author: RAY, J.

text:
    STATE of Florida, Appellant, v. Michael W. JOSEPH, III, Appellee.
    No. 1D11-1351.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Pamela Jo Bondi, Attorney General; and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellant.
    Jeffrey E. Lewis, General Counsel; and Crystal J. Marsh, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Marianna, for Ap-pellee.
   RAY, J.

The State charged inmate Michael W. Joseph III with an organized scheme to defraud the United States Government of $50,000 or more, in violation of section 817.034(4)(a)l., Florida Statutes (2008). Prior to trial, Joseph filed an amended motion to suppress or motion in limine to exclude all evidence allegedly obtained and disseminated by the State in violation of specific provisions in Title 26 United States Code, governing the confidentiality and wrongful disclosure of tax returns and return information. §§ 6103 and 7213. The trial court determined that the State obtained the tax documents in question in violation of federal law. Because Congress has enacted other sanctions for violating the federal provisions at issue, and suppression of such evidence is not an appropriate remedy, the court denied the motion to suppress. Nowicki v. Comm’r of Internal Revenue, 262 F.3d 1162, 1163-64 (11th Cir.2001); United States v. Sumpter, 133 F.R.D. 580, 584-85 (D.Neb.1990). Nonetheless, the court granted the motion in limine and excluded the tax documents the State anticipated introducing as evidence in Joseph’s trial. The court concluded that the State did not obtain the documents through the proper federal procedures and that permitting witnesses to testify at trial regarding the documents would subject them to federal prosecution for unlawful disclosure of confidential tax information. The State appeals this ruling. We affirm the denial of the motion to suppress; for the reasons that follow, we reverse the order granting the motion in limine and remand for further proceedings.

Joseph was already in prison for a different offense when, according to the State, he devised a systematic, ongoing scheme to defraud the United States Government by preparing and mailing to the Internal Revenue Service (IRS) numerous fraudulent tax returns and forms, using other inmates’ names and social security numbers, to obtain refunds to which Joseph was not entitled. Prison authorities discovered the apparent scheme during a routine search of outgoing, non-legal prison mail, when a Department of Corrections (DOC) mail clerk discovered a package containing what purported to be twenty-one tax returns and other tax forms of ten different inmates (none of them Joseph’s). The postal clerk became suspicious. All the envelopes containing these tax documents were addressed to the IRS. Several of the tax forms had the same return address and bank account information. The clerk turned over these documents to the DOC inspector general, who discovered the address used on the tax forms was that of Joseph’s mother. Prison authorities copied the forms, returned the originals to be mailed, and disclosed the copies to various law enforcement entities. Authorities obtained a search warrant, set up a postal trap, and seized IRS refund checks that were mailed to Joseph’s mother’s residence.

Section 6103(a) sets out the general rule that “[r]eturns and return information shall be confidential,” except as otherwise stated in this title. Section 7213(a)(2) governs “[sjtate and other employees” and makes it unlawful for any person not described in a preceding paragraph governing “[fjederal employees and other persons” “willfully to disclose to any person, except as authorized in this title, any return or return information” (as defined in section 6103(b)) acquired by him or another person under various enumerated subsections of section 6103. A violation of this provision is “a felony punishable by a fine ... not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.” § 7213(a)(2). A related statute proscribes the willful inspection of wrongfully disclosed returns or return information. 26 U.S.C. 7213A(a).

The issue before the trial court was whether the State, in obtaining and disclosing the tax documents in question, violated section 6103 and the related provisions in section 7213. Matters of statutory interpretation are subject to de novo review. State v. Burris, 875 So.2d 408, 410 (Fla.2004). Thus, we must determine whether these federal laws apply to the evidence offered by the prosecution.

Joseph claimed that the seized tax documents are confidential under section 6103(a) and were wrongfully intercepted and willfully disseminated in violation of federal law. Additionally, defense counsel and the trial judge expressed concerns that any witness(es) who may be called to testify about these tax materials would be subject to federal prosecution for unlawful disclosure of confidential tax information. § 7213(a)(2).

The State countered that because the authorities obtained the fraudulent documents from the prison non-legal mail pursuant to routine, lawful procedures and from Joseph’s mother’s residence pursuant to a valid search warrant, and not from the Secretary of the Treasury (Secretary) or the IRS, the documents are not subject to the confidentiality provisions of section 6103 and were not wrongfully disclosed. The State indicated it would call one federal employee, a United States postal inspector who had no role in seizing or searching the tax documents. The trial court rejected the prosecution’s position and excluded this evidence based on its findings the State failed to follow well-established federal procedures and facilitated the wrongful disclosure of protected tax information.

Section 6103(a) covers only returns and return information. The State attempts to distinguish the tax documents at issue from either “returns” or “return information,” as defined in this statute, which states:

The term “return” means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

§ 6103(b)(1) (emphasis added). The other provision states in pertinent part:

The term “return information” means— (A) a taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over-assessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense.

§ 6103(b)(2)(A) (emphasis added).

Construing the provisions of sections 6103 and 7213 in pari materia, the State argues that these sections preclude the IRS from disclosing confidential tax information except as authorized by section 6103. These sections also preclude disclosure of confidential tax information by state employees who receive the information from the IRS in the scope of their duties. More to the point, the State contends that tax information received by way of a source other than the IRS, and not passing through the IRS, does not fall within the prohibited disclosures. Because these are federal statutes, their meaning is a matter of federal law. Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 854 (11th Cir.2009); Snavely Siesta Assocs., LLC v. Senker, 34 So.3d 813, 816 (Fla. 2d DCA 2010). The case law construing these statutes supports the State’s position. See, e.g., Baskin v. United States, 135 F.3d 338, 342 (5th Cir.1998) (Section 6103 “requires that the source of the disclosed information must have been the IRS in order for there to be a violation of the general prohibition against disclosure of return information.”); Ryan v. United States, 74 F.3d 1161, 1163 (11th Cir.1996) (“Section 6103 of Title 26 protects only information filed with and disclosed by the IRS, not all information relating to any tax matter.”); Stokwitz v. United States, 831 F.2d 893, 895 (9th Cir.1987) (“Section 6103 establishes a comprehensive scheme for controlling release by the IRS of information received from taxpayers to discrete identified parties, subject to specified conditions”) (emphasis in original); Jade Trading, LLC v. United States, 65 Fed.Cl. 188, 195 (Fed.Cl.2005) (Section 6108 prohibits disclosure of tax return and return information “only by the IRS itself.”); Shell Petroleum, Inc. v. United States, 46 Fed.Cl. 719, 722 (Fed.Cl.2000) (“Section 6103 does not prohibit the disclosure of tax return information that comes from a source other than the IRS.”).

Given that the evidence at issue in the instant case did not come from, and was not disclosed by, the IRS, the confidentiality and wrongful disclosure provisions in sections 6108 and 7213 do not apply. The evidence indicating that the tax documents were en route to the IRS (or in the process of being “filed with” or “furnished to” the IRS) when prison officials seized and searched them does not compel a different result; nor does the fact that the refund checks and other information obtained during the search of Joseph’s mother’s residence had been previously processed by the IRS. See Stokwitz, 831 F.2d at 897 (finding no violation of section 6103 when naval employees seized copies of employee’s tax returns through a search of his office and disclosed them to naval investigators because the tax information was not obtained directly or indirectly from the IRS). This narrow construction of section 6103 adopted by the federal courts is consistent with legislative intent. As explained by Stokwitz:

The legislative history of section 6103 indicates Congress’s overriding purpose was to curtail loose disclosure practices by the IRS. Congress was concerned that IRS had become a “lending library” to other government agencies of tax information filed with the IRS, and feared the public’s confidence in the privacy of returns filed with IRS would suffer. See 122 Cong.Rec. 24013 (1976) (remarks of Sen. Weicker). The Senate Report explained: “[T]he IRS probably has more information about more people than any other agency in this country. Consequently, almost every other agency that has a need for information ... logically seeks it from the IRS.” S.Rep. No. 938, 94th Cong., 2nd Sess. 316-17, reprinted in 1976 Code Cong. & Admin.News 2897, 3746. Congress also sought to end “the highly publicized attempts to use the Internal Revenue Service for political purposes” involving delivery of tax returns to the White House by the IRS, see 122 Cong.Rec. 24013 (1976) (Remarks by Sen. Dole); and to regulate “the flow of tax data from the IRS to State Governments ...” Id. (remarks of Sen. Weicker). In short, section 6103 was aimed at curtailing abuse by government agencies of information filed with the IRS. See S.Rep. No. 938, 94th Cong., 2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. & Admin.News 3747-48, 3774-75; see also Chamberlain v. Kurtz, 589 F.2d 827, 835 (5th Cir.1979).

831 F.2d at 894-95 (internal footnote omitted).

Because the tax documents at issue in this appeal were obtained independently of the IRS, the State did not violate the “wrongful disclosure” provisions of sections 6103 and 7213. Thus, the instant record presented no basis for the concerns that any prospective witness who testifies about the authenticity and content of these tax documents could risk federal prosecution. We reverse the order granting the motion in limine and remand for further proceedings.

DAVIS and THOMAS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Andrew GAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4747.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Nancy A. Daniels, Public Defender, and David P. Gauldin and David A. Davis, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Andrew Gay, Jr., appeals his conviction and sentence for aggravated battery. We affirm Mr. Gay’s conviction without comment; but, finding error in his sentence, we strike the trial court’s imposition of public defender liens.

To properly impose public defender liens, the trial court must inform a defendant of the right to contest the amount. See Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011). The trial court here did not, and that amount ($150.00) must therefore be stricken from Mr. Gay’s sentence and corresponding civil judgment. Id. On remand, the trial court is directed to advise Mr. Gay of his right to a hearing to contest the public defender liens. See id.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Donnie JACKSON, Appellant, v. SANTA ROSA C.I. (MAIN-UNIT) PROPERTY ROOM STAFF, Appellee.
    No. 1D11-6804.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Donnie Jackson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Donnie Jackson (“Appellant”) appeals an order dismissing his “Motion to Prosecute” for failure to pay the required filing fee or apply for indigent status under section 57.085, Florida Statutes. The dismissal is without prejudice, however, and the order gives Appellant 45 days to either pay the fee or seek indigent status. For this reason, the order is non-final.

Only those non-final orders specified in Florida Rule of Appellate Procedure 9.180(a)(3) can be appealed. The order at issue here is not among those included in the rule. Therefore, this appeal is premature, and we lack jurisdiction to consider it. See Brown v. Campion, 757 So.2d 535, 536 (Fla. 1st DCA 2000). We therefore dismiss the appeal. But we do so without prejudice to allow Appellant to file a notice of appeal once the trial court renders a final order disposing of his case below.

DISMISSED.

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


text:
    Dwayne Cline NIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2091.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Dwayne Cline Nimmons, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Mack v. State, 91 So.3d 868 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    Don MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3481.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee (withdrawn after filing brief).
   PER CURIAM.

Appellant, Don Morgan, appeals an order of the trial court authorizing his treatment with psychiatric medications. Morgan had been committed after he was found not guilty by reason of insanity. He claims that it was not shown by competent substantial evidence that his multidisciplinary team deemed the involuntary administration of psychotropic medication necessary and essential as required by section 916.107, Florida Statutes (2011). The state argues that the issues in this case are res judicata because they were decided in a prior petition for order authorizing treatment of Morgan. We reverse.

Section 916.107(3)(a), Florida Statutes (2011), provides in relevant part:

(a) A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided under the following circumstances:
2. In a situation other than an emergency situation, the administrator or designee of the facility shall petition the court for an order authorizing the necessary and essential treatment for the client. The order shall allow such treatment for a period not to exceed 90 days following the date of the entry of the order. Unless the court is notified in writing that the client has provided express and informed consent in writing or that the client has been discharged by the committing court, the administrator or designee shall, prior to the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for another 90-day period. This procedure shall be repeated until the client provides consent or is discharged by the committing court.

The trial court entered the prior order authorizing treatment starting on April 28, 2011, and for ninety days thereafter. The petition in this case was filed on August 10, 2011, more than ninety days after the prior order was entered. Thus, this petition was not a petition for the continuation of the previous order as provided in section 916.107(3)(a)2. It was a new petition for an order authorizing treatment for a new ninety-day period. In order for res judicata to apply, among other conditions, “identity of the thing sued for” must exist. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1235 (Fla.2006) (quoting Albrecht v. State, 444 So.2d 8, 12 (Fla.1984)). The petition to authorize treatment was for a different ninety-day period and is therefore not the same thing sued for previously. Therefore, it was necessary for the state to prove compliance with section 916.107(3)(a), Florida Statutes (2010).

Treasure Coast Forensic Treatment Center (“TCFTC”), the facility where Morgan was receiving care, petitioned the court for an order authorizing medical treatment including the administration of psychotropic medications because Morgan had refused to give express and informed consent to treatment in writing as required by section 916.107(3)(a). TCFTC attached opinions from two mental health professionals who gave opinions supporting the allegations in the petition. The opinions are in the form of preprinted opinions signed by a psychiatrist with Morgan’s name filling in the blank for the name of the respondent. The signatures are illegible and the names of the psychiatrists are not printed on the form. The opinions did not state whether the doctors were members of Morgan’s multidisciplinary treatment team.

At the hearing on the petition, Dr. Mike, an expert in psychiatry, testified that Morgan was his patient. Dr. Mike testified that he had diagnosed Morgan’s mental illnesses which qualified as mental illnesses under chapter 916, Florida Statutes. Dr. Mike had developed a pharmaceutical treatment plan that he believed would assist Morgan in gaining mental stability. When he has spoken with Morgan, sometimes he will consent and sometimes he won’t. The proposed treatment was not experimental and did not present a risk for irreversible side effects. Without treatment, Morgan’s prognosis was poor.

At the close of the hearing, the trial court granted the petition finding that there was clear and convincing evidence of each of the factors in section 916.107(3)(a)3. The order listed Dr. Mike as the “Multidisciplinary Treatment Team Physician (Treating Physician).”

Morgan argues that the trial court erred in finding treatment necessary because there was no evidence presented that the treatment was deemed necessary by his multidisciplinary treatment team. “On appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, ‘the record must contain competent, substantial evidence to support the trial court’s findings and to substantiate compliance with section 916.107.’ ” Louisma v. State, 78 So.3d 50, 52 (Fla. 4th DCA 2012) (quoting Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998)). The record must contain evidence “that the treatment is deemed necessary by the patient’s multidisciplinary team, that the patient has refused to give express and informed consent as defined in the statute, and that the trial court has considered at least the four factors speci-fled in clauses a-d of section 916.107(3)(a)3.” Dinardo, 742 So.2d at 289.

The record on appeal does not contain any evidence that Morgan’s multidisciplinary team discussed or approved the necessity for this treatment. Even though Dr. Mike testified that the treatment was necessary, this is not sufficient under the statute. See Meeker v. State, 584 So.2d 169 (Fla. 1st DCA 1991) (holding record did not show evidence that patient’s multidisciplinary team deemed treatment necessary or delegated to the patient’s psychiatrist the treatment decision). We reverse the order authorizing treatment and remand for further proceedings.

Reversed and remanded for further proceedings.

GROSS, HAZOURI and CONNER, JJ., concur.


author: HAZOURI, J.

text:
    D.R.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3192.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

The Appellant, D.R.R., appeals the order committing him to a high-risk program after he violated his probation. He contends reversal is required because the trial court failed to follow the dictates of an opinion of the Florida Supreme Court, E.A.R. v. State, 4 So.3d 614 (Fla.2009). We agree.

D.R.R. was placed on probation for burglary of a structure while armed and grand theft. Subsequently, the State filed a petition alleging a violation of probation based on a curfew violation and school suspensions, and D.R.R. entered an open plea of guilty to the court. The Department of Juvenile Justice (DJJ) recommended that D.R.R. be committed to a moderate-risk facility. The recommendation was made with knowledge of at least one of the new offenses, as well as the curfew violations, school suspensions, D.R.R.’s release from a youth ranch for breaking a windshield, his failure to make himself available for certain services, and his positive drug test.

At the disposition hearing, the judge noted that D.R.R. had two theft arrests while his case was pending. The judge observed that if D.R.R. was committed to a moderate-risk facility, he would be released after five days and wait for a bed for months. The judge found that a Level 8 commitment was appropriate because D.R.R. would be detained until a bed became available, and he would not be able to abuse drugs in the interim. D.R.R. was adjudicated delinquent and ordered detained pending commitment to a Level 8 program. In its written order, the court made the following findings:

1. Child continues to violate the law while cases pending.
2. Child’s sister testified child is out of control; won’t follow rules; out all night; missing for long periods; hangs with convicted drug dealer; and will not follow court rules/any rules.
■3. Child is a risk, imminent, to community.
4. Child is a risk to himself.

A trial court’s departure from the DJJ recommendation is reviewed for abuse of discretion. J.W. v. State, 958 So.2d 1143, 1145-16 (Fla. 4th DCA 2007). However, whether a juvenile court has employed the proper legal standard in providing its departure reasons is a question of law subject to de novo review. B.L.R. v. State, 74 So.3d 173, 175 (Fla. 1st DCA 2011).

In E.A.R., the Florida Supreme Court explained what trial courts must do in order to comply with the requirements of chapter 985, Florida Statutes, when departing from the DJJ’s disposition recommendation:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.
Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate disposi-tional services in the least restrictive available setting.” The failure to connect departure “reasons” to the juvenile court’s ultimate statutory duty during a disposition hearing completely undermines the Legislature’s carefully crafted scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” ... We conclude that ... the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unre-habilitated child poses to the public.

E.A.R., 4 So.3d at 638 (citations omitted).

The record reflects that the court had legitimate concerns regarding whether a moderate-risk commitment would best serve the child’s needs. Nevertheless, we have recognized that even if the trial court gives “cogent reasons why more severe punishment” would better serve the juvenile and protect the public, the trial court must still “comport with the specific methodology for pronouncing disposition the Court has now required in E.A.R.” E.E. v. State, 7 So.3d 1140, 1142 (Fla. 4th DCA 2009).

The court’s findings, oral and written, did not meet the requirements of EA.R., because they did not “[ajrticulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential ‘lengths of stay’ associated with each level, and the divergent treatment programs and services available to the juvenile at these levels.” E.A.R., 4 So.3d at 638. Further, the findings did not “explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.” Id. The judge merely found that D.R.R. would have to wait longer for placement in a program if he was sentenced to a moderate-risk commitment versus a high-risk commitment, that he would not be able to do drugs while waiting for placement in a Level 8 program, and that the Level 8 program was more intensive. The judge did not articulate an understanding of the type of child the different levels serve, the length of stays in each, and the type of treatment and programs each level provides. This was insufficient. “While a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that knowledge on record if the judge intends to rely on these types of findings to support deviations.” M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011).

We reverse and remand for a new disposition hearing. The trial court may again impose a Level 8 commitment if it is able to make the findings required by E.A.R. The court may require an updated predisposition report, and the parties should be permitted to present new evidence and argument. See C.H. v. State, 4 So.3d 794 (Fla. 4th DCA 2009).

Reversed and remanded for a new disposition hearing.

GROSS and CONNER, JJ., concur.

      . We can find no basis for this finding in the record.


text:
    Christina COOK, Appellant, v. Edward T. COOK, Jr., Appellee.
    No. 4D11-2561.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      William I. Zimmerman, Deerfield Beach, for appellant.
    D. Fred Dedriek of Fixel & La Rocco, Hollywood, for appellee.
   HAZOURI, J.

The former wife, Christina Cook, timely appeals the trial court’s order denying her post-dissolution petition for modification of alimony. We reverse and remand for further proceedings.

After nineteen years of marriage, the parties petitioned for dissolution of marriage. They entered into a mediated marital settlement agreement (“MSA”) which was incorporated into the final judgment of dissolution. The parties had four children and three of them were still minors at the time of the dissolution. The MSA provided in pertinent part:

(2) ... Husband shall pay child support in the amount of $1500 monthly to the wife, commencing Feb. 1, 2005. On February 1, 2010, the parties shall agree to modify the child support to the guideline amount for the remaining minor child ...
(3) Out of the $1500 child support, wife agrees that the husband shall timely pay the monthly mortgage and condo maintenance fees ...
(6) The wife does not waive alimony. The husband shall pay the sum of $1 annually. This amount may be modified upon any modification in custody of the minor children, such that the alimony obligation would be increased. It is the intent of the parties that the wife be able to modify this amount at any time there is a modification to the custody provisions of this Agreement.

In March 2010, the former husband, Edward T. Cook, Jr., petitioned the trial court for a modification of child support as there was only one remaining minor child. The former wife counter-petitioned for a modification of alimony because of a substantial change in circumstances. Before the hearing on the petitions, the former husband moved for summary judgment on the former wife’s claim for modification of alimony asserting that because there had not been any modification in custody, the former wife did not have the right to modify alimony as it was limited to those circumstances which were a condition precedent pursuant to paragraph (6) of the MSA. The trial court denied the motion for summary judgment.

After the hearing on the petitions, the trial court reduced the former husband’s child support obligation to $764 per month. On the former wife’s petition for modification of alimony, the trial court held:

4. The Former Wife’s Supplemental Petition for Modification of Alimony is denied. The Former Wife did not waive alimony in the parties’ Marital Settlement Agreement as incorporated into the Final Judgment, but the parties’ Agreement provided that alimony was modifiable only in the event that custody was modified. As custody has not been modified in this case, there is no basis for modification of the alimony provisions of the parties’ Marital Settlement Agreement and Final Judgment of Dissolution of Marriage.

The former wife argues that the trial court erred in holding that the MSA provision on alimony “provided that alimony was modifiable only in the event that custody was modified.” The former husband responds that the trial court properly found that modification of child custody was a condition precedent to any modification of alimony.

In an appeal of the trial court’s interpretation of a marital settlement agreement:

The issue before us is whether the trial court erred, as a matter of law, in its interpretation of the agreement. “The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.” Moreover, absent any evidence that the parties intended to endow a special meaning in the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words. Finally, a court must construe a contract in a manner that accords with reason and probability; and avoid an absurd construction.

Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003).

Under section 61.14, Florida Statutes (2011), statutory modification is available to a former spouse and is subject to being waived. “[A]n effective waiver of the right to modification may be deemed to arise only when it is stated either in express terms or through an interpretation of the agreement as a whole which can fairly lead to no other conclusion.” Bassett v. Bassett, 464 So.2d 1203, 1205 (Fla. 3d DCA 1984).

The trial court’s conclusion that the former wife may modify alimony only if there was a modification of custody suggests such modification of custody was a condition precedent to any modification of alimony. In In re Estate of Boyar, 592 So.2d 341 (Fla. 4th DCA 1992), this court addressed the principle of conditions precedent and explained:

As a general rule, conditions precedent are not favored, and courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication. 17A Am.Jur.2d Contracts § 471 (1991). Some of the rules of construction associated with determining whether a doubtful provision is a condition precedent are set forth in Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976), wherein the court said:
Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. While no particular words are necessary for the existence of a condition, such terms as “if’, “provided that”, “on condition that”, or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise. In the absence of such a limiting clause, whether a certain contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties.
However, where the intent of the parties is doubtful or where a condition would impose an absurd or impossible result then the agreement will be interpreted as creating a covenant rather than a condition....
Id. at 3 (citations omitted).

Id. at 343. Paragraph (6) does not contain a limiting clause that waives the former wife’s right to modify alimony under circumstances other than after a modification to the custody restrictions. It specifically allows for the modification of alimony if there is a modification to the custody restrictions but does not restrict the modification of alimony to only those circumstances. This is not a condition precedent.

“Parties to a marriage may waive their statutory right to seek modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the ‘interpretation of the agreement as a whole can lead to no other conclusion but waiver.’” Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004) (citation omitted). The former wife has not waived her right to seek a modification of alimony. We reverse the trial court’s finding that there was no basis for the former wife’s claim and remand for further proceedings pursuant to section 61.14(l)(a), Florida Statute (2011).

Reversed and remanded for further proceedings.

GROSS and CONNER, JJ., concur.


author: WARNER, J.

text:
    Sam AZOULAY, as Personal Representative of the Estate of Renee Rosenberg, Appellant, v. CONDOMINIUM ASSOCIATION OF LA MER ESTATES, INC., Appellee.
    No. 4D11-952.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Marlene S. Reiss of Law Offices of Marlene S. Reiss, Miami, for appellant.
    Doreen E. Lasch and Daniel J. Santan-iello of Luks, Santaniello, Petrillo & Jones, Fort Lauderdale, for appellee.
   WARNER, J.

Appellant challenges the trial court’s order granting a remittitur of a jury verdict or a new trial. She claims that the court’s order did not support a remittitur. We disagree and affirm. Appellee cross-appeals the denial of its motion for directed verdict, which we also affirm.

At the time of the trial of this case, the appellant, who died during the pendency of this appeal, was 82 years old. She fell in her condominium parking lot and suffered a broken wrist and some face lacerations. At trial, the testimony centered on liability. No medical testimony was offered. Her medical records were received in evidence. Appellant testified regarding her injuries but did not testify much at all about her discomfort, either at the time or currently. She had surgery on her wrist and then went to physical therapy for two years. She said that her wrist continued to bother her, and she could not do tasks such as cutting vegetables, but she was coping. No life expectancy tables were introduced. In closing, the appellant’s attorney concentrated on liability and scarcely mentioned damages, asking the jury to use its judgment to determine the amount. The jury awarded appellant medical expenses and $300,000 in past and future pain and suffering. On motion for remittitur or new trial, the trial court remitted her non-economic damages to $150,000 based upon the court’s finding that the plaintiffs evidence on pain and suffering was scant and not in support of such an award.

Section 768.74, Florida Statutes, provides the criteria for determining exces-siveness or inadequacy of a verdict:

(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
(6) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact in light of a standard of ex-cessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state.

(emphasis added).

The appellate court reviews a trial court’s determination of whether a damage award is excessive, requiring a remittitur or a new trial, under a clear abuse of discretion standard. Aills v. Boemi, 41 So.3d 1022, 1027 (Fla. 2d DCA 2010).

While appellant relies on Adams v. Saavedra, 65 So.3d 1185 (Fla. 4th DCA 2011), for reversal, each injury case is different, and injuries have different effects on different people. See Aills, 41 So.3d at 1028. In Adams, we reversed the order of remittitur because the record did not support the findings made in the order of remittitur. 65 So.3d at 1189. In this case, however, we conclude that the record does support the findings made by the trial court that the evidence of the plaintiffs noneconomic damages was scant and could not support non-economic damages of the size the jury awarded. As noted, the appellant offered only her own testimony regarding non-economic damages. She did not describe her injuries other than to say that she was in a temporary cast, had surgery on her wrist, and at the time of trial her wrist hurt. She had difficulty doing some tasks, such as cutting some fruits and vegetables. . There were less than two pages of testimony concerning all of her injuries. Even with her age, and considering the impact of injury on an elderly person, we cannot conclude that the trial court’s findings on remittitur were not supported by competent, substantial evidence or that the court abused its discretion.

The Legislature has vested trial courts with discretionary authority to review jury verdicts based upon set criteria in order to provide an additional measure of soundness and logic to the judicial system. See § 768.74(6), Fla. Stat. The trial court exercised its authority in this case. We find no clear abuse of discretion.

On cross-appeal, the appellee argues that the trial court erred in denying its motion for directed verdict. We affirm without further discussion the trial court’s order which concluded that there was sufficient evidence of negligence for the claims to be submitted to the jury.

Affirmed.

DAMOORGIAN and CONNER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Clarence W. OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4911.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, 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.
   DAMOORGIAN, J.

Clarence Owens appeals his conviction and sentence for failure of a sex offender to register. We reverse.

By way of background, Owens is a sex offender and as such is required to report in person and update his address with the sheriffs office and the Department of Motor Vehicles (“DMV”) within forty-eight hours of any change in his permanent or temporary residence. § 943.0435(4)(a), Fla. Stat. (2008). In June of 2009, Owens changed his residence. Owens updated his address with the sheriff’s office and physically went to a DMV office within forty-eight hours of his move. However, Owens was unable to timely update his address with the DMV because he could not provide sufficient documentation of his new address. Based upon these facts, Owens was charged and tried for failure of a sex offender to renew his driver’s license or identification card in violation of section 943.0435(4)(a), Florida Statutes (2008).

At trial, the court instructed the jury to determine whether Owens “knowingly failed to report in person to a driver’s license office of the [DMV] within 48 hours after any change in his permanent or temporary residence.” During deliberations, the jury asked the court for. clarification regarding the meaning of “knowingly failed to report.” Over defense counsel’s objection, the trial court instructed the jury as follows:

[Djoes knowingly fail to report legally imply that you are not just physically present, but that you that you must complete proper documentation? The answer to that is yes.
Knowingly fail to report implies that you must be more than physically present, but that you must comply [by providing] proper documentation.

Owens argues that the court’s supplemental instruction was improper because it instructed the jury on an issue of fact. We agree and reverse.

The standard of review applied to instructions given by the trial court during jury deliberation is abuse of discretion. King v. State, 59 So.3d 272, 274 (Fla. 4th DCA 2011) (citing Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999) (“ ‘the giving of additional instructions in response to a jury query is within the trial court’s discretion’”)). While a trial court may provide supplemental jury instructions, absent a stipulation by the parties, it should not charge a jury with respect to a matter of fact. See Wright v. State, 586 So.2d 1024, 1030-31 (Fla.1991) (holding that it is error for the court to instruct the jury on an issue of fact).

It is well established that a defendant’s knowledge is an issue of fact for the jury to determine based on the evidence. See, e.g., Jordan v. State, 548 So.2d 737, 739 (Fla. 4th DCA 1989) (whether defendant had knowledge that illegal drugs were in his car was question of fact for the jury). Further, whether a defendant acted “knowingly” is an essential element of the offense of failure to register by a sex offender. State v. Giorgetti, 868 So.2d 512, 520 (Fla.2004) (holding that in order to convict a defendant of failure of a sex offender to register, the state must prove that the defendant had “ ‘actual knowledge of the duty to register or proof of the probability of such knowledge’”). Here, the court essentially instructed the jury that by failing to successfully register with the DMV, Owens “knowingly” failed to comply with section 943.0435(4)(a). This invaded the fact-finding province of the jury and constitutes reversible error Wright, 586 So.2d at 1030-31; Bright v. State, 555 So.2d 1284 (Fla. 3d DCA 1990) (holding that it was reversible error for trial court to instruct jury on an issue of fact as a matter of law).

Based on the foregoing reasons, we reverse and remand for a new trial.

Reversed and Remanded.

WARNER and POLEN, JJ., concur.


author: POLEN, J.

text:
    Daniela DADURIAN, Appellant, v. MAR-A-LAGO CLUB, L.L.C., L.C., a Foreign limited liability company, Appellee.
    Nos. 4D10-4747, 4D11-3046.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    John M. Jorgensen of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellant.

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

Daniela Dadurian appeals the final summary judgment entered in favor of the appellee, Mar-A-Lago Club, L.L.C., L.C. (hereinafter, “the Club”). We affirm.

Dadurian became a member of the Club on May 14, 2004. She paid a $100,000 membership deposit and agreed to be bound by the following rules:

REPAYMENT OF MEMBERSHIP DEPOSIT
The Club promises to repay to me the Membership Deposit which I pay to the club upon the earlier of the following:
(a) thirty (30) years from the date of my admission to the Club, or
(b) within thirty (30) days after the reissuance of my membership by the Club (once resigned).
DEPOSIT, DUES AND CHARGES
A. Membership deposits shall be repaid to Active Members upon the earlier of (a) thirty (30) years from the date of the Active Member’s admission to the Club or (b) thirty (30) days after the reissuance of the membership by the Club (once resigned) as provided in this paragraph.... Reissuance will commence on a first-resigned, first-reissued basis after the initial issuance of all memberships.
Resignation: Any member may resign from the Club by written notice to the Admissions Committee, provided all indebtedness to the Club has been paid. Upon resignation, prepaid annual dues will be refunded on a pro rata basis based on the number of months remaining in the Membership Year. [Emphasis added.]

Pursuant to the rules, annual dues for the Club are due on November 1 of each year; if a member does not pay his or her dues, that member’s membership may be discontinued by the Club. However, in the Club’s discretion, a discontinued membership may be reinstated upon payment of all outstanding dues and fees. According to the rules, reinstatement would allow a member to continue the membership or to properly resign the membership, making the member eligible for an earlier refund of the membership deposit. If a member is not reinstated, the member will have no right of refund until thirty years from the date of the member’s admission. A member who validly resigns is entitled to a return of the deposit at the earlier of (a) thirty years from the date of the member’s admission to the Club or (b) thirty days after the “reissuance” of the membership by the Club. According to the Club, “reis-suance” of memberships will begin to occur after the “initial issuance of all memberships.” If the “initial issuance of all memberships” does not occur within thirty years, then resigned members will receive a refund of the membership deposit on the thirtieth anniversary of joining the Club.

On July 10, 2007, Dadurian tendered written notice that she was cancelling her membership. The Club accepted Daduri-an’s resignation by written letter, which stated, in part:

As you know, membership deposits are to be repaid upon the earlier of 30 years from the date of your admission into the Club, or 30 days after reissuance of your membership by the Club. The process of reissuing membership commences once we reach our cap of five hundred (500) active members and proceeds down the waiting list on a first resigned, first reissued basis as new memberships are sold.

On December 27, 2007, at Dadurian’s request, the Club reinstated her membership and sent her a statement which stated, that in order to rejoin, she would have to pay past-due dues in the amount of $11,608.50. Dadurian submitted partial payment. In January 2008, Dadurian received a bill stating that her account was past due. In February, she received a bill stating that her account was delinquent and that her membership would be suspended if the balance was not paid immediately. She received similar letters in March and April. In May, she made a partial payment to the Club. In June, July, and August, she received statements indicating that her balance was not paid in full.

In September, Dadurian submitted written notice to the Club that she was suspending her membership. In October, the Club’s managing director wrote Dadurian a letter, stating that her request for a leave of absence from the Club could not take place until her balance was paid in full. Dadurian did not pay the balance. From November 2008 through February 2009, Dadurian received invoices from the Club stating that her unpaid balance was $14,369.90 and that her membership was suspended. Although Dadurian claims that she did not understand the managing director’s letter, she did not ask the Club for clarification because she is “a very busy person.”

In March 2009, Dadurian’s counsel sent a letter to the Club confirming that Dadu-rian had resigned her membership, and that consistent with her resignation, she had not paid the membership dues for the 2008-2009 season. Dadurian’s counsel also made demand for repayment of her $100,000 deposit.

In May, Dadurian filed suit against the Club for breach of the membership documents and for declaratory relief. Thereafter, the Club sent written notice to Daduri-an, stating that her membership would be discontinued effective fifteen days from the date of receipt of the letter since she was delinquent in the payment for charges incurred at the Club; included in the charges were the annual dues for the 2008-2009 season. Dadurian did not tender payment within fifteen days; however, she submitted payment of $2,156 to the Club based on a previous invoice. The Club rejected the payment and discontinued Dadurian’s membership.

Dadurian’s second amended complaint requested declaratory relief; specifically, she asked the trial court to interpret the rules of the Club pertaining to return of membership deposits. Dadurian argued that the Club rules require that Club memberships of resigned members be reissued once the Club had issued a total of 500 memberships, whether or not the 500 were still current members. In response, the Club filed a motion for summary judgment as to Dadurian’s second amended complaint and also as to count II of its amended counterclaim seeking declaratory relief.

The Club argued that the “initial issuance of all memberships” will occur when the Club reaches. 500 Members who at that time are entitled to use the Club. Since the Club had not yet reached 500 current members, it argued that the initial issuance of memberships had not yet occurred and no membership deposits from members who have resigned had been refunded. The Club maintained that it has always interpreted “members” to mean 500 current members, and that the Town of Palm Beach has always accepted that interpretation.

After a hearing, the trial court granted the Club’s motion for summary judgment, finding that Dadurian did not validly resign pursuant to the rules because she had not timely paid her bills. Since the trial court found that her membership was discontinued, it determined that Dadurian was entitled to a return of her membership deposit only thirty years after admission to the Club. This appeal followed.

We need not reach the issue of whether the trial court correctly interpreted the Club’s rules relating to the reissuance of deposits. We agree with the trial court that appellant did not, and could not under the rules, validly resign from the Club because she had not timely paid her bills. Therefore, Dadurian’s membership was discontinued. Pursuant to the rules of the Club, a discontinued member is entitled to a return of his or her deposit only thirty years after admission to the Club.

We also reject Dadurian’s contention that summary judgment was improperly entered because questions of fact remain regarding the amount of dues and charges owed; whether the fifteen-day notice was proper; and whether she tendered the correct amount to have her membership placed in a “resigned” status rather than a “discontinued” status. The amount of appellant’s unpaid balance is not a material fact which should have precluded summary judgment. The only material fact is that Dadurian was in arrears, a point she does not dispute. Under the rules, an arrear-age precludes a valid resignation.

We further conclude that the notice was sufficient and complied with the rules of the Club. Finally, the Club’s rules are explicit that once a member has been discontinued, reinstatement is at the sole discretion of the Club. Therefore, whether or not appellant tendered the correct amount to have her membership placed in a “resigned” status rather than a “discontinued” status is immaterial because there is no requirement for the Club to accept payment in lieu of discontinuance after written notice has been provided. Regardless, the evidence is undisputed that appellant did not tender full payment within fifteen days after receiving the notice.

Affirmed.

GROSS, J., and BLOOM, BETH F., Associate Judge, concur.

      . Because she had not paid her previous balance of $2,175.65 from the previous season, she was billed for annual dues for the next season, making the total amount owed $14,369.90.

      . It is not clear why the balance on this statement was only $2,156 and did not include the dues for the 2008-09 Club year.

      . The declaration of use agreement between the Town of Palm Beach and the Club provides that the Club may not have more than 500 members.


text:
    Ellen Sue REILLY, Appellant, v. George REILLY, Appellee.
    No. 4D11-996.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Chad R. Laing of Laing & Weicholz, P.L., Boca Raton, for appellant/cross-ap-pellee.
    Jennifer B. Billings of The Law Offices of Barry I. Finkel, P.A., Fort Lauderdale, for appellee/cross-appellant.
   PER CURIAM.

The former wife, Ellen Sue Reilly, and the former husband, George Reilly, mediated and entered into a Marital and Property Settlement Agreement (MSA) which was ratified by the trial court in the Final Judgment of Dissolution of Marriage. Two years later, the former wife filed her Motion for Contempt and to Compel Compliance with Final Judgment requesting that the trial court order the former husband to pay four separate claims he had not paid pursuant to the terms of the MSA plus her attorney’s fees. Before the hearing on the motion, the parties resolved two of the claims. On the claims heard by the trial court, it ordered the former husband to pay the sum of $15,177 for equitable distribution. The trial court denied the former wife’s claim that the former husband pay half of the amount paid by the former wife to resolve a dispute the parties had with a roofing company which repaired the roof of the marital home. The trial court also denied the former wife’s claim for attorney’s fees because it found that each party won on one issue. The former wife appeals the denial of her claim for half the roofing expenses. We reverse. The former husband cross appeals the order that he pay the equitable distribution. We affirm. Both parties appeal the denial of attorney’s fees. We reverse and remand for an award of attorney’s fees pursuant to the MSA.

Prior to the dissolution, the roof of the marital home needed repair. During the repair, the roof was left uncovered and a torrential rain caused flooding and damage to the home. The roofer claimed the damage was preexisting. The roofer claimed the parties still owed $6000. Before the dispute was resolved the parties entered into the MSA. It provides in relevant part:

The parties agree to the following equitable distribution scheme:
A. Marital Home
The parties own jointly the marital home located at 355 Prairie Rose Lane, Boca Raton, FL 33487. The parties agree to immediately list for sale the marital home. Neither party shall unreasonably withhold their consent to reduce the listing price of the home by 5% or less at 80 day intervals after an initial 90 day period. The parties shall equally be responsible for paying the mortgage and expenses related to the home and its sale, including but not limited to the prepayment penalty from their 2005 refinancing, real estate taxes, assessment, association fees, and insurance until it is sold. The parties shall also resolve their roofing dispute with Tim Graboski Roofing at the closing on their home.
In the event the Wife decides to vacate the marital home, she shall contribute one half of the mortgage payment until the home is sold.

Prior to the sale of the marital home, the former wife received a lien from the roofing company. Because they could not sell the house with a lien on it, the former wife, with the help of her attorney, resolved the dispute. The amount owed was reduced to $4500, which the former wife paid. The marital home was subsequently sold.

On the former wife’s claim for half of this amount based upon the MSA provision that the parties are equally responsible for paying the expenses related to the home and its sale, the trial court found “that the Former Husband did not have the benefit of making a decision of paying the debt and therefore the debts [sic] falls solely to the Former Wife.”

“The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.” Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003) (quoting McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001)). “It is well settled that a marital settlement agreement is to be interpreted like any other contract and is construed as a matter of law.” Coe v. Abdo, 790 So.2d 1276, 1279 (Fla. 4th DCA 2001). “[A] court must construe a contract in a manner that accords with reason and probability; and avoid an absurd construction.” Kipp, 844 So.2d at 693.

The purpose of the MSA provision was to sell the marital home as soon as possible. The parties were equally responsible for paying the expenses related to the home and its sale. Any dispute concerning the roof and the lien filed had to be resolved before the closing for the sale of the house, not at the closing. The parties’ dispute with the roofer was resolved, albeit before the closing. The MSA required that the dispute between the parties and the roofer be resolved, not that they both make the decision to resolve the dispute. Therefore, the former husband is liable to the former wife for half of $4500 and we reverse the trial court’s determination otherwise.

In his cross-appeal, the former husband argues that the trial court erred in ordering him to pay $15,177 as and for equitable distribution. He asserts that it was a condition precedent to that payment that the monies are paid from the proceeds of the sale of the marital home and the trial court modified the contract by ordering him to pay from some other source. He concludes that because the sale of the parties’ marital home did not produce any proceeds, he does not owe this amount to the former wife.

The second section of the Equitable Distribution of Assets and Obligations paragraph of the MSA provides:

B. Husband’s IRA and Retirement Accounts
The Husband shall keep as his sole and exclusive property his IRA account with Charles Schwab. The Husband agrees to pay the Wife $15,177 from his share of the closing proceeds as and for equitable distribution. Each party shall keep as their sole and exclusive property their own Florida FRS Retirement Accounts free of any claims from the other.
C. CASH
The Wife shall keep as her sole and exclusive property her Charles Schwab One Account free of any claims from the Husband. Each party shall keep any accounts currently in their own name as their sole property free of any claims from the other. The wife shall keep as her sole and exclusive property the current joint account with Washington Mutual free of any claims from the Husband.

In Chipman v. Chipman, 975 So.2d 603 (Fla. 4th DCA 2008), this court addressed the principle of conditions precedent as follows:

The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review. In In re Estate of Boyar, 592 So.2d 341 (Fla. 4th DCA 1992), this court explained:
As a general rule, conditions precedent are not favored, and the courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication. 17A Am. Jur.2d Contracts § 471 (1991). Some of the rules of construction associated with determining whether a doubtful provision is a condition precedent are set forth in Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976), wherein the court said:
Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. While no particular words are necessary for the existence of a condition, such terms as “if’, “provided that”, “on condition that”, or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise. In the absence of such a limiting clause, whether a certain contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties. However, where the intent of the parties is doubtful or where a condition would impose an absurd or impossible result then the agreement will be interpreted as creating a covenant rather than a condition.
In re Estate of Boyar, 592 So.2d at 343.

Chipman, 975 So.2d at 607.

In the equitable distribution provision entitled Husband’s IRA and Retirement Accounts, there are no phrases of conditional performance. The former husband agreed to pay the former wife $15,177 as and for equitable distribution. Payment from the closing proceeds is not a condition precedent, only a source for the payment. The MSA was entered into more than a year before the parties sold the marital home so the parties did not know how much the proceeds of the sale would be. The MSA is silent as to what would happen if the proceeds were not enough but the $15,177 is specifically labeled as and for equitable distribution and is owed to the former wife. The trial court did not err in ordering the former husband to pay the former wife $15,177 as and for equitable distribution. We affirm the former husband’s cross appeal of this issue.

Both parties argue that they were entitled to attorneys’ fees pursuant to the attorneys’ fees provision in the MSA. Paragraph 15 of the MSA provides:

ATTORNEYS’FEES. The parties hereby acknowledge that they have become indebted to their attorneys and with regard to fees, costs and expenses incident to the preparation and negotiations concerning this Agreement and the dissolution of marriage. Each party agrees to be responsible for his or her own attorneys’ fees, costs, suit monies and such incurred in connection with this Agreement and dissolution of marriage.
Except as otherwise provided in this Agreement, should either party to this Agreement default in his or her obligation hereunder, the party in default shall be liable to the other party for all reasonable expenses, including attorney’s fees, incurred by the other party with regard to the enforcement of the obligations created in this Agreement, whether suit be brought or not.

The trial court did not award attorneys’ fees to either party based upon its finding that each party prevailed on one issue. We find it unnecessary to address the former wife’s argument that this was error because we are reversing as to the former husband’s liability for his share of the roofing expenses. Therefore, the former wife prevailed on all issues before the trial court. We remand for the trial court to award the former wife her attorneys’ fees.

Affirmed in paid; reversed in part and remanded for further proceedings.

GROSS, HAZOURI and CONNER, JJ„ concur.


author: STEVENSON, J.

text:
    LIME BAY CONDOMINIUM INC., Appellant, v. STATE FARM FLORIDA INSURANCE CO., a corporation authorized and doing business in Florida, Appellee.
    No. 4D11-3421.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Keith J. Lambdin of Katzman Garfinkel & Berger, Margate, for appellant.
    Paul L. Nettleton of Carlton Fields, P.A., Miami, for appellee.
   STEVENSON, J.

This appeal stems from dismissal of a complaint filed by the appellant, Lime Bay Condominium, Inc., against the appellee, State Farm Florida Insurance Company, alleging bad faith in the manner in which State Farm handled an insurance policy claim. Because Lime Bay’s complaint was filed prematurely, we affirm.

In 2005, Lime Bay had an insurance policy from State Farm and filed a claim after suffering property damage during Hurricane Wilma. State Farm concluded that the property suffered damages in the amount of $281,731.46 and paid Lime Bay $6,940.46, which represented the amount remaining after the deductible. Lime Bay disagreed with State Farm’s determination and retained its own experts who estimated that Lime Bay would incur $1.4 million in repairing the property, mostly due to roof damage. These estimates were provided to State Farm. On February 9, 2007, Lime Bay filed a Civil Remedy Notice of Insurer Violation (“CRN”) with the Florida Department of Financial Services, alleging that State Farm acted in bad faith in handling its claim. State Farm denied Lime Bay’s allegations.' On March 7, 2007, Lime Bay filed a complaint for breach of contract against State Farm. Two years later, the parties engaged in the appraisal process, resulting in an appraisal award in the amount of $1,051,251.41. The breach of contract case was abated during the appraisal process. State Farm paid the appraisal award to Lime Bay. Based on these events, Lime Bay alleged that State Farm acted in bad faith and alleged numerous violations of the bad faith statute. State Farm filed a motion to dismiss the bad faith complaint, arguing that there had not yet been a final determination of liability and maintaining that it intended to dispute liability in the breach of contract case. The trial court agreed with State Farm and dismissed the bad faith complaint.

A trial court’s order dismissing a complaint is reviewed de novo. See Swope Rodante, P.A. v. Harmon, 85 So.3d 508, 509 (Fla. 2d DCA 2012).

When a plaintiff does not and cannot allege that there has been a final determination of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiffs bad faith claim is premature and should be either dismissed without prejudice or abated.

State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 635-36 (Fla. 2d DCA 2008). Lime Bay did not, and could not, allege that there had been a final determination of liability since the breach of contract case was still pending. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991) (holding that an insured’s bad faith claim does not accrue “before the conclusion of the underlying litigation for the contractual ... insurance benefits”). Rather, the trial court must first resolve the issue of State Farm’s liability for breach of contract, as well as the significance, if any, of the appraisal award. See State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, 74 So.3d 105, 108 (Fla. 3d DCA 2011) (commenting that a bad faith action is premature until the insurer raises no defense that would defeat coverage which is “an issue for the judicial process rather than the appraisal process”), review dismissed, 91 So.3d 133 (Fla.2012). Thus, the trial court’s order dismissing the bad faith complaint is affirmed.

Affirmed.

HAZOURI and GERBER, JJ., concur.


text:
    Lylliam ORDONEZ, Appellant, v. STATE OF FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Adecco USA Inc., Appellees.
    No. 4D11-3869.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Mirta Desir of Desir & Associates, P.C., West Palm Beach, for appellant.

      Louis A. Gutierrez, Tallahassee, for ap-pellee Reemployment Assistance Appeals Commission.
   PER CURIAM.

Appellant received a letter and a notice of determination that she had left her job without good cause and that she had been overpaid $2568 in unemployment benefits. The letter indicated that she had to appeal within. 20 calendar days, or by April 11, 2011. She called the Agency and reached an agreement to pay $100 a month until the $2563 amount was paid off. She made the first payment. The next month she received a letter stating the amount of the overpayment was $8969 and another letter claiming that she owed $9519. She sent a letter appealing the last amount, but it was sent after April 11, so the appeals referee dismissed the appeal due to lack of jurisdiction. The Unemployment Appeals Commission affirmed the decision of the referee. Due process requires that appellant be given an opportunity to challenge that portion of the amounts owing in excess of $2568. See Arensen v. Fla. Unemployment Appeals Comm’n, 48 So.3d 936, 940 (Fla. 1st DCA 2010). We therefore reverse and remand for an evidentiary hearing on that issue.

GROSS, LEVINE, JJ., and ROSENBERG, ROBIN L., Associate Judge, concur.


author: TAYLOR, J.

text:
    Ernest MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4466.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Mary Courtney Doyle, In House Legal Counsel for Treasure Coast Forensic Treatment Center, GeoCare, Inc., Indian-town, for appellee.
   TAYLOR, J.

Appellant Ernest Martin challenges a final order adopting a magistrate’s recommendation that he be subjected to involuntary medical treatment. He raises two issues on appeal, only one of which merits discussion. He argues that the magistrate erred by finding that the treatment was necessary when there was no evidence that it was recommended by his multidisciplinary team. We agree and reverse. See Louisma v. State, 78 So.3d 50 (Fla. 4th DCA 2012).

Appellant was adjudicated incompetent to proceed in a criminal matter, committed to the Department of Children and Families, and placed in the Treasure Coast Forensic Treatment Center (“TCFTC”). TCFTC’s administrator petitioned the trial court to enter an order authorizing forcible medical treatment of appellant. Attached to the petition were the written opinions of two psychiatrists employed by TCFTC, and each opinion was consistent with the allegations contained within the petition.

A hearing was held on the matter. Dr. Charles LoPiccolo, a forensic psychiatrist, testified that Appellant suffers from chronic paranoid type schizophrenia. Dr. Lo-Piccolo gave an exhaustive list of all the medications that would be used to treat appellant’s condition and stated that another physician was in agreement with the proposed treatment. The magistrate found that there was a need for the medication and recommended that appellant be involuntarily treated for his schizophrenia. The circuit court adopted the recommendation. This appeal followed.

In Louisma, as in this case, the TCFTC petitioned the trial court to enter an order authorizing forcible medical treatment of the defendant. The written opinions of two psychiatrists employed by TCFTC were attached to the petition, and each opinion was consistent with the allegations contained in the petition. The trial court held a hearing, at which Dr. LoPiccolo testified that the defendant suffered from psycho-effective disorder, bipolar type. The presiding magistrate found that forcible treatment was necessary, and his recommendation was adopted by the circuit court.

We reversed the order authorizing forcible treatment. Id. at 53-54. Under section 916.107(3)(a), a patient cannot be forcibly treated unless the treatment is “deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client.” Id. at 52 (quoting § 916.107(3)(a), Fla. Stat. (2010)). These statutory requirements were not fulfilled because “[c]ase law requires that at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment be presented,” and TCFTC presented no evidence that the multidisciplinary team discussed and approved the necessity of the treatment. Id.

The order in the instant case suffers from a similar lack of evidentiary support showing that the proposed treatment was discussed with and approved by appellant’s multidisciplinary treatment team. Dr. Lo-Piccolo testified that his proposed treatment was joined in by another physician, but no evidence was presented showing that this unnamed physician was a member of the multidisciplinary treatment team or that a member of the team joined Dr. LoPiccolo’s recommendation. Accordingly, as in Louisma, we vacate the order authorizing forcible treatment.

Reversed and Remanded for proceedings consistent with this opinion.

WARNER and STEVENSON, JJ., concur.


text:
    David CARPENTER, Sr. a/k/a David Carpenter, Unknown Spouse Of David Carpenter, Sr. a/k/a David Carpenter, National City Bank, City of Lighthouse Point, Florida, Unknown Tenant # 1, Unknown Tenant # 2, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Indenture Trustee for American Home Mortgage Investment Trust 2006-3, Mortgage-Backed Notes, Series 2006-3, Appellee.
    No. 4D10-3153.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Josh Bleil and Jessica Ticktin of The Ticktin Law Group, P.A., Deerfield Beach, for appellant David Carpenter, Sr. a/k/a David Carpenter.
    Heidi J. Weinzetl and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallassee, 377 So.2d 1150 (Fla.1979).

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    Jeanne BONNEY, Appellant, v. James BONNEY, Appellee.
    Nos. 4D10-4041, 4D10-4042, 4D10-4319, 4D10-4332.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    James Bonney, Lenardo, New Jersey, pro se.
   PER CURIAM.

Jeanne Bonney’s sister sued to remove Jeanne as the co-personal representative of their aunt’s estate and also sought damages for the misappropriation of funds. Jeanne filed a third party complaint against her brother for conversion and unjust enrichment regarding funds taken from their aunt’s bank account. She later voluntarily dismissed this third party complaint. The trial court awarded the brother attorney’s fees against Jeanne under sections 733.609 and 733.106(3), Florida Statutes (2010). We reverse. Section 733.609 is inapplicable since the third party complaint was not an action “for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers.” § 733.609(1), Fla. Stat. (2010). Section 733.106(3) is not implicated because the brother’s attorney did not render “services to an estate” within the meaning of the statute. The trial judge relied on Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983), to bring this case under the statute, but Lewis is distinguishable. The thrust of Lewis is that a benefit to the estate can arise when an attorney’s services have the effect of preserving the testamentary intention of the will. No such benefit to the estate arose in this case, where the brother’s attorney was defending against ancillary claims of unjust enrichment. For these reasons, we reverse the awards of attorney’s fees in the two final orders entered on October 6, 2010. We affirm the award of $5,381.25 in taxable costs.

Affirmed in part, reversed in part and remanded.

GROSS, HAZOURI and CONNER, JJ, concur.

      . By a separate opinion, we have affirmed the final judgment rendered against Jeanne Bon-ney in that portion of the case.


text:
    Robyn E. SLIPKOVICH, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, in Trust for the Registered Holders of Argent Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-W3, Appellee.
    No. 4D11-41.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Josh Bleil and Megan Carraher of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See, e.g., Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012).

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


text:
    Kilien Gerome CESAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-928.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Antony P. Ryan, Executive Director, Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant appeals his conviction and sentence for robbery with a firearm. The defendant was sentenced to ten years imprisonment, with a ten-year mandatory minimum, pursuant to section 775.087(2), Florida Statutes, (the “10-20-life statute”) for his possession of a firearm during the robbery. The defendant has argued that (1) he was prejudiced by admission of a bloody jacket at trial; (2) the State failed to provide a genuine race-neutral reason for striking a juror; and (3) the State failed to prove that he possessed a firearm during the robbery. We find no error in issues (1) and (2) and affirm the conviction. However, we reverse the 10-20-life sentencing enhancement due to the State’s failure to prove that the defendant actually possessed a firearm.

The defendant was one of two men who robbed a Subway store. The employee present during the robbery testified that both men had guns, but that the gun used by the defendant appeared to be a toy gun. No firearm was entered into evidence at trial, nor was there any evidence contradicting the employee’s testimony. Because the State presented evidence that the defendant’s accomplice had a gun, the evidence was sufficient to support the defendant’s robbery conviction under a principal theory. See Demps v. State, 649 So.2d 938, 939 (Fla. 5th DCA 1995) (finding evidence sufficient to support conviction for armed robbery, pursuant to principal theory, where evidence showed that codefendant carried firearm during commission of crime). However, while “possession of a firearm by a codefendant is sufficient to convict a defendant of armed robbery, pursuant to the principal theory, it is not a sufficient basis to warrant the imposition of the [10-20-life] mandatory minimum sentence.” Freeny v. State, 621 So.2d 505, 506 (Fla. 5th DCA 1993) (footnote omitted). Rather, the State must prove that a defendant had actual possession of the firearm. See Knight v. State, 70 So.3d 674, 675 (Fla. 1st DCA 2011). A toy gun does not fit within the definition of firearm under the 10-20-life statute. See, e.g., Coley v. State, 801 So.2d 205, 206-07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10-20-life statute). Thus, the sentencing enhancement must be vacated.

Affirmed in part; vacated in part.

WARNER and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    Paula NOUSARI, Appellant, v. Carlos H. NOUSARI, Appellee.
    No. 4D11-1663.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Mark A. Levy, Kenneth A. Gordon and Roberta G. Stanley of Brinkley Morgan, Fort Lauderdale, for appellant.
    Cynthia L. Greene of the Law Offices of Greene Smith & Associates, P.A., Miami, and Sheryl A. Moore of Fowler White Burnett, Fort Lauderdale, for appellee.
   GROSS, J.

We affirm the final judgment of dissolution, finding no abuse of discretion in the circuit court’s award of durational alimony or guidelines child support. We briefly discuss the alimony award.

These material facts support the alimony award. This was a “moderate-term” marriage within the meaning of section 61.08(4), Florida Statutes (2010). The wife is 39 and in good health; the husband is 44 and in stable health. There are three minor children, born in 1996, 1998, and 2002. Each party received $1,366,120 in equitable distribution; the assets distributed to the wife will generate $8,000 of investment income per year. The wife’s needs are $10,000 per month; she received the unencumbered marital home as part of the equitable distribution. Although she “is voluntarily underemployed and could work more in her chosen field if she chose to,” the wife could reasonably earn $17,000 per year. There was evidence that the wife could earn between $32,000 and $45,000 if she treated work as work, rather than a hobby. The Husband’s gross annual income, including investment income, is $1,445,508.

The trial court awarded $10,708 per month in durational alimony for nine years, commencing on December 1, 2010, and guidelines child support of $6,163 per month, with appropriate reductions occurring as each child reaches the age of majority. The wife contends that the trial court should have awarded permanent alimony.

A trial court’s decision regarding alimony is subject to an abuse of discretion standard of review. E.g., Kareff v. Kareff, 943 So.2d 890, 893 (Fla. 4th DCA 2006). If reasonable persons “could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In 2010, the legislature changed the alimony statute and created a new form of alimony called “durational” alimony. See Ch. 2010-199, Laws of Fla. The 2010 amendments apply to all initial awards of alimony entered after July 1, 2010. Id. at § 2. Because the alimony award in this case was made in April 2011, section 61.08, Florida Statutes (2010) governs this case. As a “gray area” or “moderate-term marriage” under section 61.08(4), there is no presumption for or against permanent alimony. Hornyak v. Hornyak, 48 So.3d 858, 861 (Fla. 4th DCA 2010).

The trial court made the findings required by section 61.08(a)-(j). The parties’ standard of living is not a “super-factor” that overrides all other considerations in setting the amount of alimony. See Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006). The purpose of permanent alimony “is not to divide future income to establish financial equality” between the parties, Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003), so disparity in income alone does not justify an award of permanent alimony. See Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). Alimony is a creation of statute. See Pacheco v. Pacheco, 246 So.2d 778, 780 (Fla.1971). Before the 2010 amendments to section 61.08, gray area cases often involved the choice between permanent alimony and bridge-the-gap alimony. The 2010 amendments created du-rational alimony, an intermediate form of alimony between bridge-the-gap and permanent alimony. In evaluating the propriety of an award of durational alimony, pre-2010 cases are of limited utility, since they evaluate a different type of choice made by the trial judge. “The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration.” § 61.08(7), Fla. Stat. (2010). The final judgment is consistent with that purpose and is not “arbitrary, fanciful, or unreasonable” under the totality of the circumstances. Canakaris, 382 So.2d at 1202.

We note that the legislature made further revisions to the alimony statute in 2011. One such revision is that a court awarding permanent alimony “shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” § 61.08(8), Fla. Stat. (2011). Another such change is that for a marriage of moderate duration, “[p]ermanent alimony may be awarded” if “such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth” in subsection 61.08(2). Id. (emphasis added). However, the 2011 amendments apply to initial awards of alimony entered after July 1, 2011, and are not applicable to this case. See Ch. 2011-92, § 80, Laws of Fla.

Affirmed.

LEVINE, J., and ROSENBERG, ROBIN L., Associate Judge, concur.


text:
    Ronald MITCHELL as Co-Guardian of the Person and Property of Joseph P. Mitchell, Appellant, v. Mary MITCHELL as Co-Guardian of the Person and Property of Joseph P. Mitchell, Appellee.
    No. 4D11-2572.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Brian M. O’Connell and Ashley N. Giro-lamo of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellant.
    No appearance for appellee.
   TAYLOR, J.

This appeal concerns an order granting attorney’s fees and costs incurred in guardianship proceedings wherein the father/co-guardian contested the mother/co-guardian’s petition for compensation and additional monies for the care of their disabled adult son/ward. We agree with the father that the trial court’s “global order” on attorney’s fees and costs must be reversed because the order fails to set forth (1) the basis for the fees awarded and those not awarded, (2) express findings regarding the number of hours reasonably expended, and (3) express findings regarding the reasonable hourly rate for the type of litigation involved.

It is well-settled that an award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. See Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003); see also Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). These requirements are mandatory. Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997). Moreover, it is improper to “reverse engineer” the required findings based upon a lump sum award of fees. See Bennett v. Berges, 50 So.3d 1154, 1160 (Fla. 4th DCA 2010); but compare Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1994) (holding that reversal was not required, despite the lack of findings in the written order, where the trial court stated on the record that it would award $11,250 and that it derived this number by multiplying seventy-five hours times $150 an hour).

Here, the trial court’s order contains insufficient findings; it does not comply with the requirement that the court make express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Furthermore, the trial court’s order fails to explain the basis for a reduction in fees which the court determined was for “multiple lawyers on the same matter.” While this reduction may have been warranted, the trial court should make a specific finding explaining which work was duplicative. The mere fact that both a partner and an associate appeared at a particular proceeding does not necessarily mean that their work was duplicative.

Although the trial court utilized the correct legal standard in concluding that the legal services must be beneficial to the ward to be compensable, see § 744.108, Fla. Stat. (2010), Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011), on remand, the trial court should make a specific finding as to which fees and costs were non-compensable on this ground. The trial court’s conclusion that only 60% of the services of the father’s attorneys benefitted the ward was not supported by any specific findings. In short, “[t]he circuit court’s order must set forth the basis for the award, including the hours determined to be compensable, the hourly rate, and the other factors considered in arriving at the award.” Id. at 346. Additionally, as appellant points out, the order failed to itemize the costs allowed. On remand, the trial court “must also itemize the costs allowed.” Id.

Reversed and Remanded.

WARNER and STEVENSON, JJ„ concur.


text:
    E.B., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 4D11-3030.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Amanda E. Heystek, Tampa, for appellant.
    Tracy Lee Cooper, Tallahassee, for ap-pellee.
   PER CURIAM.

This appeal stems from the appellant, E.B., requesting pre-authorization from the appellee, Agency for Health Care Administration (“AHCA”), for twelve hours per day of home health aide services through the Medicaid Home Health Aide Services Program (“Medicaid HHA Program”). E.B. is a twelve-year-old female who has been diagnosed with Rett Syn-drone, a physically disabling autism disorder. A hearing officer determined that E.B. was entitled to four hours of home health aide services per day on Monday through Friday. The record reflects that the hearing officer failed to consider the federal early, periodic, screening, diagnostic and treatment (“EPSDT”) standard in making its determination as to which services requested by E.B. were covered by the Medicaid HHA Program. See Smith v. Benson, 703 F.Supp.2d 1262, 1268-69 n. 8 (S.D.Fla.2010) (explaining that the federal EPSDT program requires states to provide Medicaid coverage for “[s]uch other necessary health care, diagnostic services, treatment, and other measures described [as medical assistance] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan”) (citation omitted). Thus, this case is remanded so that the hearing officer may consider E.B.’s request under the EPSDT standard. See C.F. v. Dep’t of Children & Families, 934 So.2d 1, 6 (Fla. 3d DCA 2005) (reversing and remanding where hearing officer failed to apply EPSDT standard in determining Medicaid coverage).

Reversed and remanded.

STEVENSON, HAZOURI and GERBER, JJ., concur.


author: EVANDER, J.

text:
    F.O., SR., Father of A.O., F.O., Jr., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-892.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2012.
    Nickole E. Frederick, Orlando, for Appellant.
    Rosemarie Farrell, Appellate Counsel, Department of Children and Families, Orlando, for Appellee.
    Laura E. Lawson, Appellate Counsel, Guardian ad Litem Program, Tavares.
   EVANDER, J.

F.O. (“the father”) appeals from an order that, inter alia, sets forth “Supplemental Findings of Dependency.” In its order, the trial court found that the father had engaged in certain wrongful conduct that had adversely affected his children. The father was thereafter ordered to perform-certain tasks pursuant to an amended case plan. We affirm.

After the entry of a consent pled by the children’s mother to the petition for dependency, the trial court adjudicated the children dependent. Pursuant to section 39.507(7), Florida Statutes (2011), the court subsequently held an evidentiary hearing to determine if the father had abused, abandoned, or neglected any of the children. That statute provides in relevant part:

(a) For as long as a court maintains jurisdiction over a dependency case, only one order adjudicating each child in the case dependent shall be entered. This order establishes the legal status of the child for purposes of proceedings under this chapter and may be based on the conduct of one parent, both parents, or a legal custodian.
(b) However, the court must determine whether each parent or legal custodian identified in the case abused, abandoned, or neglected the child in a subsequent evidentiary hearing. If the evidentiary hearing is conducted subsequent to the adjudication of the child, the court shall supplement the adjudicatory order, disposition order, and the case plan, as necessary. With the exception of proceedings pursuant to s. 39.811, the child’s dependency status may not be retried or readjudicated.

Although the trial court’s ensuing order is somewhat unclear, we do not believe that it included a finding that the father had abused, abandoned, or neglected any of the children. Rather, we interpret the order to simply reflect the trial court’s determination that the father had engaged in actions that had resulted in significant “mental health issues” for the children and that it would be in the children’s best interests for the father to complete certain case plan tasks. The trial court’s findings ■were supported by the record. Furthermore, this court has previously recognized that a parent may be ordered to participate in a case plan, even though that parent had not been found to have abused, abandoned or neglected the children at issue. See D.G. v. Dep’t of Children & Families, 80 So.3d 1063, 1065 (Fla. 5th DCA 2012); B.C. v. Dep’t of Children & Families, 864 So.2d 486, 490 (Fla. 5th DCA 2004); J.P. v. Dep’t of Children & Families, 855 So.2d 175, 176 (Fla. 5th DCA 2003); see also § 39.521(l)(b), Fla.Stat. (2011).

We find no merit to the other issues raised on appeal.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . We agree with the father that the evidence would not support such a finding.


text:
    The LAW OFFICE OF DARIO DIAZ, P.A., Appellant, v. FIRSTBANK FLORIDA, et al., Appellee.
    No. 5D11-2263.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.
    David D. Sharpe of The Law Office of Dario Diaz, P.A., Tampa, for Appellant.
    Otto E. Berges and Cherish A. Thompson of Thompson Berges, P.A., Miami, for Appellee.
   PER CURIAM.

We reverse the award of attorney’s fees against Appellant because the trial court failed to set forth detailed factual findings describing the specific bad faith conduct that resulted in the unnecessary incur-rence of attorney’s fees. We remand this cause for further proceedings. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002).

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.