author: SUAREZ, J.

text:
    REGIONS BANK, f/k/a Union Planters Bank, N.A., etc., f/k/a Capital Bank, Appellant, v. CAPITAL SQUARE, INC., etc., Appellee.
    No. 3D10-1940.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Rehearing Denied April 5, 2012.

      Garbett, Stiphany, Allen & Roza, and Philip A. Allen, III, Miami, for appellant.
    Lopez & Best, and Virginia M. Best, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Regions Bank, f/k/a Union Planters Bank, N.A., f/k/a Capital Bank [“Regions”], seeks to reverse an order denying its motion to set aside a jury verdict and vacate the final judgment, and to remand for a new trial. We find that the trial court incorrectly failed to give the Fabre instructions requested and therefore reverse as to the Fabre issue only and affirm all remaining issues.

Pass Sklar Center, Ltd. [“Pass Sklar”] is a Florida limited liability corporation that owns and operates a shopping center in Miami, and earns income from the commercial tenant rents. Regions holds a one-third interest as the limited partner. Capital Square, Inc. [“CSI”] is the general partner. CSI’s president is Horatio Roz-enblum; the vice president is his son, Martin Rozenblum. The Rozenblums live in Argentina and manage Pass Sklar remotely, via an on-site property manager and local accountants. In 1997, CSI hired Carmen Ramos to be the on-site manager. From 1997 through 2001, Ramos collected rent from the commercial tenants and deposited them into CSI’s account at Regions. Ramos did not have authority to sign checks on the CSI account. CSI hired an accounting firm, Spear Safer & Harmon (SSH) to perform compilations of the monthly statements, balance the statements and reconcile accounts. The accounting firm of Iriondo & Rodriguez later replaced SSH. Ramos would forward these SSH/Iriondo statements to the Rozenb-lums in Argentina.

In 1998, Ramos began diverting tenant rents to her own account, by either forging Rozenblum’s signature, by endorsing the rent checks made out to CSI with her own account number, or by convincing tenants to pay in cash or make checks payable to her company, C.R. Group. Over three years, she stole fifty-four Pass Sklar rent checks totaling $261,943.06, of which $181,938.98 was attributable to diverted cheeks; the remainder was attributable to forgery. During this period, SSH brought the rent shortfalls to Rozenblum’s attention, but Rozenblum did not actually follow through until 2001, when he discovered the embezzlement by visiting the shopping center and speaking to his tenants. Ramos was confronted, arrested, convicted and sentenced.

Pass Sklar, through CSI, sued the SSH and Iriondo accounting firms for negligence relating to the forged checks; both firms settled, SSH paid $0, Iriondo paid $45,000. Pass Sklar then sued Regions on the diverted checks only, seeking damages for negligence and statutory conversion for allowing Ramos to deposit tenant payments into her C.R. Group account. Regions counterclaimed against CSI for pro rata contribution under the Uniform Contribution Among Tortfeasors Act (Count 1); for gross negligence in CSI’s own duties to keep its books as general partner (Count 2); and for breach of fiduciary duty as general partner in connection with Ramos’s activities, and failure to inform the bank, as limited partner, of accounting discrepancies. The case went to trial. At the close, Regions moved for directed ver-diet on the ground that Pass Sklar failed to present competent evidence that Regions had breached its duty of ordinary care under prevailing standards. The trial court denied the motion. The jury returned a verdict awarding Pass Sklar the sum of $181,938.98, representing the total of the misdirected rent checks deposited to C.R. Group. The total was reduced by the ten percent (10%) negligence the jury attributed to Pass Sklar, and by $20,000 that Ramos repaid in restitution. The trial court denied Regions’ post-verdict motions to set aside, and entered final judgment.

Regions argues on appeal that the trial court erroneously refused to provide the jury with its requested jury instruction, pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla.1993), and progeny, that CSI’s losses arose from its own negligence and that of its accountants, and that fault should be allocated comparatively to those entities. Regions had specifically raised Fabre as an affirmative defense, wanting the jury to consider the actions or inac-tions of the non-party accountants in its apportionment of fault between the parties with regard to the diverted checks. The trial court denied the bank’s request to include these instructions, but gave no legally sustainable explanation. The failure to so instruct, Regions asserts, mandates a new trial. We agree in part.

“The only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident [fraud], regardless of whether they have been or could have been joined as defendants.” Fabre, 623 So.2d at 1185 (Fla.1993) (receded from by Wells v. Tallahassee Mem’l. Med. Ctr., 659 So.2d 249 (Fla.1995)). To include non-parties on a verdict form for the purpose of apportioning liability, a defendant must plead the negligence of a non-party as an affirmative defense and specifically identify the non-party. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996). Regions appropriately raised comparative fault of the accountants as an affirmative defense in its Answer to the Complaint. In addition to the pleading requirement, the defendant has the burden of presenting at trial evidence that the non-party’s fault contributed to the incident in order to include the non-party’s name on the jury verdict. Id. at 1264; see Lagueux v. Union Carbide Corp., 861 So.2d 87, 88 (Fla. 4th DCA 2003). Regions moved to set aside the verdict based, in part, on the trial court’s failure to allow a Fabre instruction.

We conclude that the trial court’s refusal to give Fabre instructions to the jury mandates a new trial, but solely as to the issue of apportionment of fault. We follow Nash, in concluding that a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages. In Schindler Elevator Corp. v. Viera, 693 So.2d 1106 (Fla. 3d DCA 1997), the Third District Court of Appeal limited the new trial solely to the issue of apportionment between the parties and the non-party defendants, stating that, “where a jury has been prevented from properly considering apportionment because a Fabre non-party was erroneously omitted from the verdict form, the solution is a new trial limited to the apportionment issue, not a new trial on all liability issues.” Id. at 1108; Nash, 678 So.2d at 1263-64. We therefore reverse and remand for a new trial solely on the issue of apportionment between the parties and non-parties, where the non-party accounting firms must be included on the verdict form. We affirm all remaining issues on appeal.

Reversed and remanded.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . Pass Sklar was contractually precluded from pursuing the forged check issues with the bank because Pass Sklar did not notify Regions of any signature irregularities upon receipt of its monthly statements, pursuant to the Depositors Agreement.

      . CSI argues on appeal that there was no evidence presented at trial of negligence on the part of the accountants. We make no determination on this issue, as the trial court did not make a finding on that issue below, but denied the request for a Fabre instruction solely because the jury instructions had become, in the court's opinion, too complicated.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    REPOR BROTHERS, INC., Appellant, v. Donald MOORE, Appellee.
    No. 3D10-2251.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Rehearing Denied April 5, 2012.
    Cole Scott & Kissane and Scott A. Cole, Key West, and Kristen A. Tajak, Miami, for appellant.
    Perry & Neblett and David A. Neblett, Miami, for appellee.
    Before CORTIÑAS, LAGOA, and EMAS, JJ.
   CORTINAS, J.

We reverse the trial court’s entry of final summary judgment in this case as “[a] contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms.” Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 509 (Fla.1973) (citing 41 Am. Jur.2d, Indemnity, § 15). “Contracts which attempt to indemnify a party for its own wrongful acts are viewed with disfavor and will be enforced only if they express such intent in clear, unequivocal terms.” S.E.F.C. Bldg. Corp. v. McCloskey Window Cleaning, Inc., 645 So.2d 1116, 1116 (Fla. 3d DCA 1994). See also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487 (Fla.1979); Skidmore, Owings and Merrill v. Volpe Constr. Co., 511 So.2d 642 (Fla. 3d DCA 1987); Nat Harrison Assocs., Inc. v. Fla. Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Reversed and remanded.


author: DAVIS, Judge.

text:
    Alvin L. PHILLIPS, Appellant, v. Lovella PHILLIPS, Appellee.
    No. 2D10-3147.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2012.
    Rehearing Denied March 30, 2012.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Patrick B. Calcutt of Calcutt & Calcutt, P.A., St. Petersburg, for Appellee.
   DAVIS, Judge.

Alvin L. Phillips, the Former Husband, challenges the final order of dissolution of his marriage to Lovella Phillips, the Former Wife, as well as subsequent amendments to that order. We affirm the final judgment. However, we write to clarify that the plain reading of the final judgment of dissolution allows the Former Husband the right to seek a partition of the marital home if it has not been sold by the time the parties’ son turns eighteen years old.

On appeal, the Former Husband argues that the awarding of the exclusive use of the marital home to the Former Wife for use by her and the minor child until he is no longer dependent — a date that is speculative under the facts of this case — was error in that it was not for a specific period of time and indefinitely limited the Former Husband’s right as a cotenant to seek partition of the jointly owned property. We do not agree.

The parties’ minor child has certain physical and other limitations. The evidence in the record suggests that both parties question whether the child will actually become independent upon reaching his eighteenth birthday. However, neither party asked the trial court to make such a determination, and indeed the final judgment does not include any such finding. Accordingly, a plain reading of the final judgment indicates that unless there is further order of the court, the child will no longer be considered dependent upon his eighteenth birthday. Therefore, at that time, the Former Husband’s child support obligations will cease and the Former Wife’s exclusive use and possession of the marital home — the factor limiting the Former Husband’s right to seek partition— will necessarily terminate. At that time, the parties may either reach an agreement to sell the property or may force the sale through a partition. See Salyers v. Good, 443 So.2d 152, 154 (Fla. 2d DCA 1983) (“Upon the failure to effect an agreeable sale within a reasonable time, either party had a right to force a sale through partition.”).

Because the final judgment sets an end date for the Former Wife’s exclusive use and possession of the marital home, the trial court did not err in making such an award. See Cone v. Cone, 449 So.2d 867, 869 (Fla. 5th DCA 1984) (“The exclusive possession should be for a specified period of time required for the purpose stated.”); see also Duncan v. Duncan, 379 So.2d 949, 958 (Fla.1980) (“The trial judge in this instance balanced the needs of the parties and determined that this plan would provide stability for the entire family until the children reached majority. The award of exclusive possession merely tolled the time for the final disposition of the real property acquired during the marriage until the youngest child reaches majority. We find that there was a demonstrated need for this exclusive possession award, which is directly connected with the support provisions of this final judgment.”). As such, we affirm that portion of the final judgment.

The Former Husband also argues that the trial court improperly exceeded child support guidelines by requiring that he pay half of the mortgage obligation on the marital residence. He maintains that this is inconsistent with the trial court’s explicit finding that the upward departure requested by the Former Wife was not warranted. We conclude that this argument is without merit.

The guidelines are only exceeded if the Former Husband’s share of the mortgage is considered part of his child support obligation. The trial court specifically stated, however, that such was not the case, and we would note that the Former Husband retains an equity interest in the martial home during the time he is ordered to pay mortgage expenses incident to his child support obligation. Even in light of the court’s consideration that the amount was incident to child support, it does not appear that there was an abuse of discretion in the decision that the Former Husband should be responsible for half of the mortgage for a specified period of time. Cf. Duncan, 379 So.2d at 953. Additionally, the final judgment’s silence on a continuing obligation of support after the child’s eighteenth birthday results in the Former Husband’s obligation to pay one-half of the expenses of the residence also terminating upon the child’s eighteenth birthday. See generally Taylor v. Bonsall, 875 So.2d 705, 709 (Fla. 5th DCA 2004).

Thus, without further order of the trial court, upon the minor’s reaching his eighteenth birthday, the Former Husband’s obligation for child support — including the incidental obligation of the payment of a portion of the expenses of the residence— shall terminate. Likewise, the limitation on the Former Husband’s rights as a co-tenant will expire, and the Former Husband may then exercise his rights as a cotenant to seek a partition of the residence.

Affirmed.

WHATLEY and CRENSHAW, JJ., Concur.

      . Although it is clear that both parties will most likely incur long-term support obligations for the son, the exact nature of those obligations is speculative at this point and will remain so until such time as an action to determine the son's rights to support as a dependent adult is brought. See generally Hastings v. Hastings, 841 So.2d 484, 486 (Fla. 3d DCA 2003) (“[A] dependent person may bring an independent action to enforce her or his right to support from his or her parents.”).


author: RAMIREZ, J.

text:
    Javor WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2615.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Rehearing Denied April 17, 2012.

      Carlos J. Martinez, Public Defender and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   RAMIREZ, J.

Javor Williams appeals from an order summarily denying his pro se motion for postconviction relief. Because the information filed against the defendant and the facts proffered to support the information used the same act for both attempted felony murder and the underlying attempted armed robbery, we reverse.

The defendant and two co-defendants followed the victim home where they blocked the victim’s car in the driveway. The defendant then approached the victim, held a firearm to her face, and demanded that she surrender her bag. The victim had nothing in her hands and did not understand what the defendant wanted. When the victim tried to fight back, the defendant shot her in the abdomen.

The defendant was charged with one count of attempted felony murder, one count of attempted armed robbery, and one count of conspiracy to commit armed robbery. The defendant entered a guilty plea to the court on all charges. The prosecutor provided the factual basis as stated. above, to which defense counsel stipulated based on his depositions and investigation. After a hearing, the trial court sentenced the defendant to fifty-year imprisonment with a twenty-five year mandatory minimum followed by ten years probation on the attempted felony murder count, and concurrent fifteen-year prison sentences on the other two counts. This Court affirmed the defendant’s convictions and sentences on direct appeal. Williams v. State, 36 So.3d 109 (Fla. Bd DCA 2009).

Thereafter, the defendant filed the instant postconviction relief motion under Florida Rule of Criminal Procedure 3.850, alleging inter alia ineffective assistance of counsel for failure to challenge the dual charges. The trial court denied the motion, and the defendant appealed. This Court issued a rule to show cause to the State asking whether this case should be reversed on the authority of Coicou v. State, 867 So.2d 409 (Fla. 3d DCA 2003), where we held that the State may not use the same act to prove both an attempted felony murder and the underlying felony of robbery.

We are not convinced by the State’s attempt to distinguish Coicou. First, the State argues that this case is different because the defendant here pled guilty to the charged offenses. It is well settled, however, that a charging instrument which fails to charge a crime can be challenged “at any time-before trial, after trial, on appeal or by habeas corpus.” State v. Gray, 435 So.2d 816, 818 (Fla.1983). Also, unbargained-for pleas do not waive double jeopardy violations. See Novaton v. State, 634 So.2d 607 (Fla.1994). Thus, the plea does not bar the defendant’s claim that his counsel was ineffective for failure to challenge the double charges arising from the same act.

Next, the State argues that the shooting in this case was not an essential element of the attempted robbery charge because the attempted robbery was complete when the defendant pointed the gun at the victim. In support of this argument, the State cites to Dallas v. State, 898 So.2d 163 (Fla. 4th DCA 2005). Unlike the situation here, Dallas chased and shot the victim after the latter fled from the car where the attempted robbery occurred. As a result, the court properly found that a wholly separate act supported the attempted felony murder charge. Here, the robbery was ongoing when the defendant shot the victim, and there was no wholly separate act. See Barron v. State, 990 So.2d 1098, 1106 (Fla. 3d DCA 2007) (“As the attempted murder of [the ■victim] occurred while he was attempting to resist during the commission of the attempted robbery, ... the shooting did not constitute an independent criminal act.”).

Finally, the State contends that the defendant suffered no prejudice from his counsel’s failure, if any, because the State could simply have amended the information to correct any defect. This argument is unpersuasive. The facts presented below cannot support both a charge of attempted felony murder and attempted armed robbery, and no amendment of the information can correct this defect.

Accordingly, we reverse the trial court’s order denying the defendant’s motion for postconviction relief, and remand for the defendant to be given an opportunity to prove that he was prejudiced by his counsel ineffectiveness.

Reversed and remanded.


author: FERNANDEZ, J.

text:
    UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Jose CONCEPCION, Appellee.
    No. 3D11-889.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Conroy, Simberg, Ganon, Erevan, Abel, Lurvey, Morrow and Schefer, and Hinda Klein and Shannon P. McKenna, Hollywood, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez and Gomez, and Benjamin Alvarez, Coral Gables, Paul B. Feltman and Jorge L. Carbonell, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   FERNANDEZ, J.

United Property and Casualty Insurance Company appeals the trial court’s non-final order granting the insured’s motion to compel appraisal of a claim under a homeowner’s insurance policy. Because there was an issue of fact as to whether the insured complied with his post-loss obligations, the trial court’s failure to conduct an evidentiary hearing constituted error. We therefore reverse and remand.

Jose Concepcion’s property was damaged in October 2004 by Hurricane Wilma. United acknowledged coverage for the loss, and in 2005, tendered approximately $7,000 in payment for damages. In March 2009, a public adjuster inspected Concepcion’s property and filed a supplemental claim with United for $122,769.40. The public adjuster requested an appraisal for the amount of loss. Concepcion thereafter filed a breach of contract claim against United.

United responded that, pursuant to the insurance policy between the parties, Concepcion’s duties after loss included, in pertinent part, providing United with records and documents pertaining to the loss; submitting to an examination under oath and signing it; and sending United a signed, sworn proof of loss, within sixty days after United requested it. United alleged that Concepcion failed to comply with these post-loss obligations.

Concepcion filed a motion to compel appraisal. At the hearing before the trial court, United contended that appraisal was premature, as Concepcion still had not provided United with the information it needed to evaluate Concepcion’s claim. Concepcion contended that he went to an examination under oath and that he did repairs with a neighbor, but he did not have any receipts. The trial court granted the motion to compel appraisal and stated in its order: “The Court has reviewed the motion to compel appraisal, any and all documents filed in support thereof and opposition thereto and the complete court filef.]”.

United contends that Concepcion failed to provide it with requested records and documents, failed to respond to material inquiries during his examination under oath, and failed to provide a sworn statement in proof of loss. Concepcion, on the other hand, claims that he provided United with sufficient documents and information to assess the claim and he therefore complied with his post-loss obligation. Specifically, Concepcion claims that the trial court had ample, sworn documents in the court file, including answers to interrogatories, from which it could conclude that he complied with his post-loss obligations under the insurance contract.

We hold that the dispute as to whether Concepcion complied with post-loss obligations created a fact issue which must be resolved by the court through an examination of the evidence. We therefore agree with United that the trial court was required to resolve the disputed question of fact, under the circumstances of this case, by conducting an evidentiary hearing to determine if the insured had complied with the policy’s post-loss obligation requirements. As we stated in United States Fidelity & Guaranty Co. v. Romay, 744 So.2d 467, 471 n. 4 (Fla. 3d DCA 1999), “[t]he nature of the post-loss obligations is merely to provide the insurer with an independent means by which to determine the amount of loss, as opposed to relying solely on the representations of the insured.”

In order to make a preliminary determination that there is a disagreement between the insurer and the insured regarding the amount of loss, the trial court must be satisfied of the insured’s compliance with the policy’s post-loss conditions. Where the insurer reasonably disputes such compliance and raises a question as to the sufficiency of the insured’s compliance with post-loss obligations, a question of fact is created that must be resolved by the trial court before compelling appraisal. See Citizens Prop. Ins. Corp. v. Gutierrez, 59 So.3d 177 (Fla. 3d DCA 2011); Citizens Prop. Ins. v. Mango Hill Condo. Ass’n, 54 So.3d 578 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010). The transcript of the hearing on the motion to compel appraisal reflects that the trial court never reviewed any evidence on whether Concepcion complied with his post-loss obligations under the policy. The argument of counsel on this issue does not constitute evidence. See Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982).

We therefore reverse the trial court’s order compelling appraisal and remand the case to the trial court for an evidentiary hearing on the issue of the insured’s compliance with the insurance policy’s post-loss obligations.

Reversed and remanded with instructions.

      . In his answer, Concepcion explains that the Examination Under Oath (“EUO”) was not filed with the court prior to the hearing on the motion to compel appraisal. The EUO may have been a significant piece of evidence, among others, from which the trial court could have concluded that the insured complied with his post-loss obligations.


author: PER CURIAM.

text:
    Tyrone JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2385.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Deane K. Marshall, Riverview, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Tyrone Jordan (defendant) appeals from an order granting his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), and resen-tencing him without a hearing. Because defendant’s resentencing was a ministerial act, we affirm.

Defendant was convicted of one count of strong arm robbery, a second degree felony, and one count of burglary with an assault/battery, a first degree felony. The trial court found that defendant qualified as a habitual violent offender under section 775.084(4), Florida Statutes (1994), and sentenced defendant to life imprisonment with a fifteen-year mandatory minimum on both counts. Thereafter, defendant moved to correct his sentence on the ground that a life sentence for the strong arm robbery count was illegal. The trial court granted defendant’s motion, vacated the prior sentence on the robbery count, and summarily resentenced him to thirty years imprisonment on that count. Because the life sentence on the burglary count remained unchanged, the trial court determined there was no need to hold a resentencing hearing where defendant could be present. Defendant appeals from this ruling.

Generally, a defendant is constitutionally entitled to be present at his or her resentencing, unless it is only a “ministerial act” to correct a prior sentence. Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006). This Court previously has held that resentencing for a concurrent offense, when the defendant is serving a sentence of equal or greater length on another conviction, is a ministerial act. Velez v. State, 988 So.2d 707 (Fla. 3d DCA 2008). We recognize that the Florida Supreme Court abrogated this concurrent sentence doctrine in 1970. Frizzell v. State, 238 So.2d 67 (Fla.1970). There the court concluded that concurrent re-sentencing was a crucial stage requiring the defendant’s presence because of the possibility of obtaining more favorable consideration for parole. Florida has since abolished the parole system in favor of sentencing guidelines. Thus, as this Court implicitly understood in Velez, the main reason for abrogation of the doctrine no longer exists.

Accordingly, we affirm the sentence entered by the trial court.

Affirmed.


text:
    Terry CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-178.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.

      Terry Cunningham, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    TIDEWATER ESTATES CO-OP, INC., a Florida not-for-profit corporation, and all other unknown parties including claimants, persons or parties, natural or corporate, or whose legal status is unknown, claiming under any of the above named defendants, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as trustee for the registered holders of MLCFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, Appellee.
    No. 4D11-1999.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Rehearing Denied April 12, 2012.
    Scott J. Wortman of Korte & Wortman, PA, West Palm Beach, for appellants.
    Lori L. Heyer-Bednar, Mark D. Kush-ner and Vijay G. Brijbasi of Roetzel & Andress, LPA, Fort Lauderdale, for appel-lee.
   PER CURIAM.

We find no abuse of discretion in the trial court’s order sequestering rents. See Whud Real Estate Ltd. P’ship v. Oak Grove, Ltd., 699 So.2d 842 (Fla. 3d DCA 1997). Lack of standing is an affirmative defense to foreclosure. See, e.g., Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005). Section 697.07(4), Florida Statutes (2011), provides that a court may order sequestration of rents “notwithstanding any asserted defenses or counterclaims of the mortgagor.” In ruling on a motion to sequester rents, a court should refrain from conclusively ruling on affirmative defenses. See Whetstone P’ship v. Gen. Elec. Capital Corp., 666 So.2d 194 (Fla. 2d DCA 1995).

Affirmed.

GROSS, CIKLIN and LEVINE, JJ., concur.


author: LaROSE, Judge.

text:
    Joey James PEDRO and Jill Pedro, Appellants, v. Betsy BABER, Appellee.
    No. 2D10-4644.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.

      Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig, LLP, Tampa; and Emory Wood of J. Emory Wood, P.A., St. Petersburg, for Appellants.
    Robert M. Brush and Timothy 0. Coyle of Brush, Pujol & Coyle, P.A., Lakeland; and Melodie J. Lopez of Lopez & Hum-phries, P.A., Lakeland, for Appellee.
   LaROSE, Judge.

Joey James Pedro and Jill Pedro appeal a final judgment entered in favor of Betsy Baber in her personal injury lawsuit against them. They argue that the trial court erred in giving a jury instruction pursuant to Stuart v. Hertz Corporation, 351 So.2d 703, 707 (Fla.1977), after a medical expert testified on cross-examination that surgery performed on Ms. Baber was unnecessary. We affirm.

Background

Mr. Pedro rear-ended Ms. Baber’s vehicle. Ms. Baber drove herself to the hospital where she complained of neck and back pain. Emergency room personnel diagnosed whiplash. Ms. Baber obtained follow-up nonsurgical treatment from Dr. Wall.

After four months, Ms. Baber still had pain. She consulted Dr. Nucci, an orthopedic surgeon. He diagnosed neck and low-back muscular injury and L5-S1 disc herniation from the accident. Dr. Nucci recommended surgery. More than a year after the accident, and after several months of nonsurgical treatment, Ms. Ba-ber had surgery. Initially, the pain decreased; within months, however, her low-back pain increased.

Ms. Baber sued the Pedros. She alleged that Joey Pedro’s negligence caused her permanent injuries and that Jill Pedro, the vehicle owner, was vicariously liable. See Fischer v. Alessandrini, 907 So.2d 569, 571 (Fla. 2d DCA 2005) (“Under the dangerous instrumentality doctrine, an automobile owner is vicariously liable for damages caused by the operation of his vehicle by a permissive user.”) (citing Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla.1993)). The Pedros opposed Ms. Baber’s efforts to recover medical expenses related to the back surgery.

The Pedros attacked Dr, Nucci’s credibility and professionalism. For example, in opening statement, counsel told the jury that Dr. Nucci was a personal injury doctor, he treated accident patients under letters of protection, and the surgery did not help Ms. Baber. The Pedros also presented evidence challenging the reasonableness of Dr. Nucci’s charges.

The medical testimony conflicted. Dr. Nucci testified that the surgery was accident-related and improved Ms. Baber’s condition. He conceded that she still had persistent low-back pain and might require further surgery. Ms. Baber testified that her back surgery stemmed from injuries sustained in the accident; the pain only worsened after the surgery. Dr. Wall testified that the accident caused a lumbar disc herniation and an annular tear. He would have preferred that Ms. Baber continue nonsurgical therapies; ultimately he agreed that she was a surgery candidate. He testified that “not all surgeries work.” He also agreed with Dr. Nucci that Ms. Baber might need more surgery.

The Pedros called a diagnostic radiologist, Dr. Rosenbach, who testified that the disc protrusion and annular tear were degenerative and not caused by the accident. Dr. Knezevich, who performed an independent medical examination of Ms. Baber, testified that the accident caused only non-permanent cervical, thoracic, and lumbar/sacral strain that did not require surgery. On cross-examination, he elaborated that Ms. Baber “does get an impairment rating based on her lumbar spine surgery being performed, but I don’t relate the lumbar spine surgery to the auto accident.” Dr. Knezevich opined that Dr. Nucci thought that surgery might help Ms. Baber’s disc abnormality, but the disc “did not appear to explain her symptoms” and the surgery did not alleviate them.

Ms. Baber’s counsel responded, “Wait. Let me stop you there. You said you wouldn’t relate it to her symptoms.... [D]id she need the surgery?” The Pedros’ counsel objected because the question suggested malpractice by Dr. Nucci. Counsel protested that Ms. Baber’s counsel was trying to get a Stuart instruction, informing the jury that a tortfeasor is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries. The trial court overruled the objection. Cross-examination continued. Dr. Knezevich testified that, typically, the treating physician is in a better position to decide whether a patient needs surgery, but he disagreed with Dr. Nucci’s decision to operate. Dr. Knezevich explained that disc herniations are common starting in middle age, and surgery is not likely to help where the disc abnormalities did not correlate with the symptoms.

The trial court struggled with Ms. Ba-ber’s subsequent request for a Stuart instruction. Ms. Baber wanted the instruction because the jury heard evidence that the surgery was unnecessary. The Pedros countered that their defense against paying for the surgery was not that it was unnecessary or negligent, but that it was unrelated to the accident. The trial court concluded that “we kind of cross[ed] the rubicon because the jury has heard the testimony” from defense witnesses that the surgery was unnecessary. Accordingly, the trial court gave the Stuart instruction as follows:

When a person has suffered injuries by reason of the negligence of another and exercising reasonable care in seeking the services of a competent physician, and in following his advice and instructions her injuries are aggravated or increased by the negligence, mistake[,] or lack of skill of such physician, the law regards the negligence of the wrongdoer in causing the original [injjury as the legal cause of the damages flowing from the subsequent negligent or unskillful treatment thereof.

In closing, Ms. Baber’s counsel told the jury that Dr. Nucci’s unnecessary surgery permanently injured Ms. Baber and that the Pedros were responsible. The Pedros’ closing argument reminded the jury that they were arguing that the surgery was unrelated to the accident. The jury returned a verdict for Ms. Baber, finding that the Pedros’ negligence caused permanent injury and that all medical expenses resulted from the accident. After filing an unsuccessful motion for a new trial, the Pedros appealed.

Analysis

Ms. Baber relies on Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994), and Nason v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010) (Farmer, J., specially concurring), as support for the Stuart instruction. In Dungan, the plaintiff appealed the jury’s verdict denying recovery in an automobile negligence action. 632 So.2d at 160. The First District held that the trial court erred in allowing the defendants to elicit testimony from their medical expert that post-accident surgery was not only unnecessary but was a substantial cause of her pain and impairment, and in then failing to give the Stuart instruction. Id. at 160. The defendants argued that they did not intend to allege that the plaintiff was injured by malpractice but only to present the jury with evidence that the surgery was not reasonable and necessary. Id. at 161. Because the expert’s testimony focused on the surgeon’s lack of skill or judgment and the poor results, the trial court was required to give a Stuart instruction. Id. at 164.

In Nason, the plaintiff appealed the trial court’s award of only a small portion of damages sought for neck and back pain caused by a car accident. 33 So.3d at 118. The plaintiffs surgeon testified that he performed surgeries that helped, but did not cure, the problem. Id. at 119. The plaintiffs pain continued; he also developed anxiety, depression, and headaches. Id. The surgeon testified that if the symptoms continued or worsened, the plaintiff would need additional surgery. Id. The defense presented medical testimony that the surgery was unnecessary because the crash caused only a sprain that could have been treated nonsurgically and did not cause the disc herniations, which were degenerative. Id. The defendants also argued that the unnecessary surgeries caused the headaches, anxiety, and depression. Id.

The Fourth District held that the trial court erred in allowing the defense to present this testimony, essentially shifting the blame for the plaintiffs damages to the treating physician and compounding the error by refusing to give a Stuart instruction. Nason, 33 So.3d at 118. The defendants maintained that they did not intend to allege physician negligence, but to assert only that the surgery was unnecessary. Id. The Fourth District held that, even though the defendants “carefully avoided the term ‘malpractice’ during trial,” the doctor’s testimony and the defendants’ closing argument “clearly placed this issue before the jury.” Id. at 121. The court pointed out that “ ‘unnecessary surgery may constitute medical malpractice where it deviates from the standard of care.’ ” Id. at 121 (quoting Edwards v. Simon, 961 So.2d 973, 975 (Fla. 4th DCA 2007)).

The Pedros’ witness, Dr. Knezevich, opined on direct examination that the surgery was unnecessary. He also concluded that the surgery did not address the symptoms and recognized an impairment rating related to the surgery. Recall, also, that Ms. Baber testified that her pain increased after the surgery. As in Nason, the Ped-ros carefully avoided the term “malpractice.” But, their expert’s testimony and counsel’s closing argument called into question the care Dr. Nucci provided. Under the circumstances, Dungan and Nason required the Stuart instruction.

The Pedros attempt to distinguish Dun-gan and Nason because the jury heard the necessity testimony from Dr. Knezevich on cross-examination. See Music v. Hebb, 744 So.2d 1169, 1171 (Fla. 2d DCA 1999) (“Questions on cross-examination must relate either to credibility or to matters elicited on direct testimony.”). They miss the mark. Ms. Baber correctly notes that the Pedros opened the door to questions about necessity by attacking Dr. Nucci’s credibility and professionalism. And, as noted earlier, Dr. Knezevich opined on direct examination that the surgery was unnecessary. The trial testimony also suggests that the surgery worsened Ms. Baber’s pain. Even if a party “opens the door” to evidence of malpractice, the trial court should instruct the jury on the law that applies to that evidence. Cf. Doubek v. Wal-Mart Stores, Inc., 804 So.2d 347, 348-49 (Fla. 4th DCA 2001) (holding trial court should have given Stuart instruction even though plaintiff violated motion-in-limine order and opened the door to evidence of subsequent medical provider negligence).

We find no abuse of discretion in the trial court’s allowing the necessity question. “Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.” § 90.612(2), Fla. Stat. (2010).

[W]hen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief....

Coxwell v. State, 361 So.2d 148, 151 (Fla.1978) (quoting Coco v. State, 62 So.2d 892, 895 (Fla.1953) (en banc)); see also Dempsey v. Shell Oil Co., 589 So.2d 373, 378 (Fla. 4th DCA 1991). We will not disturb a trial court’s decisions as to the extent of cross-examination unless the trial court has abused its discretion, resulting in substantial harm to the complaining party. Seminole Shell Co. v. Clearwater Flying Co., 156 So.2d 543, 544 (Fla. 2d DCA 1963).

The Pedros’ attempt to confine their evidence to the surgery’s unrelatedness to the accident failed. They presented evidence that Ms. Baber had preexisting degeneration, but not that it required surgery or that she was aware of any problems before the accident or would have elected to have surgery had she discovered them before the pain following the accident. Additionally, the jury could interpret the testimony that Ms. Baber had an impairment rating due to the surgery to mean that the surgery caused further injury.

We acknowledge that the trial court views necessity of treatment from the point of view of the injured party, not warring medical experts. See Dungan, 632 So.2d at 163 (citing Garrett v. Morris Kirschman & Co., 336 So.2d 566 (Fla.1976); Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985)); accord Nason, 33 So.3d at 122. Dr. Rosenbach testified that Ms. Baber had no history of back pain before the accident. Ms. Baber testified that she had no previous back problems and the surgery was due to her injuries. “You cannot injure a person and reasonably expect the victim not to seek medical treatment for the injuries you caused; doctors are human and sometimes make things worse.” Nason, 33 So.3d at 123 (Farmer, J., specially concurring). A patient is entitled to rely on her doctor’s advice. Dr. Nucci advised her that the accident caused her symptoms and he recommended the surgery to alleviate them.

In Tucker v. Korpita, 77 So.3d 716 (Fla. 4th DCA 2011), a defense medical expert testified that the plaintiffs disc problems were congenital, the car accident did not cause them, and the surgery was unwarranted and could accelerate degeneration and make things worse. The trial court declined to give a Stuart instruction. Tucker, 77 So.3d 716, 718. The Fourth District reversed, reasoning:

The specific testimony in this case went beyond merely questioning the medical advisability of the treatment advocated by appellant’s experts, or questioning the wisdom of the diagnosis, prognosis, or causal relationship between the purported injuries and the alleged incident. Rather, appellee’s experts concluded that the treatment utilized by appellant’s experts “would make things worse or could make things worse clinically.” The former scenario may not generally require an intervening cause instruction, while the latter situation, like in the case at bar, should result in the instruction being given as requested.
[Because it] “created a reasonable possibility that the jury was indeed misled” “in the absence of a jury instruction addressing the issue.”

Id. at 719 (quoting Emory v. Fla. Freedom Newspapers, 687 So.2d 846, 848 (Fla. 4th DCA 1997)).

The trial court here did not abuse its discretion in giving a Stuart instruction. See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990) (“Decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error.”).

Affirmed.

KHOUZAM, J., Concurs.

KELLY, J., Concurs in result only.

      . A letter of protection obligates the patient to pay the doctor from any money the patient recovers in a lawsuit. Francisco Ramos, Jr., Litigating, LSL FL-CLE 84 (2007); see State Farm Mut. Auto. Ins. Co. v. Bowling, 36 Fla. L. Weekly D1487, at *3 (Fla. 2d DCA July 8, 2011) (Crenshaw, J., concurring in part and dissenting in part) ("[I]n exchange for [the doctor's] services, [the patient] signed a letter of protection in which he assigned [to the doctor] his insurance benefits and any and all causes of action available to him under the policy....").

      2. In a personal injury lawsuit, an impairment rating is relevant to whether and to what extent the plaintiff sustained an injury and to evaluate the amount of damage, if any. Music v. Hebb, 744 So.2d 1169, 1171-72 (Fla. 2d DCA 1999). An impairment rating “is an appraisal of the nature and extent of the patient's illness or injury as it affects [her] personal efficiency in one or more of the activities of daily living.” Fla. Worker's Comp. Inst., Inc., The 1996 Fla. Unif. Permanent Impairment Rating Schedule 4 (1996). A physician may assign a percentage of overall impairment for musculoskeletal conditions such as fractures, soft tissue injuries, herniated discs, pain associated with chronic muscle spasm, restricted range of motion, broken bones, and neurologic impairment. Id. at 11-14. Surgical treatment may add percentage points. Id. The thrust of Dr. Knezevich’s testimony was that the impairment rating reflected a worsening of Ms. Baber's condition after surgery.

      . A proposed instruction published in the October 1, 2011, Florida Bar News, provides: Subsequent injuries caused by medical treatment: If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to (claimant), then (defendant(s)) [is][are] also responsible for any additional [loss] [injury] [or] [damage] caused by medical care or treatment reasonably obtained by (claimant). “Proposed Jury Instructions in Civil Cases,” Fla. Bar News, Vol. 38, No. 18 (2011), at 28.

      . In an interesting variation, the defendant in Berrios v. Spine, 76 So.3d 967 (Fla. 5th DCA 2011), argued that neither he nor the plaintiff should have to pay the medical provider’s bills that the defendant alleged were both unrelated to the accident and "noncompensa-ble [and] unlawful.”


author: PER CURIAM. GROSS, J.,

text:
    STATE of Florida, Appellant, v. Harry James CHUBBUCK, Appellee.
    No. 4D10-5014.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, for appellee.
   PER CURIAM.

The state appeals a final order revoking Harry Chubbuck’s probation and granting a downward departure sentence. We sua sponte consider this case en banc to recede from a line of our cases that imposes a requirement on a sentencing statute that goes beyond the plain language of the statute.

Pursuant to a plea bargain involving drug related offenses, Chubbuck was adjudicated guilty and placed on five years of probation with a condition that required him to abstain from the consumption of illegal drugs.

About a year later, the probation officer filed an affidavit alleging that Chubbuck had violated his probation, in that Chub-buck’s urine had tested positive for cocaine.

At the beginning of the hearing on the probation violation, the parties staked out their positions on what the trial court should do if Chubbuck admitted the violation. The state argued that the court should revoke probation and either reinstate it or sentence Chubbuck to prison; the state represented that the bottom of the sentencing guidelines was 37.65 months. Chubbuck argued that the court should revoke probation and sentence him to time served, which was 97 or 98 days at that point, because he was “a very, very ill man” who should “get treated for all of the various things that ail him.”

Chubbuck testified that he was in the United States Army between 1961 and 1971, where he served in Vietnam as a surgical technician on air ambulances during the Tet Offensive. During his time in the service, he was awarded a Bronze Star and a Silver Star, as well as 22 air medals, one air medal for each half hour of combat flight time. Chubbuck said that he was shot down four times in one day trying to retrieve a radio operator. He was undergoing treatment for Post-Traumatic Stress Disorder at a Veterans Administration hospital, which was helping his condition. Chubbuck also suffered from chronic obstructive pulmonary disease, “some sort of lower left ventricle problem,” and diabetes.

Chubbuck’s fiancée testified that Chub-buck was a law-abiding person who was “very ill”; she took him to the “VA all the time.” Chubbuck introduced a multi-page statement summarizing his military service and health conditions; under oath, Chub-buck attested to the veracity of the information in the statement.

Pointing to the testimony, Chub-buck asked the court to grant a downward departure, terminate probation, and sentence him to time served. He relied on subsection 921.0026(2)(d), Florida Statutes (2009), which allows a trial court to depart from the “lowest permissible sentence” if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” In response, the state argued that there was no evidence to show that the Department of Corrections could not treat Chubbuck’s illnesses, so subsection (2)(d) could not be used to justify a downward departure sentence.

The trial judge made the following findings:

This defendant does not belong in prison, and it’s absurd to have a 66-year-old man, who put his life on the line for our country, and has the problems he now has under the supervision of the Department of Corrections ...
The defendant has spent 97 days in jail because he tested positive for cocaine[.] [Ejven if he used cocaine!,] I question whether anybody in this courtroom or this world, who went through in Vietnam when people like me sat home in our own living rooms and watched the war on television, would have handled this any better than the defendant.
The defendant is not accused of committing any new crimes. He is 66 years old. He has so many problems now dealing with mental health and physical problems. The common sense says enough is enough.
And the Court respects the State’s right to appeal. I just hope that there comes a time when justice is not based solely on formulas and mathematical calculations. This is an unusual case, and I believe justice is best served by treating the time spent in jail as significant punishment for the violation, and the defendant needs to move on with his life.
So, the Court accepts his admission of violating probation, revokes probation.
And sentenced] him to [96 ] days in jail with credit for [96] days time served.

On appeal, the state argues that because Chubbuck did not present evidence that the Department of Corrections cannot provide the required specialized treatment, there was no competent, substantial evidence to support the trial court’s decision to impose a downward departure sentence under subsection 921.0026(2)(d). Thus, the state challenges the legal ability of the sentencing judge to depart downward, step one of a two-step process identified by the Supreme Court in Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999). Under step one,

[t]he court must determine whether it can depart, whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.

Id. at 1067.

Under Florida’s sentencing statutes, “[a] downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2009). Subsection 921.0026(1) continues by indicating that subsection, 921.0026(2) provides a non-exclusive list of mitigating factors. Id. (“Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).”). Although the trial court did not cite to a specific statutory section or use the term “mitigating factor,” both the state and Chub-buck invoked subsection 921.0026(2)(d), and the court’s findings on Chubbuck’s health suggest that subsection as the ground for the court’s departure.

Subsection 921.0026(2)(d) provides that a trial court may depart from the lowest permissible sentence if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” This court and the other districts have supplemented the plain language of the statute with the further requirement that, “[i]f a departure is to be permitted on such ground, the defendant must also establish, by a preponderance of the evidence, that the Department of Corrections cannot provide the required ‘specialized treatment.’ ” State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); see also, e.g., State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004).

Here, the state correctly asserts that Chubbuck offered no evidence that the Department of Corrections could not provide Chubbuck the required treatment for his mental and physical disorders.

However, the plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing. We are persuaded by the concurring opinion of Judge Warner in State v. Hunter, 65 So.3d 1123, 1125-26 (Fla. 4th DCA 2011), that we should recede from those of our eases that have added gloss to the statute. We adopt the reasoning in Judge Warner’s concurring opinion as the opinion of the court:

I agree that this case should be affirmed, but I write separately to question whether the statutory factor of need of specialized treatment requires the defendant to prove that the treatment he needs is not available in the prison system. Because the statute does not make this a requirement, I would conclude that it is not part of the defendant’s burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code.
Section 921.0026 provides mitigating circumstances “under which a departure from the lowest permissible sentence is reasonably justified....” These include: “(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”
Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required. See State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

This requirement appears to have had its origins in Abrams, the first time we find it mentioned in case law. Abrams involved a downward departure sentence from a guidelines sentence, because the crime for which he was being sentenced occurred in 1997, prior to the enactment of the Criminal Punishment Code. However, the statute at the time included the same mitigating factor but no reference to the unavailability of treatment in prison. See § 921.0026(2)(d), Fla. Stat. (1997). In Abrams, the court said, without citation to any authority: “There is no evidence in the record, however, that Mr. Abrams requires specialized treatment for HIV that cannot be provided through the Department of Corrections.” 706 So.2d at 904. On the other hand, in State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998), Judge Griffin accurately noted in discussing the same statute involved in Abrams, that

(A] lack of available treatment in prison is not required under the statute. Although illness is not a “get out of jail free card,” a treatable physical disability is one of the circumstances where the legislature has chosen to re-invest trial judges with discretion to vary from sentencing guidelines.
Id. at 36. Despite this conflict of opinion between the districts, the courts appear to have turned the one sentence in Abrams into an additional element for the defendant to prove in order to obtain a downward departure sentence under section 921.0026(2)(d), Florida Statutes. Our court likewise adopted this element as part of the defendant’s burden of proof, without any authority other than the citation of cases, which lead back to Abrams. See, e.g., Gatto, 979 So.2d at 1233; Green, 971 So.2d at 148.
Sentencing statutes must be strictly construed according to their letter. See Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); Atterbury v. State, 991 So.2d 980, 981 (Fla. 4th DCA 2008). In sentencing, the trial judge should strictly follow the dictates of statutes. See Troutman v. State, 630 So.2d 528, 533 n. 6 (Fla.1993), superseded by statute on other grounds as stated in Ritchie v. State, 670 So.2d 924 (Fla.1996). In addition, the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. See § 775.021(1), Fla. Stat. (2008).
By requiring the defendant seeking downward departure from a criminal punishment code sentence to prove that services to treat his or her medical condition are unavailable in prison, the courts have placed an additional burden on the defendant which is not required by the Legislature. In fact, nothing in the legislative history even hints that in order to justify a downward departure on this ground, services must be unavailable in prison to treat the condition. While that might be what the Legislature intended, I think it should state its intentions clearly so that no one has to guess as to the requirements in punishment statutes.
The burden of proving a negative, i.e. that no treatment options exist in the prison system, is problematic for the defendant and defense attorneys. For instance, in this case the expert testified that she had been unable to reach Department of Corrections officials to have them explain their treatment procedures in the prison system. Instead she relied on other information, including her work with former inmates and the general protocols for treating mental illness, as well as other information which might be considered hearsay.
The prison system is a very large institution with very large medical facilities. To track down all of the available treatment in the system may be a daunting and very expensive task, adding to an already overburdened public defender system. On the other hand, the information on availability of treatment is readily available to the state. I think the state is in the better position to offer such proof in opposition to a downward departure.

Hunter, 65 So.3d at 1125-26 (Warner, J., specially concurring) (emphasis in original).

Here, the trial judge believed the testimony that Chubbuck had mental and physical problems for which he was receiving treatment at the Veterans’ Administration Hospital. Neither the state nor Chubbuck offered any evidence as to the treatment options available to him at the Department of Corrections. The trial judge properly considered Chubbuck’s age and medical conditions as “mitigating factors” that justified a downward departure. This finding was consistent with subsection 921.0026(2)(d).

We recede from Hunter, Belluscio, Gatto, and Green and certify direct conflict with State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998); State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); and State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005).

Because the state was not on notice of this court’s present view of subsection 921.0026(2)(b) at the time of the sentencing hearing, we reverse the sentence to provide the state another opportunity to present evidence as to whether the Department of Corrections can provide the required “specialized treatment.” Although the state had the opportunity to present such evidence at the sentencing hearing, we recognize the possibility that the state did not present such evidence given this court’s view of the law at that time. We emphasize, however, that if the state presents such evidence at the new sentencing hearing, the trial court is not precluded from granting the defendant’s request for a downward departure for the same reasons. Rather, the state’s evidence is merely an additional factor which the trial court may consider in exercising its discretion as to whether to grant the defendant’s request for a downward departure.

Reversed and remanded for a new sentencing hearing.

MAY, C.J., WARNER, POLEN, STEVENSON, GROSS, TAYLOR, DAMOORGIAN, CIKLIN, GERBER, LEVINE, and CONNER, JJ., concur.

HAZOURI, J., recused.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I write to emphasize that the record presents reasons for a downward departure that support the circuit court’s sentencing decision, in addition to the ground contained in subsection 921.0026(2)(d).

For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those “mitigating factors” specified in subsection 921.0026(2). Rather, subsection 921.0026(1) states that a judge is “prohibited” from downwardly departing

unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).

(emphasis added). The statute thus allows the sentencing judge some discretion in identifying those mitigating factors and circumstances that justify a downward departure.

Here, in addition to Chubbuck’s mental health and physical problems under subsection 921.0026(2)(d), the trial court also considered his age and the fact that he was not a danger to the general public. The court’s sentence was consistent with research by criminologists and the sound utilization of the resources of the Department of Corrections. In 1995, in discussing the imposition of long, mandatory sentences for “three strikes” offenders, the Florida Task Force for the Review of the Criminal Justice and Corrections Systems, a commission created by the legislature at Chapter 93-404, Laws of Florida, observed:

Most criminologists believe that the years between ages eighteen and thirty-four are the high crime years. As offenders age, they tend to commit fewer offenses. Many criminologists believe that incarcerating offenders well past their high crime years may be a poor use of expensive resources, especially if younger, more violent, and crime-prone offenders are released early after their first or second conviction because of limited space. In addition, older prison populations tend to have more frequent and expensive medical problems adding to the drain on resources.

Final Report, Florida Task Force for the Review of the Criminal Justice and Corrections Systems (January, 1995), p. 59.

      . The court originally announced a different number of days, but later corrected that number.

       Furthermore, the Fifth District’s own case law is internally inconsistent. The Fifth District never receded from Spioch, but subsequent Fifth District opinions have required the defendant to prove that the Department cannot provide the specialized treatment required. See Mann, 866 So.2d at 182; Tyrrell, 807 So.2d at 128; Thompson, 754 So.2d at 127.

      . See Fla. R.App. P. 9.030(a)(2)(A)(vi).

      . “Basically, three strikes legislation imposes life (or extremely long) sentences on offenders who are convicted of a third felony. The legislation varies in the number of offenses (two in some states, including Georgia) needed to trigger the sanction, the type of offenses (in some states, the offenses must be violent felonies), and the method by which they were enacted....” Final Report, Florida Task Force for the Review of the Criminal Justice and Corrections Systems (January, 1995), p. 59.


text:
    Alvin GENTRY, Appellant, v. Emma MORGAN, Appellee.
    No. 3D11-1897.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      James D. Tittle, Hiawassee, Ga., for appellant.
    Rieran P. Fallon and Rae Shearn, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   RAMIREZ, J.

Alvin Gentry appeals the trial court’s decision to vacate an agreement and judgment establishing the amount of support for his minor child. Because the parties’ agreement is unambiguous and not against public policy, we reverse and remand for the trial court to reinstate the previous judgment.

In 1995, Emma Morgan sued Gentry for paternity, and Gentry and Morgan settled the case. Pursuant to the settlement, child support was set at $1285 per month, but that amount was modified in 1999 after Morgan petitioned the court to increase the amount Gentry was required to pay. After the 1999 modification proceeding, Gentry and Morgan entered into a court-approved agreement that set child support at $2500 per month. Under the agreement, the amount was not to be modified unless certain conditions were met. Upward modification required proof that Gentry’s salary increased to $2.5 million per year, and downward modification required that Gentry’s salary drop below $500,000 per year. Gentry’s profession involves fluctuations in income. Although Gentry has enjoyed professional success since 1999, it is undisputed that during the relevant time, Gentry’s salary has not exceeded the $2.5 million per year threshold.

In 2010 Morgan petitioned the trial court to modify the child support. Although the conditions set in the agreement have not been met, Morgan contends that the circumstances have changed, in a manner that could not have been foreseen, and consequently the amount of support should be modified. In particular, Morgan contends that increases in the ordinary cost of living for the child, such as educational and transportation expenses, have occurred since 1999, which justify modifying the agreed-upon terms. For example, at oral argument, Morgan’s counsel stated that additional funds from Gentry would facilitate the child’s attendance at rigorous and challenging schools which he has the opportunity to attend, but for which the cost of attendance is high.

Gentry answered the complaint, asserting the agreement and earlier judgment as a defense to modification. Gentry then moved for summary judgment on this defense. In response, pursuant to Florida Rule of Civil Procedure 1.540 and Florida Family Law Rule of Procedure 12.540, Morgan requested the trial court vacate the 1999 judgment and re-open the issue of the appropriate amount of support, because she contended the judgment was void as a matter of Florida public policy. The trial court agreed, vacated the judgment as void against public policy for failure to account for changes in circumstances, and denied summary judgment because there were issues of fact regarding the appropriate amount of support. Gentry timely appealed the trial court’s order.

Florida law does not, as a matter of public policy, preclude agreements between parents establishing the terms of child support. “The fact that parents may not waive or ‘contract away’ their child’s right to support does not preclude them from making contracts or agreements concerning their child’s support so long as the best interests of the child are served.” Lester v. Lester, 736 So.2d 1257, 1259 (Fla. 4th DCA 1999) (citations omitted); see also Laussermair v. Laussermair, 55 So.3d 705, 706 (Fla. 4th DCA 2011); Schmachtenberg v. Schmachtenberg, 34 So.3d 28, 33 (Fla. 3d DCA 2010). “Where, however, the trial court has approved the parents’ agreement, including its child support provision, then the court is presumed to have determined that the amount of child support agreed upon was, as of that moment, in the best interests of the child,” and consequently, any later modification must be predicated upon a change of circumstances. Essex v. Ayres, 503 So.2d 1365, 1367 (Fla. 3d DCA 1987); see also Rose v. Rose, 8 So.3d 1251, 1252 (Fla. 4th DCA 2009).

Here, the trial court erred by nullifying the 1999 agreement rather than enforcing it according to its terms. In entering into the 1999 agreement, the parties considered the child’s current and prospective needs, and possible changes in Gentry’s income. The trial court approved the agreement submitted by the parties. Absent proof of a substantial change in circumstances, the court may not modify the support order in this case. While there may be moral deficiencies in Gentry’s refusal to facilitate his child’s academic achievement, we cannot say these deficiencies require overriding an agreement that is legally valid. As a result, the trial court erred in ordering the agreement must be modified.

Accordingly, we reverse the order entered below, and remand for the trial court to reinstate the 1999 court-approved agreement.

Reversed.


author: GERBER, J.

text:
    Janie Noble SIMON, Appellant, v. Eric A. SIMON, Appellee.
    No. 4D11-2809.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Rehearing Denied April 16, 2012.
    Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellant.
    A. Matthew Miller of Boies, Schiller & Flexner, LLP, Hollywood, for appellee.
   GERBER, J.

The wife appeals the circuit court’s order on her motion for temporary support, fees, and costs during the pendency of her dissolution action against the husband. The wife argues that the court erred by limiting the amount of her temporary support, fees, and costs based upon the terms of the parties’ amended prenuptial agreement.

We agree with the wife and reverse. We must continue to follow Belcher v. Belcher, 271 So.2d 7 (Fla.1972), which holds that until the marriage is dissolved, support cannot be conclusively supplanted by “advance summary disposition by agreement.” Id. at 11. On remand, the “need and ability to pay test” of section 61.16, Florida Statutes (2011), continues to apply. See Lord v. Lord, 993 So.2d 562, 565 (Fla. 4th DCA 2008) (“In the temporary setting prior to dissolution, section 61.16’s need and ability to pay test continues to apply.”) (citation omitted).

Reversed and remanded.

TAYLOR and LEVINE, JJ„ concur.


text:
    Thomas MARTINO, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-3476, 4D11-2514.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Thomas Martino, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas Martino appeals the summary denial of two rule 8.850 motions for post-conviction relief. The appeals were consolidated for review. We affirm without comment the denial of the motion in 4D11-2514. We reverse the summary denial of Martino’s rule 3.850 motion in 4D10-3476 because the motion was facially sufficient and not refuted by the attached records.

Martino was charged with racketeering, conspiracy to commit racketeering, organized scheme to defraud more than $50,000, and six counts of purchase or receipt of a legend drug from an unauthorized person. According to his 3.850 motion, before trial the state offered him concurrent sentences of six to eight years in prison if he pleaded guilty to the charges in this case and another case and cooperated with law enforcement. He alleged that his trial counsel provided ineffective assistance causing him to reject this favorable plea offer by failing to advise and misadvising him about the possible sentence if convicted at trial.

Martino alleged in part that counsel failed to advise him there were no sentencing guidelines binding the court; counsel failed to advise him that the score-sheet set the minimum sentence absent a plea offer or downward departure; and counsel failed to advise him that the court could sentence him up to the statutory maximum on each count and run the sen-tehces consecutively. As Martino understood his attorney, the guidelines range set a parameter for the sentence the court could impose, and the guidelines range in his case was at least as good as the state’s offer.

Based on counsel’s advice that he should reject the offer because he could do as well at trial, Martino elected a trial. A jury convicted him of organized scheme to defraud and the six counts of purchase or receipt of a legend drug. He was originally sentenced to 21 years and six days in prison, but his sentence was later reduced to 13 years in prison for reasons not relevant to this appeal. Martino alleged that if his attorney had accurately advised him about the possible sentence he could receive, he would have accepted the state’s plea offer.

There is some support in the record for Martino’s claim that his attorney was treating this as a guidelines sentencing case although Martino was sentenced under the Criminal Punishment Code, which has no guidelines range and allows for sentencing up to the statutory maximum. Martino also quoted some e-mail exchanges between his trial counsel and postconviction counsel in which his trial counsel seemed to believe Martino’s guidelines range was “not a significant number” although they knew the statutory máxi-mums “were a big number.” Trial counsel did not indicate what he told Martino the statutory máximums were.

Martino’s claim is facially sufficient. See Morgan v. State, 991 So.2d 835 (Fla.2008). In denying this claim, the court did not attach any records that conclusively refute the claim. There is no indication from the attached records that before he rejected the plea offer Martino was advised by counsel or the court that he could be sentenced up to the statutory máxi-mums and that he was correctly advised of the statutory máximums.

The e-mail exchanges discussed in the rule 8.850 motion suggest this attorney was not retained until after Martino rejected the state’s plea offer. If the offer was no longer available, Martino was not prejudiced by this attorney’s omissions or mis-advice about the possible sentence. The email discussions are not part of the record, and Martino does not swear to the truth of counsel’s statements in the e-mails.

Because the claim is facially sufficient and not refuted by the attached records, we reverse and remand for further proceedings.

Reversed and Remanded for further proceedings in case number 4.D10-34-76. Affirmed in case number ^Dll-251f.

WARNER, POLEN and GROSS, JJ., concur.


text:
    Efrain ZALPA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-378.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Efrain Zalpa, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The defendant’s motion to appeal the circuit court’s January 11, 2012, order denying the defendant’s petition for a writ of error coram nobis is treated as a notice of appeal and as the brief. The order below is affirmed on the merits. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Affirmed.


author: CORTIÑAS, J.

text:
    Joseph WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 3D08-2674.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Rehearing Denied April 3, 2012.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

      Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   CORTIÑAS, J.

We affirm the final judgment and sentence of the circuit court in all respects except his conviction for unlawful possession of a firearm during the commission of a criminal offense. Appellant correctly argues that his conviction on this count is illegal and must be vacated as violative of the double jeopardy clause where he was also convicted of one count of armed carjacking, for which a minimum mandatory sentence of ten years was imposed. See Cleveland v. State, 587 So.2d 1145 (Fla.1991); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2008); Hall v. State, 752 So.2d 1245 (Fla. 3d DCA 2000).

Affirmed in part, reversed in part, and remanded.


text:
    Ryan WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3211.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Ryan Williams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    INTERNATIONAL YACHT GROUP, LLC, a Florida Limited Liability Company, and Robert E. Damas, Petitioners, v. MIAMI YACHT & ENGINE WORKS, LLC., a Florida Limited Liability Company, Respondent.
    No. 3D11-1534.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Rehearing Denied April 17, 2012.

      Ramon Tourgeman, Aventura, for petitioners.
    Arnaldo Velez, Coral Gables, for respondent.
    Before SHEPHERD, SUAREZ, and EMAS, JJ.
   SUAREZ, J.

International Yacht Group, LLC., and Robert E. Damas (“International Yacht”) petition for a writ of certiorari to the circuit court to quash an order overruling objections to Miami Yacht & Engine Works, LLC’s., (“Miami Yacht”) request to produce and for protective order. We have jurisdiction. Fla. R.App. P. 9.030(b)(2)(A). Because the trial court overruled the objections and required production of all the documents without first determining if, in fact, Miami Yacht is a member of the Agreement in question, we grant the petition for writ of certiorari in part and remand with instructions for an in camera inspection of the documents requested.

Miami Yacht sued International Yacht to enforce its rights pursuant to section 608.4101, Florida Statutes (2010), to obtain records of the LLC, as is required under the statute upon request of a member. Miami Yacht alleged that it was a member under the LLC’s Operating Agreement and attached a list of the records requested, including federal, state, and local income tax returns, operating agreement, cash or services contributed by each member and other records of all members of the company. International Yacht filed an answer and affirmative defenses, including that Miami Yacht failed to state a cause of action, as it was not a member of International Yacht, and that it lacked standing to bring the action, failing to attach to the complaint proof of membership. Miami Yacht filed a first request to produce which included the same records and documents sought to be obtained in its complaint based upon membership in the corporation. International Yacht filed objections to the first request to produce and moved for a protective order. International Yacht claims to have documents proving that Miami Yacht is no longer a member and therefore not entitled to the statutory documents requested. The problem is that International Yacht argues it is not required to produce until trial, on the issue of whether or not Miami Yacht is a member, not only the statutorily required documents, but also the documents it claims prove Miami Yacht is not a member. The trial court denied the motion for protective order and ordered production of the documents without first making a finding on whether or not Miami Yacht is a member of the Operating Agreement.

Miami Yacht alleged that it was a member of International Yacht pursuant to the Operating Agreement, later provided a copy of the Operating Agreement listing it as a member, and then filed a request to produce the same information it had requested in the complaint. The requested corporate information reasonably related to the operation of International Yacht is required to be provided under section 608.4101, Florida Statutes (2010). See Merovich v. Huzenman, 911 So.2d 125 (Fla. 3d DCA 2005) (holding that operating agreements attached to the complaint demonstrating membership in LLC precludes dismissal of count to inspect records under section 608.4101).

International Yacht’s argument, that it does not have to produce until trial any documents, either those required by statute or those it claims proves Miami Yacht is not a member, is not correct. The rules of discovery and the statute in question are designed to enable both parties to have the necessary information prior to going to trial. Therefore, we quash the order in part, approve the order in part and remand to the trial court to determine in camera by inspection of the documents requested to be produced, those documents which relate to, in any way, the issue of whether or not Miami Yacht is a member under the Agreement. Those documents are to be produced to Miami Yacht. Should it then be determined that Miami Yacht is a member, International Yacht shall produce the requested information reasonably related to the operation of International Yacht as required under section 608.4101.

Petition for writ of certiorari granted in part; remanded with directions.

      . 608.4101 Records to be kept; right to information.—

      (2) A limited liability company shall provide members and their agents and attorneys access to its records at the limited liability company’s principal office, or other reasonable locations specified in the operating agreement. The limited liability company shall provide former members and their agents and attorneys access for proper purposes to records pertaining to the period during which they were members. The right of access provides the opportunity to inspect and copy records during ordinary business hours. The limited liability company may impose a reasonable charge, limited to the costs of labor and material, for copies of records furnished.
      (3) A limited liability company shall furnish to a member, and to the legal representative of a deceased member or member under legal disability;
      (a) Without demand, information concerning the limited liability company’s business or affairs reasonably required for the proper exercise of the member's rights and performance of the member's duties under the operating agreement or this chapter; and
      (b) On demand, other information concerning the limited liability company’s business or affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances, (emphasis supplied)

      . The Operating Agreement listing Miami Yacht as a member was attached as an exhibit to Answers to Interrogatories served after the filing of the complaint.

      . We do not address the affirmative defense alleging the invalidity of the Operating Agreement as it is an evidentiary issue to be determined by the trial court.


text:
    In re GUARDIANSHIP OF K.R.C., Leroy H. Merkle, Jr., P.A., Appellant, v. Rochelle P. Weems, as Guardian of K.R.C., Appellee.
    No. 2D10-5956.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      LeRoy H. Merkle, Jr., of LeRoy H. Merkle, Jr., P.A., Tampa, for Appellant.
    Joseph T. McCormick, III, and Karla Carnes Allen of Allen Law, P.A., River-view, for Appellee.
   LaROSE, Judge.

LeRoy H. Merkle, Jr., appeals an order denying his petition for attorney’s fees and costs in a guardianship matter. We have jurisdiction. Fla. R.App. P. 9.080(b)(1)(A). The trial court applied the incorrect law. Accordingly, we must reverse.

Mr. Merkle represented the guardian of the ward, K.R.C. The guardian discharged Mr. Merkle as counsel and retained another law firm. Mr. Merkle then filed a petition for attorney’s fees related to his representation. The guardian objected. She argued that Mr. Merkle billed for administrative tasks. She also argued that the guardian could have performed these tasks at no cost to the ward. The trial court granted the petition but awarded fees for a lesser amount than requested.

Thereafter, Mr. Merkle filed a second petition for attorney’s fees and costs. The guardian again objected, arguing that Mr. Merkle billed for administrative tasks that did not benefit the ward. After an eviden-tiary hearing, the trial court ruled that Mr. Merkle was not entitled to fees and costs incurred postrepresentation for administrative tasks and follow-up relating to the prior fee order. The trial court relied on Zepeda v. Klein, 698 So.2d 329 (Fla. 4th DCA 1997), which held that an attorney was not entitled to recover fees for time spent in collecting fees from the ward or the ward’s heirs because that work did not inure to the ward’s benefit and was not statutorily authorized. Id. at 330. In effect, the trial court ruled that Mr. Merkle could not recover fees for performing administrative tasks involved in litigating for fees. The trial court declined to address whether the second petition sought a reasonable fee award. We express no view on that issue.

We hold, however, that section 744.108(8), Florida Statutes (2010), first adopted in 2003, supersedes Zepeda and authorizes such fees that are not substantially unreasonable:

When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including fees for the guardian’s attorney, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.

The trial court erred in relying on Zepe-da to deny Mr. Merkle’s second petition for attorney’s fees. We reverse and remand for further proceedings in accordance with section 744.108.

Reversed and remanded.

SILBERMAN, C.J., and MORRIS, J., Concur.

      1. § 744.108(2)(a)-(i) provides the criteria the trial court shall consider when determining fees for a guardian or an attorney.


text:
    Leonardo N. DiGIOVANNI a/k/a Leonardo DiGiovanni, individually and as Trustee of the DiGiovanni Trust, DTD 4-18-95; Unknown Parties in Possession # 1; Unknown Parties in Possession # 2; If living, and all Unknown Parties claiming by, through, under and against the above named defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants, Appellant, v. BAC HOME LOANS SERVICING, L.P. f/k/a Countrywide Home Loans Servicing, L.P., Appellee.
    No. 2D11-5265.
    District Court of Appeal of Florida, Second District.
    March 14, 2012.

      Mark P. Stopa of Stopa Law Firm, St. Petersburg, for Appellant.
    Kimberly N. Hopkins of Shapiro & Fish-man, LLP, Tampa, for Appellee.
   DAVIS, Judge.

Leonardo DiGiovanni, individually and as Trustee of the DiGiovanni Trust, challenges the trial court’s nonfinal order denying his motion to quash substitute service and abate for lack of personal jurisdiction in BAG Home Loans Servicing’s mortgage foreclosure action. We reverse.

At the outset of this case, BAC made several attempts to personally serve the complaint on DiGiovanni via a process server in DiGiovanni’s home state of California. After making eight unsuccessful visits to DiGiovanni’s residence, the process server swore to two affidavits of avoidance, in which he detailed his attempts at personal service.

BAC then proceeded with service by publication. In response, DiGiovanni’s counsel filed a notice of appearance which states: “Mark P. Stopa, Esquire and the Stopa Law Firm hereby make a general appearance on behalf of Defendant, [Leonardo N. DiGiovanni], and request[] that copies of all pleadings, notices, and correspondence be served upon him at the address listed below.” Stopa also filed a motion for extension of time to respond to the complaint.

The extension was granted, and then DiGiovanni filed a motion to quash service by publication. In his motion to quash service, DiGiovanni argued that BAC “failed to engage in a diligent search and inquiry of Defendant ] prior to resorting to substitute service.” He further denied BAC’s allegation that he had been evading personal service. He maintained that because “evading service was the basis for service by publication, service is ineffectual because [p]laintiff failed to allege ultimate facts, in its [c]omplaint, showing that [defendant was evading service.”

The trial court did not hold a hearing on the motion but rather entered an order denying DiGiovanni’s motion to quash, concluding that he had “submitted himself to the jurisdiction of the [cjourt by filing a motion for extension of time, before filing the [mjotion to [q]uash. The [defendant sought affirmative relief from the [cjourt.”

DiGiovanni filed a motion for rehearing of that ruling, but the trial court denied that motion as well.

On appeal, DiGiovanni argues that the trial court erred in concluding that he had submitted himself to the jurisdiction of the court by the filing of a notice of appearance and a motion for extension of time to file his answer. He maintains that such does not amount to seeking affirmative relief from the court. We agree.

The trial court is correct that “[ijf a party does not challenge personal jurisdiction until after a general appearance in the case, the party has waived the right to contest personal jurisdiction.” See Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005). However, “the filing of a ‘notice of appearance’ by [defendant’s] counsel did not waive [defendant’s] right to claim lack of jurisdiction over [his] person.” Public Gas Co. v. Weatherhead Co., 409 So.2d 1026, 1027 (Fla.1982). Furthermore, a motion for extension of time does not constitute a general appearance. Barrios v. Sunshine State Bank, 456 So.2d 590, 590 (Fla. 3d DCA 1984) (“The single issue presented by this appeal is the question of whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios’ defense of lack of personal jurisdiction and insufficiency of service of process. It does not.” (emphasis added)).

We do note that in his notice of appearance, DiGiovanni’s counsel did use the phrase “hereby make a general appearance on behalf of Defendant.” However, regardless of how it is titled, in order for a filing to actually constitute a general appearance before the court, it must seek some sort of affirmative relief on the merits of the case. See generally Ginsberg v. Lamour, 711 So.2d 182, 183 (Fla. 4th DCA 1998) (concluding that response to a motion for default did not constitute general appearance because it did not request affirmative relief); Moo Young v. Air Canada, 445 So.2d 1102, 1104 (Fla. 4th DCA 1984) (“The motions filed by appellees did not go to the merits of the case and therefore did not constitute a general appearance waiving the absence of jurisdiction.”).

As such was not the case here, we reverse the trial court’s nonfinal order denying DiGiovanni’s motion to quash service by publication and remand to the trial court with instructions to address the merits of that motion.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.