author: EMAS, J.

text:
    John Timothy GRATZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3004.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA and EMAS, JJ.
   EMAS, J.

John Timothy Gratz (“Gratz”) appeals from an order adjudging him in indirect criminal contempt and sentencing him to ninety days in jail. We reverse the contempt order and vacate the sentence because, under the circumstances presented, the trial court abused its discretion in denying a requested continuance to permit Gratz and his counsel to properly prepare to defend the allegations in the show cause order.

This case arose out of post-judgment proceedings related to a dissolution of marriage between Loretta Diane Gratz (“Loretta”) and Gratz, which was dissolved by a final judgment in 2002. Pursuant to this judgment, Gratz was obligated to pay child support in the amount of $572.81 per month. At the time of the judgment, Gratz was already in arrears on his child support obligation.

In 2007, after Gratz failed to pay child support, Loretta moved to establish the exact amount of arrearage and to establish an arrearage repayment. The trial court determined that child support arrears at that point exceeded $26,000, and ordered Gratz to repay the arrearage at the rate of $114.56 per month.

In 2010, Loretta filed a Verified Motion for Order to Show Cause. In this motion, Loretta alleged that Gratz still owed past due child support totaling more than $24,000. Loretta further alleged that Gratz had the ability to pay child support, averring that Gratz, by his own admission under oath, had received a $10,000 check from GEICO insurance company in conjunction with the settlement of an unrelated personal injury claim, and used that money to pay for legal services rather than his child support obligations.

On or about June 15, 2010, the court issued an Order to Show Cause directing Gratz to appear before the court on August 12, 2010 to be arraigned, and at that time show cause why he should not be held in indirect criminal contempt for his “willful failure” to comply with the court’s prior orders. On July 27, 2010, the court entered an order appointing the public defender’s office to represent Gratz at the August 12 contempt hearing. However, and significant to our disposition of this appeal, appointed counsel did not become aware of the appointment, receive a copy of the order of appointment, or first speak with Gratz, until August 10, 2010, two days before the scheduled contempt hearing.

The parties and counsel appeared in court on Thursday, August 12, 2010. At that time, defense counsel requested a continuance, advising the court that he was not ready, and explaining that he had only become aware of his appointment (and obtained a copy of the show cause order) on August 10. The court granted the requested continuance, but in doing so offered defense counsel only three possible dates for the rescheduled hearing: August 16, 17 or 20. Given these limited choices and defense counsel’s trial schedule, the case was set for a final contempt hearing on Monday, August 16, only two business days following the August 12th hearing.

On August 16, defense counsel initially announced he was “ready” for the hearing, but immediately thereafter moved for a continuance, contending, inter alia, that Gratz was being denied a meaningful right to be heard because of the mere six days between service of the show cause order upon defense counsel and the contempt hearing. Defense counsel reminded the court that counsel had only become aware of the case, and his appointment, on August 10, and advised the court that the four-day continuance (from August 12 until August 16) was insufficient time to prepare. Defense counsel told the court that he had witnesses who would testify at the contempt hearing but that he did not have sufficient time to subpoena those witnesses to appear at the August 16th hearing.

The court denied the motion to continue and proceeded with the contempt hearing. The trial court had previously appointed Ms. Maxwell, an attorney with the Florida Department of Revenue, to prosecute the contempt charge. Ms. Maxwell called two witnesses to testify at the hearing. Following their testimony, defense counsel renewed his objection to the hearing because he was unable to subpoena witnesses on behalf of his client.

Thereafter, Gratz took the stand and testified on his own behalf. In his testimony, Gratz conceded that he received a check in the amount of $10,000 in settlement for an accident in which he dislocated his shoulder. He explained that the money was placed into the trust account of his attorney, Mr. Kaufman, who represented Gratz in the personal injury case as well as in the post-judgment relocation hearing. Mr. Kaufman received $3500 for legal services rendered in the personal injury matter, and the balance was applied to Mr. Kaufman’s legal fees and an expert witness’ fees and costs in connection with contesting the post-judgment motion for relocation. Gratz testified that Mr. Kaufman was aware of the child support ar-rearage and the outstanding orders to pay, and that Mr. Kaufman had not advised Gratz of any problem in using the remaining proceeds ($6500) to pay legal fees and expert witness fees related to the relocation proceeding. Gratz testified that he did not willfully disobey the court’s orders by using the settlement proceeds to pay his attorney and the expert witness.

At the conclusion of the hearing, the trial court found Gratz in willful contempt of court, and at a subsequent hearing the court imposed a sentence of ninety days in jail.

Florida Rule of Criminal Procedure 3.840(d) governs arraignment and hearings when a defendant is faced with indirect criminal contempt:

(d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant’s request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without the assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge.

(Emphasis added).

This Court has held that “indirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, and failure to strictly follow rule 3.840 constitutes fundamental, reversible error.” Berlow v. Berlow, 21 So.3d 81, 84 (Fla. 3d DCA 2009) (internal citations omitted). See also Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185, 187 (1932) (“Due process of law in the prosecution of contempt, except that committed in open court, requires that the accused should be advised of the charges against him and have a reasonable opportunity to meet them by way of defense or explanation. This includes the right to assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense, and in mitigation of the penalty to be imposed.”).

We conclude that, under the circumstances of this case, Gratz established that six days (and only four business days) was insufficient time for his counsel to prepare for the final contempt hearing. The issue in this case was not the act (which Gratz acknowledged), but whether the act was committed in willful disobedience of the court’s orders (which Gratz denied). Willfulness is an essential element of criminal contempt, Wells v. State, 654 So.2d 146 (Fla. 3d DCA 1995), and, like any other element, must be established beyond a reasonable doubt. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Parisi v. Broward Cnty., 769 So.2d 359 (Fla.2000). Defense counsel sought a continuance of the contempt hearing to subpoena witnesses who could have provided testimony on a central issue of the show cause order: whether Gratz’s conduct was in willful disobedience of the court’s orders. In denying the motion for continuance, the trial court abused its discretion.

Accordingly, we reverse the lower court’s order adjudging Gratz in indirect criminal contempt of court and vacate the sentence. We remand this cause for proceedings consistent with this opinion.

      . Gratz used the GEICO settlement check to pay for legal fees and expert witness costs incurred in connection with contesting Loretta's motion for relocation of their minor daughter. Gratz was represented in the personal injury matter and in the relocation proceeding by attorney Samuel Kaufman.

      . Defense counsel indicated he could not choose the latest of the three dates (August 20) because he was scheduled to begin a homicide trial the following day and needed time to complete his final trial preparation for that case.

      .The State contends that defense counsel’s statement of readiness, together with their agreement to the "selection” of the August 16 hearing date, constitute a waiver of any right to raise on appeal the court’s denial of a motion for continuance. Given the limited choices of trial dates afforded the defense, and defense counsel’s immediate clarification of his readiness (and articulated reasons why a continuance was necessary), we reject the State's waiver argument.

      . Gratz also contends that he was entitled to discovery, a witness list from the "prosecution,” and an opportunity to take depositions, consistent with the provisions of Florida Rule of Criminal Procedure 3.220. Because we base our decision on the trial court’s failure to allow the defense a reasonable time to exercise his right to compulsory process for the attendance of witnesses, we need not reach the issue of whether a contemnor in an indirect criminal contempt proceeding is entitled, as a matter of right, to the procedural rights provided by Rule 3.220. We note, however, that our caselaw holds that "criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in a more typical criminal proceeding.” De Castro v. De Castro, 957 So.2d 1258, 1260 (Fla. 3d DCA 2007) (emphasis added); De Mauro v. State, 632 So.2d 727 (Fla. 3d DCA 1994). Moreover, Florida Rule of Criminal Procedure 3.840(d), in its enumeration of rights to be afforded a defendant in an indirect criminal contempt, provides no right to participate in discovery, receive a witness list, or take depositions.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Jorge ACOSTA, Appellant, v. Olga Margarita Acosta RENTA, Appellee.
    No. 3D11-112.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.

      The McNeely Law Firm, and Rob McNeely, Tallahassee, for appellant.
    Koltun & Lazar, and Dennis A. Koltun, South Miami, and Jessica T. Laleh, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Jorge Acosta, the former husband, appeals from an order entered upon his verified petition to extinguish/modify his obligation to pay permanent periodic alimony to his former wife, Olga Margarita Acosta Renta, and on the former wife’s motion for contempt. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 2009, the former husband filed a verified petition seeking to reduce the amount of monthly permanent periodic alimony he is obligated to pay the former wife from $2800 to $0, retroactive to the date of filing. In support of his motion, he asserted that when the final judgment of dissolution of marriage was entered in January 2007, he was earning $110,000 per year. Since then, however, there had been a substantial, involuntary, and permanent change in his finances because he was laid off on January 1, 2009, and as a result, he is financially incapable of paying any alimony to the former wife.

While the former husband’s petition was pending, he did not make any alimony payments to the former wife. On June 1, 2009, the former wife filed a motion for contempt based on the former husband’s failure to pay his alimony obligations for the months of February 2009 through May 2009, asserting he had the ability to pay alimony during those months.

At the hearing on the former husband’s petition for modification and the former wife’s motion for contempt, which was conducted in February 2010, the parties introduced updated financial affidavits. These affidavits reflect the parties were basically in the same unfortunate financial position at the time of the hearing — their monthly net expenses exceeded their monthly net income by approximately $2000; their liabilities exceeded their assets; they did not have significant sums of cash; and they had relatively small retirement accounts.

The evidence also showed that in early 2009, the former husband received a $27,700 separation bonus and other earnings from the company that laid him off, totaling $34,472.27, but netted $17,003.11 after taxes and the repayment of a $12,000 advance. He used these funds to pay his expenses for January through March 2009, and he withdrew funds from his IRA to pay his expenses for April and May 2009. The former husband also grossed an additional $30,000 throughout 2009 doing odd jobs.

On June 3, 2010, the trial court entered an order addressing both the former husband’s petition for modification and the former wife’s motion for contempt. The trial court granted the former husband’s petition to modify, finding he met his burden of proof by establishing a substantial change in circumstances that was not contemplated at the time the final judgment of dissolution of marriage was entered, and was sufficient, material, permanent, and involuntary. The trial court reduced the former husband’s alimony obligation to $1 per month, which is to be adjusted when the former husband finds gainful employment. Further, the trial court ordered the former husband to “present proof each and every month as to the income that he has earned, as well as a record of all efforts to find employment.” Although the trial court failed to specifically state the effective date of the modification, based on the trial court’s ruling on the former wife’s motion for contempt, the modification was not retroactively applied to the date the former husband filed his petition, and instead, the modification became effective as of June 2009.

The trial court granted the former wife’s motion for contempt, finding the former husband willfully violated the final judgment of dissolution of marriage by failing to pay his alimony obligations for the months of February 2009 through May 2009, because he “had the financial ability to pay the Court Ordered permanent periodic alimony of $2,800.00, well into 2009, but made the conscious decision not to do so.” The trial court ordered the former husband to transfer $11,200 from his IRA to the former wife to satisfy the alimony arrearage.

Lastly, the trial court found the former wife was entitled to an award of reasonable attorney’s fees and costs, payable directly to her counsel in the amount of $8,810.03 from the former husband’s IRA, on the basis that counsel’s services were “due solely to the Former Husband’s willful failure to comply with the terms of the Final Judgment.” The former husband’s appeal followed.

II. ISSUES

The following issues raised by the former husband merit discussion: (1) whether the trial court abused its discretion in failing to retroactively apply the alimony modification to the date the former husband filed his petition for modification where the trial court found he satisfied his burden of proof; (2) whether the trial court erred by finding the former husband in contempt for failing to pay the court-ordered alimony for the first four months after he filed his petition for modification, based on finding that the former husband had the ability to pay; and (3) whether the trial court abused its discretion by ordering the former husband to pay the former wife’s attorney’s fees and costs. As the issues pertaining to the effective date of the modification and the finding of contempt are interrelated, we will address these issues together.

III. ANALYSIS

A. Effective date of modification and finding of contempt

In granting a modification of alimony, the trial court has the discretion to grant modification effective from the date the petition was filed or any date subsequent thereto, Ray v. Ray, 707 So.2d 358, 360 (Fla. 2d DCA 1998) (“A trial court has the discretion to modify alimony effective as of the date of the petition for modification or subsequent thereto .... ”), as long as the effective date is not subsequent to the date of the order, Keel v. Keel, 597 So.2d 433, 435 (Fla. 1st DCA 1992) (holding that the “portion of the order that sets the effective date of the reduced alimony payments subsequent to the date of the order is in error”). Although the general rule is that an order granting a modification of alimony should be made retroactive to the date the petition for modification was filed, it is within the trial court’s discretion to determine whether the modification should be retroactive to that date. See Thyrre v. Thyrre, 963 So.2d 859, 862 (Fla. 2d DCA 2007) (holding that as to the modification of alimony, “there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive”); DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994) (“Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted. However, it is within the trial court’s discretion to determine whether to make the modification retroactive.... ”); Bloom v. Bloom, 503 So.2d 932, 934 (Fla. 4th DCA 1987) (holding that while the general rule is that “an order granting modification is retroactive to the date the petition is filed, ... the circumstances of the case may dictate otherwise”). However, a trial court abuses its discretion by failing to grant the modification retroactive to the date the petition was filed if the “circumstances requiring modification existed at the time that the petition was filed.” Thyrre, 963 So.2d at 862.

In the instant case, the order before this Court reflects the trial court’s effort to tailor a solution for the parties’ unfortunate situation—the former husband’s loss of employment and the former ■wife’s continued need for spousal support. The trial court’s effort was further complicated because the hearing on the former husband’s petition for modification and the former wife’s motion for contempt occurred more than a year after the former husband filed his petition seeking modification. As one could expect, the former husband’s financial situation deteriorated as there was no steady stream of income. For example, in February 2009, the former husband had a significant portion of the $17,000 he netted from his ex-employer in January 2009, and he was able to use those funds to meet his financial obligations through March 2009. On the other hand, at the time of the hearing in February 2010, the former husband’s savings had decreased despite his attempts to reduce his living expenses, including moving out of his apartment and into his parents’ home. The record reflects that the value of his IRA significantly decreased from $42,000 in February 2009, to $26,000 in February 2010.

The trial court’s order, however, sheds no light as to the basis it relied on in failing to retroactively apply the alimony modification to the date the former husband filed his petition for modification, and instead, set the effective date of modification four months after the former husband filed his petition for modification. Specifically, in ordering the former husband to pay the pre-modification monthly alimony payments of $2800 for the months of February through May 2009, it appears the trial court made a determination that, although the former husband was entitled to a modification, he had the ability to make the previously ordered payments during those four months. The order, however, does not specify whether that determination was based on the former husband’s available funds during the four-month period or his income and available funds at the time of the February 2010 hearing.

Rather than addressing why the presumption of retroactivity was overcome for the months of February through May of 2009, although the former husband’s employment status was the same from January 2009 through the date of the hearing one year later, the trial court based its arrearage award of $11,200 on a determination of contempt. While we conclude the record supports a finding of contempt, in that the former husband did not request a temporary reduction or abatement of his support obligation, and instead made no payments after filing his petition for modification when he clearly had the ability to contribute some degree of support to his former wife, we do not find the record supports a finding that the former husband, who had a substantial reduction to his income, had the ability to pay the full $2800 payments during those four months.

Accordingly, we reverse the portion of the order requiring the former husband to pay $11,200 to the former wife in alimony arrearages, and remand for a determination as to the amount of alimony the former husband had the ability to pay during those four months. On remand, although it is clear the former wife had a continued need for spousal support during those four months, the trial court is reminded to take into account the former husband’s ability to also provide for himself.

B. Award of attorney’s fees to the former wife

The trial court’s order reflects the former husband was ordered to pay the former wife’s attorney’s fees because her counsel’s services were “occasioned solely” by the former husband’s willful violation of the final judgment of dissolution of marriage. Therefore, the attorney’s fees award was based on the former wife’s filing of her motion for contempt, not on the former husband’s filing of his well-taken petition to modify, or on the former wife’s needs and the former husband’s ability to pay.

As stated earlier, the former husband filed his petition for modification on February 12, 2009, and the former wife filed her motion for contempt on June 1, 2009. A review of the former wife’s counsel’s billing statement indicates that a significant portion of his services were completed prior to the time he drafted the former wife’s motion for contempt, and, therefore, could not have been “occasioned solely” due to the filing of the motion for contempt. Further, as to the former wife’s counsel’s services occasioned after the filing of the motion for contempt, the billing statement indicates he spent significant time on matters pertaining, to, or intertwined with, the former husband’s well-taken petition for modification. Therefore, we reverse the portion of the order directing the former husband to pay $8,810.03 to the former wife’s counsel, and remand for a determination as to the amount of attorney’s fees incurred solely for the prosecution of the former wife’s motion for contempt.

IV CONCLUSION

For the reasons stated above, we reverse the portion of the order under review requiring the former husband to pay alimony arrearages of $11,200 to the former wife, and remand for a determination as to the amount of alimony the former husband had the ability to pay during the months of February 2009 through May 2009, and for the entry of an order that states the basis for the ruling. We also reverse the portion of the order requiring the former husband to pay the former wife’s attorney’s fees and costs in the amount of $8,810.03, and remand for a determination as to the amount of attorney’s fees and costs incurred solely for the prosecution of the former wife’s motion for contempt. We affirm the remaining portions of the order under review.

Affirmed in part, reversed in part, and remanded with directions.

      . The financial affidavit the former husband filed with his petition for modification reflects mortgage/rent payment of $1425, plus utilities. However, the former husband made significant efforts to reduce his monthly expenses by moving in with friends and then his parents, thereby eliminating housing expenses.

      . The updated financial affidavits reflect the former husband had approximately $3000 in cash, while the former wife had $74.

      .The financial affidavit the former husband filed with his petition for modification reflects his IRA was valued at approximately $42,000, whereas his updated financial reflects a value of $26,000. On the other hand, the former wife’s financial affidavits executed on April 9, 2009 and August 6, 2009, do not reflect that she had a retirement plan. However, the former wife's updated affidavit executed on February 22, 2010, reflects a retirement plan valued at over $17,000.


text:
    The STATE of Florida, Appellant, v. Baud MUNTASER, Appellee.
    No. 3D11-2289.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Pamela Jo Bondi, Attorney General, and Douglas Glaid, Senior Assistant Attorney General, for appellant.
    Bernstein, Osberg-Braun, & de Moraes, and Regina B. de Moraes, Miami, for ap-pellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The State appeals the trial court’s order granting Daud Muntaser’s (“the defendant”) motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a), and vacating the judgment and sentence entered on October 16, 1995, following the defendant’s negotiated plea. Because the defendant accepted the terms of the plea offered and has enjoyed the benefits of the bargain, the trial court erred in granting the requested relief. See State v. Ortiz, 79 So.3d 177 (Fla. 3d DCA 2012). Accordingly, we reverse with instructions to reinstate the 1995 judgment.

Reversed and remanded with instructions to reinstate the judgment.


author: HAZOURI, J.

text:
    Rita McKEEGAN, Appellant, v. Margaret P. ERNST, as Beneficiary and Successor Trustee under the Anna Marie Cregg Revocable Trust; Laurie Ann Lineberry n/k/a Laurie Ann McCarthy, as Beneficiary under the Anna Marie Cregg Revocable Trust, Appellees.
    No. 4D11-3883.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      John J. Pankauski and Allison R. Sabo-cik of Pankauski Law Firm, P.L.L.C., West Palm Beach, for appellant.
    Michael H. Leeds and Natalie F. Guerra-Valdes of Blank Rome LLP, Boca Ra-ton, for appellees.
   HAZOURI, J.

Appellant, Rita McKeegan, appeals the trial court’s entry of an ex parte temporary injunction granted by the trial court. She argues that the temporary injunction is facially deficient because it fails to include sufficient factual findings to support each prong of the four-part injunction test. We agree.

“A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; (4) that a temporary injunction will serve the public interest.” Jouvence Ctr. for Advanced Health, LLC v. Jouvence Rejuvenation Ctrs., LLC, 14 So.3d 1097, 1099 (Fla. 4th DCA 2009) (citation omitted). “The party must also establish that it has a clear legal right to the relief sought. Finally, a trial court must make ‘clear, definite, and unequivocally sufficient factual findings’ supporting each of the required elements before entering an injunction.” Id. (citation omitted). “[A] trial court reversibly errs when an order fails to make specific findings for each of the elements.” Wade v. Brown, 928 So.2d 1260, 1262 (Fla. 4th DCA 2006) (citation omitted). Florida Rule of Civil Procedure 1.610(c) provides that “[e]very injunction shall specify the reasons for entry....” The order granting the temporary injunction herein does not make sufficient factual findings which support each of the elements. On remand, the trial court must make specific findings showing that appellees are entitled to relief.

Additionally, appellant argues and we agree that her due process right to notice and an opportunity to be heard were violated because appellees did not meet their heavy burden to establish that notice was not required.

The ex parte temporary injunction failed to meet the requirements of Florida Rule of Civil Procedure 1.610(a). Appellees’ attorney did not certify in writing any efforts made to give notice or any reasons why notice should not be required. Fla. R. Civ. P. 1.610(a)(1)(B). Fla. High Sch. Activities Ass’n., Inc. v. Benitez, 748 So.2d 358 (Fla. 5th DCA 1999) (attorney did not certify in writing any efforts made to give notice and notice by facsimile only one hour before injunction was granted was insufficient). Rule 1.610(a)(2) also requires the court to “give the reasons why the order was granted without notice if notice was not given,” which the trial court did not do. See Bookall v. Sunbelt Rentals, Inc., 995 So.2d 1116 (Fla. 4th DCA 2008) (order failing to explicitly state reasons why the order was granted without notice requires reversal even though mov-ant met its burden of establishing the elements for entry of an injunction). For these additional reasons we reverse the order granting the ex parte temporary injunction.

Reversed and Remanded for further proceedings consistent with this opinion.

POLEN and TAYLOR, JJ., concur.


author: VILLANTI, Judge.

text:
    In the Interest of G.S., a child. C.T., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D12-69.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.

      Ita M. Neymotin, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison J. McCabe, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Laura E. Lawson, Tavares, for Guardian ad Litem Program.
   VILLANTI, Judge.

C.T., the Mother, seeks review of the trial court’s order that adjudicated her sixteen-year-old son, G.S., dependent and that accepted the case plan prepared by the Department of Children and Family Services. The Mother does not challenge the adjudication of dependency, but she argues that the trial court’s acceptance of the Department’s case plan violates section 39.603(l)(f), Florida Statutes (2011), because the case plan does not meaningfully address the facts and circumstances that resulted in G.S.’s dependency. The Department and the GAL concede error, and we reverse.

This dependency case began when the Mother was arrested in Manatee County on a fugitive warrant out of California. Following the Mother’s arrest, the Department learned that there was no “parent, legal custodian, or responsible adult relative” available in Florida to care for G.S. As part of the Department’s shelter investigation, it learned that G.S. had been sheltered twice in the state of California. Both times, the Mother and G.B.S., the Father, had successfully completed case plans and the petitions were dismissed. At the conclusion of the second California proceeding in 2009, G.S. was placed into the sole custody of the Mother, with the Father to have unsupervised visitation “at the request of G.S.” In 2010, the Mother relocated with G.S. to Florida. G.S. had not seen the Father since that time.

Upon the Mother’s arrest, G.S. refused to return to California to live with the Father due to the Father’s alleged “history of physical and mental abuse” and “history of drug abuse.” Therefore, the Department sheltered G.S. and subsequently filed a dependency petition. On November 15, 2011, the Mother consented to G.S.’s dependency. However, she refused to sign the Department’s proposed case plan, and at the adjudicatory hearing she objected to three of the tasks in the case plan as being irrelevant to the dependency issues as they related to her. Specifically, she objected to the domestic violence evaluation and classes, the parenting class, and the prescription drug task. At the adjudicatory hearing, the Mother argued that she had completed all of these tasks as part of her prior California case plans, that California had dismissed the dependency petitions and returned G.S. to her sole custody, and that G.S. was not removed from her care in Florida due to any issue with domestic violence, parenting, or drug use.

Nevertheless, the trial court accepted the Department’s case plan over the Mother’s objections. In doing so, the court noted that it was ordering the Father to perform these tasks and that it felt that it could not order the Father to do them without ordering the Mother to do them as well. Further, the court repeatedly noted that it “did not know what happened in California,” so it could not say that these tasks were irrelevant to the issues in this case. The Mother now appeals the order of dependency to the extent that it accepted a case plan that included these tasks.

Section 39.6011 requires the Department to prepare a case plan for each child receiving services through the Department. Each case plan must include “[a] description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department.” § 39.6011(2)(a). Section 39.6012(l)(a) provides that

[t]he services described in the case plan must be designed to improve the conditions in the home and aid in maintaining the child in the home, facilitate the child’s safe return to the home, ensure proper care of the child, or facilitate the child’s permanent placement. The services offered must be the least intrusive possible into the life of the parent and child, must focus on clearly defined objectives, and must provide the most efficient path to quick reunification or permanent placement given the circumstances of the case and the child’s need for safe and proper care.

(Emphasis added.) Finally, section 39.603(l)(f) requires the court to consider, before accepting a case plan submitted by the Department, “[wjhether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency in involuntary placements.” (Emphasis added.) All of these statutes together require the Department to “develop case plans tailored to address the needs of the family.” C.D. v. Dep’t of Children & Families, 974 So.2d 495, 499 (Fla. 1st DCA 2008); see also D.M. v. Dep’t of Children & Families, 807 So.2d 90, 90 (Fla. 5th DCA 2002) (affirming the imposition of a case plan when a mother admitted that she could not care for her children and voluntarily placed them with their grandparents because the case plan was “designed to address [the] facts and circumstances” that resulted in the mother voluntarily giving up custody of her children). Generic case plans that do not consider the needs and circumstances of the individual family violate these statutory directives, as does a case plan for one parent that simply mirrors the case plan for the other without considering each parent’s individual circumstances.

Here, as the Department and the GAL concede, some of the tasks contained in the Mother’s case plan were not tailored to address the needs of this family. G.S. was adjudicated dependent solely because of the Mother’s arrest on an out-of-state warrant and her impending extradition to California. The charge resulting in the warrant was apparently a technical violation of the California child custody decree arising from the Mother’s failure to give the Father a required three-day notice before she moved to Florida. Because the case plan tasks requiring the Mother to participate in domestic violence counseling, prescription drug monitoring, and parenting classes were irrelevant to the issue that resulted in the dependency and were not meaningfully designed to address the issue that resulted in G.S.’s removal from the home, these tasks violated the statutory directives and were improperly included in the Department’s case plan for the Mother.

Accordingly, we affirm the adjudication of dependency as to G.S., but we reverse the trial court’s acceptance of the Department’s case plan for the Mother and remand for the Department to prepare an amended case plan containing tasks for the Mother that are designed to address only the facts and circumstances giving rise to G.S.’s adjudication of dependency as to her.

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

SILBERMAN, C.J., and NORTHCUTT, J., Concur.


author: PER CURIAM.

text:
    HIT PROMOTIONAL PRODUCTS INC. and Vigilant Insurance Company c/o Chubb Group of Ins. Corp., Appellants, v. Sakiba KRIVDIC, Appellee.
    No. 1D11-4097.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Mark A. Massey of Walton, Lantaff, Sehroeder & Carson, LLP, Tampa, for Appellants.
    Matthew E. Noyes of Perenich, Caul-field, Avril & Noyes, P.A., Clearwater, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC’s) award of a $2,000 advance to Claimant. We affirm the award of the advance because competent substantial evidence supports the JCC’s finding that Claimant has been unable to return to the same or equivalent employment, one of the three alternative statutory requisites for an award of an advance of $2,000 or less. See § 440.20(12)(c), Fla. Stat. (2010).

The E/C also argues that the JCC made a de facto finding that Claimant’s injuries were compensable. Because that issue was not before the JCC, we strike from the order the phrase “work-related” in paragraph eight. See City of Venice v. Van Dyke, 46 So.3d 115, 116 (Fla. 1st DCA 2010) (striking findings addressing com-pensability of claimant’s hypertension because there was no pending claim for same).

The order is AFFIRMED as modified.

WOLF, RAY, and MAKAR, JJ., concur.


author: PALMER, J.

text:
    Roger TAYLOR, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D11-967.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.

      Tommy K. Blackmon, Inverness, for Appellant.
    M. Elaine Howard, Tallahassee, for Ap-pellee.
   PALMER, J.

Roger Taylor timely appeals the order entered by the Unemployment Appeals Commission (UAC) ruling that he is ineligible to receive unemployment compensation benefits. Determining that the UAC improperly reweighed the evidence and substituted its judgment for that of the appeals referee, and that there was competent substantial evidence to support the appeals referee’s finding that Taylor was qualified to receive benefits, we reverse.

Taylor applied for and received unemployment compensation benefits after he was terminated from his employment as a salesperson for a retail furniture store, Discount Furniture Mart, Inc. (DFM). The claims adjudicator determined that Taylor was eligible for benefits because he was terminated for reasons other than misconduct connected with his work. DFM appealed the decision.

The appeals referee conducted a hearing. The only evidence presented was the testimony of Kenneth Smith, the owner of DFM. Smith testified that Taylor’s last day of work was June 21, 2010. On that day, Taylor gave Smith a doctor’s note that stated that Taylor would have to miss work due to an undisclosed health issue and that he would be able to return to work on June 28, 2010, if he were feeling better. Then, on July 2, 2010, Taylor gave Smith a second doctor’s note stating that he would not be able to resume work until further notice due to the undisclosed health issue. After not hearing anything more from Taylor, Smith terminated Taylor’s employment on July 25, 2010. Smith said that he terminated Taylor’s employment because his return to work was un-determinable and Smith needed to fill the position. The appeals referee issued findings of fact that were consistent with Smith’s testimony, but nevertheless ruled in favor of Taylor. The appeals referee reasoned that, since Taylor was discharged, the burden of proof was on DFM to prove misconduct by a preponderance of the evidence. See Lewis v. Unemployment App. Comm’n, 498 So.2d 608 (Fla. 5th DCA 1986). Furthermore, because Taylor was unable to inform DFM of when he would be able to return to work, his failure to do so did not constitute misconduct.

DFM appealed the appeals referee’s ruling to the UAC. Upon review, the UAC reversed, finding that the appeals referee’s ruling was not based on competent substantial evidence. We disagree.

Section 443.101(1), Florida Statutes (June-July 2010), provides:

443.101. Disqualification for benefits
An individual shall be disqualified for benefits:
(l)(a) For the week in which he or she has voluntarily left work without good cause attributable to his or her employing unit or in which the individual has been discharged by the employing unit for misconduct connected with his or her work....
1.... [T]he term “good cause” includes only that cause attributable to the employing unit or which consists of the individual’s illness or disability requiring separation from his or her work.

In Vanek v. Unemployment Appeals Commission, 842 So.2d 312, 313 (Fla. 5th DCA 2003), we held that the determination of “[wjhether an employee has left voluntarily and without good cause is a question of fact within the province of the appeals referee,” and that if there is “competent, substantial evidence to support the referee’s finding,” the UAC should affirm.

Here, the UAC found that there was no competent substantial evidence to show that Taylor’s health prevented him from working or that Taylor had requested a leave of absence. In addition, the UAC found that the evidence showed that Taylor either quit his job or had been discharged for abandoning his employment. The UAC ruled that DFM met its initial burden of proving that Taylor quit his job and that once DFM met that burden, it became Taylor’s burden to show that he left for good cause. Since Taylor did not participate in the hearing, the UAC found that he either quit his job or was discharged for abandoning his job, and thus was ineligible to receive benefits.

In Rodriguez v. Arby’s, Inc., 709 So.2d 632 (Fla. 2d DCA 1998), the claimant worked up until the due date of her pregnancy and then took a leave of absence, approved by the employer. The claimant’s supervisor received a letter from the claimant’s doctor that led him to believe that the claimant would return to work on November 18. When claimant did not return to work on that day, the employer terminated her employment for failing to return from her leave of absence and for failing to apprise the employer of the status of her leave of absence. The UAC concluded that the claimant was not entitled to receive unemployment benefits because she voluntarily left her employment without good cause. However, upon review, the Second District reversed, concluding that the claimant did not quit her job since the employer did not notify her that her leave of absence was unacceptable. The court reasoned:

When an employer fails to notify its employee that a leave of absence from employment is not acceptable and such failure leads the employee to believe the leave is excused, the employee’s absence cannot support a finding that the employee voluntarily left employment for purpose[s] of unemployment compensation benefits. See Meyers v. Quality Extruded Prods., Inc., 611 So.2d 54 (Fla. 3d DCA 1992). The employer has a duty to inform the employee of acceptable terms of leave; when the employer fails to inform the employee of the expected date of return, absence does not support a finding that the employee voluntarily left employment.

Id. at 633.

Similarly, here the evidence demonstrated that DFM did not inform Taylor of the acceptable terms of his leave or the expected date of his return. Therefore, Taylor did not voluntarily leave his employment. Accordingly, Taylor is entitled to receive unemployment compensation benefits. See also Wisely v. Fla. Unemployment App. Comm’n, 78 So.3d 118 (Fla. 1st DCA 2012).

REVERSED and REMANDED.

MONACO and SAWAYA, JJ., concur.


text:
    Antonio MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2802.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences on Count I (robbery with a firearm) and Count II (aggravated battery with a firearm), but reverse the conviction and sentence on Count III (aggravated battery with a baseball bat) based on double jeopardy grounds.

AFFIRMED IN PART; REVERSED IN PART.

GRIFFIN, SAWAYA and TORPY, JJ„ concur.


text:
    Brett C. CRANDALL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4578.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Brett C. Crandall, Sneads, 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. 2001-CF-000782, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, MONACO and JACOBUS, JJ., concur.


text:
    Robert D. ABRAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-856.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Robert D. Abrams, Milton, 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 the motion for post conviction relief in case no. 2008-CF-00963, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and COHEN, JJ., concur.


text:
    John Henry FREDERICK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-859.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Robert Wesley, Public Defender, and Kimberly A. Andre, Assistant Public Defender, Orlando, for Petitioner.
    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 judgment and sentence in case no. 2010-CF-012896-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, JACOBUS, LAWSON, JJ., concur.


author: LaROSE, Judge.

text:
    George JYUROVAT, individually and for the use and benefit of George A. Jyurovat Living Trust, Appellant, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, a domestic insurance corporation, Appellee.
    No. 2D11-712.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.

      Ty Tyler of Tyler & Hamilton, P.A., Jacksonville, for Appellant.
    Richard B. Doyle, Jr., of Loughren & Doyle, P.A., Fort Lauderdale, for Appel-lee.
   LaROSE, Judge.

George Jyurovat appeals a final summary judgment in favor of Universal Property and Casualty Insurance Company. The trial court concluded that he breached an insurance policy by terminating an appraisal umpire and by filing suit before completing the appraisal process. Thus, according to the trial court, Mr. Jyurovat’s actions rendered the insurance policy ineffective and relieved Universal of its contractual obligations. The trial court erred in entering the summary judgment. Genuine issues of material fact remained as to whether Mr. Jyurovat materially breached the policy. We reverse.

In January 2008, fire damaged Mr. Jyu-rovat’s house. He submitted a claim to Universal. Aplin Peer & Associates, Universal’s adjuster, estimated the cost of structural repair at $119,444.88. Universal obtained a second estimate from Hammer Construction for $144,866.62. Mr. Jyuro-vat obtained a $617,226 estimate to tear down and rebuild the structure; he secured an estimate of $311,760 to repair the damage without razing. In April 2008, the City of Naples advised Mr. Jyurovat that if structural repairs exceeded $121,046, the house would have to meet current flood elevation codes. The insurance policy provided for payment of ordinance or law expenses of up to fifty percent of the structure’s $400,000 insured value— $200,000. Universal concluded that the damage amount was $119,444.88. This amount did not include overhead and profit — two components of loss routinely included in estimates of structural damage severe enough to require repair by a contractor. See Goff v. State Farm Fla. Ins. Co., 999 So.2d 684, 689-90 (Fla. 2d DCA 2008). Mr. Jyurovat contended that adding ten percent for each would have raised the estimate to $143,333.86, above the City’s maximum repair amount, and might have resulted in a constructive total loss if the repaired structure would not meet flood elevation codes. Unable to reach a resolution with Universal, Mr. Jyurovat disagreed and demanded appraisal.

The insurance policy contains the following pertinent provisions:

Section I — Conditions
6. Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in a state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.
Each party will:
a. Pay its own appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
8. Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.

Mr. Jyurovat appointed Brad Bateman as his appraiser; Universal appointed Warren Aplin. Those two appraisers selected Robert Dawson as the umpire. The appraisers inspected the structure in September 2008, and Mr. Dawson promised a decision within three weeks. No decision issued. In early November 2008, Mr. Dawson promised a decision within the next week. Nothing came. Two weeks later, Mr. Dawson informed the appraisers that he was having difficulty “tracking down the information for the code issues.” Apparently, the City of Naples did not have an elevation certificate on file. On December 5, 2008, Mr. Dawson advised the appraisers that he would have a decision by December 8. Again, nothing. We can only assume that Mr. Dawson encountered problems getting flood elevation information from the City of Naples. Be that as it may, at the end of the day on December 8, Mr. Bateman, over Mr. Aplin’s objection, purported to unilaterally terminate Mr. Dawson as umpire. Mr. Bateman wrote to Mr. Aplin and advised him that Mr. Jyuro-vat would retain counsel and petition the court to appoint a new umpire.

On December 29, Mr. Jyurovat sued Universal. In Count I, he sought declaratory relief to determine whether the structure was a total loss, whether Universal could withhold overhead and profit, whether the dismissal of the umpire was proper, whether the loss payable under the ordinance or law provision was ripe for appraisal, and he sought damages. Count II sought the appointment of a new umpire.

As an affirmative defense, Universal asserted that Mr. Jyurovat obstructed and failed to complete the appraisal process by terminating the umpire without just cause. Universal also counterclaimed for breach of contract. Mr. Jyurovat denied terminating the umpire without just cause. He argued that he tried to comply with the appraisal provision but that, after he moved to replace the umpire, Universal raised coverage issues not subject to appraisal. Mr. Jyurovat filed an amended complaint seeking damages for breach of contract.

After some discovery, Universal moved for summary judgment on its claim that Mr. Jyurovat improperly terminated the umpire and filed the lawsuit before completing the appraisal. Mr. Jyurovat argued that his declaratory judgment action did not violate the “no suit” clause in the insurance policy. He conceded that the termination was technically improper but argued that Universal then effectively denied coverage by alleging breach of contract by Mr. Jyurovat. He argued that the policy did not allow Universal to both deny a claim and require appraisal and that the denial of his claim waived any condition precedent to suit. The trial court granted summary judgment for Universal, ruling that Mr. Jyurovat breached the policy by unilaterally terminating the umpire and failing to complete the appraisal before filing suit.

We review an order granting summary judgment de novo. Am. Strategic Ins. Co. v. Lucas-Solomon, 927 So.2d 184, 186 (Fla. 2d DCA 2006). The interpretation of an insurance policy is also subject to de novo review. Id.

Mr. Bateman, whether or not he was acting for Mr. Jyurovat, lacked authority to fire the umpire. If he was dissatisfied with the pace of the umpire’s efforts, the law provided alternatives. See, e.g., State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, 74 So.3d 105, 107 (Fla. 3d DCA 2011) (insurer filed “emergency motion and affidavit seeking removal of the neutral umpire previously appointed by the court”); Preferred Nat’l Ins. Co. v. Miami Springs Golf Villas, Inc., 789 So.2d 1156, 1157 (Fla. 3d DCA 2001) (insurer moved the trial court to interview or replace allegedly partisan umpire); Weinger v. State Farm Fire & Cas. Co., 620 So.2d 1298, 1299 (Fla. 4th DCA 1993) (insureds moved to recuse umpire selected by parties’ appraisers).

An insured’s refusal to comply with a presuit condition may be a willful and material breach of an insurance contract that precludes recovery as a matter of law. Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303, 306 (Fla. 4th DCA 1995). However, if the insured cooperates to some degree or explains his failure to comply, whether the insured materially breached the policy remains a question for the fact finder. Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007) (citing Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001)); Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So.2d 1037, 1038 (Fla. 4th DCA 2003); El-Ad Enclave at Miramar Condo. Ass’n v. Mt. Hawley Ins. Co., 752 F.Supp.2d 1282, 1286-87 (S.D.Fla.2010). “[I]f an insured has not demonstrated willful disregard of the policy preconditions, courts have either stayed the action or dismissed the suit without prejudice in order to allow belated compliance.” Mt. Hawley, 752 F.Supp.2d at 1287 (citing Cent. Metal Fabricators v. Travelers Indem. Co. of Am., 703 So.2d 1251, 1251 (Fla. 3d DCA 1998); Southgate Gardens Condo. Ass’n v. Aspen Specialty Ins. Co., 622 F.Supp.2d 1332, 1337 (S.D.Fla.2008)).

Mr. Jyurovat cooperated in the appraisal process from May 2008 until December 2008. He did not end the appraisal process. He just wanted a new umpire. The insurance policy does not address a breakdown in the appraisal process. We can discern from our record no basis on which Mr. Jyurovat’s appraiser could remove the umpire. Universal made no effort to appoint a new appraiser but asked that the current appraiser stay in place.

The sole basis for the summary judgment was the purported termination of the umpire and the filing of a declaratory judgment action. The issue of whether this constituted a material breach, if at all, of the policy is a question for resolution by the fact finder. Summary judgment was improper. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., Concur.


author: NORTHCUTT, Judge.

text:
    D.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1401.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

D.M., a juvenile, appeals disposition orders adjudicating him delinquent and committing him to a high-risk sexual offender program and an order denying his motions to withdraw his pleas. As we will explain, we must dismiss the appeal as to the disposition orders, but we reverse the denial of the motions to withdraw the pleas.

The State filed two petitions alleging D.M. was a delinquent child based on two incidents of lewd or lascivious molestation and one of harassing a witness. D.M. entered pleas of guilty to the charges on December 15, 2009, against the advice of counsel. The circuit court held a disposition hearing on January 5, 2010, and that day it entered written disposition orders adjudicating D.M. guilty of the charges and committing him to a high-risk sexual offender program until his 21st birthday. On January 15, 2010, D.M., through his attorney, filed motions to withdraw his pleas. The circuit court denied the motions on March 5, 2010. Fourteen days later, D.M. filed a notice of appeal challenging both the disposition of his cases and the denial of his motions to withdraw the pleas.

We cannot review the disposition orders for two reasons. First, the appeal is untimely. A child may appeal an order of adjudication of delinquency or any disposition order entered upon adjudication. §§ 985.534(1), 924.051, Fla. Stat. (2009); Fla. R.App. P. 9.145(b)(1). But the notice of appeal must be filed within 30 days of the rendition of the order. Fla. RApp. P. 9.110(b). Under rule 9.020(h)(1), rendition is tolled if a party timely files one of several specified, “authorized” motions. Among these is a motion “to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(£)”. D.M.’s motions to withdraw his pleas were not filed pursuant to rule 3.170(Z) because that rule applies to criminal cases, not to delinquency proceedings.

In delinquency cases, motions to withdraw pleas are governed by Florida Rule of Juvenile Procedure 8.075(e), which provides that “[t]he court may for good cause shown at any time prior to the beginning of a disposition hearing permit a plea of guilty to be withdrawn_” (Emphasis supplied.) The juvenile rules do not authorize moving to withdraw a plea after the disposition hearing. See P.W. v. State, 37 So.3d 969 (Fla. 1st DCA 2010) (stating that the juvenile rules do not authorize a motion to withdraw a plea after disposition); J.M.B. v. State, 750 So.2d 654 (Fla. 2d DCA 1999) (and cases cited therein). For that reason, the tolling provisions in rule 9.020(h) are not triggered by such a motion.

The disposition orders in this case were rendered when the signed, written orders were filed with the clerk of the court on January 5, 2010. Because their rendition was not tolled by an authorized motion, D.M.’s March 19, 2010, notice of appeal was untimely as to those orders, and we have no jurisdiction to review them.

The second impediment to our review of the disposition orders is that they were based on D.M.’s guilty pleas. The juvenile appellate rule, Fla. R.App. P. 9.145, does not provide an avenue for appealing an order entered as the result of a plea. See 750 So.2d at 655. Thus we turn to the criminal appellate rule to determine the proper appellate procedure. See Fla. R.App. P. 9.145(a) (“Appeal proceedings in juvenile delinquency cases shall be as in rule 9.140 except as modified by this rule.”). Rule 9.140(b)(2) describes the situations under which a criminal defendant may appeal a guilty plea. D.M. claims that his pleas were involuntary for several reasons, but under rule 9.140(b)(2)(A)(ii)(c), the voluntariness of a plea may be raised on direct appeal only if preserved by a motion to withdraw the plea. See State v. T.G., 800 So.2d 204, 210 (Fla.2001); 750 So.2d at 655. As mentioned, the juvenile rules do not authorize the filing of such a motion after the disposition hearing.

Although it might seem that D.M. is caught in a Catch 22, he is not. A juvenile wishing to challenge the voluntariness of a plea may do so by filing a petition for a writ of habeas corpus in the circuit court. See T.G., 800 So.2d at 213; D.E.R. v. State, 993 So.2d 1030 (Fla. 2d DCA 2008); J.M.B., 750 So.2d at 655. Thus, instead of moving to withdraw his pleas, D.M. could have preserved the question of whether his pleas were voluntary by filing a petition for a writ of habeas corpus. And instead of denying D.M.’s motions, the circuit court should have stricken them as unauthorized, cf. Williams v. State, 971 So.2d 258 (Fla. 2d DCA 2008), or treated them as habeas petitions.

Although we have no jurisdiction to review the delinquency judgments, rule 9.145(b)(2) confers jurisdiction to review “orders entered after adjudication.” We reverse the denial of the unauthorized motions to withdraw the pleas and we remand with directions to strike the motions without prejudice to D.M. petitioning for writs of habeas corpus.

If D.M. chooses to file a habeas petition, the court hearing the petition should hold an evidentiary hearing to determine whether his pleas were in fact voluntary. See In re W.B., 428 So.2d 309 (Fla. 4th DCA 1983); cf. Molina v. State, 942 So.2d 1036 (Fla. 2d DCA 2006) (stating, in the context of a motion under Florida Rule of Criminal Procedure 3.850, that the court should hold an evidentiary hearing when the record does not conclusively rebut the defendant’s assertions of involuntariness); Garcia v. State, 846 So.2d 660 (Fla. 2d DCA 2003) (discussing the need for an evidentiary hearing when a criminal defendant challenges the voluntariness of plea pursuant to rule 3.170(()).

Dismissed in part, reversed in part, and remanded.

DAVIS and BLACK, JJ„ Concur.

      . "[from the novel Catch 22 (1961) by J. Heller] a paradox in law, regulation, or practice that makes one a victim of its provisions no matter what one does.” Webster’s New World College Dictionary 231 (4th ed. 2004).


text:
    Lewis A. STUBBS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-6067.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Lewis A. Stubbs, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    Michael FLOWERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1482.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Michael Flowers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    Nicolas SCHEIDEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1565.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Nicolas Scheideman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and RAY, JJ., concur.


author: MAKAR, J.

text:
    Annie J. THOMAS, Appellant, v. OCWEN LOAN SERVICING, LLC, Appellee.
    No. 1D11-2212.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Thomas R. Pycraft, Jr., and Bruce R. Glassman, St. Augustine, for Appellant.
    Daniel C. Consuegra, Allison S. Thompson, and Al Zakarian of the Law Offices of Daniel C. Consuegra, Tampa, for Appellee.
   MAKAR, J.

The issue in this case is whether Ocwen Loan Servicing, LLC, which seeks to foreclose on the residential real property of Annie J. Thomas, is required to affirmatively refute Thomas’s affirmative defenses to be entitled to summary judgment. We hold that it must and reverse. ,

It is a well-worn principle that entitlement to summary judgment requires a plaintiff-movant to refute factually all affirmative defenses or show they are legally insufficient. See Chen v. Whitney Nat’l Bank, 65 So.Sd 1170, 1172 (Fla. 1st DCA 2011) (“The party moving for summary judgment must factually refute or disprove the affirmative defenses or establish that the defenses are insufficient as a matter of law.”). This principle applies in the context of foreclosure proceedings. See, e.g., Haber v. Deutsche Bank Nat’l Trust Co., 81 So.3d 565, 566 (Fla. 4th DCA 2012); Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005). Once a movant shows the absence of any genuine issues of material fact on its claims, it must go the next step and factually refute affirmative defenses or show they are legally insufficient. See Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011).

Here, Thomas raised twenty-three affirmative defenses, some of which may be valid, some of which may be defeated by Ocwen as legally insufficient or factually insupportable; we simply do not know on the insufficient record presented. Accordingly, we reverse the trial court’s order of summary judgment, vacate the final judgment entered in Ocwen’s favor, and remand for further proceedings.

BENTON, C.J., and MARSTILLER, J., concur.


author: MAY, C.J.

text:
    Michael MULLNE, Appellant, v. SEA-TECH CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 4D10-4889.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Mitchell Sens of Law Office of Mitchell Sens, P.A., Plantation, for appellant.
    Jose A. Rodriguez and Brendan A. Sweeney of The Soto Law Group, P.A., Fort Lauderdale, for appellee.
   MAY, C.J.

A defendant in a two-count complaint for breach of contract and foreclosure of a construction lien appeals an order denying his motion to vacate a default judgment against him. He argues the trial court erred in denying the motion because the underlying default judgment is void. We agree and reverse.

The plaintiff filed a two-count complaint against the defendant and his spouse. Count I alleged a breach of contract claim against the wife. It alleged the plaintiff had contracted with the wife to erect a seawall on property owned by the wife and defendant. Count II sought to foreclose a construction lien against both the wife and the defendant on that property.

When the defendants failed to respond, the plaintiff obtained a default final judgment against both in February 2010. The default judgment entitled the plaintiff to recover the outstanding amount due under the contract, plus interest, costs, and attorney’s fees against both defendants, even though the breach of contract count involved only the wife. The default judgment did not mention the foreclosure count.

In August 2010, the plaintiff filed a writ of garnishment against the defendants’ bank accounts. In response, the defendants filed a verified motion to quash service of process, a verified motion to vacate default, and a motion to dissolve the writ of garnishment. The trial court denied the motion to vacate the default. The defendant appeals this order.

“An order denying a motion to vacate a default [judgment] is reviewed under an abuse of discretion standard.” Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001).

The defendant argues the trial court abused its discretion in denying the motion to vacate because the judgment is void. He claims the judgment is void because the complaint failed to state a cause of action against him for breach of contract. He also argues that the count for foreclosure of the construction lien under section 713.12, Florida Statutes (2009), amounted to an “ambush tactic” because it failed to put the defendant on notice.

The plaintiff responds that the complaint sufficiently pled two causes of action and placed the defendant on notice of the lien foreclosure. There was no ambush because the complaint specifically referred to “Chapter 713,” even though the specific subsection was not identified. Further, the plaintiff argues that the defendant’s failure to demonstrate excusable neglect and due diligence warranted the denial of his motion to vacate.

A default judgment:

operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inferences will not be made. The party seeking affirmative relief may not be granted relief that is not supportef Jd by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on these limitations.

Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987) (emphasis added) (quoting H. Trawick, Trawick’s Florida Practice and Procedure § 25-4 (1986 ed.)).

Under Florida Rule of Civil Procedure 1.500(d), “[t]he court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).” Fla. R. Civ. P. 1.500(d). Ordinarily, if the trial court enters a default judgment for failure to file responsive pleadings, and the defendant seeks to set it aside pursuant to Rule 1.540(b), the trial court must determine: “(1) whether the defendant has demonstrated excusable neglect in failing to respond[;] (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief.” Halpem v. Houser, 949 So.2d 1155, 1157 (Fla. 4th DCA 2007). However, if the default judgment is void, the appellant does not need to establish these elements. Green Solutions Int’l, Inc. v. Gilligan, 807 So.2d 693, 696 (Fla. 5th DCA 2002) (emphasis added).

Under section 713.12, if one spouse enters into a contract for improvements to real property, the non-contracting spouse’s interest in the property is also bound under the agreement so long as the property is owned by at least one spouse and the couple is not living apart. § 713.12, Fla. Stat. (2009). However, this statute “reaches only to the property upon which the improvements were made, and ... does not include personal liability on the part of the non-contracting spouse.” Meadows S. Constr. Co. v. Pezzaniti, 108 So.2d 499, 501 (Fla. 2d DCA 1959).

The plaintiffs complaint alleged only the foreclosure of the lien against the defendant. It did not allege a breach of contract claim. When the trial court entered the default judgment, it made the defendant personally liable, a remedy not sought under the complaint. Although the defendant’s interest in the property could have been encumbered, no personal liability could be attached to the defendant. The defendant simply could not be held personally liable. Id.

The defendant raised the right argument — the judgment is void — but fell slightly short in his explanation of why. Simply stated, the defendant failed to “connect the dots.” The judgment was void not because the complaint failed to state a cause of action as the defendant argued, but because the trial court was without jurisdiction to award relief that was not requested by the complaint. See Fine v. Fine, 400 So.2d 1254, 1255 (Fla. 5th DCA 1981) (“The jurisdiction of the court can be exercised only within the scope of the pleadings in the action.... ”); Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007) (“A trial court’s lack of subject-matter jurisdiction makes its judgment void.”).

Although the plaintiff acknowledges that it did not allege a breach of contract claim against the defendant, it still argues that the final default judgment is proper because the defendant incurred liability, pursuant to section 713.12. This argument fails because section 713.12 does not impose personal liability for breach on a non-contracting spouse. Under the plain language of this statute, liability may only extend to the non-contracting spouse’s interest in the property on which the improvement was made. In fact, the plaintiff recognized this by requesting a deficiency judgment if the sale of the real estate failed to satisfy the amount owed.

We also find it curious that the defendants filed a motion to quash service of process that was never heard. According to the defendants’ attestations, they did not receive the summons because they were living at a different address when the summons was served. They learned about the judgment only after the plaintiff garnished their bank accounts. If true, this would provide the excusable neglect otherwise necessary to set aside the default judgment. Due diligence could then be shown because the defendants filed the motion to set aside the default within days after learning of the garnishment.

Because we reverse the order denying the defendant’s motion to vacate the default judgment, this necessarily vacates the cost and fee awards within that judgment as they relate to this defendant. As the defendant argued in his brief, only the foreclosure count provided for the award of fees and there was no judgment entered on that count.

Reversed and Remanded.

GROSS and DAMOORGIAN, JJ., concur.

      . The wife has not appealed the order.

      . The other motions appear to be pending in the trial court.