text:
    Gary GLARUM and Anita Glarum, Appellants, v. LASALLE BANK NATIONAL ASSOCIATION, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FFI, First Wellington, Inc., a dissolved corporation, Wellington Shores Homeowners Association, Greenview Shores No. 2 at Wellington Homeowners Association, Greenview Shores Homeowners Association, First Franklin Financial Corporation, and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above-named parties, Appellees.
    No. 4D10-1372.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2011.

      Thomas Ice of Ice legal, P.A., Royal Palm Beach, for appellants.
    R. Eric Bilik, Jeffrey S. York and Sara F. Holladay-Tobias of the Law Firm of McGuireWoods, LLP., Jacksonville, Katherine E. Giddings, Nancy M. Wallace Ak-erman Senterfitt, Tallahassee, William P. Heller and William C. Crenshaw of Aker-man Senterfitt, Fort Lauderdale, and Tho-masina F. Moore and Dennis W. Moore of Butler & Hosch, P.A., Orlando, for appel-lee LaSalle Bank National Association.
   ON MOTION FOR REHEARING AND CLARIFICATION, OR REHEARING EN BANC

PER CURIAM.

LaSalle moves for rehearing and clarification, or rehearing en banc. We deny the motions for rehearing, noting that LaSalle does not challenge this court’s reversal of summary judgment. We grant the motion for clarification. For ease of reference, we withdraw our previously issued opinion and substitute the following in its place.

This appeal presents two issues. First, we consider whether the trial court improperly granted a summary judgment of foreclosure in favor of LaSalle Bank. We also consider whether the trial court erred in sanctioning appellants’ counsel for filing frivolous pleadings pursuant to section 57.105, Florida Statutes. We reverse the trial court’s entry of summary judgment in favor of LaSalle in part, as LaSalle’s summary judgment evidence was insufficient to establish the amount due to LaSalle under the note and mortgage. We likewise reverse the entry of sanctions against appellants’ counsel as improper. However, we find no merit in appellants’ contention that LaSalle lacked standing to seek foreclosure.

Appellants admitted in their answer that they had not made payments according to the terms of the note, and as such, they were in default. Appellants, however, denied LaSalle’s allegations regarding the amount of the default. To establish the amount of appellants’ indebtedness for summary judgment, LaSalle filed the affidavit of Ralph Orsini, a “specialist” at the loan servicer, Home Loan Services, Inc. Orsini claimed in the affidavit that appellants were in default of their payment obligations and owed in excess of $840,000 on the note. In opposition to the motion for summary judgment, appellants filed Orsini’s deposition, wherein Orsini explained that he derived the $340,000 figure from his company’s computer system. However, Orsini did not know who entered the data into the computer, and he could not verify that the entries were correct at the time they were made. To calculate appellants’ payment history, Orsini relied in part on data retrieved from Litton Loan Servicing, a prior servicer of appellants’ loan.

Florida Rule of Civil Procedure 1.510(c) requires a party moving for summary judgment to “identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence.” If this evidence, taken in the light most favorable to the non-moving party, shows no genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

We find that Orsini’s affidavit constituted inadmissible hearsay and, as such, could not support LaSalle’s motion for summary judgment. Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence may be admitted into evidence as business records if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. For instance, Orsini testified:

Q. And who would make those entries as payments were made or as the account needed to be updated?
A. No idea.
Q. Would it be someone at Home Loans?
A. Again, no idea.
Q. And is there a department that typically puts in each — any account activity on these databases at your company?
A. I’m not sure.
Q. You don’t know what department that would be?
A. No.

He relied on data supplied by Litton Loan Servicing, with whose procedures he was even less familiar. Orsini could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system. Orsini had no knowledge of how his own company’s data was produced, and he was not competent to authenticate that data. Accordingly, Orsini’s statements could not be admitted under section 90.803(6)(a), and the affidavit of indebtedness constituted inadmissible hearsay. Because LaSalle presented no competent evidence to show $422,677.85 in damages, the amount of the judgment to which La-Salle is entitled remains at issue. Therefore, we reverse the entry of judgment in favor of LaSalle and remand for further proceedings.

The trial court also entered sanctions against appellants’ counsel for filing a “form affidavit” from an expert, Rita Lord, who opined on the ability of lay persons to distinguish between original and high-quality copies of promissory notes. Lord did not represent in the affidavit that she reviewed the papers at issue in this case. Nevertheless, the trial court was distressed by appellants’ counsel’s habit of filing “the same affidavit in ten different cases, when [Lord] hasn’t seen the documents in this case.” The court awarded LaSalle its reasonable attorney’s fees for having to file a motion to strike Lord’s affidavit.

We note that LaSalle moved for sanctions under section 57.105, Florida Statutes. That statute permits a trial court to award a “reasonable attorney’s fee” to the “prevailing party” where the plaintiffs claim was frivolous or to a party to compensate for the opposing party’s dilatory conduct. § 57.105(l)-(2), Fla. Stat. The trial court did not find that appellants’ claims were frivolous, and the trial court did not conclude that Lord’s affidavit was filed to cause unreasonable delay. Thus, section 57.105 could not serve as a basis for the award of attorney’s fees to LaSalle.

To the extent that the trial court may have been exercising its inherent authority to sanction parties or their attorneys, we also find error. “[A] trial court possesses the inherent authority to impose attorneys’ fees against an attorney for bad faith conduct.” Moakley v. Smallwood, 826 So.2d 221, 226 (Fla.2002). To impose attorney’s fees as a sanction under its inherent authority, the trial court must make an “express finding of bad faith conduct” that is “supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Id. at 227.

The trial court did not make any specific findings of bad faith on the record, and the sanctions order must be reversed without prejudice. See Finol v. Final, 912 So.2d 627, 629 (Fla. 4th DCA 2005). “Upon remand, should the court be asked to reconsider the issue, any future hearing and order must comply with the requirements of Moakley.” Id.

In summary, we reverse the judgment of foreclosure and the entry of sanctions against appellants’ counsel and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.

      . The very first paragraph of LaSalle’s motion states, "LaSalle does not challenge this Court’s reversal of summary judgment.” (bold emphasis added).

      . The law does not require an affiant who relies on computerized bank records to be the records custodian who entered or created the data, nor must the affiant identify who entered the data into the computer. The law is also clear there is no per se rule precluding the admission of computerized business records acquired from a prior loan servicer.

      . We stress that this case stands alone and its outcome could very well have been different had the affiant’s testimony demonstrated that he knew the simple basics as set forth in section 90.803(6)(a) and Yisrael, 993 So.2d at 956. LaSalle may also have been able to supplement Orsini’s affidavit with affidavits from qualified individuals certifying that the computer records satisfied the business records hearsay exception. See Fla. R. Civ. P. 1.510(e) ("The court may permit affidavits to be supplemented ... by further affidavits.’’).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Otis FINCH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2140.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    Otis Finch, Jr., Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion based on timeliness. We reverse. Appellant’s allegation that he placed his motion in the hands of prison officials on November 19, 2010, is not refuted in the record. The fact that prison officials did not mail it until three days later is immaterial. Accordingly, we remand this cause to the trial court to consider the motion on the merits.

REVERSED AND REMANDED.

PALMER, TORPY and JACOBUS, JJ., concur.


text:
    Robin EUSTACHE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3636.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Robin Eustache, Okeechobee, pro se.
    No response required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. Pursuant to section 958.14, Florida Statutes, following appellant’s substantive violation of youthful offender probation, which he admitted, the court sentenced him to fifteen years in prison for robbery with a firearm. The sentence is within the statutory maximum for this offense, authorized by the youthful offender statute, and not illegal. See id. The court did not revoke appellant’s youthful offender status, so his reliance on Blacker v. State, 49 So.3d 785 (Fla. 4th DCA 2010), is misplaced.

DAMOORGIAN, GERBER and CONNER, JJ., concur.

      . "A defendant's status as a youthful offender matters in part because it affects the defendant’s classification within the prison system and the programs and facilities to which the defendant can be assigned.” Blacker, 49 So.3d at 787 n. 2.


text:
    PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a Palms West Hospital, f/k/a Columbia Palms West Hospital Limited Partnership, a foreign limited partnership, d/b/a Palms West Hospital, Petitioner, v. Charles H. BURNS, as Personal Representative of the Estate of Enrique Casasnovas, Deceased, for the benefit of the Estate of Enrique Casasnovas, Respondent.
    No. 4D10-3629.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Rehearing Denied May 16, 2012.

      Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for petitioner.
    Bard D. Rockenbach and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Scott Donaldson of Gordon & Doner, P.A., Palm Beach Gardens, for respondent.
   PER CURIAM.

Palms West Hospital (Palms West) petitions this court for a writ of certiorari following the circuit court’s denial of its motion to dismiss respondent Charles H. Burns’ third amended complaint for failure to follow pre-suit procedures under the Florida Medical Malpractice Act. See § 766.102, Fla. Stat. (2009). We find that this was a departure from the essential requirements of the law and grant the petition.

Respondent/plaintiff Burns is the personal representative of the estate of Enrique Casasnovas. In 2006, Casasnovas was taken to the Palms West emergency room with complaints of abdominal pain, nausea and vomiting blood. Upon examination, he was found to have elevated blood sugar and in diabetic ketoacidosis. It was determined that Casasnovas was suffering from an emergency medical condition and that he was in need of a gas-troenterologist; however, none were available on the premises. Every off-site doctor that Palms West contacted refused to come to the hospital to treat Casasno-vas. The respondent alleges that this is because he did not have insurance. Ca-sasnovas was transferred to North Bro-ward Medical Center where he subsequently died.

Casasnovas’ estate filed suit against Palms West alleging inter alia that the hospital negligently retained physicians who it knew would not treat patients without insurance. The respondent claimed that the hospital was aware its doctors would not show up to treat uninsured patients, as a similar incident happened one month prior to Casasnovas’ death.

The respondent alleged that Palms West had a non-delegable duty to provide emergency room services and care to any persons presenting themselves requesting such care. They maintained that Palms West had an agreement with one or more physicians in the field of gastroenterology; they alleged that the doctors, directly or indirectly, had an agreement and/or contract with Palms West to provide emergency room services and care and therefore had a duty to do so. The complaint alleged that Palms West was responsible for ensuring that a physician in the gas-troenterology field was available to treat Casasnovas. It further alleged that because of the slow treatment of Casasnovas, he died. Prior to this, Palms West allegedly knew that these doctors might refuse to treat patients as they did not believe they were provided sufficient compensation or medical malpractice insurance by Palms West. The complaint went on to allege that Palms West refused to terminate its relationship with these doctors and that it was vicariously liable for the doctors’ acts or omissions.

Palms West sought to dismiss the claims for failure to follow the pre-suit screening procedures. It asserted that the claims arose from the rendering of, or the failure to render, medical services and the suit was therefore a medical negligence action subject to dismissal for failure to follow pre-suit procedures. It further argued that with regard to a statutory cause of action based upon section 766.110, Florida Statutes (2009) (duty to assure competence of medical staff members), this theory is predicated upon the provision of non-negligent care to patients and implicates the pre-suit requirements. The court dismissed the bulk of respondent’s claims; however, it found that the two claims alleging negligent retention of physicians and the hospital’s duty to assure competent staff members were not medical negligence claims. It is from this order which Palms West seeks certiorari review.

In order to receive certiorari relief, a petitioner must show that the circuit court departed from the essential elements of law and the order will cause irreparable injury not remedial on direct appeal. Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996). It is well-settled that “[ejertiorari is appropriate to review an order denying a motion to dismiss which claims the pre-suit requirements of Chapter 766 have not been met.” Cent. Fla. Reg’l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998).

Irreparable harm can be shown where a court incorrectly denies a motion to dismiss for failure to follow pre-suit requirements, as doing so would eliminate the cost-saving features the Act was intended to create. Dr. Navarro’s Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.3d 776, 778-79 (Fla. 4th DCA 2009). The Florida Supreme Court has made it clear that the pre-suit screening procedures should be read in a way which favors access to the courts. Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002).

The petitioner now asserts that Ca-sasnovas’ two remaining claims arise out of the rendering of, or failure to render, medical services. After careful consideration, we find that these claims do arise under the Florida Medical Malpractice Act and that the trial court departed from the essential requirements of law when it did not dismiss the claims for failure of respondent to follow pre-suit procedures.

A “‘[c]laim for medical negligence’ or ‘claim for medical malpractice’ means a claim, arising out of the rendering of, or the failure to render, medical care or services.” See § 766.106(1)(a), Fla. Stat. (2009); see also J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 948-49 (Fla.1994).

This court accepts as true all of the factual assertions made in the complaint, see, e.g., Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999), and finds that the hospital’s negligent retention of doctors who failed to treat Casasnovas, ultimately causing his death, is a claim arising under the Medical Malpractice Act.

Of particular import is that Casas-novas was treated by Palms West. It was during his initial treatment that hospital personnel determined that a GI doctor was required. The failure of the on-call doctors to respond, which respondent alleges resulted in Casasnovas’ death, sounds in medical negligence, even if the doctors’ motives were purely economic. Palms West’s retention of these doctors, who the hospital knew were making financial decisions to refuse to treat patients lacking insurance, is a medical negligence claim where the respondent is claiming that Ca-sasnovas’ death resulted from the lack of treatment. While we acknowledge that “[n]ot every wrongful act by a medical provider is medical malpractice,” see, e.g., Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006), we hold that Palms West’s alleged negligent retention of doctors who failed to treat patients and the hospital’s continued staffing of these doctors are claims arising under the Medical Malpractice Act and implicate pre-suit requirements.

This court issued Indian River Memorial Hospital, Inc. v. Browne, 44 So.3d 237, 239 (Fla. 4th DCA 2010), and reversed a trial court order which determined pre-suit provisions did not apply. In that case, a patient was admitted to the emergency room in a disoriented state. He fell off of a stretcher and suffered head injuries, which caused his death. His estate alleged the hospital improperly supervised him by leaving his bed’s guardrail insecure. Id. at 238. We found that complaint alleged a medical negligence claim. Id. “The standard of care for the hospital’s treatment of Browne is based in part on the hospital’s evaluation of his medical condition when he was admitted to the emergency room.” Id. at 238-39. Further, since another aspect of the claim was the hospital’s failure to implement adequate procedures to protect ER patients from falling from hospital beds, the adequacy of the procedures “depends on the prevailing professional standard for managing and supervising those admitted to hospital rooms. These types of issues arise out of the rendering of, or the failure to render, medical care or services.” Id. at 239. Similar to Indian River, we hold that the standard of care for the hospital’s treatment, or lack of treatment, toward Casas-novas would be based, in part, on Palms West’s evaluation of his condition when he was admitted to the emergency room. “The duty of the hospital to select and review health care personnel arises under the medical malpractice statute. Furthermore, the negligent medical treatment ‘is both necessary to the claims against the [hospital] and inextricably connected to them.’ ” St. Anthony’s Hosp., Inc. v. Lewis, 652 So.2d 386, 387 (Fla. 2d DCA 1995) citing Martinez v. Lifemark Hosp. of Fla., Inc., 608 So.2d 855, 857 (Fla. 3d DCA 1992)).

The respondent asks that we consider Joseph v. University Behavioral LLC., 71 So.3d 913 (Fla. 5th DCA 2011), in support of the idea that not every wrongful act involved in a medical setting necessarily implicates medical negligence. In that case the plaintiff was injured following a physical altercation with a fellow patient at a psychiatric facility. He had previously asked the facility to separate him from the other patient, complaining he was being bullied, yet no action was taken. Joseph filed suit against the facility, asserting negligence. The circuit court dismissed the claim, finding that it alleged medical negligence, and was not brought within the two-year timeframe required under the statute. The Fifth District disagreed because it determined that a decision by the facility to not separate two patients involved no medical assessment.

We find Joseph distinguishable. In order for Casasnovas to show that he died as a result of the Palms West doctors failing to treat him, as alleged in the complaint, he would have to prove that the treatment was medically necessary, unlike the plaintiff in Joseph.

In South Miami Hospital, Inc. v. Perez, 38 So.3d 809 (Fla. 3d DCA 2010), the Third District found that a patient who fell off of a bed, while left unsupervised and unrestrained, suffering injuries, brought a medical malpractice action even though the complaint characterized the patient as a “business invitee.” The court concluded that the claims could be “proven only through evidence that the alleged negligent action or inaction of a health care provider ... fell below the prevailing standard of care in the community for that health care provider resulting in injury.” Id. at 812 (discussing Tenet S. Fla. Health Sys. v. Jackson, 991 So.2d 396, 399 (Fla. 3d DCA 2008)). Similarly, whether Palms West is liable for failing to render medical care rests, in part, on how the claim is to be proved. The doctors’ alleged conspiracy to not consult with patients sans insurance, and Palms West’s retention of them, ultimately causing Casasnovas’ death, would likely be proved using the prevailing standard of care of hospitals as in Perez. This implicates the pre-suit requirements of the Medical Malpractice Act.

[A] claim for medical malpractice [is] “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2007), in order to prove the case. Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002).

Jackson, 991 So.2d at 399 (granting certio-rari petition finding claim arose under Medical Malpractice Act).

We agree with the petitioner’s assertion that the medical negligence umbrella is wide and often encompasses business decisions which result in injury to the patient. In Paulk v. National Medical Enterprises, Inc., 679 So.2d 1289 (Fla. 4th DCA 1996), patients sued several hospitals for extending their stays, without medical necessity, in order to exhaust insurance payments. There, the doctors provided some treatment to the patients that was necessary; however, they provided more than was actually needed, in a purported scheme to defraud the insurer. This court found that the pre-suit requirements applied, reasoning that the “fraudulent rendering of unnecessary medical care and services is encompassed by the term ‘arising out of the rendering of ... medical care or services.’ ” Id. at 1290. Here the respondent’s claims are based in medical negligence because in order to prove that Palms West failed to timely obtain a gas-troenterology consultation, resulting in Ca-sasnovas’ death, the respondent would have to prove that a consultation was even medically necessary.

Paulk remarked:

Plaintiffs’ argument on appeal that the claims are not predicated on a breach of the professional standards of care appropriate for the patient’s condition is belied by the allegations of their own complaint. Among others, plaintiffs allege that decedent “was in need of psychiatric treatment”; that the providers in this case “failed to provide [decedent] with any meaningful treatment”; and that the treatment provided was “without proper regard for [decedent’s] medical needs.” In light of these allegations, the conclusion that the cause of action sounds in medical malpractice is inescapable.

Id. at 1290-91. Similarly here, the respondent argued in his complaint that Casasno-vas was in need of medical services and was injured because he did not receive them.

We therefore find that the trial court departed from the essential requirements of law when it failed to dismiss the respondent’s remaining claims. We quash the order denying petitioner’s motion to dismiss for failure to properly follow pre-suit procedures and remand for further proceedings consistent with this opinion.

Petition Granted; Remanded.

POLEN, TAYLOR and HAZOURI, JJ., concur.


author: COHEN, J.

text:
    Karen J. BUHLER, Appellant, v. Joseph H. BUHLER, Appellee.
    No. 5D10-2125.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      Thomas H. Yardley, Cocoa, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

The legal issue involved in this case is rather straightforward, but requires some context. When the parties were initially divorced, the final judgment did not set out a specific visitation schedule; instead, it provided for liberal visitation. Subsequently, the former husband petitioned for modification, seeking a structured visitation schedule. The trial court granted the petition and entered a schedule which provided the former husband with approximately forty-eight percent of the overnights of the year, a substantial amount of time pursuant to section 61.30(ll)(b)10., Florida Statutes (2003). However, in reducing the former husband’s support obligation, the trial court refused to lower his support obligation based upon the amount of days ordered in the new schedule. Rather, the court reduced the support amount based upon the former husband’s historical exercise of visitation.

On appeal, we reversed, finding the trial court erred in utilizing a historical methodology and holding the court should have reduced the child support obligation in accordance with the legislative substantial time formula under section 61.30(ll)(b). Buhler v. Buhler, 913 So.2d 767, 769 (Fla. 5th DCA 2005). Prophetically, we noted:

If, in the future, the father does not regularly exercise at least 40 percent of the overnight visits, the mother may seek a modification of child support pursuant to section 61.80(ll)(c), Florida Statutes (2003), which considers a noncustodial parent’s failure to exercise visitation as a substantial change of circumstances for purposes of modifying the award of child support, and provides for retroactive application back to the date that the father first failed to regularly exercise at least that level of visitation.

Id.

Virtually before the ink dried on the mandate, the former husband filed a petition for modification and the former wife a counter-petition, the substance of which are only tangentially relevant to the issues of this appeal. In July 2007, the former wife was allowed to amend her counter-petition. She sought to alter the previously ordered visitation schedule and for an increase in child support. The former wife averred that the former husband was not exercising the visitation set out in the supplemental final judgment and that she was entitled to an award of child support that did not provide for a reduction of support under section 61.30(ll)(b). The former wife requested child support be recalculated retroactively to the first day of the month in which the former husband ceased to exercise visitation with the minor children.

A trial was conducted on the supplemental petitions. The trial court found the former husband ceased exercising his visitation in June 2006. However, the court awarded retroactive child support to July 2007, the date the former wife filed her amended counter-petition seeking a modification of support.

We previously held that application of section 61.30(ll)(b) is mandatory. Seiberlich v. Wolf, 859 So.2d 570, 571 (Fla. 5th DCA 2003). Florida law mandates a reduction in child support whenever the non-custodial parent spends a “substantial amount of time” with the child. § 61.30(l)(a), Fla. Stat. (2006). It seems intuitive that, conversely, the failure to spend time with a child mandates forfeiture of the right to a reduction in child support. The Legislature has specifically provided that a parent’s failure to exercise court-ordered or agreed-upon time-sharing, not caused by the other parent, resulting in the adjustment of child support “shall be deemed a substantial change of circumstances ....” § 61.30(ll)(c), Fla. Stat. (2001). That modification is “retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation.” Id.

Determination of when the failure to exercise visitation has occurred is not instantaneous. Missing an occasional visitation will not give rise to such a finding. By its nature, it occurs over a period of time, and during that time frame, the nonresidential parent still benefits from a reduction in what the child support guidelines would otherwise have required. The statute is unambiguous and our prior opinion in Buhler is clear. The modification of child support should have been retroactive to June 2006, the date on which regular visitation under the court-ordered schedule was found to have ceased.

The former wife also argued the trial court abused its discretion in awarding a standard “long distance guideline” visitation schedule without consideration of the individualized facts and circumstances of these parties. At oral argument, the former wife conceded the visitation issue raised on appeal was moot.

REVERSED AND REMANDED.

TORPY and JACOBUS, JJ„ concur.

      . Effective January 1, 2011, the statute, renumbered 61.30(1 l)(b)8., was amended to provide “[flor purposes of adjusting any award of child support under this paragraph, 'substantial amount of time’ means that a parent exercises time-sharing at least 20 percent of the overnights of the year.” Ch. 2010-199, § 5, at 13, Laws of Fla.

      . A different judge handled the prior proceedings.