetrical services and therefore has no plan participants on its staff, was not required to give notice. Nevertheless, because Bayfront failed to give the notice required of it, the administrative law judge held that All Children’s could not invoke NICA immunity. In our most recent decision in the case, we took the opposite position, reasoning that the giving of notice by a single provider was sufficient to immunize all of them from tort liability. Thus, we held that the obstetrician’s notice was sufficient to immunize All Children’s notwithstanding that Bayfront had failed to give its required notice. All Children’s Hosp., 989 So.2d at 3.

When quashing our last decision, the supreme court determined that both the administrative law judge’s reasoning and ours were flawed. Fla. Birth-Related Neurological Injury Comp. Ass’n, 29 So.3d at 999. The NICA notice requirements are severable, the court wrote. Whereas a provider that has given a required notice under NICA is shielded from tort liability, a provider that has failed to give a required notice is not so immunized. The court held that if one of several providers has failed to give a required notice of its participation in the plan, the plaintiff may choose to (1) accept NICA remedies and forgo any tort action against any provider involved in the labor or delivery, or (2) pursue a tort action only against the provider who failed to give the notice required of it and forgo any NICA remedies altogether. Id.

Under a pure application of the supreme court’s ruling, the Glenns could not sue All Children’s in tort for a NICA-compensable injury because All Children’s did not fail to give a required notice. However, the supreme court has tendered two additional issues for our consideration.

The Glenns argue that All Children’s does not have NICA immunity because it is an agent of Bayfront and that, consequently, Bayfront’s failure to provide notice is imputed to All Children’s. In the alternative, the Glenns argue that All Children’s is not immune from civil suit because the injuries claimed against All Children’s did not occur during labor, delivery, or immediate post resusci-tative efforts. Because the Glenns’ additional arguments for All Children’s lack of immunity have not been addressed at the Second District, we remand for consideration of these issues.

Fla. Birth-Related Neurological Injury Comp. Ass’n, 29 So.3d at 1000.

Neither of the remanded issues had been presented to us theretofore. As mentioned, the administrative law judge did not decide whether the injuries at issue are compensable under NICA. Therefore, we have had no occasion to review any such decision, and of course, the fact-finding necessary to resolve the issue is beyond our purview.

The other matter remanded for our consideration — the Glenns’ contention that Bayfront’s failure to give notice must be imputed to All Children’s because they were in an agency relationship — also is entirely new to us. It has never been briefed in this court. Indeed, All Children’s maintains that the Glenns never advanced this position in the proceedings below. Our examination of the record on appeal confirms this.

We are confident that, when remanding the agency issue to us, the supreme court was mindful that we may base our decision only on arguments that were preserved in the lower tribunal. See Aills v. Boemi, 29 So.3d 1105 (Fla.2010). For this reason, we may not affirm the administrative law judge’s order on the basis of the agency theory advanced for the first time in the supreme court. Thus, we limit our consideration of the matter to the observations made above, and as regards this issue we leave the parties to their own devices on remand.

The order of the administrative law judge under review is reversed. We express no opinion on either issue remanded to us in Florida Birth-Related Neurological Injury Compensation Ass’n v. Department of Administrative Hearings, 29 So.3d 992 (Fla.2010), and we remand for further proceedings consistent with that decision.

Reversed and remanded.

ALTENBERND and WHATLEY, JJ., Concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6008.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2011.
    Shernerd Richardson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, DAVIS, and HAWKES, JJ, concur.


text:
    Glen McLEROY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0586.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2011.
    Glen McLeroy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, DAVIS, and HAWKES, JJ, concur.


author: PER CURIAM-

text:
    James CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0316.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    James Clark, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM-

By petition for writ of mandamus filed with the Florida Supreme Court and transferred to this court, Inmate James Clark seeks to compel this court to rule on a petition purportedly pending before this court which seeks belated appeal from an order that denied postconviction relief. Although the Florida Supreme Court would appear to be the proper forum for this mandamus petition, see State ex rel. Florida Real Estate Comm’n v. Anderson, 164 So.2d 265 (Fla. 2d DCA 1964), we elect not to transfer the petition back to the Florida Supreme Court but instead will address the merits.

A diligent search of this court’s files through its case management system has not revealed the filing of the petition seeking belated appeal at issue. Accordingly, the petition for writ of mandamus is hereby denied. See Clark v. State, 954 So.2d 685 (Fla. 1st DCA 2007). This disposition is without prejudice to petitioner’s right to file in this court a petition seeking a belated appeal with the date stamp reflecting when it was originally given to prison officials for mailing.

PETITION DENIED.

WOLF, HAWKES, and WETHERELL, JJ., concur.


text:
    Tracy L. PULLAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1654.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.

      Jeffrey E. Lewis, Regional Conflict Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals his judgment and sentence for possession of a controlled substance. The appellant’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla. 991). After a careful review of the record, we find no error in the appellant’s judgment and sentence. However, we reverse and remand with directions to correct the judgment for fines and costs by striking a $200 fine, a $10 surcharge, and a $20 court cost.

The written judgment for fines and costs includes a $200 fine under section 775.083, Florida Statutes (2009). Fines under section 775.083 are discretionary and must be orally pronounced at sentencing. See Dadds v. State, 946 So.2d 1129, 1130 (Fla. 2d DCA 2006). In the instant case, because it failed to orally pronounce it at sentencing, the trial court erred in imposing the fine and it must be stricken.

The written judgment for fines and costs also includes a $10 surcharge under section 938.04, Florida Statutes (2009), and a $20 court cost under section 934.06, Florida Statutes (2009). Section 938.04(1) authorizes a five percent surcharge on “any fine for any criminal offense prescribed by law.” Section 938.06(1) authorizes a $20 court cost “in addition to any fine prescribed by law.” In the instant case, because the trial court erred in imposing the $200 fine, the trial court also erred in imposing the $10 surcharge and the $20 court cost and both must be stricken. See Dadds, 946 So.2d at 1130.

Accordingly, we affirm the judgment and sentence but remand for the entry of a correct judgment for fines and costs striking the $200 fine, the $10 surcharge, and the $20 court cost.

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    James Keith LEIGHTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3013.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2011.

      Terry L. Locy of the Law Firm of Terry L. Locy, P.A., Cocoa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

James Keith Leighton (Petitioner) filed a Petition for Writ of Habeas Corpus with this court asserting that the pretrial bail set in his criminal case in the amount of 1.6 million dollars was tantamount to no bond at all and the trial court’s refusal to reduce excessive bond was an abuse of discretion. We grant the petition and order the trial court to either set a reasonable bond or detain the petitioner without bond and set forth the reasons therefor.

Petitioner was originally arrested for the offenses of attempted first degree murder (count one), shooting a missile into a structure or vehicle (count two) and the use of a weapon in the commission of a felony (count three). A cumulative bond amount was set at 1.6 million dollars.

At no time did the State request detention pursuant to Florida Rule of Criminal Procedure 3.132, even though the petitioner was charged with a first degree felony punishable by up to life imprisonment. See Art. 1, Sec. 14, Fla. Const. In fact, the record reveals that defense counsel initially and incorrectly stated that the trial court could not detain the petitioner without the setting of bond, because none of the charges filed constituted a capital offense. Neither the State nor the trial judge questioned this assertion, and no request was made to deny bond. Testimony and evidence were then taken regarding the factors set forth in Florida Rule of Criminal Procedure 3.131(b)(3) and Florida Statute Section 903.046(2). Significantly, the petitioner is a 23 year old with no assets and he earns approximately $400 per week. Therefore, although the trial court found that the crimes charged are particularly egregious and the petitioner “continues to represent a potential danger to the community,” the bond amount set is excessive based on the petitioner’s financial situation and cannot stand. See Best v. State, 28 So.3d 134 (Fla. 5th DCA 2010). The petitioner is entitled to a new bond hearing wherein the lower court must either set a reasonable bond or detain the petitioner without bond, supported by appropriate findings.

PETITION GRANTED; REMANDED.

SAWAYA, PALMER, and JACOBUS, JJ. concur.


text:
    Simmie KENDRY, Appellant, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D10-1502.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2011.
    Simmie Kendry, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 878 So.2d 1236 (Fla.2004); see also Buford v. State, 403 So.2d 943 (Fla.1981); State v. Wells, 466 So.2d 291 (Fla. 2d DCA 1985); Cooper v. State, 453 So.2d 67 (Fla. 1st DCA 1984).

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


text:
    William T. SELF, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2813.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.

      Robert Wesley, Public Defender and Michelle Yard, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

William T. Self petitioned this Court for a writ of prohibition to prevent his criminal prosecution in Orange County Circuit Court based on a violation of the speedy trial rule. We granted the petition on October 13, 2010, and ordered the court to discharge Self in case no. 2010-CF-000532-0, with this opinion to follow.

Self was arrested on January 13, 2010, for failure to register as a sex offender. On May 26, 2010, the State filed a notice of its intent to rely on business records at trial. A month later, Self filed an objection to the use of those records, relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that testimonial hearsay is inadmissible at trial unless the declarant is unavailable and the defendant had a prior meaningful opportunity to cross-examine the declarant. The case was called up for pretrial conference and trial was scheduled during the week of July 19, 2010, but no mention was made at that time of Selfs Crawford objection.

On July 20, 2010, when the case was called for trial, the State informed the trial court of Selfs Cravxford objection to the use of the business records. The State advised the court that it had not subpoenaed the record custodians and needed more time to do so. After a lengthy discussion concerning the admissibility of the business records, the State requested a pre-trial hearing on that issue. The court continued the trial, charging the continuance to Self based on his continued Crawford, objection to the use of the business records.

Two days later, on July 22, 2010, Self filed a notice of expiration of speedy trial. The State scheduled a hearing on Selfs business records objection, presumably to allow the trial to commence before August 5, 2010, the last day of the recapture period. While a hearing was held as scheduled on August 5, 2010, it was held before a substitute judge. At that hearing, the State indicated that it was prepared to start the trial that same day due to the recapture deadline, but asked the court to first address the issue regarding the admissibility of the business records. The substitute judge declined to rule on any issue. No further arguments were made and no ruling issued from that hearing. The State did not request an extension of the speedy trial period (and likely would not have been entitled to one) and there was no indication that any further action was taken with regard to the matter until August 9, 2010, when Self filed a motion for discharge. On August 11, 2010, the trial judge denied that motion, again determining that Self had waived speedy trial based on the earlier continuance that was attributed to him. The court also denied Selfs Crawford objection to use of the business records and set the trial for the two-week period beginning on November 1, 2010.

Self then petitioned this Court for a writ of prohibition on speedy trial grounds, claiming that he did not waive speedy trial; that the continuance was improperly charged to him; and that the State had failed to bring him to trial within 175 days from the date of arrest, or within the 15-day recapture period. In its response, the State asserted that Self waived speedy trial by filing an objection to the use of business records, which required a pretrial hearing.

Prohibition is an appropriate remedy where there has been an improper denial of the right to speedy trial. Fla.R.App. P. 9.100(a); Lowe v. Price, 437 So.2d 142, 143 (Fla.1983). To determine whether Self was entitled to relief, this Court is required to determine whether the trial court properly attributed the continuance of the trial to Self, thereby waiving speedy trial. If the continuance was not properly attributed to Self, then this Court must determine whether the State’s attempt to commence trial before the end of the recapture period was sufficient to defeat Selfs right to discharge.

We agree with Self that the trial court improperly determined that he waived speedy trial solely by objecting to the admissibility of the business record evidence. The trial court continued the trial based on the fact that the State was not prepared for a hearing on Selfs Crawford objection to the business records. Self raised this objection well before the scheduled trial, and, at that point, it was the State’s burden, as the proponent of the evidence, to prove its admissibility. See State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006); De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). See also Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). We find that the State did not meet its burden, having waited more than 175 days after Selfs arrest to acknowledge that an objection was lodged, and then requested a continuance when it was unprepared to prove admissibility. As such, the continuance was actually attributable to the State, not the defense, and speedy trial was not waived at that time.

In the alternative, the State argues that even if this Court determined that Self did not waive speedy trial, its “attempt” to schedule the trial before the recapture deadline supported the court’s denial of the discharge. Florida Rule of Criminal Procedure 3.191(i)(2) provides:

(1) When Time May be Extended. The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. Such an extension may be procured by:
(2) written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in the subdivision (l)[.]

Critical to its position, the State did not allege, nor did it point to any evidence to demonstrate, that it sought an extension during the recapture period or that exceptional circumstances existed to warrant an extension beyond the recapture period to further delay an already dilatory trial. See Brown v. State, 715 So.2d 241 (Fla.1998). Because we conclude that Self did not waive his right to a speedy trial, he is entitled to discharge.

PETITION GRANTED.

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

      . The last day of the speedy trial period was July 7, 2010.

      . Under rule 3.191(1), the court may order an extension of the speedy trial time period when exceptional circumstances are shown, which generally do not include congestion of the court's docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Instead, “[ejxceptional circumstances are those that as a matter of substantial justice to the accused or the state or both require an order by the court.” Fla. R.Crim. P. 3.191(1).


author: JACOBUS, J.

text:
    Robert ROSSMORE, Appellant, v. Benita G. SMITH and Marie Laughlin, Appellees.
    No. 5D10-75.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Pedro Malaret of Malaret Law Firm, PLC, Orlando, for Appellant.
    Eric S. Mashburn of Law Office of Eric S. Mashburn, P.A., Winter Garden, for Appellees.
   JACOBUS, J.

Robert Rossmore, the plaintiff in the underlying action, appeals a final judgment awarding attorney’s fees to the defendants, Benita Smith and Marie Laughlin. The basis for the award was Rossmore’s rejection of the defendants’ two offers of judgment, which they made pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442(c)(3). Rossmore argues the award of attorney’s fees should be reversed because the offers of judgment were undifferentiated joint offers and therefore improper. We disagree and affirm.

Rossmore filed suit against Smith and Laughlin in 2007, alleging one count for breach of a certain contract. He sought damages in the amount of $20,000. While the suit was pending, Smith and Laughlin twice made offers of judgment to Ross-more. Both offers contained the same terms: Smith and Laughlin each agreed to contribute $50 to the settlement for a total of $100, and, upon acceptance, Rossmore was required to voluntarily dismiss the lawsuit with prejudice. Rossmore did not accept either offer. As a result, Smith and Laughlin later sought and recovered them attorney’s fees after they prevailed at trial.

Rossmore argues the award of fees was made in error. However, we reject his contention that the offer of judgment was improper. We do so for two reasons. First, the offer of judgment rule itself authorizes the use of a joint offer. It sets forth the requirements for such an offer as follows:

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.

Fla. R. Civ. P. 1.442(c)(3). The offers of judgment made by Smith and Laughlin complied with these requirements, as well as the other general requirements found in the rule.

Second, the two cases relied upon by Rossmore are readily distinguishable. In Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla.2010), the court held that where a joint offer of judgment is conditioned upon the mutual acceptance of all of the joint offerees, it is invalid. The court explained:

[T]his type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable.

Id. at 649. The offer of judgment at issue in this case is not the type of offer disapproved in Gorka. Here, Rossmore was the sole plaintiff. The proposal was directed to him, and his decision to reject or accept the offer was not dependant on any other person. Therefore, the concerns discussed in Gorka are not present here. The supreme court’s decision in Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), is likewise distinguishable. The plaintiff in Lamb made an undifferentiated offer of judgment directed to two defendants. The supreme court held the offer was invalid because it did not specify the amount attributable to each defendant, nor did it set forth an amount that the plaintiff would accept from each defendant. The situation here is different. The amount attributable to Smith and Laughlin individually was clearly set forth in the offer of judgment. This was not an undifferentiated offer of settlement or otherwise improper. In short, Rossmore had ample opportunity to evaluate the joint offer made to him, and he chose not to accept it.

Accordingly, we conclude that the offer of judgment in this case was valid and the award of attorney’s fees was appropriate. We therefore affirm the final judgment awarding attorney’s fees to Smith and Laughlin.

AFFIRMED.

EVANDER, J., and SCHWARTZ, A., Senior Judge, concur.

      . There is nothing in the sparse record before us to support Rossmore’s other argument— that reversal is warranted because the offer of judgment was made in bad faith — and we reject it without further comment.


text:
    STATE of Florida, Appellant, v. Roger Jerome JACKSON, Appellee.
    No. 5D09-4382.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State appeals from a downward departure sentence imposed on Roger Jerome Jackson for the third degree felony charge of possession of cocaine. Jackson’s criminal punishment code score-sheet indicated a lowest permissible sentence of 28.95 months in prison. If a “trial court wishes to depart downwardly from the indicated guidelines sentence, it must announce or write its valid reasons for doing so.” State v. Marshall, 869 So.2d 754, 756 (Fla. 5th DCA 2004); see also, § 921.0026(1), Fla. Stat. (2010) (“A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure”).

At sentencing, the trial judge did not give any reason for the departure sentence but indicated that he would later supply a written order justifying it. When the judge later failed to supply any written departure reasons, the State appealed. Jackson properly concedes error. Because the trial court had already promised Jackson a departure sentence prior to Jackson’s entry of a plea in this case, Jackson should be given an option of withdrawing his plea if the court now concludes that no valid basis for departure exists. See Marshall. Accordingly, we reverse and remand with directions that the trial court either justify any departure sentence with valid reasons for departure, or give Jackson an opportunity to withdraw his plea prior to imposition of a guidelines sentence. Id.

REVERSED AND REMANDED WITH DIRECTIONS.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Loc T. NGUYEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-98.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    J. Jervis Wise, of Bjorn E. Brunvand, P.A., Clearwater, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2004-CF-3907, in the Circuit Court in and for Orange County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    Kevin DEMING, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-126.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Mark S. Germain of Law Offices of Ger-main & Coulter, Melbourne, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2009-CF-047002-A, in the Circuit court in and for Brevard County, Florida, see Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, LAWSON and JACOBUS, JJ., concur.


author: SILBERMAN, Judge.

text:
    R.M.F., Appellant, v. D.C., Appellee.
    No. 2D10-250.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    Kathy C. George of Law Offices of Kathy C. George, Dunedin, for Appellant.
    Vitas J. Lukas of Bouldin & Associates, P.A., St. Petersburg, for Appellee.
   SILBERMAN, Judge.

R.M.F., the Father, seeks review of a final judgment of paternity and challenges the award of attorney’s fees to D.C., the Mother, and the visitation schedule set forth therein. The lack of a trial transcript precludes this court from reviewing the sufficiency of the evidence to support the Mother’s entitlement to attorney’s fees and the visitation schedule. See Smith v. Smith, 39 So.3d 458, 459 (Fla. 2d DCA 2010). However, we reverse that portion of the final judgment awarding attorney’s fees because the final judgment does not contain any findings justifying the amount of the award. See Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010).

Affirmed in part, reversed in part, and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.


author: DAVIS, Judge.

text:
    Ricardo S. HOOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3656.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
   DAVIS, Judge.

Affirmed. This affirmance is without prejudice to Hooks’s right to file a petition for belated appeal in this court within 30 days from the date that this opinion is final. See Fla. RApp. P. 9.141(c).

VILLANTI and LaROSE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Willie L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2662.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    Willie L. Jackson, pro se.
   KHOUZAM, Judge.

Willie L. Jackson appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the postconviction court failed to attach any record documents conclusively showing that Jackson is entitled to no relief, we must reverse. See Fla. R.App. P. 9.141(b)(2)(D). If the trial court again enters an order summarily denying the claims, the court shall attach record documents conclusively showing that Jackson is not entitled to any relief.

Reversed and remanded.

NORTHCUTT and KELLY, JJ„ concur.


author: VILLANO!, Judge.

text:
    In the Interest of A.N., a child. R.N., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D10-4126.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2011.
    Scott L. Robbins, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David J. Lopez, Assistant Attorney General, Tampa, for Appellee.
   VILLANO!, Judge.

R.N., the father of A.N., challenges the circuit court’s orders finding A.N. dependent and placing her in a permanent guardianship with her stepfather. Because competent, substantial evidence supported the order finding A.N. dependent, we affirm that order without further discussion.

We also affirm the circuit court’s order placing A.N. in a permanent guardianship with her stepfather. See § 39.6221, Fla. Stat. (2009). However, over R.N.’s objection, the circuit court failed to “[sjpecify the frequency and nature of visitation or contact between” R.N. and his daughter in the guardianship order as required by section 39.6221(2)(c). Instead, the court ordered that R.N. and the permanent guardian develop and agree on a visitation and contact schedule. This resolution was not only unworkable given the animosity between R.N. and the permanent guardian, but also violated the clear mandate of section 39.6221(2)(c). Therefore, we reverse the guardianship order on this basis alone and remand for the court to enter an amended order that sets forth a visitation and contact schedule between R.N. and A.N.

Affirmed in part, reversed in part, and remanded.

CASANUEVA., C.J., and ALTENBERND, J., Concur.