text:
    In the Interest of N.R.-G., a child. E.R.-J., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-3961.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.

      Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   SILBERMAN, Chief Judge.

E.R.-J. seeks review of the order terminating his parental rights to his five-year-old daughter, N.R.-G., based on his failure to substantially comply with his case plan. We reverse because the Department of Children and Family Services failed to establish by clear and convincing evidence that the case plan noncompliance was substantial and not beyond his control.

In March 2007, eight-month-old N.R.-G. and her four-year-old brother A.G. were sheltered based on a report that the children’s mother, V.G., was physically abusive toward A.G. At the time of the proceedings, the children were living with the Mother and E.R.-J., who is the father of N.R.-G. and will be referred to hereinafter as “the Father.” The Mother was charged with aggravated child abuse based on her treatment of A.G. She entered a plea, was sentenced, and was deported to Mexico. The Department was unable to locate A.G.’s father, M.B.-V., throughout the entire course of the proceedings.

The Mother and the Father consented to the petition for dependency. The allegations against the Father were based on excessive corporal discipline and neglect as evidenced by the children’s tooth decay, the family’s dirty living conditions, and N.R.-G.’s untreated labial adhesion. The Father subsequently completed the parenting requirements in his case plan and passed a home study. In October 2007, N.R.-G. was reunified with the Father, and A.G. was also returned to his custody.

The children were sheltered for a second time five months later in March 2008 after the Father moved to a residence his case manager deemed inappropriate. This residence was a makeshift garage bedroom on the side of a home shared by several others. The home study did not reveal hazardous living conditions in the residence, and all of the home’s residents passed a background check. However, the residence was deemed inappropriate because some of the male residents were also sleeping in the same room as the children. The Father subsequently relocated and obtained an approved homestudy, and N.R.G. and A.G. were returned to his custody a second time in early 2009.

Shortly after the children were returned to his custody, the Father relocated with them to Oklahoma. The Father had moved out of state because the children’s maternal grandfather offered to provide housing there and the Father was able to obtain employment there. But the Father moved without notifying the Department, and the children were reported missing. The Department had some difficulty locating the children because the Father delayed enrolling A.G. in school. When the Father attempted to enroll A.G. in school in August 2009, the Department located the children and returned them to Florida.

The Father’s case manager met the children at the airport in Oklahoma and observed that A.G. was well-groomed. The case manager described three-year-old N.R.-G. as “unkempt” in that “[h]er hair wasn’t combed, she had a chipped tooth, she had bruising that looked like old bruises on her legs, and her clothes fit snugly.” N.R.-G. was also wearing a diaper even though the case manager had been informed that she had been “almost completely” potty trained in foster care.

In September 2009, the Father attended a Department staffing and was informed that the Department was going to change his case plan goal to adoption based on the fact that the children had been sheltered for a third time. The Department amended the case plan as indicated. The Father, who was still residing in Oklahoma, hired a private attorney and attended a judicial review hearing on November 18, 2009. The court subsequently entered an order on the hearing which contained a provision precluding the Father from having contact with the children except by telephone. Two days later, the Father’s attorney served a motion to amend the case plan goal to reunification. The Father returned to Florida permanently some time before the end of November.

On December 28, 2009, the Department filed a petition for termination of parental rights as to both children. The petition alleged the following grounds: abandonment of N.R.-G. under section 39.806(l)(b), Florida Statutes (2009); engaging in conduct demonstrating that the Father’s continuing involvement threatened N.R.-G.’s life, safety, well-being, or health under section 39.806(l)(c); and failing to substantially comply with the case plan under section 39.806(l)(e). Two days later, the court granted the Father’s motion to amend the case plan, and the case plan goal was changed to reunification with a concurrent goal of adoption. A month later the Department refiled its petition for termination of parental rights.

In April 2010, the Father attended a judicial review after which the court determined he had partially complied with his case plan. The only tasks remaining for the Father to complete were to maintain stable housing and employment and to demonstrate that he had benefited from previous services. The Father thereafter provided his case manager with some pay stubs as proof of employment. The Father had housing, but he was living in close quarters with several roommates. And the Department had previously deemed a similar housing arrangement inappropriate based on the absence of private sleeping quarters for the children.

Due to the fact that a no-contact order had been entered, the Father did not visit with N.R.-G. until a supervised visit was arranged in May 2010 for purposes of a parenting assessment. This visit was observed by the Father’s case manager and the licensed mental health care provider (LMHC) who conducted the parenting assessment. The visit took place for thirty minutes at a McDonald’s, and it was the first time N.R.-G. had seen the Father since she had been removed from his custody approximately nine months previously-

Three-year-old N.R.-G. was extremely uncomfortable with the Father when he tried to engage her during the visit. Her body became tense, she stopped talking, she avoided eye contact with the Father, and she cried at one point. N.R.-G. did not respond to the case worker or LMHC in the same manner during the visit. Based on this response, the LMHC concluded that the Father’s relationship with N.R.-G. was “distressed.” The LMHC determined that, without therapy, any subsequent visitation with the Father would be detrimental to N.R.-G. But with two to three months of therapy N.R.-G. may be able to successfully visit with the Father.

N.R.-G. was not provided any such therapy, and the no-contact order stayed in place while the parties awaited the adjudicatory hearing on the Department’s termination petition. However, the adjudicatory hearing, which was originally scheduled for August 3, 2010, was delayed while the Department investigated a potential placement with the maternal grandfather in Oklahoma. For reasons not developed in the record, that placement was not approved.

In December 2010, the court ordered a second parenting assessment. The no-contact order was again lifted so that the Father could visit with N.R.-G., who was now four years old, for purposes of this assessment. The visit was conducted in January 2011 and was observed by Dr. Leslie Swanson, the psychologist who conducted the parenting assessment. The visit took place for an hour at a visitation center and it was the first time N.R.-G. had seen the Father since her thirty-minute visit at the McDonald’s approximately eight months previously. N.R.-G. was nervous during the visit and did not return the Father’s affections. She avoided making eye contact with the Father and was very distracted.

In February 2011, the Father attended a judicial review after which the court determined he was still only in partial compliance with his case plan. The court again concluded that the Father had not obtained stable housing and employment or demonstrated that he had benefited from previous services.

The adjudicatory hearing was held in May and June 2011, and the Mother and A.G.’s father, M.B.-V., were deemed to have consented to termination based on their failure to appear. The Department abandoned its allegations against the Father under sections 39.806(l)(b) and (c) and proceeded with termination under section 39.806(l)(e) based solely on his failure to substantially comply with his case plan.

At the adjudicatory hearing, the LMHC and Dr. Swanson testified regarding their observations of the Father’s two visits with N.R.-G. Dr. Swanson also testified regarding a psychological evaluation of the Father she conducted as part of her parenting assessment. Based on the Father’s responses to various hypotheticals she offered during the interview portion of the assessment, Dr. Swanson concluded that the Father had not learned about the importance of a structured environment and discipline during his parenting classes. But Dr. Swanson acknowledged that there was a language barrier that invalidated the results of part of her psychological evaluation. The Father speaks Spanish and little or no English. Although the Father was provided an interpreter, many of Dr. Swanson’s questions did not translate well and she was unsure that he understood what she was really asking.

Nonetheless, Dr. Swanson concluded that the Father’s prognosis for successful parenting was poor. Dr. Swanson believed that the Father had not benefited from services and was naive about his ability to properly care for N.R.-G. Dr. Swanson was especially concerned because the Father could not articulate any clear plans for suitable housing arrangements.

The Father’s case manager testified regarding the circumstances of the Department’s locating and retrieving the children from Oklahoma in August 2009. She also testified that the Father was noncompliant with his case plan because he had not been able to offer proof of appropriate housing or. current employment. As to proof of employment, the Father had provided the case manager with pay stubs up until August 2010. After that he changed jobs and told the case manager that he no longer received pay stubs because he was paid in cash. The case manager suggested he get a notarized letter verifying his income from his employer, but he failed to do so.

The case manager echoed Dr. Swanson’s opinion that the Father had not benefited from the services provided by the Department. Nor did she believe that N.R.-G. could be safely returned to the Father’s custody. Her opinion was gleaned from her observation of the Father’s two visits with N.R.-G. and her review of his file. Finally, the case manager testified that she felt that permanency was long overdue for N.R.-G.

The Father testified through an interpreter. He said he had a fourth-grade education. He was currently working in construction, and he provided his employer’s name and phone number. The Father was earning eight dollars an hour and worked between thirty and thirty-five hours a week for a total of between $280 and $320. He could not provide a pay stub because he was paid in cash. The Father insisted he has consistently held a job since the onset of the proceedings.

The Father testified that he was currently living in a two-bedroom apartment with a woman, her husband, their two children, and two other adults. He was living with so many people because he could not afford his own place. He claimed he would try to find his own two-bedroom apartment if N.R.-G. was returned to him. He would like to take the children back to Oklahoma to live with the maternal grandfather, but he would stay in Florida if the court directed him to do so. The Father testified he has never hurt either child, and he did everything the Department asked him to do. He believed he was able to provide suitable care for both N.R.-G. and A.G.

The trial court bifurcated the adjudicatory hearing so that the best interests of the child were addressed at a second hearing in June 2011. The State recalled the current case manager, who testified that termination was in N.R.-G.’s manifest best interests. Counsel for the Department then asked the case manager whether each of the best interest factors as set forth in section 39.810 was satisfied in this case. Without providing factual support for most of her conclusions, the case manager answered “yes” or “no” to questions that parroted each of the factors.

The Guardian ad Litem testified that he had reviewed the record, interviewed some of the parties, and observed N.R.-G. in her foster placement and during her telephonic visitation with the Father. The Guardian concluded that it would be in the manifest best interests of N.R.-G. to terminate the Father’s parental rights. The Guardian concurred with Dr. Swanson and the case manager’s opinions that the Father has not benefited from the parenting classes.

The court thereafter entered a final judgment terminating both parents’ rights to N.R.-G. and terminating the Mother and M.B.-V.’s parental rights to A.G. The court found that termination as to the Father was proper based on his failure to substantially comply with his case plan under section 39.806(l)(e). The court also concluded that the Father’s failure to comply with his case plan was not due to his lack of financial resources.

Under section 39.806(l)(e), termination is proper when the court has adjudicated the child dependent, the Department has filed a case plan, and “[t]he child continues to be abused, neglected, or abandoned by the parent.” A parent’s failure “to substantially comply with the case plan for a period of 9 months” is sufficient evidence of such continuing abuse, neglect, or abandonment unless this failure was caused by the parent’s lack of financial resources or to the Department’s failure to provide reasonable efforts toward reunification. Id. “ ‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(73).

In order to terminate parental rights, the Department must prove the allegations in its petition by clear and convincing evidence. See R.C. v. Dep’t of Children & Family Servs., 33 So.3d 710, 714 (Fla. 2d DCA 2010). A trial court’s finding of clear and convincing evidence is presumed correct but should be reversed if clearly erroneous or not supported by competent, substantial evidence. Id.

The trial court found that the Father breached his case plan in four material aspects: (1) intentionally absconding to Oklahoma, (2) concealing the fact of his relocation to Oklahoma, (3) failing to obtain approved housing, and (4) continuing to neglect N.R.-G. despite the completion of parenting classes. Because these breaches did not pose any danger to N.R.-' G.’s well-being and safety and were attributable to the Father’s lack of financial resources and the Department’s failure to provide services, we conclude they are not sufficient to support a finding that the Father failed to substantially comply with his case plan.

The failure to comply with a case plan is not sufficient, in and of itself, to support a termination of parental rights. N.F. v. Dep’t of Children & Family Servs., 82 So.3d 1188 (Fla. 2d DCA 2012); R.F. v. Dep’t of Children & Family Servs., 22 So.3d 650, 654 (Fla. 2d DCA 2009); I.Z. v. B.H., 53 So.3d 406, 410 (Fla. 4th DCA 2011). Instead, the Department must also present clear and convincing evidence of abuse, neglect, or abandonment. And while a parent’s failure to substantially comply with a case plan may constitute clear and convincing evidence of abuse, neglect, or abandonment, such a finding also requires clear and convincing evidence that the circumstances that resulted in the case plan’s creation were not sufficiently remedied so that the children’s well-being and safety would be endangered by reunification. N.F., 82 So.3d at 1192; R.F., 22 So.3d at 654.

In this case, there was no evidence that N.R.-G.’s well-being and safety was endangered by any of the Father’s alleged breaches of the case plan. The children had originally been sheltered based on allegations of abuse by the Mother and excessive corporal punishment and neglect by the Father. But the Mother has been convicted and deported, and the Father remedied the excessive corporal punishment and neglect by complying with his first case plan. From that point on, there was no evidence that any conduct by the Father endangered N.R.-G.’s well-being and safety. In fact, the only evidence regarding this subject came from the case manager’s testimony concerning N.R.-G.’s “unkempt” appearance and potty-training lapse on one occasion in August 2009. But there was no evidence of any actual or threatened harm to N.R.-G.’s well-being or safety arising from this testimony.

And, contrary to the trial court’s findings, the evidence established that the Father’s noncompliance with the case plan was due to his lack of financial resources or the Department’s failure to provide reasonable efforts toward reunification. “[P]arental rights cannot be terminated simply because the parent is poor, uneducated, and without sufficient financial resources to care for her children in the manner the Department deems advisable, or because she has not been a model parent.” T.C.B. v. Fla. Dep’t of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002).

The main issue in this case is the Father’s inability to obtain what the Department deemed “suitable” housing. The Father was able to procure housing in conditions that were not hazardous and with roommates who passed a background cheek. The problem with the Father’s housing situation was that he had to settle for cramped living arrangements with several roommates and could not arrange for private sleeping quarters for the children. But the Father testified that he earned between $280 and $320 per week and could not afford his own place. And while the trial court concluded that the Father had the financial ability to obtain his own place, the court relied on the fact that the Father had been able to do so in the past even though the Father was never able to sustain those living arrangements. The court also relied on the Father’s assertion that he would “try” to find his own two-bedroom apartment if the children were returned to his custody. However, the Father’s intentions, while noble, are not grounded in fact.

As they concern his inability to obtain suitable housing, the facts of this case are analogous to those in Henderson v. Department of Health & Rehabilitative Services, 480 So.2d 198 (Fla. 5th DCA 1985). In Henderson, the mother had given birth to the children when she was fourteen and sixteen. Id. at 199. She had received a tenth-grade education and lived with her mother and several adult siblings in a small home in “crowded, squalid conditions.” Id. The children had been sheltered after the mother was ordered out of the house and she left them behind with the grandmother, “unattended and neglected.” The children were declared dependent, and the mother entered into a series of case plans. The mother made a substantial effort to comply with the case plans but was essentially stymied by her inability to obtain suitable housing and employment. The mother had made efforts to obtain government assistance, but they were unsuccessful.

The Fifth District reversed the order terminating the mother’s parental rights based on her failure to substantially comply with her case plan. Id. at 200. The court concluded, “[The mother’s] parental rights are in jeopardy in this case primarily because she is poor, uneducated, and without sufficient financial resources to care for her children in the manner the Department deems advisable. These are insufficient, reasons to terminate parental rights.” Id. at 199. Instead, the court recognized that the mother’s parental rights could not be terminated absent “clear and convincing evidence of neglect, abuse or abandonment by the natural parent.” Id. at 200. And while the mother may have failed to comply with certain aspects of her case plan, those failures were “beyond her ability and control.” Id. Cf. M.M. v. Dep’t of Children & Family Servs., 867 So.2d 573, 574 n. 1 (Fla. 3d DCA 2004) (affirming termination of the mother’s parental rights based on her failure to obtain appropriate housing and employment because the mother’s “lackadaisical approach to completing her ease reunification plan evidences an unwillingness on her part to organize her life in such a fashion as to care for her children”).

As with the mother in Henderson, the Father’s inability to maintain adequate housing was due to factors beyond his control. The evidence established that he was consistently employed, and there was no dispute that he was earning the best salary he could with a fourth-grade education and his language limitations. And, unlike the mother in M.M., there was no evidence that the Father was lackadaisical in his efforts. In fact, he tried within his limited means to provide safe housing for the children, he went through the effort of obtaining private counsel, and he sacrificed a job in Oklahoma to return to Florida to defend his parental rights.

As for the Father’s breaches of the case plan by relocating the children to Oklahoma and concealing their presence there, the evidence established that the relocation was motivated in large part by the Father’s need for housing. The Father testified that he would like to take the children back to Oklahoma but asserted he would stay in Florida if so directed. And the trial court did not express any concerns that the Father would abscond with the children.

The only remaining breach is the Father’s alleged continued neglect of N.R.-G. despite the completion of parenting classes. This breach was based on the testimony of the case manager, the LMHC, Dr. Swanson, and the Guardian. Their opinions centered around N.R.-G.’s negative reaction to the Father during their visits and the Father’s inappropriate responses during Dr. Swanson’s interview.

The reliance on N.R.-G.’s negative reaction to the Father during visitation is problematic because the Father was only permitted two relatively brief visits that occurred at least eight months since the last time the Father had seen N.R.-G. Moreover, Dr. Swanson herself testified that with two to three months of therapy N.R.-G. may be able to successfully visit with the Father. But the Department has provided no such therapy. As to Dr. Swanson’s interview, she testified that there were significant language barriers even though the Father used an interpreter. And, to come full circle, Dr. Swanson was especially concerned because the Father could not articulate any clear plans for suitable housing. Here again, the Father’s efforts were stymied by circumstances beyond his control.

Because the Father’s breaches of the case plan did not pose any danger to N.R.G.’s well-being and safety and were attributable to the Father’s lack of financial resources and the Department’s failure to provide services, they are not sufficient to support a finding that the Father failed to substantially comply with his case plan. Thus, the Department failed to establish by clear and convincing evidence that termination was proper under section 39.806(l)(e). We therefore reverse and remand with directions for the trial court to reinstate the Father’s case plan in order that the Father may receive the proper services to assist with the goal of reunification.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.

      . Although A.G. is not the Father's biological child, the petition contained allegations pertaining to both children.

      . The Department originally alleged that baby N.R.-G. had rotten teeth, but it later clarified that it was A.G. whose teeth were rotten.

      .Although the shelter petition also contained allegations that the Father was not using car seats for the children and had failed to provide proof of employment, the case manager testified that the main reason the children were sheltered was the Father's inappropriate housing.

      . It appears the Father regularly exercised his right to some telephonic communication with the toddler. However, due to N.R.-G.’s young age, the toddler was unable to engage in any meaningful conversations.

      . While not necessary to our holding today, we note that the case manager’s testimony suffered from the same deficiency based on the lack of factual basis as recognized by this court in N.F. v. Department of Children & Family Services, 82 So.3d 1188, 1194-95 (Fla. 2d DCA 2012).


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellant/Cross-Appellee, v. Raymond J. SHEA and Mary Lou Shea; Don Gary Crabtree and Kaye Hadlock Crabtree (Parcel 20-503-196); Midflorida Federal Credit Union (Parcel 20-502-129); Titus L. Weflen and Angela R. Weflen; Greenpoint Mortgage Funding, Inc.; Citibank, N.A. (Parcel 20-503-207); Joe G. Tedder, CFC, Tax Collector of Polk County, Florida; and Marsha M. Faux, Property Appraiser of Polk County, Florida (all parcels), Appellees/Cross-Appellants.
    No. 2D11-1642.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.

      Richard V. Neill, Jr. of Neill, Griffin, Tierney, Neill & Marquis, Chartered, Fort Pierce; and William S. Bilenky, General Counsel, Jack R. Pepper, Deputy General Counsel, and Joseph J. Ward, Assistant General Counsel, Brooksville, for Appellant/Cross-Appellee.
    Jack P. Brandon, Deborah A. Ruster, and Andrea Teves Smith of Peterson & Myers, Lake Wales, for Appellees/Cross-Appellants Raymond J. Shea and Mary Lou Shea.
    No appearance for remaining Appel-lees/Cross-Appellants.
   CRENSHAW, Judge.

Southwest Florida Water Management District (the District) appeals a final order awarding $380,000 in attorney’s fees to Raymond J. Shea and Mary Lou Shea in an eminent domain proceeding. The District challenges the fees awarded under section 73.092(l)(b) and (2), Florida Statutes (2010). On cross-appeal, the Sheas argue that the trial court erred by awarding fees under section 73.092(l)(a), where it should have applied the lodestar factors listed in section 73.092(2). We affirm without further comment the award of attorney’s fees pursuant to section 73.092(l)(a) and (b). However, because contesting an order of taking does not constitute a supplemental proceeding contemplated by section 73.092(2), we reverse the $160,000 in attorney’s fees awarded under that section and remand for proceedings consistent with this opinion.

Before initiating eminent domain proceedings, the District offered to purchase the Sheas’ forty-acre property for a project designed to raise the water level of Lake Hancock in Polk County. The Sheas did not accept the offer and in August 2009, the District filed its eminent domain petition to take the Sheas’ property. The Sheas objected to the District’s order of taking and requested a hearing pursuant to section 74.051, Florida Statutes (2009).

At the order of taking hearing, the Sheas challenged the sufficiency of the District’s appraisal, deposit, and need for immediate possession. In May 2010, the trial court entered an order of taking, requiring the District to pay an $800,000 deposit. The parties thereafter stipulated to an order for rent-free extended possession of the property. And before a scheduled jury trial, the parties agreed the Sheas would be compensated $1.8 million for the property.

Following the settlement, the Sheas filed a motion for attorney’s fees, requesting the trial court to determine the proper method for calculating fees. After an initial hearing on the motion, the trial court concluded that the Sheas were entitled to $163,750 in attorney’s fees pursuant to section 73.092(l)(a). The trial court also stated that the issue of fees for nonmonetary benefits under section 73.092(l)(b) would be determined, and it concluded that the order of taking hearing constituted a “supplemental proceeding within the definition of [section] 73.092(2).”

A different judge presided over a second hearing on the Sheas’ motion for attorney’s fees. At the hearing, the trial court questioned the previous ruling that the order of taking hearing was a supplemental proceeding. Despite this uncertainty, the trial court did not revisit the issue, and it awarded the Sheas $160,000 in fees under section 73.092(2). The trial court also awarded a nonmonetary benefit fee of $56,250 under section 73.092(l)(b). Accordingly, the final judgment awarded a total of $380,000 in attorney’s fees to the Sheas, and the District filed a timely notice of appeal.

In Florida, the constitutionally guaranteed right to full compensation in an eminent domain proceeding includes a right to attorney’s fees. See art. X, § 6(a), Fla. Const.; Seminole Cnty. v. Butler, 676 So.2d 451, 454 (Fla. 5th DCA 1996) (“Full compensation within the meaning of our constitution includes the payment of attorney’s fees necessary to enforce the property owner’s rights, including fees incurred in proceedings arising out of, and ancillary to, the original condemnation proceeding.”). The method for calculating fees in eminent domain proceedings is outlined in section 73.092. “We review an award of attorney’s fees under section 73.092 for an abuse of discretion.” Sarasota Cnty. v. Curry, 861 So.2d 1239, 1241 (Fla. 2d DCA 2003). However, issues of statutory interpretation are reviewed de novo. See Amoco Oil Co. v. Fla. Dep’t of Transp., 765 So.2d 111, 112 (Fla. 1st DCA 2000) (reviewing de novo the issue of whether a hearing on post-judgment costs constitutes “other supplemental proceedings” contemplated by section 73.092(2)).

We conclude that the trial court erred in awarding attorney’s fees to the Sheas pursuant to section 73.092(2) because contesting an order of taking does not constitute a supplemental proceeding contemplated by the statute. Section 73.092(2) applies to fees “incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for.” Therefore, the statute “is only applicable when attorney’s fees, not otherwise provided for, are incurred for required proceedings that do not result in a monetary benefit upon which a fee can be based.” Fla. Dep’t of Transp. v. LaBelle Phoenix Corp., 696 So.2d 947, 948 (Fla. 2d DCA 1997). While this court has noted that section 73.092 provides no definition of “other supplemental proceeding,” “[i]n normal usage, a supplemental proceeding occurs at the end of a proceeding, usually after a final judgment has been entered.” Fla. Dep’t of Transp. v. Smithbilt Indus., Inc., 715 So.2d 963, 967 (Fla. 2d DCA 1998). Here, contesting the order of taking was a fundamental part of the proceedings that led to the final order of taking. Accordingly, we hold that contesting an order of taking does not constitute a supplemental proceeding contemplated by section 73.092(2). And because the Sheas have been fully compensated for fees under section 73.092(l)(a), we reverse the $160,000 in attorney’s fees awarded to the Sheas under section 73.092(2).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


author: LaROSE, Judge. ALTENBERND, Judge,

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. TARPON TOTAL HEALTH CARE, a/a/o Margaret Lage, Respondent.
    No. 2D11-128.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Robert H. Peterson of Masten, Lyerly, Peterson & Denbo, LLC, Tampa, for Petitioner.
    Arthur Liebling and Lawrence H. Lie-bling of Liebling & Liebling, Safety Harbor, for Respondent.
   LaROSE, Judge.

GEICO General Insurance Company petitions for certiorari review of the circuit court’s reversal of the county court’s final summary judgment against Tarpon Total Health Care. See Fla. R.App. P. 9.030(b)(2)(B). The circuit court did not “[violate] a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995)). Accordingly, we deny the petition.

Tarpon provided chiropractic treatment to Margaret Lage for injuries she sustained in an automobile accident. GEICO insured Ms. Lage. In December 2004 and January 2005, Tarpon submitted five claim forms for Ms. Lage’s treatments. The forms included the treating doctor’s name and signature, but omitted the doctor’s professional license number required by section 627.736(5)(d), Florida Statutes (2004). GEICO denied the claims but did not refer to this omission.

In October 2005, Tarpon sent GEICO a presuit demand letter with corrected claim forms; again, the forms omitted the professional license number. In July 2007, Tarpon resubmitted the claims and included the professional license number. A month later, GEICO denied the resubmitted claims as untimely. Tarpon sued GEI-CO in county court seeking payment of the claims, interest, and attorney’s fees and costs.

Part XI of chapter 627 governs motor vehicle and casualty insurance contracts. Section 627.736 provides, in pertinent part, as follows:

(4) Benefits; when due.—
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.... When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge ....
(5) Charges for treatment of injured persons.—
(b) 1. An insurer or insured is not required to pay a claim or charges:
d. With respect to a bill or statement that does not substantially meet the applicable requirements of paragraph (d);
(c)(1) With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement .... The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.
(d) All statements and bills for medical services rendered by any physician ... shall be submitted to the insurer on a properly completed ... standard form .... All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials” ... [and] compl[y] with applicable CPT and HCPCS coding_No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.

(Emphasis added.) Stated more succinctly, the healthcare provider must furnish the insurer with written notice of the claim postmarked within thirty-five days of any services rendered on a standard form that is “properly completed in [its] entirety as to all material provisions.” § 627.736(5)(c)(l), (d). Neither the insurer nor the insured must pay for charges for which the provider fails to provide timely written notice or where the claim form does not “substantially meet” the paragraph (5)(d) requirements. § 627.736(5)(b)(l), (c)(1). If the insurer rejects a claim, it shall explain its reason(s). § 627.736(4)(b).

In May 2009, GEICO moved for summary judgment based on Tarpon’s failure to provide timely written notice of a claim by omitting the doctor’s professional license number on the original claim forms. Tarpon filed a motion for partial summary judgment as to the medical necessity, reasonableness, and relatedness of the services provided to Ms. Lage. The county court granted final summary judgment to GEICO. The court ruled that Tarpon’s original bills were noncompensable because, they omitted the professional license number, thus failing to put GEICO on notice of a covered claim. It ruled that the corrected bills submitted two and a half years later were untimely because section 627.736(5)(c)(l) required submission within thirty-five days of providing services. The court denied Tarpon’s summary judgment motion as moot. Tarpon appealed to the circuit court.

In the absence of Second District precedent on the issue, the circuit court properly followed United Automobile Insurance Co. v. Professional Medical Group, Inc., 26 So.3d 21 (Fla. 3d DCA 2009). See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (holding that decision of one district court of appeal is binding throughout Florida in absence of interdistrict conflict or contrary supreme court precedent); Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So.3d 705, 709-10 (Fla. 2d DCA 2009) (holding circuit court must obey controlling precedent from another district even if it disagrees with the precedent).

In United Automobile, the Third District denied the insurer’s petition for second-tier certiorari of the circuit court’s affirmance of a final summary judgment for Professional Medical Group (PMG), a medical services provider. 26 So.3d at 25. As in our case, PMG timely submitted initial claims to United that did not include the treating physician’s license number. Id. at 23. PMG sent United a demand letter with resubmitted claims forms that included the license number. Id. at 22. United denied the claims and PMG sued. Id. at 23. United argued that payment was not required because PMG did not provide the physician’s license number and a disclosure and acknowledgement form. Id. The county court granted summary judgment to PMG, finding that it had “substantially complied” with section 627.736, that United knew the physician’s identity, and that PMG adequately cured the initial omission of the license number. Id. at 23. On appeal, the circuit court affirmed. Id.

The Third District held that the circuit court did not depart from the essential requirements of the law because, “based upon the statute’s plain language, a bill or statement need only be ‘substantially complete’ and ‘substantially accurate’ as to relevant information and material provisions in order to provide notice to an insurer.” Id. at 24. The court noted that United knew the identity of the physician and PMG cured its initial failure to provide the license number. United never claimed that the provider was not a licensed physician nor did it object to the missing license number. Id. In dicta, the Third District stated that, even if the license number was material, the statute did not forbid a subsequent correction. Id. at 24-25.

The Fourth Distinct followed United Automobile in USAA Casualty Insurance Co. v. Pembroke Pines MRI, Inc., 31 So.3d 234, 238 (Fla. 4th DCA 2010) (affirming trial court ruling that insurance claim substantially complied with section 627.736(5)(d) despite omission of medical provider’s professional license number; also noting that inclusion of physician name gave insurer means to check for professional license number). Cf. Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So.3d 329 (Fla. 5th DCA 2010) (holding proper D & A form was not condition precedent to enforce claim to payment).

GEICO relies on circuit court appellate cases holding that the inclusion of the license number is material and mandatory, that the provider does not give the insurer notice of the claim without the professional license number, and that the lack of the license number renders the claim noncom-pensable. See, e.g., Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637a (Fla. 13th Cir. App. Apr. 25, 2005).

We must observe that Tarpon’s claims for services, in the amount of $1600, have languished for several years. But we cannot disagree with our sister district courts’ interpretation of section 627.736; the insurer is put on notice of a covered claim by the submission of a substantially complete claim form. The omission of the professional license number, as in this case, is not fatal. The circuit court applied the correct law in reversing the final summary judgment entered in favor of GEI-CO. We deny the petition for writ of certiorari.

Petition denied.

KELLY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I am inclined to believe, as did several circuit courts on appeal, that the legislature intended a physician’s professional license number to be an important part of a claim for benefits under the PIP (personal injury protection) statutes. In light of the fact that an insurance company is expected to process and pay these claims within thirty days, and given that fraudulent PIP claims have become a major problem in Florida, requiring full and complete information on an application for PIP benefits seems entirely reasonable to me. On the other hand, compelling a judicial forfeiture of a physician’s right to payment of these benefits because of an administrative error in the claims process is an extreme remedy.

In this case, as in USAA Casualty Insurance Co. v. Pembroke Pines MRI, Inc., 31 So.3d 234 (Fla. 4th DCA 2010), the insurance company denied the initial claim without explaining that the application was defective for lack of a professional license number. As explained in our opinion, section 627.736(5)(d), Florida Statutes (2004), required the relevant physician to provide his professional license number in the line or space for “Signature of Physician or Supplier, Including Degrees or Credentials.” The claim was submitted on a form CMS-1500 approved by the AMA Council on Medical Service in December 1990. On that form, line 31 is at the bottom of the page. It calls for the signature of the physician or supplier including degrees or credentials. It does not ask for his professional license number or provide any designated space for this number. It has a designated space for his signature that is 1 1/8" in length and a space for the date that is 3/8" in length. The box barely has enough space for the doctor to type his name, much less date and sign it. The likelihood that a physician would omit his or her unrequested professional license number when filling out this box seems very high.

If the professional license number is such a material part of a claim for PIP benefits that the claim can be forfeited for failure to provide the number, especially when the insurance company does not explain this error and provide an opportunity to amend the claim to cure this specific oversight, it seems to me that this form is not adequate for the task. Thus, I concur in this opinion, but I might reach an opposite result if the form used to fulfill the requirements of this statute had a prominent box or line with adequate space and information to put the physician fully on notice that an administrative error in this regard would eliminate the insurance company’s obligation to process and pay the claim in the normal thirty-day period.


author: PER CURIAM.

text:
    Richard BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-945.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Robert Wesley, Public Defender, Orlando, and J. Randy Edmonson, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence entered November 3, 2011, following revocation of probation in case no. 2009-CF-5898-I-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

GRANT PETITION.

SAWAYA, LAWSON and JACOBUS, JJ., concur.


text:
    Kamlesh Babulal AGRAWAL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-885.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Kamlesh Babulal Agrawal, Carrabelle, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and bé treated as the notice of appeal from the judgment and sentence in Case No. 1999-CF-009988-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

MONACO, TORPY and EVANDER, JJ., concur.


author: GRIFFIN, J.

text:
    Henry N. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-446.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Henry N. Hall, Blountstown, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Henry N. Hall [“Hall”], seeks review of the trial court’s denial of his rule 3.850 motion and amended 3.850 motion. Denial was based on a finding of untimeliness. We affirm in part and reverse in part. This Court’s mandate in the direct appeal of Hall’s judgment and sentence was issued on September 26, 2007, making the original post-conviction motion, filed on September 15, 2009, timely. Rosado v. State, 654 So.2d 623 (Fla. 5th DCA 1995). That motion must, therefore, be considered on its merits. The “amended” motion, which added a new ground, was correctly dismissed as untimely.

AFFIRMED in part; and REVERSED in part.

PALMER and EVANDER, JJ., concur.


text:
    Alberto ALVEREZ-COLLAZO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-320.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    Robert Wesley, Public Defender, Orlando, and Jose Lopez, Assistant Public Defender, Kissimmee, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2011-CF-000025, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Douglas EHMKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2216.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Melton v. State, 75 So.2d 291, 294 (Fla.1954) (explaining the “elements” of an arrest); see also State v. K.N., 66 So.3d 380, 385 (Fla. 5th DCA 2011) (“[An] officer may detain [an] individual ... with handcuffs for the officer’s safety without converting [a] Terry stop into a formal arrest.”).

SAWAYA, LAWSON and EVANDER, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    Donna Roberts TRASK, Appellant, v. Scott A. TRASK, Appellee.
    No. 2D11-1437.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Mark A. Taylor of Taylor Law, P.A., Bartow, for Appellant.
    Stephen F. Baker, Winter Haven, for Appellee.
   SILBERMAN, Chief Judge.

Donna Roberts Trask (the Wife) appeals a final judgment of dissolution of marriage and the order denying her motion to set aside a mediated settlement agreement. We affirm the denial of relief on her motion to set aside the mediated settlement agreement without discussion. We remand for the trial court to correct the final judgment to properly state the number of alimony payments and total amount of alimony so as to be consistent with the mediated settlement agreement that the court approved.

The mediated settlement agreement provides that Scott A. Trask (the Husband) shall pay to the Wife thirty-nine monthly alimony payments of $500 for total, nonmodifiable alimony of $19,500. The final judgment incorporates the agreement by reference and approves the agreement but specifies that the Husband is to pay only thirty-six monthly alimony payments of $500 for total alimony of $18,000. In his answer brief, the Husband acknowledges the error in the final judgment.

Because the trial court intended to incorporate the terms of the parties’ agreement but misstated the amount of alimony payments, we remand for the trial court to enter a corrected final judgment that provides for thirty-nine monthly alimony payments of $500 for a total of $19,500. We affirm in all other respects.

Affirmed and remanded for corrected judgment.

ALTENBERND and WALLACE, JJ., Concur.


author: COHEN, J.

text:
    WYNDHAM VACATION RESORTS, INC., et al., Petitioners, v. OCEAN WALK RESORT CONDOMINIUM ASSOCIATION, INC., Respondent.
    No. 5D11-2611.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2012.

      Erik E. Hawks, Carrie Ann Wozniak and Thomas R. Yaegers of Akerman Sen-terfitt, Orlando, for Petitioners, Wyndham Vacation Resorts, Inc., and Wyndham Vacation Management, Inc.
    Paul M. Platte, Robert B. Barnes and Diana Coada of Rogers Townsend & Thomas, PC, Columbia, South Carolina, Gary R. Shendell and Mark M. Heinish of Shendell & Pollock, P.L., Boca Raton, for Respondent.
   COHEN, J.

Wyndham Vacation Resorts, Inc., and Wyndham Vacation Management, Inc. (collectively “Wyndham”) seek a writ of certio-rari to quash the trial court’s discovery order requiring them to produce unredact-ed employee W-2 forms, which display personal addresses, phone numbers, and social security numbers, as well as other documents containing the personal information of unit holders, revealing bank account numbers, credit card numbers, social security numbers, and contact information. Finding the trial court departed from the essential requirements of law, we grant the petition and quash the trial court’s order.

Ocean Walk Resort (“the Resort”) is a condominium development in Daytona Beach, Florida, consisting of a north and south tower. The north tower is governed by Ocean Walk II Vacation Condominium Association, Inc. (“VCA”), created in 2004. Respondent, Ocean Walk Resort Condominium Association, Inc. (“RCA”), created in 2001, is the condominium association responsible for operating the south tower of the Resort.

The south tower is comprised of three ownership classes: (i) whole unit owners; (ii) timeshare unit owners; and (iii) commercial unit owners. Although RCA oversees the affairs of all three ownership classes in the south tower, the timeshare unit owners are also governed by a separate association, Ocean Walk Vacation Ownership Association, Inc. (“VOA”).

On April 10, 2001, RCA entered into a management agreement with Wyndham, pursuant to which Wyndham was responsible for the operation, management, and maintenance of the south tower. Wynd-ham’s duties under the management agreement included, but were not limited to, maintaining the property in good condition and repair; maintaining RCA’s financial records, books and accounts; and collecting assessments. Wyndham was also responsible for managing the north tower for VCA under a separate management agreement.

RCA filed a second amended complaint in the circuit court asserting fifteen counts for relief against Wyndham and its affiliates, stemming from Wyndham’s alleged mismanagement of RCA’s funds. RCA alleged that Wyndham, while acting as RCA’s manager pursuant to the management agreement, improperly used the dues and fees collected from RCA’s owners to pay Wyndham’s own expenses, the operating expenses of the north tower, and the expenses of the commercial south tower units, rather than RCA’s expenses. Among other claims, RCA contended that Wyndham improperly charged it for work that its employees performed for other Wyndham entities.

The order under review requires Wynd-ham to produce certain employee records, subject to the following limitations:

Subject to a strict confidentiality agreement that will be prepared by the parties, [Wyndham] shall produce [the] documents [RCA] has requested containing bank account numbers, credit card numbers, social security numbers, and personal contact information of timeshare owners, and salary, wage and W-2 information of all Wyndham employees who have worked on behalf of [RCA] at the [Resort] without redaction. The confidentiality agreement must state that [RCA] shall not make public the unre-dacted documents specified above except to use among [RCA] attorneys and experts. If [RCA] wants to disclose or show the documents to any other person or party, [RCA] is required to move the [e]ourt for an order authorizing such disclosure.

The required production would include social security, credit card, and bank account numbers, as well as the identification of spouses and dependents. It is invasive, overly broad and goes well beyond the information needed to accomplish the goals sought by its production.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED; REMANDED.

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

      . We note in passing that the discovery requests in this case implicate significant privacy issues of not only the employees whose personal information was the subject matter of this petition, but also the owners of units within the subject property. While Wynd-ham's counsel expressed concern for maintaining the confidentiality of the requested records as part of a series of objections to the requested production, the privacy rights of the individuals involved were not considered.
      As an employer, Wyndham does not have standing to raise the constitutionally protected privacy interest of the non-parties implicated by the discovery order. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 941 (Fla.2002). However, implicit in the discussion of the personal nature of privacy rights is the notion that non-parties have an opportunity to assert their privacy rights and seek protection from the court’s order. One is hard-pressed to assert a privacy right to such personal information as social security numbers, names of dependants and spouses, credit card numbers, and W-2 records, without being aware such information is being sought.


text:
    P.M., SR., Father and S.G., Mother of R.A. and P.M., Children, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D11-2692, 5D11-2693.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2012.
    Edward M. Abel, of Law Office of Edward M. Abel, D.M.D., ESQ., LLC, Spring Hill, for Appellant, P.M., Sr.
    E.J. Lynum, of Lynum & Associates, PLLC, Orlando, for Appellant, S.G.
    Deborah Anne Schroth, of Department of Children & Families, Orange Park, for Appellee.
    Wendie Michelle Cooper, Appellate Counsel, Guardian ad Litem Program, Ta-vares, for Guardian ad Litem.
   PER CURIAM.

AFFIRMED. See K.P. v. Dep’t of Children & Family Servs., 997 So.2d 438 (Fla. 3d DCA 2008); D.O. v. S.M., 981 So.2d 11 (Fla. 4th DCA 2007); In re K.A., 880 So.2d 705 (Fla. 2d DCA 2004).

MONACO, EVANDER and JACOBUS, JJ., concur.


author: VAN NORTWICK, J. BENTON, C.J., SWANSON, J.,

text:
    Gerome BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2627.
    District Court of Appeal of Florida, First District.
    May 8, 2012.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Gerome Berry appeals his convictions for possession of cocaine, possession of cocaine with intent to sell, and resisting a law enforcement officer without violence, arguing that the trial court erred in denying his motion to suppress the crack cocaine and U.S. currency seized from him during a warrantless search. It is clear from this record that neither the arresting officer nor his fellow officer observed any suspicious behavior to confirm the reliability of the information given by a face-to-face anonymous tipster. Further, there were no other factors present sufficient to give the arresting officer reasonable suspicion to justify the investigatory stop which led to appellant’s arrest. Accordingly, we are constrained to reverse. Because of this disposition, we do not address appellant’s constitutional challenge to section 893.13, Florida Statutes. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

At 9:30 a.m. on October 9, 2009, Agriculture Law Enforcement Officer Allen was in a convenience store in the town of Hilli-ard. Inside the store, Allen was approached by a female in her early 30s who advised him that a black male was selling crack cocaine out of a small bag on a nearby corner of Orange Street. She said this person was wearing blue jean shorts, a white shirt, and a black stocking on his head. Allen called Nassau County Sheriffs Deputy Murray, who was on duty that day in the area, and relayed this information. Allen said he would wait at the convenience store in case the deputy needed assistance. As he was waiting, Allen observed a black male wearing a white shirt, blue shorts and a black stocking hat walk around the corner of the convenience store. This individual appeared to have an object in his hand although Allen “couldn’t necessarily say that it was a bag.” After he made eye contact with Officer Allen, the individual turned and walked into the woods adjacent to the convenience store. He returned shortly thereafter with nothing in his hands. His pants were unzipped and he told Allen that he had gone into the woods to relieve himself. He walked past the officer and headed in the direction of Orange Street.

Deputy Murray contacted Officer Allen and advised him that he was on the street corner, but a black male fitting the description was not there. Officer Allen advised Deputy Murray that the suspect appeared to be walking in that direction. Deputy Murray encountered appellant walking down the road “in a nervous pace” continually looking behind as he walked. The deputy pulled in behind appellant and activated his blue lights. Appellant resisted the subsequent pat down, the deputy arrested him for resisting an officer without violence, and the subsequent search revealed narcotics in a potato chip bag in appellant’s pocket.

At the suppression hearing, Officer Allen testified that he did not know the woman who gave him the tip and that she expressly advised that she did not want to give her name and that she wanted to remain anonymous. She did not advise him how she knew that appellant possessed cocaine or how she knew that he was selling cocaine. Officer Allen did not testify with respect to the credibility of the face-to-face tipster. Further, he offered his personal opinion that he “didn’t observe [appellant] engage in any suspicious or criminal activity.” The trial court summarily denied the motion to suppress. Following a trial, the jury found appellant guilty as charged.

In reviewing the order denying the motion to suppress, this court must view the evidence and the reasonable inferences and deductions therefrom in a light most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). We review de novo the trial court’s application of the law to the facts to determine whether Deputy Murray lawfully conducted an investigatory stop. Robinson v. State, 885 So.2d 951, 958 (Fla. 1st DCA 2004).

To justify a Terry stop, a law enforcement officer must have a well-founded, articulable suspicion that the person detained has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2009); Popple v. State, 626 So.2d 185, 186 (Fla.1993). Unlike in Terry, where the officer’s own observations provided a well-founded, articu-lable suspicion, the instant ease involves information from an anonymous third party in the form of a tip. The issue presented here is whether this face-to-face tip was sufficient to provide the requisite reasonable suspicion.

“In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided.” D.P. v. State, 65 So.3d 123, 127 (Fla. 3d DCA 2011). “[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). A court should consider the “totality of the circumstances” in undertaking this analysis. Id.

The spectrum of reliability of a tip ranges from the “anonymous, unknown tipster whose assertions of criminal activity typically cannot be verified and thus require independent corroboration,” which has relatively low reliability, to the relatively high reliability of a tip from the “citizen-informer crime victim whose motivation in reporting illegality is the promotion of justice and public safety rather than financial gain, and who can be held accountable for the accuracy of the information given.” State v. DeLuca, 40 So.3d 120, 124 (Fla. 1st DCA 2010); see also Baptiste v. State, 995 So.2d 285, 291-92 (Fla.2008); State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997). In between these types of tips is the face-to-face anonymous tipster whose identity cannot be ascertained, the face-to-face anonymous tipster whose identity is ascertainable, and the paid informant, among others. “One simple rule” does not apply to every situation. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Here, we must determine whether the face-to-face tip was more like a truly anonymous tip or more like a citizen informant tip. An anonymous tip requires that the information be “sufficiently corroborated” by the officer to constitute reasonable suspicion because the tipster’s veracity, reliability, and basis of knowledge are typically unknown. State v. Evans, 692 So.2d at 218; see also State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (applying the analysis of Evans). By comparison, a citizen informant is one who observes criminal conduct and reports it, along with his or her identity, to the police. A tip from a citizen informant is sufficient by itself to provide law enforcement with reasonable suspicion to conduct a Terry stop. Maynard, 783 So.2d at 228.

In Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the United States Supreme Court provided an analysis for determining whether an anonymous tip was sufficiently reliable to support a Terry stop. In J.L., an anonymous caller reported to the police that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268, 120 S.Ct. 1375. When the officers arrived at the bus stop within minutes, they saw three black males, one of whom, J.L., was wearing a plaid shirt. J.L. was frisked and a firearm seized from his pocket. Apart from the anonymous telephone tip, the officers had no reason to suspect J.L. of illegal conduct. The Court ruled that the anonymous tip lacked the indicia of reliability because it “provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” Id. at 271, 120 S.Ct. 1375. “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” Id. The court added that “[t]he mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement.” Id. at 273 n. *, 120 S.Ct. 1375.

Turning to the tip in the case under review, appellant contends it was anonymous because, even though the tipster had a face-to-face encounter with the officer, she did not give him her name, phone number, or any information with which to contact her. Appellant urges us to follow the reasoning in McKelvin v. State, 53 So.3d 401 (Fla. 4th DCA 2011), which appellant contends is factually similar. In McKelvin, the unidentified source approached police alleging she witnessed “narcotic activity” via “hand-to-hand transactions” from a vehicle. She provided police with a detailed description of the vehicle, the tag number, the race, the height, age, and weight of the suspect along with information that he would be going to a specific hotel. The source wished to remain anonymous and, as a result, officers never obtained the informant’s name, phone number or address. Id. at 403. In reversing a denial of a motion to suppress, the McKelvin court explained:

The indicia of reliability typically attributed to face-to-face encounters between police officers and informants do not exist in the present case where the police have no contact information for the informant and no way to locate him/her otherwise. Further, in the instant case, the officers did not know the motive of the informant. S/he could have been providing the information for his/her own pecuniary gain, may have had a falling out with McKelvin or may have even been acting on behalf of a competing drug dealer.

Id. at 405. Because the police in McKel-vin had acted without corroboration of the tip, the court held that the trial court erred in denying the motion to suppress.

On the other hand, the State contends that the trial court here properly denied the motion to suppress because the stop of appellant was based upon information provided by citizen-informant. Relying upon D.P. v. State, the State submits that a person who approaches the police face-to-face to report a crime is not anonymous, but is more analogous to a citizen-informant. In D.P., a woman approached an officer on patrol. The officer described the woman as very nervous and fearful and said that her hands were shaking and she was yelling. The woman pointed directly at D.P. and told the officer “he just pointed a gun at me, and he has a gun.” 65 So.3d at 126. The officer testified that he believed the young woman was credible, given her fearful state and outward appearance. Although the officer could have obtained the woman’s identity, he did not do so. He approached D.P. to verify the information he had just been provided, conducted a pat-down search of D.P.’s outer clothing, and discovered and removed a firearm. After taking D.P. into custody, Officer Tate discovered that the woman had left. In affirming the denial of a motion to suppress, the Third District explained “ ‘[a] face-to-face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip because the officers receiving the information have an opportunity to observe the demeanor and perceived credibility of the informant.’” 65 So.3d at 130 (quoting United States v. Heard, 367 F.3d 1275, 1279 (11th Cir.2004)). The court observed that “[b]y providing this information in the presence of D.P. himself, the informant exposed herself to the risk of reprisal (perceived or real) from D.P. or others who were present during the encounter.” Id. at 129.

We find D.P. distinguishable. Although the tipster in the case before us made face-to-face contact with Officer Allen, she stated that she wanted to remain anonymous. Her identity was unknown to the officer and was not readily ascertainable as the officer could not learn her name through later investigation. Unlike D.P., here the information was not provided in appellant’s presence, an indicia of reliability, and Officer Allen did not testify that he engaged in a credibility determination.

The State also asserts this case is controlled by this court’s decision in State v. Brock, 426 So.2d 1287 (Fla. 1st DCA 1983). In Brock, we held that while the tip was anonymous, it was not totally so since, even though the officer did not know the couple’s names who reported the stolen vehicle, they were physically in his presence and this, with the specificity and urgency of the tip, constituted indicia of reliability sufficient to justify a reasonable suspicion. Id. at 1289.

This case is clearly distinguishable from Brock. ' There, the court found that “the tipsters were available to provide further information, although Officer Price chose not to pursue this option.” Id. The court was further persuaded by the urgency of the situation in that the officer had to immediately respond to the tip or “the vehicle would probably escape” and “the exigency of the situation [was] obvious.” Id. These factors are not present in the case before us. Under the facts of this case, it cannot be said that the informant bore a greater resemblance to a citizen-informant than to a truly anonymous tipster.

We find the reasoning in McKelvin persuasive. “The indicia of reliability typically attributed to face-to-face encounters between police officers and informants [does] not exist in the present case where the police have no contact information for the informant and no way to locate [her] otherwise.” McKelvin, 53 So.3d at 405. As in McKelvin, the officers here did not know the motive of the informant. “Without contact information or some other way to locate the informant if necessary, the informant in the present case is no different than an anonymous informant who provides detailed information over the phone to the police dispatch.” Id.; see also Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000); State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998).

Finding that the tip in this case is at the low end of the reliability spectrum, this court must then determine whether the police had sufficient corroboration of the tip to form the reasonable suspicion necessary to stop appellant. We do not find corroborating facts in this record. Neither officer saw the defendant at the street corner where the tipster alleged he was selling drugs or witnessed illegal or suspicious activity on the part of appellant. Though Deputy Murray witnessed appellant walking at a nervous pace, “behavior, which may be suspicious but not demonstrably or conceivably criminal, is not sufficient to establish a founded suspicion, even in a high crime area.” Hills v. State, 629 So.2d 152, 156 (Fla. 1st DCA 1993). Appellant did not make a furtive or potentially dangerous movement. Id. Even if appellant’s fast walking could be construed as flight from police, “flight alone is not a proper basis for a founded suspicion of criminal activity as would justify ... an investigatory stop.” Robinson, 885 So.2d at 954.

Further, the case under review possesses none of the other factors necessary to create reasonable suspicion. The incident occurred at 9:30 in the morning. There was no testimony this was a high crime area or even that drug crimes had occurred there in the past. There was nothing unusual about appellant walking down the street. Compare Parker v. State, 18 So.3d 555, 559 (Fla. 1st DCA 2008) (holding that officer had reasonable suspicion to conduct an investigatory stop after the defendant began to run given the time of night, emptiness of the street and recent occurrence of domestic battery in area); Sinclair v. State, 816 So.2d 149, 150 (Fla. 1st DCA 2002) (holding that officer had reasonable suspicion to make a stop when, at 2:00 a.m. following a complaint of a prowler, suspect twice changed directions away from police when an attempt to talk to him was made); Jenkins v. State, 685 So.2d 918 (Fla. 1st DCA 1996) (holding that, where suspect was riding a bike at 12:55 a.m. carrying a large parcel in a primarily business district with all businesses closed in an area where there had been recent burglaries, and suspect stood up on bike to pedal faster, continually looking back at the patrol car, upon the totality of the circumstances the investigatory stop was appropriate).

In short, when the reliability of the tip and the lack of corroborating factors are considered, we find that the totality of the circumstances demonstrates that Deputy Murray did not have a reasonable suspicion of illegal activity sufficient to conduct a Terry stop.

REVERSED.

BENTON, C.J., concurs with written opinion, and SWANSON, J., dissents with written opinion.

BENTON, C.J.,

concurring.

I join the majority opinion in part because I do not believe the present case can be distinguished from Cronin v. State, 656 So.2d 213, 214 (Fla. 1st DCA 1995).

SWANSON, J.,

dissenting.

I respectfully dissent from the majority’s decision to reverse based on the totality of the circumstances. The face-to-face nature of the citizen’s tip, which accurately identified the appellant and was given within reasonable proximity of the appellant’s location at a nearby street corner, indicates the citizen possessed a sufficient level of reliability. See Baptiste v. State, 995 So.2d 285, 291 (Fla.2008) (stating an individual who approaches an officer to report criminal activity “falls at a higher end of the reliability scale” than one who makes an anonymous phone call and that “a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the credibility of the person offering the information”).

Deputy Murray also had sufficient corroboration of the tip to form the reasonable suspicion necessary to stop appellant. Importantly, the knowledge possessed by both Officer Allen and Deputy Murray is relevant in this determination. See Johnson v. State, 660 So.2d 648, 657 (Fla.1995) (stating “the collective knowledge of police investigating a crime is imputed to each member” of the investigation). Collectively, Officer Allen and Deputy Murray knew that the appellant appeared to have something in his hand and entered the woods after making eye contact with Officer Allen; claimed he entered the woods to relieve himself despite previously standing next to a convenience store; walked at a “nervous pace” and continually looked back; and placed his hands in his pockets as Deputy Murray approached. Additionally, I believe Deputy Murray may have been derelict in his duties had he not made contact with the appellant, considering the information he knew.

Because I believe the citizen was sufficiently reliable and the collective knowledge of Deputy Murray and Officer Allen amounted to reasonable suspicion, I would affirm the trial court’s denial of appellant’s motion to suppress.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: BENTON, C.J.

text:
    Maria Fernanda Obando GARCES, Appellant, v. Dino Miguel Zavala LEGARDA, Appellee.
    No. 1D11-4663.
    District Court of Appeal of Florida, First District.
    May 8, 2012.

      Mariya Zarakhovich, Jacksonville, for Appellant.
    Neil L. Weinreb, Jacksonville, for Appel-lee.
   BENTON, C.J.

By petition for writ of certiorari, Maria Fernanda Obando Garces sought review of circuit court orders entered August 26 and 29, 2011. The August 29 order superseded the August 26 order. Treating the petition for writ of certiorari as a notice of appeal addressed to the nonfinal order issued August 29, 2011, see Fla. R.App. P. 9.130(a)(3)(C)(iii), we vacate the order under review and dismiss the appeal as moot.

As best we can ascertain from the parties’ pleadings, the parties agree that, in February of 2008, Ms. Obando Garces arrived in Florida, her two minor children in tow. The children’s father, Dino Miguel Zavala Legarda, had consented to the children’s leaving Ecuador for a sixty-day vacation in the United States. Some time after arriving in the United States, Ms. Obando Garces informed Mr. Zavala Le-garda that neither she nor the children planned to return to Ecuador. Thereupon Mr. Zavala Legarda filed an action in Ecuador, asserting the children had been kidnapped and were being illegally detained in the United States.

On May 28, 2009, Mr. Zavala Legarda filed an action in Florida’s Fourth Circuit seeking to domesticate and enforce the Ecuadorian judgment he had obtained, and return of the children to him and to Ecuador. The learned trial judge described the Ecuadorian judgment as “requiring the return of the children to” Ecuador. On July 27, 2009, Mr. Zavala Legarda also filed a petition pursuant to the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11, which implements the Hague Convention on the Civil Aspects of International Child Abduction [Oct. 25, 1980, T.I.A.S. No. 11670,19 I.L.M. 1501] (Hague Convention).

On August 4, 2011, Ms. Obando Garces received notice that Mr. Zavala Legarda would be in Florida and wanted to exercise his right to visitation with the children. On August 17, 2011, Mr. Zavala Legarda’s counsel sent a letter to the trial court, asserting that Ms. Obando Garces refused to permit visitation on reasonable conditions, and requesting an order enforcing Mr. Zavala Legarda’s visitation rights.

After a hearing on August 26, 2011, the trial court entered that day an Order Enforcing Petitioner’s Visitation Rights, ruling that Mr. Zavala Legarda was entitled to immediate physical custody of the children until further order of the court. The trial court also ordered that the children not be removed from the court’s jurisdiction pending further order, and directed the parties to appear before the court on Monday, August 29, 2011, in order for the court to “hear evidence and argument on, and determine, its jurisdiction in this matter and parental time-sharing during its pendency.”

After a hearing on August 29, 2011, the trial court signed that day an Order on Review of Jurisdiction which reads, in substantial part, as follows:

THIS CAUSE came before the Court on August 26, 2011 on a prayer for expedited enforcement of Petitioner’s time-sharing with the parties’ minor children. In consideration of that matter, the Court questioned the extent of its jurisdiction to determine the parties’ interests in and to custody of the children. The Court therefore summoned the parties and counsel to appear on this date to address the issue of jurisdiction. Upon review of the record herein, the stipulations of counsel, and the evidence offered, the Court finds as follows.
... Since Respondent and the children came to this country, Petitioner has had no significant contact with the children except by specific and sometimes repeated order of the Court. Since entry of this Court’s order of August 26, 2011, and at all other times he has been permitted to do so, Petitioner has enjoyed appropriate and uneventful time-sharing with the children.
In May 2009, Petitioner filed an action in this Court seeking return of the children to him and to Ecuador, accompanied by a final judgment of an Ecuadorian court requiring the return of the children to that state.[] His Petition and other pleadings herein raise and give fair notice of his claim for temporary custody of and time-sharing with the said children.
Respondent takes the position that this Court lacks jurisdiction to enforce the order of the Ecuadorian court. It does not appear that any action is pending or was filed by either party seeking to invoke the plenary original jurisdiction of this Court to determine issues of child custody. In effect, [Respondent, appellant here] argues that so long as she has actual custody of the children within the United States, she is- at liberty to retain sole custody of the children without leave of or interference by any court. She has resisted contact between Petitioner and the children, attempting with the assistance of her attorney to impose unilateral conditions on visitation without regard to orders of this Court. It is plain that her purpose is to deny Petitioner his natural and legal rights concerning the children and to enlist the aid of the Court in doing so. She hopes to make him a wraith before the law, dimly glimpsed and faintly heard, but without effect among the living.
No facts have yet been advanced suggesting that Florida is the appropriate place to decide the future of the Ecuadorian children who are the subject of this action. No persuasive argument for the exercise of plenary jurisdiction by this state over such matters has yet been made.
... [A]s noted it appears that plenary jurisdiction of the Florida courts under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] has not been demonstrated by pleading or by proof....
It is certain that the Court has at a minimum jurisdiction to determine the present actual physical custody of the children[] In deciding the matter of actual physical custody, the Court notes that Respondent has acted unilaterally within and outside these proceedings to interfere with the children’s contact with Petitioner, and that the record does not establish with certainty any similarly grave misconduct by Petitioner. The evidence is insufficient to decide other factual matters pertinent to temporary custody of or time-sharing with the children, but it is clear that Petitioner is far more likely to allow and to promote a relationship between Respondent and the children than is Respondent to allow and to promote a relationship between them and Petitioner. Furthermore, the evidence demonstrates by at least a preponderance that Respondent has unilaterally removed or detained the children in isolation from Petitioner and outside the reach of a court of competent jurisdiction and is likely to do so in the future.
It is in the best interest of the children that sole custody of and one hundred percent time-sharing with the said children be awarded to Petitioner DINO MIGUEL ZAVALA LEGARDA.

The foregoing is the nonfinal order now before us for review (although Ms. Obando Garces filed an Emergency Motion to Quash the orders entered on August 26 and 29, 2011, and an Emergency Motion for Stay, which were both denied by separate order, entered August 30, 2011).

Any challenge to the August 26 order, which expired by its own terms on August 29, 2011, is moot. Ms. Obando Garces argues that the August 26 order was entered without prior notice to her and in the absence of the lawyer who had represented her theretofore. She acknowledges, however, that she appeared at the hearing represented by substitute counsel. She also asserts the August 26 order improperly transferred physical custody of the children to the father, when only visitation was requested. Although the order directed that Mr. Zavala Legar-da would have “immediate physical custody,” the order also required that the children not be removed from the jurisdiction of the court pending further order and directed the parties to appear before the court again on August 29, 2011. Whatever the merits of these arguments, the August 26 order has no further force or effect. Mr. Zavala Legarda complied fully with the August 26 order, which expired by its own terms, and a superseding order was entered on August 29.

At the time the trial court entered the order under review (and the antecedent August 26 order), both Mr. Zavala Legarda’s petition for domestication and enforcement of the Ecuadorian court order and his Hague Convention petition for return of the children remained pending before the trial court. On August 30, 2011, however, Mr. Zavala Legarda and the children returned to Ecuador, and on September 9, 2011, Mr. Zavala Legarda filed a notice of dismissal in the trial court. At no point in the present proceedings did Ms. Obando Garces seek affirmative relief regarding custody of the children. We conclude therefore that Ms. Obando Garces’s appeal of the August 29, 2011 order is also moot.

The present case closely resembles Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001), where a mother and child left Israel and eventually relocated in Florida. The father filed a petition in Florida for return of the child under the Hague Convention. The district court concluded the child had been wrongfully removed from Israel, his habitual residence, and ordered that the father take custody of the child for return to Israel. The father then returned to Israel with the child. Id. at 1052-53. On appeal, the circuit court of appeals explained that the “district court initially had jurisdiction over this dispute because, at the time Mr. Bekier filed his petition, Jonathan was located in the Southern District of Florida. But after the district court ordered the child to be returned to Mr. Bekier, Mr. Bekier returned to Israel with his son.” Id. at 1053-54.

On this basis, the circuit court concluded the case was moot: “Mr. Bekier has achieved the relief he sought in his Hague Convention petition. Ms. Bekier now appeals, but what relief we can offer her or what ‘legally cognizable interest [she has] in the outcome [of this appeal]’ is not clear. In her merits brief to this court, Ms. Bekier asks us either to reverse the district court’s decision or to remand the case for a further evidentiary hearing based on allegedly newly procured evidence. But a reversal of the district court’s order will provide Ms. Bekier with no actual affirmative relief. Jonathan has already returned to Israel. Ms. Bekier’s potential remedies now lie in the Israeli courts. Any words by us would be merely advisory.” Id. at 1054 (citations omitted). See also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (holding that if, during the pen-dency of an appeal, an event occurs “that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed” (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895))).

The August 29 order does not preclude the children’s return to the United States or preclude Ms. Obando Garces’s filing an action regarding their custody or her visitation with the children either in a Florida forum or any other forum. The order does not contain findings that might in any obvious way adversely affect any pending proceeding or any subsequently filed proceedings in any jurisdiction: The trial court did not explicitly rule that any order, judgment or decree of the Ecuadorian court was enforceable in Florida under the UCCJEA, did not rule that Ecuador was the “home state” of the children or determine whether or not the children had become “firmly resettled” in the United States or were the victims of domestic violence, and did not explicitly determine that the children were wrongfully removed from Ecuador or wrongfully retained in the United States. Cf. Leser v. Berridge, 668 F.3d 1202, 1209 (10th Cir.2011) (holding the mother’s appeal was moot when the district court order made no finding of wrongful removal of the children and contained no language preventing the children from returning to the United States).

Despite the nugatory character of the interlocutory order — now that the children’s father has taken a dismissal of the case he originally brought to obtain their custody — we follow accepted practice and vacate the order under review, in order to eliminate any possibility that the order might work to the advantage or disadvantage of the litigants some time in the future. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Vacatur is in order when mootness occurs through happenstance — circumstances not attributable to the parties — or, relevant here, the ‘unilateral action of the party who prevailed in the lower court.’ ” (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994))); United States v. Munsingwear, Inc., 340 U.S. 36, 39 — 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (noting that vacatur of an order which has become moot pending a decision on appeal “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance”).

The order under review is vacated, and the appeal is dismissed.

DAVIS and MARSTILLER, JJ., concur.

      . Ms. Obando Garces asserts that Mr. Zavala Legarda’s consent was necessary for her and the younger child to obtain a visa to travel to the United States, but that the older child is a citizen both of Ecuador and of the United States.

      . The circuit court docket indicates that several hearings had been noticed in 2009 and 2010. The circuit court docket also indicates that a Final Order Directing Return of Child to Country of Habitual Residence was filed on June 18, 2010, subsequently stayed on July 9, 2010, and eventually withdrawn on July 16, 2010. No review of these orders or proceedings is sought here.

      . The Ecuadorian judgment is not part of the record before us.

      . The trial court also ruled that Mr. Zavala Legarda had the right to remove the children from the United States and return them to Ecuador.

      . On August 30, 2011, the trial court entered an order on these motions stating the August 26 and 29 orders "did no more than establish and affirm Petitioner's time-sharing with the parties’ children and allow him to travel with them. This action is set for further hearing on September 9, 2011. The Respondent’s Motion for Stay is DENIED.”

      . Nor does she assert that she has filed a separate action seeking a determination regarding custody. The on-line docket of the Duval County Clerk of the Circuit Court reflects that Ms. Obando Garces filed a petition for dissolution of marriage on December 11, 2009 (Case 16-2009-DR-010373-FMXX-MA), but subsequently filed a notice of voluntary dismissal on February 10, 2010. An order closing the file was entered on February 2, 2011. Although a proceeding for divorce is included within the definition of "child custody proceeding” under the Uniform Child Custody Jurisdiction and Enforcement Act, see § 61.503(4), Fla. Stat. (2011), the petition for dissolution was filed in a separate case subsequent to the father’s petition for domestication and enforcement of the Ecuadorian judgment and dismissed prior to the entry of the orders at issue here.

      . The district court issued a conditional stay, ordering the child to remain in Florida if the mother filed an appeal within ten days and posted a $100,000 bond. The mother filed a notice of appeal, but failed to post bond. Bekier v. Bekier, 248 F.3d 1051, 1053 (11th Cir.2001).

        .But see Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004) (holding the father's appeal was not moot and that reversal could affect the matter, because ordering the return of the child on remand "would essentially be holding that the removal ... was not wrongful under The Hague Convention,” which would have positive implications for the father in later custody proceedings in the United States and result in the order assessing fees and costs against the father being vacated); Fawcett v. McRoberts, 326 F.3d 491, 497 (4th Cir.2003), abrogated on other grounds by Abbott v. Abbott, -U.S.-, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (holding the father’s appeal was not moot because an order from the district court that the mother return to the United States with the child "would permit [the father] to appear in the Scottish courts simply to seek enforcement of the United States judgment, rather than to re-argue the merits of any custody dispute respecting” the child, the mother could comply with the order of her own volition, or the father could seek to enforce such an order if the mother at some point returned to the United States with the child). Compare Leser v. Berridge, 668 F.3d 1202, 1209 (10th Cir.2011) (distinguishing Whiting and Fawcett because, like the circuit court below, the district court "made no finding of wrongful removal”).

      . See §§ 61.501 — 61.542, Fla. Stat. (2011).


text:
    Abdurrahman R. LANE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and North Florida Building Service Supreme Janitor Service, Appellees.
    No. 1D11-6374.
    District Court of Appeal of Florida, First District.
    May 8, 2012.
    Abdurrahman R. Lane, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Colson v. Fla. Unemployment Appeals Com’n, 76 So.3d 1042, 1044 (Fla. 1st DCA 2011) (“Because it is the claimant who initiates Unemployment Compensation proceedings by filing a claim for unemployment benefits, it is incumbent upon the claimant to keep the agency apprised of his or her current address. Given the limited and exceptional nature of the ‘good cause’ cases where untimely appeals have been excused, the claimant’s change of address due to his incarceration for criminal offenses, which he did not report to the agency in order to keep his address of record current, does not constitute good cause to allow a late-filed appeal to the UAC.”).

MARSTILLER, ROWE, and SWANSON, JJ., concur.


text:
    Ahmad J. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1226.
    District Court of Appeal of Florida, First District.
    May 8, 2012.
    William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s request for a belated appeal of his judgment and sentence in Bay County Circuit Court case number 06-3679CFMC is granted. The Clerk of the lower tribunal is directed to prepare and transmit the record on appeal no later than 30 days from the date of this order. The initial brief shall be filed within 30 days thereafter. If the appellant qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him in the belated appeal authorized by this opinion.

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