author: EVANDER, J.

text:
    WINTER PARK IMPORTS, INC. etc., et al., Appellants, v. JM FAMILY ENTERPRISES, et al., Appellees.
    No. 5D08-2303.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Rehearing Denied Aug. 1, 2011.

      Ladd H. Fassett and Phil A. D’Aniello, of Fassett, Anthony & Taylor, P.A., Orlando, and John W. Forehand, of Kurkin Forehand & Brandes, P.A., Tallahassee, for Appellant.
    Daniel F. Katz, John E. Joiner and Juli Ann Lund, Williams & Connolly, LLP, Washington, DC, and Dean Bunch and C. Everett Boyd, Jr., of Nelson, Mullins, Riley & Scarborough, LLP, Tallahassee, for Appellee.
   EVANDER, J.

ON MOTION FOR REVIEW UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.400(c)

Defendants below, JM Family Enterprises, Inc., JM Auto, Inc, JM Auto II, Inc., and Southeast Toyota Distributors, LLC, seek review, pursuant to Florida Rule of Appellate Procedure 9.400(c), of an order denying their respective motions for attorneys’ fees. We affirm. Where, as here, a plaintiff seeks both monetary damages and injunctive relief as part of the same claim(s), section 768.79, Florida Statutes, does not apply.

In its third amended complaint, plaintiff below, Winter Park Imports, Inc., d/b/a Lexus of Orlando, brought an action against the defendants based on alleged violations of the Florida Motor Vehicle Dealer Act, sections 320.60-.70, Florida Statutes (2005). Pursuant to section 320.695, the plaintiff sought injunctive relief to 1) prohibit defendants from owning or operating a Lexus dealership in Orange County, Florida, 2) prohibit defendants, JM Family, JM Auto, and Southeast Toyota from owning or operating a Lexus dealership in Margate, Florida, and 3) enjoin defendant JM Auto’s alleged unlicensed operation of Lexus dealerships within the state of Florida and its alleged unlicensed operation of a Lexus distributorship. The plaintiff also sought monetary damages against the defendants pursuant to section 320.697. Although the plaintiff divided its third amended complaint into counts seeking injunctive relief and counts seeking monetary damages, its claims arose from alleged violations of the Act that, if proven, would permit both monetary and injunc-tive relief. The defendants filed an answer denying liability, setting forth various affirmative defenses, and requesting attorneys’ fees. Additionally, two of the defendants, JM Family and Southeast Toyota, filed counterclaims.

In early 2007, each defendant served a separate offer of judgment on the plaintiff, tendering a monetary amount as full settlement of all of plaintiffs claims against that particular defendant. The plaintiff rejected the offers.

Subsequently, the plaintiff successfully obtained a summary judgment on the counterclaims brought by JM Family and Southeast Toyota. That order was affirmed by this court. See JM Family Enters., Inc. v. Winter Park Imports, Inc., 10 So.3d 1133 (Fla. 5th DCA 2009). The trial court later entered a summary final judgment in favor of the defendants on plaintiffs third amended complaint. That decision was also affirmed by this court. See Winter Park Imports, Inc. v. JM Family Enters., Inc., 24 So.3d 633 (Fla. 5th DCA 2009). Thereafter, defendants filed their motions for attorneys’ fees based on plaintiffs rejection of their respective offers of judgment.

Section 768.79 provides the substantive law concerning offers and demands of judgments, while Florida Rule of Civil Procedure 1.442 provides for its procedural mechanism. Saenz v. Campos, 967 So.2d 1114, 1116 (Fla. 4th DCA 2007). The statute applies to “any civil action for damages” and requires a court to compare the monetary amount offered (or demanded) against the monetary judgment ultimately obtained in order to determine whether a party has sufficiently “beaten” an offer (or demand) so as to be entitled to an award of attorney’s fees.

Offer of judgment and demand for judgment—

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:

(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.

The offer shall be construed as including all damages which may be awarded in a final judgment.

(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:

(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney’s fees against the award. When such costs and attorney’s fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.
(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.
For purposes of the determination required by paragraph (a), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postof-fer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.

§ 768.79, Fla. Stat. (2005) (emphasis added).

The statute does not have a similar provision as to claims for non-monetary relief. Specifically, the statute does not have any provision that would authorize a court to compare an offer (or demand) regarding non-monetary relief against the judgment obtained for the purpose of determining entitlement to a fee award.

Accordingly, while a party can serve an offer or demand for judgment directed to a claim for monetary damages, it cannot avail itself of the statute where a claim is seeking non-monetary relief only. Nat’l Indem. Co. of the South v. Consol. Ins. Servs., 778 So.2d 404 (Fla. 4th DCA 2001) (insurance broker’s declaratory judgment action was not a “civil action for damages” within the meaning of offer of judgment statute, so as to support award of attorney’s fees, where real issue in case was insurance coverage for underlying tort action and no money damages or payment of money was directly requested in suit).

The issue in this case is whether a party can serve an offer of judgment directed to a claim for which both monetary and injunctive remedies are requested. We conclude that section 768.79 does not authorize a party to serve an offer of judgment in this situation.

An award of attorney’s fees under section 768.79 is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer. Sarkis v. Allstate Ins. Co., 863 So.2d 210, 222 (Fla.2003). Because the statute is penal in nature, it must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction. Id. at 223. Strict construction of section 768.79 is also required because the statute is in derogation of the common law rule that each party is to pay its own attorney’s fees. Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007).

Section 768.79 makes no provision for a court to determine the value of any injunc-tive relief obtained in calculating the “judgment obtained.” The statute speaks only in terms of “amount.” While we recognize that, as in the instant case, an “amount” of zero can be used where no injunctive relief is obtained, that would appear to be the only scenario in which a court could compare the mathematical value of an offer against the judgment obtained when the offer addresses both monetary and injunctive claims. Furthermore, to accept defendants’ argument, would, as a practical matter, enable only a defendant to avail itself of the statute where a plaintiffs claim seeks both damages and injunc-tive relief. Under the defendants’ argument, a plaintiff could only make a demand for judgment if it dropped its injunctive relief request.

Defendants contend that their offer of judgment complied with rule 1.442(c)(2), which requires an offer of judgment to “state with particularity any relevant conditions” and “state with particularity all nonmonetary terms of the proposal.” Based on their purported compliance with the rule, defendants submit it was permissible to offer a monetary amount and condition acceptance of the offer on a dismissal of any claims of injunctive relief. Defendants’ argument does find some support from State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006), where the supreme court determined that a general release qualified as one of the “relevant conditions” or “nonmonetary terms” of a settlement proposal which must be described with particularity under rule 1.442. The supreme court held the offering party could provide all of the proposed language of the release or a summary of the substance of the release as part of an offer of judgment, provided any reasonable ambiguity concerning the scope of the release was eliminated. Id. However, Nichols did not directly address the issue we confront today and the supreme court has consistently stated that the circumstances under which a party is entitled to attorney’s fees is substantive and thus governed by statute and that a rule can only control procedural matters. See Menendez v. Progressive Express Ins. Co., Inc., 35 So.3d 873, 878 (Fla.2010) (“[T]he statutory right to attorney’s fees is not a procedural right, but rather a substantive right.”); Sarkis, 863 So.2d at 215 (“Attorney’s fees are authorized only by statute or contract. Because a supreme court rule is neither, it cannot authorize a fee.”); Timmons v. Combs, 608 So.2d 1, 2-3 (Fla.1992) (“[I]t is clear that the circumstances under which a party is entitled to costs and attorney’s fees is substantive and that our rule can only control procedural matters.”) Accordingly, defendants’ purported compliance with rule 1.442 does not create a right to an attorney’s fees award; entitlement to fees only exists if section 768.79 applies.

The only other Florida appellate court to directly address this issue reached a similar conclusion, albeit with a different analysis. In Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass’n, 22 So.3d 140 (Fla. 4th DCA 2009), the unsuccessful plaintiff filed a multi-count second amended complaint. Our sister court determined that the complaint contained two independent, significant claims “such that it could be characterized only as an action for both damages and nonmonetary, declaratory relief.” 22 So.3d at 143. As in the instant case, the defendant served an offer of judgment tendering a monetary amount to the plaintiff with a condition of acceptance being that the plaintiffs dismiss all of its pending claims. The court concluded that because section 768.79 only applied to “civil actions for damages,” it would not apply where an action sought both monetary and nonmon-etary relief:

Similarly, strict construction of the statute and rule should not allow an application of a general offer of settlement, sought to be applied to claims seeking non-monetary relief as well as action for damages. In this case, each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims. Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute.

Palm Beach Polo Holdings, 22 So.3d at 144.

While we are not willing to opine that an offer (or demand) for judgment can never be utilized when a party has included separate claims for monetary and non-monetary relief in the same pleading and the offer (or demand) is directed only to the monetary claim, we do agree with the Palm Beach Polo Holdings decision to the extent that it holds that section 768.79 is inapplicable where a party’s general offer of settlement is directed to a claim in which both damages and non-monetary relief is sought.

AFFIRMED.

LAWSON and TORPY, JJ., concur.

      . Section 320.695 Injunction. — In addition to the remedies provided in this chapter, and notwithstanding the existence of any adequate remedy at law, the department, or any motor vehicle dealer in the name of the department and state and for the use and benefit of the motor vehicle dealer, is authorized to make application to any circuit court of the state for the grant, upon a hearing and for cause shown, of a temporary or permanent injunction, or both, restraining any person from acting as a licensee under the terms of ss. 320.60-320.70 without being properly licensed hereunder, or from violating or continuing to violate any of the provisions of ss. 320.60-320.70, or from failing or refusing to comply with the requirements of this law or any rule or regulation adopted hereunder. Such injunction shall be issued without bond. A single act in violation of the provisions of ss. 320.60-320.70 shall be sufficient to authorize the issuance of an injunction. However, this statutory remedy shall not be applicable to any motor vehicle dealer after final determination by the department under s. 320.641(3).

      . Section 320.697 Civil damages. — Any person who has suffered pecuniary loss or who has been otherwise adversely affected because of a violation by a licensee of ss. 320.60-320.70, notwithstanding the existence of any other remedies under ss. 320.60-320.70, has a cause of action against the licensee for damages and may recover damages therefor in any court of competent jurisdiction in an amount equal to 3 times the pecuniary loss, together with costs and a reasonable attorney’s fee to be assessed by the court. Upon a prima facie showing by the person bringing the action that such a violation by the licensee has occurred, the burden of proof shall then be upon the licensee to prove that such violation or unfair practice did not occur.

      . None of the offers of judgment stated whether the defendants’ respective claims for attorneys’ fees could be pursued against the plaintiff, should the plaintiff accept the offer. Based on our determination that the offer of judgment statute was not applicable in this case, we need not address plaintiff's argument that the defendants’ failure to address this issue in their offers rendered the offers vague and ambiguous and, thereby, unenforceable.


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, a Florida Government Entity, Appellant, v. ADMIRALTY HOUSE, INC., Appellee.
    No. 2D10-4967.
    District Court of Appeal of Florida, Second District.
    July 1, 2011.
    Rehearing Denied Aug. 3, 2011.

      J. Pablo Caceres and Lori A. Vella of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellant.
    David J. Pettinato of Merlin Law Group, P.A., Tampa, for Appellee.
   CRENSHAW, Judge.

Citizens Property Insurance Corporation appeals the circuit court’s nonfinal order granting a motion by Admiralty House, Inc., the insured, to compel appraisal. Because a factual dispute exists as to whether the insured complied with the policy’s postloss obligations, we reverse and remand for an evidentiary hearing on that issue. But contrary to Citizens’ argument on appeal, we conclude that the insured did not waive its right to request appraisal because it has maintained a position consistent with the appraisal remedy. Lastly, we conclude that Citizens was entitled to an automatic stay under Florida Rule of Appellate Procedure 9.310(b)(2), because Citizens is a public body seeking to enforce a public right.

Background

In October 2005, the insured filed a claim with Citizens under its insurance policy seeking relief from damage caused by Hurricane Wilma. Citizens twice denied payment, finding that the damage to the property did not exceed the insured’s deductible. In May 2007, the insured submitted an additional claim to Citizens for the hurricane damage repair costs, and Citizens issued a partial payment after applying the deductible.

The insured next retained a public adjuster in April 2008 and demanded appraisal of the remaining damage pursuant to the policy. Citizens reopened the claim and requested that the insured submit a sworn statement in proof of loss and other supporting documentation. The insured then submitted a sworn proof of loss in June 2008 with the amount of loss “to be determined.” Citizens responded with a letter rejecting the statement as incomplete. In May 2009, the insured submitted an additional proof of loss statement claiming a specified amount, but Citizens rejected this statement as untimely under the policy. Citizens also requested that the insured provide an examination under oath, any information or documents in support of the hurricane damages, and an inspection of the insured’s books and records in accordance with the postloss obligations of the insurance policy. Citizens ultimately denied the insured’s claim based on the insured’s failure to comply with its obligations under the policy.

In September 2009, the insured filed a two-count complaint against Citizens for breach of contract and declaratory judgment to determine, among other things, whether the insured had a right to demand appraisal under the policy. In July 2010, the insured filed a motion to compel appraisal and stay action pending appraisal. At the hearing on the motion, counsel for Citizens argued that an evidentiary hearing was required to determine whether the insured complied with its postloss obligations such as submitting a timely proof of loss. Without taking evidence, the circuit court entered its order granting the insured’s motion to compel appraisal and stay action pending appraisal.

Postloss obligations

Before a circuit court can compel appraisal under an insurance policy, it must make a preliminary determination as to whether the demand for appraisal is ripe. Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12 Inc., 54 So.3d 578, 581 (Fla. 3d DCA 2011). “Until these [postloss] conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no ‘disagreement’ (for purposes of the appraisal provision in the policy) regarding the value of the property or the amount of loss” to be appraised. Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010).

Here, the policy issued by Citizens provides in pertinent part the following conditions:

4. Your Duties After Loss. In case of a loss to covered property, you must:
c. As often as we reasonably require:
(1) Show us the damaged property;
(2) Provide us with records and documents we request and permit us to make copies; and
(3) Submit to examinations under oath while not in the presence of any other named insureds and sign the same.
d. Send to us, within sixty (60) days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1)The time and cause of the loss;
(2) Your interest and that of all others in the Covered Property involved, and all liens on the Covered Property;
(3) Other insurance which may cover the loss;
(4) Changes in title or occupancy of the Covered Property during the term of the policy;
(5) Specifications of damaged buildings and detailed repair estimates;
(6) The inventory of damaged and undamaged personal property described in Condition number 4.b., Your Duties After Loss.

Despite Citizens’ argument that the insured failed to comply with its duties after loss, the circuit court failed to make the preliminary determination as to whether the insured’s demand for appraisal was ripe. We therefore reverse the order compelling appraisal and remand for an evi-dentiary hearing on that issue. See generally Citizens Prop. Ins. Corp. v. Gutierrez, 59 So.3d 177 (Fla. 3d DCA 2011) (concluding that the trial court erred by prematurely ordering appraisal before determining whether the insureds complied with the policy’s postloss provisions). We note that “[o]nce the trial court determines that a demand for appraisal is ripe, the court has the discretion to control the order in which an appraisal and coverage determinations proceed.” Galeria Villas Condo. Ass’n, 48 So.3d at 191-92 (citing Sunshine State. Ins. Co. v. Rawlins, 34 So.3d 753, 754-55 (Fla. 3d DCA 2010)).

Waiver

Citizens argues that the insured waived its right to request appraisal by not pleading such relief and by aggressively litigating the case for ten months. We disagree and conclude that the insured did not waive its right to appraisal because it did not maintain a position inconsistent with the appraisal remedy. Instead, the insured made a presuit demand for appraisal and then included as part of the complaint against Citizens a declaratory action to determine whether it was entitled to appraisal. Accordingly, “[t]here is no basis for a claim of waiver here, where the appraisal clause was invoked at the start of the litigation.” Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 818 (Fla. 3d DCA 2000).

Automatic stay

Lastly, we determine that Citizens was entitled to an automatic stay of the appraisal process during the pendency of this appeal under rule 9.310(b)(2). Rule 9.310(b)(2) provides, in pertinent part, the following:

Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review ... when the state, any public officer in an official capacity, board, commission, or other public body seeks review....

Under this rule, an automatic stay is self-executing upon the filing of the notice of appeal by a public body seeking review to enforce a public right. See Fonts v. Bolay, 769 So.2d 504 (Fla. 5th DCA 2000) (concluding that a public official was not entitled to an automatic stay because he was not enforcing a public right when seeking to appeal his ouster from office).

We conclude based on the language of section 627.351(6)(a)(l), Florida Statutes (2010), that Citizens qualifies as a public body under rule 9.310(b)(2). The relevant portion of section 627.351(6)(a)(l) provides:

The Legislature intends by this subsection that affordable property insurance be provided and that it continue to be provided, as long as necessary, through Citizens Property Insurance Corporation, a government entity that is an integral part of the state, and that is not a private insurance company.

(Emphasis added.) See also Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62, 64 (Fla. 5th DCA 2009) (concluding that Citizens was shielded by sovereign immunity for the purposes of bad faith claims because “it is explicitly clear that Citizens is not a private insurance company, but rather is a state body”). Further, Citizens’ appeal seeks to enforce Citizens’ public right or purpose of providing affordable property insurance and “providing service to policyholders ... which is no less than the quality generally provided in the voluntary market.” Accordingly, Citizens was entitled to an automatic stay under rule 9.310(b)(2).

The order compelling appraisal is reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and VILLANTI, JJ., Concur.

      . We note that the motions to stay previously filed by Citizens in this court and in the circuit court requested a discretionaiy stay and failed to mention the'automatic stay provision. We express no opinion on whether Citizens would be entitled to an automatic stay in an appeal of a money judgment, as described in rule 9.310(b)(1).


author: POLEN, J.

text:
    Robert C. HAHN, Jr., Appellant, v. Diana C. HAHN, Appellee.
    No. 4D10-1112.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      Robert D. Burgs of Robert D. Burgs, P.A., Plantation, for appellant.
    Patrick J. McGeehan of Law Offices of Patrick J. McGeehan, P.A., Miami, for ap-pellee.
   POLEN, J.

Robert Hahn appeals the final order of the trial court, modifying his obligation to pay permanent monthly alimony to his former wife, Diana Hahn. Mr. Hahn sought a downward modification from his $1,000 per month alimony payment, based on change in circumstances. The trial court approved the general magistrate’s recommendation to reduce the alimony to $450 per month. Mr. Hahn now argues the reduction was insufficient. We agree and reverse.

A final judgment of dissolution was entered on June 2, 1998, which incorporated the parties’ agreement for Mr. Hahn to pay permanent alimony of $2,200 per month. Subsequently, a final agreed order was entered, reducing the monthly alimony to $1,000. Mr. Hahn then filed a petition to modify the $1,000 monthly alimony, which is the subject of this appeal. After a final hearing, the magistrate made the following findings:

1. The Former Wife has been unemployed since March 2009, making approximately $1,200.00 per month in unemployment benefits. The Former Wife is 61 years old and has been making efforts to obtain employment without success. The court finds that her unemployment is not purposeful.
2. The Former Wife complains of physical ailments that limit her ability to obtain employment. The Former Wife has not applied for social security disability benefits.
3. The Former Wife has the need for alimony.
4. The Former Husband is 69 years old and had his own carpet cleaning business since prior to the parties’ dissolution of marriage in 1998. The Former Husband is in the process of winding down his business and retiring. The Former Husband is no longer able to earn what he did previously. The Former Husband’s age and health prohibit him from the physical demands of moving furniture and carrying the heavy equipment that is associated with the carpet cleaning business. Further, due to the economy the Former Husband has experienced a severe lack of work due to his prior customers cleaning their own carpets instead of hiring him to clean the carpets.
5. The Former Husband’s testimony was credible. There has been a downturn in his business due to lack of work available to him.
6. Due to the Former Husband’s age, his physical inability to continue working in the carpet cleaning business, and the downturn of the market, the Former Husband’s decision to retire is not inappropriate at the age of 69 years old based on Pimm v. Pimm, 601 So.2d 534 (Fla.1992).
7. The Former Husband has social security income of $1,508.00 per month. Prior to retirement he was earning $200.00 per month on average from the carpet cleaning business. The Former Husband has approximately $2,000.00 in his checking account which he testified is earmarked for making his car payment of $444.00 per month and his supplemental health insurance premium of $405.00 for the months of November and December 2009. The Former Husband has no retirement accounts. The Former Husband has a work van that is worth $1,500.00 that he is attempting to sell. He also has carpet cleaning equipment valued at approximately $2,000.00.
8. The Former Husband testified that he has not been able to contribute anything towards his mortgage payment, property taxes or utilities at the residence that he shares with his significant other. That residence is owned by the Former Husband and his significant other. The Former Husband and his significant other are obligated to pay the mortgage pursuant to the terms of the mortgage.
9. The Former Wife has very little money in the bank, but has retirement accounts of over $33,000.00 at the time of the trial. The Former Wife was earning over $35,000.00 per year prior to being unemployed in March 2009.
10. The Former Husband’s change in circumstances are substantial, permanent and unanticipated. The Former Husband has the ability to pay $450.00 per month in alimony to the Former Wife and his obligation to pay alimony to the Former Wife is therefore reduced to $450.00 per month retroactive to April 13, 2009, the date of the filing of his Petition for Modification. The court finds that the Former Husband will have the ability to pay this amount in part when he sells his work van and carpet cleaning equipment.
11. The Former Husband retained counsel to represent him in this matter. The Former Husband’s counsel expended 12.93 hours in representing the Former Husband in these modification of final judgment proceedings at a rate of $275.00 per hour. The court specifically finds that the number of hours expended and the hourly rate are reasonable.
12. The Former Wife does not have the ability to contribute anything toward Former Husband’s attorney’s fees and his request for attorney’s fees is hereby denied.
13. The Former Husband does not have assets available to him to meet his entire alimony obligation. The court reserved on a finding concerning the Former Husband’s debts.
14. The Former Husband’s amended financial affidavit indicates that he has total monthly expenses of $2,174.00 per month without making contributions to the mortgage property taxes or utilities of the residence that he shares with his significant other. If the Former Husband eliminates his contributions to religious organizations in the amount of $100.00 per month and no longer pays liability insurance and automobile insurance for his business totaling $200.00 per month, the Former Husband would have the ability to pay $450.00 in alimony to the Former Wife.
15. The Court defers on calculation of any arrearages and prepayment of same for a subsequent hearing.

Mr. Hahn filed exceptions to the general magistrate’s report, which were denied. This appeal followed. On appeal, Mr. Hahn argues that because the magistrate’s specific findings demonstrate that his monthly expenses exceed his monthly income, it is not reasonable to require him to pay $450.00 per month in alimony. Trial court orders modifying alimony are reviewed for abuse of discretion. Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005). “Three prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 8) is sufficient, material, involuntary, and permanent in nature.” Damiano v. Damiano, 855 So.2d 708, 710 (Fla. 4th DCA 2008). “Once a party’s entitlement to permanent alimony has been established, the primary basis for establishing the amount of alimony is the needs of one spouse and the ability of the other spouse to pay.” Boone v. Boone, 3 So.3d 403, 404 (Fla. 2d DCA 2009).

In Boone, the former husband appealed the trial court’s order reducing but not terminating his alimony obligation. Boone, 3 So.3d at 404. The former husband filed a petition for modification, requesting that alimony be terminated because the former husband’s health was deteriorating and, as a result, he was unable to work. Id. The financial affidavit filed by the former wife prior to the final hearing reflected net income of $844.67 and expenses of $905, for a deficit of $60.33. Id. at 404-05. The trial court declined to terminate alimony, and instead reduced the alimony from $500 to $400, and the former husband appealed. Id. at 404.

On appeal, the Second District found that the income reflected in the former wife’s financial affidavit did not include monthly alimony payments ($400) or $450 per month in Social Security benefits. Id. at 405. Taking these figures into account, the court determined that the former wife had a monthly surplus of about $790. Id. By contrast, the former husband’s financial affidavit reflected a monthly deficit of $130.12 before paying alimony and a deficit of $530 after paying the alimony. Id. The court noted that the trial court’s order found a “substantial change of circumstances,” but that the trial court reduced the alimony by only $100, without explaining how it arrived at this amount. Id. As such, the court held that the decision to reduce alimony by only $100 was inconsistent with the court’s findings regarding the former husband’s ailing health and the parties’ respective incomes. Id. Moreover, although the order mentioned that the trial court considered the fact that the former husband’s current wife was contributing to his living expenses, it did not explain how that consideration affected the trial court’s ruling. Id. Consequently, the Boone court held that the trial court’s order making a minimal reduction was inconsistent on its face. Id.

Here, if the trial court’s recommendations were followed, Mr. Hahn would eliminate $100 per year (religious contribution) and $200 per month (automobile insurance for his business vehicle); this would save Mr. Hahn $208.33 a month. According to Mr. Hahn’s amended financial affidavit, he has a total monthly income of $1,708 and total monthly expenses totaling $2,174, for a total monthly deficit of $466.00. Eliminating the items recommended by the trial court, in the amount of $208.33 per month, would make Mr. Hahn’s total monthly deficit $257.67. However, because the trial court recommended that Mr. Hahn eliminate his $200/ month business vehicle insurance, it had to have implicitly found that Mr. Hahn had indeed retired. Thus, the income generated from his business would have to be subtracted from his monthly income. Consequently, his monthly income would be $1,508. Offsetting Mr. Hahn’s monthly expenses ($2,174) from his new monthly income of $1,508 leaves a monthly deficit of $666. Then, factoring the trial court’s recommended elimination of monthly expenses ($208.33), Mr. Hahn’s monthly deficit would be $457.67. The math does not support the finding that Mr. Hahn can afford to pay $450 per month.

Based on the parties’ financial affidavits and the magistrate’s undisputed findings, we hold that the trial court abused its discretion by reducing Mr. Hahn’s monthly alimony obligation to $450. We remand this cause to the trial court with instructions to either eliminate Mr. Hahn’s alimony obligation altogether or to reduce the alimony obligation to a nominal amount in order to retain jurisdiction to modify the award upon a subsequent showing of a substantial change in circumstances.

Mr. Hahn argues next that because the lower court specifically found that he had total assets of $5,500.00, consisting of $2,000.00 in cash and $3,500.00 in equipment, and that Ms. Hahn has retirement accounts of over $33,000.00, Ms. Hahn has a far superior ability to pay Mr. Hahn’s attorney’s fees.

An award or denial of attorney’s fees will not be reversed absent an abuse of discretion. Woolf, 901 So.2d at 914. “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....” §61.16(1), Fla. Stat. (2009). “In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties.... ” Id. The purpose of this statute is to ensure that both parties will have a similar ability to obtain legal counsel, and the financial resources of the parties are the primary factor to be considered. Woolf, 901 So.2d at 914 (citing Rosen v. Rosen, 696 So.2d 697, 699-700 (Fla.1997)). A significant purpose of section 61.16 “is to assure that one party is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party.” Rosen, 696 So.2d at 699.

Here, neither party is limited in the type of representation he or she would receive because of his or her financial situation. Neither party’s income is so inferi- or to that of the other party. Ms. Hahn is currently unemployed and has a total monthly income of $1,200, which she is drawing from her retirement account on a monthly basis to cover her monthly expenses and health care related expenses. Because she is not currently employed, it can be expected that this account will be further depleted in the future. While Mr. Hahn does not have any retirement accounts, he does have $1,508 in monthly income as well as $3,500 worth of assets that he intends to sell. Thus, the trial court did not abuse its discretion in denying Mr. Hahn’s request for attorney’s fees as both parties are in relative financial parity; although each party seemingly has a need, the record reflects that neither party has the ability to pay the other party’s attorney’s fees.

Reversed.

WARNER and CONNER, JJ., concur.

      . It appears from the record that this income is actually being derived from Ms. Hahn’s retirement account.

      . Mr. Hahn actually testified that he pays $ 100 per year.


author: WHATLEY, Judge.

text:
    Matthew VANTINE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2335.
    District Court of Appeal of Florida, Second District.
    July 6, 2011.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Matthew Vantine appeals his judgments and sentences imposed after he admitted violating his probation for the underlying offenses of three counts of burglary of a dwelling, burglary of a structure, burglary of a conveyance, and grand theft of a motor vehicle. See §§ 810.02(3)(b); 810.02(4)(a), (b); 812.014(2)(c)(6), Fla. Stat. (2006). He preserved the right to appeal the issue of whether his sentences were illegal. See Fla. R. App. P. 9.140(b)(2)(A)(ii)(d). We affirm in part and reverse in part.

Mr. Vantine originally pleaded to the underlying offenses in exchange for a sentence of two years of prison followed by two years of community control and one year of probation. He subsequently violated his community control, resulting in modification to a new term of three years of probation with no change to his youthful offender status. Thereafter, Mr. Vantine admitted violating probation condition three by changing his residence without permission and leaving Pinellas County without permission, condition four by possessing a “Pepper Taser,” and condition eleven by refusing to submit to a drug test. In addition to admitting these technical violations, he admitted violating condition five by failing to live without violating the law, after he told an officer that he would not take a drug test because it would be positive for marijuana. Mr. Van-tine’s admission that he would test positive for marijuana constitutes a substantive violation of probation. See Swilley v. State, 781 So.2d 458, 461 (Fla. 2d DCA 2001). The trial court revoked Mr. Vantine’s youthful offender status and sentenced him to ninety-nine months for each of the six underlying offenses, concurrent.

Mr. Vantine argues, and the State concedes, that the trial court erred in revoking his youthful offender status. We agree. Once a trial court has imposed a youthful offender sentence, it must continue that status on resentencing after violation of the defendant’s youthful offender commitment. Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010). Mr. Van-tine’s youthful offender status could not be revoked upon violation of probation. See id. at 788-89. Accordingly, we reverse the revocation of his youthful offender designation.

Mr. Vantine also challenges his sentence. As a youthful offender with a substantive violation for which he was not separately charged and convicted, he could be sentenced to no longer than the maximum sentence for each offense. See § 958.14, Fla. Stat. (2006). The trial court properly sentenced him to ninety-nine months for the three second-degree-felony burglaries of a dwelling that carry fifteen-year maximum sentences. See § 775.082(3)(c), Fla. Stat. (2006); § 810.02(3)(b). However, the ninety-nine-month sentences for burglary of a structure, burglary of a conveyance, and grand theft of a motor vehicle were illegal because they are third-degree felonies that carry five-year maximum sentences. See §§ 775.082(3)(d); 810.02(4)(a), (b); 812.014(2)(c)(6).

We affirm the sentences for the second-degree felonies, but we reverse the sentences for the third-degree felonies and remand for resentencing on those counts within the five-year máximums. We reverse the revocation of Mr. Vantine’s youthful offender status and remand for reinstatement of that status.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and BLACK, JJ„ Concur.

      . Section 958.14, provides as follows:
      [N]o youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, ... or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.


author: SHEPHERD, J. SCHWARTZ, Senior Judge

text:
    Jose Joaquin FONSECA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-860.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.

      Jose Joaquin Fonseca, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The defendant, Jose Joaquin Fonseca, appeals a summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. Because the record before us does not conclusively show the defendant is entitled to no relief, we reverse and remand this case.

The crux of the defendant’s allegations of ineffective assistance of counsel is that defense counsel failed to present a viable defense consistent with the evidence. The defendant was charged with and convicted of attempted first-degree premeditated murder and shooting a deadly missile into a building. The State’s theory of the case was that the crimes were crimes of rage by a spurned lover. The victim testified the defendant aggressively pursued a sexual relationship with her, during the course of which he showered her with expensive gifts, helped her run errands, and assisted with projects around the victim’s house to earn her favor. She further testified that when she told the defendant she only wanted a friendship with him, the defendant became angry and demanded the return of the gifts. On the day of the crime, the victim returned home from work, followed by the defendant, who approached her house. An argument ensued between them through a window, with the defendant standing outside the house and the victim inside. The victim testified the defendant pulled out a gun, pointed it at her, and shot a bullet through the window.

The defendant told a different story. In a statement provided to the police after he was detained, the defendant admitted he went to the victim’s house. However, the defendant maintained the victim was the harasser, claiming his cellular telephone bill showed nearly $1000 in harassing phone calls from her. The defendant told police that on the day of the incident he went to the victim’s house to confront her regarding these phone calls. The defendant further told police that during their argument, he went to his car to obtain his gun to scare the victim, and when he returned to the front door, a bullet “slipped” from the gun. The defendant claimed he “never wanted to fire at her”; his only intent was to scare her with the gun.

In his post-conviction motion, the defendant asserts five grounds of ineffective assistance of counsel, three of which are not conclusively refuted by the record. The defendant asserts his defense counsel rendered ineffective assistance by failing to present a defense of an accidental shooting, consistent with his statement to the police, and instead arguing the victim’s story was “cooked-up” and the defendant’s confession was coerced (ground three). Grounds one and two of the defendant’s motion centered around evidence supporting the defendant’s accidental shooting theory — failing to investigate cellular telephone records to support the defendant’s claim the victim was the harasser (ground one), and failing to obtain a firearm expert to testify the gun was capable of misfiring (ground two).

In its order denying the defendant’s post-conviction motion, the trial court did not address ground three — the defendant’s claim that defense counsel rendered ineffective assistance by failing to present a defense consistent with the evidence. With regard to grounds one and two, the trial court denied these claims, stating these decisions “very well may have been a matter of trial strategy.” ‘While attorneys are indeed given great latitude with regard to strategy and tactics, such a finding generally should be made only after an evidentiary hearing.” Porter v. State, 626 So.2d 268, 269 (Fla. 2d DCA 1993); see also Simon v. State, 47 So.3d 883, 886 (Fla. 3d DCA 2010) (“[A] trial court’s finding that such a decision was tactical, so as to defeat a defendant’s post-conviction ineffective assistance claim, usually is inappropriate without an eviden-tiary hearing.”). Thus, we reverse and remand the case for an evidentiary hearing as to grounds one through three.

We affirm the summary denial of grounds four and five, finding the record conclusively refutes those claims.

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

EMAS, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

For the reasons stated in the State’s brief-response, I would affirm.


author: PER CURIAM.

text:
    Keion CHAMBERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-517.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Keion Chambers, in proper person.
    Pamela Jo Bondi, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.

      Before SUAREZ, CORTIÑAS, and EMAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The appellant’s motion raised six separate grounds for relief. Although we affirm the trial court’s denial as to the first two grounds for relief sought by the appellant, because the record now before us fails to make the required showing as to the remaining four issues raised in the motion, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Joseph C. DELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1048.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Carlos Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   PER CURIAM.

This an appeal taken by the defendant, Joseph Dell, from an order of the trial court denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Upon review, we affirm the order of the trial court, but without prejudice to Dell to seek relief, in the first instance, from the trial court pursuant to the recent decision of the United States Supreme Court in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), if appropriate. We express no opinion on the merits of such a motion.


author: VILLANTI, Judge.

text:
    Earl R. CROWLEY; Home Building Materials, Inc.; and Stephen Padar, M.D., Petitioners, v. Arthur LAMMING, Respondent.
    No. 2D10-5537.
    District Court of Appeal of Florida, Second District.
    July 22, 2011.

      Robert S. Walton, III, of Scarborough, Hull & Miller, Tampa, for Petitioners.
    Brad Salter of Salter, Healy, LLC, St. Petersburg, for Respondent.
   VILLANTI, Judge.

Earl R. Crowley, Home Building Materials, Inc. (HBMI), and Stephen Padar, M.D., seek certiorari review of the trial court’s order that required Dr. Padar to bring to his deposition copies of the reports generated for all of the compulsory medical examinations (CMEs) he performed during the three years before his deposition in this case and then to testify to portions of the content of those nonparty CME reports. Because the trial court’s order fails to comply with the requirements of section 456.057(7)(a)(3), Florida Statutes (2010), we grant the certiorari petition and quash the trial court’s order.

This case began when Arthur Lamming sued Crowley and Crowley’s employer, HBMI, contending that he was injured in an automobile accident allegedly caused by Crowley while Crowley was driving a vehicle owned by HBMI. During the course of discovery, Crowley and HBMI requested that Lamming submit to a CME pursuant to Florida Rule of Civil Procedure 1.360. Crowley and HBMI identified Dr. Stephen Padar as the physician who would perform the CME. Lamming attended the CME, and both parties received copies of Dr. Padar’s resulting report.

Lamming then served a subpoena for deposition duces tecum on Dr. Padar that required him to bring to his deposition “[a] copy of any and all CME reports prepared by you for the last three (3) calendar years.” Crowley and HBMI objected to the subpoena, pointing out that such non-party CME reports were not discoverable. Lamming then filed a motion to compel Dr. Padar to comply with the subpoena. At the hearing on the motion, Lamming contended that, despite the clear language of his subpoena duces tecum, he did not seek actual production of the nonparty CME reports. Instead, he simply wanted Dr. Padar to bring the nonparty CME reports with him to the deposition so that they would be “available to him to give accurate testimony.” However, the trial court declined to require Dr. Padar to bring the nonparty CME reports to the deposition, telling counsel for Lamming that he should “ask those questions, see what happens.”

Lamming took Dr. Padar’s deposition shortly thereafter. Following the deposition, Lamming filed a renewed motion to compel in which he argued that Dr. Padar was “evasive” and “nonresponsive” at his deposition. Based on this, Lamming sought an order from the trial court requiring Dr. Padar to attend a second deposition and to bring “all of his [CME] reports from the past five years.”

During the hearing on the renewed motion, Lamming again conceded that he was not entitled to production of the nonparty CME reports. But he suggested that if Dr. Padar was required to bring the non-party CME reports to his deposition, Lamming could “go through and ask him, Did you give an opinion about the need for future medical care in this one? Did you give — and it’s the only way I can prove that the doctor’s failing to give accurate information in his deposition.” He therefore asserted that as to each nonparty CME, he should be permitted to ask Dr. Padar the date of the CME, how much Dr. Padar charged to perform the CME, who hired him to perform the CME, what his opinion was concerning permanency in each CME, and what his opinion was in each CME on the patient’s need for future care.

In response, Crowley and HBMI directed the trial court’s attention to this court’s opinion in Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008), in which this court specifically held that section 456.057(7)(a)(3) prohibits the disclosure of nonparty CME reports without prior notice to all of the affected nonparties. They also specifically pointed out that “[disclosure is disclosure,” whether it is through production or deposition testimony.

Despite the reference to Graham, the trial court ordered Dr. Padar to appear for a second deposition, to bring with him all of the reports for CMEs 'he had performed during the past three years, and to “use [the nonparty CME reports] as a reference to answer questions.” The court limited the permissible questions to “the dates of the past CME’s [sic], the name of the entity who hired Dr. Padar, the alleged injury, the doctor’s opinion regarding permanency, and the doctor’s opinion regarding the need for future medical care.” Crowley and HBMI now ask this court to quash this order.

Our resolution of this ease is guided by section 456.057(7)(a)(3), as it has been interpreted and applied by this court. That section provides, in relevant part:

Except as otherwise provided in this section ..., such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

§ 456.057(7)(a)(3) (emphasis added). The emphasized language unequivocally creates “a broad and express privilege of confidentiality as to the medical records and the medical condition of a patient.” Acosta v. Richter, 671 So.2d 149, 154 (Fla.1996). These clear terms therefore prohibit more than the production of a non-party patient’s medical records without notice; they also prohibit discussion about a nonparty patient’s medical condition without prior notice to that nonparty.

This court recently addressed an almost identical issue in USAA Casualty Insurance Co. v. Gallery, 66 So.3d 315 (Fla. 2d DCA 2011). In that case, Callery sought production of CME reports for the last twenty CMEs performed by the CME physician who examined him in hopes of “impeaching] the physician by showing that his reports routinely and uniformly supported insurers.” Id. 66 So.3d at 316. The trial court ordered production with all patient-identifying information redacted. Id. The trial court also directed that “only the physician’s conclusions/impressions, the physician’s signature, the date of report, and the name and address of the receiving attorney be provided.” Id. In granting certiorari and quashing the trial court’s order, this court followed Graham and concluded that the trial court “departed from the essential requirements of law by compelling disclosure of medical examination reports without notice to the patients as required by section 456.057(7)(a)” when there was no showing that the prior notice required by that section was impossible. Id. This court further rejected Gallery’s suggestion that the redaction of patient-identifying information was sufficient to comply with the requirements of section 456.057(7)(a)(3) pursuant to Amente v. Newman, 653 So.2d 1030 (Fla.1995). Instead, we pointed out:

Amente does not eliminate section 456.057’s requirements, but at most “allows a court to override that language by providing adequate alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.”

Callery, 66 So.3d at 317 (quoting Graham, 991 So.2d at 937); see also Crandall v. Michaud, 603 So.2d 637, 639 (Fla. 4th DCA 1992) (noting that the predecessor statute to section 456.057(7)(a)(3) barred “furnishing a patient’s medical records or discussing his medical condition” and that the statute “does not seem to make a distinction if the identity of the patient is concealed”), disapproved on other grounds, Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996).

In this case, as in Cattery, the trial court attempted to limit its ruling by restricting the questions Lamming could ask of Dr. Padar and by prohibiting Dr. Padar from releasing any patient-identifying information. However, as we held in Graham and Cattery, even this limited disclosure of the private health information of nonparties violates section 456.057(7)(a)(3) in the absence of evidence that a party cannot comply with that section’s notice requirements and some evidence of circumstances that would justify disobeying that section. Accordingly, like the trial courts in Graham and Cattery, the trial court here departed from the essential requirements of the law in ordering the disclosure, albeit through testimony, of some of the contents of all of Dr. Padar’s CME reports generated during the past three years.

We recognize that during the hearing on his second motion to compel, Lamming asserted that he could not give the required notice because the list produced by Dr. Padar of prior cases in which he had been retained as an expert did not comply with Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii)(3), which requires an expert to disclose “[t]he identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.” However, faced with this alleged deficiency, Lamming did not file a motion to compel Dr. Padar to provide a list that did comply with those requirements. In the absence of such a motion, Lamming cannot establish that compliance with the notice provisions of section 456.057(7)(a)(3) is impossible so as to entitle him to avoid its requirements.

Finally, we appreciate the trial court’s concern with Dr. Padar’s alleged evasiveness, and we certainly do not condone evasive conduct by expert witnesses. However, we note that compelled disclosure of the private health information of nonparties does not address the problem. Instead, as the supreme court has stated:

“Within the limits of permitted discovery, medical experts are obligated to testify on a reasonable basis, truthfully, fully and freely. When it is disclosed or made apparent to the trial court that such a witness has falsified, misrepresented, or obfuscated the required data, the aggrieved party may move to exclude the witness from testifying or move to strike that witness’s testimony ... or further, move for the imposition of costs and attorney’s fees in gathering the information necessary to expose the miscreant expert.”

Elkins, 672 So.2d at 521 (quoting Syken v. Elkins, 644 So.2d 539, 546-47 (Fla. 3d DCA 1994)). These alternative sanctions more appropriately balance the rights of the current litigants to proper discovery against the rights of the nonparties to keep their private health information private. And while we acknowledge the trial court’s creative attempt to address a perceived deficiency in the broad statutory privilege against disclosure of private health information, any change in this statutory privilege must come from the legislature, not the court system.

Accordingly, we hold that the trial court departed from the essential requirements of the law when it ordered Dr. Padar to bring the CME reports of nonparties to his deposition and to testify to some of the information contained in those reports. Therefore, we grant the petition, issue the writ, and quash the trial court’s order.

Granted.

NORTHCUTT and DAVIS, JJ., Concur.

      . Despite Lamming's request for five years of nonparty CME reports, the trial court ordered Dr. Padar to bring only those from the prior three years.


author: ALTENBERND, Judge.

text:
    Melvin D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3606.
    District Court of Appeal of Florida, Second District.
    July 22, 2011.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Melvin D. Williams appeals his judgments and sentences for burglary of an unoccupied dwelling, dealing in stolen property, and providing false information to a pawnbroker. The trial court dismissed a charge of third-degree grand theft after the jury returned a verdict of guilty on both grand theft and dealing in stolen property. The only issue that Mr. Williams raises in this appeal is his claim that the trial court should have instructed the jury that it could return a verdict on the offense of grand theft or the offense of dealing in stolen property, but not on both offenses, as explained in section'812.025, Florida Statutes (2008). There is conflicting case law on this issue. Compare Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010) (concluding that the proper remedy for allowing a jury to return guilty verdicts for grand theft and dealing in stolen property is to reverse and remand both offenses for a new trial), with Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011) (disagreeing with Kiss and concluding that when a jury returns verdicts for dealing in stolen property and grand theft, the trial court may vacate the conviction for the lesser offense).

We conclude that the procedural requirements in section 812.025 are unenforceable to the extent that the statute (1) attempts to establish a procedure by which a jury does not return a factual finding announcing a verdict of guilty on each of the two separately charged offenses despite its determination that the State has proven the offenses beyond a reasonable doubt and (2) requires the jury to make this selection without any legal criteria or factual basis.

We note that for many years, trial courts have been attempting to fulfill the apparent substantive intent of this statute by obtaining factual determinations from the jury on both charges and then entering a judgment of conviction and a sentence on the greater charge. While there is an argument that the trial court should enter judgment on the offense resulting in the shorter sentence, this panel will make no request to this court to consider en banc whether we should recede from the established case law, which appears to include case law from the supreme court. Instead, we recognize conflict with Kiss and certify three questions of great public importance at the end of this opinion.

I. The Facts.

On August 8, 2008, someone burglarized a home in Tampa. The burglar took two digital gaming systems, some DVDs, and a camera. During the investigation of the burglary, the police discovered fingerprints at the scene of the crime that matched Mr. Williams’ fingerprints. A further investigation at a pawn shop established that someone had pawned a digital gaming system on August 9. The event was recorded on a video recorder, and the person who pawned the system appeared to be Mr. Williams. Mr. Williams’ fingerprints were taken at trial, and expert testimony established that the prints from trial matched both the prints at the home and at the pawn shop.

The State charged Mr. Williams with four offenses: (1) burglary of an unoccupied dwelling, (2) third-degree grand theft, (3) dealing in stolen property, and (4) providing false information to a pawnbroker. During the jury trial, Mr. Williams asked the court to instruct the jury under section 812.025. The proposed instruction essentially tracked the language of the statute, which states:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

The trial court denied this request, explaining that there was no standard instruction on this topic and that the proposed instruction was inadequate to explain to the jury how to make this decision. The trial court also appears to have been persuaded by the State’s argument that the statute should not apply in this context because Mr. Williams had taken more items in the burglary than he had pawned at the pawnshop.

The jury returned a verdict of guilty as charged on all four counts. At sentencing, the trial court dismissed the grand theft charge, as the lesser of the two offenses. The trial court then sentenced Mr. Williams to fifteen years’ imprisonment for the burglary concurrent with fifteen years’ imprisonment for the offense of dealing in stolen property. It imposed a consecutive five years’ imprisonment for the final offense of providing false information to a pawnbroker. Relying on Kiss, Mr. Williams argues that he is entitled to a new trial because he did not receive the requested instruction.

II. This Court’s Case Law Did Not Require the Trial Court to Provide the Requested Instruction.

The procedure the trial court utilized to fulfill the intent of section 812.025 is the same procedure that most, if not all, circuit courts have used in this district for many years. When a trial court overlooks this statute, on appeal this court has consistently reversed only the lesser offense and, if necessary, remanded the case for resen-tencing without consideration of the lesser offense. See, e.g., Wilson v. State, 884 So.2d 74 (Fla. 2d DCA 2004); Rife v. State, 446 So.2d 1157 (Fla. 2d DCA 1984); Victory v. State, 422 So.2d 67 (Fla. 2d DCA 1982).

In Hall v. State, 826 So.2d 268, 271 (Fla.2002), which involved a similar dual conviction albeit in the context of a plea, the supreme court held that the defendant could be convicted of only one offense. The court did not remand to allow the defendant to withdraw his plea. Instead it sent the case back to the Fourth District with instructions to reverse one of the two affected judgments and sentences. Id. at 272. The supreme court expressly approved this court’s decision in Victory, which had reversed a second judgment and sentence in a similar manner. Id. Even the Fourth District has reversed such cases without ordering a new trial, recognizing that “[t]he remedy routinely imposed under these circumstances ... is vacating the conviction which carries the lesser sentence.” Anderson v. State, 2 So.3d 303, 304 (Fla. 4th DCA 2008). Thus, in this case, the trial court did not err in following established precedent.

III. The Trial Court Did Not Need to Give the Proposed Instruction on Section 812.025, and We Doubt that Any Instruction is Appropriate in this Context.

Despite the established case law, Mr. Williams preserved this issue in the trial court and now forcefully argues that he was entitled to an instruction that tracks the statute. We disagree because the language of section 812.025 is not an adequate jury instruction and we doubt that there is any adequate method to instruct on this statute for several reasons. This statute is odd in many respects, and we are convinced that the courts of this state will better achieve the legislature’s intent in this statute by following the current, routine methods and not by giving the jury an instruction that provides them no guidance in their decision.

The legislature enacted this statute in 1977. See Ch. 77-842, § 9, Laws of Fla. As the Fourth District accurately noted in Kiss, the statute is not necessary to avoid a claim of double jeopardy. See 42 So.3d at 813. Instead, it is a rare, if not unique, form of statutory double jeopardy that announces a legislative policy encouraging the courts to convict a defendant of fewer than all possible offenses in this context. Since 1988, the policy the legislature announced in this statute has been in clear conflict with the policy it announced in section 775.021(4)(b), Florida Statutes (1988). Nevertheless, the legislature is free to announce conflicting policies if it chooses to do so.

On its face, this statute allows the State to charge a defendant with both grand theft and dealing in stolen property. It also allows the State to try these charges in one trial, and presumably the State may present evidence establishing both crimes. The trial court then instructs the jury on the elements of both crimes. But having found that the State has proven both crimes beyond a reasonable doubt, the jury “may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025.

This statute does not prevent a court from entering a judgment, which is the actual adjudication of guilt that is the condition precedent to the entry of a sentence. See Fla. R.Crim. P. 3.650 & 3.700(a). Instead, it essentially prevents a jury from checking a box on a verdict form to disclose its findings of fact as to one of two charges. Significantly, the legislature has given neither the jury nor the trial court any guidance on which of the two boxes the jury should leave empty. This lack of any criteria for the jury’s determination is very problematic.

In many cases, grand theft is a third-degree felony and dealing in stolen property is a second-degree felony. See §§ 812.014(2)(c), .019(1). Obviously, grand theft can be a greater felony depending upon the value of the stolen property. See § 812.014(2)(a)-(b). Dealing in stolen property is not always a second-degree felony and can even be a misdemeanor in some contexts. See §§ 812.019(1), .0195. A trial court generally does not instruct a jury on the degree of various offenses. Even in cases of lesser offenses, the trial court typically instructs the jury on the factual issues of the lesser offenses but gives no information about the level of the offense. See Knight v. State, 668 So.2d 596, 598 (Fla.1996). Thus, if the jury is to make this selection on some basis other than a random or arbitrary choice, then the trial court will need to give it extensive, unusual instructions.

To help the jury select between the offenses, it might be logical to inform the jury of the penalty. However, rule 3.390(a) expressly prohibits a trial judge from instructing a jury on the sentence that may be imposed except in capital cases. This rule of procedure essentially overrides the language of section 918.10, Florida Statutes (2008), which has long stated that the charge to the jury “must include the penalty for the offense.” See, e.g., Palazzolo v. State, 754 So.2d 731, 736 (Fla. 2d DCA 2000) (“[Rule] 3.390(a) overrides section 918.10(1) ... and precludes an instruction explaining a penalty when the jury will play no role in sentencing.”). In an era of complex sentencing statutes, any attempt to instruct a jury on the relevant penalties would be daunting.

Because the statute contains no criteria, we do not actually know whether the legislature intended the jury to select the greater offense, as would be the case with double jeopardy, or whether it intended the jury to follow the rule of lenity and select the lesser offense. If it intended the jury to have the discretion to pick either the greater or the lesser offense for any or no reason, the rule would seem to be impermissibly arbitrary.

In many respects, the core problem with this statute is that it is attempting to require the trial court to have the finder of fact make decisions that simply are not factual decisions. After a jury has found that the State proved the elements of both offenses beyond a reasonable doubt, its job is done. It has never been, and should not be, the function of the jury to make additional legal decisions that are not at least mixed questions of fact and law. Nothing in this statute makes the selection of one offense or the other a question of fact or even a mixed question of fact and law.

To make matters more complex, the courts of this state have interpreted the statute to prevent dual convictions in some, but not all, cases. As Justice Cana-dy explained when he was a member of this court:

The State concedes that this provision precluded Wilson from being convicted of both the dealing in stolen property charge and the grand theft charge. As we noted in Rife v. State, 446 So.2d 1157, 1158 (Fla. 2d DCA 1984), section 812.025 precludes dual convictions for theft and dealing in stolen property only when those charges relate to “one scheme or course of conduct” and thus does not entirely foreclose the possibility of prosecution for both offenses in connection with the same stolen property. However, as was true of the defendant in Rife, Wilson was accused of stealing and selling the same property on the same day. Id. Likewise, nothing in the instant case “meaningfully disrupted] the flow [of Wilson’s conduct] by a clearly disjunctive interval of time or set of circumstances.” Id. Consequently, we conclude that the State correctly concedes error. The State also correctly indicates that the lesser of the two convictions, the grand theft conviction, should be vacated. See id. at 1158; Gray v. State, 611 So.2d 100, 101 (Fla. 1st DCA 1992); T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992).

Wilson v. State, 884 So.2d 74, 77 (Fla. 2d DCA 2004). In this case, the trial court gave Mr. Williams the benefit of section 812.025, but it is not entirely clear from the evidence that he was entitled to its benefit.

IV. A New Trial is Not an Essential Remedy.

Without regard to the convictions for grand theft and dealing in stolen property, Mr. Williams has proper judgments and sentences for burglary of an unoccupied dwelling and providing false information to a pawnbroker. As a practical matter, his total sentence of twenty years’ imprisonment for these two offenses will not be affected whether his final offense is deemed to be grand theft as a third-degree felony or dealing in stolen property as a second-degree felony. We recognize, however, that from a legal standpoint, he probably has sustained harm if he was convicted of a second-degree felony when the offense should have been the third-degree felony.

In this appeal, Mr. Williams has not asked this court to substitute a judgment and sentence for grand theft for the judgment and sentence he received for dealing in stolen property. He requests a new trial because this was the relief granted in Kiss. We see no need for such a remedy. The factual determinations of the prior jury appear to be without error. All that remains is to select one offense or the other as the offense resulting in a judgment and sentence. The courts have been following the policies of double jeopardy as to this issue. Even if we concluded that we must select the offense with the lesser degree or the lesser penalty, a new trial would not be warranted.

V. Questions of Great Public Importance.

Given that it is fundamental error in at least one district for a trial court to fail to give the instruction that we reject today, and in light of the significant number of cases that are tried involving both of these offenses, we certify the following questions of great public importance:

1. MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?
2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?
3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?
Affirmed.

KELLY and LaROSE, JJ., Concur.

      . See § 810.02(3)(b), Fla. Stat. (2008).

      . See § 812.014(2)(c)(1), Fla. Stat. (2008).

      . See § 812.019(1).

      . See § 539.001(8), Fla. Stat. (2008).

      . We can find no follow-up case from the Fourth District to determine which judgment and sentence it may have reversed.

      . The Fourth District has never overruled Anderson v. State, 2 So.3d 303 (Fla. 4th DCA 2008), in an en banc opinion, and we question the authority of the panel in Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), to disregard the routine remedy that the Fourth District had used in prior cases, especially in the context of fundamental error.

      . In Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007), the Fourth District did not require a new trial in a similar case. Because both grand theft and dealing in stolen property were second-degree felonies in that case, the Fourth District required the trial court to vacate the judgment for the offense with the lesser offense severity ranking. It stretches the imagination to believe that we could or should instruct juries on the significance of severity rankings, especially when the trial court is not allowed to use those rankings to determine the order of lesser offenses on a typical verdict form. See also Sanders v. State, 944 So.2d 203 (Fla.2006).

      . Because the statute provides no basis for selection, we could arguably flip a coin to make this decision but our act in doing so would only demonstrate the impropriety of the statute,


text:
    Kenneth DeWayne SAFFOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3575.
    District Court of Appeal of Florida, First District.
    July 25, 2011.
    Kenneth DeWayne Saffold, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., ROBERTS and RAY, JJ., concur.


author: HAWKES, J.

text:
    K.G. Mother of N.G., Minor Child, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D11-2303.
    District Court of Appeal of Florida, First District.
    July 26, 2011.

      Hilda Griffis, Assistant Regional Conflict Counsel, Office of Regional Conflict Counsel, Jacksonville; Susan M. Barber, Assistant Regional Conflict Counsel, Office of Regional Conflict Counsel, Tallahassee, for Petitioner.
    Ward L. Metzger, Jacksonville, for Respondent.
   HAWKES, J.

Petitioner (the mother) appeals a shelter order placing her child in the care of the maternal grandmother. The mother argues the order was entered in violation of her due process rights as the trial court did not give her the opportunity to be heard during the shelter hearing. We agree with the mother and, on this basis, grant the petition for writ of certiorari.

Facts

The child who was the subject of this proceeding was born on March 29, 2011, while the mother was under protective supervision, and was taken into protective custody the following day. Following the filing of a shelter petition, the trial court held a hearing in which it declared — without hearing from any party — that it had already reached its determination. It commenced the hearing by stating:

The Court: We are here for a shelter hearing and, as you know, the purpose of the hearing is for the Court to determine whether there is probable cause to detain the child based on the verified allegations of the petition. I have read the petition and find there is probable cause to detain the child.

The trial court then proceeded to discuss placement, prompting the mother’s attorney to speak:

The Court: No. I don’t want the children placed with the mother.
Mother’s Attorney: Your Honor, may I—
The Court: No, ma’am. I do not want the children placed with the mother at this time.

The trial court then directed that the child be placed with the maternal grandmother and allowed for the mother to have supervised visitation.

Following the hearing, the trial court issued a shelter order adopting the allegations in the petition. The mother challenged the order in a motion for rehearing in which she argued that the trial court had not honored her due process right to be heard and present evidence. The trial court denied the motion for rehearing without comment.

The mother has now filed the instant petition for writ of certiorari, seeking to quash the shelter order because, among other things, it was entered in violation of her right to be heard. We recognize that the mother has raised other arguments in her petition, but write only to address this due process violation.

Standard of Review

To obtain certiorari jurisdiction over a non-final, non-appealable order, such as the shelter order in the instant case, a petitioner must demonstrate that the order: (1) caused harm so irreparable that it cannot be remedied on appeal following final judgment; and (2) departed from the essential requirements of the law. See Dep’t of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000)); see also Smithers v. Smithers, 743 So.2d 605, 606 (Fla. 4th DCA 1999). A petitioner can show irreparable harm by demonstrating either that the injury cannot be redressed in a court of law or that there is no adequate legal remedy. See Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938); Kellar v. Moore, 820 So.2d 1015, 1016 (Fla. 1st DCA 2002). A petitioner can demonstrate a departure from the essential requirements of the law by showing “that the trial court made an error so serious that it amounts to a miscarriage of justice.” State v. Smith, 951 So.2d 954, 958 (Fla. 1st DCA 2007).

The denial of the mother’s right to be heard meets both prerequisites of certiorari review

Regarding the first prerequisite for cer-tiorari review, the mother’s argument that she was denied the opportunity to be heard concerns harm which will be irreparable unless immediately addressed. If the mother’s allegation is found to be true, and she waits to raise it until she appeals a final dependency or termination order, the entire proceeding will have been based on a denial of her due process rights. We cannot allow this to occur. See In re A.W.P., Jr., 10 So.3d 134, 135-36 (Fla. 2d DCA 2009) (issuing a writ of certiorari after finding the trial court in a dependency proceeding violated a parent’s due process rights by failing to extend a “real opportunity” to be heard).

Regarding the second prerequisite, an allegation that a trial court has violated a parent’s right to be heard at a shelter hearing constitutes a departure from the essential requirements of the law. Section 39.402(8)(c)(3), Florida Statutes (2010), requires trial courts at shelter hearings to provide the parties with an opportunity to be heard and present evidence. This principle is also found in Florida Rule of Juvenile Procedure 8.305(b)(4) (2010), which states all interested persons at shelter hearings “shall have an opportunity to be heard and present evidence on the criteria for placement provided by law.”

Caselaw has consistently acknowledged that failing to honor a parent’s right to be heard at a shelter hearing is a violation of due process. See L.M.C. v. Dep’t of Children & Families, 935 So.2d 47 (Fla. 5th DCA 2006); S.M. v. Dep’t of Children & Families, 890 So.2d 552 (Fla. 5th DCA 2005); In re J.P., 875 So.2d 715, 718 (Fla. 2d DCA 2004). In particular, “[i]f a parent is not permitted to be heard at the hearing, and only the [Department's evidence will be considered, then the one-sided hearing would be a pointless formality. This is clearly not what the statute or rule contemplates.” L.M.B. v. Dep’t of Children & Families, 28 So.3d 217, 219 (Fla. 4th DCA 2010).

Here, the trial court began the shelter hearing by announcing its decision before giving the parties a chance to present evidence, stating “I have read the petition and find there is probable cause to detain the child.” When the mother’s attorney attempted to make a comment, the trial court interrupted her, thus precluding any attempt to offer evidence. We are sympathetic to the trial court’s desire to conduct an expeditious and informal shelter hearing. However, “those concerns do not outweigh the right of parents to be heard initially when faced with removal by the State of their children from their home.” L.M.C., 935 So.2d at 47. We therefore find the violation of the mother’s right to be heard was a clear departure from the essential requirements of the law amounting to a miscarriage of justice.

Conclusion

The mother had a due process right to be heard during the shelter hearing. Because the trial court violated this right, we extend a writ of certiorari to quash the shelter order and remand the matter for further proceedings on whether the child should be detained. We emphasize that our decision addresses only the manner in which the proceeding was held, not the merits of the trial court’s findings or decision. Whether there were grounds to shelter the child should be determined on remand in a full evidentiary hearing. The petition for writ of certiorari is GRANTED.

BENTON, C.J., and ROWE, J., concur.

      . We note the Department's argument that because the mother did not submit evidence either before or during the hearing, she failed to preserve her claim concerning the violation of her right to be heard. However the denial of a party's right to be heard — even if unpre-served — constitutes per se reversible error and, therefore, can be raised at any time. See Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007).


text:
    Joe Edwin ROGERS, Jr., Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D10-4336.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2011.
    Joe Edwin Rogers, Jr., Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida.
    No appearance for Appellee, Charles P. Vaughn, Esq.
   PER CURIAM.

REVERSED. See Fla. R.App. P. 9.315(b); Law Offices of Alan J. Braverman, P.A. v. State, 564 So.2d 190 (Fla. 4th DCA 1990).

GRIFFIN, PALMER, and EVANDER, JJ., concur.