author: COHEN, J.

text:
    HEALTH FIRST, INC. and David S. Ori, Appellants, v. Cheryl L. CATALDO, Appellee.
    No. 5D10-1686.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Rehearing and Rehearing En Banc Denied Aug. 13, 2012.

      Hinda Klein, Diane H. Tutt and Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant.
    Christopher V. Carlyle, B.C.S., and Shannon McLin Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, and 0. John Alpizar and David Michael Alpizar of Alpizar Law, LLC, Palm Bay, for Appellee.
   COHEN, J.

Appellants, Health First, Inc. (“Health First”) and David S. Ori (“Ori”), appeal from a final judgment in excess of $2,000,000 entered against them in a personal injury case in favor of Cheryl L. Cataldo (“Cataldo”). They challenge Ca-taldo’s withdrawal of claims on the eve of trial, Cataldo’s attorney’s closing argument at trial, and attorney’s fees awarded pursuant to offers of judgment.

BACKGROUND

In 2005, Cataldo was driving her Toyota Corolla southbound on AlA in Indialantic, Florida. As she slowed to turn right, her vehicle was rear-ended on the left rear bumper by a Ford E-350 owned by Health First and driven by its employee, Ori. Cataldo claimed that the accident •caused her head to snap forward and back, and caused what she phrased as an “explosion” and “starburst feeling” in the top and back of her head. Ori estimated he was going five to ten miles an hour when the accident occurred, yet admitted to pushing Cataldo’s car ten feet into the intersection.

Cataldo declined transport immediately following the accident. She went to the emergency room later that day, complaining of neck pain, and was diagnosed with a cervical strain. In February 2006, some five months after the accident, she underwent surgery for three herniated discs in her cervical spine. Prior to the accident, the forty-two-year-old Cataldo worked out on a regular basis and participated in triathlons and other races. She was employed as a dental hygienist and worked part-time as a bartender and waitress. She has not worked since the accident and continues to treat for medical and psychological problems allegedly caused by the crash.

On May 30, 2007, Cataldo filed suit against Health First and Ori (collectively “Defendants”), to recover damages for the injuries she sustained in the crash. Health First admitted that Ori was an employee acting within the course and scope of his employment at the time of the accident. Liability was also admitted and the case was tried on the issue of damages.

Shortly before trial, Cataldo informed the court that she was withdrawing her claim for damages associated with her brain and dental injuries. These claims had been areas of particular dispute, as defense counsel believed Cataldo had been caught in lies during discovery that impacted these claims. Upon dropping the claims, Cataldo contemporaneously moved to prohibit Defendants from introducing any evidence relating to such injuries on the ground the evidence would be “collateral” to the issues being tried.

Defendants acknowledged that Cataldo was entitled to drop these claims. They nonetheless argued that the prejudice to the defense was so severe they were entitled to a continuance. Defense counsel argued that those claims were intertwined with Cataldo’s remaining claims, his trial preparation had assumed their inclusion, his cross-examination was based on the allegedly false histories Cataldo gave to her health care providers, and all of her medical records contained references to the newly dropped claims. He contended that it would be impossible for him to proceed to trial in view of the “dramatic change” made in the case. The court denied the motion for a continuance. Later at trial, motions for mistrial were made on the same basis and were also denied. The argument was also raised in Health First’s motion for new trial, wherein defense counsel argued that Cataldo’s primary claim of injury in the three years leading up to trial was a “brain injury” and that a whiplash injury was only “coincidentally” appended to this claim. Along with its ruling that Cataldo could withdraw the traumatic brain injury and dental injury pleaded in the complaint, the court ruled that Defendants would not be permitted to impeach Cataldo with evidence regarding those prior claims.

The case was tried before a jury over a period of two weeks. Cataldo sought compensation for injuries to her cervical spine, thoracic spine, and right elbow. She also claimed she suffered from severe depression as a result of the accident. In support of her claim for cervical spine, i.e., neck, injuries, Cataldo offered the testimony of three treating physicians — her neurosurgeon, a neurologist, and an orthopedic surgeon. Her witnesses testified that she had severely herniated or ruptured three discs in her back in the accident, requiring her to undergo surgery to fuse three vertebrae together. Her injuries resulted in what her neurosurgeon quantified as an impairment of eleven percent of her whole body even after treatment. Her physicians admitted that Cataldo’s spine showed minor degenerative changes prior to the accident, but denied that her post-accident problems were related to any degenerative changes. They explained that this was a “very dramatic case” and that it would have been virtually impossible for her to walk around with these injuries prior to the accident. They also testified that a low-speed crash could, in fact, cause the type of injuries suffered by Cataldo. Additional testimony indicated that the discs above and below where the vertebrae were fused showed signs of degeneration due to additional wear and tear placed on them by the fusion. This complication, the physicians opined, occurs in about thirty percent of spinal fusions, and was occurring more quickly in Cataldo than most patients. As a result, Cataldo will require additional surgery. She also suffered a herniated disc in her thoracic spine that cannot be treated by surgery.

There was also testimony that Cataldo has become severely depressed because of her injuries and that her depression is permanent. Her psychologist has been seeing her every two or three weeks since October 2006 for depression and has tested her on several occasions since the accident. He saw no signs of deception and testified that her depression has worsened significantly since she was first tested in 2005. She is now severely depressed and has chronic pain syndrome. She also has anxiety associated with the depression. The psychologist believed that the problems were caused by the motor vehicle accident in September 2005. He further explained she is no longer able to work and is in need of ongoing therapy to aid in accepting her limitations.

A life care plan was prepared for Catal-do, with the aid of the specialists who had treated her. The life plan predicted precisely what kind of medical and other care she will need as a result of the accident, and included projected costs. An expert testified that Cataldo’s limitations made her incapable of working. She was earning $46,804 a year when the accident occurred.

Frederick Raffa, Ph.D., expanded on the life plan. He testified that Cataldo was 42.6 years of age when the accident occurred and has a life expectancy of 82.61 years. Her past lost wages are $212,372, while her future lost wages reduced to their present value are $944,802. The present value of her future medical care is $962,145 or $963,186, depending on which of two treatment options she chooses.

Defendants essentially conceded the claim for injuries to Cataldo’s elbow, which had been surgically treated and presented few recurring problems as of trial. They contested the remaining claims, contending that the accident was a low-impact incident that caused nothing more than a soft-tissue cervical strain. They insisted that Ca-taldo was exaggerating her injuries, some of which preexisted the accident, and that Cataldo had misrepresented various aspects of the accident and her prior medical care. They called a series of witnesses to support this contention. Among them was Peter Livingston, M.D., a diagnostic neu-roradiologist. Dr. Livingston testified that he believes Cataldo had degenerative disc disease that predated the accident. He acknowledged that he has worked with defense counsel on four other cases and that he works on eight to ten cases a year for members of defense counsel’s firm. On cross-examination, he testified that he has no opinion regarding the cause of Ca-taldo’s problems, nor any opinion regarding her need for surgery. He was also unable to offer any opinion on whether Cataldo suffered any permanent injury as a result of the crash. The defense also called a private investigator hired to conduct surveillance on Cataldo. Condensed footage of his surveillance was played for the jury.

The closing argument made by plaintiffs counsel, John Alpizar, was fairly lengthy. Among the comments made was a suggestion that divine intervention had a hand in the selection of that particular jury. Plaintiffs counsel stated:

And you all showed up here two weeks ago on Monday, and we sat in this room •with 50 people, and some of you stayed and some of you didn’t stay. And your name was called, and you were randomly selected after a lot of questioning to be one of the people that are going to decide this case. And call it fate or call it whatever you want to call it, but I believe that there was a reason why you were selected.
And as I’ve watched you carefully for the last two weeks, watched you taking notes, and paying attention very closely to all the evidence, and I watched you listen to this case involving a perfect stranger to you, which you know nothing about, and give it your attention, it dawned on me that whoever it is that decides what’s right and wrong in this world, had some say in you all being the one’s [sic] selected to decide this case. And so, on behalf of Miss Cataldo, I’m grateful. I thank you for being here.

(Emphasis added).

The religious theme continued with plaintiffs counsel’s argument on the subject of “repentance,” which implicitly exhorted the jury to punish Defendants:

In deciding what I was going to talk to you about and how I was going to tie it into the evidence in this case, I was reading a book. In my spare time when I am not doing this, I try to read. And I was reading about the concept of repentance. And it applies here, folks, because part of what you’re going to be doing in this case, through your verdict, is to make sure that the Defendants who caused the wrong we’re here on, really have repented for what they’ve done.

Near the end of his initial closing argument, plaintiffs counsel also argued that all the defense wanted to talk about was “damage to the bumper of the vehicle.” He suggested that Defendants were trying to “side-track” the jury and make them take their “eye off the ball” by talking “sheet metal damage” and “damage to the bumper of the vehicle.” During his rebuttal argument, plaintiffs counsel opened with the statement that the jury had just seen Defendants’ “true position,” which was that plaintiffs damages were $100,000. He argued that the defense cared nothing about “fairness and reasonableness,” and that its goal was “suggesting to you and persuading you and getting you to take your eye off the ball and to go back there and return a verdict that is not fair, that is unreasonable, because that would be a victory for them. ” (Emphasis added).

Plaintiffs counsel asked the jury to contrast plaintiffs witnesses with Dr. Livingston, who was charging the defense as much as $33,750 for his testimony. He then argued, incorrectly, that Dr. Livingston had been paid almost $1,000,000 for eases on which he had worked with defense counsel, stating:

Who has an investment in this case? This is the same Dr. Livingston, Ladies and Gentlemen, a radiologist, whose 30 cases for Mr. Reed in the last three years, well, if he earns $33,750 per case, over the last three years, this man’s been paid by Mr. Reed, one million dollars to come into courtrooms and do what he did here.

Plaintiffs counsel later reiterated, incorrectly:

[A]nd Mr. Reed’s a good lawyer and he does this a lot. Obviously, with Dr. Livingston alone, thirty cases. I don’t know how many other lawyers Dr. Livingston works with. How many other— I mean if he’s got a million dollars in three years from Mr. Reed alone for thirty cases, if he’s worked with another three or four lawyers, it’s incomprehensible to me how much he makes.

Counsel went on to question the significance of the surveillance tapes, arguing that Defendants had failed to tape Cataldo in 2005 or 2006, when she was “hurting” and “almost suicidal,” although suit was not filed until 2007. In the last few minutes of closing, plaintiffs counsel argued that the defense had given them little pieces of the story designed to “take [their] eye off the ball,” but that “justice demands, just screams out, justice cries out for you to do what’s fair and what’s right,” and to return a verdict for all of Cataldo’s damages. He argued that while Defendants might not think this was a big case, it was a “huge” case for Cataldo, who had the right to life, liberty and the pursuit of happiness. Plaintiffs counsel contended that they had been forced to bring Defendants “into the courtroom kicking and screaming,” and told the jury that they needed to “take care of her through [their] verdict.” He concluded:

They are not going to take care of her. Okay? They are not going to take care of her. I think that is apparent. Health First is not going to take care of this lady’s injuries unless you tell them to do so through your verdict.

None of these arguments were objected to by Defendants.

Following rendition of the verdict, Catal-do moved for attorney’s fees pursuant to two proposals for settlement served on Defendants. A separate proposal was served on each in the amount of $1,475,000. The proposal served on Health First stated:

3. Claims the Proposal attempts to resolve: All claims for damages brought by Plaintiff, CHERYL L. CATALDO, against the Defendant, HEALTH FIRST, INC., in the action referenced herein above.

However, the proposal was conditioned on the dismissal of both the defendants, stating:

5. Non-monetary terms of Proposal, if any. If Defendant, HEALTH FIRST, INC., accepts the instant Proposal for Settlement, HEALTH FIRST, INC. and DAVID S. ORI, shall be dismissed from the instant lawsuit and the attached Release shall be executed by the Plaintiff in favor of Defendants.

A virtually identical proposal for settlement was served on Ori, which was conditioned on the dismissal of both the defendants. Health First filed a response to Cataldo’s motion for fees, arguing that the proposals were ambiguous because more than one proposal was made, making it uncertain as to whether both had to be accepted. However, the trial court entered an order finding the proposals for settlement were valid and entitled Cataldo to attorney’s fees in the amount of $440,165, plus expert witness fees in the amount of $10,250.

ANALYSIS

I. Withdrawal of Claims and Exclusion of Evidence

On appeal, Defendants argue they are entitled to a new trial because Cataldo withdrew her claim for brain and dental injuries immediately before trial. They complain that the withdrawal of these claims completely changed the theory under which the case had been pursued for three years. While they do not contest Cataldo’s right to drop the claims, they insist that the timing of the withdrawal prevented them from putting on an effective defense. They argue evidence that Cataldo had given a false history and fabricated brain and dental injuries was a significant part of their defense, and this evidence was precluded by the trial court when the claims were dropped. Defendants insist that this evidence was more than collateral impeachment evidence, and that it instead went to the heart of Catal-do’s case because her fabricated claims were used to diagnose her back injuries.

The Florida Rules of Civil Procedure expressly recognize Cataldo’s right to withdraw any claim without an order by the court, at any time both prior to and during trial. See Fla. R. Civ. P. 1.420(a). The right to dismiss claims, or portions of claims, has been termed “absolute.” Patterson v. Allstate Ins. Co., 884 So.2d 178, 180 (Fla. 2d DCA 2004). Cataldo’s counsel waited until virtually the eve of trial to alert the court and opposing counsel of a significant change in the nature of the case. The defense sought a continuance which very well might have been warranted. However, the decision to grant or deny such a request is within the sound discretion of the trial court, and we cannot find that the denial of the request constituted an abuse of discretion. See Myers v. Siegel, 920 So.2d 1241, 1242-43 (Fla. 5th DCA 2006) (“This court considers certain factors in making that determination, including: 1) whether the movant suffers injustice from denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.”).

Having been denied their motion for a continuance, the defense asserts error in the court’s refusal to allow cross-examination of Cataldo and medical witnesses with evidence the defense contends revealed fabrication or lies related to the dropped claims. The issue raised is one of relevancy. As to Cataldo, the defense suggests the admission of such evidence is relevant to attack her credibility. This Court reviews the trial court’s decision regarding the admission or exclusion of evidence for an abuse of discretion. See Philippon v. Shreffler, 33 So.3d 704, 707 (Fla. 4th DCA 2010); Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007).

Once the claim for damages was dropped, evidence that Cataldo allegedly misrepresented her head and dental injuries generally is inadmissible because it constitutes impeachment on a collateral issue. See, e.g., Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753 (Fla. 4th DCA 2008) (holding, where insured dropped claim against insurer for lost wages on first day of trial, it was error to permit insurer to impeach insured with evidence of discrepancy between her deposition testimony that she earned $900 weekly as waitress and tax returns reflecting earnings of $200 weekly); Doremus v. Fla. Energy Sys. of S. Fla., Inc., 634 So.2d 1106 (Fla. 4th DCA 1994) (determining court should not have allowed defendant to impeach plaintiff about false statement on employment application regarding discharge from military because plaintiff falsely claimed on application he had no back issues); New England Oyster House of N. Miami, Inc. v. Yuhas, 294 So.2d 99 (Fla. 3d DCA 1974) (holding, in action for injuries sustained by plaintiff when she tripped and fell on concrete curb and where plaintiff dropped claim for lost wages, trial court properly refused to permit defendants to impeach plaintiffs credibility with statement in her deposition that she lied on her income tax returns); see also Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (“The test for determining whether a matter is collateral or irrelevant is whether the proposed testimony can be admitted for any purpose independent of the contradictions.”) (quotations omitted). While there might be circumstances under which the evidence in this case might be relevant and thus admissible, none were established and the trial court did not abuse its discretion in prohibiting impeachment of the withdrawn claims.

Allowing impeachment on this matter opens the door to collateral issues such as a discussion of the trial strategy employed. Evidence that she dropped these claims was not proof that the claims were untrue or that Cataldo was exaggerating the severity of her injuries. Accordingly, because the evidence that Defendants sought to introduce had no tendency to prove what it was offered for — that Catal-do had exaggerated or fabricated her claims — the trial court did not abuse its discretion in excluding the evidence.

Defendants also argue that the excluded evidence went to the heart of Cataldo’s case because her “fabricated” claims were used to diagnose her back injuries. No proffer was made, however, showing that the information complained about had any effect on the diagnosis made by any physician. Instead, all that was shown was that the information was disclosed to certain physicians.

Defendants have largely failed to identify any specific evidence that was wrongfully excluded due to the trial court’s ruling, making it impossible to evaluate these claims. Defendants did not, for the most part, make a proffer of this evidence which is necessary to preserve for review the allegedly wrongful exclusion of evidence. Doctors Co. v. State, Dep’t of Ins., 940 So.2d 466, 471 (Fla. 1st DCA 2006) (recognizing offer of proof must be made in order to preserve issue of excluded evidence).

II. Improper Closing Argument

Defendants contend they are entitled to a new trial because of improper closing arguments made by Cataldo’s counsel. The arguments in question allegedly: (1) disparaged the defense that this was a “low impact” case; (2) invited the jury to punish Health First for not taking care of Cataldo and paying for her injuries; (3) attacked Dr. Livingston, who was Health First’s only medical expert, in a factually inaccurate manner, for testimony he gave regarding other clients of defense counsel’s firm; and (4) suggested that jurors had been chosen by God to provide for Cataldo. While Defendants concede that their attorney failed to object, they contend the cumulative effect constituted fundamental error warranting a new trial under the test set forth in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

Murphy details four requirements for granting a new trial in a civil case based on allegedly improper, but unobject-ed-to, closing argument. First, a complainant must establish that the argument being challenged is, in fact, improper. Id. at 1028. Second, the argument must be harmful, i.e., “so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. at 1029. Third, the improper argument must be incurable, meaning that a curative instruction could not have eliminated the probability that the argument resulted in an improper verdict. Id. at 1030. Finally, the complaining party must show that “the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id.; see also City of Orlando v. Pineiro, 66 So.3d 1064, 1068 (Fla. 5th DCA 2011) (stating unobjected-to, improper argument must be “of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.”) (quotation omitted). These issues must be presented to the trial court by means of a motion for new trial before the issue can be considered on appeal. Murphy, 766 So.2d at 1027. This Court reviews the trial court’s ruling under an abuse of discretion standard, because the trial judge is in the best position to determine the impact of improper argument on the jury. Id. at 1030-31..

Commendably, at oral argument Catal-do’s counsel conceded the impropriety of Mr. Alpizar’s closing argument. As set out, the record is replete with improper arguments. The religious references and appeal to a higher power improperly suggested to the jury that God favored a verdict in favor of Cataldo. These references were coupled with a request that the jury “punish” Defendants, who had not “repented” for their sins. Repeated statements that Defendants were trying to sidetrack the jury and make them take their eye off the ball improperly disparaged the defense and implied that Defendants had done something improper by defending the case, as did statements suggesting that Defendants had to be dragged “kicking and screaming” into the courtroom, that the jury had to force Defendants to take care of Cataldo, and that it would be a victory for the defense if they got an “unfair” verdict. Finally, counsel grossly misstated the compensation that had been paid to Defendants’ only medical witness. He argued, incorrectly, that Dr. Livingston had been paid almost $1,000,000 over three years for cases on which he had worked with defense counsel, and implied that no one knew how much the doctor received from defense counsel’s firm after considering he had worked with three or four other lawyers at the firm.

Closing argument is designed “to help the jury understand the issues in a case by ‘applying the evidence to the law applicable to the case.’ ” Murphy, 766 So.2d at 1028 (quoting Hill v. State, 515 So.2d 176, 178 (Fla.1987)). While attorneys should be afforded great latitude in presenting closing argument, “they must ‘confíne their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.’ ” Murphy, 766 So.2d at 1028 (quoting Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998)). Similar arguments have been repeatedly disapproved for their inflammatory and prejudicial content. See Pineiro, 66 So.3d at 1069-71 (finding it improper to argue defendants would be laughing if no verdict was returned in favor of plaintiff and that a damage award would tell parents what happened was wrong, and stating inflammatory and prejudicial comments will not be permitted); Fasani v. Kowalski, 43 So.3d 805, 809-10 (Fla. 3d DCA 2010) (disapproving argument that defendant kicked plaintiff out on street like a “dog,” had refused to “do the right thing,” and refused to pay due to “greed and arrogance,” and opining “[t]he law is clear that it is improper for an attorney to disparage an opposing party’s defense of a case or to suggest that a party should be punished for contesting a claim.”); Chin v. Caiaffa, 42 So.3d 300, 309 (Fla. 3d DCA 2010) (holding improper plaintiffs efforts to paint entire defense as “frivolous” and designed to “add [] insult to injury,” to accuse defense counsel of “try[ing] to fool you,” to argue a defendant is not contrite and has not apologized for an accident, and to argue that defendant made bigger mistake of trying to avoid responsibility by calling witnesses who did not tell the truth in an effort to do anything to win or save the day); SDG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997, 1002 (Fla. 3d DCA 2008) (finding it improper to refer to defense as “frivolous”); State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 877, 379-80 (Fla. 3d DCA 2005) (disapproving argument that implied failure to pay was improper).

While conceding that many of her counsel’s arguments were improper, Cataldo notes that Murphy provides “an escape valve with a very narrowly defined parameter and of extremely limited application. ...” 766 So.2d at 1026; accord Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1250 (Fla. 2d DCA 2007). She insists that an improper argument does not necessarily satisfy the Murphy standards so as to entitle Defendants to a new trial. Noting that she was awarded less than half of the damages she sought, Cataldo argues the result demonstrates that any improper argument did not so damage the fairness of the proceedings as to require a new trial. We reject that logic. It is equally arguable that the verdict exceeded Cataldo’s pre-trial evaluation of the value of her case, neither of which is helpful to our analysis.

We strongly disapprove of the tactics used during Cataldo’s closing argument. We find, however, that the trial court did not abuse its discretion by refusing to order a new trial. We cannot say under Murphy’s fourth prong that the arguments “so damaged the fairness” of the trial as to require a new trial. 766 So.2d at 1030.

III. Offers of Judgment

Defendants argue that the trial court erred by awarding attorney’s fees to Cataldo based on two proposals for settlement made to them on September 2, 2008. Defendants did not respond to either offer of judgment, which were therefore deemed to be rejected. Fla. R. Civ. P. 1.442(f)(1). Defendants argue that the fee award must be reversed because the offers of judgment made in this case by Cataldo were too ambiguous to support a fee award. Because more than one offer was made and each offered to resolve Cataldo’s claims against more than just the offeree, they assert it was impossible to tell whether each defendant had to pay $1,475,000, the amount stated in the offer, or whether a single payment of $1,475,000 would resolve both claims. They contend that these “ambiguities” preclude a fee award pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442.

Cataldo argues that courts must use reason and common sense when viewing a proposal for settlement. She contends that the offers made in this case met the requirement that they be “sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). She claims that the offers made clear that the payment of $1,475,000 by a single defendant would obtain the release of all defendants, and insists that her promise to release multiple defendants does not transform the offer into an impermissible joint offer.

This Court reviews de novo a trial court’s ruling on a motion to award attorney’s fees and costs pursuant to the offer of judgment statute and rule. Sparklin v. S. Indus. Assocs., 960 So.2d 895, 897 (Fla. 5th DCA 2007). The rule requires that settlement proposals “identify the claim or claims the proposal is attempting to resolve” and “state with particularity any relevant conditions.” Fla. R. Civ. P. 1.442(c)(2)(B), (C). An offer must also “state with particularity all nonmone-tary terms.” Fla. R. Civ. P. 1.442(c)(2)(D). While it is impossible to eliminate all ambiguity in an offer, the rule “requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Nichols, 932 So.2d at 1079. Offers containing a latent or patent ambiguity that could reasonably affect the offeror’s decision are too indefinite to allow a fee award. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891-92 (Fla. 4th DCA 2010).

Neither of the offers made in this case appears too indefinite or ambiguous to support a fee award, nor do the offers constitute impermissible joint offers. See Andrews v. Frey, 66 So.3d 376 (Fla. 5th DCA 2011). The offer of judgment in Andrews has many similarities to the case at bar. In Andrews, the plaintiff and her minor daughter filed suit against the defendants, Shannon Frey and her father, for injuries suffered in an automobile accident. The damages sought from Mr. Frey were based on a theory of vicarious liability under the dangerous instrumentality doctrine. Prior to trial, Shannon Frey served separate proposals for settlement on both plaintiffs. She offered $50,000 to the mother and $10,000 to the minor daughter. Each proposal for settlement identified Shannon Frey as the offeror and required the execution of a “full Release releasing Defendants, SHANNON D. FREY and RUDOLPH E. FREY, and their insurers, with regard to any and all claims that arose as a result of the subject incident set forth in Plaintiffs Complaint. ...” Id. at 377-78. The Freys were ultimately awarded fees due to the rejection of their offer of judgment. On appeal, the Andrews argued that Shannon Frey’s offer of judgment could not support a fee award because it was unclear whether it was a joint proposal, and it required them to release Mr. Frey and the insurance company. This Court found the release insufficient to invalidate the offer, explaining that “[t]he proposals for settlement clearly and unequivocally stated that Shannon Frey was the sole offeror. The fact that the proposals conditioned acceptance on releasing Rudolph Frey neither created an ambiguity, nor transformed them into joint offers.” Id. at 378.

This Court further noted in Andrews that the offers made to each plaintiff were not improperly conditioned on acceptance by the other plaintiff, which would have precluded each from independently settling his or her claim. Id. at 379. Mr. Frey’s liability was based on vicarious liability and was therefore coextensive with that imposed on his daughter, who was the active tortfeasor that made the offer. Upon affirming the lower court, this Court certified the following question to the Florida Supreme Court:

WHETHER THE TERM “JOINT PROPOSAL” IN RULE 1.442(C)(3) APPLIES TO CASES WHERE ACCEPTANCE OF THE OFFER IS CONDITIONED UPON DISMISSAL WITH PREJUDICE OF AN OFFEREE’S CLAIMS AGAINST AN OFFEROR AND A THIRD PARTY?

Id. at 380.

Here, each offer was made by the single plaintiff (Cataldo) to a single defendant, one of whom (Health First) was vicariously liable for the remaining defendant (Ori). There was no denial of vicarious liability so that the interests of the defendants were coextensive. Each offer was for a definite amount and was not the equivalent of a joint offer, even though the plaintiff promised to release all the defendants if the offer was accepted. As for the requirement that a release be executed, the Florida Supreme Court has expressly recognized the right to include nonmonetary conditions (such as a release) in an offer of judgment, as long as such conditions are described with particularity in the offer. Nichols, 932 So.2d at 1078 (holding that a general release is a relevant condition or nonmonetary term that must be described with particularity in the offer). Finally, the offer was not too indefinite or ambiguous for enforcement simply because an offer was made to each defendant, which is similar to what occurred in Andrews. Based on the foregoing, the offers of judgments made by Cataldo were valid and enforceable and were not ambiguous. Nor were the offers invalidated because of Ca-taldo’s promise to release the remaining defendants as a nonmonetary term of the settlement. This covenant does not transform the offer into an undifferentiated joint offer.

We find no error as to the remaining evidentiary issues raised on appeal.

AFFIRMED.

LAWSON and JACOBUS, JJ., concur.

      . The van weighed approximately 6,000 pounds and sat twelve feet high, about twice the size of a normal pickup truck.

      . The lies apparently did not rise to the level of warranting the filing of a motion to dismiss.

      . Some evidence regarding these claims did, in fact, go to the jury. For example, Dr. Charles Theofilos examined a number of medical records with respect to Cataldo’s care and treatment, including Cataldo’s neurologist’s notes. He also reviewed medical records, such as MRIs and CAT scans, examined the patient, and took her history. On cross-examination, Dr. Theofilos was asked to read the complete history he had obtained from Cataldo. It included complaints of “subocci-pital headaches which are constant with radiation into her inter scapular region,” "memory loss,” and "some dizziness.” It also stated that she "had been seen by a doctor ... Ziegler, who follows her for memory loss and is awaiting the results of her last examination.”

      . Defendants did make a proffer at trial of a few pages of Cataldo’s medical records, in which she referred to alleged brain and dental injuries.

      . The one million dollar figure was more likely the amount that Dr. Livingston received while working for the entire firm. On proffer by plaintiff's counsel, the doctor admitted that at his deposition he had testified that he had worked for defense counsel's firm a number of times in the past. He estimated at the deposition that he worked for the firm on eight to ten cases a year, and had worked for Mr. Reed, lead counsel, two to three times before. He did not dispute that he may have worked for the firm at least thirty times in the past three years, but said he did not keep records.

      . The question was the same as that certified by the Eleventh Circuit Court of Appeals in Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195 (11th Cir.2011).


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    CHIROPRACTIC ONE, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE, etc., et al., Appellee.
    No. 5D11-593.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Rehearing and Rehearing En Banc Denied Aug. 13, 2012.

      Amy M. Romaine, of A.M. Romaine, P.A., Rockledge, and Sylvia A. Grunor, of Weiss, Grunor & Weiss, P.A., Maitland, for Appellant.
    Kenneth P. Hazouri, of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
    Maria Elena Abate, Fred E. Karlinsky, and Adams S. Rubenfield, of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, Amicus Curiae for Ap-pellee.
   MONACO, J.

This court has recently noted that from its inception, Florida’s PIP statute has been “a complicated piece of legislation, but the successive years of constant amendment and revision have both added to its complexity and detracted from its clarity.” See Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 337 (Fla. 5th DCA), review denied, 46 So.3d 567 (Fla.2010). We are presented by the appeal before us with the opportunity to once again fish in the cloudy waters of PIP legislation. Our elusive target this time is the meaning and application of section 627.736(5)(b)l.c., Florida Statutes (2010).

Section 627.736(5)(b)l.c. reads as follows:

(b)l. An insurer or insured is not required to pay a claim or charges:
c. To any person who knowingly submits a false or misleading statement relating to the claim or charges.

The word “knowingly” is subsequently defined in section 627.732(10):

“Knowingly” means that a person, with respect to information, has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the information, and proof of specific intent to defraud is not required.

The appellees, both of which are State Farm entities, take the position that if a medical provider “knowingly” submits a false claim or false charges, both the insurer and the insured are relieved of the obligation to pay both the entire claim or charges currently before the insurer, and any future claims or charges related to the same insured for the same accident. The appellant, Chiropractic One, Inc., asserts that if it knowingly submits a false charge, then the insurer is relieved of paying for that charge, but not for any other charges. The trial court ruled in favor of State Farm and held essentially that the provider forfeits its right to receive compensation on a claim by knowingly making a false or misleading charge relating to the claim. The trial court, however, did not address the issue of future charges by the provider for the same insured. Given the legislative history of this statute and the language chosen by the Legislature, we conclude that the trial court was correct and affirm.

A simplified recitation of the facts is sufficient to understand the issues presented. Chiropractic One treated nineteen State Farm insureds for injuries sustained in automobile accidents. In exchange for treatment, the insureds assigned their automobile insurance PIP benefits to Chiropractic One. Chiropractic One then submitted medical bills directly to State Farm for payment of personal injury protection benefits. After it conducted an investigation, State Farm determined that Chiropractic One was engaging in a pattern of misleading practices in its billing. It thereafter withheld benefits on the bills submitted, and filed a declaratory judgment action seeking a declaration that Chiropractic One’s misconduct relieved State Farm and the insured persons from liability for the charges.

Detailing the virtually admitted improper billing practices of Chiropractic One would probably serve no useful purpose. We note that its inappropriate practices are primarily rooted in the appellant’s intentional or recklessly improper use of Current Procedural Terminology codes, including billings for services not rendered, wrongly billed, or undocumented. The manipulations were designed to misrepresent to State Farm the services supplied to the insureds and to inflate the associated billing statements. The trial court entered three summary judgments in this case, the first two covering some of the nineteen insureds, and the last encompassing all of the insureds. The court concluded that the record evidence before it “established beyond any material issue of fact” that Chiropractic One knowingly and repeatedly made false and misleading claims for PIP benefits, and that the PIP claims made for every insured contained at least one false and misleading assertion, and usually contained “multiple and repeated instances of such statements.” The court then itemized the evidence that led it to conclude that Chiropractic One “knowingly” made the false and misleading claims, and finished its analysis by declaring thát neither State Farm, nor the insureds owed any PIP benefits or payments for treatment to Chiropractic One.

We, of course, review the final summary judgment de novo. See, e.g., Sandoro v. HSBC Bank, 55 So.3d 730, 731 (Fla. 2d DCA 2011); Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1106 (Fla. 4th DCA 2010). Likewise, statutory interpretation is generally a question of law subject to de novo review. See, e.g., Quarantello v. Leroy, 977 So.2d 648, 651 (Fla. 5th DCA), review denied, 987 So.2d 1210 (Fla.2008).

In this appeal Chiropractic One does not argue about whether it committed what amounts to fraud. It does not quibble with the conclusion that many of its billings were knowingly false, misleading, improper and unlawful. Rather its position is that the trial court erred:

[Wjhen it ruled that neither Appellees nor their insureds were responsible for any of the past or future claims submitted by Appellant thereby relieving Ap-pellees of their burden to investigate each and every “claim” for services submitted by Appellant and to provide an explanation of benefits regarding the approval or denial of each claim as mandated by Fla. Stat. § 627.736(4)(b).

Chiropractic One appears to be arguing that paragraph (4)(b) required State Farm to continue investigating the compensability of bills submitted by the appellant even after it knowingly submitted false and misleading billing statements. It apparently believes that it may continue to submit improper and misleading claims vis-a-vis each insured and that it is up to State Farm to catch them at it. Their hide-and-seek position is not well-founded.

Paragraph (4)(b) provides a thirty-day investigation period during which an insurer might either pay the claim or discover the facts that warrant a refusal to pay. See January v. State Farm Mut. Ins. Co., 838 So.2d 604, 607 (Fla. 5th DCA 2003). It is simply a safe harbor for insurers to avoid penalties on claims. Id. If the insurer pays the claim beyond the thirty-day investigative period allowed by the statute, it is subject to a penalty. See United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla.2001).

Moreover, section 627.736(4)(b) expressly states that it “does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5).” Any knowingly misleading or false charge, by definition, is unreasonable, not medically necessary, and in excess of permitted amounts. Thus, we see no contradiction between the two provisions.

Having now been satisfied that the misconduct was established, and we agree with the trial court that it was more than sufficiently established in the record to sustain that aspect of the final summary judgment, we must now consider the consequences of such behavior. The trial court held that neither State Farm nor its insureds owe any PIP and medical payment benefits for any of the charges encompassed within Chiropractic One’s claims with respect to the insureds. We agree that the facts here justify that outcome.

First, the plain language of section 627.736(5)(b)l.c. supports the invalidation of the claims. The statute relieves both the insurer and the insured from paying the claims of “any person who knowingly submits a false or misleading statement relating to the claim or charges.” Although “claim” and “charges” are not defined by the PIP statutes, and no cases have been suggested to us that define those terms in the context of PIP claims, it is logical to conclude that the Legislature established that dichotomy to be certain that not only the specific individual offensive “charges” were invalidated, but also that the entire “claim,” i.e., the collective of all charges, was invalidated, as well.

We come to this understanding both because of the language that the Legislature chose to employ, and because the legislative context surrounding the adoption of this particular legislation encourages this reading. The Legislature adopted section 627.736(5)(b)l.c. to address what it perceived to be significant dishonesty in connection with the claiming of PIP benefits. The 2001 legislative findings surrounding section 627.736, detailed in Section 1 of Senate Bill 1092, said, among other things:

The Legislature finds that the Florida Motor Vehicle No-Fault Law is intended to deliver medically necessary and appropriate medical care quickly and without regard to fault, and without undue litigation or other associated costs. The Legislature further finds that this intent has been frustrated at significant cost and harm to consumers by, among other things, fraud, medically inappropriate over-utilization of treatments and diagnostic services, inflated charges, and other practices on the part of a small number of health care providers and unregulated health care clinics, entrepreneurs, and attorneys.

The Legislature also made reference to, and incorporated into its findings, the Report of the Fifteenth Statewide Grand Jury. That body harshly criticized the disappointing history of PIP fraud and indicated that “a number of greedy and unscrupulous legal and medical professionals have turned that $10,000 coverage into their personal slush fund.” According to the Grand Jury, this resulted in the “loss of coverage and marginal medical treatment for those who are injured, as well as higher insurance rates for all drivers.” See also Regional MRI of Orlando, Inc. v. Nationwide Mut. Fire Ins. Co., 884 So.2d 1102, 1111 (Fla. 5th DCA 2004); cf., United Auto. Ins. Co. v. Stat Techs, Inc., 787 So.2d 920 (Fla. 3d DCA 2001), review denied, 817 So.2d 850 (Fla.2002). Similarly, when the Legislature enacted the Florida Motor Vehicle Insurance Affordability Act in 2003, which again amended the PIP statute, it once again declared that the goals underpinning the no-fault laws “have been significantly compromised due to the fraud and abuse that has permeated the PIP insurance market.”

The revision of the PIP statute had as a goal, among other things, the curtailment of the perceived fraud in the PIP billing of medical services. It is perfectly consistent with that goal for the Legislature to intend to invalidate a billed claim if there is any knowing submission of false or misleading statements relating to the claim or charges submitted by a provider. We conclude, therefore, that section 627.736(5)(b)1.c. should be interpreted in that fashion.

State Farm would have us go further and hold that all billings related to a specific patient’s accident both before and after the determination of billing misconduct should be invalidated. While there might be significant logic supporting this suggestion, we decline the invitation to elongate our holding. The facts in this case do not go that far and the final summary judgment likewise does not venture into that arena. We, accordingly, leave that determination for another day, and affirm the final summary judgment rendered by the trial court.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.

      . The first two orders were for partial summary judgments with respect to some of the insureds. In rendering the partial summary judgments the trial court relied principally upon section 627.736(5)(d), Florida Statutes (2010), to conclude that the billings on many of the insureds were not "properly completed,” as defined in the statute, and thus were not due or compensable. The final summary judgment involving the claims of all of the insureds was based on section 627.736(5)(b)l.c.


author: PER CURIAM.

text:
    Wilfredo DARIA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1142.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Victoria A. Holmberg, Clearwater, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (holding that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to defendants whose convictions were already final when that case was decided), rev. granted, 81 So.3d 414 (Fla.2012); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011) (same); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011) (same).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Jared G. ANTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3313.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Eric A. Jacobs of Jacobs/Offir, PL, Hollywood, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jared Anton appeals income deduction orders and civil restitution liens. He argues the trial court lacked jurisdiction to enter them because his probation had ended and because the orders and liens violate the prohibition against ex post facto laws. We agree and reverse.

As a condition of probation for grand theft offenses committed in 1991 and 1992, the trial court ordered Anton to pay restitution of $259,208.25 to four different victims at a rate of $650.00 per month. Anton met this obligation throughout the period of probation. On the last day of Anton’s probation, the State filed an affidavit of violation and warrant, alleging Anton had failed to pay the entire balance of ordered restitution.

At a subsequent hearing, the State admitted that it could not prove a willful violation, but requested the trial court to convert the outstanding restitution balance to civil liens and enter income deduction orders. Anton objected and argued the trial court lacked jurisdiction to do so because the term of probation had expired. Anton also argued that the statutory provision for imposing civil restitution liens had been enacted after the date these offenses had been committed and did not allow for retroactive application. The State responded that the trial court had the authority to enter civil liens and income deduction orders under section 775.089, Florida Statutes (2003).

The trial court dismissed the warrant, but entered the orders and liens nunc pro tunc to the final day of probation.

On appeal, Anton continues to argue the trial court lacked jurisdiction to enter the liens and orders after his probation period expired. He further claims that any civil liens or income deduction orders naturally expired with the end of his probation period.

The State acknowledges that once a probationary term has expired, a trial court lacks jurisdiction to enter an order of restitution. Montes v. State, 723 So.2d 881, 881 (Fla. 3d DCA 1998). However, the State argues that the jurisdictional problem is restricted to those instances when a court attempts to order restitution after the probationary term. The State suggests the jurisdictional problem does not exist here when a court merely attempts to enforce an otherwise valid restitution order entered prior to the expiration of the probationary term. § 775.089(5), Fla. Stat. (2003).

We have de novo review as the issue involves a question of law. See Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So.3d 651, 652 (Fla. 4th DCA 2009). We agree with Anton that the trial court lacked jurisdiction to enter the civil liens and income deduction orders.

Two statutory provisions must be applied for proper resolution of this case: section 775.089(3), which governs the time for payment of a restitution order, and section 775.089(5), which governs civil enforcement of a restitution order.

Prior to October 1, 1993, section 775.089(3) required immediate payment unless the court ordered otherwise. It also limited the period in which to pay restitution to no later than the end of probation, five years after a term of imprisonment, or five years after sentencing. Effective October 1, 1993, the legislature added a new sentence to the end of subsection (3): “If the restitution ordered by the court is not made within the time period specified, the court may continue the restitution order through the duration of the civil judgment provision set forth in subsection (5) and as provided in s. 55.10.”

Prior to October 1, 1993, section 775.089(5) provided: “An order of restitution may be enforced by the state, or a victim named in the order to receive the restitution, in the same manner as a judgment in a civil action.” Effective October 1, 1993, the legislature amended section 775.089(5) to read:

(5) An order of restitution may be enforced by the state, or by a victim named in the order to receive the restitution, in the same manner as a judgment in a civil action. The outstanding unpaid amount of the order of restitution bears interest in accordance with s. 55.03, and, when properly recorded, becomes a lien on real estate owned by the defendant.

If the crimes for which Anton was placed on probation were committed after October 1, 1993, the trial court would have had the authority to enter the income deduction orders and the civil liens. However, section 16 of chapter 93-37, Laws of Florida, specified that the “act shall ... apply to offenses committed on or after October 1, 1993.” Because the offenses in this case were committed prior to October 1, 1993, the changes made in 1993 to sections 775.089(3) and (5) are inapplicable.

The trial court erred in entering the income deduction orders and civil liens after the defendant’s probation expired. To enforce the restitution order, the State must file a civil action.

Reversed.

CIKLIN, GERBER and CONNER, JJ„ concur.

      . Although the trial court cannot extend or enforce the order once probation expires, the State and the victim are still able to enforce the restitution order as a civil judgment under section 775.089(5). See V.I. v. State, 667 So.2d 439 (Fla. 4th DCA 1996) (court could not enforce restitution after juvenile’s nineteenth birthday; victim can enforce restitution under section 775.089(5) after trial court loses jurisdiction over juvenile). To invoke that jurisdiction, the State must properly rein-voke the trial court’s jurisdiction. See gener

        ally Spain v. State, 849 So.2d 340 (Fla. 2d DCA 2003) (if defendant fails to abide by cooperation agreement after judgment and sentence is rendered, State must reinvoke jurisdiction of trial court to enforce agreement).

      . We decline to address the ex post facto argument as it is unnecessary to the disposition of this appeal.


text:
    Allison J. BLOSSMAN, Appellant/Cross Appellee, v. Christopher J. BLOSSMAN, Appellee/Cross Appellant.
    No. 1D11-5366.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellant/Cross Appel-lee.
    Jerome M. Novey, Shannon L. Novey, and Christin F. Gonzalez of Novey Law, Tallahassee, for Appellee/Cross Appellant.
   PER CURIAM.

There are four issues raised in this appeal. Appellant Allison Blossman raises three issues on appeal, and appellee/cross appellant Christopher Blossman raises one issue on cross-appeal. Three of the four issues are being affirmed without further comment, as only one of these issues merits discussion.

The appellant argues there is no competent, substantial evidence to support the valuation of the Abita stock at issue in this case at $221.77 per share. Each party’s expert used a different method to calculate per share value of the Abita stock. Appellant’s expert utilized an “income cash flow” method and testified that at the time the petition was filed voting shares were worth $342.62 each and non-voting shares were worth $328.87 each. Appellee’s expert applied a “historical cash flow” method and calculated the value at the time the petition was filed at $106.52 per share.

In setting the value at $221.77 per share, it appears as though the trial court split the difference between the two valuations. Florida law prohibits this type of valuation. See Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990). The Court offered no findings or explanation of how it arrived at the value of $221.77 per share. Therefore the valuation is not supported by competent, substantial evidence and must be reversed and remanded to allow the trial court to make a finding based on competent, substantial evidence. Despite appellee’s argument to the contrary, this valuation is not harmless error, because the trial court used the $221.77 figure to value 62 marital shares of Abita stock.

AFFIRMED in part, REVERSED in part, and REMANDED.

VAN NORTWICK and ROBERTS, JJ., and DEMPSEY, ANGELA C., Associate Judge, concur.


author: ROTHENBERG, J.

text:
    MPA BRICKELL KEY, LLC, etc., Appellant, v. The FALLSTAFF GROUP, INC., et al., Appellees.
    No. 3D11-1912.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Coffey Burlington, P.L., and Daniel F. Blonsky and Alice E. Meyer, Miami, for appellant.
    Robert S. Glazier; Ronald J. Cohen; and Irv J. Lamel, Miami, for appellees.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The plaintiff, MPA Brickell Key, LLC (“MPA”), appeals an order granting the defendants’, The Fallstaff Group, Inc. (“Fallstaff’) and Courvoisier Courts, LLC (“Courvoisier”), motion for summary judgment as to MPA’s claim for contractual indemnification; an order granting Cour-voisier’s motion for summary judgment as to MPA’s claim for unjust enrichment; and the final judgment entered in favor of Fallstaff and Courvoisier. We reverse and remand for further proceedings consistent with this opinion.

In November 2002, MPA entered into an agreement to sell real property on Briekell Key to Fallstaff. A portion of the real property was subject to a Shared Facilities Agreement (“SFA”) with a neighboring property owner, FBEC-Brickell Key Cen-tre, L.P. (“FBEC”), addressing, in part, the payment of real property taxes for properties separately owned by MPA and FBEC, but billed by the property appraiser under a single folio number — Folio No. 11. Pursuant to the SFA, MPA agreed to pay the real property taxes billed under Folio No. 11, and thereafter, MPA would invoice FBEC for its 1% share. In addition to the sales agreement, MPA and Fallstaff entered into a letter agreement, which, in part, postponed the closing of the sales agreement between MPA and Falls-taff, and further provides, in relevant part:

2. Reference is made to certain disputes between [MPA] and Jones Lang LaSalle (“JLL”) concerning a certain Shared Facilities Agreement (“the SFA”). [MPA] and Fallstaff have agreed that [MPA] will, at Closing under the Agreement, pay Fallstaff $110,000 (including within the $110,000, $10,000 for gate removal) in full payment of all of [MPA’s] obligations with respect to these disputes (the “SFA Dispute”) and all amounts owed by [MPA] under the SFA through the date of the Closing. In recognition of this fact, Fallstaff hereby agrees to indemnify and hold harmless [MPA] and all of its equity holders, officers, employees, agents and representatives with respect to any liability under or in connection with the SFA (including any liability with respect to legal fees or court costs).

On the day of closing, Fallstaff assigned the sales agreement to Courvoisier, an affiliate of Fallstaff, agreeing that Fallstaff and Courvoisier would “be jointly and severally liable under and pursuant to the Agreement.” The assignment further provided that Courvoisier “shall perform all obligations, duties and liabilities of [Falls-taff] under the Agreement.” At closing, Courvoisier received the $110,000 credit set forth in the letter agreement, and the letter agreement was included in the closing binder.

A few months after the closing, FBEC discovered that in 2002, the property appraiser removed FBEC’s property from Folio No. 11, and began to bill FBEC under Folio No. 12. However, because MPA was unaware of this tax folio split, MPA continued to invoice FBEC for 1% of the taxes billed under Folio No. 11 for tax years 2002-2004. FBEC paid MPA approximately $14,000 for the 2002 taxes, but due to an unrelated dispute, did not pay MPA the amounts invoiced for tax years 2003 and 2004. As FBEC was unaware of the tax folio split, FBEC did not pay its tax obligations due under Folio No. 12, and tax certificates were entered against FBEC’s property.

FBEC, through counsel, demanded from MPA “$43,215.07 (the amount paid by [FBEC] to MPA), plus $7,593.56 (the amount of costs penalties and interest paid).” In response, MPA, through counsel, notified FBEC that it had no knowledge of the tax folio split; the real property in question was sold to a third party; MPA is not “responsible for resolving any disputes, past or present, under the Shared Facilities Agreement, pursuant to an agreement as part of the transaction”; and any correspondence should be directed to Fallstaff, as the new owner. After Fallstaff refused to reimburse FBEC, FBEC filed suit against MPA. MPA filed its answer and affirmative defenses, and a third-party complaint against Fallstaff, seeking indemnification. The third-party complaint was dismissed without prejudice. After discovery, the parties acknowledged that MPA did not have knowledge of the tax folio split when MPA invoiced FBEC for the 2002-2004 taxes. MPA and FBEC then settled for $17,000, a fraction of what FBEC initially demanded from MPA, stipulating that MPA had not engaged in wrongful conduct “with regards to the billing, collection and payment of property taxes.”

Following the settlement, MPA filed an amended complaint against Fallstaff and Courvoisier, asserting a claim for contractual indemnification, seeking the $17,000 MPA paid to FBEC, plus attorney’s fees and costs incurred in that action (Count I). In the alternative, MPA alleged unjust enrichment against Courvoisier based on the $110,000 credit Courvoisier received at closing (Count II).

Fallstaff and Courvoisier moved for summary judgment as to the claim for contractual indemnification. At the hearing, the trial court agreed with the defendants’ assertion that, although MPA’s initial conduct in billing FBEC for the 2002-2004 property taxes was an innocent mistake, once MPA confirmed the tax folio split, MPA should have returned the wrongfully collected money to FBEC. Instead, MPA forced FBEC to pursue an action against MPA to recoup the wrongfully collected money, and as a result of this wrongful conduct, MPA was not entitled to indemnity. Further, as to Courvoi-sier, the trial court ruled that Courvoisier did not agree to indemnify MPA. Based on these rulings, the trial court granted summary judgment in favor of Fallstaff and Courvoisier as to MPA’s claim for contractual indemnification.

Courvoisier then moved for summary judgment as to MPA’s alternative claim for unjust enrichment. At the hearing, the trial court ruled that Courvoisier was not unjustly enriched, and, therefore, granted summary judgment in favor of Courvoisier.

The trial court entered final judgment in favor of the defendants. MPA’s appeal followed.

MPA contends the trial court erred in granting summary judgment in favor of Fallstaff and Courvoisier as to MPA’s claim for contractual indemnification. We agree.

As to Courvoisier, we disagree with the trial court’s ruling that the indemnification provision in the letter agreement is not binding on Courvoisier. The letter agreement specifically references the sales agreement between MPA and Fallstaff, and the letter agreement sets forth relevant matters pertaining to the closing of the sales agreement. As such, these agreements are part and parcel of the same transaction. See Huntington on the Green Condo. v. Lemon Tree I-Condo., 874 So.2d 1, 4 (Fla. 5th DCA 2004) (“[Wjhere two contracts are part and parcel of the same general transaction, they may under some circumstances be interpreted together.”); Computer Sales Int’l, Inc. v. State, Dep’t of Revenue, 656 So.2d 1382, 1384 (Fla. 1st DCA 1995) (“Instruments entered into on different days but containing the same subject matter may, under appropriate circumstances, be regarded as one contract and interpreted together.”).

Pursuant to the letter agreement, MPA and Fallstaff agreed that “at Closing under the Agreement,” Fallstaff would receive a $110,000 credit from MPA “in full payment” of “all of [MPA’s] obligations with respect” to certain disputes under the SFA, and in consideration of the $110,000 credit from MPA, Fallstaff agreed to indemnify MPA for “liability under or in connection with the SFA.” Further, the assignment from Fallstaff to its affiliate, Courvoisier, provides that Courvoisier “shall perform all obligations, duties and liabilities of [Fallstaff] under the Agreement.”

At closing, Courvoisier received from MPA the $110,000 credit set forth in the indemnification provision of the letter agreement, and the letter agreement was included in the closing binder. Under these circumstances, we conclude that, as a matter of law, Courvoisier is bound by the letter agreement, including the provision to indemnify MPA for “liability under or in connection with the SFA.” Therefore, we reverse the order granting summary judgment in favor of Courvoisier as to MPA’s claim for contractual indemnification.

Next, as to Fallstaff, we reject the trial court’s ruling that MPA was not entitled to indemnification based on MPA’s wrongful conduct — MPA’s failure to return the money to FBEC once MPA confirmed the tax folio split, and MPA’s defense of the action filed by FBEC. First, there was no wrongful conduct on MPA’s part by failing to tender the amounts set forth in FBEC’s demand letter. FBEC demanded significantly more from MPA than FBEC actually paid to MPA for the taxes billed under Folio No. 11 for tax years 2002-2004. Further, MPA’s response to the demand letter clearly indicates that MPA was unaware of the tax folio split and, more importantly, the real property in question was sold to a third party. Pursuant to an agreement that was a part of that transaction, MPA believed it was no longer responsible for “resolving any disputes, past or present, under the Shared Facilities Agreement.” Second, there was no wrongful conduct on MPA’s part for defending the action FBEC filed against MPA. In defending the action, MPA set forth valid affirmative defenses, including the indemnification provision set forth in the letter agreement. Therefore, we reverse the order granting Fallstaff s motion for summary judgment as to MPA’s claim for contractual indemnification.

Based on this Court’s reversal of the summary judgment entered in favor of Fallstaff and Courvoisier on MPA’s claim for contractual indemnification, we do not address MPA’s alternative contention that the trial court erred in granting summary judgment in favor of Courvoisier on MPA’s alternative claim for unjust enrichment. Accordingly, we reverse both the order granting summary judgment in favor of Courvoisier and Fallstaff as to MPA’s claim for contractual indemnification and the final judgment entered in favor of Courvoisier and Fallstaff. We remand for further proceedings, including a determination of whether the claim FBEC and MPA settled was covered by the indemnification provision in the letter agreement.

Reversed and remanded.

      . In 2005, Courvoisier paid FBEC the amounts MPA invoiced, but did not collect, for the 2003 and 2004 property taxes in Folio No. 11.


text:
    Kasan GARSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2216.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.

      Kasan Garson, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Lenoir v. State, 804 So.2d 507 (Fla. 3d DCA 2001).

MAY, C.J., DAMOORGIAN and LEVINE, JJ., concur.


text:
    Brad Cardell BOSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5268.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Jacob M. Noble, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences on multiple charges including first degree murder with a firearm, burglary, and animal cruelty. Appellant raises only two issues on appeal, both dealing with challenges to jurors. Neither issue was properly preserved for appeal. As to the Neil/Slappy challenge to juror 16, appellant failed to renew his objection prior to the jury being sworn. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993) (acceptance of a jury panel constitutes a waiver of a previous objection); Melbourne v. State, 679 So.2d 759, 765 (Fla.1996) (same, citing Joiner). Regardless, we conclude that the requirements of Melbourne were met and the court did not err in denying appellant’s challenge to the state’s striking of that juror. As to the objection to juror 6, appellant did not request to exercise a peremptory challenge as to that juror. Thus, the argument made on appeal is not the same as that made to the trial court. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”). If we construe the objection to juror 6 as a for-cause challenge, we conclude that the trial court did not abuse its discretion in denying it. See Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002), rev. denied, 848 So.2d 1153 (Fla.2003).

WARNER, DAMOORGIAN and CONNER, JJ., concur.

      . State v. Neil, 457 So.2d 481 (Fla.1984); State v. Slappy, 522 So.2d 18 (Fla.1988).


text:
    Kenneth Harold McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1338.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.

      Kenneth Harold McCoy, East Palatka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla.2007). As to appellant’s request on appeal to assert new claims, Spera v. State, 971 So.2d 754, 761 (Fla.2007), permits the amendment of claims where the trial court finds them legally insufficient. Here, the court did not find appellant’s one claim legally insufficient. Spera does not apply to permit the assertion of new, and now untimely, claims. Fla. R.Crim. P. 3.850(b).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Alfred Tyrone RIDDLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1369.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Broughton v. State, 790 So.2d 1118 (Fla. 2d DCA 2001).

MAY, C.J., TAYLOR and CIKLIN, JJ., concur.


text:
    Billy Earl BANKS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1619.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Billy Earl Banks, Sr., Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned that the filing of any future conviction and/or sentencing challenges in this case which attempt to litigate claims previously raised and rejected may result in issuance of an order to show cause and prohibitions under State v. Spencer, 751 So.2d 47 (Fla.1999), as well as recommendations of disciplinary sanctions pursuant to section 944.279, Florida Statutes (2012).

WARNER, HAZOURI and CONNER, JJ., concur.


text:
    Eric L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2936.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Eric Johnson, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

STEVENSON, DAMOORGIAN and GERBER, JJ., concur.


text:
    Lisa S. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2941.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Lisa S. Smith, Hallandale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

WARNER, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Ricardo LANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3125.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.

      Ricardo Lane, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Rony MARC, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3251.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Rony Marc, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ibarra v. State, 45 So.3d 911 (Fla. 4th DCA 2010), rev. dismissed, 52 So.3d 662 (Fla.2010).

POLEN, DAMOORGIAN and CIKLIN, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Jane WOODEN, Appellee.
    No. 3D11-972.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, Howard K. Blumberg, Assistant Public Defender, and Kyle B. Teal and Danielle J. Graziano, Certified Legal Interns, for ap-pellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The State appeals from an order dismissing an information for the felony charge of unlawful driving as a habitual offender under section 322.34(5), Florida Statutes (2011). That offense requires, and the information alleged, that the defendant had three convictions of driving with a suspended driver’s license within a five-year period. Two of the underlying suspensions occurred because she twice failed to pay assessed traffic fines; the third, because she failed to appear in court on a traffic summons after she had herself requested a hearing for the offenses of driving with an expired registration and failure to provide proof of insurance. The basis of the ruling below was the view that the suspension for the third “failure to appear” charge did not qualify as one of the required three suspensions because it was contained within the provision which reduced the charge to a misdemeanor, § 322.34(2)(b), Fla. Stat. (2011), when the suspension was based on the failure to comply with a civil penalty required in section 318.15, Florida Statutes (2011). See § 322.34(10)(a)3., Fla. Stat. (2011). We disagree and reverse.

• ■ The issue is whether the term “[flailing to comply with a civil penalty required in s. 318.15,” § 822.34(10)(a)3., includes by reference all the provisions of section 318.15, including the failure to appear at a scheduled hearing as involved in this case. Contrary to the ruling below, we think the answer is self-evidently no. Section 322.34(10)(a)3. simply does not say “those offenses contained in section 318.15.” It says only failure to comply with a civil penalty required in that section. Thus, it refers only to the civil penalty requirement and not to any of the others. See City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003) (“[W]hen a law expressly describes a particular situation where something should apply [here, noncompliance with a civil penalty], an inference must be drawn that what is not included by specific reference [here, failure to appear] was intended to be omitted or excluded.”); see also State v. Hearns, 961 So.2d 211, 219 (Fla.2007) (“Under the canon of statutory construction expressio uni-us est exclusio alterius, the mention of one thing implies the exclusion of another.”).

It seems to us that the legislature, as it was clearly entitled to do, drew a distinction, which is decisive in this case, between a failure to comply with a civil penalty, which occurs when such a penalty has been validly assessed after trial or without contest, and the deliberate refusal to appear at a hearing, with its consequent disruption of the court’s process and which, it must be added, would actually preclude the valid assessment of a penalty because there would have been no trial in the first place.

Accordingly, we reverse the order below with instructions to reinstate the information.

Reversed and remanded.

      . Section 322.34(5) provides that ”[a]ny person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084."

      . Section 322.264, Florida Statutes (2011), defines a "habitual traffic offender" as:
      [A]ny person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period:
      (1) Three or more convictions of any one or more of the following offenses arising out of separate acts:
      (a) Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;
      (b) Any violation of s. 316.193, former s. 316.1931, or formers. 860.01;
      (c) Any felony in the commission of which a motor vehicle is used;
      (d) Driving a motor vehicle while his or her license is suspended or revoked;
      (e) Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or
      (f) Driving a commercial motor vehicle while his or her privilege is disqualified.
      (2) Fifteen convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27, including those offenses in subsection (1).

      . Section 322.34(2) provides:
      Any person whose driver’s license or driving privilege has been canceled, suspended or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked upon:
      (a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
      (b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 322.34(10)(a) provides:
      Notwithstanding any other provision of this section, if a person does not have a prior forcible felony conviction as defined in s. 776.08, the penalties provided in paragraph (b) [see note 2] apply if a person’s driver's license or driving privilege is canceled, suspended or revoked for:

        1. Failing to pay child support as provided in s. 322.245 or s. 61.13016;
      2. Failing to pay any other financial obligation as provided in s. 322.245 other than those specified in s. 322.245(1);
      3. Failing to comply with a civil penalty required in s. 318.15;

        4. Failing to maintain vehicular financial responsibility as required by chapter 324;
      5. Failing to comply with attendance or other requirements for minors as set forth ins. 322.091; or
      6. Having been designated a habitual traffic offender under s. 322.264(l)(d) as a result of suspensions of his or her driver’s license or driver privilege for any underlying violation listed in subparagraphs 1. — 5.
      (Emphasis added).
      * Section 318.15, in turn, provides:
      (1)(a) If a person fails to comply with the civil penalties provided in s. 318.18 within the time period specified in s. 318.14(4), fails to enter into or comply with the terms of a penalty payment plan with the clerk of the court in accordance with ss. 318.14 and 28.246, fails to attend driver improvement school, or fails to appear at a scheduled hearing, the clerk of the court shall notify the Division of Driver’s Licenses of the Department of Highway Safety and Motor Vehicles of such failure within 10 days after such failure. Upon receipt of such notice, the department shall immediately issue an order suspending the driver’s license and privilege to drive such person effective 20 days after the date the order of suspension is mailed in accordance with s. 322.251(1), (2), and (6).
      (Emphasis added).


text:
    J.B., Petitioner, v. M.M. and H.M., Respondents.
    No. 4D11-4195.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, and Moría Rozenson of Pickett, Marshall & Rozenson, P.A., West Palm Beach, for petitioner.
    Brett P. Rogers of the Law Offices of Brett P. Rogers, Fort Lauderdale, for respondents.
   PER CURIAM.

J.B., the mother, petitions this Court for a writ of certiorari following an order by the circuit court compelling her to submit to a psychological evaluation in a dependency proceeding concerning J.B.’s daughter. The respondents, M.M. and H.M., are the child’s paternal grandparents and filed a petition for dependency following the death of their son, who was the- child’s father. We find that the court departed from the essential requirements of law where good cause was not shown for ordering the evaluation and grant the petition to the extent that it seeks to quash the evaluation.

Certiorari jurisdiction lies to review an order compelling a mental examination. See In re G.D., 870 So.2d 235, 237 (Fla. 2d DCA 2004). Florida Rule of Juvenile Procedure 8.250(b) provides that:

At any time after the filing of a shelter, dependency, or termination of parental rights petition, or after an adjudication of dependency or a finding of dependency when adjudication is withheld, when the mental or physical condition, including the blood group, of a parent, legal custodian, or other person who has custody or is requesting custody of a child is in controversy, any party may request the court to order the person to submit to a physical or mental examination or a substance abuse evaluation or assessment by a qualified professional. The order may be made only on good cause shown and after notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

See also § 39.407, Fla. Stat. (2011). The rule articulates two requirements for receiving a mental health evaluation: (1) the mental health of the parent must be in controversy and (2) good cause must be shown.

It is uncontested that the mother suffers from schizoaffective disorder. While we agree that the mother’s mental health is sufficiently in controversy, see, e.g., S.N. v. State Dep’t of Health & Rehabilitative Servs., 529 So.2d 1156, 1159 (Fla. 1st DCA 1988), we do not find that there was “good cause” to support an evaluation. The Guardian ad Litem program attorney assigned to this case takes no position.

While we acknowledge that “past conduct” may be taken into consideration when determining whether a parent has been able to meet the needs of the child, the information relied upon regarding the mother’s alleged inability to parent her daughter is over eight years old. Id. The child is now ten. Mental illness, alone, is insufficient to demonstrate the good cause required to order a psychological evaluation. See In re T.D., 537 So.2d 173,175-76 (Fla. 1st DCA 1989) (finding, in part, that where there were no findings of abuse, abandonment or neglect, significant mental deficiencies by the mother were not enough to predicate a finding of prospective neglect in parental rights termination). Where there is scant, if any, evidence that the child is at risk of abuse, abandonment or neglect, beyond the mother’s mental illness, we find that the court departed from the law in ordering her evaluation.

We grant the petition insofar as it seeks to quash the psychological evaluation of the mother and remand for proceedings consistent with this opinion.

Petition Granted.

MAY, C.J., STEVENSON and CONNER, JJ., concur.

      . Subsection (15) states: “At any time after the filing of a shelter petition or petition for dependency, when the mental or physical condition, including the blood group, of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child is in controversy, the court may order the person to submit to a physical or mental examination by a qualified professional. The order may be made only upon good cause shown and pursuant to notice and procedures as set forth by the Florida Rules of Juvenile Procedure." § 39.407(15).


author: STEVENSON, J.

text:
    Nolan M. WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2054.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Aug. 13, 2012.

      Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant appeals his conviction and sentence for sexual battery on a person less than twelve years of age. Because the trial court erred in excluding a critical prior inconsistent statement of the victim, we reverse.

The salient testimony at trial can be briefly summarized. M.O., the victim in this case, is the defendant’s granddaughter and was ten years old at the time of trial. The victim testified at trial that one night when her mother (“Mother”) was away, she was sleeping in her parents’ room when defendant grabbed her and put her on the couch. Defendant touched her in her “private,” her “butt” and back, with his finger. M.O. further testified that defendant took her pajamas down to her knees, touched her with his penis, penetrated and touched her with his tongue.- On the night at issue, Mother returned from work and slowly walked into the living room where she saw M.O.’s shadow jump off the couch. M.O.’s clothes were halfway down and she began pulling them up. Mother told the victim to go upstairs and approached defendant, who was lying on the couch with a pillow or cushion over his private parts. Defendant’s eyes were closed and Mother believed he was pretending to be asleep. Mother asked defendant what he was doing in the living room with M.O. and defendant stated “What are you talking about? I’m sleeping.” Mother took M.O. and M.O.’s younger brother back to work with her.

Defendant testified that M.O. was sleeping on his chest when Mother came home. M.O. jumped off his chest when she heard the door open. Defendant denied molesting M.O. Defendant explained that he admitted to touching M.O. during a controlled call by detectives because he was trying to “appease” Mother and he feared Mother and her husband. Defendant believed that Mother’s husband would try to kill him. Further, he was fearful that Mother would go public with the false allegations.

Prior to trial, and during an interview with investigating officers, the victim made the statement that “Grandpa didn’t do nothing.” The defendant’s defense was that M.O.’s mother instructed her to say that the defendant molested her when, in fact, he had not done so. During the cross-examination of M.O., the defendant sought to introduce the statement that “Grandpa didn’t do nothing” as a prior inconsistent statement. The defense proffered the following:

[Trial court]: Go ahead, proffer it.
[Defense counsel]: “My mom says you can’t go sleep there because grandpa is going to touch your butt”, and that was an interview_ “Were you ever left alone by yourself?” And her answer: “Mom takes me to the Palm Beach Post.” And then the — in the interview said, “Okay and we was in the building, we were just walking and we finished. Grandpa didn’t do nothing.”

The trial court excluded the statement as hearsay. We conclude that the trial court erred.

“Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.” § 90.608(1), Fla. Stat. (2008). “The inconsistent statement is not hearsay, because it is not offered to prove its truth, only to show the inconsistency for impeachment purposes.” Marshall v. State, 68 So.3d 374, 375 (Fla. 5th DCA 2011). The prior statement must directly contradict, or be materially different from, the testimony offered at trial. See Pearce v. State, 880 So.2d 561, 569 (Fla.2004). Given the limited proffer, it is not completely clear whether M.O. meant the statement “Grandpa didn’t do nothing” to refer to the specific occasion in question, or in reference to some other time. Nevertheless, in the context of a criminal investigation, M.O.’s statement that “Grandpa didn’t do nothing” was, on its face, inconsistent with the extensive details of the molestation to which she testified at trial, and the defendant should have been permitted to impeach M.O. with it. The State’s case against the defendant hinged primarily on the victim’s credibility and the prior statement was central to the defendant’s defense at trial. Thus, the erroneous exclusion of this statement was not harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (harmless error test places burden on State to prove beyond a reasonable doubt “that there is no reasonable possibility that the error contributed to the conviction”).

Reversed.

TAYLOR and CIKLIN, JJ., concur.


text:
    Scott HARTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4010.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.

      Scott Hartman, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ON MOTION FOR REHEARING

PER CURIAM.

Having previously granted Hartman’s motion for rehearing, we withdrew our earlier opinion and now substitute the following opinion in its place.

Hartman appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. He alleges his consecutive habitual felony offender (“HFO”) sentences, arising from the same criminal episode, are illegal.

Hartman was charged with six counts of burglary of a structure, twenty-four counts of dealing in stolen property, nine counts of grand theft, one count of felony petit theft, one count of possession of burglary tools, and one count of possession of a motor vehicle with a removed or altered vehicle identification number (“VIN”). Prior to trial, several counts were dismissed and merged on double jeopardy grounds. Hartman pled no contest to five counts of grand theft, one count of felony petit theft, one count of dealing in stolen property, and one count of possession of a motor vehicle with a removed or altered VIN. He went to trial on the remaining counts and a motion for judgment of acquittal was entered on some counts. The jury found Hartman guilty as charged on all the remaining counts. Hartman was ultimately sentenced on twenty-nine counts and stipulated to his HFO qualification.

The sentences at issue in the instant motion are as follows: Count 1, burglary of a structure, for which he was sentenced to five years’ incarceration in the Department of Corrections (“DOC”); Count 3, dealing in stolen property, for which he was sentenced to fifteen years’ incarceration in the DOC, consecutive to Count 1; Count 4, dealing in stolen property, for which he was sentenced to fifteen years’ incarceration in the DOC, consecutive to Counts 1 and 3; and Count 6, dealing in stolen property, for which he was sentenced to fifteen years’ probation, consecutive to the sentences previously announced.

Enhanced HFO sentences cannot be imposed consecutively if the offenses were part of the same criminal episode. Hale v. State, 630 So.2d 521, 525 (Fla.1993). Hale claims typically should be raised pursuant to Florida Rule of Criminal Procedure 3.850, because “a determination of whether the offenses for which the defendant has been sentenced arose out of the same criminal episode” requires an evidentiary hearing. Taylor v. State, 969 So.2d 489, 490 (Fla. 5th DCA 2007). However, when it is clear from the face of the record, the issue may be decided in a rule 3.800(a) motion. Id.

Hartman’s motion is insufficient because it does not demonstrate where on the face of the record the court can determine the offenses occurred in the same criminal episode. To prove that these counts arose in the same criminal episode, Hartman points to the State’s opposition to his motion to sever. He refers to the State’s argument that the offenses were part of one scheme or episode, and he believes that the failure to sever the offenses proves the offenses occurred in the same criminal episode.

The standard for trying offenses together, and the test for determining whether the offenses occurred in the same criminal episode, are different.

For joinder to be appropriate, the separate crimes must be linked in some significant way. “This can include the fact that they occurred during a ‘spree’ ... or the fact that one crime is causally related to the other.” A trial court must find that a meaningful relationship exists between the charges of separate crimes before allowing them to be tried together.

Williams v. State, 40 So.3d 89, 92 (Fla. 4th DCA 2010) (citations omitted). When determining whether the offenses arose from the same criminal episode, the court must consider “1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Teague v. State, 26 So.3d 616, 618 (Fla. 1st DCA 2009). Offenses may be causally related to each other to allow the offenses to be tried together, but may not have occurred in the same criminal episode.

Hartman failed to establish that the face of the record establishes his right to relief. Accordingly, the summary denial of Hartman’s rule 3.800(a) motion is affirmed. Hartman may file a successive rule 3.800(a) motion if he is able to identify specific portions of the record that support his Hale claim. However, if the Hale issue is not apparent from the face of the record, his relief is pursuant to a timely filed rule 3.850 motion.

AFFIRMED.

ORFINGER, C.J., COHEN and JACOBUS, JJ., concur.


text:
    Maldonado IVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2159.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Maldonado Ivey, Raiford, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying motion to correct illegal sentence in Case No. 2012-CF-001323, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Maurice BRADLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2161.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Maurice Bradley, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying petitioner’s motion for post-conviction relief in case no. 48-2005-CF-14781-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

GRANT PETITION.

ORFINGER, C.J., EVANDER and JACOBUS, JJ., concur.


text:
    Darius WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2272.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Darius Walker, DeFuniak Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Darius Walker seeks review of the trial court’s denial of his motion seeking additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because the record before us is so scant that determining the merits of Walker’s claim is not possible. We do so, however, without prejudice to Walker raising the issue in a timely, legally sufficient motion filed under Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

ORFINGER, C.J., GRIFFIN and TORPY, JJ., concur.