author: WALLACE, Judge.

text:
    Janet GAWTREY, Appellant, v. Tonette HAYWARD, as Parent and Natural Guardian of Collier Martin, Appellee.
    No. 2D09-5012.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.

      Brandice D. Dickson of Pennington Moore Wilkinson Bell & Dunbar, P.A., Tallahassee, for Appellant.
    Sanga Turnbull of Hardaway, Turnbull Law Firm, Lakeland, for Appellee.
   WALLACE, Judge.

Janet Gawtrey was the defendant in a dog-bite case. After the entry of a defense verdict, Ms. Gawtrey moved for attorney’s fees and costs based on a proposal for settlement that had been rejected by the plaintiff, Tonette Hayward. The trial court struck the proposal for settlement and denied the motion. The trial court reasoned that the $1500 offer was “nominal” and that Ms. Hayward’s case “was worthy of trial.” However, under section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442, Ms. Gaw-trey was entitled to an award of attorney’s fees and costs unless the trial court determined that Ms. Gawtrey’s proposal was not made in good faith. Because the trial court failed to find that the proposal was not made in good faith and because the facts would not have supported such a finding, we reverse the trial court’s order.

I. THE FACTS AND PROCEDURAL BACKGROUND

Ms. Gawtrey is the mother of Scott Gawtrey. Scott and his wife Cassandra lived in Lakeland and owned a pit bull terrier named Dozier. On July 25, 2007, both Ms. Hayward and Ms. Gawtrey were guests at Scott and Cassandra’s home. Ms. Hayward was accompanied by her four-year old son, Collier Martin; Ms. Gawtrey was accompanied by her granddaughter. Cassandra was at home, but Scott was elsewhere.

Before her guests arrived, Cassandra took Dozier and one or more of her other dogs out of the house and placed them in the backyard. A sliding glass door led from the house to the backyard. Cassandra closed — but did not lock — the sliding glass door. While Ms. Hayward and Ms. Gawtrey were at the home, Dozier was repeatedly barking and jumping against the sliding glass door. Somehow, Dozier obtained access to the house through the sliding glass door and viciously attacked Collier Martin. Collier sustained serious injuries in the attack. Some of the unfortunate child’s injuries were permanent in nature. At trial, the parties stipulated that the child’s past medical expenses totaled $7419.97; additional medical expenses for him were anticipated.

In January 2008, Ms. Hayward filed an action for negligence on behalf of her son against Ms. Gawtrey. For reasons unexplained in our record, Ms. Hayward did not include Scott and Cassandra Gaw-trey — the dog’s owners — as defendants in the action. Ms. Hayward’s theory of the case was that Ms. Gawtrey had opened the sliding glass door and allowed Dozier to enter the house and attack Collier Martin. In response, Ms. Gawtrey denied that she had opened or even touched the sliding glass door. Her theory was that Dozier was able to enter the home after his repetitive jumping against the sliding glass door caused it to open slightly.

Although Ms. Hayward did not join Scott and Cassandra Gawtrey as defendants in the action, they were named as Fabre defendants on the verdict form. Thus the liability issues at trial centered on two questions: First, how did the sliding glass door become open, allowing Dozier to enter the home? Second, what percentage of fault, if any, was attributable to Ms. Gawtrey, Scott and Cassandra Gaw-trey, and Ms. Hayward? In its verdict, the jury found that Ms. Gawtrey was not negligent. Thus the case was resolved completely in her favor.

On June 11, 2008, approximately eleven months before trial, Ms. Gawtrey served a proposal on Ms. Hayward, offering to pay $1500 to settle the case. Ms. Hayward rejected the proposal because she understandably concluded that it was not a reasonable offer. After the jury’s verdict, Ms. Gawtrey moved for the entry of final judgment in her favor and for an award of attorney’s fees and costs based on the rejected offer of settlement. Ms. Gawtrey also requested an award of her taxable costs under section 57.041, Florida Statutes (2008).

The parties stipulated to the amount of Ms. Gawtre/s attorney’s fees and costs. The only issue at the hearing on Ms. Gaw-trey’s motion was whether the proposal for settlement was made in good faith. After the hearing, the trial court entered a final judgment in favor of Ms. Gawtrey on Ms. Hayward’s claim. With regard to the proposal for settlement, the trial court found:

The Defendant served a Proposal for Settlement on the Plaintiff in the amount of $1,500.00 which the Plaintiff rejected. The relevant facts adduced at trial were as follows: The minor Plaintiff was the invitee; the homeowner’s dog entered the home and attacked the Plaintiff without provocation; the Plaintiff was seriously injured with $13,000 in past medicals[]; and the Plaintiff will need future surgery. The Defendant, also an invitee, claimed the theory of strict liability applied. Therefore, the Defendant as the non-dog owner was not liable. The Defendant ] failed to get a dismissal on this ground. However, if applicable, [she] could have obtained a directed verdict at the close of Plaintiffs case in chief. The issue argued by the Defendant went to trial. The Court ultimately ruled against the Defendant and the case went to the jury on the Plaintiffs theory of invitee negligence. The jury was left to weigh the credibility of the parties. The only witness to the dog bite other than the parties was the Defendant’s daughter-in-law who owned the home and the dog.
The settlement offer of $1,500.00 was nominal cost against $13,000 in past medicals and the need for future medical/surgical care for the four (4) year old child/victim who now has a large gash and suffers from alopecia where the scalp was bitten off completely.
The Defendant’s assessment of liability rested on two (2) factors: First, the application of strict liability which the Defendant lost. Second, the Defendant’s credibility over the Plaintiffs credibility which is a matter for the jury. The Court finds the cause was worthy of trial.

On this basis, the trial court struck the proposal for settlement and denied the motion for attorney’s fees. The trial court also denied Ms. Gawtrey’s cost request. This appeal followed.

II. THE APPLICABLE LAW

Ms. Gawtrey made a proposal for settlement that was not accepted. The judgment ultimately entered was one of no liability. Thus Ms. Gawtrey was entitled to an award of fees under section 768.79(1). See Camejo v. Smith, 774 So.2d 28, 29 (Fla. 2d DCA 2000); Donohoe v. Starmed Staffing, Inc., 743 So.2d 623, 624 (Fla. 2d DCA 1999). But once Ms. Gawtrey established her entitlement to fees and costs, the trial court could still — in its discretion — determine that her offer was not made in good faith and disallow an award of fees and costs. See § 768.79(7)(a); Camejo, 774 So.2d at 29; Donohoe, 743 So.2d at 624. The burden was on Ms. Hayward to prove the absence of good faith. See TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 613 (Fla.1995); Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643, 647 (Fla. 2d DCA 2006). Once Ms. Gawtrey established her entitlement under the statute, a decision by the trial court to deny her an award of fees and costs had to be supported by a finding that her offer was not made in good faith. See Stofman v. World Marine Underwriters, Inc., 729 So.2d 959, 960 (Fla. 4th DCA 1999).

In making a determination of Ms. Gawtrey’s good faith, the reasonableness of Ms. Hayward’s decision to reject the proposal for settlement was irrelevant. See TGI Friday’s, 663 So.2d at 613; Wagner v. Brandeberry, 761 So.2d 443, 445 (Fla. 2d DCA 2000). Instead, the question of whether the proposal was served in good faith depended on whether Ms. Gaw-trey had a reasonable foundation to make her offer and made it with the intent to settle the claim made against her by Ms. Hayward if the offer had been accepted. See Wagner, 761 So.2d at 446 (citing Dep’t of Highway Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999)). The fact that Ms. Gawtrey’s offer was nominal in amount is not necessarily determinative of the issue of good faith. See Weesner v. United Servs. Auto. Ass’n, 711 So.2d 1192, 1194 (Fla. 5th DCA 1998) (citing Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997)). In assessing whether Ms. Gawtrey’s nominal offer was made in good faith, the trial court was required to look at whether Ms. Gawtrey had a reasonable basis when the offer was made to conclude that her exposure in the case was nominal. See Fox v. McCaw Cellular Commc’ns of Fla., Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998); see also State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874, 876 (Fla. 2d DCA 1997) (holding that an offer of one dollar was made in good faith). Our review of the trial court’s determination of the good faith issue is for abuse of discretion. See Talbott, 934 So.2d at 647 (citing Hall v. Lexington Ins. Co., 895 So.2d 1161, 1166 (Fla. 4th DCA 2005)).

III. DISCUSSION

Here, the trial court’s order is insufficient to support a denial of fees and costs to Ms. Gawtrey for several reasons. First, the order fails to contain the necessary finding that the offer was not made in good faith. See Stofman, 729 So.2d at 960. Second, the trial court refers to the failure of Ms. Gawtrey to obtain a dismissal of the case on the theory that section 767.04, Florida Statutes (2007), made Scott and Cassandra Gawtrey exclusively liable to persons bitten by their dog. However, the defeat of this theory did not prevent Ms. Gawtrey from arguing that the jury should allocate all or substantially all of the fault for the dog’s attack to its owners. Third, the trial court’s reliance on the nominal amount of the offer compared to the severity of the child’s injuries and the credibility issues presented at trial improperly focuses on Ms. Hayward’s reasons for rejecting the proposal for settlement. Ms. Hayward probably had good reasons for rejecting the $1500 offer. But, under a proper analysis of the good faith issue, the reasons for her rejection of the offer are not relevant. See TGI Friday’s, 663 So.2d at 613; Wagner, 761 So.2d at 445.

Moreover, Ms. Gawtrey established that she had a reasonable foundation to make her offer. Initially, we note that the offer was not made prematurely. When Ms. Gawtrey served her offer, all three of the adults who were present during the incident had been deposed. And additional discovery had provided information about the child victim’s injuries and medical expenses. Second, Ms. Gawtrey could reasonably conclude that a jury would reject Ms. Hayward’s claim that Ms. Gaw-trey intentionally opened the sliding glass door to allow the visibly agitated Dozier to enter the house. Third, the presence of Scott and Cassandra Gawtrey on the verdict form as Fabre defendants made it probable that the jury would assign all or substantially all of the liability to them as the dog’s owners. See § 767.04; cf. Registe v. Porter, 557 So.2d 214, 215 (Fla. 2d DCA 1990) (noting that “section 767.04 imposes absolute liability upon a dog owner for a dog-bite when the dog-bite victim is ... lawfully on or in a private place except when the dog is carelessly or mischievously provoked or when the owner has displayed in a prominent place on the premises a sign easily readable including the words ‘Bad Dog’ (or equivalent wording)”). So to the extent that the jury assigned liability to the dog’s owners, Ms. Gawtrey’s exposure would have been reduced. Based on these factors, Ms. Gaw-trey could have reasonably concluded that her exposure to liability at trial was, in fact, nominal. Thus her $1500 offer had a reasonable foundation.

In addition, the trial court should have awarded Ms. Gawtrey her costs under section 57.041(1). See Hendry Tractor Co. v. Fernandez, 432 So.2d 1315, 1316 (Fla.1983). As the prevailing party, Ms. Gawtrey was entitled to an award of her taxable costs without regard to her proposal for settlement. See Martinez v. Ipox, 925 So.2d 448, 450-51 (Fla. 2d DCA 2006); Dozier v. City of St. Petersburg, 702 So.2d 593, 594-95 (Fla. 2d DCA 1997); Marko, 695 So.2d at 875.

IV. CONCLUSION

Ms. Gawtrey’s $1500 offer undoubtedly presented Ms. Hayward with a difficult decision. She could either accept a nominal amount and dismiss her case or continue the litigation and risk the entry of a substantial judgment against her for attorney’s fees and costs. See Fox, 745 So.2d at 339 (Klein, J., concurring specially) (arguing that allowing courts to find nominal offers to be in good faith gives defendants an unfair advantage over plaintiffs). Although we understand Ms. Hayward’s dilemma, adherence to established precedent requires us to hold that the trial court abused its discretion in striking Ms. Gaw-trey’s proposal for settlement and in denying her motion for attorney’s fees and costs. Accordingly, we reverse the trial court’s order and remand for the entry of an order awarding attorney’s fees and costs to Ms. Gawtrey.

Reversed and remanded with directions.

MORRIS and BLACK, JJ., Concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds by Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995).

      . Prior to trial, the parties stipulated that Collier Martin's past medical expenses were $7419.97. We assume that the $13,000 figure mentioned by the trial court includes a future medical expense component.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Kevin L. BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4662.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Kevin Burns appeals an order revoking his probation and sentencing him to prison. See Fla. R. App. P. 9.140(b)(1)(D). The trial court required his counsel to represent him at the revocation hearing, despite an alleged conflict between Mr. Burns and counsel. Mr. Burns claims that the trial court should have held a hearing to explore the nature and extent of the alleged conflict. We agree and reverse.

FACTS

The State charged Mr. Burns with multiple counts of burglary. Upon advice of counsel from the Public Defender’s Office, Mr. Burns pleaded no contest. The trial court withheld adjudication, sentenced Mr. Burns to a suspended term of six years’ imprisonment, and placed him on probation for six years.

Mr. Burns twice violated his probation. Each time, the court reinstated probation. Upon a third violation, the trial court scheduled a revocation hearing.

Another lawyer from the same Public Defender’s Office represented Mr. Burns in the revocation proceedings. Prior to the hearing, however, Mr. Burns filed a pro se motion to correct illegal sentence. He alleged that his original counsel provided incorrect information when advising him to enter a plea; thus, the plea was neither knowing nor voluntary.

At the revocation hearing, Mr. Burns’ new counsel advised the trial court of the potential conflict of interest and asked to withdraw. The trial court took a short recess so counsel could speak with her supervisor. After the recess, counsel’s supervisor appeared at the hearing. He told the trial judge that there was no motion to withdraw because private counsel (who did not appear for Mr. Burns) told him that Mr. Burns was going to withdraw his pro se motion. The supervisor then said, “[I]f [Mr. Burns] would like to waive the conflict ... we’re happy to go forward.... ” Mr. Burns never waived the conflict, and he never withdrew his pro se motion. The trial court ordered counsel to continue representing Mr. Burns. Ultimately, the trial court found that Mr. Burns had violated his probation and sentenced him to six years in prison.

ANALYSIS

We surmise that the trial court ordered counsel to continue representing Mr. Burns because his motion was filed pro se. Ordinarily, a pro se motion filed by a represented party is a nullity. Smith v. State, 21 So.3d 72, 74 (Fla. 1st DCA 2009). This general rule, however, is not unyielding. Sheppard v. State, 17 So.3d 275, 285 (Fla.2009). A represented defendant’s pro se motion is not a nullity when it asserts an adversarial relationship between the defendant and defense counsel. Id. at 285; see also Sviith, 21 So.3d at 74-76. A pro se motion presents an adversarial relationship when it alleges “counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” Sheppard, 17 So.3d at 287. In Sheppard, the Florida Supreme Court articulated the rationale for this exception:

[If these allegations are treated as a nullity,] [t]he administration of justice is further frustrated by the consequence that these allegations, once stricken because a defendant is represented by counsel, may reappear on postconviction in allegations of ineffective assistance of eounsel[,] requiring both the State and defense counsel to respond to those allegations later rather than sooner.

Id. at 286.

Once a defendant files a pro se motion alleging an adversarial relationship, the trial court must determine whether an adversarial relationship does exist. Id. at 287. The trial court must hold a hearing at which the defendant, defense counsel, and the State are present. Id. If the trial court determines that an adversarial relationship exists between the defendant and defense counsel, it must appoint conflict-free counsel to represent the defendant unless the record conclusively refutes the defendant’s allegations. Id.

Mr. Burns’ allegations are sufficient to invoke the Sheppard procedure. Mr. Burns alleged that his original counsel misadvised him and rendered the plea unknowing and involuntary. The trial court should have held a hearing to determine if an adversarial relationship existed and conflict-free counsel was necessary.

We recognize that conflict-free counsel is not necessary if “the record conclusively refutes the defendant’s allegations.” Smith, 21 So.3d at 74. Under those circumstances, any error committed by the trial court is harmless. Harris v. State, 45 So.3d 4, 6 (Fla. 2d DCA 2010); Johnson v. State, 22 So.3d 840, 844-45 (Fla. 1st DCA 2009) (finding harmless error in the trial court’s failure to hold a hearing where the defendant’s claim was refuted by plea colloquy and plea agreement). Our record does not allow us to reach that conclusion. Mr. Burns alleges that his plea agreement was not knowing or voluntary because he was misadvised by counsel. Our record, however, does not include the plea colloquy. Accordingly, we must reverse the judgment and sentence upon revocation of Mr. Burns’ probation and remand with directions to conduct a Sheppard hearing.

Reversed and remanded with instructions.

WHATLEY and WALLACE, JJ., Concur.

      . A defendant is not required to affirmatively seek the discharge of his counsel to bring to the trial court’s attention a clear adversarial relationship. Sheppard, 17 So.3d at 286.


author: DAMOORGIAN, J.

text:
    Kirk Oliver BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4541.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Defendant, Kirk Brown, who was pro se at trial, appeals his judgment and sentence for driving while license revoked-habitual offender and leaving the scene of an accident-causing property damage, raising one issue for our consideration. We affirm defendant’s judgment and sentence.

By way of background, defendant rear-ended a vehicle which had suddenly braked to avoid an accident. The occupants of the forward vehicle exited the vehicle, whereupon defendant, who was accompanied by two female passengers, fled the scene. Defendant was eventually caught and held by several of the occupants in the vehicle he hit until the police arrived. Defendant told the police that his girlfriend was driving his vehicle because his license was suspended. Defendant’s girlfriend initially stated that she was the driver; however, she later admitted that defendant was the driver. Upon checking defendant’s records, the police confirmed that defendant’s license was suspended and that he was a habitual traffic offender. Defendant was charged with driving while license revoked-habitual offender and leaving the scene of the accident-causing property damage.

At trial, defendant maintained that his girlfriend was driving his vehicle at the time of the accident and elected to testify on his own behalf. The trial court conducted a thorough and proper examination and found that defendant knowingly and voluntarily waived his right to remain silent. Outside the presence of the jury, the State requested that defendant be required to proffer his testimony to the court. Although not articulated by the State, we presume that it was to ensure that defendant, who was representing himself, would not say something that might jeopardize the integrity of the trial. The trial court granted the State’s request, adding that the State would be required to proffer its cross-examination with defendant providing his responses. Defendant did not object to the trial court’s ruling or its instructions. In his proffer, defendant testified, among other things, that his girlfriend was driving the SUV on the date in question and that he sustained injuries from the individuals while they were restraining him.

The trial proceeded, and in the presence of the jury, defendant again testified that he was not the driver of the SUV and that he was injured by individuals who chased him down. Ultimately, the jury found defendant guilty, as charged.

Defendant contends that the trial court infringed upon his constitutional rights to self-representation and to remain silent by requiring him to proffer his testimony, and by allowing the State to cross-examine him prior to testifying before the jury.

“Generally, a defendant must raise a contemporaneous objection ... to preserve an issue for appellate review. If the defendant fails to object at trial, then the defendant may raise the issue on appeal only if fundamental error occurred.” Richards v. State, 39 So.3d 431, 433 (Fla. 2d DCA 2010) (citation omitted); see also Caraballo v. State, 39 So.3d 1234, 1249 (Fla.2010) (“Fundamental error is that which ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” (quoting Brooks v. State, 762 So.2d 879, 899 (Fla.2000))).

In this case, defendant did not object to the State’s request that he proffer his testimony or to the trial court’s actions. Therefore, defendant’s argument is not preserved for review, and he must demonstrate that the trial court committed fundamental error. See Richards, 39 So.3d at 433.

Throughout the trial, defendant experienced difficulty in understanding substantive and procedural matters, particularly during voir dire and questioning of the State’s witnesses. Although we do not sanction the trial court’s actions, a trial court has wide discretion in regulating the conduct of trials so that the administration of justice may be fairly achieved in an orderly manner. See Hahn v. State, 58 So.2d 188, 191 (Fla.1952); Arbogast v. State, 266 So.2d 161, 162 (Fla. 3d DCA 1972). Defendant was given the appropriate warnings about the consequences of testifying, and knowingly and voluntarily waived his right to remain silent. Defendant cannot now be heard to complain that his Fifth Amendment privilege against self-incrimination was violated when he was required to reveal his testimony and be subject to cross-examination in advance of testifying before the jury. See Brown v. U.S., 356 U.S. 148, 155-56, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958); Jenkins v. Wessel, 780 So.2d 1006, 1008 (Fla. 4th DCA 2001).

Accordingly, no fundamental error occurred in the trial court’s actions.

Affirmed.

MAY and GERBER, JJ., concur.

      . The trial judge went to great lengths to ensure that the pro se defendant in this case received a fair trial. Moreover, we do not question the trial court's motivation in connection with its actions under review.

      . See McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ("A defendant’s right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.''). Not once did the trial court restrict defendant's proffered or actual testimony, except his use of inappropriate language.


author: WHATLEY, Judge.

text:
    Richard A. MORSE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-738.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.
    Richard A. Morse, Jr., pro se.
   WHATLEY, Judge.

Richard A. Morse, Jr., filed a petition for writ of mandamus seeking to compel his former counsel, the Public Defender for the Thirteenth Judicial Circuit, to provide free-of-charge copies of the crime scene photos from his trial. We hold that the circuit court erred when it denied his petition.

“A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.” Radford v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005) (citing Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997)). Morse stated a facially sufficient claim establishing entitlement to free copies of the photos from his court-appointed counsel. See id.; Potts v. State, 869 So.2d 1223, 1225 (Fla. 2d DCA 2004) (holding that “transcripts that were prepared at public expense on behalf of an indigent defendant must be provided to the defendant without charge for copying”).

The circuit court held that Morse was not entitled to relief because his public defender inspected and copied the photographs during the discovery process. And since his attorney allowed him to see the photos, the court reasoned that Morse was not entitled to any additional rights outside of the discovery process. However, the fact that the State provided the photos to defense counsel, and counsel copied them, does not limit Morse’s entitlement to documents in his appointed counsel’s file. See Smith v. State, 889 So.2d 1009, 1010 (Fla. 3d DCA 2004) (“The petitioner is entitled to receive from his former counsel, at no cost to petitioner, any and all trial and hearing transcripts, copies of motions, and any state discovery presented to defense counsel”) (emphasis added).

We therefore reverse and remand for the postconviction court to grant the petition and to order Morse’s counsel to provide copies of the crime scene photographs to Morse free-of-charge.

Reversed and remanded for further proceedings.

NORTHCUTT and KELLY, JJ„ concur.

      . Although the public defender's office expressed concerns about the graphic nature of the photos, we agree with the postconviction court and note that it is for the Department of Corrections to determine whether Morse should be restricted from receiving the pictures because they are prohibited contraband. See Weeks v. Golden, 798 So.2d 848 (Fla. 1st DCA 2001) (noting that in reversing the denial of petition for writ of mandamus seeking production of photographs of parts of the victim's body, "the Department of Corrections, in its supervisory capacity over inmates, may properly restrict appellant from receiving the photographs under the theory that they constitute prohibited contraband”).


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Y.Q.R., Appellee.
    No. 2D09-5610.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee.
   ALTENBERND, Judge.

The State appeals from an order granting Y.Q.R.’s motion to suppress, in which the trial court concluded that Y.Q.R. was arrested following an unlawful traffic stop. We conclude that the arresting officer lawfully stopped the car in which Y.Q.R. was riding after watching the car make an improper left turn, as defined under section 316.151(l)(b), Florida Statutes (2008). Because the stop was lawful, the trial court erred in granting Y.Q.R.’s motion to suppress. We therefore reverse the order on appeal and remand for further proceedings.

In June 2009, Officer Jonathan Bailey, while on patrol, was traveling northbound in the center lane of South Missouri Avenue in Pinellas County. He came to a stop at a light at the intersection with Court Street. According to Officer Bailey, the northbound portion of South Missouri Avenue was made up of three lanes: a through-lane, a left-turn lane, and a right-turn-only lane. Although the light was green, the car in front of Officer Bailey was stopped in the through-lane. The driver of this car waited for all the vehicles in the left-turn lane to proceed through the intersection. The driver then activated his turn signal and made a left turn. Although this turn did not affect any other traffic, Officer Bailey concluded that the turn was unlawful. He stopped the vehicle and discovered marijuana and paraphernalia.

After the State filed a delinquency petition against Y.Q.R., he argued successfully to the trial court that the vehicle’s turn was lawful because it “was done in a safe manner and did not affect the flow of traffic.” This argument appears to have three sources: First, the failure to signal a turn can constitute a traffic offense under section 316.155 if the turn affects traffic. See State v. Riley, 638 So.2d 507, 508 (Fla.1994). Second, under section 316.1515, a U-turn can amount to a traffic offense if it interferes with traffic or cannot be made safely. See Bender v. State, 737 So.2d 1181, 1181 (Fla. 1st DCA 1999). Third, where it impacts other traffic, a turn made from the wrong lane can constitute erratic driving so as to provide a basis for an investigatory stop. Cf. Nicholas v. State, 857 So.2d 980, 981 (Fla. 4th DCA 2003).

Here, Officer Bailey simply stopped the driver of this car for an improper left turn, an offense defined under section 316.151(l)(b). That section provides:

Left turn. — The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and, after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered.... Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

As a noncriminal traffic infraction, a violation of this section can provide a basis to perform a lawful traffic stop. See § 316.151(3); see also State v. Allen, 978 So.2d 254, 255 (Fla. 2d DCA 2008).

Section 316.151(l)(b) requires a driver performing a left turn to make the turn from “the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle.” This section does not condition the lawfulness of a left turn on whether the turn impacts traffic. We reject Y.Q.R.’s argument that, under the last sentence of section 316.151(l)(b), a proper left turn is required only “[wjhenever practicable.” This sentence more likely pertains to those situations in which it is not practicable for a vehicle to remain within the turn lane while completing the turn.

Here, it is undisputed that the driver of the car in which Y.Q.R. was riding began his turn from the center, through-lane of traffic, not the extreme left-hand lane. In doing so, the driver committed a traffic infraction. Officer Bailey observed the infraction — in fact, he videotaped it. The trial court therefore erred in concluding Officer Bailey did not have a lawful basis to stop the vehicle in which Y.Q.R. was traveling. Accordingly, we reverse the order granting Y.Q.R.’s motion to suppress and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Johnny ROMERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-862.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Johnny Romero, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to the appellant filing a sufficient motion under Florida Rule of Criminal Procedure 3.800(a) on the new ground for relief raised in the appellant’s motion for rehearing from his first motion, i.e., that the trial court failed to orally adjudicate appellant a habitual offender.

WARNER, FARMER and CIKLIN, JJ., concur.


text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. David A. TAYLOR, III, Respondent.
    No. 1D10-4034.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.

      Christian D. Lake, Assistant General Counsel, Justice Administrative Commission, Tallahassee, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The Justice Administrative Commission (JAC) petitions for a writ of certiorari to review a final order granting claim for attorney’s fees. Because the JAC was not permitted to comment on the proposed order submitted by Respondent David Taylor before the trial court adopted the proposed order as its own, contrary to the trial court’s prior ruling and Florida law, we grant certiorari and quash the order.

Among other arguments raised in its petition, JAC argues that the trial court departed from the essential requirements of law by adopting verbatim the draft order prepared by Taylor without first allowing JAC to have an opportunity to respond, contrary to Perlow v. Berg-Perlow, 875 So.2d 383, 389-90 (Fla.2004), and its progeny. While Taylor was ordered to show cause why the certiorari petition should not be granted, he has not filed a response.

The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). A district court should exercise its discretion to grant cer-tiorari review only “the circuit court’s decision constituted a denial of procedural due process, application of incorrect law, or a miscarriage of justice.” Ivey, 774 So.2d at 683.

It is error for a trial court to adopt verbatim a proposed final judgment without giving the opposing party an opportunity to comment. Perlow v. Berg-Perlow, 875 So.2d 383, 389-90 (Fla.2004). Here, Taylor was directed at the close of the hearing to prepare an order consistent with the trial court’s view of the case. Taylor was instructed to forward a copy of his proposed order to JAC, and after JAC approved it, the order was to be sent to the trial court. The cover letter sent to JAC which accompanied Taylor’s 11-page draft order is dated June 30, 2010. The copy of the cover letter included in JAC’s appendix to its petition for a writ of certio-rari bears a time and date stamp of “JUN/30/2010/WED 03:56 PM”. The order entered by the trial court is dated June 30, 2010. JAC claims that it was not given an opportunity to comment on the order before its entry, and the matters contained in its appendix supports this claim.

A review of the draft order prepared by Taylor and the one entered by the trial court discloses that the trial court did indeed adopt verbatim the draft order. Further, as noted, the order was entered before JAC had an opportunity to comment, and indeed, given the date of the entry of the order, before the trial court could have meaningfully deliberated its content. Compare Strand v. Escambia County, 992 So.2d 150, 155 (Fla.2008) (explaining that Perlow did not hold that a trial court’s adoption of a proposed final judgment verbatim is improper per se but held that before adoption of a draft order the opposing party is given an opportunity to object and that the adoption verbatim of a proposed judgment in Perlow within hours of receipt gave the appearance of impropriety). A review of the transcript of the fee hearing reveals that the numerous findings contained in the order do not mirror findings orally made by the trial court, but actually exceed the scope of the findings made at the conclusion of the evidentiary hearing. Compare Plichta v. Plichta, 899 So.2d 1283, 1285-86 (Fla. 2d DCA 2005) (holding that Perlow does not require a trial court to afford a litigant the opportunity to object to a proposed order prior to the court’s adoption of it if the proposed order merely memorializes rulings the trial court has already made); Grunzke v. Mason, 18 So.3d 652 (Fla. 1st DCA 2009).

Accordingly, we grant the petition, quash the order and remand for further proceedings.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


author: WOLF, J.

text:
    EXXONMOBIL OIL CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 1D10-0254.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.

      Dan R. Stengle, Mohammad 0. Jazil, and Tucker F. Mackie of Hopping, Green & Sams, P.A., Tallahassee, for Appellant.
    Gigi Rollini and Lawrence E. Sellers, Jr. of Holland & Knight, LLP, Tallahassee; Robert A. Long, Jr. and James R. Dean, Jr. of Covington & Burling LLP, Washington, DC; and Janice K. Raburn of American Petroleum Institute, Washington, DC, for American Petroleum Institute, Amicus Curiae for Appellant.
    William N. Graham, Senior Attorney, Department of Agriculture and Consumer Services, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

WOLF, J.

On consideration of the Motion for Clarification filed by appellee, we withdraw the previous opinion and substitute the following.

ExxonMobil petitioned the Department of Agriculture (the Department) for a declaratory statement pursuant to section 120.565, Florida Statutes (2009), seeking clarification of Florida’s Price Gouging Law (embodied in section 501.160, Florida Statutes (2009)). The Department dismissed the Petition and ExxonMobil seeks review of this dismissal order. Because we find the grounds raised by the Department did not prohibit the Department from responding to the Petition as to two, discrete questions, we reverse.

Section 501.160, Florida Statutes (1992), was passed to prevent “dramatic increases in the prices of certain essential commodities” during “certain periods of disaster.” The Law prohibits unconscionable price increases, which it defines as a “gross disparity” between the average cost of the commodity 30 days prior to a declared state of emergency and the current price of the commodity. However, the Law exempts price increases attributable to “additional costs ... or national or international market trends.” § 501.60(l)(b), Fla. Stat. (2009).

While it is somewhat difficult to extrapolate concrete questions from the 26-page Petition, the essence of the Petition focuses on two major concerns. First, Exxon-Mobil draws attention to the fact that it and 15 other major wholesale gasoline distributors use the Gulf Coast Regional Platts Index as the pricing indicator for purchase and sale contracts of gasoline. Because this Index is regional in nature, ExxonMobil is concerned the Index may not be considered an increased “national or international market trend” as that term is used in the Price Gouging Law. § 501.160(l)(b), Fla. Stat. Second, Exxon-Mobil states in the past, the Price Gouging Law has only been applied to branded retail gasoline and asks for clarification as to whether the Price Gouging Law may be enforced against wholesale gasoline corporations specializing in the sale of gasoline from one commercial entity to another.

In Florida Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering v. Investment Corp. of Palm Beach, 747 So.2d 374 (Fla.1999), the supreme court broadened the previously narrow interpretation of section 120.565, Florida Statutes concerning when declaratory statements were available. In doing so, the court noted the purpose of the declaratory statement was “ ‘to enable members of the public to definitively resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their future affairs’ and ‘to enable the public to secure definitive binding advice as to the applicability of agency-enforced law to a particular set of facts.’ ” Id. at 382 (quoting Patricia A. Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U. L. Rev. 965 (1986)). Further, in broadening the statute’s application, the court explained:

It must be observed that under circumstances such as those presented in this case, involving such a unique industry having very limited participants engaged in almost identical operations, declaratory statements as to one would almost invariably be of interest to others in the very limited group.

Id. at 385. The court warned against declining to provide declaratory statements in these situations, noting this “hypertech-nical interpretation of section 120.565” would serve “no logical end.” Id. at 385.

Here, ExxonMobil is a member of the public seeking to clarify whether its past and present use of the Gulf Coast Regional Platts Index protects it from a state action alleging a violation of the Price Gouging Law. The Department points out that the answer to this question could affect 15 other similarly situated businesses using the same Index. However, as noted above, the supreme court has previously concluded declaratory statements are appropriate where a petition is filed by an individual corporation alleging a “particular set of circumstances” involving “a unique industry having very limited participants engaged in almost identical operations.” Inv. Corp., 747 So.2d at 385.

Thus, an agency may not decline to respond to a petition for a declaratory statement simply because “declaratory statements as to one would almost invariably be of interest to others in the very limited group.” Id. In fact, as noted in Investment Corp., “it is highly debatable whether the declaratory statement statute was ever limited to a singular consideration of the petitioner’s unique situation only.” Id. at 383 (citing Inv. Corp. of Palm Beach v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. & Prof'l Regulation, 714 So.2d 589, 594 n. 7 (Fla. 3d DCA 1998) (Cope, J., dissenting).

Further, refusing to answer the question serves no logical end and thwarts the purpose behind section 120.565 by foreclosing ExxonMobil from securing “definitive binding advice as to the applicability of agency-enforced law to a particular set of facts.” Inv. Corp., 747 So.2d at 382 (citations omitted).

The Department also argues that because it issued investigative subpoenas prior to ExxonMobil’s filing of the Petition, it was prohibited from responding. It is true Florida courts, including this one, have generally held that an administrative agency must decline to provide a declaratory statement when the statement would address issues currently pending in a judicial proceeding. See Padilla v. Liberty Mut. Ins. Co., 832 So.2d 916, 919 (Fla. 1st DCA 2002); Novick v. Dep’t of Health, Bd. of Med., 816 So.2d 1237, 1240 (Fla. 5th DCA 2002); Suntide Condo. Ass’n v. Div. of Fla. Land Sales, 504 So.2d 1343, 1345 (Fla. 1st DCA 1987); Couch v. State, 377 So.2d 32, 33 (Fla. 1st DCA 1979). However, we find this line of cases is inapplicable to the underlying situation. Service of investigatory subpoenas allows agencies to collect information prior to deciding if an enforcement action is necessary; the issuance of these subpoenas does not necessarily result in litigation. Accepting the Department’s position would allow agencies to avoid responding to requests for declaratory statements for lengthy time periods even where litigation was not imminent. Accordingly, we reject the Department’s reliance on this ground for dismissal of the underlying Petition.

For the foregoing reasons, we reverse and remand with directions to the Department to respond to the questions of (1) whether Florida’s Price Gouging Law applies to commercial wholesale gasoline transactions such as those engaged in by-ExxonMobil, and (2) whether ExxonMo-bil’s use of the Gulf Coast Regional Platts Index protects it from an enforcement action under the Price Gouging Law.

ROBERTS and WETHERELL, JJ., concur.

      . We recognize Investment Corp. considered a declaratory statement which simultaneously responded to a petition while announcing its intention to initiate rulemaking. We are likewise cognizant of this court’s holding in Lennar Homes, Inc. v. Department of Business & Professional Regulation, 888 So.2d 50 (Fla. 1st DCA 2004), which recognized the broader interpretation of section 120.565 but found a declaratory statement may not go so far as to announce “broad agency policy” which is akin to a rule. Our case is further complicated because both parties acknowledge the Department lacks statutory authority to adopt rules construing the statute in question. Thus, the Department cannot simultaneously issue a declaratory statement and initiate rulemaking.
      However, absent a response to the Petition before us which specifically addresses the discrete questions identified herein, it is impossible for this court to engage in an analysis of whether the Department’s response would necessarily invade the scope of rulemaking. Nor did the Department specifically rely on its lack of rulemaking authority as the basis for the dismissal of the declaratory statement. Thus, any ruling on our part as to the issue would be premature.

      . While the Department argues to this court that there is litigation pending at the present time which would preclude issuance of the declaratory statement, the Department did not rely on pending litigation in its dismissal. Thus, we decline to prematurely address how this issue should be treated on remand.


author: THOMAS, J.

text:
    Maura MENA, Appellant, v. LIFEMARK HOSPITALS OF FLORIDA, INC., d/b/a Palmetto General Hospital, Appellee.
    No. 1D10-100.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Matthew W. Dietz, Miami, for Appellant.
    Martin B. Goldberg and Lorelei J. Van Wey of Lash & Goldberg, LLP, Miami; Larry Kranert, General Counsel, Florida Commission on Human Relations, Tallahassee; James Mallue, Assistant General Counsel, Florida Commission on Human Relations, Pinellas Park, for Appellee.
   THOMAS, J.

In this case of first impression, we are called upon to determine whether, pursuant to section 760.02(1l)(d), Florida Statutes, the presence of a cafeteria on the premises of Appellee (Hospital) transformed the Hospital into a “public accommodation” for purposes of the Florida Civil Rights Act of 1992 (the Act). For the reasons explained below, we remand and reverse this matter to the Florida Human Relations Commission (Commission) to make certain factual and legal determinations on this question and, if the Commission’s investigation leads it to find that the Hospital is a public accommodation, to determine whether the Hospital’s alleged denial of sign-language services to assist Appellant constituted discrimination as defined by the Act.

Factual Background

Appellant filed a public accommodations complaint of discrimination with the Commission alleging that while a patient at the Hospital, her request for a sign language interpreter was refused. The Complaint alleged discrimination pursuant to Chapters 509 and 760, Florida Statutes, “and/or Title VII of the Federal Civil Rights Act of 1964, and/or the Americans with Disabilities Act” (ADA). In the standard complaint form provided by the Commission, Appellant identified the Hospital as the entity she contended discriminated against her. Where it asked whether the entity was a “Restaurant, Club, [or] Lodging,” Appellant listed the entity as a restaurant.

In response, the Commission dismissed the complaint on various grounds, including its lack of authority to accept and investigate complaints brought under Title III of the ADA (the public accommodations provision) and because hospitals are not public accommodations for purposes of the Act. The Commission found that, although hospitals offer medical services to the public and provide meals for its patients, staff, and visitors, they are “not ‘principally engaged in food for consumption on the premises’ ” and that hospital cafeterias are not a destination dining establishment; rather, such cafeterias are a business necessity, and this “does not transform the hospital into a place of public accommodation.”

Analysis

Section 760.01(2), Florida Statutes, explains that the “general purposes” of the Act are to

secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

The Act includes protections from discrimination in “public accommodations,” as described in section 760.08, Florida Statutes:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.

Section 760.02(11) defines “public accommodations” as “places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments.” Appellant concedes that hospitals are not included in the statutory definition of public accommodations. Appellant contends, however, that pursuant to section 760.02(ll)(d), where a hospital has a cafeteria on its premises, the hospital derivatively becomes a public accommodation. Section 760.02(11) defines as a public accommodation:

(d) Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.

Thus, an establishment may be transformed into a public accommodation for the Act’s purposes if: 1) it is an establishment located on the premises of an otherwise covered establishment; or 2) a covered establishment is on the premises of an otherwise uncovered establishment, so long as the latter establishment holds itself out as serving patrons of the covered establishment. Appellant relies on the second of these, contending the cafeteria, which does fall within the ambit of the Act’s definition of public accommodation, transformed the Hospital into a public accommodation.

We think whether an otherwise uncovered establishment “holds itself out as serving patrons” of a covered establishment is a question of fact. See, e.g., Regency Towers Owners Ass’n, Inc. v. Pettigrew, 436 So.2d 266, 267 (Fla. 1st DCA 1983) (discussing hearing officer’s findings of fact as to the number of “employees” as defined by the previous version of the Act were employed by appellant). The Commission reached a summary conclusion that “[a] hospital offers its medical services to the public and provides meals for its patients, staff and visitors; however, the facility is not ‘principally engaged in selling food for consumption on the premises.’ ” Based on this conclusion, the Commission determined that hospital cafeterias are not “a destination dining establishment,” but a “business necessity, which does not transform the hospital into a place of public accommodation.” It is not clear how the Commission reached this result considering that it did not endeavor to conduct any fact finding and did not even solicit any input from the Hospital itself.

In addition to being unsupported by any record evidence, the Commission’s finding does not address the critical question of whether the Hospital establishment “holds itself out as serving patrons” of the cafeteria located on its premises. Consequently, we must remand this case for the Commission to make the necessary fact findings. On remand, should the Commission determine that the Hospital is in fact a public accommodation, it must then determine whether Appellant has stated a claim cognizable under the Act and explain the grounds for its determination of that question. Only then will this matter be ready for appellate review.

Conclusion

Based on the foregoing, we REVERSE and REMAND for proceedings consistent with this opinion.

BENTON, C.J., and DAVIS, J„ concur.

      . Pursuant to section 760.01(1), Florida Statutes: "Sections 760.01-760.11 and 509.092 shall be cited as the ‘Florida Civil Rights Act of 1992.’ "


text:
    Donald PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1642.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Donald Perry, pro se, Appellant.
    Bill McCollum, Attorney General and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Appellant, Donald Perry (DC # 50031), sought review of an order summarily denying multiple postconviction motions relating to his 1977 first-degree murder conviction. We affirmed the trial court’s order without opinion on July 29, 2010, and we also issued an order directing Perry to “show cause ... why sanctions, possibly including a prohibition against appearing in this Court unless represented by counsel, should not be imposed against him” based upon his history of filing frivolous pro se appeals in this Court.

The response to the order filed by Perry failed to show good cause why sanctions should not be imposed against him. The records of this Court reflect 37 cases in which Perry has appeared pro se as the appellant or petitioner, including 17 cases since 2005 and at least 12 prior appeals involving the denial of postconviction motions related to his 1977 conviction. None of the prior appeals resulted in the granting of any relief to Perry, and like the prior cases, the present appeal was wholly frivolous.

We find that Perry’s repetitious and frivolous filings have substantially interfered with the administration of justice and have adversely affected the ability of this Court to devote its finite resources to consideration of genuine disputes and col-orable claims by those who have not abused the system. See Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Franklin v. State, 25 So.3d 645 (Fla. 1st DCA 2009). Accordingly, it is hereby ordered that Perry shall secure the filing of a notice of appearance by a member in good standing of The Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within 10 days of the date of this order, failing which such cases shall be dismissed. Further, the Clerk of this Court is directed to accept no further pro se filings from Perry; if received, such documents shall be returned to Perry without filing and with a reference to this order. The Clerk shall also forward a certified copy of this order to the Department of Corrections pursuant to section 944.279, Florida Statutes.

IT IS SO ORDERED.

BENTON, C.J., VAN NORTWICK and WETHERELL, JJ., concur.


text:
    William HASHEM, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D10-3429.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.

      William Hashem, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, Sheron Wells, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

We hereby grant the petition for writ of mandamus. The circuit court shall rule on the pending petition for writ of mandamus within a reasonable time, not to exceed 30 days from issuance of mandate in this cause. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

PETITION GRANTED.

WEBSTER, HAWKES, and THOMAS, JJ., concur.


author: VILLANTI, Judge.

text:
    Deborah ZINOVOY, Appellant, v. Michael S. ZINOVOY and The Miken Corporation, Appellees.
    No. 2D09-5413.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.

      Ronald J. Russo, Tampa, for Appellant.
    Paul S. Maney of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, for Appel-lees.
   VILLANTI, Judge.

In this dissolution of marriage action, Deborah Zinovoy challenges the adequacy of the amount of permanent alimony awarded to her and the trial court’s allocation of financial responsibility for unreim-bursed medical expenses related to the parties’ minor children. Finding merit in these arguments, we reverse and remand for reconsideration as directed below.

We first address the trial court’s allocation of financial responsibility for unreimbursed medical expenses related to the parties’ children. The final judgment, inter alia, allocated child support responsibility 23.95% to the wife and 76.05% to the husband; required the husband to maintain medical insurance for the minor children and pay 100% of the premium; and required the parties to “share equal responsibility for, and ... pay 50% of, the minor children’s ... medical, dental, prescription drug, hospitalization, optometric, and orthodontia expenses not covered by insurance, together with all insurance deductibles.” The wife contends that the trial court’s 50/50 allocation of unreimbursed medical expenses was error because it conflicted with the final judgment’s child support allocation. This contention has merit. See § 61.30(8), Fla. Stat. (2009); Wilcox v. Munoz, 35 So.3d 136, 141 (Fla. 2d DCA 2010) (“It is error for the court to equally divide the noncovered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support.”). In other words, absent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same percentage as the child support allocation. Because the final judgment on appeal contains no such rationale, we must reverse and remand this portion of the final judgment and direct the trial court to enter an amended final judgment consistent with controlling case law.

The wife next argues that the trial court’s $6370 monthly alimony award was inadequate given the husband’s ability to pay, her undisputed financial needs, and the standard of living established during the marriage. On the record before us, we agree that the trial court erred in determining the amount of the alimony.

At the time the dissolution petition was filed, the parties had been married sixteen years and four months. Both parties were forty-eight years old. The husband earned significantly more than the wife. The trial court found that the husband’s monthly income was $38,707 and imputed monthly income to the wife of $1257. Inarguably, the evidence established that the parties enjoyed an affluent standard of living during the marriage. Without going into unnecessary detail, we note that their assets were valued at over $1 million, including the marital residence valued at over $500,000 and real property in Costa Rica. Their children attended private school, and the family took frequent expensive vacations.

The wife’s amended financial affidavit showed monthly expenses of $17,715. After deducting $4445 in expenses related to the children, the wife claimed a monthly need of $13,270. The wife’s expert, a forensic accountant, reviewed the parties’ credit card statements and bank account transactions for the twelve months preceding the filing of the dissolution petition and prepared a “lifestyle analysis,” to which she testified at the final hearing. After taking into consideration the tax consequences of an alimony award, the wife’s expert testified that the wife’s monthly alimony should be $16,368. The great bulk of this testimony was unrefuted.

On the other hand, the husband’s expert did not independently examine the parties’ books to determine their standard of living expenses, nor did he look at the wife’s final adjusted lifestyle analysis. Rather, he and the husband simply sat down to review the wife’s preliminary lifestyle analysis calculation, the husband pointed to only ten items in the wife’s lifestyle calculation to which he felt an adjustment should be made, and his expert adopted those adjustments. The expert then mathematically reduced the wife’s monthly need to $8370. However, on cross-examination the husband’s expert acknowledged errors in his analysis which resulted in incorrect deductions in some of the ten items that he had identified.

After hearing all of the evidence, the trial court found that the wife’s claimed needs were “vastly overstated” and awarded the wife $6370 in monthly pretax alimony. Based on the facts of this case, we conclude that the trial court abused its discretion in calculating the alimony award because it is inconsistent with, and significantly lower than, any of the trial testimony addressing the wife’s alimony need.

First, we must recognize that a trial court has broad discretion in determining the amount of permanent alimony. “If a reviewing court finds that there is competent substantial evidence in the record to support a particular award,” the award will be affirmed. Marcoux v. Marcoux, 464 So.2d 542, 544 (Fla.1985). Nevertheless, permanent periodic alimony is intended to allow the requesting spouse “to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spouse is not ‘shortchanged.’ ” Griffin v. Griffin, 906 So.2d 386, 388 (Fla. 2d DCA 2005). In deciding the amount of alimony “the trial court should ensure that each party’s standard of living comes as close as possible to the prior lifestyle, given the available financial resources.” Id. at 389; Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998) (same).

In Griffin, for example, the parties’ standard of living in a fourteen-year marriage included a $200,000 home, a $900,000 beach condo, luxury cars, luxurious vacations, a part-time housekeeper, thousands of dollars in jewelry, and private schooling for them son. 906 So.2d at 389. This court held that a $3000 monthly alimony award to the husband was insufficient, noting that the award brought the husband’s annual income to only $76,000, when the wife’s income was over $400,000. Id. “Considering all of the relevant factors, this level of disparity ‘[was] too great to be ignored’ and constituted error.” Id.

Similarly, in Wright v. Wright, 577 So.2d 1355, 1358 (Fla. 1st DCA 1991), the district court reversed a $2000 monthly permanent periodic alimony award where the husband’s annual income was more than $100,000 and the wife’s income was no more than $36,000. The court concluded that the amount of alimony was not commensurate with the husband’s ability to pay or with the standard of living established during the marriage and was insufficient to provide for the wife’s needs as established during the marriage. Id. The alimony amount left the wife “able to meet approximately half the expenses listed in her postseparation financial affidavit,” while the husband would “continue to enjoy a level of affluence which far exceeded] that enjoyed by his former spouse.” Id. The district court pointed out that after paying alimony, the husband had after-tax income of $80,000 to $91,000. Id. “There is, thus, a gross disparity in the parties’ earning capacities and standards of living, which is unreasonable under the facts.... ” Id.; Sinclair v. Sinclair, 594 So.2d 807, 809 (Fla. 3d DCA 1992) (finding alimony award inadequate where husband’s salary dwarfed wife’s salary, husband had ability to pay more, and amount of award unnecessarily confined the wife to a lifestyle far below the affluent standard enjoyed during the marriage).

In this case, as in the cases cited above, viewing the totality of uncontested circumstances, the alimony award is not commensurate with the husband’s ability to pay or the wife’s need. As a result, the final judgment unnecessarily confines the wife to a lifestyle far below the standard of living established during the marriage, while it allows the husband to continue enjoying a level of affluence that far exceeds that of the wife. Specifically, the amount of alimony covers less than half of the undisputed expenses listed in the wife’s amended financial affidavit. Even after paying alimony, the husband will have monthly income of $32,337, compared with the wife’s monthly income of $7627 after receiving the alimony. Given the record before us, the income disparity in this case is far too great to be overlooked.

In the final judgment, the trial court’s alimony award was preceded by a finding that the wife had “vastly overstated” her needs. The husband would have us affirm the final judgment based upon this finding, claiming that it is correct and that there was no abuse of discretion. The problem with this argument lies in the gross inconsistency between the evidence presented at trial and the trial court’s factual recitations in the final judgment. Thus, the “vastly overstated” label simply does not comport with the wife’s uncontested needs or with the husband’s ability to pay. Here is why.

The trial court’s final judgment rejected the following items from the wife’s lifestyle analysis: (1) the wife’s “over $800 per month in cash need,” (2) her need of $2000 monthly for vacations, (3) $400 for scrap-booking, (4) $1000 for clothing, “and many other examples pointed out by the Husband’s experts and in cross examination of the Wife’s experts.” However, the court’s chosen examples are not supported by the record and we can find no other testimony to corroborate the trial court’s “catch all” finding of “many other examples.” For instance, contrary to the court’s findings, the wife did not actually request “over $800 per month in cash need” because that figure had already been allocated to other categories in her lifestyle analysis. The court also incorrectly stated that the wife claimed $1000 monthly for clothing, when the wife actually stated that her clothing need was $800. As for the scrapbooking expense, the husband did not challenge that monthly expense. Thus, the trial court was not free to impose its own apparent disbelief of this expense because it was supported by the parties’ unrefuted standard of living evidence. We also note that even the husband’s expert calculated the wife’s need as $8370 monthly, and the husband’s own financial affidavit calculated his monthly need as $9810 after deducting expenses related to the parties’ children. Thus, given the record before us, we cannot discern any validity to the trial court’s conclusion that the wife overstated her needs to the point that she only needed $6370 in monthly alimony. See generally Valentine v. Van Sickle, 42 So.3d 267, 272 (Fla. 2d DCA 2010) (reversing alimony award where trial court failed to explain how it came to certain conclusions regarding alimony; the lack of an explanation “confound[ed] meaningful appellate review of the alimony award”); Kelley v. Kelley, 967 So.2d 924, 925-26 (Fla. 2d DCA 2006) (noting that the trial court had concluded that the wife’s expenses were inflated, but it had not indicated “what amounts were appropriate based upon the evidence presented”).

Although a trial court can find that a party’s estimate of expenses is inflated, the record evidence must support that finding. See, e.g., Schwab v. Schwab, 864 So.2d 82, 84 (Fla. 1st DCA 2003) (“[T]he wife’s financial affidavit includes several expenses that appear inflated.... There is no competent, substantial record evidence to establish that these amounts were derived from the standard of living shared by the parties-”); Atkins v. Atkins, 611 So.2d 570, 572 (Fla. 1st DCA 1992) (“[T]he trial court found that ‘the Wife’s financial affidavit is significantly inflated’ ..., and there is ample evidence to support such a finding.”). It is the function of the appellate court to determine whether the trial court’s judgment is supported by competent evidence, and when the trial court’s factual findings do not substantially comport with undisputed evidence in critical areas a per se abuse of discretion has occurred. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). Hence, we must reject the husband’s contention that the trial court acted reasonably in exercising its discretion because its judgment was based upon erroneously recounted critical facts.

On remand, while we cannot instruct the trial court as to the exact alimony amount to award, we can safely say based on the record that the monthly alimony amount should be no lower than the amount to which the husband’s expert testified and no higher than the amount which the wife requested. Due to the passage of time, the parties may present additional testimony and argument to assist the trial court in making a proper determination. Accordingly, we reverse and remand for reconsideration of the amount of alimony to be awarded to the wife.

Reversed and remanded for further proceedings consistent with this opinion. In all other respects the final judgment of dissolution of marriage is affirmed.

KHOUZAM and CRENSHAW, JJ., Concur.

      . The husband does not dispute that this was regarded by the parties as a relatively long-term marriage and that the wife is entitled to permanent periodic alimony; only the amount is in controversy. The final judgment of dissolution was rendered on July 9, 2009, before the amendment to section 61.08(4), Florida Statutes (2010). Effective July 1, 2010, section 61.08(4) creates a rebuttable presumption that a long-term marriage is one "having a duration of 17 years or greater.” However, even had this amendment applied to this case, we seriously doubt the outcome would have been affected.

      . The wife’s expert had prepared an initial lifestyle analysis and a subsequent adjusted lifestyle analysis. The husband’s expert apparently had not reviewed the wife’s final adjusted lifestyle analysis, relying instead on a preliminary version of the document.

      . The wife’s lifestyle calculation contained roughly sixty items or expense areas. The expenses to which the husband made adjustments were: (1) water, garbage, and sewer (the expert reduced this expense by $65); (2) home repairs (reduced by $179); (3) food and home supplies (reduced by $826); (4) meals outside the home (reduced by $364); (5) gasoline and oil (reduced by $100); (6) medical, dental, and prescription costs (reduced by $287); (7) psychiatric and psychological expenses (reduced by $264); (8) vacations (reduced by $1500); (9) religious organizations (reduced by $125); and (10) cash (reduced by $629).

      . For example, the expert acknowledged that he had deducted 20% too much from the food and home supplies and vacation categories because he made a deduction for the husband’s expenses when the wife’s expert had already made that deduction. Likewise, the expert deducted too much in the "cash” category because the wife's expert had already made deductions.


text:
    David W. BETANCOURT, Appellant, v. Julie D. BETANCOURT, Appellee.
    No. 2D09-3032.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.

      Ralph E. Fernandez and A.J. Alvarez of Ralph E. Fernandez, P.A., Tampa, for Appellant.
    Dennis J. Alfonso of McClain, Alfonso, Meeker & Dunn, P.A., Dade City, for Ap-pellee.
   WALLACE, Judge.

David W. Betancourt (the Husband) appeals the final judgment that dissolved his long-term marriage to Julie D. Betancourt (the Wife). On appeal, the Husband challenges the trial court’s award of permanent periodic alimony to the Wife. He asserts that the trial court made multiple errors in calculating the incomes available to the parties and their expenses. The Wife has not taken a cross-appeal.

We agree with the Husband that the trial court erred in attributing to him the gross rental income from a rental property without first deducting the mortgage payment and other expenses associated with the property. This error requires us to reverse the permanent periodic alimony award and remand to the trial court for reconsideration of this issue. We have carefully considered the Husband’s other arguments and find them to be without merit.

I. THE FACTS AND PROCEDURAL BACKGROUND

The parties were married in 1983 and separated in January 2006. They have modest assets and incomes. The Husband is employed as a teacher by the Hillsbor-ough County School Board. The Wife works as a caregiver for her parents and her brother’s children. The parties have one child, a son who has attained the age of majority.

The parties owned two parcels of real estate — a single family residence and a residential triplex. The single family residence was the parties’ marital home. Each of these properties is encumbered by a mortgage. After the separation, the Husband moved into one of the three units in the triplex, and the Wife lived in the former marital home. The Husband collects the rents from the triplex and pays the mortgage and other expenses.

Two of the units in the triplex have two bedrooms; the third unit has only one bedroom. The two-bedroom units rent for $800 per month, and the one-bedroom unit rents for $550 per month. When all three units are rented, the triplex generates a gross rental income of $2150 per month. But after the separation, the Husband occupied one of the two-bedroom units. Thus the gross rental amount that the Husband actually received for the remaining two units was $1350. Occasional vacancies reduced the gross rental income below this figure, but the Husband did not provide evidence concerning a specific vacancy rate.

The amount of the monthly mortgage payment on the triplex, including property taxes and insurance, is $1343. The landlord pays the water bill for the entire building. This expense is approximately $60 per month. Expenses for repairs and maintenance on the triplex are additional, but the Husband did not provide any evidence concerning their amount. However, simple arithmetic establishes that when the Husband is occupying one of the two-bedroom units, the triplex does not produce any net income.

At the final hearing, the parties agreed to — and the trial court approved — an equitable distribution schedule that awarded the former marital residence to the Wife and the triplex to the Husband. The trial court ordered the Husband and the Wife to assume responsibility for the payment of the mortgage, taxes, and insurance on the property that each of them received in the equitable distribution. The only disputed issue at the final hearing was the Wife’s claim for permanent periodic alimony. The trial court made findings concerning the parties’ incomes from their employment. The trial court also found that the “Husband receives gross [sic] rental income from the triplex in the amount of $1,350 per month.” The trial court added the $1350 figure to the Husband’s employment income and used that total to determine his ability to pay alimony.

On the basis of the inclusion of the $1350 in gross rentals in the Husband’s total income, the trial court ordered him to pay the Wife permanent periodic alimony of $900 per month. The trial court made the alimony award retroactive to the date of the filing of the Wife’s petition for dissolution of marriage. The trial court also awarded the Husband a credit against the retroactive alimony award in an amount equal to his contributions to the payment of the mortgage on the marital home while the case was pending.

After the entry of the final judgment, the Husband filed a motion for rehearing, alleging several grounds. In pertinent part, the Husband contended that the trial court had erroneously calculated his income by failing to deduct the expenses of the triplex from the gross rentals. The trial court denied the Husband any relief on this ground. In its written order, the trial court explained that “the Court was provided no evidence at the request for rehearing to support that any expenses should be subtracted from the gross income receipts, and [the] Husband’s financial affidavit did not itemize this income or any expenses associated with this rental property.” The Husband’s appeal followed.

II. DISCUSSION

We begin our discussion by noting the Husband’s contribution to the trial court’s error concerning which he now complains. As the trial court correctly observed in its order on the Husband’s motion for rehearing, the Husband failed to list the income and expenses for the triplex on his financial affidavit. The Husband was undeniably required to disclose this information on his financial affidavit. Line 11 of Section I of the form specifically calls for the following information:

Monthly rental income (gross receipts minus ordinary and necessary expenses required to produce income) (□ Attach sheet itemizing such income and expense items.) 11. _

Form 12.902(b), Fla. Fam. L.R.P. Granted, with the Husband occupying one of the two-bedroom units, the triplex was not generating a positive cash flow. But this fact was not a sufficient reason for failing to disclose the rental income and expense on the financial affidavit as required.

That said, the Husband testified in substantial detail at the final hearing concerning the income and expenses of the triplex property. And the Wife acknowledged that the triplex was encumbered by a mortgage. She did not dispute the amount of the monthly mortgage payment testified to by the Husband. The Wife even agreed that the triplex was “a maintenance nightmare.” Although the Husband did not offer any specific evidence concerning the cost of the repairs and maintenance on the triplex, he did present substantial, uncontroverted testimony concerning the amounts of the monthly mortgage payment and the water bill. In short, the evidence at the final hearing would not support a finding that the Husband enjoyed $1350 in net income from the triplex.

In determining the amount of the alimony award, if any, the trial court was required to consider, among other things, “[a]ll sources of income available to either party.” § 61.08(2)(g), Fla. Stat. (2007) (emphasis added); see Zold v. Zold, 911 So.2d 1222, 1228 (Fla.2005). “The essential criterion for fixing an amount of alimony is— after a payee’s need — a present ability of the payor to sustain it.” Jaffy v. Jaffy, 965 So.2d 825, 829 (Fla. 4th DCA 2007).

Unquestionably, the full amount of the $1350 rental income from the triplex was not available to the Husband. The monthly rents generated by the two tenant-occupied units were exhausted by the monthly mortgage payment and the water bill. Thus the trial court erred in adding the gross rental income from the triplex to the Husband’s employment income without a corresponding deduction for the mortgage and utility expenses. See Berges v. Berges, 871 So.2d 919, 922 (Fla. 3d DCA 2004) (holding that in order to arrive at the husband’s business income, the trial court was obligated to subtract his ordinary and necessary business expenses from his gross receipts). As a result of this error, the trial court substantially overstated the amount of income that the Husband had available to pay alimony.

We do not overlook the fact of the Husband’s rent-free residence in one of the triplex’s two-bedroom units. But if the Husband did not live in one of the triplex units, he would have to rent another place to live. In that event, the additional rental expense would likely cancel out the additional income to be obtained from renting the third triplex unit. So adding the projected rent from the third unit to the Husband’s income would not be appropriate.

III. CONCLUSION

For the foregoing reasons, we reverse the award of permanent periodic alimony to the Wife. On remand, the trial court shall reconsider the issue of permanent periodic alimony and enter an amended final judgment consistent with this opinion. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.


author: VTLLANTI, Judge.

text:
    Daniel David GILL, Appellant, v. Krystal Ann GILL, Appellee.
    No. 2D09-2746.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.
    Joseph C. Bodiford of Bodiford Law, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   VTLLANTI, Judge.

Daniel David Gill (the Former Husband) appeals the final judgment of injunction against domestic violence entered against him and in favor of Krystal Ann Gill (the Former Wife). Because the evidence presented at the evidentiary hearing failed to show that the Former Wife was either the victim of domestic violence or that she had an objectively reasonable fear that she was in imminent danger of becoming the victim of domestic violence, we reverse the final judgment and vacate the injunction.

The Former Wife filed her petition for injunction for protection against domestic violence in April 2009. In that petition, she alleged that the Former Husband had pushed her during an argument in February 2008. She also alleged that she and the Former Husband engaged in a yelling match outside her house during a custody exchange in April 2009. In the petition, the Former Wife alleged that during the yelling match, the Former Husband “drove his car into me.” The Former Wife did not allege any acts of violence or threatened violence between the parties at any time between February 2008 and April 2009, the parties were currently living separately, and the Former Wife currently had a domestic violence injunction entered against her and in favor of the Former Husband.

In addition to the allegations concerning herself, the Former Wife also alleged in her petition that the Former Husband had beaten and punched the parties’ minor child, B.G., in October 2008, November 2008, and April 2009. However, the Former Wife did not seek an injunction for protection against domestic violence in favor of B.G. Based on the allegations in the petition, the trial court issued a preliminary ex parte injunction against domestic violence and ordered an evidentiary hearing on the Former Wife’s petition.

At the evidentiary hearing, the Former Wife testified that she arrived home from work on April 15, 2009, to find the Former Husband sitting in his car in her driveway waiting for B.G. to come out of the house. Because she could not park in her driveway, the Former Wife drove to a neighbor’s house, parked there, and walked back to the house. While the Former Wife had alleged in her petition that the Former Husband “drove his car at me” when she returned to the house, she did not testify to this act at the evidentiary hearing. Instead, the Former Wife testified only that a yelling match ensued between her and the Former Husband upon her return to the house and that the Former Husband threatened that she would be going to jail for violating the domestic violence injunction against her by approaching his car. The Former Wife also admitted that the Former Husband remained in his car during the entire incident. The Former Husband essentially corroborated the Former Wife’s testimony about what had happened between them during this incident.

The court also heard testimony from B.G. about the allegations of violence against her. B.G. testified that several days before the incident between her parents, the Former Husband had come to pick her up after school and had punched her and slapped her when she was not waiting for him where she was supposed to be. She testified that the Former Husband injured her lip during this altercation and that she had bruises on her arm the next day. The Former Wife offered photos that allegedly showed the injuries to B.G., but everyone at the hearing agreed that the photos were too blurry to be useful.

The Former Husband then indicated that he wanted to call as a witness a friend of his who saw B.G. later on the day of the alleged punching and slapping incident. The Former Husband indicated that this witness would testify that B.G. was fíne that night and had no injuries. The witness was called into the courtroom, but, without articulating any reason, the trial court refused to allow the Former Husband to elicit any testimony from this witness. Ultimately, the trial court granted the permanent injunction without ever considering testimony from the Former Husband’s witness. The Former Husband now appeals the final judgment of injunction, contending that it is not supported by competent, substantial evidence.

Section 741.30(l)(a), Florida Statutes (2009), provides for the issuance of an injunction in favor of any family or household member, as defined in section 741.28(3), who is a victim of domestic violence or who “has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Section 741.28(2) defines “domestic violence” as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” When considering whether a petitioner has reasonable cause to fear becoming the victim of imminent domestic violence, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999)); see also § 741.30(6)(b).

Here, the Former Wife’s evidence was legally insufficient to meet the statutory requirements for issuance of an injunction against domestic violence. The Former Wife did not testify that she was the victim of any act of domestic violence. The only allegation of any actual violence is that of the pushing incident in February 2008. However, an isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations. Compare Jones v. Jones, 32 So.3d 772, 773-74 (Fla. 2d DCA 2010) (finding that a pushing incident that occurred three years before the injunction was filed was not sufficient to support the issuance of an injunction against domestic violence), with Giallanza, 787 So.2d at 163 (finding that allegations of actual violence eight to ten years before the petition was filed were sufficient to support the issuance of the injunction when coupled with allegations that the husband had “recently been very angry and verbally abusive ... due to the parties’ impending divorce”).

Further, the Former Wife did not present sufficient evidence to establish that she had an objectively reasonable basis to believe she was in imminent danger of becoming the victim of any act of domestic violence. The only evidence presented at the hearing was that the Former Wife engaged in a yelling match with the Former Husband through a closed car window in the driveway of her house. She testified that when she found the Former Husband seated inside his car in her driveway, she drove away, parked at a neighbor’s house, and then walked back to the house. She admitted that the Former Husband never got out of his car. Moreover, the only threat the Former Husband allegedly made was that the Former Wife would be going to jail because she had violated the domestic violence injunction already in place against her by approaching the Former Husband’s car. Such generalized threats to engage in unpleasant, but not violent, behavior are not sufficient to support the issuance of a domestic violence injunction. See, e.g., Jones, 32 So.3d at 774 (holding that injunction was improperly issued when there was no evidence of actual violence or threats of violence); Oettmeier v. Oettmeier, 960 So.2d 902, 903, 905 (Fla. 2d DCA 2007) (holding that injunction was not properly issued based on threats to make the petitioner’s life miserable); Kopelovich v. Kopelovich, 793 So.2d 31, 33 (Fla. 2d DCA 2001) (holding that threats to harm the wife in court and destroy her financially were not sufficient to establish an objectively reasonable fear of domestic violence). Accordingly, since the Former Wife failed to prove that she was either the victim of domestic violence or that she had an objectively reasonable basis to believe that she was in imminent danger of becoming the victim of domestic violence, the trial court erred by granting the petition and issuing the permanent injunction.

Further, under the specific facts of this case, the Former Wife’s allegations concerning the Former Husband’s violent acts toward B.G. cannot support the issuance of the injunction. Notably, the Former Wife did not seek an injunction on behalf of B.G. Thus, while the evidence might arguably have been sufficient to support the issuance of an injunction against the Former Husband for the protection of B.G., see Moore v. Pattin, 983 So.2d 663, 664-65 (Fla. 4th DCA 2008) (finding evidence that the father disciplined his daughter by hitting her with a belt and a shoe was sufficient to support the issuance of an injunction for protection against domestic violence in favor of the daughter), such an injunction was neither requested nor issued.

Since no injunction in favor of B.G. was requested, the Former Husband’s alleged violence toward B.G. is relevant only to determining whether his actions gave the Former Wife an objectively reasonable fear that the Former Husband would turn his anger and violent actions toward her. However, the testimony at the hearing concerning the Former Husband’s actions was that he was rough with B.G. because she was misbehaving and not complying with her parents’ instructions concerning where she was to be after school. There was no evidence to support even an inference that the Former Husband’s somewhat misguided means of discipline would be turned on the Former Wife. Under these circumstances, the Former Husband’s actions toward B.G. cannot support the issuance of the injunction in favor of the Former Wife.

Finally, we note that it appears that the trial court entered this injunction out of frustration with the parties’ bickering back and forth in court. Recognizing that the Former Wife already had an injunction against domestic violence in place against her, the court stated, “I’m going to enter Ms. Gill’s injunction, so the two (2) of you stay away from each other.” However, notwithstanding the trial court’s good intentions, the injunction in this case appears to be nothing more than the improper belated issuance of a mutual injunction. See § 741.30(l)(i) (providing that “[t]he court is prohibited from issuing mutual orders of protection” unless each party meets the statutory requirements for issuance of an injunction); see also Martin v. Hickey, 733 So.2d 600 (Fla. 3d DCA 1999) (“While we have some sympathy for the trial judge’s apparent belief that it could do no harm to enter what, in effect, were mutual restraining orders, the one presently under review is not, as required, independently supported by the pertinent evidentiary requirements.”). A mutual injunction cannot issue when the evidence offered at the hearing is legally insufficient to meet the statutory requirements, as was the case here.

In the absence of sufficient evidence to meet the statutory requirements or statutory authority for the issuance of a mutual injunction, the trial court was not permitted to enter a permanent injunction against domestic violence against the Former Husband under these facts. Accordingly, we reverse the judgment and vacate the injunction.

Reversed and remanded with instructions to vacate the injunction.

KHOUZAM and MORRIS, JJ., Concur.