author: BENTON, C.J.

text:
    Tromondo Tobias BOLLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4006.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Tromondo Tobias Bolling appeals the trial court’s denial of his motion for new trial. The motion alleged misconduct by a juror in not disclosing that he knew Meac-hell Randall, the defendant’s mother, and through her the defendant-or at least who the defendant was. We affirm the denial of the motion for new trial, because the motion makes no claim that the defense would have challenged the juror, if the juror had disclosed the relationship during voir dire.

The supreme court has laid out a three-part test for determining whether a juror’s nondisclosure of information during voir dire will warrant a new trial: “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995) (citing Sidles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972)). While De La Rosa is a civil case, the supreme court routinely applies its three-part test in criminal cases. See, e.g., Murray v. State, 3 So.3d 1108, 1121-22 (Fla.2009); Lugo v. State, 2 So.3d 1, 13-16 (Fla.2008); Bigham v. State, 995 So.2d 207, 215 (Fla.2008).

After a jury found him guilty of burglary of a conveyance with assault or battery and of robbery without a weapon, Mr. Bolling filed a motion for new trial, alleging that a juror, Ronald Maxwell, knew both Mr. Bolling and his mother, who had testified at trial for the defense, and that he had not disclosed the fact, although he was asked on voir dire. The motion alleged that the defendant’s mother rented her home from the juror or his wife, that the mother and the juror had been friends for years, and that they had talked about Mr. Bolling in the courthouse the morning of trial. Although it ultimately denied the motion for new trial, the trial court explicitly ruled that Mr. Bolling had satisfied all three elements of the De La Rosa test.

At an evidentiary hearing on the motion, the trial court found that Mr. Boll-ing did not recognize Mr. Maxwell, before the trial concluded. The trial court also credited Mr. Maxwell’s testimony that he did not recognize Mr. Bolling during voir dire or trial. But the trial court found that Mr. Maxwell knew who the defendant’s mother was, went to the same church she did, saw her in the courthouse cafeteria on the morning of trial, asked her why she was there, and learned she was there with her son. The trial court found that Mr. Maxwell did not disclose these facts to the trial judge, before the hearing on the motion for new trial, but that he did tell his fellow jurors, before deliberations began, that the defendant’s mother was a tenant in a house that his wife owned.

Like the trial court, we conclude that the appellant proved the second and third elements of the supreme court’s three-part test. The supreme court has made clear that “a juror’s nondisclosure need not be intentional to constitute concealment.” Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 343 (Fla.2002). In De La Rosa, the court adopted the dissenting opinion in Zequeira v. De La Rosa, 627 So.2d 531, 533-34 (Fla. 3d DCA 1993): “ ‘Assuming, arguendo, that the juror had no intention of misleading counsel, ‘the omission nonetheless prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.’ Bernal[v. Lipp, 580 So.2d 315, 316-17 (Fla. 3d DCA 1991) ].’ ” De La Rosa, 659 So.2d at 242. Cf. Wiggins v. Sadow, 925 So.2d 1152, 1154-55 (Fla. 4th DCA 2006) (concluding that juror did not conceal any information because she did not know of her relationship to plaintiff through his granddaughters until the verdict was read). As regards the third element, the fact findings ruled out the possibility that Mr. Bolling, the complaining party in the present case, even knew his mother was acquainted with one of the jurors, before the trial concluded.

The crux is the first prong, relevance and materiality. We have said that any “juror who conceals a material fact that is relevant to the controversy is guilty of misconduct, and this misconduct is prejudicial to at least one of the parties, because it impairs his or her right to challenge the juror.” Young v. State, 720 So.2d 1101, 1103 (Fla. 1st DCA 1998). (In criminal cases, of course, the state is also a party.) The presumption of prejudice has been said to apply “unless the opposing party can demonstrate there is no reasonable possibility that the misconduct affected the verdict.” Williams v. State, 933 So.2d 671, 672 (Fla. 1st DCA 2006) (citing State v. Hamilton, 574 So.2d 124, 129 (Fla.1991)). Under the rule, a criminal defendant is entitled to a new trial if a juror’s misconduct has prejudiced the defendant’s substantial rights. See Fla. R. Crim. P. 3.600(b)(4).

A juror’s knowledge, even unrelated to the parties, can be grounds for a challenge. See, e.g., Dery v. State, — So.3d -, -, 2010 WL 2836123 (Fla. 2d DCA 2010) (as a result of juror’s failure to disclose her specialized knowledge about DNA during voir dire, defendant “was prevented from exercising a peremptory or for-cause challenge to strike her from the jury during voir dire”). In remanding for a juror interview and evidentiary hearing to determine possible juror misconduct, we have said that “a juror’s ‘knowledge concerning one of the parties is considered to be a material fact,’ “ and, specifically, that “UJf true, the allegations ... that the juror knew Forbes and had attended a neighborhood meeting wherein crimes were discussed and attributed to him would warrant a new trial.” Forbes v. State, 753 So.2d 709, 710 (Fla. 1st DCA 2000) (quoting Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991)). In remanding for a juror interview, the Fourth District stated that a juror’s nondisclosure of the fact that he knew the defendant’s brother “is reasonably capable of affecting a decision to exercise peremptory challenges even if the juror is not disqualified for cause.” Tripp v. State, 874 So.2d 732, 733 (Fla. 4th DCA 2004). But the cases do not say that all knowledge concerning a party or witness is relevant and material.

Here we do not share the trial court’s view that Mr. Bolling established that the information Mr. Maxwell failed to disclose was relevant and material to Mr. Bolling’s decision not to challenge Mr. Maxwell as a juror. Relevance and materiality necessarily turn on the facts and circumstances of each case. See Tejada, 814 So.2d at 341 (quoting Garnett v. McClellan, 767 So.2d 1229, 1230-31 (Fla. 5th DCA 2000)). In ruling on the first prong of the De La Rosa test, the trial court found:

Well, the information of, I know the defendant’s mother and my wife rents to her. And I know that Mr. Maxwell talked about he went to that house one time, and the defendant was in the bedroom and he didn’t see him or he didn’t come out, or something to that effect. But the fact that he knew the defendant and the defendant’s mother, that is relevant and material evidence.[]

At issue in the present case are relevance and materiality to the defense’s — not the prosecution’s — decision whether to challenge the juror. The Fifth District has explained when undisclosed information is considered material:

A juror’s nondisclosure of information during voir dire is considered material if it is so substantial that, if the facts were known, the defense likely would peremptorily exclude the juror from the jury. James v. State, 751 So.2d 682 (Fla. 5th DCA 2000)....
.... Omitted information has been considered relevant and material where it implies a bias or sympathy for the other side which in all likelihood would have resulted in the use of a peremptory challenge. See, e.g., De La Rosa; Bernal v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991); Industrial Fire & Cas. Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989); Mobil Chemical Co. v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983).[]

McCauslin v. O’Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008). See Fine v. Shands Teaching Hosp. & Clinics, Inc., 994 So.2d 426, 427-28 (Fla. 1st DCA 2008) (reversing for reconsideration under the De La Rosa test where trial court “erred in focusing on whether or not it believed the jurors were biased when deliberating this case rather than on what Appellant’s counsel would have done during voir dire had the litigation history [of the jurors] been disclosed”).

Relevance and materiality must be gauged in the context of a party’s deciding whether to challenge a juror who failed to make disclosure. Section 913.03 provides the grounds for a challenge for cause, including that “[t]he juror has a state of mind regarding the defendant ... that will prevent the juror from acting with impartiality.” § 913.03(10), Fla. Stat. (2009). “The test for juror competency is “whether the juror can lay aside any bias or prejudice and render’ a verdict solely on the evidence presented and the instructions given. If there is any reasonable doubt about a juror’s impartiality, the juror must be excused for cause.” Diaz v. State, 45 So.3d 32, 35 (Fla. 4th DCA 2010) (citations omitted). Here Mr. Bolling does not argue that he would have challenged Mr. Maxwell for cause.

Nor does the record establish that the information Mr. Maxwell failed to disclose would have made a peremptory challenge by the defense likely. “ ‘While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable.’ ” Busby v. State, 894 So.2d 88, 99 (Fla.2004) (quoting Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824,13 L.Ed.2d 759 (1965) (overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986))). Mr. Bolling failed to allege cause or any “imagined partiality” in the present case. Mr. Maxwell did not recognize him on sight, was apparently on friendly terms with his mother, and was not shown to have received any information outside the trial detrimental to his position.

Mr. Bolling did have the right to exercise a peremptory challenge — the defense had one peremptory challenge out of ten remaining by the time Mr. Maxwell, juror number 46, was seated. But Mr. Bolling never even alleged that he would have used a peremptory challenge to strike Mr. Maxwell. See, e.g., Pub. Health Trust of Miami-Dade Cnty. v. Metellus, 948 So.2d 4, 5 (Fla. 3d DCA 2006) (reversing order granting new trial because a juror did not reveal she had been in a divorce and was the target of collection efforts, in part because there was no showing that counsel would have exercised a peremptory challenge against the juror, had he known the information); Freedman v. De La Cuesta, 929 So.2d 25, 26 (Fla. 3d DCA 2006) (no abuse of discretion in denying motion for new trial based on juror nondisclosure when there was no showing that the undisclosed information was substantial and important or that plaintiffs would have exercised a peremptory challenge); Murphy v. Hurst, 881 So.2d 1157, 1162-63 (Fla. 5th DCA 2004) (finding that information juror withheld was not material merely because appellant objected to juror’s presence on jury).

At the hearing on the motion before the trial court, the defense contended that Mr. Maxwell had a duty to notify the court once he recognized Ms. Randall “so that the [cjourt could then give [Mr. Bolling] an option of whether to question him, and then whether it [had] influenced his ability to be fair and impartial.” But the appellant did not adequately allege and did not prove the juror’s nondisclosure was, from a defense perspective, “relevant and material to jury service in the case.” De La Rosa, 659 So.2d at 241. The defense argued merely that it “could” have struck Mr. Maxwell, not that it would in all likelihood have exercised a challenge, if it had known that Ms. Randall and Mr. Maxwell were acquainted. See Fine, 994 So.2d at 428 (emphasizing that the correct standard is the “would in all likelihood” standard).

Affirmed.

WETHERELL and ROWE, JJ„ concur.

      . In the context of a juror's failure to disclose litigation history, the supreme court has listed factors to consider in determining "the impact, if any, of a juror’s prior exposure to the legal system on his present ability to serve in a particular case,” including: remoteness in time, character and extensiveness of the litigation experience, and the juror's posture in the litigation. Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 342 (Fla.2002).

      . That he knew the defendant's mother and therefore who the defendant was — although Mr. Maxwell apparently did not recognize him by sight, at least at first — would undoubtedly have been relevant and material to the state in deciding whether or not to challenge Mr. Maxwell as a juror.

      . On the other hand, in Murray v. State, 3 So.3d 1108, 1121 (Fla.2009), a juror informed the court, during trial, that he had just realized that a police officer with the same name as one who was to testify lived in his neighborhood and that he therefore might know the witness. The court brought in the officer, and as soon as the juror saw him he told the court it was not his neighbor. The defendant claimed that he should have been granted a mistrial because the juror did not reveal that he had a police officer as an acquaintance and a neighbor, and the supreme court found that "even if [he] did conceal that fact, it does not pass the Zequeira test for granting a new trial. First, the fact that [the juror] knew a police officer is not material. [He] stated that he rarely saw him and did not speak to him during the trial.” Id. at 1122.
      Similarly, the defendant in Bigham v. State, 995 So.2d 207, 215 (Fla.2008), alleged that the trial court improperly allowed a juror to remain on the panel after the juror informed the court, once trial testimony began, that he recognized one of the state’s witnesses, a police detective. The supreme court found that "[o]n the record it appears that the juror's failure to disclose his knowledge of a State witness was not material.” Id. The Bigham court found that the juror recognized the detective as a past acquaintance at a bar that the detective frequented five to seven years before trial; and the court described the juror’s familiarity with the witness as “casual and distant.” Id.

      . But see Pereda v. Parajon, 957 So.2d 1194, 1196-97 (Fla. 3d DCA 2007) (reversing trial court’s determination that there was no basis to believe plaintiff’s counsel would have used a peremptory challenge to strike the juror had he known the information later disclosed, and finding that juror’s failure to disclose the facts of the juror’s personal injury litigation was material because it was not too remote in time and might have affected her point of view).

      . In this context, we apply a "would in all likelihood” standard in determining materiality:
      [Tjhe supreme court in Tejada cited Birch ex rel. Birch v. Albert, 761 So.2d 355 (Fla. 3d DCA 2000), for the proposition that materiality is only shown where the " 'omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.’ ” 814 So.2d at 340. However, the supreme court also cited Garnett v. McClellan, 767 So.2d 1229 (Fla. 5th DCA 2000), for the proposition that " ‘[n]ondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror from the jury.’ ” 814 So.2d at 341. While Appellant relies upon the "may have been influenced” standard, the supreme court in State Farm Fire and Casualty Co. v. Levine, 837 So.2d 363, 365 (Fla.2002), cited Tejada for the proposition that materiality is only shown "where the ‘omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.’ ” As such, the "would in all likelihood” standard should be applied on remand.
        Fine v. Shands Teaching Hosp. & Clinics, Inc., 994 So.2d 426, 428 n. * (Fla. 1st DCA 2008). More recently, the supreme court used the “likely would peremptorily exclude” standard in Murray, 3 So.3d at 1121-22 (quoting McCauslin v. O’Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008)).


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    Michael V. MONTIJO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3434.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Rehearing Denied May 26, 2011.

      F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Michael Montijo appeals his conviction for manslaughter with a deadly weapon. His charges for second-degree murder and aggravated assault with a deadly weapon arose from a road rage incident that was set off when Montijo, distracted by talking on his cell phone, cut in front of a car containing Hunter Rosier and three friends. The car followed Montijo into a Steak n’ Shake parking lot and its occupants, highly agitated, cursed and screamed at Montijo. Following a verbal confrontation, Montijo retreated into the Steak n’ Shake and the staff locked the door behind him. The account of the subsequent events leading to Rosier’s death varied depending upon who was testifying — Montijo, one of the restaurant patrons, or Rosier’s friends. Suffice it to say, no two accounts were entirely consistent because many of the witnesses had been drinking. What is clear, however, is that Montijo fatally stabbed Rosier, allegedly in self-defense, and there was testimony supporting his defense.

Montijo challenges various aspects of the instruction on the justifiable use of deadly force read and provided to the jury. We find no error in the instruction regarding the duty to retreat and its juxtaposition to an individual’s right to stand one’s ground when confronted with the use of force, as set forth in section 776.013(3), Florida Statutes. What is problematic was the portion of the instruction referencing the burden of proof. The trial court’s instruction on the justifiable use of deadly force was patterned on Florida Standard Jury Instruction (Criminal) 3.6(f) and, in relevant part, read:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Michael V. Montijo is charged if the death of Hunter Rosier resulted from the justifiable use of deadly force.
“Deadly force” means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of Aggravated Battery against himself.
To prove the crime of Aggravated Battery, two elements must be proven beyond a reasonable doubt. (Emphasis supplied).

Montijo argues the trial court committed fundamental error in giving the instruction because it improperly shifted the burden to him to establish beyond a reasonable doubt that Rosier was attempting to commit an aggravated battery on him. Monti-jo is relegated to arguing fundamental error because, as the State points out, he did not timely object to the instruction and, therefore, did not preserve the error for appellate review.

As set forth in Martinez v. State, 981 So.2d 449 (Fla.2008), giving an erroneous jury instruction on an affirmative defense is not per se fundamental error. The issue is whether the error

“reach[ed] 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.” In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”

Id. at 455 (citations omitted).

In determining this issue, we initially reject the State’s argument that the instruction did not specify who had the burden of proving the elements of aggravated battery. Read in context, it is evident the jury would have understood that Montijo shouldered that burden. Indeed, as an affirmative defense, Montijo had the burden of coming forth with some evidence to support giving the instruction. This could have been accomplished in a variety of ways, including the direct and cross-examination of the witnesses or it may have been inherent in the presentation of the State’s case. The evidence necessary to support giving the justifiable use of force instruction, however, did not need to rise to the level of beyond a reasonable doubt. See Murray v. State, 987 So.2d 277, 279 (Fla. 4th DCA 2006).

The defendant in Murray was charged with aggravated battery and asserted that his use of force was necessary to prevent his roommate’s commission of an aggravated battery. Similar to this case, the trial court instructed the jury that Murray had to prove the elements of aggravated battery beyond a reasonable doubt. Likewise, as in this case, the jury was instructed that if there was a reasonable doubt about whether or not Murray was justified in using deadly force, they should find him not guilty. In reversing the conviction, the court noted that Murray “laid upon himself a requisite of producing evidence of the additional facts necessary for his defense of justification.” Id. It further questioned the nature of that burden:

But, with these additional facts, did he also incur a “burden of proof’ identical to the State’s? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt? Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value-other than they might be true?
The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense. '

Id.

We agree with this analysis. When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense. See id.; Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction.

In the case at bar, Montijo’s only defense was self-defense. The testimony, viewed in the light most favorable to him, established that Rosier was a large individual who followed Montijo’s car into the Steak n’ Shake parking lot and was aggressive during the confrontation. This was sufficient evidence to merit giving the justifiable use of deadly force instruction. We understand how a jury could reject the self-defense claim because Montijo knew the police were on their way but returned to the parking lot, leaving the buffer of a locked door separating him and Rosier. However, Montijo was entitled to have the jury correctly instructed on self-defense. In the instant case, when instructing on the aggravated battery prong of the self-defense instruction, the trial court should have omitted reference to any burden of proof, instead simply instructing on the requisite elements. The inclusion of the phrase “beyond a reasonable doubt” in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.

REVERSED.

EVANDER and JACOBUS, JJ., concur.

      . Montijo also contends the trial court erred in failing to postpone the conclusion of the trial until a witness he subpoenaed, who unexpectedly failed to appear, could be secured. Given our disposition of the remaining issues raised on appeal, it is unnecessary to address this issue.

      . In Martinez v. State, 981 So.2d 449 (Fla.2008), the supreme court addressed a different provision in the justifiable use of deadly force instruction: the requirement of an independent forcible felony separate and apart from the offenses with which the defendant was charged.

      . We also reject the State’s suggestion that any error in giving the jury instruction was harmless because Montijo's theory of self-defense was that he had to use force to prevent death or great bodily harm, not due to a fear of an imminent, aggravated battery. In its closing argument, the State argued that there was no evidence of an imminent commission of an aggravated battery against Montijo, thereby implicating this portion of the instruction.

      . We commend this issue to the Florida Supreme Court — Jury Instructions Committee (Criminal).


author: PER CURIAM.

text:
    Cory D. McMILLEN, Appellant, v. Barbra NATALI, Appellee.
    No. 5D10-1030.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Rehearing Denied May 26, 2011.
    Cory D. McMillen, Orange City, pro se.
    R. Jason deGroot, Deltona, for Appellee.
   PER CURIAM.

This is the pro se appeal of a final judgment of dissolution of marriage. Cory McMillen [“Appellant”] raises multiple claims of error in the trial court. Unfortunately, this is a case where the lack of counsel to instruct or advise Appellant appears to have led him into a difficult position on appeal. He complains about several pretrial matters, but letters of complaint to the judge or magistrate, which at times are confusing and internally contradictory, are no substitute for bringing a matter on for hearing.

He complains of several rulings by the trial court at the trial, and there may be substance to his arguments. Unfortunately, as all too often happens, there was apparently no reporter to record the trial and, therefore, no record for us to examine. Without a record of the proceedings, there is no basis to find the trial court erred.

As to the trial court’s decision to allow Appellant periodic possession of one of the marital dogs, although Appellant’s former wife suggests on appeal that this order cannot be enforced by Appellant because Florida’s courts do not allow pet visitation, that is not what the trial court ruled, the issue of enforceability was not properly raised below or on appeal by the former wife, and, even if the question were properly presented, we are doubtful that the order at issue would be invalidated. Accordingly, the judgment in its entirety is affirmed.

AFFIRMED.

GRIFFIN, SAWAYA and PALMER, JJ., concur.


text:
    Leo Gregory HORNE, Appellant, v. Pamela ENDRES, Appellee.
    No. 1D10-4038.
    District Court of Appeal of Florida, First District.
    April 15, 2011.

      Christina Nieto Seifert of Avera & Smith, LLP, Lake City, for Appellant.
    Jeffrey A. Siegmeister, Lake City, for Appellee.
   BENTON, C.J.

Leo Gregory Horne appeals a “No Contact Order” entered against him on Pamela Endres’s Petition for Injunction Against Repeat Violence under section 784.046(2), Florida Statutes (2009). Her petition alleged two incidents of “violence” in which Mr. Horne “confronted” her and “made threats.” After entering a temporary injunction under the statute, and conducting an evidentiary hearing — duly noticed as being for the purpose of deciding whether a permanent injunction should issue under the statute — the trial court entered the no contact order under review. We reverse. Neither section 784.046(2) nor any other statute authorizes the no contact order, and even courts of general jurisdiction are without plenary power to enjoin citizens to remain on good behavior.

The no contact order appears to recognize that proof of the parties’ interactions fell short of a showing that would warrant an injunction against repeat violence under section 784.046(2), Florida Statutes (2009). Ms. Endres did not prove a single instance of “violence” within the meaning of section 784.046(l)(a). At most, Mr. Horne’s actions during the two incidents at issue were alleged to have constituted assault, “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent,” § 784.011(1), Fla. Stat. (2009), or battery — which occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other” or “[i]ntentionally causes bodily harm to another person.” § 784.03(l)(a), Fla. Stat. (2009).

The trial court made no findings— and the record would not support a finding — that Mr. Horne either threatened to do Ms. Endres violence or that he intentionally touched or harmed her during the first incident. As to the second incident— events at the school — the trial court made factual findings that Mr. Horne slammed doors and slammed down a book bag, and that the principal was sufficiently concerned that he summoned a school resource officer. But the record reflects that the slamming behavior occurred outside Ms. Endres’s presence, and that she did not even know about it at the time.

To be sure, the record also supports the trial court’s findings that Mr. Horne said to Ms. Endres, “[Y]ou’re going to have charges coming your way,” and “[Y]ou don’t know who you’re messing with,” and that he told his wife, “[Y]ou should have taken care of her.” But these statements were not accompanied by any act that would create a reasonable fear that violence was imminent, and neither statement threatens violence, even implicitly. See Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (reversing injunction against repeat violence where testimony established that respondent yelled profanities and threats at petitioners, but that there was no indication that respondent “threatened to do violence, or that he took some action that could have created a well-founded fear that violence was imminent”). See also Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (reversing injunction against repeat violence where respondent threatened to kill petitioner and her family but without any apparent ability to do so, and committed no overt act creating a well-founded fear of violence).

The trial court entered the “No Contact Order,” in lieu of an injunction under the statute, “so that hopefully [Mr. Horne] can maintain his employment[] and receive the treatment that will serve him, his family, the public and restore the ability to become a quality officer.” See generally Weiand v. State, 732 So.2d 1044, 1055 n. 11 (Fla.1999) (“In addition, pursuant to 18 U.S.C.A. § 922 (West Supp.1998), it is unlawful for any person under a restraining order to transport, possess, or receive in interstate commerce any firearms or ammunition.”); Boyles v. Tiefenthaler, 810 So.2d 1041, 1041 (Fla. 2d DCA 2002). The no contact order, which was to remain in effect until further order of the trial court, directs Mr. Horne to “refrain from committing or causing any act or threat of violence against” Ms. Endres; to have no contact in any manner with Ms. Endres; and not to go within 500 feet of her, her residence, her place of employment, or her car.

As seems to have been intended, the trial court’s no contact order has much the same effect as an injunction of the kind section 784.046(2) authorizes. Implementing the statute, the supreme court has approved Form 12.980(0 for use in the issuance of permanent injunctions against repeat violence under chapter 784. See Fla. Fam. L.R.P. 12.610(c)(2)(A). The standard Form 12.980(Z) injunction prohibits the respondent from committing acts of violence against the petitioner, prohibits the respondent from having any contact with the petitioner, and from going within 500 feet of the petitioner’s current residence, place of employment, school, or other requested places. See Fla. Fam. L.R.P. Form 12.980(Z). The no contact order entered in the present case contains nearly identical prohibitions.

In the absence of proof of the statutory prerequisites, however, we are unable to affirm the no contact order, as being in effect an injunction against repeat violence. Nor are we aware of any other statutory authority for the no contact order. See, e.g., Polanco v. Cordeiro, — So.3d-, -, 2010 WL 3655514 (Fla. 2d DCA 2010) (Villanti, J., concurring) (“[N]owhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior occurring at work or church, which was the crux of Mrs. Cordeiro’s complaint.”).

Ms. Endres argues for affir-mance on a “tipsy coachman” theory, see generally Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999), contending that the trial court could have entered the no contact order as a remedy within the power of a court of equity to fashion. We do not agree that Florida’s courts have such sweeping powers. In general, equity will not enjoin even criminal violations, as such. See Steinfink v. Radish, 638 So.2d 79, 79 (Fla. 3d DCA 1993) (reversing injunction against repeat violence and stating that “[s]ince equity has no non-statutory ‘jurisdiction to enjoin the commission of crime, nor will equity act to prevent an illegal act merely because it is illegal,’ there is no alternative basis to support the order under review.” (brackets and citations omitted)). The rule is that an injunction is unavailable unless the party seeking the injunction can ‘“establish a clear legal right, an inadequate remedy at law and that irreparable harm will arise absent injunctive relief.’ ” Hollywood Towers Condo. Ass’n, Inc. v. Hampton, 40 So.3d 784, 786 (Fla. 4th DCA 2010) (quoting K.W. Brown & Co. v. McCutchen, 819 So.2d 977, 979 (Fla. 4th DCA 2002)).

The no contact order is reversed.

PADOVANO and WETHERELL, JJ., concur.

      . After hearing multiple witnesses, the trial court made the following findings of fact: The first incident occurred when Ms. Endres and her ex-husband ran into Mr. Horne, a sergeant with the Columbia County Sheriff’s Office, in a shopping center parking lot. Mr. Horne informed them that their son had broken one of his son’s golf clubs and that he wanted them to pay for it. As Mr. Horne started to leave, his truck came close to Ms. Endres, and she "hit his truck while pushing forward to prevent from being run over.” Mr. Horne then stopped, jumped out of his truck, and yelled at her, "Don't you ever hit my_truck.” To Ms. Endres's ex-husband, he yelled, "Keep your dog on a leash.”
      The second incident occurred in the front office of the middle school that the parties’ sons attended. The parents were there to pick up their sons after a meeting about bullying that their sons and other boys attended with the principal. Mr. Horne, who was there in uniform, told Ms. Endres "you're going to have charges coming your way,” and "you don't know who you're messing with.” The trial court found that Mr. Horne was the aggressor during this incident, and that he "acted-out with force by slamming doors, throwing his son’s ... book bag, yelling at school employees, and confronting” Ms. En-dres. The principal was sufficiently concerned with this behavior that he called a school resource officer. The trial court found that, given the first incident, Ms. Endres’s "fear and resulting emotional distress stemming from [the incident at the school] were reasonable.”
      The trial court also found that Mr. Horne "has problems both controlling his temper and separating his role as a law enforcement officer from that of a civilian and parent,” that he "has issues understanding his position of trust and responsibility,” and that he "is in need of anger management or behavioral treatment.”

      . In the context of an injunction against repeat violence, "violence” means "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a), Fla. Stat. (2009). "Repeat violence” means "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.” § 784.046(I)(b), Fla. Stat. (2009). "Competent, substantial evidence must support the trial court's findings of two incidents of repeat violence,” so defined. Terrell v. Thompson, 935 So.2d 592, 593 (Fla. 1st DCA 2006).

      . We have no occasion to interpret the federal statute in the present case, but do not endorse the proposition that entry of a "no contact order” in lieu of an injunction explicitly authorized by section 784.046(2), Florida Statutes (2009), makes a difference under 18 U.S.C. § 922 (2006).

      . It also requires Mr. Horne to complete an anger management course. Finally, it provides that violation of the order could subject Mr. Horqe to contempt of court, and that a proven violation would result in the entry of a permanent injunction for protection against repeat violence.

      . Of course, no criminal violation nor any credible threat of crime was established here.


text:
    SAM RODGERS PROPERTIES, INC., Appellant, v. Linda Lan CHMURA, Appellee.
    No. 2D10-1260.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.
    Rehearing Denied June 2, 2011.

      Charles J. Bartlett and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
    Stephen H. Kurvin, Sarasota, for Appel-lee.
   PER CURIAM.

After a nonjury trial, Sam Rodgers Properties, Inc. (SRP), appeals an amended final judgment entered in favor of Linda Lan Chmura in the amount of $355,742.55, plus interest. We affirm the portion of the amended final judgment that complies with our prior mandate in Chmura v. Sam Rodgers Props., Inc., 2 So.3d 984 (Fla. 2d DCA 2008), which orders that the previous foreclosure sale and certificate of title be vacated and set aside. However, because we find that there was a legally binding written contract between the parties and both a valid original claim of lien and amended claim of lien, we reverse the award of damages to Mrs. Chmura and remand with directions for the trial court to enter judgment in favor of SRP on its breach of contract and lien foreclosure claims.

I. Facts

This entire case is about a $10,000 dispute in the base contract price to construct a home. SRP is a home builder and the developer of a community called Pelican Pointe Golf & Country Club. In February 2004, Mrs. Chmura signed a set of contracts with SRP to purchase lot 31 in Pelican Pointe and to have a house built on that lot. The parties’ dispute arose over the base price of the house to be built on the lot. However, it is undisputed that Mrs. Chmura signed a contract dated February 28, 2004, to build a “Monterey” model on lot 31 for a base price of $246,700. The trial court was also presented with a copy of a second contract dated May 29, 2004, reflecting that Mrs. Chmura agreed to build a “Monterey” on lot 31 for a base price of $256,700, allegedly due to an increase in the model’s base price. To explain the discrepancy between the two contracts, SRP conceded that, at some point after February 2004, the $246,700 price for the Monterey model on lot 31 was “whited out” and changed to $256,700 on the first page of the construction contract. Sam Rodgers failed to obtain Mrs. Chmura’s initials or signature on the page that had changed the base price for the house or on any other document specifically acknowledging her consent to the $10,000 increase in the base price. Nevertheless, SRP claimed that Mrs. Chmura orally agreed to the price increase, something she vehemently denied.

At trial, Mrs. Chmura claimed she did not realize the base price of the house had been increased without her consent until September or October 2005. Thereafter, she sent letters to SRP questioning the price discrepancy, but she took no affirmative action to cause SRP to halt construction of the house or to repudiate the first contract. It is apparent from Mrs. Chmu-ra’s testimony and the evidence presented at trial that she did not want to terminate the contract; she simply wanted to correct what she perceived to be an error in pricing. During this time frame, she attended preconstruction meetings with SRP’s representatives.

In late January 2006, SRP began construction of a Monterey model on lot 31. After the slab was poured and the roof was dried in, SRP asked Mrs. Chmura to make the next two “draw” payments on the house. Mrs. Chmura did not make the payments, and construction stopped on March 10, 2006, although subcontractors who were in the middle of tasks were allowed to complete those tasks. On April 26, 2006, SRP recorded a claim of lien in the amount of $169,926 for “furnished labor, services, or materials consisting of home construction” that allegedly remained unpaid out of a total of $339,853. On June 13, 2006, it filed a lawsuit against Mrs. Chmura asserting claims for construction lien foreclosure and breach of contract. Mrs. Chmura counterclaimed for rescission.

In July 2006, SRP performed additional work on the house, alleging that the work was necessary to protect the structure from the elements. On August 30, 2006, it recorded an amended claim of lien to reflect these additional sums, totaling an additional $10,213. This amount represented services rendered after the original work had stopped, as well as payment of taxes and insurance on the property. It then amended the complaint to recover these additional amounts.

Subsequently, SRP obtained a final judgment of foreclosure and bought the house and lot at a foreclosure sale. For reasons explained in our prior opinion, this court reversed the final judgment of foreclosure and remanded for a new trial. Chmura, 2 So.3d at 987.

On remand, SRP proceeded to a second nonjury trial, seeking foreclosure on its claim of lien and damages for breach of contract. Its main argument was that the parties had a valid contract to build a Monterey model on lot 31 for $256,700. The trial court rejected that claim, finding “Exhibit 10, the Contract upon which [SRP] sued[,] was changed by white out. It appeared that the date of the Contract, as well as the purchase price[,] was changed.... It is undisputed that Linda Chmura did not sign the changed Contract.” The trial court also concluded that SRP had begun construction of the house without any valid contract at all, finding that there had been “no meeting of the minds” and “no signed contract to prove otherwise.”

Regarding SRP’s claim for foreclosure of construction liens, the trial court concluded that the amended claim of lien is “void as a matter of law as it was filed 168 days after the last work was performed pursuant to the' [contract.” The trial court found that the additional work reflected in the amended claim of lien was “done to protect [SRP’s] interests, not pursuant to the [c]ontract or for the benefit of Linda Chmura,” after SRP had filed suit to foreclose the original lien. It conclusor-ily found that the amended lien sought to recover for additional work not performed pursuant to the contract and that Mrs. Chmura had suffered “great prejudice.” The trial court therefore found the amended claim of lien fraudulent and unenforceable.

The trial court then: (1) vacated and set aside the foreclosure sale in which SRP had bought the subject property, “unless the parties agree otherwise”; and (2) entered judgment in favor of Mrs. Chmura in the amount of $355,742.55, plus interest. It seems that the trial court sought to compensate Mrs. Chmura for construction costs, money she paid to purchase lot 31, and her expenses related to its purchase. The inexplicable effect of this final judgment was to award Mrs. Chmura lot 31, with the partially completed house on it, and a money judgment reimbursing her all of the money she paid to buy lot 31 and to construct the partially built house. As discussed below, this windfall for Mrs. Chmura is not supported by competent and substantial evidence.

II. Analysis

A. Breach of contract

SRP argues that the final judgment is erroneous because even if the May 2004 contract to build a Monterey model on lot 31 for $256,700 was unenforceable, Mrs. Chmura was still bound by a valid and enforceable written contract to build a Monterey model on lot 31 for $246,700. Based upon basic contract law, we agree.

To establish breach of a real estate contract, the plaintiff bears the burden of proving by a preponderance of the evidence the existence of a contract, a breach of that contract, and damages resulting from the breach. See Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) (citing Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977)); 19 Fla. Prac., Florida Real Estate § 24:7 (2010-2011 ed.). Breach of contract requires proof of the parties’ mutual assent, or “meeting of the minds,” on all the essential terms of their agreement. Leopold v. Kimball Hill Homes Fla., Inc., 842 So.2d 133, 138 (Fla. 2d DCA 2003) (“[T]he parties ... did in fact have a meeting of the minds as to the essential terms of the contract. Those terms consisted of a specifically identified lot costing $115,000 and a base sales price of $275,000 for a house.... Since the parties did have a meeting of the minds on the essential terms of the contract, the contract was a valid, enforceable contract....”); Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So.3d 693, 695 (Fla. 4th DCA 2010).

Price is typically an essential element of a contract. See Acosta v. Dist. Bd. of TVs. of Miami-Dade Cmty. Coll., 905 So.2d 226, 228 (Fla. 3d DCA 2005). The trial court here found that there was no contract between the parties to build a Monterey model on lot 31 at a base price of $256,700, and we conclude that there was competent, substantial evidence to support the trial court’s finding.

But even if the $10,000 base price increase was unenforceable, the trial court erred when it ruled that no enforceable contract existed whatsoever because SRP had begun construction of the house based on a valid contract. It was unrefuted that the initial contract between the parties in the base amount of $246,700 was signed by Mrs. Chmura and was otherwise valid. The parties had a meeting of minds regarding the base price of the house, and at trial, the only disputed issue on the breach of contract claim was whether the base price of the model was increased with Mrs. Chmura’s consent. Mrs. Chmura provided no legal support, and we have found none, for the proposition that if a subsequent contract is not signed, that — in and of itself — legally vitiates a prior valid contract under these circumstances. Because we conclude that there was a binding initial contract, the breach of that contract by Mrs. Chmura entitled SRP to damages, which the trial court must determine on remand. See generally Shadow Lakes, Inc. v. Cudlipp Constr. & Dev. Co., 658 So.2d 116, 117 (Fla. 2d DCA 1995); Puya v. Superior Pools, Spas & Waterfalls, Inc., 902 So.2d 973, 975-76 (Fla. 4th DCA 2005); Sampley Enters., Inc. v. Laurilla, 404 So.2d 841, 842 (Fla. 5th DCA 1981). Accordingly, we reverse the trial court’s ruling on the breach of contract claim and remand for entry of a judgment in favor of SRP on that claim in an amount to be determined by the trial court.

B. The claims of lien

Turning now to SRP’s lien foreclosure claim, Mrs. Chmura argued for the first time during trial that the construction liens are fraudulent. The trial court agreed. While we question the trial court’s decision to allow Mrs. Chmura to raise the fraudulent lien issue for the first time midtrial, we conclude that Mrs. Chmura’s claim of fraudulent lien is without merit and that the trial court thus erred in this regard.

SRP filed its initial claim of lien on April 26, 2006, for $169,926. After performing additional work on the house in July 2006, it filed an amended claim of lien on August 30, 2006, increasing the amount sought from $169,926 to $180,139. The difference between the two claims represented work done by SRP to protect the partially built house from the elements, animals, and vandals, and also the payment of taxes and insurance on the property. SRP argued that its amended claim of lien was timely filed based on the work performed in July 2006. The trial court, however, concluded that the amended claim of lien was untimely and that it included work not done pursuant to the contract, thereby rendering it fraudulent.

Under section 713.08(5), Florida Statutes (2006), a claim of lien must be recorded no later than ninety days after the “final furnishing” of the labor, services, or material by the lienor. In determining when the “final furnishing” occurred, the question is whether the work claimed in the lien was part of the original contract, so as to consider the lien timely filed. See Robert M. Swedroe, Architect/Planners, A.I.A., P.A. v. First Am. Inv. Corp., 565 So.2d 349, 353 (Fla. 1st DCA 1990). Work done in fulfillment of the contract is work contemplated by the contract, and it extends the time for filing the lien because the contract is not complete until the work is done. Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006). The test for whether work constitutes a “final furnishing” is whether the work was done in good faith, within a reasonable time, pursuant to the terms of the contract, and whether it was necessary to a finished job. Robert M. Swedroe, Architect/Planners, A.I.A., P.A., 565 So.2d at 353; Wolford v. Sapp, 448 So.2d 1113, 1114 (Fla. 1st DCA 1984). However, remedial work such as warranty work, corrective work, repair work, or work that is incidental and not necessary to a completed contract does not extend the time for filing a claim of lien. See, e.g., Herpel, Inc. v. Straub Capital Corp., 682 So.2d 661, 663 (Fla. 4th DCA 1996).

Whether work was done pursuant to the contract will depend upon the circumstances of each particular case, Robert M. Swedroe, Architect/Planners, A.I.A., PA, 565 So.2d at 353, and “[t]here are no steadfast rules to apply in making this determination,” Michnal v. Palm Coast Dev., Inc., 842 So.2d 927, 933 (Fla. 4th DCA 2003). Because “[a] construction lien is ‘purely a creature of the statute,’ ” persons seeking its benefits must strictly comply with the requirements of the construction lien statute. Delta Fire Sprinklers, Inc., 937 So.2d at 698. However, “[t]he omission of any of the [statutorily required details] or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.” § 713.08(4)(a).

In rejecting the amended claim of lien, the trial court improperly found that it was filed “to protect [SRP’s] interests, not pursuant to the [c]ontract or for the benefit of Linda Chmura.” Even though factually it is clear that this work benefited Mrs. Chmura as the owner of the property, the trial court improperly focused on who it believed the work was intended to benefit. See Delta Fire Sprinklers, Inc., 937 So.2d at 698 (“[W]ork done in actual fulfillment of a contract is contemplated by the contract and, accordingly, extends the time for filing, because the contract is not complete until the work is done.”).

In the final judgment, the trial court specifically found that Sam Rodgers was “an elegant and believable witness.” Mr. Rodgers testified that after he initially ceased working on the home, he was notified that birds were entering the home. Because the home was exposed to the elements, Sam and Richard Rodgers agreed that the structure needed to be secured. Richard Rodgers testified that the roof, although “dried in” (for draw schedule purposes) was not weatherproof and would be destroyed by the elements if it was not finished. He further testified that the entire structure would have leaked from the side walls because the finished stucco was not complete. In addition, he testified that neither the fascia nor the soffit was installed and without them the untreated wood behind them would have rotted. Additionally, he testified that because none of the doors, including the garage door, were in place, the structure was not secure from either animals or people. All of these items were contemplated by the contract, and all of them were completed in a good faith effort to secure the property and mitigate damages so that a bad situation did not become worse. See Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967, 982 (Fla.2009) (explaining that a party seeking damages has a duty to mitigate his losses that could have reasonably been avoided). At the time this additional work was done and these expenditures were made, Mrs. Chmura was the owner of the property and therefore directly benefited from these. The trial court’s determination that these items were “not authorized by contract” is unsupported by the evidence.

The amended claim of lien also included amounts paid to keep the property insured ($1800.91) and to pay property taxes ($1634.12). We conclude that these amounts are not lienable. The payment of taxes was not contemplated in the contract. See Morris Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579, 582 (Fla. 3d DCA 1967). More importantly, both insurance and taxes were paid for the maintenance rather than the improvement of the property. See Parc Cent. Aventura E. Condo, v. Victoria Grp. Servs., LLC, 54 So.3d 532 (Fla. 3d DCA 2011) (explaining that lien statute protects those who provide labor and materials for the improvement of real property; the statute defines “improvement” as “any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit” and, therefore, property maintenance is not lienable).

However, the inclusion of these small amounts in the amended claim of lien did not render it fraudulent. A fraudulent lien is one

in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration....

§ 713.31(2)(a). But “ ‘a minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.’ ” Sharrard v. Ligon, 892 So.2d 1092, 1096 (Fla. 2d DCA 2004) (quoting § 713.31(2)(b)). Mrs. Chmura bore the burden of persuasion to establish a fraudulent lien, see In re M.B. Hayes, Inc., 305 B.R. 361, 366 (Bankr.M.D.Fla.2003), and she failed to meet that burden.

A claim of lien that overstates the amount claimed is not necessarily fraudulent, unless the exaggeration is made willfully. Sharrard, 892 So.2d at 1097. A lienor’s good or bad faith in filing a lien must be based on competent, substantial record evidence. Politano v. GPA Const. Grp., 9 So.3d 15, 16 (Fla. 3d DCA 2008) (citing Delta Painting, Inc. v. Bau-mann, 710 So.2d 663 (Fla. 3d DCA 1998)). For example, in Politano the lienor incorrectly included a claim for overhead and profit. Id. The trial court disallowed those charges but concluded that the charges were a mistake and not a willful exaggeration. Id. The trial court did not find the lien fraudulent. Id. The district court affirmed because the record supported the trial court’s ruling. Based on its findings about the demeanor of witnesses, the trial court had concluded that the lienor did not willfully exaggerate the amount of the lien. Id.

Here, however, there is no competent, substantial evidence supporting the trial court’s conclusion that SRP willfully exaggerated the claim of lien. For example, the trial court’s conclusion that the lien was fraudulent — which requires a finding of willful exaggeration and lack of good faith — is inconsistent with its finding that Sam Rodgers was an “elegant and believable witness.”

The evidence in this case supports the conclusion that this was simply an error or a good faith dispute as to the amount due. Mrs. Chmura was the legal owner of the property at the time SRP paid the property taxes and insurance, and she remains so today. Clearly, the taxes were paid in good faith to protect the property from the result of unpaid taxes and to mitigate damages to both SRP and Mrs. Chmura. Insurance was also paid in good faith to protect the property. While inclusion of these charges in the claim of lien was erroneous, there is no record evidence these payments were not made in good faith. This was not a claim of lien for work not done or for unjustifiable expenditures. Cf. Sharrard, 892 So.2d at 1098-99 (holding claim of lien was fraudulent because it included expenses for nonexistent worker’s compensation insurance coverage; contractor did not act in good faith in claiming such expenses in the lien). Nor was this an instance of a contractor grossly inflating or willfully exaggerating the amount of a lien with work or expenses never actually incurred, which would warrant forfeiture of both the valid and invalid lien amounts. See, e.g., Viyella Co. v. Gomes, 657 So.2d 83 (Fla. 3d DCA 1995) (finding claim of lien fraudulent where a substantial portion of the claimed work had not been completed); Hobbs Constr. Dev., Inc. v. Presbyterian Homes of the Synod of Fla., 440 So.2d 673 (Fla. 1st DCA 1983) (holding claim of lien fraudulent because it included large amounts for work not authorized by the contract and based on invalid change orders).

Based on the foregoing we conclude that, while the amended claim of lien in this case included two items that were not lienable, there is no evidence in the record to support the trial court’s finding that it was filed in bad faith. See Stevens v. Site Developers, Inc., 584 So.2d 1064, 1064-65 (Fla. 5th DCA 1991) (affirming trial court’s ruling that amounts claimed in lien for lost profits and construction delay were not lienable, but nevertheless concluding that the lien was not fraudulent). Because the trial court’s declaration that the amended lien was fraudulent was not based on any finding of bad faith, the remedy on remand is to excise those amounts from the lien. See, e.g., Politano, 9 So.3d at 15 (disallowing certain items from a claim of lien); Stevens, 584 So.2d at 1065 (holding that court may allow lien in amount less than that claimed without finding that the lien is fraudulent). To find otherwise would allow Mrs. Chmura to benefit from a windfall and would punish a party to a contract who seeks in good faith to preserve the status quo and prevent further loss. In addition, the amount claimed for taxes and insurance constituted less than 2 of the total amount claimed in the amended claim of lien.

We now turn to the original claim of lien. Even assuming that the trial court was correct in rejecting the amended claim of lien as untimely filed or that it was for work that was done for the wrong purpose, the trial court erred in determining that the amended claim of lien rendered the initial claim of lien unenforceable. The court in McCown v. Pierce Construction, Inc., 552 So.2d 940, 941 (Fla. 4th DCA 1989), held that “when seeking to enforce an untimely amended lien, the lienor may resort to a timely recorded lien, albeit one with errors, if there is no prejudice to the other party.” See also Johnson Bailey Architects, P.C. v. Se. Brake Corp., 517 So.2d 776 (Fla. 2d DCA 1988) (reversing trial court’s failure to enforce the original claim of lien even though it contained an omission where there was no showing of prejudice).

Here, it is uncontroverted that the original claim of lien for $169,926 was timely filed and represented work done in accordance with the contract. The trial court made no finding that there was any fault with the substance or timing of the original claim of lien. Most notably, the trial court made no finding that Mrs. Chmura would be prejudiced by the court’s reference to the original claim of lien.

We reverse the trial court’s ruling on the lien foreclosure claim and remand for further proceedings. The trial court shall enter a judgment of foreclosure in the amount of the amended lien, deducting the amounts claimed for property taxes and insurance.

III. Conclusion

We affirm the portion of the final judgment vacating and setting aside the foreclosure sale and certificate of title. We reverse the portions of the final judgment entering judgment in favor of Mrs. Chmu-ra on SRP’s breach of contract and lien foreclosure claims, and we remand for the trial court to enter judgment in favor of SRP on these claims. On remand, the court shall determine damages recoverable by SRP, which shall not include the disputed $10,000 contract amount or the real estate taxes and insurance paid by SRP. Moreover, the trial court must ensure that it does not award duplicative damages under the two separate counts. In light of our disposition, we need not address the other issues raised by SRP.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY, VILLANTI, and MORRIS, JJ., Concur.

      . The transaction required a sales contract for the lot and a separate contract for the house that would be built on the lot.

      . SRP did not produce the original first page of the altered contract.

      . The circumstances surrounding the execution and alteration of this new contract are much more complex than outlined here and involve the purchase of a second lot, a contract for construction of a home on that second lot, and an alleged "swap” of the contracts for the homes. For purposes of this opinion, however, the details of that additional transaction and the "swap” are not relevant.

      . SRP also argued that Mrs. Chmura signed a "draw” schedule that contained pricing related to the construction contract and that adding the different amounts reflected in that document showed a $10,000 increase in the price of the house. But the document did not specifically state that the base price of the house had been increased by $10,000 and that Mrs. Chmura consented to that increase.

      .This figure is the total cost for the house including the options that Mrs. Chmura selected. The dispute in this case centers on the base price of the house, not the pricing of the additional options.

      . While we question this language in the trial court’s judgment, we take it to mean that the trial court was attempting to accommodate the parties' ability to exercise greater posttrial settlement options should they choose to do so.

      . The parties also disputed the amount the trial court ordered SRP to pay Mrs. Chmura. SRP argued that $355,742.55 was an inaccurate figure. Given our disposition of the case, we need not address that issue.

      . Section 6.B. of the Contract provides that "[t]he Builder will furnish Builder's Risk Insurance in the full amount of this Agreement during the construction period.” Accordingly, SRP was obligated to keep the property insured as a matter of contract.


author: MORRIS, Judge.

text:
    Victoria R. FORTUNE, Appellant, v. Gregg R. FORTUNE, Appellee.
    No. 2D09-5564.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.
    Rehearing Denied June 2, 2011.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    David F. Garber and John Holloway of Garber, Hooley & Holloway, LLP, Naples, for Appellee.
   MORRIS, Judge.

Victoria R. Fortune, the wife, appeals the final judgment dissolving her marriage to Gregg R. Fortune, the husband. Of the ten issues raised by the wife on appeal, we conclude that the trial court erred in regard to the four main points addressed below. We reverse the final judgment and remand for further proceedings on these issues.

I. Facts

The parties married in 1991 in Michigan. They resided in Michigan until they moved to Florida in 2007. They have five children who were born between 1992 and 2000 and were minors at the time of the final judgment of dissolution entered on October 7, 2009. Early in the marriage, the husband left his job at Ford Motor Credit and became a certified financial planner. At the time of the dissolution, he owned a financial planning company in Michigan and was a partner in a financial planning company in Florida. His businesses were extremely successful in the years leading up to the dissolution proceedings, when he reported yearly income in the range of $246,000 to $346,000. During the marriage, the wife was a homemaker and home-schooled the children.

The parties separated in January 2008, and the husband filed the petition for dissolution at that time. During the pen-dency of the dissolution proceedings, the husband reported earning significantly less income, which he attributed to the economic recession. At the time of trial, he claimed a net income of zero. The wife became a certified personal trainer and worked part-time during the parties’ separation but had stopped working and was attending college at the time of the dissolution.

In the final judgment of dissolution, the trial court denied the wife’s request for permanent alimony and declined to reserve jurisdiction to award alimony in the future. The trial court awarded the parties shared parental responsibility of the children with the wife caring for the children 60% of the time. The trial court imputed monthly income in the amount of $1000 to each parent, resulting in the husband’s child support payment being $158.10 per month under the child support guidelines. In its equitable distribution determination, the trial court found that the marital liabilities outweigh the marital assets of the parties and distributed to each party $111,309 in marital liabilities.

II. Analysis

A. The $150,000 advance

The wife first argues on appeal that the trial court erred in finding that an alleged advance from the husband’s Florida business to the husband constituted a marital debt and in factoring that debt into the equitable distribution scheme to the detriment of the wife.

The husband owns 40% of the Florida business, Prosperitas Financial Advisors. At the final hearing, the husband testified that the 60%-owner of Prosperitas, Harry Cendrowski, advanced the husband $150,000 against future income. The husband testified that he incurred the loan both before and after the parties’ separation and that he used the loan for “marital purposes.” This obligation to Prosperitas was not reflected on the husband’s original financial affidavit filed approximately six months after he filed the petition for dissolution. It was also not reflected on any of his subsequent financial affidavits filed thereafter. At trial, the husband testified that he did not have a promissory note or any other writing documenting the loan, but he was permitted to introduce into evidence an affidavit of Mr. Cendrowski. The affidavit stated that the advance was made to the husband in monthly installments from September 2007 until present. One of the pretrial orders in the record indicates that the husband stated he borrowed the money to pay the temporary awards ordered by the trial court, but the trial court did not make a finding in that temporary order as to when the advances were made or how much of the money was borrowed to pay the temporary awards.

In the final judgment, the trial court listed the remainder of this $150,000 obligation ($146,007) as a marital liability and distributed it in total to the husband. This benefitted the husband because in attempting to equitably distribute the marital property, the trial court awarded the husband the only real marital assets — the remaining balances of the retirement accounts. The trial court also ordered the wife to pay a $22,000 equalizer payment to the husband within four months of the judgment in order to balance out the negative awards to both parties in the equitable distribution scheme.

We review de novo the trial court’s characterization of an asset or liability as “marital.” Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007). Relevant to the facts of this case, “[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is ... the date of the filing of a petition for dissolution of marriage.” § 61.075(7), Fla. Stat. (2009). Assets and liabilities not in existence on that date should not be classified as marital. See Schmitz v. Schmitz, 950 So.2d 462, 463 (Fla. 4th DCA 2007); Byers v. Byers, 910 So.2d 336, 344-45 (Fla. 4th DCA 2005). Moreover, a total loan obligation should not be classified as a marital debt if part of the debt is used to pay for nonmarital expenses. See Walker v. Walker, 827 So.2d 363, 364-65 (Fla. 2d DCA 2002) (holding that it would be improper for the trial court to classify as marital debt portions of a loan that were used to pay for nonmarital property expenses; reversing and remanding for trial court to “reevaluate whether and to what extent the challenged loans are to be treated as marital debts”).

It is first necessary to address the affidavit of Mr. Cendrowski. It was the sole corroboration for the husband’s testimony that Prosperitas advanced the husband $150,000. The affidavit, an out-of-court statement offered to prove the truth of the matter asserted, is the most basic form of hearsay. See § 90.801(l)(c), Fla. Stat. (2009). It is well settled that affidavits are not admissible to prove facts in issue at an evidentiary hearing because they are not subject to cross-examination and because they impermissibly shift the burden of proof to the other party. B.C.S., S.r.l. v. Wise, 910 So.2d 871, 874 (Fla. 5th DCA 2005).

This loan was a critical piece of the equitable distribution scheme. By allowing the husband to introduce Mr. Cen-drowski’s affidavit without calling Mr. Cendrowski as a witness, the trial court denied the wife the right to confront and cross-examine the only witness who could corroborate the husband’s claim regarding this substantial loan. The trial court abused its discretion in admitting Mr. Cen-drowski’s affidavit. See O’Brien v. O’Brien, 899 So.2d 1133, 1137 (Fla. 5th DCA 2005) (holding that the admission of evidence is in the discretion of the trial court).

The remaining, properly admitted evidence did not support the husband’s assertion that the $150,000 loan was incurred before the dissolution filing or that it was spent on marital expenses or obligations. The trial court made no findings regarding when the advance was made to the husband or what expenses the advance was used to pay. Therefore, it was error for the trial court to classify the entire amount of the loan as a marital debt. See Walker, 827 So.2d at 365. Accordingly, we reverse the equitable distribution determination and remand for a further hearing on this matter. In accordance with this opinion, the trial court shall reconsider the $150,000 loan and adjust the equitable distribution scheme accordingly, including the equalizer payment of $22,000 that resulted from the classification and award to the husband of the $150,000 liability. We note that “[a] lump sum equalizing payment to accomplish equitable distribution ‘is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status.’ ” Bishop v. Bishop, 47 So.3d 326, 331 (Fla. 2d DCA 2010) (quoting Vigo v. Vigo, 15 So.3d 619, 622 (Fla. 3d DCA 2009)). The record clearly reflects that the wife did not have the financial ability to make the equalizing payment without endangering her economic status.

B. Future alimony.

On appeal, the wife challenges the trial court’s failure to award her permanent alimony or, at the least, to award her nominal alimony so that she may seek alimony in the future. In the final judgment, the trial court found that the husband does not have the current ability to pay and also declined to reserve jurisdiction to consider alimony in the future. The court acknowledged that the length of the marriage created a presumption that it should award nominal permanent alimony and reserve jurisdiction to modify alimony in the future, but the trial court concluded that the presumption had been rebutted because the “[hjusband will be unlikely to again earn substantial income as a financial advisor.”

We review the trial court’s decision on alimony for abuse of discretion. See Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). The parties had been married sixteen years when the petition for dissolution was filed. This constitutes a long-term marriage, see Cardillo v. Cardillo, 707 So.2d 350, 351 (Fla. 2d DCA 1998), which creates a presumption in favor of permanent, periodic alimony, see Schlagel, 973 So.2d at 676. It is undisputed that the husband earned substantial income in the years leading up to the dissolution proceedings and that during the marriage, the wife was a stay-at-home mom who home-schooled the parties’ children. She was young when the parties married and' did not work outside the home or obtain job skills until the dissolution proceedings. These factors make this a classic permanent alimony case. See Alcantara v. Alcantara, 15 So.3d 844, 846 (Fla. 3d DCA 2009).

In the final judgment, the trial court found that the. husband does not have the current ability to pay alimony. While we find no abuse of discretion in that regard, we find an abuse of discretion in the finding that the husband will unlikely have the ability to pay alimony in the future. At trial, the husband was optimistic about his future earning potential. He testified that although the financial planning industry was struggling, he decided to remain in the industry because he has a great client base and he has hopes of doing better in the future. He also decided to keep his current staff and overhead. He testified that he is “very good at what [he] do[es],” that Florida “still has opportunity for” him, and that he is working with a successful and established Michigan accounting firm that is interested in his services.

“[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent - periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.” Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008); see also Purrinos v. Purrinos, 34 So.3d 244, 245 (Fla. 3d DCA 2010). In light of the trial court’s failure to award permanent alimony to the wife and the husband’s decision to stay in the financial planning business based on his belief that his earning capacity will improve in the future, the trial court abused its discretion in failing to at least award nominal alimony in order to retain jurisdiction to reconsider alimony in the future. See Schmidt, 997 So.2d at 454; Nourse v. Nourse, 948 So.2d 903, 904 (Fla. 2d DCA 2007). We reverse the final judgment in this regard and remand for the trial court to award a nominal amount of permanent alimony to the wife.

C. The husband’s three dependency exemptions

In the final judgment, the trial court awarded the husband tax deductions, tax exemptions, and tax credits for three of the parties’ children and awarded the same to the wife for their other two children. The trial court directed the parties to execute the forms necessary to effectuate this provision of the final judgment. The wife argues that the trial court erred by transferring the exemptions directly and in failing to condition the exemption on the husband’s being current in his child support payments.

Section 61.30(ll)(a)(8) provides that “[t]he court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in [child] support payments.” In doing so, “[t]he trial court cannot allocate the dependency tax exemption directly” but can “require the custodial parent to execute a waiver transferring the exemptions to the noncustodial parent.” Wamsley v. Wamsley, 957 So.2d 89, 92 (Fla. 2d DCA 2007). Additionally, the final judgment must require that the exemption be conditional on the paying spouse’s “being current in his support obligations.” Id.; see also Davies v. Turner, 802 So.2d 1195, 1196 (Fla. 1st DCA 2002).

We reverse this portion of the final judgment. On remand, the trial court shall direct the wife to execute the necessary waivers of exemptions and order that the husband’s exemptions be conditioned on his being current in his child support obligations.

D. The wife’s maiden name

It is established law that in a dissolution of marriage proceeding, the wife has the right to reassume her maiden name if she so chooses. In re Hooper, 436 So.2d 401, 403 (Fla. 2d DCA 1983). The husband concedes as much in his answer brief. The wife repeatedly asked the trial court to restore her maiden name by pleading for such relief in her counterpetition for dissolution, by requesting this relief at trial, and by objecting to the fact that the husband’s proposed judgment did not include this relief. She also raised it again in her motion for rehearing. The trial court erred in denying the wife’s request in this regard. We therefore reverse and remand for the trial court to restore the wife’s maiden name.

III. Conclusion

We reverse the final judgment of dissolution with respect to the matters discussed above and remand for limited proceedings consistent with this opinion. We affirm the final judgment in all other respects.

DAVIS and VILLANTI, JJ., Concur.