text:
    STATE of Florida, Appellant, v. Robert Craig BREHM, II, Appellee.
    No. 1D09-5904.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee; Gregory Wilson, Assistant State Attorney, Marianna, for Appellant.
    Henry E. Lee, Sarasota, for Appellee,
   PER CURIAM.

This appeal arises from the final order discharging the defendant for violation of his speedy trial rights. The State argues that the defendant was not entitled to immediate discharge. We agree and reverse.

On July 25, 2008, the State filed a juvenile petition charging the defendant with lewd or lascivious battery on a minor occurring between May 15 and August 15, 2006. Also on that day, the defendant was served by summons and the 90-day juvenile speedy trial period began to run. On October 23, 2008, the juvenile speedy trial period expired. On February 17, 2009, the State filed an amended juvenile petition alleging the offense occurred between March 9 and March 11, 2007. On July 12, 2009, the defendant turned 19 years of age. On August 25, 2009, trial was noticed for October 8, 2009. On September 23, 2009, the defense moved for, and was granted, a continuance. On October 13, 2009, a motion hearing was held. At the hearing, the State filed an information to bring jurisdiction into the circuit court for the charges exactly as alleged in the amended petition. The defendant then moved for discharge, arguing that his speedy trial rights had been violated. The trial court agreed and granted the defendant’s motion for discharge. The State appealed.

Generally, a defendant is not entitled to discharge because the State fails to hold an adjudicatory hearing within the default speedy trial period. See Fla. R. Juv. P. 8.090(m). Instead, a defendant must first invoke his speedy trial rights by filing a motion for discharge and a notice of hearing. See Fla. R. Juv. P. 8.090(m)(2). The motion for discharge triggers a 10-day recapture period during which time the State must initiate adjudicatory proceedings. See Fla. R. Juv. P. 8.090(m)(3). Assuming the State does not waive its right to the recapture period, discharge of a defendant is appropriate only if the State fails to initiate trial within the recapture period. See id. In this case, the State did not waive its right to the recapture period, and the trial court’s discharge of the defendant deprived the State of that right.

Additionally, “when the State is entitled to the recapture period, a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a [motion for discharge] waives a defendant’s speedy trial rights under the default period of the rule.” State v. Nelson, 26 So.3d 570, 580 (Fla.2010). In this case, the defendant was granted a continuance post-expiration of the speedy trial period and prior to his motion for discharge. Thus, the defendant waived his speedy trial rights and was not entitled to seek discharge on those grounds. Accordingly, we find that the trial court erred by granting the defendant’s motion for discharge.

REVERSE and REMAND for further proceedings consistent with this opinion.

WOLF, ROBERTS, and WETHERELL, JJ., concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Blene A. BETEMARIAM, Appellant, v. Binor B. SAID, Appellee.
    No. 4D09-1312.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 22, 2010.

      Curtis L. Witters of Glickman Witters & Marell, P.A., West Palm Beach, and Marjorie Gadarian Graham of Marjorie Gadari-an Graham, P.A., Palm Beach Gardens, for appellant.
    Susan G. Chopin of Chopin & Chopin, LP, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Blene Betemariam, timely appeals a final judgment of paternity and for partition, which determined, among other things, that she was not legally married to the appellee, Dr. Binor Said. The parties participated in a religious ceremony, but never obtained a marriage license. The court held that the marriage was not valid, and that the court thus had no authority to award alimony or order equitable distribution of assets. We affirm, as we conclude that Virginia, where the religious ceremony was performed, would hold that their unlicensed marriage was void ab initio. We reverse, however, the trial court’s refusal to require Said to pay the parties’ children’s educational expenses because Said had the ability to pay such expenses, which were in accordance with the parties’ standard of living.

Betemariam and Said met each other in 2000 when both were married but separated from their respective spouses. They began living together, and Betemariam gave birth to twins the next year. In the fall of 2002, both Betemariam and Said had finalized their divorces to their prior spouses, and they began discussing marriage. Said’s father wished his son to be married in the Islamic faith. Although Betemariam was not a Muslim, she agreed to marry Said in an Islamic ceremony, which occurred on January 1, 2004, in Alexandria, Virginia. The service was conducted by an Imam in accordance with Islamic law. The couple received a marriage certificate, written in Arabic and signed by Said’s father and uncle as witnesses. Said and Betemariam did not obtain a marriage license before their religious ceremony, nor did they file their marriage certificate with any clerk of court.

Betemariam testified that her understanding was that the Imam — as an official with the authority to marry people — would take care of everything necessary for her and Said to be recognized as a married couple. Said never told her that they needed a civil license in advance of their wedding. However, she admitted that she had obtained a marriage license for one of her previous two marriages. Said testified that he did not believe they needed to get a marriage license in advance of the wedding. Said testified that the couple’s intent in going through with the wedding ceremony was to sanctify their union and to make a religious commitment. Said never thought that he would be in court “discussing whether I have a religious or legal marriage.”

The parties moved to Florida and eventually settled in West Palm Beach where Said joined a radiology practice. Following the move to West Palm Beach where they purchased a home, Betemariam was the primary care-giver for the children and did not work outside the home. The parties eventually enrolled their children at the Rosarían Academy, a private school that costs $13,000 per child each year. At the time of trial, the children had attended Rosarían for about five years. The parties opened joint bank accounts and purchased other property, taking title jointly as husband and wife.

When Betemariam filed for divorce in 2007, Said moved to dismiss the proceedings, claiming that the parties were never legally married. Betemariam amended her petition to include a count for equitable relief in the event the court determined that the parties were not legally married to each other. Said counter-petitioned for paternity, visitation, and child support.

The case proceeded to trial. After hearing the foregoing evidence, the court entered a final judgment of paternity and for partition, ruling that the parties were never legally married and that the court was without jurisdiction to consider equitable distribution or alimony. The court reasoned that although the parties entered into a religious ceremony, they had not obtained a marriage license in any of the states in which they had resided. Because both parties had been married previously, the court discounted any claim of lack of knowledge of the licensing requirement.

The court did, however, resolve the paternity and child issues. It designated Betemariam as the primary residential custodian, awarded child support, and required Said to maintain an insurance policy for the benefit of the children. The court also ordered partition and sale of both parcels of property owned by the parties. Betemariam moved for rehearing and, among other things, requested that the final judgment be amended to require Said to pay the costs of private school education for the children. The trial court denied the motion, prompting this appeal.

The issue of whether the parties’ religious wedding ceremony amounted to a valid marriage is determined in accordance with the law of the place where the putative marriage occurred. See Preure v. Benhadj-Djillali, 15 So.3d 877, 877 (Fla. 5th DCA 2009); see also Goldman v. Dithrich, 131 Fla. 408, 179 So. 715, 716 (1938). Here, because the wedding ceremony occurred in Virginia, we look to Virginia law to determine whether the parties in this case were validly married. Betemariam argues that the Virginia statute requiring the parties to obtain a marriage license to constitute a valid marriage is directory, not mandatory. Therefore, the trial court could determine that the marriage was valid based upon the parties’ belief in the validity of their marriage.

Virginia statutory and case law is contrary to Betemariam’s position. Section 20-13 of the Code of Virginia, entitled “License and solemnization required,” provides as follows: “Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.” (emphasis supplied). Additionally, Virginia’s statutory scheme provides that the validity of a marriage is not affected by certain defects:

§ 20-31. Belief of parties in lawful marriage validates certain defects
No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Va.Code § 20-81 (emphasis supplied).

In Offield, v. Davis, 100 Va. 250, 40 S.E. 910 (1902), the Supreme Court of Virginia interpreted a former version of the Virginia Code, which contained language similar to the current statutory language, prescribing that “every marriage in this state shall be under a license and solemnized in the manner herein provided.” 40 S.E. at 914. The court held that the statute “wholly abrogated” common law marriage, and “no marriage or attempted marriage, if it took place in this state, can be held valid here unless it has been shown to have been under a license, and solemnized according to our statutes.” Id.

We view Offield as making the marriage license mandatory, not directory, and other Virginia courts do likewise. In a case on “all fours,” a Virginia circuit court has held that the parties’ marriage was void ab initio when they were married in a religious ceremony but failed to obtain a marriage license. See In re Ejigu, 79 Va. Cir. 349, 2009 Va. Cir. LEXIS 127, 2009 WL 4704510 (Sept. 30, 2009) (Klein, J.). In that case, the petitioners, a putative husband and wife, sought to have their marriage affirmed under section 20-31 and 20-91, Code of Virginia. The latter statute provides a vehicle for a court to issue a decree affirming a marriage where it is “denied or doubted by either of the parties,” and the court is presented with “due proof of the validity thereof.” The parties had been married in a religious ceremony but did not obtain a marriage license. They had conducted themselves as husband and wife since their marriage. Nevertheless, the court determined that it could not affirm their marriage, which was void ab initio for failure to obtain the license.

The court found that section 20-31 could not be used to validate the marriage, as that section allowed correction of defects with respect to the officiant’s authority or defects in the marriage license. It did not cure a marriage void ab initio. Quoting from Offield, the court held that in order to be valid under Virginia law, the marriage must be under a license and properly solemnized. One without the other is not enough. The court looked to a similar case of In re Kulmiye & Ismail, 77 Va. Cir. 67, 2008 Va. Cir. LEXIS 121, 2008 WL 8130992 (2008) (Roush, J.), involving nearly identical facts to those in this case. In that case, as well, the court held that the marriage was invalid and could not be affirmed when no marriage license was ever issued. In Ejigu, Judge Klein concluded:

[T]he defect presented was not an issue of the officiant’s authority or the contents of the marriage license. The defect was the complete non-existence of the license itself. Under the plain meaning of the three above referenced statutes, this Court has no authority to affirm a marriage that was entered into without a license. While the parties may remain married according to their religion, their marriage ceremony conferred no legal rights between them under the laws of the Commonwealth of Virginia.

(footnote omitted). As Virginia has interpreted its requirement of a marriage license as mandatory, and the parties in this case did not obtain a marriage license, they were not validly married under Virginia law. The trial court had no choice but to determine that no legal marriage had occurred. This result is also consistent with the Fifth District’s reasoning under a similar circumstance involving Oregon law. See Preure, 15 So.3d at 878.

Because the trial court also found, as appears undisputed in the record, that neither party could claim lack of knowledge of the marriage license requirement, both parties were equally responsible for the invalidity of their marriage. Thus, we also agree with the trial court that Betem-ariam could not claim equitable alimony. See Burger v. Burger, 166 So.2d 433 (Fla.1964) (where putative wife is equally responsible with putative husband for invalidity of marriage, wife is not entitled to permanent alimony).

The trial court did, however, have the authority to determine the issues involving the children pursuant to both parties’ requests in their pleadings and its authority pursuant to Chapter 742, Determination of Parentage. Betemariam contends on appeal that the trial court abused its discretion in failing to require Said to pay for the children’s private schooling when it was the standard of living of the children and Said could well afford to pay it. The trial court failed to mention it in the final judgment and simply denied the motion for rehearing requesting it.

On appeal, Said does not contest his ability to pay, nor does he contest that the children have always been educated in private institutions. Rather, he maintains that Betemariam did not request such relief. We disagree.

It is well established that a court may order a parent to pay for private educational expenses if it finds that the “parent has the ability to pay for private school” and the “expenses are in accordance with the family’s customary standard of living and are in the child’s best interest.” Wilson v. Wilson, 559 So.2d 698, 700 (Fla. 1st DCA 1990); see also Kaiser v. Harrison, 985 So.2d 1226 (Fla. 5th DCA 2008). An award of a child’s private school expenses is reviewed for abuse of discretion. See Thomas v. Thomas, 776 So.2d 1092, 1094 (Fla. 5th DCA 2001).

In any event, this issue was tried by the parties’ consent. See, e.g., Smith v. Smith, 971 So.2d 191, 194-95 (Fla. 1st DCA 2007); Hemraj v. Hemraj, 620 So.2d 1300, 1301 (Fla. 4th DCA 1993). Although the joint pretrial statement did not specifically include a request for such relief, the parties both presented evidence on the issue of the children’s private schooling. Betemariam testified to her desire for the children to remain at the Rosarían Academy through the eighth grade. Betemar-iam’s forensic accountant also testified to the substantial amount of income Said would have left over even if he paid for the children’s private school. By contrast, Said testified that he did not want the court to order him to continue to pay for private schooling at Rosarían Academy, explaining that he thought Rosarían was “too structured” and that there were other schools available, including a good public school. In closing argument, Said’s attorney specifically requested that the court not order payment of the private schooling. It is disingenuous to suggest that the issue was not tried, when counsel asked the court to address the issue.

Betemariam’s petition sufficiently pleaded her request for an award of private school tuition, even if she did not specifically mention that request within the section of her petition styled “prayer for relief.” See Raskin v. Raskin, 625 So.2d 1314, 1315 (Fla. 4th DCA 1993) (“Ordinarily, it is the facts alleged, the issues, and the proof, not the form of the prayer for relief, which determine the nature of the relief to be granted.”) (emphasis added). In the body of the wife’s amended petition for dissolution, Betemariam specifically stated that she “requests that the Husband be ordered to continue to provide a private school education for the minor children at Rosarían Academy or another private school of comparable quality.”

We conclude on this record that the court abused its discretion in failing to order Said to pay for private tuition for his children. His income clearly could support such payments, and the parties had sent their children to Rosarían Academy for five years. They had never attended another school. Everyone testified to how well the children were doing in life generally.

It appears that the court may have been swayed by Said’s argument that Betemar-iam had not properly requested that relief, but, as noted above, she requested it in her pleadings, and in any event we find that the issue was tried by consent. Thus she was entitled to make that claim and have the court adjudicate the issue. We therefore reverse with instructions that the court order Said to pay for the private school tuition of the children.

As to all other issues raised, we find no error. We therefore affirm the final judgment except as to the failure to order Said to pay private school tuition on which we reverse and remand for the trial court to amend its final judgment consistent with this opinion.

POLEN and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    JESSLA CONSTRUCTION CORP., Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD, Appellee.
    No. 3D09-3018.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.

      Duane Morris and Charles C. Papy, III, Lida Rodriguez-Taseff, and Raymond L. Robin, Miami, for appellant.
    Tew Cardenas and Joseph A. DeMaria and Brett M. Halsey, Miami, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Jessla Construction Corp. (“Jessla”) appeals from a final judgment awarding attorney’s fees and reasonable costs to Miami-Dade County School Board (“School Board”), pursuant to section 768.79, Florida Statutes (2008), and Florida Rule of Civil Procedure 1.442. For the reasons set forth below, we affirm.

In 2001, Jessla filed a wrongful termination claim against the School Board. On March 21, 2008, the School Board served Jessla with its Offer of Judgment and Proposal for Settlement (“Proposal”), pursuant to section 768.79 and rule 1.442. The Proposal provides in pertinent part:

1. This Proposal is made by the School Board to Jessla pursuant to Florida Statutes § 768.79 and Rule 1.442 of the Florida Rules of Civil Procedure!)]
2. The total amount of this Proposal is $1,000 ..., and it is offered to fully and completely resolve all the claims, damages and relief sought by Jessla against the School Board in the case styled as Jessla Construction Corp. v. Miami-Dade County School Board and Schapiro & Associates, P.A., Case No. 01-28264 CA 21.
3. This Proposal is conditioned upon the execution of an Unconditional General Release by Jessla, forever releasing the School Board from any claim, damages and relief which it now has or could ever have in the above-captioned action. The release should be substantially in the form attached hereto as Exhibit “A”.
6. Pursuant to Section 768.79 ... and Rule 1.442(f) ... Jessla must accept this Proposal, in whole or in part, within thirty (30) days ... or it will be deemed rejected....

The Unconditional General Release (“General Release”), which was attached as Exhibit A, provides in part:

That [Jessla], including all its past, present and future affiliates, subsidiaries, parent companies and all of its respective officers, directors, partners, shareholders, employees, representatives, agents, successors and assigns (the “First Party”), for consideration separately agreed upon by the Parties which is hereby acknowledged, does hereby remise, release, acquit, satisfy, and forever discharges [the School Board], including all of its past, present and future affiliates, representatives, agents, successors and assigns (the “Second Party”), of all ... claims ... asserted in ... Jessla[’s] ... Second Amended Complaint in the action styled Jessla Construction Corp. v. Miami-Dade County School Board and Schapiro & Associates, P.A., Case No. 01-28264 CA 21.

On March 26, 2008, prior to the expiration of the Proposal’s thirty-day period, the School Board submitted a letter to Jessla’s attorneys titled “Final Demand for Dismissal of Lawsuit” (“Demand Letter”). The Demand Letter provides that if Jessla voluntarily dismisses with prejudice all of its claims in the lawsuit against the School Board on or before April 9, 2008, the School Board will not seek attorney’s fees and costs. However, if the matter is litigated, the School Board, upon prevailing, will seek attorney’s fees and reasonable costs against Jessla, its shareholders, and Jessla’s attorneys.

Jessla did not accept the School Board’s Proposal or voluntarily dismiss the lawsuit. Following a bench trial, the trial court entered a final judgment in favor of the School Board, which was later affirmed on appeal.' Jessla Constr. Corp. v. Miami-Dade Cnty. Sch. Bd., 28 So.3d 1247 (Fla. 3d DCA 2009), review denied, 38 So.3d 770 (Fla.2010).

Based on Jessla’s rejection of the Proposal, the School Board moved for attorney’s fees and costs pursuant to section 768.79 and rule 1.442. Jessla opposed the motion, arguing that the School Board’s Demand Letter required Jessla to dismiss the lawsuit prior to the expiration of the Proposal’s thirty-day period. Following a hearing, the trial court entered an order finding that the School Board was entitled to an award of attorney’s fees and costs. On rehearing, Jessla argued that the General Release rendered the Proposal defective because the General Release required Jessla to extinguish potential claims of nonparties, it required the participation of nonparties, and its terms contradicted the terms of the Proposal. The trial court reaffirmed its order finding that the School Board was entitled to an award of attorney’s fees and costs. Thereafter, Jessla and the School Board agreed as to the amount of attorney’s fees and costs, and the trial court entered an order awarding $515,000 to the School Board. Jessla’s appeal followed.

In this appeal challenging the award of attorney’s fees and costs to the School Board, Jessla raises the same arguments it raised below. First, Jessla argues that the School Board’s Demand Letter either invalidated the Proposal because it demanded that Jessla dismiss the action prior to the expiration of the Proposal’s thirty-day period, or that the Demand Letter withdrew the Proposal. We disagree.

Our review of the Demand Letter indicates that it in no way affected or impacted the validity of the Proposal. Rather, the Demand Letter merely outlined alleged misrepresentations made during the summary judgment hearing, which allegedly permitted Jessla to “survive summary judgment”; explained that the alleged misrepresentations made at the summary judgment hearing “will be proven to be false” during the non-jury trial; noted that the School Board will not seek attorney’s fees and costs if Jessla dismisses its action with prejudice; and warned Jessla that if it does not dismiss the action, the School Board, upon prevailing, will seek attorney’s fees and costs not only against Jessla and its shareholder, but also against Jessla’s attorneys and the attorneys’ law firm. Further, the Demand Letter does not state nor suggest that the School Board was withdrawing its Proposal. See Fla. R. Civ. P. 1.442(e) (“A proposal may be withdrawn in writing provided the written withdrawal is delivered before a written acceptance is delivered. Once withdrawn, a proposal is void.”). Therefore, we conclude that the trial court did not err in rejecting Jessla’s arguments regarding the Demand Letter.

Next, Jessla contends that the Proposal is defective because the General Release does not comport with rule 1.442(c)(2)(A), which provides that a proposal for settlement shall “name the party or parties making the proposal and the party or parties to whom the proposal is made.” In making this argument, Jessla asserts that the General Release requires the participation of nonparties — “past, present and future affiliates, subsidiaries, parent companies and all of its respective officers, directors, partners, shareholders, employees, representatives, agents, successors and assigns.” Jessla further argues that if not defective, the Proposal is ambiguous because the terms of the Proposal contradict the terms of the General Release — the Proposal requires that only Jessla release its claims against the School Board, whereas the General Release requires the participation of nonparties — and therefore, the Proposal is unenforceable. Jessla’s argument is without merit.

In determining whether the Proposal fails to comport with rule 1.442(c)(2)(A) or whether it is ambiguous, the Fourth District’s decision in Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003), is instructive. In Bowman, the defendant filed a proposal for settlement, requiring each plaintiff to execute a general release, which defined the “First Party” (plaintiffs) and “Second Party” (defendant) as follows:

[Singular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires.

Id. at 508. Upon prevailing, the defendant moved for attorney’s fees and reasonable costs based on the plaintiffs’ rejection of the proposal for settlement. The trial court denied the motion, finding, in part, that the proposal for settlement was invalid because the general release required the involvement of third parties. In reversing, the Fourth District found that the inclusion of “agents, employees, etc. is simply standard language in a general release that should be considered unambiguous and should not invalidate the proposal.” Id. at 510; see also Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1204-05 (Fla. 2d DCA 2008) (holding that language in a general release, which was attached to a proposal for settlement, defining “Re-leasee” as named defendant and “its predecessors, successors ... agents, servants and employees, and former employees,” was not too broad and ambiguous, and language of general release was “typical of the language contained in many general releases”).

Here, in reviewing the School Board’s Proposal and the General Release, it is clear that the Proposal was directed solely at Jessla and that the School Board was not requiring the participation of nonparties. The complained-of language in the General Release, which defines Jessla as including “past, present and future affiliates” etc., is not too broad and is “typical of the language contained in many general releases.” Carey-All, 989 So.2d at 1204-05; see also Bowman, 858 So.2d at 510. Therefore, we conclude that the trial court did not err by rejecting Jessla’s argument that the Proposal failed to comply with rule 1.442 or that it was ambiguous. Accordingly, we affirm the order under review.

Affirmed.

      . In reviewing a trial court’s determination as to whether a proposal for settlement comports with the requirements of section 768.79 and rule 1.442, appellate courts apply the de novo standard of review. See Miami-Dade Cnty. v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006).


text:
    Betsy Ann ROSSEN a/k/a Elisabeth Rossen, Appellant, v. SOLOMON SMITH BARNEY, INC., Appellee.
    No. 4D08-2890.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 21, 2010.
    Inger M. Garcia, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See § 59.041, Fla. Stat. (2009).

GROSS, C.J., FARMER and STEVENSON, JJ„ concur.


author: GRIFFIN, J.

text:
    Christopher CORBETT, Appellant/Cross-Appellee, v. Elizabeth L. WILSON and William B. Wilson, Appellee/Cross-Appellant.
    No. 5D09-1715.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.

      Kenneth B. Rugh, of Hill, Rugh, Keller & Main, P.L., Orlando, for Appellant/Cross-Appellee.
    Charles R. Stack, of High, Stack, Gordon, Melbourne, for Appellee/Cross-Appel-lant.
   GRIFFIN, J.

Appellant, Christopher Corbett [“Cor-bett”], appeals an order granting, in part, Appellees, Elizabeth Wilson and William Wilson’s [“the Wilsons”] motion for new trial after a jury trial in an auto accident case. We reverse.

The Wilsons brought suit against Cor-bett, seeking recovery for personal injuries allegedly resulting from an April 2007 accident, including “permanent traumatic brain injury” and “post traumatic stress disorder [“PTSD”]. Corbett admitted liability. The two-week trial dealt with the issues of causation, permanency, and damages.

Finding that Corbett was the legal cause of injuries to Ms. Wilson, the jury returned a verdict awarding Ms. Wilson $15,000 in past medical expenses and $10,000 on Mr. Wilson’s loss of consortium claim. The jury found against the Wilsons on the issue of permanent injury and gave no award for pain and suffering, future economic damages, or future loss of consortium damages.

Thereafter, the Wilsons filed a motion for additur or, in the alternative, motion for new trial. The Wilsons claimed they presented unrebutted expert testimony on the issue of permanency and, as a result, they were entitled to a finding of permanency as a matter of law. Corbett countered that the expert testimony on the issue of permanency was not unrebutted and, further, that there was plenty of non-expert evidence to support the jury’s verdict.

The trial court granted the Wilsons’ motion for new trial. The trial court first determined that a jury verdict adverse to a plaintiff on the issue of personal injury cannot be sustained unless there is expert testimony that contradicts the plaintiffs expert opinion. The trial court conflated the testimony of Dr. Daño Leli, who opined that Ms. Wilson suffered from PTSD as a result of the accident, and the testimony of Dr. Ira Goodman, who testified that chronic PTSD is a permanent condition, to conclude, that together, these two experts established that Ms. Wilson suffered from a permanent condition of PTSD as a result of the accident. The order found further that Corbett failed to produce any admissible evidence to contradict this expert testimony. Ms. Wilson’s physician, Dr. Afield, had testified at the trial that Ms. Wilson suffered accident-related PTSD and that it was permanent, but Corbett’s counsel had impeached Dr. Afield’s trial testimony with his prior deposition testimony where he had opined that Ms. Wilson did not have PTSD. The court decided that Corbett could not use the impeachment testimony as substantive evidence. Because the deposition testimony of Dr. Afield could not qualify as rebutting expert testimony and the jury was not permitted to disregard unrebutted expert testimony, the verdict was against the manifest weight of the evidence, reasoned the trial judge.

The trial court’s decision to grant a new trial on the ground that the verdict is contrary to the manifest weight of the evidence is reviewed for abuse of discretion. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). The Brown court explained:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

Id. at 497-98. Mindful of that standard, we are nevertheless bound to reverse because the legal premises on which the trial court proceeded to find the verdict to be against the manifest weight of the evidence were erroneous. The trial court ruled that: “This prior inconsistent testimony [of Dr. Afield] while impeaching cannot constitute substantive evidence in its own right and, therefore, cannot constitute contradictory evidence as to witnesses other than Dr. Afield.” In reaching this conclusion, the trial court cited Tomlinson v. Peninsular Naval Stores, Co., 61 Fla. 453, 55 So. 548 (1911); Thomas v. State, 289 So.2d 419 (Fla. 4th DCA 1974); and Wallace v. Rashkow, 270 So.2d 743 (Fla. 3d DCA 1972).

Corbett correctly contends on appeal that the case law relied upon by the trial court to exclude Dr. Afield’s prior inconsistent testimony is no longer good law. Dr. Afield’s sworn deposition testimony is admissible as substantive evidence pursuant to section 90.801(2)(a), Florida Statutes, as a prior inconsistent statement. The Wilsons implicitly concede that the trial court’s ruling on this point of law was wrong. Instead, they contend that the testimony, though not objected to, was inadmissible because the two opinions of Dr. Afield are not truly inconsistent.

Before Florida’s adoption of the evidence code, prior inconsistent statements could not be admitted as substantive evidence. State v. Green, 667 So.2d 756, 758 (Fla.1995); State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986). The 1978 adoption of the evidence code allowed, for the first time, the use of prior inconsistent statements as substantive evidence under the conditions set forth in section 90.801(2)(a). Delgado-Santos v. State, 471 So.2d 74 (Fla. 3d DCA 1985), approved, 497 So.2d 1199 (Fla.1986). As the supreme court indicated in Moore v. State, 452 So.2d 559, 561-62 (Fla.1984), “section 90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the penalty of perjury, at a trial, hearing, or deposition.” See also Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983). Section 90.801(2)(a), Florida Statutes (2009) provides:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; ...

Prior inconsistent statements that were made under oath subject to the penalty of perjury at a prior trial, hearing or other proceeding, or in a deposition, are admissible under Florida law as substantive evidence, so long as the declarant testifies at the trial or hearing at which the statement is offered, and is subject to cross-examination. § 90.801(2)(a), Fla. Stat. (2009); Pearce v. State, 880 So.2d 561, 569 (Fla.2004).

The trial court also incorrectly concluded that expert testimony unrebutted by other expert testimony cannot be rejected by the jury. The jury is free to weigh the credibility of an expert witness, just as any other witness, and to reject such testimony, even if uncontradicted. See Frank v. Wyatt, 869 So.2d 763 (Fla. 1st DCA 2004).

The jury verdict must be reinstated.

REVERSED and REMANDED.

SAWAYA and PALMER, JJ., concur.

      . See also 90.803(22). We reject the Wilsons’ contention that the deposition opinion and the trial opinions of Dr. Afield were not inconsistent because the latter opinion evolved from his reading the opinions of other experts.


author: PALMER, J.

text:
    Matthew M. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1495.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.

      Matthew M. Simmons, Sneads, pro se.
   PALMER, J.

Matthew M. Simmons (defendant) appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the defendant was entitled to receive an evidentiary hearing as to ground one of his motion, we reverse in part.

In ground one of his motion, the defendant stated that his trial counsel was ineffective for failing to inform him, prior to the entry of his plea, that the trial court could sentence him as a prison releasee reoffender (PRR). The defendant asserted further that he would not have entered his plea if he had known that he faced PRR sentencing.

The trial court denied the claim for relief because, at the sentencing hearing, the defendant informed the trial court that he was aware that if he were sentenced as a PRR he would have to serve day for day. Specifically, the defendant stated the following:

I’ve been sitting here for a month having time to think about it, and I would like to get one more shot. Fifteen years is a long time. I’ve got to do that day for day under PRR. I can’t get out for 15 solid years, maybe-maybe I could change in that time, maybe something will come my way....

However, the issue presented in this case is whether defense counsel advised the defendant prior to the plea that he was eligible for PRR sentencing and would be required to serve his sentence day for day. Even if the defendant was aware of PRR sentencing issues at the time of sentencing, that fact does not conclusively refute the claim that he was unaware of his PRR eligibility and its consequences prior to entering his plea. The written plea forms indicate that the defendant was informed of the maximum and minimum penalties for the charges against him, including enhanced sentencing laws for which the State had given defense counsel notice. However, the transcript of the plea hearing is silent regarding PRR sanctions, and the written plea forms do not specifically mention PRR sanctions.

In Ortiz v. State, 882 So.2d 1057 (Fla. 4th DCA 2004), the defendant sought rule 3.850 relief, claiming that his defense counsel failed to advise him that he could be sentenced as a PRR upon conviction and, therefore, he refused to accept a more favorable plea offer. Although the trial court summarily denied the defendant’s rule 3.850 motion, the Fourth District reversed, concluding that the defendant’s claim was legally sufficient and required a hearing. We agree with this ruling. See also Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002)(holding that defendant was entitled to receive an evidentiary hearing where he alleged that counsel did not inform him that PRR sentencing required him to serve his entire sentence without the benefit of receiving gain time).

Accordingly, the trial court’s order summarily denying the defendant’s claim for post-conviction relief is reversed as to ground one, and the case is remanded for an evidentiary hearing thereon. We affirm the trial court’s summary denial of the other grounds of defendant’s motion.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER and EVANDER, JJ„ concur.


text:
    Grover M. MOSCOWITZ, III, et al., Appellant, v. James D. OLDHAM, III and Oldham Group, Inc., Appellee.
    No. 5D09-4466.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.

      Grover M. Moscowitz, III, Miami, pro se.
    Brian W. Davey, of St. Denis & Davey, P.A., Jacksonville, for Appellee.
   PALMER, J.

Attorney Grover Moscowitz appeals the non-final order entered by the trial court denying his motion to dismiss the appel-lees’ complaint on the basis of improper venue. Determining that venue in this action is not proper in Brevard County, we reverse.

James Oldham and Oldham Group, Inc. filed a complaint in Brevard County against Hartke & Hartke, P.A., Attorney Wayne Hartke, Grover Moscowitz, P.A., and Attorney Moscowitz. The complaint alleged that Oldham is a resident of Memphis, Tennessee; Oldham Group, Inc. is a Tennessee for-profit corporation; Hartke & Hartke is a professional association engaged in the business of rendering legal services with its principal place of business in Virginia; Wayne Hartke practices law at the Hartke firm; Grover M. Moscowitz, P.A., is a professional association engaged in the business of rendering legal services with its principal place of business in Miami, Florida; and, Grover Moscowitz practices law at the Moscowitz firm.

Count I of the complaint alleged a claim for legal malpractice against Hartke, and Count II alleged a claim of legal malpractice against Moscowitz. Count III alleged a claim of breach of fiduciary duty against Hartke, and count IV alleged a claim of breach of fiduciary duty against Moscow-itz.

The complaint set forth the following allegations. Hartke & Hartke entered into an attorney-client relationship with the Oldhams, agreeing to defend them in a lawsuit which had been filed in the United States District Court in Orlando. Mos-cowitz thereafter entered into an attorney-client relationship with the Oldhams, agreeing to act as local counsel for them in the same federal lawsuit. ■ The defendants failed to file a responsive pleading on behalf of the Oldhams in the federal lawsuit, thereby resulting in a default judgment being entered against them in the amount of $4,385,260.46. Hartke then drafted a false affidavit and provided it for Mr. Old-ham to sign, and filed the false affidavit in federal court in support of the Oldhams’ motion to vacate the default judgment. Hartke directed Mr. Oldham to testify in federal court consistent with the facts set forth in the affidavit, notwithstanding the fact that the facts were not true. As for damages, the complaint stated that the defendants’ tortious conduct resulted in a final default judgment being entered against the Oldhams in the amount of $4,385,260.46, as well as additional business damages.

Moscowitz responded to the complaint by filing a motion to dismiss the complaint for improper venue and the failure to state a cause of action. Of importance to this appeal, the motion argued that venue was not proper in Brevard County because no tort was committed in Brevard County.

In response, the Oldhams argued that venue was proper in Brevard County because the causes of action (i.e., the tortious acts of legal malpractice and breach of fiduciary duty) occurred in Brevard County when Hartke directed Mr. Oldham to testify falsely in his affidavit and during the subsequent federal court hearing. Mr. Oldham filed an affidavit in which he stated that he personally met with Attorney Hartke at a residence in Brevard County to prepare for the hearing on his motion to set aside the default entered in the federal lawsuit.

The trial court entered an order denying Moscowitz’s motion. Moseowitz challenges this ruling, claiming the proper venue for this lawsuit is not in Brevard County. We agree.

Venue is governed by section 47.011 of the Florida Statutes (2008), which states that actions can be brought in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. The issue in this case is whether any of the Oldhams’ four causes of action accrued in Brevard County, thereby making venue in Brevard County legally correct.

A legal malpractice claim

“has three elements: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) the attorney’s negligence [as] the proximate cause of the client’s loss.” Cira v. Dillinger, 903 So.2d 367 (Fla. 2d DCA 2005).

Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111, 116 (Fla. 2d DCA 2009). As for a claim of breach of fiduciary duty,

a plaintiff must allege three elements: the existence of a fiduciary duty, a breach of that duty, and plaintiffs damages proximately caused by the breach. Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002).

Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d at 116 n. 2. Importantly, “[v]enue in the county where plaintiff first suffers injury is proper even where the defendant’s negligent conduct occurs in another county.” Wincor v. Cedars Healthcare Group, Ltd., 695 So.2d 924 (Fla. 4th DCA 1997).

Here, in asserting a claim for damages, the Oldhams’ complaint cited to the damage award which was entered against them in the United States District Court in Orlando and the resulting financial losses sustained as a result of that judgment. The complaint does not allege that the entry of the default judgment was caused by any of the improper acts committed by Attorney Henkle during his meeting with Mr. Oldham in Brevard County; therefore, venue was not proper in Brevard County. Accordingly, the trial court’s order denying Attorney Moscowitz’s motion to dismiss for improper venue must be reversed. See Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111 (Fla. 2d DCA 2009)(holding that redressable harm allegedly suffered by personal representative of decedent’s estate, triggering accrual of her cause of action for legal malpractice based on attorney’s alleged disclosure of confidential financial information to decedent’s stepsons, occurred when stepsons used her financial information as basis for their pleadings in probate proceedings in Manatee County, not when attorney allegedly disclosed financial information to stepsons from his office located in Hillsborough County and, thus, Manatee County was proper venue for wife’s malpractice action); Ivey v. Padgett, 502 So.2d 22 (Fla. 5th DCA 1986)(holding that legal malpractice action sounding in contract and in tort, based on alleged failure to timely file medical malpractice claim in Volusia County accrued in that county, so that venue was proper there); Tucker v. Fianson, 484 So.2d 1370 (Fla. 3d DCA 1986)(explaining that cause of action for legal malpractice accrued for venue at location where attorney’s asserted negligence impacted upon client’s economic interests, although wrongful act occurred in another place).

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . This court possesses jurisdiction to review non-final orders that concern venue. See Fla. R. App. P. 9.130(a)(3)(A).


author: COHEN, J.

text:
    Sherry R. OLSON, as Personal Representatives of the Estate of Timothy M. Olson, Appellants, v. CROWELL PLUMBING & HEATING CO., INC.; Rodney K. Maggiacomo; SD Watersports, LLC; Sammy Duvall Management Corp.; World Watersports, Inc.; Sammy Duvall; Scott Wester; Timothy M. Smith; Jeffrey T. Green; Walt Disney World Co.; and Walt Disney World Hospitality & Recreation Corporation, Appellees.
    No. 5D09-2100.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.
    Jeffrey K. Grant and D. Andrew DeBe-voise of DeBevoise & Poulton, P.A., Winter Park, for Appellants.

      Michael S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Gainesville, for Appellees Crowell Plumbing & Heating Co. and Rodney K. Maggiacomo.
    David F. Pope of Banker Lopez Gassier, P.A., Tampa, for Appellees SD Waters-ports, LLC, Sammy Duvall Management Corp., World Water Sports, Inc., Sammy Duvall, Scott Wester, Timothy M. Smith, and Jeffrey T. Green.
    Robert W. Thielhelm, Jr. and Michael S. Vitale of Baker & Hostetler LLP, Orlando, for Appellees Walt Disney World Co. and Walt Disney World Hospitality & Recreation Corporation.
   COHEN, J.

We review the trial court’s summary final judgment in this wrongful death lawsuit brought by Appellants, Roger R. Olson and Sherry R. Olson, as Personal Representatives of the Estate of Timothy F. Olson, who drowned during the installation of a floating dock on Walt Disney World property. Because a genuine issue of material fact exists regarding proximate causation, we reverse and remand for further proceedings.

Timothy Olson was employed by SD Watersports, LLC, a water sports concession owned and operated by Sammy Du-vall, which is located on Bay Lake on the grounds of Disney’s Contemporary Resort. SD Watersports contracted with Crowell Plumbing & Heating for an EZ Dock floating dock system to facilitate the rental of personal watercraft. Because SD Waters-ports was not experienced in assembling an EZ Dock floating dock system, Duvall and Crowell agreed that Crowell’s employee, Rodney Maggiacomo, would oversee the installation for $200 a day, show the SD Watersports employees how to do it, and provide all the tools and equipment.

Because certain dock sections were unavailable, Crowell arranged for the delivery of the available sections to the Contemporary Resort. Had all sections been present, the entire dock could have been assembled on dry land. Maggiacomo and several SD Watersports employees assembled the dock sections, and Disney’s ferry lift placed it in the lake. Maggiacomo explained that when the two missing sections arrived, a coupler installation tool would allow them to complete the dock without anyone getting in the water. When the last sections arrived, however, the coupler installation tool was on back order and unavailable.

Despite a last-minute effort to locate another source for the tool, Maggiacomo returned to the resort knowing that the only way to finish assembling the dock was for someone to go underwater, and under the dock, to hold the couplers in place. Robert Crowell described the procedure: first, swim underneath the dock with a bottom coupler and connecting rod attached, then push the coupler up through an opening until someone on top of the dock fastens the top coupler with a nut, all while holding your breath for up to two minutes. Crowell acknowledged a safety issue in going underneath the dock for coupler installation. He never directed his own employees to go underwater to perform this assembly; only he had done it. Duvall also conceded that it was dangerous to swim underneath a floating dock.

It is unclear whether Maggiacomo, or Scott Wester, who was in charge of SD Watersports’ operations, gave the go-ahead, but it was clear that Duvall was unwilling to wait a month for the coupler installation tool to be delivered, and Olson was under pressure from Duvall to complete the dock and get the Jet Ski operation running. In any event, a group comprised of SD Watersports employees, Timothy Smith, a parasail boat captain, Olson, a water skier, Jeffrey Green, a par-asail boat driver, and Maggiacomo, a plumber’s apprentice with Crowell Plumbing, worked together to complete the final assembly without the coupler installation tool.

The dock floating system was large— seventy feet long by fifteen-and-a-half feet wide. Eight top and bottom coupler sections needed to be connected to assemble the remaining pieces. Four were connected without going in the water, but the remaining four required someone to go underneath the dock. Olson volunteered to get in the water and donned a wetsuit and mask, but no SCUBA gear. It was early March, the water was cold and the visibility extremely poor. The water’s depth under the dock was eight to ten feet.

Maggiacomo, Smith, and Green, who were on the dock, told Olson that they would knock on the dock to alert him to surface after a coupler was secured. Using this procedure, Olson managed to get two couplers connected. With only two couplers remaining to be connected, Smith got in the water to assist. What happened next is unclear. According to Smith, as he finished the last couplers, he saw Olson swimming next to him, then swimming away. Smith heard Olson swimming and tapping along the dock. A few minutes later he got out of the water and realized he no longer heard Olson. Those on the dock gave a slightly different version. When the last coupler was connected, the men knocked, but Olson did not surface. Maggiacomo was immediately concerned, but the others thought Olson might be fooling around and were not concerned for another few minutes. Smith and Green swam around the dock looking for Olson as several more minutes passed.

A call to Disney’s Lake Patrol brought several rescue personnel, and a SCUBA diver eventually located Olson’s body near where he was last seen. Olson was not breathing and his body was lifeless. Despite attempts to resuscitate Olson, he arrived at the hospital in a “flat line” state, meaning no electrical activity, and was pronounced dead shortly thereafter.

Appellants filed a lawsuit alleging the various Appellees were negligent in proceeding with an illegally unpermitted floating dock installation, failing to exercise reasonable care in doing so without the required tool, and failing to conduct the project in a reasonably careful and prudent manner by permitting the inexperienced Olson to go underwater and engage in the extremely dangerous activity. Discovery ensued, focusing on criticisms related to marine engineering and construction and the manner in which the construction project was handled. Appellants’ expert witnesses leveled significant criticisms about the lack of a required permit, use of inexperienced workers without proper SCUBA gear for underwater assembly, lack of appropriate supervision, failure to maintain any underwater communication or connection with Olson, and the lack of any protocol to trigger a quick response in case of emergency. To support their claims, Appellants utilized a Reedy Creek Improvement District deputy building official and an expert in the field of marine engineering and construction. The building official testified that a permit was required for the dock project and that the permit required two sets of drawings, plus permit application from a licensed general contractor or specialty contractor.

Just weeks before trial, the focus shifted from permitting and supervision issues when Dr. Anderson, Orange County Deputy Chief Medical Examiner, was deposed about his autopsy results. Dr. Anderson’s autopsy reported that the cause of death was “drowning,” with findings of acute pulmonary edema, multiple granulomas in the lungs and spleen consistent with sarcoido-sis, prominent right ventricular hypertrophy consistent with an enlarged heart, and acute cerebral edema. In his deposition, he explained that the disease sarcoidosis is characterized by small granulomas that appear, as shown in Olson’s case, in the lungs, creating pulmonary hypertension. This condition meant that Olson was experiencing abnormally high blood pressure in the pulmonary arteries, which, over time, caused the right ventricle of his heart to thicken and enlarge, called cor pulmonale. He opined that the condition can lead to the development of, or contribute to, cardiac arrhythmias and that unrecognized pulmonary hypertension is well recognized as a cause of sudden death. Further, he speculated:

Now an arrhythmia, development of an arrhythmia is compounded by anything that causes decreased oxygenation to the muscle that sort of sensitizes it. Sometimes drug use, hypoxia. I would speculate, and it’s purely speculation, that while underwater he was becoming somewhat hypoxic, particularly if he did not have an oxygen source.... He could have become somewhat hypoxic or had decreased oxygen in the blood in his condition that might have lead to more [sic] propensity to have an arrhythmia.

Appellees joined in a motion for summary judgment, arguing that, even assuming that one or more of them breached a duty owed Olson, Appellants’ case failed due to a lack of causation and foreseeability, with regard to the cause of Olson’s death, based upon the “uncontroverted testimony” of the medical examiner.

Two days prior to the summary judgment hearing, Appellants served Appellees with an affidavit in which Dr. Anderson clarified his deposition testimony. He averred:

First, it is my opinion that within a reasonable degree of medical probability that Timothy M. Olson became hypoxic as a result of holding his breath while underwater during the process of working on. the floating dock on March 8, 2002.
Second, it is my opinion within a reasonable degree of medical probability that the sole cause of Mr. Olson’s hypoxia at that time and place was Mr. Olson holding his breath under the water during the process of working on the floating dock.
Third, it is my opinion within a reasonable degree of medical probability that the hypoxia caused a cardiac arrhythmia in Mr. Olson, which caused Mr. Olson to drown.
Fourth, it is my opinion based within a reasonable degree of medical probability that if Mr. Olson’s distress underwater at the dock had been detected within three to five minutes, and appropriate CPR instituted, that Mr. Olson’s arrhythmia would have been corrected and he probably would have survived and this would not have been a fatal event. Fifth, it is my opinion that if Mr. Olson had sustained this arrhythmia not underwater but above the water that it is probable the arrhythmia would have self-corrected and he would have survived.

The trial court, after a hearing, granted summary final judgment in favor of Appel-lees. It ruled that the evidence of record only supported a single reasonable inference: the cause of Olson’s death was the previously unknown and undetected sarcoi-dosis disease. The trial court concluded that reasonable persons could not differ on the issue, and Appellees were entitled to judgment as a matter of law.

This court reviews de novo the grant of summary judgment on the issue of proximate causation. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (2000). The movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once he tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. Landers v. Milton, 370 So.2d 368, 370 (Fla.1979). The issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, but these issues become questions of law if the facts point to but one possible conclusion. Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981).

“The circumstances under which a court may resolve proximate cause as a matter of law are extremely limited.” Lindsey v. Bell S. Telecomms., Inc., 943 So.2d 963, 966 (Fla. 4th DCA 2006). “If reasonable people could differ as to whether the facts establish proximate causation (i.e., whether the specific injury was genuinely foreseeable or an improbable freak occurrence), the issue must be left to the fact finder.” Id., citing Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1116 (Fla.2005); St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So.2d 244, 250 (Fla. 4th DCA 2005); accord City of Ocala v. Graham, 864 So.2d 473, 478 (Fla. 5th DCA 2004). This court explained:

[A]n injury caused by a freakish and improbable chain of events would not be “proximate” precisely because it is unquestionably unforeseeable, even where the injury may have arisen from a zone of risk. The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience. Thus, as the Restatement (Second) of Torts has noted, a trial court has discretion to remove the issue from the jury if, “after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm.” Restatement (Second) of Torts § 435(2) (1965).

Graham, 864 So.2d at 477-78.

The crux of the trial court’s opinion was that Olson’s death from a “fatal arrhythmia” was unforeseeable and that the cause of his death “supports no more than a single reasonable inference — a previously unknown, undetected disease.”

Although Appellees and the trial court characterize the arrhythmia Olson experienced as “malignant” or “fatal,” the medical evidence does not support this conclusion. Dr. Anderson opined that the sole cause of Olson’s hypoxia was from holding his breath while underwater at the dock, and the hypoxia, in turn, caused a cardiac arrhythmia, which caused him to drown. Further, had his distress been detected, and appropriate CPR administered within three to five minutes, Dr. Anderson believed that he would have survived. Not only did Dr. Anderson predict survivability upon rescue, but he also opined that had the arrhythmic incident occurred above water, that it was probable that the arrhythmia would have self-corrected. Dr. Anderson’s opinions are not susceptible of an exclusive judgment that Olson’s death was solely due to his disease.

The trial court also reached conclusions of law disputing Appellants’ allegations that the project was not handled in an “appropriate and legal manner.” It con-eluded that there was no evidence that there were requirements describing “appropriate” means of assembling the dock. We take issue with this conclusion. The evidence demonstrates that Appellees, faced with the temporary unavailability of the specially designed coupler tool and the perceived need to expedite the project, decided to proceed with an admittedly dangerous procedure. Further, in so proceeding, the inherent risks of completing the project were not lessened by careful supervision and monitoring of the underwater assembly. The trial court has taken this issue away from the factfinder in concluding there was no evidence of the “appropriate” means of assembling the dock.

Appellees’ motion for summary judgment assumed a breach of duty and asserted that there was nevertheless no proximate causation. The trial court concluded as a matter of law that there was “no evidence of any breach of duty with respect to monitoring or supervision, or assuming there was such a duty, that its breach proximately caused Mr. Olson’s death.” We disagree. Based on the evidence, a jury might conclude that Appellees’ failure to monitor or maintain communication with Olson during the underwater assembly breached a duty to supervise him.

We acknowledge that there are freakish accidents for which the law does not impose liability. Although the circumstances in this case present an atypical condition, the facts are not equivalent to the types of freak injuries for which the law does not impose liability. See, e.g., City of Ocala v. Graham, 864 So.2d 473 (Fla. 5th DCA 2004) (holding that no view of the evidence supported conclusion that police officer’s failure to locate and speak with plaintiffs estranged husband was the proximate cause of her injuries when he later shot her in the face causing severe and permanent injuries); National Airlines, Inc. v. Edwards, 336 So.2d 545 (Fla.1976) (holding trial court properly dismissed complaint for illness due to the consumption of Cuban food and drink, necessitated by airplane hijacking that airline should have prevented); Leitch v. City of Delray Beach, 41 So.3d 411 (Fla. 4th DCA 2010) (affirming directed verdict that city was under no duty to warn against the possibility of a stray bullet fired during New Year’s Eve celebrations).

The trial court concluded that its exercise of common sense did not usurp the jury’s role to determine foreseeability because the evidence demonstrated that the cause of Olson’s death supported no more than a single reasonable inference-a previously unknown, undetected disease. We disagree with this conclusion of Dr. Anderson’s testimony by deposition and as clarified through his affidavit. Because we conclude that the trial court erred in concluding that there was no dispute of material fact concerning the proximate causation of Olson’s death by drowning, we reverse.

REVERSED and REMANDED.

EVANDER, J., and TURNER, G.B., Associate Judge, concur.

      . The trial court earlier denied Appellees' motion for summary judgment on the question of duty.


author: BENTON, C.J.

text:
    Bobbie D. BARNWELL, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher Bassett, Appellees.
    No. 1D10-0378.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.

      Martha D. Fornaris of Fornaris & Associates, P.A., Coral Gables, and Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Laud-erdale, for Appellant.
    Steven P. Kronenberg and Kimberly J. Fernandes of Kelley, Kronenberg, Gilmar-tin, Fiehtel, Wander, Bamdas, Eskalyo & Dunbrack, Miami Lakes, for Appellees.
   BENTON, C.J.

A workers’ compensation claimant appeals an order “enforcing a settlement” purportedly reached in mediation, raising three issues. Because we agree the parol evidence rule was improperly applied to exclude evidence below, we reverse on that ground without reaching the other issues, and remand for further proceedings.

Whether the writing subscribed at mediation is ambiguous is a question of law subject to de novo review. See Ivester v. Parkway Reg’l & Specialty Risk, 996 So.2d 909, 911 (Fla. 1st DCA 2008); Churchville v. GACS Inc., 973 So.2d 1212, 1215 (Fla. 1st DCA 2008). Our cases recognize at least two categories of release, at least one of which would render any settlement agreement voidable upon the claimant’s timely election. “A latent ambiguity — as distinct from a patent ambiguity— arises ‘where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1974)). The use of the unmodified word “release” creates in the present case at least a latent ambiguity, affecting a material term of what was reduced to writing at the mediation conference.

In dispute is whether the parties settled claims relating to multiple industrial accidents allegedly occurring while the claimant was employed by the Miami-Dade County School Board, when they subscribed to this writing at a mediation conference:

1.The Claimant has 6 different claims pending at present against the Miami Dade County School Board. Each case is being washed out in the amount of $7,000, and the Claimant will pay her attorney, Ms. Fornaris a statutory fee of $1,800 under each washout and a total amount of costs in the amount of $600. The total amount of settlement for all 6 dates of accident is for $42,000 and Claimant will net minus fees and costs, a net amount of $88,600.
2. Straight stipulation for attorney’s fees wherein the Employer/Carrier pays attorney Asnis, the prior Claimants lawyer, a fee of $5,000 and costs in the amount of $270 to resolve his lien.
3. Employer/Carrier will reimburse the Claimant the amount of $130 for prescriptions as part of the washout settlement in any of the dates of accident.
4. Claimant will sign a resignation and release and the consideration for same is $100.
5. This is a full and final settlement and binding on all parties as of today’s date. The total amount of the settlement including all attorneys fees and costs is $47,500.

Whether this writing constitutes a binding contract settling the case depends on general principles of contract law. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) (“Settlements, of course, are governed by the rules for interpretation of contracts. Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981).”).

Parol evidence is admissible and properly considered “in determining the parties’ intent where the existence of some collateral or extraneous matter renders the contract’s application uncertain.” Emergency Assocs. of Tampa, P. A. v. Sassano, 664 So.2d 1000, 1002-03 (Fla. 2d DCA 1995). When, after the mediation conference, the claimant received in the mail a set of documents that included a comprehensive release covering not only workers’ compensation claims but also a wide array of other potential claims under state and federal law, the claimant refused to sign. The School Board and Gallagher Bassett then filed a motion to enforce the settlement. At the ensuing evidentiary hearing, Ms. Barnwell contended, among other things, that the settlement documents she received in the mail included provisions that made the mediation agreement contingent.

The order under review, enforcing the mediation agreement, concluded that the mediation agreement was “clear, unambiguous and enforceable,” and found: “There is no sufficient evidence that any proffered settlement paperwork (which of necessity will follow the agreement entered into at the mediation conference on 3/20/2009) renders the Mediation Agreement dependent upon any contingencies, or represents a modification of the parties’ agreement reached at the mediation conference.”

But the judge of compensation claims reached these conclusions only after excluding the “proffered settlement paperwork,” and refusing to consider it. When the School Board and Gallagher Bassett objected to the admission of the settlement documents they had mailed to Ms. Barn-well, on grounds the documents were parol evidence, he refused to admit them into evidence, but he did accept them as a proffer.

The possibility that the “release” referred to at mediation meant a release of the kind that would make any overall settlement unenforceable gave rise to a latent ambiguity, making consideration of extrinsic evidence appropriate. See Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So.2d 745, 749-750 (Fla. 1st DCA 2007) (holding that “latent ambiguity in a contract arises when the contract on its face appears clear and unambiguous, but fails to specify the rights or duties of the parties in certain situations”) (quoting Jenkins v. Eckerd Corp., 913 So.2d 43, 52-53 (Fla. 1st DCA 2005)). The judge of compensation claims erred in refusing to admit the proffered documents into evidence, and should consider them on remand.

Reversed and remanded, with instructions.

PADOVANO and CLARK, JJ., concur.

      . Here, the proffered release agreement forwarded by the E/C to Claimant gave Claimant 21 days to consider the agreement and 7 days after executing the agreement to revoke it. It also provided that it would not be effective or enforceable until the revocation period had expired.

      . The release agreement sent to Ms. Barnwell for her signature would have released "all legal, equitable, or administrative claims, demands or liabilities whatsoever, whether known or unknown, that she may have against” the School Board, including explicitly causes of action under various federal statutes including The Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. The agreement provided:
      21. Employee is hereby given up to twenty-one (21) days from the date of presentation of this Agreement to consider its provisions and to consult with attorney, accountant, spouse, or any other person whose advice she values.
      22. Employee may revoke this Agreement within seven (7) days following the date of her execution of this Agreement. The parties agree that the provisions of this Agreement do not become effective or enforceable until the seven (7) day revocation period has expired.

      . The judge of compensation claims also ordered Ms. Barnwell to "execute a resignation from her employment ... [and] a general release in favor of the Miami-Dade County ... School Board.” But see Jones v. Miami-Dade Cmty. Coll, 933 So.2d 1221, 1222 (Fla. 1st DCA 2006) ("[A] JCC’s authority in such situations extends only to a determination of whether the parties reached a settlement.”).

      . A settlement that includes as a material requirement signing a release that allows a workers’ compensation claimant to repudiate the agreement after execution of the general release is not enforceable against a claimant who expressly rejects the settlement even before executing settlement documents. See Caceres v. Sedano’s Supermarkets, 36 So.3d 919 (Fla. 1st DCA 2010) ("Because the severance agreement and release, which the JCC concluded was a material part of the overall settlement agreement, provides that Caceres may revoke the agreement within seven days following the date of execution of the agreement, and because Caceres expressly rejected the settlement prior to executing the settlement documents, the JCC erred in finding the parties had reached a settlement of the workers' compensation case.”); Jones v. Miami-Dade Cmty. Coll., 933 So.2d 1221 (Fla. 1st DCA 2006).


author: CLARK, J. KAHN, J.,

text:
    Anne GERGEN, Wife, Appellant, v. Kelly R. GERGEN, Husband, Appellee.
    No. 1D10-257.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Linda A. Bailey, Tallahassee, for Appellant.

      Marilyn K Morris, Tallahassee, for Ap-pellee.
   CLARK, J.

Appellant (former wife) appeals the trial court’s rulings on alimony and attorney’s fees in the second amended final judgment of dissolution. For the following reasons, the judgment is reversed in part and remanded for further proceedings.

After an 18-year marriage during which five boys were born, the former wife filed for dissolution of marriage in August, 2007. Both parties had been employed during the marriage, former husband as a sales person for Ryder Truck Company and former wife as flight attendant for Delta Airlines. Former husband historically earned substantially more than former wife. Former wife had not been employed since 2005 due to issues of substance abuse and mental health which impacted her ability to work and to parent. After completing a short-term in-patient rehabilitation program during the month of October, 2007, former wife continued to be monitored and to receive out-patient treatment. The court accepted evidence that former wife’s health conditions were not permanent and that she would be welcomed back by her former employer upon her regaining the ability to work, with seniority for her many years of service.

Former husband’s finances and health deteriorated during the pendency of the dissolution action. His income declined from approximately $100,000.00 in 2007 to $70,000.00 in 2008. In January, 2009, former husband was laid off from his employment and was diagnosed with prostate cancer. Former husband underwent surgery to treat his condition in 2009 but at the time of the final hearing in June, 2009, he had not pursued or obtained new employment.

In the second amended final judgment of dissolution of marriage, the trial court dissolved the marriage, determined that former husband would retain his listed non-marital assets, and divided the marital assets equally. The court adopted the parties’ stipulations regarding shared parental responsibility and parenting schedule. The trial court granted former wife’s request for rehabilitative alimony for a period of four months following the final judgment, “to assist the Wife until she phases into full time employment with Delta” and to coincide with the four remaining monthly severance payments former husband was to receive from his former employer. Retroactive alimony was denied, based on the court’s finding that the parties had provided for themselves and their children to the best of their abilities during the pendency of the proceedings without waste of assets by either party. The court ordered that each party would be responsible for their own attorney’s fees and costs, pursuant to section 61.16, Florida Statutes.

While appellant former wife argues on appeal that the rehabilitative alimony award was inadequate in light of her inability to return to work, that the denial of retroactive alimony as a means to enforce earlier temporary support orders was erroneous, and that the failure to award her attorney’s fees was erroneous, these determinations were within the trial court’s discretion based upon the evidence presented and no reversible error has been shown.

However, regarding permanent periodic alimony, the trial court neither granted nor denied former wife’s request. After making findings of fact on the factors listed in subsections 61.08(2)(a) and (b), Florida Statutes, a partial finding under subsection (c), and no findings on factors (d) through (g), the trial court noted the circumstances of each party’s unemployment and possibilities of future employment. The court then stated that it “considers permanent periodic alimony appropriate,” that former wife “has a need,” and that former husband “has no current ability to pay.” Instead of granting or denying permanent periodic alimony, the court reserved jurisdiction “to award such alimony in the future if the circumstances justify that award.” This provision in the judgment lacks the finality required to determine the issue of permanent periodic alimony, terminate the cause between the parties, allow for meaningful appellate review, and provides no basis upon which modification might be sought in the future pursuant to section 61.14, Florida Statutes.

The issue of permanent periodic alimony was ripe for determination and thus the circuit court was obligated to rule on the matter without reserving jurisdiction and deferring decision for a future date. Collinsworth v. Collinsworth, 624 So.2d 287 (Fla. 1st DCA 1993) (trial court erred in final judgment by reserving jurisdiction to consider wife’s request for partition of marital home). Generally, an indefinite deferral of a final decision is error and “when a cause is submitted to a court for determination and the court renders its judgment, ‘there should always be as much finality as possible.’ ” Martinez v. Martinez, 573 So.2d 37, 40 (Fla. 1st DCA 1990); see also Gruner v. Westmark, 617 So.2d 420 (Fla. 1st DCA 1993) (deferral of final ruling on child custody was fundamental error). Speculation or concern about future developments regarding the applicable statutory factors listed in section 61.08(2), Florida Statutes, such as the parties’ physical and emotional conditions and all sources of income available to each party, do not justify a deferral of a final ruling on the former wife’s request for periodic alimony. The final order applying section 61.08 must be based upon “a present-based analysis” rather than a deferral to wait and see how the parties’ situations work out. See Arthur v. Arthur, — So.3d —, —, 2010 WL 114532 (Fla.2010) (applying § 61.13001, Fla. Stat. governing relocation statute, trial court not equipped with “crystal ball” to predict how statutory factors will change; best interests of child must be determined at time of final hearing); Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990) (trial court must make final determination of child custody at final hearing, not defer decision to see how respective situations and parental conduct work out).

Likewise, the trial court did not make a sufficiently final ruling on child support. The second amended final order of dissolution of marriage provides “child support cannot be ordered at this time” due to the parents’ lack of employment, but that “jurisdiction is reserved to award child support in the future once either or both of the parties have incomes.” Pursuant to section 61.30, Florida Statutes, incomes of the parents are not limited to salary or wages, but include unemployment benefits, retirement payments, income from assets, and several other sources of income. § 61.30(2)(a)l.— 14., Fla. Stat. The trial court’s observation that neither parent was employed at the time of the final hearing did not preclude an award of child support or justify deferral of a decision on child support. See § 61.30(6), Fla. Stat. (2009).

Accordingly, the trial court’s reservation of jurisdiction to make a final determination on permanent periodic alimony is reversed and this case remanded. On remand, the trial court shall either grant or deny permanent periodic alimony, based upon specific findings of fact or a finding of inapplicability for each of the factors listed in section 61.08(2), Florida Statutes, as of the time of remand. An award of nominal permanent periodic alimony, if the trial court finds such award warranted, will preserve jurisdiction of the court to revisit the matter if the parties’ respective needs and abilities change substantially. See Biskie v. Biskie, 37 So.3d 970 (Fla. 1st DCA 2010).

Likewise, the reservation of jurisdiction to make a final determination on child support is reversed and remanded. On remand, the trial court shall either grant or deny child support. The court’s determination shall be based on its specific findings regarding the parties’ incomes in all forms, as described in section 61.30(2), Florida Statutes, and each parent’s percentage share of the child support need pursuant to section 61.30(9), Florida Statutes, as of the time of remand.

In all other respects, the second amended final judgment of dissolution of marriage is affirmed.

LEWIS, J., Concurs.

KAHN, J., Dissenting in Part.

KAHN, J.,

concurring in part and dissenting in part.

This case must be reversed on the reservation of jurisdiction as to alimony, but only because the trial court did not apply a temporal constraint to such reservation. Contrary to the statement of the majority, the judgment is not lacking in finality. As we stated in Herman v. Herman, 889 So.2d 128 (Fla. 1st DCA 2004):

The trial court’s decision to reserve jurisdiction to award alimony is reviewed for an abuse of discretion. Shaw v. Shaw, 334 So.2d 13, 16-17 (Fla.1976). The general rule is that the court should retain jurisdiction when there is a likelihood of a change in circumstances in the future that would warrant an award of alimony. Brown v. Brown, 440 So.2d 16, 19 (Fla. 1st DCA 1983); Barko v. Barko, 557 So.2d 932, 933 (Fla. 5th DCA 1990).

The Fifth District not only eschews requisite nominal alimony awards, but also expresses a clear preference against them. See O’Neal v. O’Neal, 407 So.2d 1011, 1011 (Fla. 5th DCA 1981) (adopting its position in Moore v. Moore, 401 So.2d 841, 842 (Fla. 5th DCA 1981) (urging that “trial courts expressly state their reservation of jurisdiction ... without resort to ‘nominal’ alimony awards” where record shows that spouse may require support “in the near or foreseeable future”)). Under similar circumstances, the Fifth District has also sanctioned an indefinite reservation of jurisdiction to award future alimony. See Moore, 401 So.2d at 842 (finding “no reason why the trial court should not be empowered to reserve jurisdiction indefinitely ... to make an alimony award” where the asking party fails to demonstrate “any present need for support”). We need not go as far as the Fifth District in countenancing an indefinite reservation of jurisdiction to uphold the course taken by the trial court in this case. Without denying the propriety of a grant of nominal alimony under appropriate circumstances, the foregoing cases stand for the proposition that such a method is sufficient, but not necessary, to reserve jurisdiction over a future alimony award. See Hawkins v. Hawkins, 895 So.2d 1155, 1156 (Fla. 1st DCA 2005).

Analogies to the deferral of child custody determinations, where the evidence presented makes the matter ripe for final determination, are unpersuasive. See Gruner v. Westmark, 617 So.2d 420, 421-22 (Fla. 1st DCA 1993) (noting that “there was extensive evidence presented to the trial court by both parties, so that a final determination could have been made”); Martinez v. Martinez, 573 So.2d 37, 40-41 (Fla. 1st DCA 1990) (holding the “child custody issue was properly before the court at the final hearing, [because] both parties presented evidence on the children’s best interests assuming either party were designated the primary residential parent”). In Arthur v. Arthur, — So.3d —, —, 2010 WL 114532 (Fla.2010), moreover, the court determined merely that “review of a petition for relocation entails a best interests determination at the time of the final hearing,” which is to say only that the judge must not speculate as to potential changes in the relevant statutory factors — the holding does not foreclose on the authority of the trial court to defer its ruling when evidence of “best interests” is lacking.

The foregoing child custody cases are more like our decision in Manucy v. Yur-galewicz, where we held that “the order on appeal, which retains jurisdiction to determine personal property distribution in the event of a disagreement between the parties, is a nonfinal order.” See 906 So.2d 1227, 1227 (Fla. 1st DCA 2005). In Manu-cy, despite the presentation of evidence making the matter ripe for determination, the parties requested the trial court allow them to make a distribution of the marital assets without judicial assistance, thus forestalling finality and opening the door to serial appeals. See id. Here, with the health and employment status of both parties in doubt and subject to change with a fair degree of fluidity, the circumstances indicate that the trial court, working from the facts available at the time, would have struggled, at best, to make a meaningful determination on the question of alimony when initially confronted by the issue.

For these reasons, the trial court did not commit error by reserving jurisdiction on the question of alimony. Nevertheless, the matter must be remanded because jurisdiction “should not have been reserved indefinitely.” See Herman, 889 So.2d at 129. To the extent the majority opinion holds that a trial court always errs by reserving jurisdiction on alimony, I cannot agree. I see no reason to exalt form over substance by requiring, as an alternative to a reservation of jurisdiction, an award of “nominal” alimony, as in Biskie v. Biskie, 37 So.3d 970 (Fla. 1st DCA 2010).

I am, respectfully, unable to join in that part of the court’s opinion that apparently vacates the reservation of jurisdiction on child support. Neither party has even raised that issue in a brief. Because no one has posited a problem for us to resolve, we may be fixing something that is not broken.

I therefore concur that a limited remand is necessary. I do not agree with the remainder of the majority opinion and therefore must respectfully dissent in part.


text:
    Erica KAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5175.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Nancy A. Daniels, Public Defender, and Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, and Albert J. Sauline, Assistant State Attorney, Panama City, for Appellee.
   PER CURIAM.

REVERSED. See Yerrick v. State, 979 So.2d 1228, 1230 (Fla. 4th DCA 2008) (“Florida law provides that to prove the crime of grand theft, the State must establish the defendant had the requisite criminal intent at the time of the taking.”); Benitez v. State, 852 So.2d 386 (Fla. 3d DCA 2003); Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984).

BENTON, C.J., THOMAS, and ROWE, JJ., concur.


text:
    J.S., Mother of A.S., Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-4974.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Crystal McBee Frusciante of Crystal McBee Law Firm, P.A., Jupiter, and Susan M. Barber, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Ward L. Metzger, Children’s Legal Services, Department of Children and Families, Jacksonville, and Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order adjudicating her child a dependent child. The Department of Children and Family Services and Guardian ad Litem both appropriately concede that the evidence presented at the adjudicatory hearing was legally insufficient to support a determination of dependency. Accordingly, we reverse the adjudication of dependency, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


text:
    CITY OF ORLANDO, Appellant, v. Timothy DAVIS, Appellee.
    No. 1D10-3432.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Karen Cullen and Meredith Barrios of Broussard & Cullen, P.A., Orlando, for Appellant.
    Bill McCabe, Longwood, and Frederic M. Schott, Orlando, for Appellee.
   PER CURIAM.

Because Claimant conceded at the hearing before the Judge of Compensation Claims that all benefits had been paid under an April 28, 2000, date of accident, and that it would be appropriate to award all benefits under that date of accident, we strike the references to an August 1, 2005, compensable accident from the final order. In all other respects, the final order is AFFIRMED.

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


author: PER CURIAM. WEBSTER, J.,

text:
    Steven JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3352.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED.

LEWIS and MARSTILLER, JJ., concur; WEBSTER, J., concurs with opinion.

WEBSTER, J.,

concurring.

I concur in the majority’s affirmance of all issues raised in this Jimmy Ryce Act case. I write only to note an improper comment on the evidence by the trial judge.

During opening statement, appellant’s lawyer told the jury:

[T]he state is going to try to make you believe that there is a mental disorder out there, called paraphilia NOS non-consenting person, otherwise known as paraphilia based on rape. And I will be submitting to you during this trial, that that mental disorder does not exist, that it is a disorder that was made up, that was created by psychologists to support ....

The trial court correctly sustained the state’s objection that the statement by appellant’s lawyer was impermissible argument. See First v. State, 696 So.2d 1357, 1358 (Fla. 2d DCA 1997) (“The purpose of an opening statement is for counsel to outline the facts expected to be proved at trial. It is not the appropriate place for argument.”). However, when appellant’s lawyer said that he was “just saying that the evidence will show that,” the trial court responded, “No. The evidence will not show that they’ve made it up, it is a science, they’ve made some prior tests.” Appellant correctly argues that the trial judge’s remark was an inappropriate comment on the evidence. See, e.g., Jones v. State, 612 So.2d 1370, 1373 (Fla.1992) (“It is error for a judge to comment on the evidence in the jury’s presence.”) (citing Raulerson v. State, 102 So.2d 281 (Fla.1958)); Simmons v. State, 803 So.2d 787, 788 (Fla. 1st DCA 2001) (“Florida law is clear that it is error for the judge to make a remark within the hearing of the jury that might convey his view of the case or his opinion of the weight, character, or credibility of the evidence.”) (citing Fenelon v. State, 594 So.2d 292, 294 (Fla.1992); Whitfield v. State, 452 So.2d 548, 549 (Fla.1984); Seward v. State, 59 So.2d 529, 531 (Fla.1952); and Leavine v. State, 109 Fla. 447, 147 So. 897, 902 (1933)). Unfortunately, however, appellant’s lawyer did not object to the comment and, accordingly, the error was not preserved for appellate review. See Moore v. State, 701 So.2d 545, 549 (Fla.1997) (citing Jones v. State, 612 So.2d 1370 (Fla.1992)). Because the comment was not sufficiently egregious to constitute fundamental error, we must affirm.