text:
    Milissa M. SCHANG, former wife, Appellant, v. Steven J. SCHANG, Jr., former husband, Appellee.
    No. 1D09-5310.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Randall J. Aronson, Pensacola, for Appellant.
    James L. Chase, Pensacola, for Appel-lee.
   PER CURIAM.

Milissa Schang, the former wife, appeals an order modifying the alimony and child support obligations of Steven Schang, the former husband. The former wife argues that a new evidentiary hearing is required because the trial court’s judgment was affected by an excessive delay between the hearing and the entry of the order. Reversal is warranted because the trial court’s order, entered more than one year after the evidentiary hearing on a petition for modification of child support and alimony, does not reflect full and accurate consideration of the pertinent facts. Accordingly, we reverse and remand for a new trial without reaching the remaining issue on appeal.

When the parties’ marriage was dissolved, the former husband was ordered to pay the former wife $3,300 per month in permanent periodic alimony and $3,172 per month in child support. Thereafter, the former husband filed a petition for modification of child support and alimony based on his voluntary retirement at the age of sixty-six and the fact that three of the parties’ five children had reached the age of majority. By the time of the evidentia-ry hearing on the petition, four of the parties’ children had reached the age of majority. The trial court did not issue an order until more than a year after the evidentiary hearing on the former husband’s petition. In the order, the trial court reduced the former husband’s alimony obligation from.$3,300 per month to $200 per month, and the child support obligation from $3,172 per month to $1,100 per month.

Florida Rule of Judicial Administration 2.215(f) provides that “[ejvery judge has a duty to rule upon and announce an order of judgment on every matter submitted to that judge within a reasonable time.” The purpose of this rule is “to allow the trier of fact to recall the testimony and demeanor of the witnesses as well as the dynamics of the trial.” Falabella v. Wilkins, 656 So.2d 256, 257 (Fla. 5th DCA 1995). In family law cases in particular, “trial courts have a responsibility to render their decisions under circumstances which give no doubt but that the matter was seriously and promptly considered,” given the high deference appellate courts give trial court decisions in such cases. Id.

Although there is no “bright line rule” as to what constitutes a reasonable time for rendering a judgment, Donn v. Donn, 733 So.2d 581, 582 (Fla. 4th DCA 1999), Florida Rule of Judicial Administration 2.250(a)(1)(C) provides that the presumptively reasonable period for completing a domestic relations case is 180 days. Excessive delay in the entry of an order warrants reversal when the delay is combined with “an indication that something is seriously amiss on the merits.” Ascontec Consulting, Inc. v. Young, 714 So.2d 585, 587 (Fla. 3d DCA 1998). Two key factors in determining whether such circumstances exist are whether there is a conflict or inconsistency between the judge’s statements or findings at trial and the ultimate judgment rendered and whether there is “a factual finding in the final judgment unsupported by the trial evidence.” Donn, 733 So.2d at 582 (quoting Fla. Air Academy, Inc. v. McKinley, 688 So.2d 359, 360 (Fla. 5th DCA 1997)); see, e.g., McKenzie v. McKenzie, 672 So.2d 48, 49 (Fla. 1st DCA 1996) (reversing a final judgment of dissolution of marriage where “[ijnconsistencies in the final judgment suggested] that the trial judge may not have recalled the evidence presented at the hearing,” which occurred a year before the entry of the final judgment). In Donn v. Donn, where alimony was at issue, the court considered the additional factor that “the trial judge failed to make pertinent findings of fact regarding the parties’ ability to pay and financial need.” 733 So.2d at 583. The Donn court concluded that “the excessive delay and inconsistencies, coupled with the failure to include specific findings regarding the award of alimony, warrant[ed] reversal and remand for another evidentiary hearing.” Id.

When determining the amount of alimony to be ordered based on a change of circumstances, the trial court is to consider all of the relevant factors listed in section 61.08(2), Florida Statutes. Wolfe v. Wolfe, 953 So.2d 632, 636 (Fla. 4th DCA 2007); see Overton v. Overton, 34 So.3d 759, 761 (Fla. 1st DCA 2010). However, the primary criteria at issue under such circumstances are the payee spouse’s needs with regard to the standard of living established during the marriage and the payor spouse’s ability to pay. Zeballos v. Zeballos, 951 So.2d 972, 974 (Fla. 4th DCA 2007). In applying these criteria, the trial court “must consider all relevant economic factors, including ‘the financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each,’ and ‘all sources of income available to either party.’ ” See Vriesenga v. Vriesenga, 931 So.2d 213, 217-18 (Fla. 1st DCA 2006) (quoting § 61.08(2)(d), (g), Fla. Stat. (2004)) (brackets omitted). When awarding alimony, a court is to consider not only income, but also the extent and value of the parties’ capital assets. See Howard v. Howard, 118 So.2d 90, 94 (Fla. 1st DCA 1960).

Here, the trial court’s finding concerning the amount of the former husband’s monthly income from Social Security is unsupported by the record. Additionally, the trial court failed to fully discuss the former husband’s substantial, unencumbered capital assets. Further, the court failed to discuss the former wife’s need for alimony or the sources of income available to her with any specificity. These matters were central to the trial court’s determination of the former husband’s continuing ability or inability to pay alimony. Because the drastic reduction in the former husband’s alimony obligation was accompanied by an inaccurate and incomplete discussion of the factors entering into that decision, we conclude that the trial court’s memory may have been affected by the delay in the entry of the order. Accordingly, we reverse and remand for a new evidentia-ry hearing on the former husband’s petition for modification of child support and alimony.

REVERSED and REMANDED with instructions.

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

      . Although the court mentioned the former husband's unencumbered home, it failed to note the value of the home or mention other valuable assets. The court also failed to discuss any of these assets in the context of determining the former husband's continuing ability or inability to pay permanent periodic alimony.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael PETERS and Michael A. White, Appellant, v. Richard “Dick” KELLMAN, (As Candidate), Sherry Gilley Ely (As Candidate) Drinda Merritt (As Candidate) as proper defendants per statute and Levy County Supervisor of Elections, Connie Asbell, Member of the Levy County Canvassing Board (formerly dismissed in this complaint by order of the Court with prejudice) Levy County Commission Chairperson, Nancy Bell, Member of the Levy County Canvassing Board, Levy County Judge, The Honorable Timothy Browning, Levy County Judge, Member of the Levy County Canvassing Board, Appellees.
    No. 1D10-6315.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2011.
    Michael Peters, pro se, and Michael A. White, pro se, for Appellants.
    Alan S. Zimmet of Zimmet, Unice & Salzman, PA, Palm Harbor, for Appellees.
   PER CURIAM.

DISMISSED. Cf. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999); Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992).

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


author: ALTENBERND, Judge.

text:
    Marzuq AL-HAKIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3911.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.

      Marzuq Al-Hakim, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Marzuq Al-Hakim challenges a judgment finding him in direct criminal contempt of court. Mr. Al-Hakim attended a court hearing as a member of the public but was put in jail after causing a courtroom disturbance. Because the resulting judgment for direct criminal contempt was not entered in compliance with the requirements of Florida Rule of Criminal Procedure 3.830, we reverse.

On the morning of March 17, 2009, Mr. Al-Hakim was present in court during a hearing on a family member’s criminal case. At some point during the morning docket, an assistant public defender announced that she would not be adopting the pro se motion for recusal which Mr. Al-Hakim’s family member had filed. A courtroom disturbance followed, and the trial judge had Mr. Al-Hakim handcuffed and taken into custody. The court did not immediately hold Mr. Al-Hakim in contempt of court.

Later that day, as part of his afternoon docket, the judge had Mr. Al-Hakim brought back before the court. The judge asked Mr. Al-Hakim to state his name and then announced, “Mr. Al-Hakim, I am going to find you in direct criminal contempt of court for creating a disturbance in my court this morning. Is there anything that you want to say before I sentence you, sir?” Mr. Al-Hakim contested whether he had acted in contempt. The court responded:

Well, for purposes of the record, what you did, sir, was you started yelling at this court. You were pointing your finger, yelling at the court and you disrupted the courtroom this morning while I was conducting cases. That’s why I had you taken into custody, and that’s why I found you in direct criminal contempt of court.

The judge sentenced Mr. Al-Hakim to thirty days in jail and signed a written judgment in open court. The record does not reflect that the court ever inquired of the need to appoint counsel for Mr. Al-Hakim. The written judgment does not recite the facts on which the finding of contempt was based. Several days later, after Mr. Al-Hakim had obtained the assistance of a lawyer, the judge reduced the sentence to time served.

A trial court has broad, discretionary power to impose a judgment of contempt, a power which existed at common law. See Parisi v. Broward, County, 769 So.2d 359, 363 (Fla.2000); Moorman v. Bentley, 490 So.2d 186, 187 (Fla. 2d DCA 1986). However, a proceeding for criminal contempt, which is punishable by up to twelve months’ imprisonment, is expressly within the scope of the Florida Rules of Criminal Procedure. See Fla. R. Crim. P. 3.010. As a result, a trial court must exercise its contempt power in a manner that is consistent with the Florida Rules of Criminal Procedure. Florida’s appellate courts have regarded the failure to do so as fundamental error. See Hutcheson v. State, 903 So.2d 1060, 1062 (Fla. 5th DCA 2005).

Two provisions of the Florida Rules of Criminal Procedure pertain to this case. First, rule 3.111(b) requires that “[cjounsel shall be provided to indigent persons in all prosecutions for offenses punishable by incarceration.” (Emphasis added.) Applying rule 3.111(b), this district concluded in Woods v. State, 987 So.2d 669, 674 (Fla. 2d DCA 2007), that “the Florida Rules of Criminal Procedure required the availability of appointed counsel for this direct criminal contempt prosecution.” Other districts have, however, suggested that rule 3.830, which outlines the procedural requirements for direct criminal contempt, does not itself require appointment of counsel. See Searcy v. State, 971 So.2d 1008, 1013-14 (Fla. 3d DCA 2008) (citing Williams v. State, 698 So.2d 1350 (Fla. 1st DCA 1997)). Thus, while recognizing that rule 3.830 contemplates that direct criminal contempt may be summarily punished, we observe that rule 3.830 contains no exception from the requirement in rule 3.111(b) that counsel be provided to indigent persons in prosecutions for offenses punishable by imprisonment. See Hayes v. State, 592 So.2d 327, 329 (Fla. 4th DCA 1992) (“There is no exception in rule 3.111(b)(1) for contempt prosecutions resulting in imprisonment of an indigent. ...”).

Additionally, rule 3.830 imposes procedural requirements that a trial court must follow in imposing a judgment for direct criminal contempt. See generally J.A.H. v. State, 20 So.3d 425, 427 (Fla. 1st DCA 2009) (articulating six steps that the trial court must follow pursuant to an adjudication of contempt). These include the requirement that “[t]he judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based.” Fla. R. Crim. P. 3.830; see also J.A.H., 20 So.3d at 427 (requiring “a signed written order containing a recital of the facts upon which the adjudication of contempt is based”). Before adjudicating the defendant guilty, “the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor.” Fla. R. Crim. P. 3.830.

We conclude that the trial judge here was required to determine whether Mr. Al-Hakim was indigent and therefore entitled to the appointment of counsel in this direct criminal contempt proceeding in which Mr. Al-Hakim, a member of the public, was taken into custody. Additionally, after bringing Mr. Al-Hakim back before the court, the judge was required to give Mr. Al-Hakim an opportunity to respond before imposing a judgment of direct criminal contempt. Lastly, the written judgment which the court imposed did not contain a recital of the facts upon which it was based. Although our record on appeal is limited, we conclude that each of these errors warrants reversal.

Accordingly, we reverse the judgment of contempt and remand to the trial court for further proceedings consistent with our opinion. Because Mr. Al-Hakim’s sentence has now been reduced to time served, the trial court shall not interpret our opinion to require that Mr. Al-Hakim be brought back into custody and resen-tenced.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . The record does not reflect how long this citizen was held, apparently in the court’s holding cell, until he was returned to the courtroom. It appears to have been several hours. While the court clearly has the power to hold a member of the public for a brief period to calm him or her down and to obtain an attorney to represent the citizen, we question the appropriateness of the delay that occurred in this case.

      . We note that the trial court determined that Mr. Al-Hakim was indigent for purposes of this appeal.


author: CRENSHAW, Judge.

text:
    Jacob J. BLACKMON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-6009.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Jacob J. Blackmon appeals his judgments and sentences for aggravated assault on a law enforcement officer, carrying a concealed firearm, possession of a firearm with an altered serial number, resisting an officer without violence, and driving without a valid license. We conclude and the State concedes that it failed to present any evidence that the firearm Blackmon earned was ever concealed. We therefore reverse Blackmon’s judgment and sentence for carrying a concealed firearm. We affirm the remaining judgments and sentences without further comment.

The State’s single witness, Officer Ram-dath of the Bradenton Police Department, testified at trial that on the night of April 8, 2009, he attempted a traffic stop of a vehicle displaying a license tag that was registered to a different vehicle. When the vehicle stopped, the driver — later identified as Blackmon — exited the vehicle and fled on foot through a dimly lit apartment complex. Officer Ramdath pursued Black-mon on foot through a parking lot, and Blackmon squeezed through a narrow opening in a fence. Once the officer reached the fence, Blackmon turned and lifted a firearm towards the officer. At this point, the officer deployed his Taser and Blackmon fell to the ground, dropping the firearm.

We conclude the evidence was insufficient to prove that the firearm Blackmon carried was ever concealed. The officer did not provide any direct testimony that Blackmon was carrying the firearm “in such a manner as to conceal the firearm from the ordinary sight of another person.” See § 790.001(2), Fla. Stat. (2008). Nor did the State present circumstantial evidence from which an inference of concealment could arise. The officer’s testimony only established that he was unable to see a firearm in Blackmon’s possession from his vantage point until the moment the firearm was pointed directly at him. And this testimony is insufficient to prove concealment because it remains consistent with a reasonable hypothesis that the firearm was within the ordinary sight of another person from a different viewpoint. See Davis v. State, 761 So.2d 1154, 1156-57 (Fla. 2d DCA 2000) (finding the State failed to prove concealment where a firearm may have been in ordinary sight but was not visible to officers in darkness); Donald v. State, 344 So.2d 633, 634 (Fla. 2d DCA 1977) (concluding the State could not prove concealment where the officer “could not say whether appellant’s shirttail would have obscured sight of the pistol if he had viewed appellant from the front”); Adams v. State, 987 So.2d 1255, 1256 (Fla. 5th DCA 2008) (concluding “the State’s proof did not negate the possibility that Adams had been carrying the gun unconcealed before he deposited it on the ground”).

Accordingly, because the State failed to prove concealment, we reverse Blackmon’s conviction and sentence for carrying a concealed firearm. We affirm the remaining judgments and sentences without comment.

Reversed in part; affirmed in part.

LaROSE and MORRIS, JJ., Concur.


text:
    Frank PLUTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2578.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2011.
    Frank Piute, pro se.
   ALTENBERND, Judge.

Frank Piute appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We conclude that there is no merit in the issues he raised in his motion and affirm. We also caution Mr. Piute that future similar appeals will likely result in sanctions barring him from further pro se filings.

As we have explained in an earlier opinion, Mr. Piute “apparently developed a fondness for McNatt’s Cleaners & Laundry establishments” in 1997. Plute v. State, 835 So.2d 368, 369 (Fla. 2d DCA 2003). After committing armed robberies at several outlets, the State charged him with multiple armed robberies, an attempted robbery, and robbery. He entered open pleas of guilty to all of the charges. We concluded that his original sentences were illegal due to the unconstitutionality of the relevant sentencing law. See Plute v. State, 765 So.2d 238 (Fla. 2d DCA 2000). However, we expressly held that his subsequent sentences, which are concurrent twenty-five-year terms of imprisonment as a habitual offender, are legal. See Piute, 835 So.2d at 369.

After we affirmed his sentences in 2003, Mr. Piute filed six additional appeals relating to the sentences. We have affirmed each of those appeals without written opinions. We now affirm this appeal.

When prisoners abuse the postconviction remedies provided to them, they do more than waste the resources of the judicial system. They delay postconviction proceedings by other prisoners who may actually be entitled to relief. It is entirely possible that a prisoner entitled to immediate release is still in prison because we have been required to spend our efforts reviewing this unnecessary appeal.

Therefore, we caution Mr. Piute that any future postconviction proceeding filed to challenge these judgments and sentences, absent a new claim that has legal merit, is likely to result in a referral to the appropriate institution or facility for disciplinary procedures. See § 944.279(1), Fla. Stat. (2010). If such a referral occurs, this court will also issue an order to show cause why it should not bar Mr. Piute from further pro se filings pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

NORTHCUTT and MORRIS, JJ., Concur.


author: ROSENBERG, ROBIN L., Associate Judge.

text:
    Brian HOESCH and South Florida Siberian Husky Rescue, Inc., Appellants, v. BROWARD COUNTY, Florida, Appellee.
    No. 4D09-3843.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.

      Jason M. Wandner, P.A., Miami Beach, for appellant.
    Jeffrey J. Newton, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, Benjamin R. Salzillo, Assistant County Attorney, Fort Lauderdale, for ap-pellee.
   ROSENBERG, ROBIN L., Associate Judge.

Brian Hoesch and South Florida Siberian Husky Rescue, Inc., appeal a final summary judgment denying relief in their declaratory judgment suit filed against Broward County, Florida. That suit challenged two Broward County ordinances regulating dangerous dogs on the grounds that they are in conflict with state law. We find that the ordinances conflict with state law, and reverse.

The relevant facts are undisputed. Hoesch’s dog, Mercedes, escaped from Hoesch’s back yard and attacked and killed a neighbor’s cat. Prior to this incident, Mercedes had never been declared dangerous by any governmental authority. Broward’s animal control division took Mercedes into custody, where she remains. Broward served Hoesch a “Dangerous Dog Disposition” notifying Hoesch of its intent to destroy Mercedes. Per the ordinance, Hoesch requested a hearing. The hearing officer sustained the disposition. Hoesch then sought declaratory relief in the circuit court, arguing that the ordinance conflicted with Florida’s animal control statutes such that Broward could not rely upon the ordinance to destroy his dog. Hoesch and Broward filed cross-motions for partial summary judgment on the claim that the ordinance and state law conflicted. The trial court entered final summary judgment in favor of Broward and this appeal followed.

The “Dangerous Dog Disposition” was made pursuant to the Broward County ordinances regulating dangerous dogs. Broward defines a dangerous dog as, among other things, “any dog that according to the records of the Division or other animal control or law enforcement authority ... [h]as killed or caused the death of a domestic animal in one incident, while off the owner’s or keeper’s property and while unprovoked.” Broward County, Fla., Code of Ordinances ch. 4, 4-2(k)(2) (emphasis added). Broward prescribes the disposition of dogs that have not been previously designated dangerous:

If any dog not previously classified as dangerous ... causes the death of a domestic animal, while unprovoked and while off the owner’s or keeper’s property, an officer shall immediately confiscate and impound the dog and, after written notice to the owner and expiration of ten (10) business days from the date the owner receives the notice, dispose of such dangerous dog in a humane manner.

4 — 12(j)(2) (emphasis added).

Florida has specifically defined a “dangerous dog” as any dog that according to the records of the appropriate authority “[h]as more than once severely injured or killed a domestic animal while off the owner’s property.” 767.11(l)(b), Fla. Stat. (2010) (emphasis added). Florida requires the destruction of dogs that have previously been declared dangerous if they attack a domestic animal without provocation. 767.13(1). Thus, chapter 767 does not require the destruction of dogs, such as Mercedes, that have killed a single domestic animal. In fact, reading these two statutes together, a dog would have to kill at least three domestic animals before section 767.13(1) would require its destruction.

The parties stipulate that the issue presented in this case is not one of preemption. If there is no issue of preemption, then the question is whether the county ordinance conflicts with the state statute. See F.Y.I. Adventures, Inc. v. City of Ocala, 698 So.2d 583, 584 (Fla. 5th DCA 1997); Art. VIII, § 1(g), Fla. Const. (“The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.”). Hoesch contends that Broward’s ordinances directly conflict with state law. We agree.

“Conflict” has been construed to mean “contradictory in the sense of legislative provisions which cannot co-exist.” Jordan Chapel Freewill Baptist Church v. Dade Cnty., 334 So.2d 661, 664 (Fla. 3d DCA 1976) (quotation omitted). Thus, an ordinance and statute are in conflict when compliance with the ordinance violates the state law, or makes compliance with state law impossible. Id. It is not a conflict if the ordinance is more stringent than the statute. See id. In such cases, the more stringent ordinance supplements the statute. See id. at 664-65.

When an area of law is not preempted by state law, a county can pass ordinances concurrently on subjects regulated by state statute. Thomas v. State, 614 So.2d 468, 470 (Fla.1993). The Florida Supreme Court has further explained:

Certainly, municipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute. In other words, a municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden. An ordinance penalty may not exceed the penalty imposed by the state; however, a municipality may provide a penalty less severe than that imposed by a state statute.

City of Hollywood v. Mulligan, 934 So.2d 1238, 1246-47 (Fla.2006) (alterations removed) (citations omitted) (internal quotation marks omitted).

A duly enacted ordinance of a local government is presumed valid, and the party challenging it carries the burden of establishing its invalidity. Lowe v. Broward Cnty., 766 So.2d 1199, 1203 (Fla. 4th DCA 2000). A corollary of this presumption is that an appellate court will indulge every reasonable presumption in favor of an ordinance’s constitutionality. Id. at 1203-04.

It is undisputed that Mercedes is a “dangerous dog” pursuant to Broward ordinance 4-2(k)(2) but not Florida statute section 767.11(l)(b). Likewise, Broward ordinance 4-12(j)(2) requires the dog’s destruction, but section 767.13 does not.

Broward attempts to avoid this suggestion of conflict by pointing to section 767.14, Florida Statutes (2010). Bro-ward argues that no conflict exists because, in that statute, the Legislature has authorized local governments to heighten the regulation of dangerous dogs:

Nothing in this act shall limit any local government from placing further restrictions or additional requirements on owners of dangerous dogs or developing procedures and criteria for the implementation of this act, provided that no such regulation is specific to breed and that the provisions of this act are not lessened by such additional regulations or requirements.

Id. (emphasis added). To wit, if a dog is designated as a “dangerous dog” as defined in section 767.11(l)(b), then the local government may enact additional restrictions or requirements on the owners of such dogs. Mercedes, however, is not a dangerous dog as defined by section 767.11(l)(b). Thus, Broward’s argument that section 767.14 authorizes additional restrictions on owners of dogs such as Mercedes is misplaced. Section 767.14 narrowly applies to owners of statutorily defined “dangerous dogs,” and neither authorizes nor prohibits additional restrictions or requirements for dogs that are not included within the state’s definition of “dangerous dog.” See Nicholson v. State, 600 So.2d 1101, 1103 (Fla.1992) (“When a definition of a word or phrase is provided in a statute, that meaning must be ascribed to the word or phrase whenever it is repeated in the statute unless contrary intent clearly appears.”). Accordingly, section 767.14 is not directly applicable to our conflict analysis.

The parties also dispute the effect of section 828.27(7), Florida Statutes (2010), which is directly applicable to our analysis. That statute provides, in pertinent part:

Nothing contained in this section shall prevent any county ... from enacting any ordinance relating to animal control ... which is identical to the provisions of this chapter or any other state law, except as to penalty. However, no county ... ordinance relating to animal control ... shall conflict with the provisions of this chapter or any other state law.

(Emphasis added.) Together, sections 828.27(7) and 767.14 clarify that the state has not preempted the area of animal control and, although local governments may enact them own ordinances regarding dangerous dogs, those ordinances must not conflict with state law. In other words, Broward County does not have a free hand in the area of animal control.

With the case law and statutory framework in mind, we now turn to the ordinances at issue.

The definition of the term “dangerous dog” in Broward ordinance section 4-2(k)(2) is in clear conflict with the definition set forth in section 767.11(l)(b). The legislature expressly defined a dangerous dog as having more than once severely injured or killed a domestic animal. Bro-ward’s designation of Mercedes as a dangerous dog pursuant to its own definition in section 4-2(k)(2) cannot stand. Nothing in section 767.14, section 828.27(7), or general conflict law authorized Broward to alter the definition of the statutory term “dangerous dog.” See Nicholson, 600 So.2d at 1103. Since Broward’s definition of dangerous dog in section 4-2(k)(2) cannot coexist with the definition provided in section 767.11(l)(b), the ordinance and statute are in conflict. Accordingly, the definition of “dangerous dog” in Broward County ordinance section 4-2(k)(2) is null and void.

The argued conflict between section 767.13 and Broward County ordinance section 4-12(j)(2), however, is not as clear. Section 767.13(1) requires the destruction of a dog that has previously been declared dangerous if it attacks or bites a domestic animal without provocation. Mercedes was not previously declared dangerous, so that section is inapplicable. Section 767.13(2) requires the destruction of a dog not previously declared dangerous only if it attacks and causes severe injury or death to a human. Mercedes did not attack a human, so that section is also inapplicable. Broward ordinance section 4-12(j)(2) substantially mirrors section 767.13(2) insofar as it refers to attacks on humans, but it additionally requires the destruction of a dog not previously declared dangerous when it causes the death of a domestic animal.

As noted previously, Florida requires a dog’s destruction if it has killed at least three domestic animals. See 767.11(l)(b); 767.13(1). Although Broward has not authorized an action that the legislature has expressly forbidden, see Mulligan, 934 So.2d at 1247, the destruction of a dog that has killed only a single domestic animal is forbidden when section 767.13 is read together with sections 767.11(l)(b) and 828.27(7). See Dep’t of Children Family Servs. v. Leons, 948 So.2d 988 (Fla. 4th DCA 2007) (courts must read statutes in pari materia to give meaning to all provisions).

Generally, it is not a conflict if an ordinance is more stringent than a statute or regulates an area not covered by the statute. City of Kissimmee v. Fla. Retail Fed’n, Inc., 915 So.2d 205, 208-09 (Fla. 5th DCA 2005). Broward ordinance section 4-12(j)(2), however, regulates an area that is covered by state law. By requiring the destruction of a dog that has killed a single animal, Broward has vitiated the framework for dealing with dog attacks on other domestic animals that is set forth in chapter 767. See 767.11(l)(b); 767.13. If killing a single animal is insufficient to merit the designation of a dog as dangerous per chapter 767, then Broward cannot require a dog’s destruction for that same act. By enacting an ordinance requiring the destruction of such dogs, Broward circumvented the clear procedural requirements of chapter 767. Accordingly, section 4-12(j)(2) is in conflict with state law.

For the foregoing reasons, we conclude that Broward County ordinance sections 4-2(k)(2) and 4 — 12(j)(2) are null and void insofar as they conflict with state law. Accordingly, we reverse the decision of the trial court and remand for entry of final summary judgment in favor of Hoesch and South Florida Siberian Husky Rescue, Inc.

Reversed and remanded.

TAYLOR and GERBER, JJ., concur.


author: HAZOURI, J.

text:
    Dale E. DICKEY and Airgas Carbonic, Inc., a Foreign Corporation, Appellants, v. Mitchell KITROSER, as Personal Representative of the Estate of Rhina M. Castro Lara, Benigno Rodriguez, Individually, Gloria Rodriguez, Individually, and Felicita Lara, Individually, Appellees.
    Nos. 4D09-2377, 4D09-2378.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Patrick J. Rengstl and Stuart I. Gross-man, P.A., of Levine Kellogg Lehman Schneider & Grossman, L.L.P., Miami, for appellant Dale E. Dickey.
    Brad Redlien and Frank A. Zacherl of Shutts & Bowen, L.L.P., Miami, for appellant Airgas Carbonic, Inc., a Foreign Corporation.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Steven G. Calamusa of Gordon & Doner, P.A., Palm Beach Gardens, for appellees.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee Bob’s Barricades, Inc.
   HAZOURI, J.

Dale E. Dickey and Airgas Carbonic Inc., defendants below, appeal from the entry of final summary judgment in favor of codefendant Bob’s Barricades Inc., in a tort action filed by the plaintiffs below, Mitchell Kitroser, as Personal Representative of the Estate of Rhina M. Castro Lara, Benigno Rodriguez, individually, Gloria Rodriguez, individually, and Felicita Lara, individually. Because the trial court abused its discretion when it denied Dickey and Airgas’s motion to continue the hearing on the motion for summary judgment and ruled that Dickey and Airgas had no standing to oppose the summary judgment, we reverse.

This action arises out of a tragic motor vehicle accident in which a commercial truck, driven by Airgas’s employee, Dickey, struck a car driven by Rhina M. Castro Lara, resulting in her death. Castro Lara’s estate and survivors filed a thirty-one count Second Amended Complaint in their wrongful death action which added Bob’s Barricades as a defendant. The gist of the allegations was that Bob’s Barricades, which provides barricades for traffic control, breached its duty of care by failing to block access to points on U.S. 27 as requested by the Florida Highway Patrol when there was heavy fog, which made driving on these roads unsafe. In its motion for summary judgment, Bob’s Barricades asserted that it did not perform any work of any kind or provide traffic control or warning devices or personnel to another codefendant DeAngelo Brothers, Inc., for any road project at or near the intersection where the accident happened. The plaintiffs did not oppose the summary judgment.

Dickey and Airgas filed a response to the motion for summary judgment in which they requested that the trial court defer ruling on the motion until discovery was complete. They argued they would be prejudiced if the court granted summary judgment because it would prevent them from adding Bob’s Barricades as a Fabre defendant, even if later discovery established Bob’s Barricades’s negligence. They further alleged that they were in the process of deposing Palm Beach County Sheriffs Office (PBSO) deputies who were on duty the day of the accident and that counsel for PBSO had filed a motion for protective order to stop the remaining depositions. Attached to the response was a 2003 document which listed Bob’s Barricades as a sub-contractor who could potentially be called in response to emergencies by DeAngelo Brothers, Inc.

At the hearing on the motion for summary judgment, Dickey and Airgas’s counsel were precluded from arguing in opposition to the motion for summary judgment because the trial court ruled that since they had not filed claims against Bob’s Barricades, they had no standing. Dickey and Airgas’s counsel further argued they were still conducting discovery but were not yet in a position to assert a claim against Bob’s Barricades’s or claim it as a Fabre defendant. Without further discussion of the merits of Bob’s Barricades motion, the trial court granted the motion for summary judgment. Prior to the conclusion of the hearing, the trial judge advised that if Dickey and Airgas could provide him with case law to the contrary, he would reconsider his ruling on a motion for rehearing.

Dickey and Airgas filed a Motion for Rehearing and to Vacate Order Granting Summary Judgment citing Crowell v. Kaufmann, 845 So.2d 325 (Fla. 2d DCA 2003), as being directly on point, holding that similarly situated defendants had standing to oppose the summary judgment and to request a continuance of the summary judgment hearing so that the parties could complete additional discovery. The motion for rehearing was denied.

In Crowell, the plaintiff sued a surgeon, an anesthesiologist, and a hospital for medical malpractice. Id. at 326. The co-defendant surgeon moved for summary judgment. Id. The plaintiff did not oppose the surgeon’s motion for summary judgment because she wanted to make a stronger case against the other defendants. Id.

The defendant anesthesiologist attempted to oppose the codefendant surgeon’s motion for summary judgment, arguing that discovery was incomplete on the issue of the surgeon’s liability. Id. The anesthesiologist, therefore, requested a continuance of the summary judgment hearing until the completion of discovery “to preserve his ability to include a codefendant [, the surgeon,] as a Fabre defendant on the verdict form.” Id. at 326-27. The trial court, however, rejected the anesthesiologist’s arguments and entered summary judgment in favor of the surgeon. Id. at 326. The trial court’s summary judgment in favor of the surgeon absolved the surgeon of any liability, which prevented the anesthesiologist from including, and therefore apportioning liability to, the surgeon as a Fabre defendant on the verdict form. Id. at 327.

The codefendant surgeon argued that the anesthesiologist “had no standing to oppose the motion for summary judgment and that he has no standing to bring this appeal.” Id. The Second District rejected this argument stating “Dr. Crowell, as co-defendant in the trial court, has standing to appeal a summary judgment which exonerates his codefendant from liability.” Id.

In Crowell, the Second District held that the basis of a defendant’s standing to oppose a codefendant’s motion for summary judgment is to allow the defendant the opportunity to include the codefendant that moved for summary judgment as a Fabre defendant on the verdict form. It stated

[T]he summary judgment in favor of Dr. Kaufmann exonerates him from fault. Because the trial court determined as a matter of law that Dr. Kaufmann was not at fault, Dr. Crowell would not have been entitled to place him [as a Fabre defendant] on the verdict form. Accordingly, Dr. Crowell had standing to oppose Dr. Kaufmann’s motion for summary judgment and has standing to bring this appeal.

Id. at 327 (citations omitted). Because the defendant anesthesiologist had standing to oppose the codefendant surgeon’s motion for summary judgment and because discovery was not complete as to the surgeon’s potential liability, the Second District then held that the trial court had abused its discretion in entering summary judgment and therefore reversed entry of summary judgment. It stated

Dr. Crowell was entitled to have an opportunity to oppose the summary judgment motion.... Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery.... Under the circumstances presented in this case, entry of summary judgment was premature.

Id. (citation omitted); see also Epstein v. Guidance Corp., Inc., 736 So.2d 137, 138 (Fla. 4th DCA 1999) (reversing entry of summary judgment because trial court should not have ruled on motion for summary judgment until completion of relevant discovery).

Crowell holds that a defendant has standing to oppose a codefendant’s motion for summary judgment, even though the defendant has not asserted a claim against the codefendant. The defendant in Cro-well was opposing the summary judgment in order to preserve his right to add the codefendant as a Fabre defendant — a right that would be lost if the codefendant obtained summary judgment.

We find the Second District’s ruling in Crowell persuasive. We, therefore, find the trial court abused its discretion and reverse the order granting the motion for summary judgment and remand for further proceedings consistent with this opinion. We do not pass on the merits of whether there is evidence of negligence on the part of Bob’s Barricades.

Reversed and Remanded for Further Proceedings.

CIKLIN and LEVINE, JJ„ concur.

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


author: GERBER, J.

text:
    William GUERRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5023.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant appeals his conviction for burglary of a conveyance. He primarily argues that the trial court abused its discretion in allowing the state to play a DVD showing him and a co-defendant conversing in Spanish in an interrogation room, and allowing a deputy, who observed the conversation, to provide a translated account of the conversation for the jury. He relies on cases such as Ortega v. State, 721 So.2d 350, 351 (Fla. 2d DCA 1998), which held that a trial court erred when it allowed a detective to translate a defendant’s videotaped statements for a jury. The state responds that the defendant did not preserve these arguments for review. We agree with the state and affirm.

The defendant initially objected to the deputy serving as an interpreter of the DVD. The trial court sustained that objection. The state then requested to play the DVD without audio. The defendant responded that the DVD should not be admitted into evidence. However, without obtaining a ruling on that objection, the defendant immediately raised the alternative argument that, if the court were to admit the DVD into evidence, then the DVD should be played with the audio and the video. The defendant stated that the jurors who spoke Spanish would “act as a safeguard.” Because the defendant turned to this alternative argument without obtaining a ruling on his objection to the admission of the DVD, the defendant did not preserve that objection for review. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (“A plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review.”).

Later in the trial, the defendant did not object when the state: (1) offered the DVD into evidence; (2) requested to publish the DVD to the jury; and (3) asked the deputy to comment on what he heard. By not objecting at these times, the defendant waived his earlier-sustained objection to the deputy serving as an interpreter of the DVD. See Tengbergen v. State, 9 So.3d 729, 731 (Fla. 4th DCA 2009) (defendant’s trial objection was waived by his failure to object when the evidence was introduced). When the deputy provided his translated account of the conversation played on the DVD, the defendant’s only two objections to the deputy’s testimony pertained to the deputy at one point “characterizing,” and later using the phrase “the bottom line.” We do not perceive either of those objections as renewals of the defendant’s earlier-sustained objection to the deputy serving as an interpreter. See Murray v. State, 3 So.3d 1108, 1117 (Fla.2009) (“While no magic words are needed to make a proper objection, the articulated concern must be ‘sufficiently specific to inform the court of the perceived error.’ ”) (citations omitted). We also find that any possible error in the admission of the DVD or the deputy’s testimony does not rise to the level of fundamental error. See Caraballo v. State, 39 So.3d 1234, 1249 (Fla.2010) (“Fundamental error is that which ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (citation omitted).

We have considered the defendant’s other two arguments in this appeal. We affirm as to those arguments without further comment.

Affirmed.

WARNER and STEVENSON, JJ., concur.


text:
    Byron DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1860.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 52 So.3d 697 (Fla. 4th DCA 2010); Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Rod L. BRUCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3142.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gunn v. State, 641 So.2d 462 (Fla. 4th DCA 1994).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Juan Carlos CALDERON, Appellee.
    No. 4D09-3874.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, Assistant Public Defender, West Palm Beach, for appellant.
    Clyde G. Killer of Ohle & Ohle, P.A., Okeechobee, appellee.
   PER CURIAM.

Affirmed. Morris v. State, 622 So.2d 67, 68 (Fla. 4th DCA 1993).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    ACADEMY EXPRESS, LLC, Appellant, v. BROWARD COUNTY, a political subdivision of the State of Florida; and Limousines of South Florida, Inc., a Florida corporation, Appellees.
    No. 4D09-3881.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.

      Joseph M. Goldstein and Temple Fett Kearns of Shutts & Bowen LLP, Fort Lauderdale, for appellant.
    Jeffrey J. Newton, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Benjamin R. Salzillo, Assistant County Attorney, Fort Lauderdale, for appellee Broward County.
    William J. Cea, Daniel L. Wallach and Gary C. Rosen of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee Limousines of South Florida, Inc.
   PER CURIAM.

This appeal stems from a bid protest initiated by Academy Express, LLC (hereinafter “Academy”) against Broward County for award of a bus shuttle service contract to Limousines of South Florida, Inc. (hereinafter “LSF”). Academy ultimately filed a complaint in circuit court seeking declaratory and injunctive relief. The complaint alleged in count I that the County’s action in awarding the contract was arbitrary and capricious, and in count II that the contract was “fatally flawed.” The complaint was dismissed by the circuit court for failure to state a cause of action. We affirm and write only to address Academy’s allegations in count I.

Academy initially learned of the bus shuttle services contract when Broward County issued a Request for Letters of Interest (“RLI”) seeking qualified vendors. The Broward County Procurement Code describes the RLI process as follows:

[A] method of selecting a vendor whereby all vendors are invited to submit a summary of their qualifications and state their interest in performing a specific job or service. From these Letters of Interest, the County determines which vendors shall be “shortlisted,” interviewed and enter into final negotiation for a contract.

BROWARD County Procurement Code § 21.8b.39. (2007). The RLI contained twenty-one qualification requirements that vendors had to meet. The County formed a selection committee tasked with choosing vendors who had submitted responsive letters of interest to be shortlisted and interviewed.

Four vendors, including Academy, were shortlisted and permitted to make oral presentations. The vendors were then scored and ranked, resulting in a tie between Academy and LSF. Broward County did not make oral or written findings explaining how the rankings were determined, nor was it required to do so by the Procurement Code. The tie was ultimately broken in favor of LSF.

Academy filed a bid protest with Broward County, alleging that LSF misrepresented material information in its letter of interest. The Broward County Procurement Code permits protests based upon procedural deviations and errors only. The Code further provides that allegations of misrepresentation by vendors would “not be considered a protest, but [would] be reviewed and, if appropriate, in the County’s sole discretion, used for purposes of evaluating the responsibility or qualifications of the vendor(s).” Broward County Procurement Code § 21.118. (2007). When Academy’s bid protest was denied by the County, Academy appealed to a hearing officer who also denied the protest, reasoning that it did not allege procedural errors. Academy also submitted its allegations of misrepresentation by LSF to the County Purchasing Director, County Attorney and County Auditor who forwarded the allegations to the selection committee.

The contract was subsequently awarded to LSF and Academy’s complaint followed. Academy alleged in count I that LSF misrepresented its experience. The RLI asked whether vendors had operated a bus shuttle service of a certain size and for a requisite amount of time. The complaint alleged that LSF answered “Yes” to each of these questions when, in fact, LSF had not met these qualifications. The circuit court dismissed the complaint and Academy appealed.

Generally, the standard of review of a dismissal for failure to state a cause of action is de novo. See Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So.2d 647, 651 (Fla. 1st DCA 2007). However, in cases where the complaint seeks declarative relief, the standard of review is an abuse of discretion. See N & D Holding, Inc. v. Town of Davie, 17 So.3d 819, 820 (Fla. 4th DCA 2009). The complaint’s allegations and all reasonable inferences from them must be accepted as true. See id. Further, a public body has wide discretion in awarding a contract, and when the decision is based on an honest exercise of that discretion, it should not be overturned simply because reasonable persons might disagree. See Emerald, 955 So.2d at 651. In the contract procurement context, whether an action was arbitrary or capricious depends upon whether the awarding committee complied with its own proposal criteria. See id. at 653. A contract award based on known misrepresentations by a vendor could constitute arbitrary and capricious action. See Statewide Process Serv. of Fla., Inc. v. Dep’t of Transp., No. 95-5035BID, 1995 WL 1053244 (Fla.Div.Admin.Hrgs. Dec. 18, 1995) [hereinafter “Statewide ”].

Academy relies on Statewide in arguing that its complaint sufficiently alleged arbitrary and capricious action by Broward County. In Statewide, a hearing officer determined that reliance on a facially non-responsive proposal in awarding a contract constituted arbitrary and capricious action by the awarding agency. Id. at *4-*5. The proposal failed to answer key questions regarding experience and personnel and, on its face, was non-responsive to the agency’s request for proposals. Id. Had Academy’s complaint alleged that LSF’s letter of interest was facially non-responsive, or that Broward County knew that LSF misrepresented information, reliance on Statewide would be appropriate. In that situation, the complaint would have alleged that Broward County chose a vendor that it knew was not qualified and, thus, failed to comply with its own criteria. Such failure to comply could constitute arbitrary and capricious action. See Emerald, 955 So.2d at 653. However, unlike the proposal at issue in Statewide, Academy’s complaint clearly states that LSF’s letter of interest was facially responsive because LSF answered ‘Tes” to each question regarding experience. The only facts in the complaint supporting the selection committee’s knowledge of misrepresentation are in the form of Academy’s allegations which were forwarded to the selection committee. These allegations, alone, do not establish a cause of action for arbitrary and capricious conduct by the County. Thus, dismissal of the complaint is affirmed.

Affirmed.

WARNER, POLEN and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. David PITTS, Appellee.
    No. 4D09-4472.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

The State of Florida appeals an order granting a defendant’s rule 3.190(c)(4) motion to dismiss, asserting that the factual allegations of the motion were not sworn to by the defendant as required by the rule. While the rule unquestionably requires that the motion be sworn, we find the State waived the deficiency and affirm.

The State filed an information charging David Pitts with trafficking in- cocaine (count I), possession of MDMS (count III), possession of a firearm by a convicted felon (count IV), and possession of marijuana (count V). Pitts filed a rule 3.190(c)(4) motion seeking to dismiss the firearm possession charge (count IV). The unsworn motion asserted the following pertinent facts: “[t]he defendant resided in the residence with numerous other parties”; “[a]t the time of the execution of the search warrant Pitts was present in the house with at least four (4) other people”; and “[t]he firearm was found on the window sill next to the co-defendant.” Pitts contended that, based on these facts, he could not be convicted of possession of a firearm, even under a constructive possession theory. The State did not file a written traverse.

At a subsequent hearing on the motion, defense counsel made the additional representation that the State had provided photographs depicting a co-defendant holding the gun, insisting Pitts just happened to be present when the warrant was executed. The prosecutor did not dispute the facts asserted in the defendant’s motion, but did add that surveillance video put Pitts at the residence on a number of occasions prior to the execution of the warrant — a fact that is not inconsistent with the motion’s allegation that the defendant resided at the residence with numerous others. The prosecutor also added that the police had been able to get a DNA profile from the gun and sought an order compelling the defendant to submit to DNA testing. At no time during the hearing did the State raise any objection to the fact that the defendant’s motion was not sworn. Similarly, the defendant failed to object to the State’s failure to file a written traverse. Following these proceedings, the trial court granted the motion to dismiss count IV without prejudice and granted the motion to compel DNA testing, indicating the State could re-file if the DNA on the gun belonged to the defendant.

Florida Rule of Criminal Procedure 3.190(c)(4) permits a defendant to seek dismissal of charges against him, at any time, on the ground that “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” The language of the rule expressly contemplates that “[t]he facts on which the motion is based should be alleged specifically” and that the motion be sworn. Fla. R.Crim. P. 3.190(c). The rule permits the State to file a traverse, denying under oath and with specificity the facts alleged in the motion. See Fla. R.Crim. P. 3.190(d). “If the State does not file a traverse specifically denying the factual matters asserted in the motion to dismiss, the factual matters are considered admitted.” State v. Beaubrun, 36 So.3d 897, 899 (Fla. 3d DCA 2010) (citing Fla. R.Crim. P. 3.190(d)).

Here, the State argues that the defendant’s failure to swear to the factual allegations in the rule 3.190(c)(4) motion was fatal and requires this court to reverse. There is no question that the rule requires that the motion be sworn and that a deficiency in the oath justifies denial of the motion. See State v. Justo, 555 So.2d 893, 894 (Fla. 3d DCA 1990) (holding, in a case where State objected to oath underlying motion, that “[ujpon finding that the motion was procedurally invalid because of the defective jurat,, the court should have gone no further and should have denied ... motion to dismiss”). In the instant case, however, the State failed to object to the fact that the motion was unsworn. The State’s failure to object to the un-sworn motion amounted to a waiver of the deficiency. See, e.g., State v. Gomez, 508 So.2d 784, 785 (Fla. 5th DCA 1987) (finding motion procedurally defective as it was not sworn to by the defendant, but State waived such defect by failing to object); Goodmakers v. State, 450 So.2d 888, 890 (Fla. 2d DCA 1984) (holding trial court erred in denying motion to dismiss, and noting that, while motion was sworn to by counsel, not the defendant, deficiency had been waived by State’s failure to object); State v. Mayle, 406 So.2d 108, 108 n. 3 (Fla. 5th DCA 1981) (affirming order granting rule 3.190(c)(4) motion despite fact that motion was sworn to by counsel as State waived deficiency by failing to object).

Accordingly, we find no error in the trial court’s granting of the motion to dismiss count IV of the complaint.

Affirmed.

WARNER and POLEN, JJ., concur.

      . Count II was directed to a co-defendant.

      . Further, while the State complains on appeal that the hearing was unnoticed, during the hearing, the prosecutor neither expressed surprise that the motion was heard nor sought a continuance.


text:
    Maurice A. ANDERSON-PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4827.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelfrard v. State, 34 So.3d 221 (Fla. 4th DCA 2010).

GROSS, C.J., STEVENSON and GERBER, JJ., concur.


text:
    Stefan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4879.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Stefan Johnson, Belle Gla.de, pro se.
    No appearance required for appellee.
   PER CURIAM.

We hereby redesignate Johnson’s originally filed Petition for Writ of Certiorari as an appeal and summarily affirm.

Redesignated as an appeal; Affirmed.

GROSS, C.J., POLEN and LEVINE, JJ., concur.


author: GRIFFIN, J.

text:
    Johnny Cruz CONTRERAS, Petitioner, v. 21ST CENTURY INSURANCE COMPANY, etc., Respondent.
    No. 5D10-869.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Thomas Andrew Player, of Weiss Legal Group, P.A., Maitland, for Petitioner.
    Randy Fischer and Heather L. Komar-nisky, of Boehm, Brown, Fischer, Har-wood, Kelly & Scheihing, P.A., Ocala, for Respondent.
   GRIFFIN, J.

Petitioner, Johnny Cruz Contreras, seeks certiorari review of a “Decision and Opinion” of a single judge of the Seminole County Circuit Court, sitting in its appellate capacity, affirming the county court’s final judgment in favor of Respondent, 21st Century Insurance Company of California, Inc., in the declaratory judgment action that Petitioner filed. Petitioner also seeks certiorari review of the same court’s decision to award appellate attorney’s fees to Respondent for the circuit court appellate proceeding. We see no basis to disturb the decision; however, the award of attorney’s fees represents clear legal error.

In December 2007, Petitioner was injured in an automobile accident. A few days later, Petitioner’s counsel sent a letter to Respondent requesting a copy of any rejection of uninsured motorist [“UM”] coverage signed by Petitioner. In response to Petitioner’s letter, on January 9, 2008, Respondent faxed Petitioner’s counsel a copy of the policy declaration page. The policy declaration page indicated that Petitioner’s policy contained no UM coverage. On January 10, 2008, Petitioner’s counsel again sent a letter to Respondent requesting a copy of any written rejection of UM coverage signed by Petitioner.

On March 20, 2008, Petitioner’s counsel filed an action for declaratory judgment in the county court, pursuant to chapter 86, Florida Statutes. In his complaint, Petitioner alleged the following in pertinent part:

8. On or about January 10, 2008, Plaintiff gave a proper notice of covered loss and made a specific request for a copy of the UM rejection. On January 24, 2008, Plaintiff again requested a copy of the UM Rejection Form from Defendant. However, Defendant failed to provide this document.
9. Section 627.4137, Florida Statutes, reads, to wit:
627.4137 Disclosure of certain information required.—
1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance:
(a) The name of the insurer.
(b) The name of each insured.
(c) The limits of the liability coverage.
(d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement.
(e) A copy of the policy.
In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant’s attorney,
shall disclose the name and coverage of each known insurer to the claimant and shall forward such request for information as required by this subsection to all affected insurers. The insurer shall then supply the information required in this subsection to the claimant within 30 days of receipt of such request.
10. Plaintiff, by and through his attorney and pursuant to Florida Statutes and the Policy, sent, by facsimile on January 10, 2008, and on January 24, 2008, his request to the Defendant to provide a copy of the UM Rejection!!] Defendant has refused and/or failed to respond to Plaintiffs request for a copy of the UM Rejection.
11. As a result of Defendant’s failure or refusal to respond to Plaintiffs numerous requests for a copy of the UM Rejection, Plaintiff has been placed in doubt as to his right under Florida Statutes, Sections 627.736 and 627.4137, and the Policy, to obtain this information upon request and Defendant’s obligation to provide this required information.

Petitioner’s complaint included a request for attorney’s fees pursuant to section 627.428, Florida Statutes. Respondent promptly served its Answer and Affirmative Defenses, which included as an exhibit a copy of the written UM rejection form signed by Petitioner. Respondent incorporated a motion to dismiss or abate within its Answer and Affirmative Defenses. Respondent’s motion to dismiss alleged, inter alia, that Respondent had already produced the UM rejection form prior to the filing of Petitioner’s complaint and that it was again producing the requested form with its Answer and Affirmative Defenses.

Three months later, Respondent served a motion for attorney’s fees and sanctions pursuant to section 57.105, Florida Statutes, again asserting that it had provided the UM rejection form to Petitioner by facsimile on January 22, 2008. Respondent more specifically claimed that the UM rejection form was faxed directly from a computer by a former employee of Respondent named Crystal Pacarro, and the evidence that the form had been provided was a claim file log note. The motion purported to attach the claim file log note as exhibit “A,” and also to attach an affidavit of an unidentified individual named “Schrieber.” However, the alleged exhibits were neither attached to the motion, nor, apparently, separately filed with the court. According to Petitioner:

The exhibits are not listed on the trial court docket, were not part of the record on appeal to the Circuit Court, and do not appear to have ever been before the trial court. As such, there is no record evidence to contradict the affidavit of trial counsel for Petitioner which states that the requested uninsured motorist rejection form was received for the first time after suit was filed.

Contemporaneous with its motion for sanctions, Respondent also served a motion for judgment on the pleadings. Respondent’s motion for judgment on the pleadings alleged, as in its motion for sanctions, that the requested UM rejection form was provided both before Petitioner’s complaint was filed and after the filing of the complaint. On October 1, 2008, the court heard Respondent’s motion for judgment on the pleadings and, on October 15, 2008, entered an order granting the motion.

The next day, Petitioner served a “Notice of Confession of Judgment, Motion for Summary Judgment and Motion for Attorney Fees and Costs.” Petitioner’s motion argued that the action for declaratory judgment was properly before the court and that Respondent confessed judgment and abandoned all defenses to Petitioner’s action for declaratory judgment when it provided, after the lawsuit commenced, exactly that which Petitioner sought in its declaratory action. In addition, Petitioner argued that Respondent’s confession of judgment entitled Petitioner to attorney’s fees pursuant to section 627.428, Florida Statutes. Respondent, thereafter, served its response to Petitioner’s motion for summary judgment and incorporated its own motion.

The trial court heard argument on the parties’ competing motions. At the close of the hearing, the trial court denied Petitioner’s motion and granted final judgment for Respondent. A review of the hearing transcript reveals that the court was particularly persuaded by Respondent’s contention that section 627.4137, Florida Statutes, did not include the UM rejection letter as one of the items required to be produced by a liability insurer upon the request of a claimant. The trial court expressly rejected Petitioner’s argument that a written UM rejection letter “is part and parcel of the [insurance] policy.” In sum, the trial court found that Respondent had no statutory obligation to provide the written UM rejection form.

On December 8, 2008, the trial court entered its “Order on Motion for Summary Judgment/Order on Motion for Attorney’s Fees and Costs on Plaintiff Cru2/Final Judgment Denying Declaratory Relief and for a Dismissal” [“Final Judgment”]. In this order, the county court concluded in pertinent part:

ORDERED AND ADJUDGED that the Plaintiff CRUZ’s Notice of Confession of Judgment is DENIED as moot, it is further
ORDERED AND ADJUDGED that Plaintiff CRUZ’s Motion for Summary Judgment is DENIED, and it is further
ORDERED AND ADJUDGED that Plaintiff CRUZ’s Motion for Attorney’s Fees and Costs be and is hereby DENIED, and it is further
The determination of the Court that no basis exists for any further declaratory relief, that no basis exists for any monetary recovery of a policy benefit, that no obligation exists to produce any UM/UIM form under Florida Statute § 6274137 (2007) and it is
THEREFORE ORDERED AND ADJUDGED that the parties to this action shall go hence, without day, and that FINAL JUDGMENT be and is hereby entered in favor of Defendant 21st CENTURY INSURANCE COMPANY OF CALIFORNIA.

(Emphasis added).

Petitioner appealed to the circuit court. In his Initial Brief, Petitioner argued that Respondent confessed judgment as a matter of law when it provided the signed UM rejection form after the lawsuit commenced and that the trial court committed error by entertaining Respondent’s defenses.

In its Answer Brief, Respondent argued that, in providing a copy of the signed UM rejection form, it did not “confess judgment” for purposes of section 627.428, Florida Statutes, because Petitioner was not forced to sue to obtain this information. Respondent further argued that because Petitioner’s action did not seek benefits, but instead sought a declaration of his right to obtain a signed UM rejection form, the confession of judgment doctrine did not apply. Further, relying on this Court’s opinion in Progressive American Ins. Co. v. Rural/Metro Corp., 994 So.2d 1202 (Fla. 5th DCA 2008), Respondent characterized UM coverage as a “first party benefit,” not a liability coverage, suggesting that section 627.4137, Florida Statutes, did not apply.

On October 27, 2009, the circuit court issued its opinion in Petitioner’s direct appeal. The circuit court concluded:

Plaintiff/app ellant filed a single count complaint alleging he was in doubt whether he had uninsured or under-insured coverage [FN. 1]; that he had requested pre-suit a copy of the statutory UM rejection form, but that appellee insurer had failed to furnish one. Ap-pellee insurer filed an answer alleging it had furnished [a] copy of the form to appellant before suit was filed, and attached and incorporated a copy of the form in its answer. The form showed appellant rejected UM coverage. Appellant does not dispute the authenticity of the attached form. The county court then granted appellee’s motion for judgment on the pleadings and entered final judgment in favor of appellee, from which this appeal is taken.
FN. 1: It seems to this Court that a reasonably prudent person would not have been in doubt but would have known whether they had UM coverage; would have kept their auto policy and allied papers with their other important papers where they could find them; or, failing that, would have a quick telephone call to his insurance agent to find out.
Appellant argues here that the “confession of judgment” doctrine applied, entitling him to a final judgment and award of attorneys fees and costs. Appellant cites a number of cases, none of which are factually on point and thus not controlling.
We affirm on the authority of the Fifth District Court’s decision in State Farm Insurance Company Ins. Co. (sic) v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007). There, the court held that the confession of judgment doctrine applies “where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in the insurer’s change of heart and payment before judgment, [citations omitted].” Lorenzo. The court went on further to observe that “courts generally do not apply the doctrine where the insureds were not forced to sue to receive benefits; applying the doctrine would encourage unnecessary litigation by rewarding a race to the courthouse for attorney’s fees even where the insurer was complying with its obligations under the policy, [citations omitted.]” Lorenzo. Since Appellant was properly receiving benefits under the PIP coverage of his policy and was not entitled to UM benefits, we conclude the county court correctly entered a final judgment for appellant [sic]. Consequently, the final judgment is
AFFIRMED.
Further, appellant’s motion for appellate attorney[’]s fees and costs is DENIED. Appellee’s motion for appellate attorney’s fees and costs is GRANTED. This case is REMANDED to the county court to determine the amount.

(Footnote in original).

Petitioner moved for rehearing on the court’s award of appellate attorney’s fees, but the court denied the motion, ruling that the complaint was “not supported by the material facts necessary to establish the single count claim presented to the Trial Court or would not be supported by the application of then existing law to those material facts.” Petitioner now seeks certiorari review of the circuit court’s appellate decision and fees award.

The metamorphosis of this declaratory judgment in the course of the proceedings below is unfortunate because the decision actually made by the county court — that Petitioner had no right under section 627.4137, Florida Statutes, to receive, presuit, a copy of the signed UM rejection form from Respondent upon Petitioner’s request for same — is an interesting one. As to the issue actually addressed on appeal, however, we reject the court’s conclusion that the confession of judgment doctrine cannot apply in a case where a party entitled to items specified in section 627.4137, Florida Statutes (2007), was denied them until after filing suit to enforce its rights. Under the unusual facts of this case, however, including the fact that the question whether the form had been turned over before suit was filed was never factually determined, we agree that turning over the form after suit was filed did not constitute a confession of judgment as a matter of law. This appellate issue does not, however, meet the threshold for section 57.105 fees, either as to its factual or legal component. Moreover, the trial court’s award was predicated on an absence of merit at the trial court level. The appellate court’s award of section 57.105 fees should be based on a lack of merit of the appeal, not at the trial level. In many cases, it may be the same, but often, not. This case presents an extreme example of when they are not the same. Accordingly, we deny the petition for writ of certiorari on the merits, but vacate the award of appellate attorney’s fees.

WRIT DENIED; FEES VACATED.

SAWAYA and COHEN, JJ., concur.

      . Section 627.727(1), Florida Statutes (2007), provides in pertinent part:
      No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state ... unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

      (Emphasis added). With respect to the written rejection of UM coverage, section 627.727(1), Florida Statutes (2007) further requires that specific language be included in any written rejection letter to insure that the insured individual has made "an informed, knowing rejection of coverage....” Florida courts have held that if the insurance company fails to obtain a written rejection, the insured is entitled to uninsured motorist coverage up to the limit of the bodily injury liability coverage provided by the policy. Bell v. Progressive Specialty Ins. Co., 744 So.2d 1165, 1166 (Fla. 1st DCA 1999).

      . According to Petitioner, this was the first time that Respondent had produced the signed UM rejection document.

      . We cannot find in the record that the trial court ever entered any order regarding Respondent's July 31, 2008, motion for attorney’s fees and sanctions.


author: ORFINGER, J.

text:
    Patricia PARRISH, Appellant, v. CITY OF ORLANDO, Appellee.
    No. 5D09-3903.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.

      James T. Lynch, of Morgan & Morgan, P.A., Orlando, for Appellant.
    Martha Lee Lombardy, Orlando, for Ap-pellee.
   ORFINGER, J.

Patricia Parrish appeals the denial of her motion for additur and/or a new trial following a jury verdict in her personal injury action against the City of Orlando, Florida. The jury awarded Parrish substantial past and future economic damages, but no past or future noneconomic damages. Based on the evidence presented, Ms. Parrish contends that the verdict was either inadequate or against the manifest weight of the evidence. The City concedes error as to past noneconomic damages. We agree with Ms. Parrish that she is entitled to a new trial on all damages and reverse.

Ms. Parrish and her husband were walking to the Citrus Bowl football game when she tripped and fell on an uneven sidewalk, seriously injuring her left shoulder. She and her husband filed a negligence action against the City because the City was responsible for the maintenance of the sidewalk where the accident occurred.

After her fall, Ms. Parrish began treatment with Brian Barnard, M.D., of the Jewett Orthopedic Clinic. Dr. Barnard testified that Ms. Parrish suffered a com-minuted proximal humerus fracture in her left shoulder. Due to the severity of the injury, Dr. Barnard performed shoulder replacement surgery. Ms. Parrish subsequently developed axillary nerve palsy, requiring another surgery. He opined that these medical conditions were all due to the trauma/injury to her shoulder as a result of the fall.

Ms. Parrish’s recovery was not uneventful. She experienced post-surgical complications that required Dr. Barnard to conduct an arthroscopy of the shoulder and a repair of the rotator cuff. Ms. Parrish’s shoulder also became infected, requiring removal of the shoulder implant and placement of an antibiotic cement spacer in her shoulder. In her final surgery, Ms. Parrish was given a new shoulder implant. Throughout her treatment with Dr. Barnard, Ms. Parrish was also attending physical therapy. Dr. Barnard testified that the shoulder implant would need to be followed for the remainder of Ms. Parrish’s life to ensure that it remained in place, maintained its function, and did not loosen or become infected.

In total, Ms. Parrish had five surgeries on her shoulder and was left with a limited range of motion in her arm due to scar tissue and severe nerve damage. Dr. Barnard reported that while Ms. Parrish has specific limitations in overhead reaching, she still functioned well below shoulder height and up to a little over her head. He believed that she could reach the back of her head with extra effort. Dr. Barnard concluded that Ms. Parrish suffered a permanent injury to her left shoulder as a result of the fall. The City offered no countervailing medical testimony.

Ms. Parrish admitted that prior to her fall, she had numerous pre-existing medical conditions, including diabetes, hypertension, and mitral valve insufficiency. She had undergone gastric bypass surgery, a mitral valve replacement, and heart by-pass surgery. However, prior to the accident, she had no problems with her left shoulder. After the accident, she is in constant pain, and has no strength in her left shoulder as she has lost nerves and muscle. She testified that she has very limited mobility in her arm. Ms. Parrish’s husband indicated that he can force her arm above her shoulder, but that it causes extreme pain. Despite her various infirmities, following the accident, Ms. Parrish and her husband travelled to the Florida Keys, North Carolina and Georgia, and also took an extended trip to Europe with a personal attendant.

Following a trial, the jury allocated 85% of the negligence to Ms. Parrish, and 15% of the negligence to the City. The jury awarded $51,929.02 for past medical expenses, and $130,000 for future medical expenses. However, the jury awarded no past or future noneconomic damages. After Ms. Parrish’s motion for additur and/or new trial was denied, this appeal followed.

Ms. Parrish argues that the trial court abused its discretion in denying her motion for additur or new trial because the jury’s verdict was inadequate by failing to award any noneconomic damages. She contends that based on Deklyen v. Truckers World, Inc., 867 So.2d 1264 (Fla. 5th DCA 2004), and Ellender v. Bricker, 967 So.2d 1088 (Fla. 4th DCA 2007), she is entitled to a new trial on damages because the verdict fails to comport with the manifest weight of the evidence.

We review a trial court’s denial of a motion for additur or new trial for an abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999); Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998); Ellender, 967 So.2d at 1092; Deklyen, 867 So.2d at 1266. A verdict comes to an appellate court clothed with a presumption of regularity and should not be disturbed if supported by the evidence. Deklyen, 867 So.2d at 1266. A trial court’s consideration of a motion for additur is governed by section 768.74, Florida Statutes (2009), which requires the court to determine if the “amount [of damages awarded] is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1), Fla. Stat. (2009). “If the [trial] court finds that the amount awarded is excessive or inadequate, it [is required to] order a remittitur or [an] additur....” § 768.74(2), Fla. Stat. (2009). “If the party adversely affected by [the] remittitur or additur does not agree, the court [must] order a new trial ... on the issue of damages only.” § 768.74(4), Fla. Stat. (2009).

While the City properly concedes error as to past noneconomic damages, it argues that the trial court correctly denied Ms. Parrish’s motion for additur and/or motion for new trial as to future noneconomic damages. It contends that Florida law permits an award of future economic damages with no corresponding award for future noneconomic damages.

We agree that “an award of economic damages, including future damages, does not, as a matter of law, require an award of noneconomic damages.” Deklyen, 867 So.2d at 1267. A jury may refuse to award future noneconomic damages when the defendant has presented evidence disputing such damages or when future noneconomic damages are uncertain or speculative. As the supreme court wrote in Manasse,

[fjuture damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow ... that an award of future medical expenses requires an award of noneconomic damages.

707 So.2d at 1111-12 (quoting Allstate Ins. Co. v. Manasse, 681 So.2d 779, 784-85 (Fla. 4th DCA 1996) (Klein, J., dissenting)); see also Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So.2d 1183, 1184-85 (Fla. 5th DCA 2009) (holding that jury’s failure to award injured horse rider damages for future pain and suffering did not warrant granting rider new trial, even though jury awarded rider $27,000 for future medical expenses over 27 years; record did not contain indisputable medical evidence of permanent impairment or that rider would continue to experience pain into future, and award of future medical expenses was consistent with treating physician’s testimony that rider’s condition should be monitored on annual basis); Allstate Ins. Co. v. Campbell, 842 So.2d 1031, 1035 (Fla. 2d DCA 2003) (“[A]s in Manasse, the need for future economic damages was disputed and the jury awarded only minimal future economic damages. Therefore, the jury’s failure to award future noneconomic damages was supported by the evidence.... ”); Dyes v. Spick, 606 So.2d 700, 704 (Fla. 1st DCA 1992) (“Due to the somewhat speculative nature of what may occur in the future, it is perhaps not unwise to afford great latitude to the jury in its determinations as to [future] damages.”). However, where, as here, the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law. Ellender, 967 So.2d at 1093; Deklyen, 867 So.2d at 1268; Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708, 710 (Fla. 3d DCA 1999).

As the City argues, a jury is free to accept or reject an expert’s testimony or to give it such weight as it deserves, considering the witness’s qualifications, the stated basis for the witness’s opinion, and all of the evidence in the case. See Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla.1993); State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061, 1062 (Fla. 4th DCA 1995). However, when medical evidence on permanence or causation is undisputed, unimpeached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. See, e.g., Campbell v. Griffith, 971 So.2d at 232, 236 (Fla. 2d DCA 2008). Here, Ms. Parrish’s treating doctor testified that her shoulder injury was a permanent injury caused by the fall, and as the City concedes, it presented no opposing testimony. Thus, there was no other medical explanation for the injury’s etiology.

The failure to make an award for future noneconomic damages is unreasonable when there is undisputed evidence of permanent injury and a need for treatment in the future. Ellender, 967 So.2d at 1093. Here, the jury awarded Ms. Parrish future medical expenses of $10,000 per year for her thirteen-year life expectancy. Because the evidence is undisputed that the trip and fall caused Ms. Parrish’s injuries, and that she would most likely need some type of future therapy as the doctors monitored the shoulder implant, we conclude the jury should have awarded Ms. Parrish some future noneconomic damages. See Garrett v. Miami Transfer Co., 964 So.2d 286, 291 (Fla. 4th DCA 2007) (holding that “jury’s failure to award future [noneco-nomic] damages was unreasonable” where jury awarded significant amount for future medical expenses and where evidence was undisputed that accident caused plaintiffs injuries and that he would need future treatment, “indicating future pain”); Deklyen, 867 So.2d at 1268 (holding where jury awards plaintiff past and future economic damages and zero damages for either past or future pain and suffering despite indisputable evidence that plaintiff suffered at least some pain from injury, and uncontroverted evidence that pain continued and would continue well after injury, damage award is grossly inadequate, and new trial on issue of damages is required); Dolphin, 731 So.2d at 710-11 (reversing zero award for noneconomic damages and remanding for additur or new trial on past and future noneconomic damages where evidence was undisputed that plaintiff experienced and will experience pain and suffering as result of accident). In light of the undisputed and unim-peached evidence, the jury’s verdict awarding no past or future noneconomic damages was against the manifest weight of the evidence. Accordingly, a new trial on the issue of damages is required.

REVERSED and REMANDED for a new trial on damages.

GRIFFIN and LAWSON, JJ„ concur.

      . Dr. Barnard explained that the axillary nerve is very important for control of the shoulder.


author: EVANDER, J. SCHWARTZ, A., Senior Judge,

text:
    Tracie CORISTINE, Appellant, v. Thomas CORISTINE, Appellee.
    No. 5D08-3724.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Michael B. Jones, Cynthia M. Winter, Robert J. Wheelock and Eric Lee Bensen, of The Wheelock Law Firm, LLC, Orlando, for Appellee.
   EVANDER, J.

Tracie Coristine (wife) appeals from a final judgment of dissolution of marriage. The primary issue on appeal is whether the trial court abused its discretion by ordering the sale and partition of the marital home rather than awarding exclusive use and possession of the home to the wife until the youngest of the parties’ three children reaches the age of majority. We affirm.

As a general rule, a trial court should award the primaiy residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances. See Martin v. Martin, 959 So.2d 803, 805 (Fla. 1st DCA 2007); Schumaker v. Schumaker, 931 So.2d 271, 276 (Fla. 5th DCA 2006); Dehler v. Dehler, 648 So.2d 819, 820 (Fla. 4th DCA 1995). “Special circumstances” exist where the parties’ incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expenses of maintaining the marital residence. Pineiro v. Pineiro, 683 So.2d 148, 149 (Fla. 3d DCA 1996). In the instant case, the trial court succinctly addressed this issue in the final judgment:

The Mother wants to keep the Home as a place to raise the children. The evidence shows the Home is a wonderful place for the Children to grow up but the parties do not have the financial capability to pay the mortgage, taxes and other ownership costs. When asked how she will manage if the Home is awarded to her the Mother said she would figure it out, do what she needs to do, borrow from her brother or sell an acre. Her answer does not convince the court that she is ready or able to keep the Home if she is given exclusive possession and made financially responsible for it.

The trial court’s decision is supported by competent, substantial evidence.

The parties were married in March 1994. The petition was filed in August 2004, and the trial concluded in August 2008. At the time of the trial, the husband was fifty years old and the wife was forty-five years old. They had three children, the youngest being eight and one-half years old. During the course of the marriage, the parties had financially benefited from a substantial severance package received by the husband from a prior employment and an inheritance received by the wife. However, by the time of the trial, their financial fortunes had changed dramatically. The parties had virtually no liquid assets and the wife claimed debts of approximately $100,000. The marital home, which had been the wife’s childhood home, had been purchased in 2003 from the wife’s father for $500,000. By the time of trial, the parties had paid $200,000 toward the purchase price. A balloon payment for the remaining $300,000 was due in December 2013. Subsequent to the purchase, the parties also spent approximately $300,000 in renovating and remodeling the residence. The trial court found the fair market value of the property to be almost $2,000,000. The property taxes on the property are approximately $17,500 per year.

During the parties’ four year separation immediately preceding the trial, the wife and children resided in the marital residence. The trial court found that during this period of time, the wife had done little to become self-sufficient. (She was netting $600 per month boarding horses on the property.) The trial court imputed minimum wage income to the wife. The husband was residing and working in New York City, earning $175,000 per year. The trial court equitably divided the parties’ marital assets, designated the wife as the primary residential parent, ordered the husband to pay child support of $2,487.55 per month and further ordered the husband to pay the wife’s reasonable attorney’s fees.

The husband had paid the wife $4,000 to $4,700 per month for temporary support during this four year separation period. Notwithstanding the receipt of these monies, the wife had borrowed money from family members to pay the property taxes for 2005, 2006, and 2007. Given that the wife would be receiving far less support from the husband than she did during the separation, and given that borrowed money was needed to pay the property taxes for the prior three years, it is understandable why the trial court concluded that the parties did not have the financial capability to pay the mortgage, taxes, and other costs related to ownership of the marital residence.

We find the other issues raised on appeal to be without merit.

AFFIRMED.

JACOBUS, J., concurs.

SCHWARTZ, A., Senior Judge, dissents with opinion.

SCHWARTZ, A., Senior Judge,

dissenting.

I do not believe the alleged inability of the mother to bear the financial burden of maintaining the place in which, not only her children but, unusually enough, she herself grew up, constitutes a cognizable “special circumstance” or as is said in Pino v. Pino, 418 So.2d 311, 312 (Fla. 3d DCA 1982), a “good reason” to deprive the family of that home. Not only is the Court’s professed concern about this issue almost entirely speculative, it involves, even if accurate, no more than the rough equivalent of the burdens which will be imposed by a substitute residence, and should certainly not rebound to the financial benefit of the father. Id. at 311. See Cabrera v. Cabrera, 484 So.2d 1338, 1340 (Fla. 3d DCA 1986) (“[the] additional physical and psychological dislocation [from the family home] should not be imposed upon [the children] unless there is a very good reason indeed for doing so” (quoting Pino, 418 So.2d at 312)); see also Martin v. Martin, 959 So.2d 803, 805 (Fla. 1st DCA 2007) (“As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances.”); MaHinez v. MaHinez, 573 So.2d 37, 43 (Fla. 1st DCA 1990) (“We note that as a general rule, absent special circumstances, the primary residential parent should be awarded exclusive use and possession of the marital home until the youngest child reaches majority.”); Zeller v. Zeller, 396 So.2d 1177, 1179 (Fla. 4th DCA 1981) (“Although the failure to award exclusive possession of the marital home unto the custodial parent until all of the children attain majority or become emancipated would not always constitute error, such awards are so frequently ordered that they have become a generally accepted principle of the law of divorce.”); but cf. Pineiro v. Pineiro, 683 So.2d 148 (Fla. 3d DCA 1996); Kohn v. Kohn, 423 So.2d 575 (Fla. 1st DCA 1982).


text:
    Stanley McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3179.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING AND FOR WRITTEN OPINION

PER CURIAM.

We grant Stanley McCloud’s motion for rehearing and for written opinion, withdraw our previous per curiam affirmance dated December 14, 2010, and substitute the following opinion in its place.

AFFIRMED. See Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010); Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010); Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010).

PALMER, TORPY and LAWSON, JJ., concur.


text:
    Diane WILSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-4557.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Diane Wilson, Orlando, pro se.
    T. Shane Deboard, Orlando, for Appel-lee.
   PER CURIAM.

Although we affirm the final administrative order denying the appellant’s request for recertification of food stamp benefits, we do so without prejudice to the appellant’s submission of receipts and prescriptions from her son’s physicians for over-the-counter (non-prescription) items which may qualify for a medical expense deduction in the food stamp budget for some or all of these items, as recommended by the hearing officer.

AFFIRMED.

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


author: MONACO, C.J.

text:
    Richard Samuel ABBAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-782.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, C.J.

The appellant, Richard Samuel Abbas, pled no contest to two counts of trafficking in cocaine in exchange for a bargained for sentence of five years in prison followed by five years of probation. Prior to tendering his plea Mr. Abbas made several direct and indirect contacts with the State Attorney’s office to make sure that the offer would be held open. He signed a detailed plea agreement, and participated in an extensive plea colloquy with the trial court to assure the voluntariness of his plea, and was offered an opportunity to address the court on the matter of the plea.

Mr. Abbas thereafter sought to withdraw his plea. The trial court declined to do so both orally and by written order. We affirm the judgment and sentence. Because the motion to withdraw the plea was devoid of factual allegations in support of the requested relief, a hearing was not necessary prior to the trial court’s denial of the motion. See Davis v. State, 52 So.3d 697 (Fla. 4th DCA 2010); Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006); see also Robinson v. State, 761 So.2d 269, 274 (Fla.1999), cert. denied, 529 U.S. 1057, 120 S.Ct. 1563, 146 L.Ed.2d 466 (Fla.2000); Brown v. State, 428 So.2d 369, 371 (Fla. 5th DCA 1983).

As there was no abuse of discretion by the trial court, we affirm, but do so without prejudice to Mr. Abbas to file a timely, facially sufficient motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

EVANDER and JACOBUS, JJ„ concur.