author: GROSS, J.

text:
    John R. AERY, Appellant, v. WALLACE LINCOLN-MERCURY, LLC d/b/a Maroone Lincoln Mercury of Lake Park, Appellee.
    No. 4D12-1615.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Office of Richard A. Ivers, Coral Springs, for appellee.
   GROSS, J.

John Aery timely appeals a final summary judgment entered in favor of Wallace Lineoln-Mercury, LLC d/b/a Maroone Lincoln Mercury of Lake Park, the defendant below, based upon three grounds: (1) that Aery lacked standing to pursue his claim under Florida’s Whistleblower Act since he filed for Chapter 18 bankruptcy while his suit was pending; (2) that Aery was judicially estopped from claiming lost wages since he successfully demonstrated total disability to recover social security disability benefits; and (3) that Aery was otherwise barred from recovering lost wages since he failed to mitigate his damages. We reverse, holding that (1) as a Chapter 13 debtor, Aery retained the power to bring suit on behalf of his estate; (2) judicial estoppel does not preclude recovery of lost wages because Aery raised the factual issue that the retaliatory firing was the cause of his disability; and (3) in the light most favorable to Aery, issues of fact remain as to whether he failed to mitigate his damages.

Factual Background

We state the facts in the light most favorable to Aery, the non-moving party who lost the summary judgment below. See Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So.2d 261, 262-63 (Fla. 4th DCA 2007).

Beginning on March 11, 2003, Aery worked as the automobile parts manager for Maroone. Aery soon took issue with the conduct of the body shop manager, who had both the access and authority to submit orders for parts. Aery alleged that the body shop manager was engaging in purportedly illegal acts. Specifically, Aery claimed that when a customer would bring an automobile to the body shop for repair, the body shop manager would order new parts from a parts vendor, while also purchasing corresponding, and far cheaper, used parts from a separate dealer. The body shop manager would then install the used part in the customer’s car and return the new part to the original vendor for credit. Thereafter, he would send an invoice to the insurance company to receive reimbursement for the amount of the new part.

Aery informed his general manager of the part-switching scheme in May 2003. Later that month, he and the general manager had a sit-down meeting to discuss the issue, during which Aery informed him that such practice “was not only against industry standards” but “against the law.” The general manager assured Aery that he would straighten everything out. However, as the months went by, no action was taken.

For the next several months, Aery continued to report the dishonest practices to the general manager, with no results. Eventually, in September 2003, the general manager met with the body shop manager. After the meeting, the body shop manager made a scene and angrily peeled out of the company’s parking lot in his car. However, despite this outburst, the practices continued.

With the issue still lingering, Aery, in late 2003, reported the matter directly to Maroone’s corporate headquarters. In response, headquarters attempted to set up a meeting with Aery and his general manager, but the meeting never took place. Aery tried again to bring the issue to headquarters’ attention in January 2004, but he was ignored. Eventually, on March 1, 2004, with the part-switching practices continuing, the general manager fired Aery, citing a necessary “reduction in the workforce.” No one else was fired, although several others resigned shortly thereafter.

After his firing, Aery began to suffer bouts of depression. Nevertheless, he entered the job market and eventually found a job as a sales associate at a Ford dealership in May 2004; however, he resigned from that position just three days after starting since “they didn’t have it set up properly” and he “couldn’t make money the way they had it set up.” Thereafter, in October 2004, Aery landed another job in Leesburg, Florida. By May 2005, he was once again terminated for reasons Aery deemed to be unfair. At age 62, Aery found that, given the unjust nature of his last two firings, he was “unable mentally to continue to look for work.” He eventually applied for, and received, Social Security Disability Benefits.

Procedural Posture

In April 2006, Aery brought suit against Maroone in the circuit court. In July 2007, Aery filed his third amended complaint, in which he alleged one violation of section 448.101-105, Florida Statutes (2005), also known as Florida’s Whistle-blower Act. As grounds for his complaint, Aery alleged that Maroone fired him for reporting the practices of the body shop manager, which implicated the following statutes:

a. Section 817.413 F.S. — Sale of Used Motor Vehicle Goods as New, a third degree felony;
b. Section 817.29 F.S. — Cheat, also a third degree felony;
c. Section 812.017 — Use of a fraudulently obtained or false receipt, a [misdemeanor] of the second degree; and,
d. Section 812.014 — Theft, a felony of varying degrees.

As his prayer for relief, Aery tracked the language of Section 448.103(2), and requested, among other things, “[c]ompensation for lost wages, benefits, and other remuneration; and ... [s]uch other and further relief as allowed at law.”

Bankruptcy Proceedings

In December 2007, while the circuit court suit was pending, Aery filed for Chapter 13 bankruptcy. Four months later, the bankruptcy court confirmed Aery’s Chapter 13 Plan, which included a Schedule “B” form listing the “[e]mployment lawsuit against AutoNation” as a “contingent and unliquidated claim[]” valued at approximately $249,000.00.

Upon learning of the bankruptcy proceedings, the trial court, on November 6, 2009, conducted a status conference to determine whether Aery’s act of filing for bankruptcy divested himself of standing to pursue his wrongful firing claim. After reviewing each party’s memorandum, the trial court entered an order finding that Aery was authorized to bring suit on behalf of the bankruptcy estate since a “plaintiff who files for bankruptcy under Chapter 13 maintains standing to pursue pre-petition litigation claims.”

Summary Judgment

Following the completion of discovery, on January 5, 2012, Maroone moved for summary judgment, stating four grounds: (1) that “Aery [wa]s judicially estopped from pursing his damage claim for lost wages by virtue of his contradictory assertions made to the Social Security Administration that he is disabled and unable to work”; (2) that Aery “failed to mitigate his damages” since he had retired and was not seeking “substantially equivalent employment”; (3) that Aery lacked standing to bring his suit “since the claims are property of his bankruptcy estate”; and (4) that Aery failed to state a cause of action since the statutory violations he had listed in his complaint were materially different than the violations asserted in his original complaint. To support its argument as to Aery’s entitlement to damages, Maroone relied upon Aery’s response to a question during interrogatories, in which he indicated that he “fe[lt] that if he got his job back he would be able to work at Autonation.”

In a responsive memorandum, Aery claimed, based upon the trial court’s previous decision, that he maintained standing to pursue his suit individually since he had filed for bankruptcy under Chapter 13, as opposed to Chapter 7. Concerning his claim for damages, Aery said that he was entitled to lost wages and other compensatory damages since he had acted with due diligence to attain equal employment, but such efforts were stunted by the total disability brought about by his firing. To support the notion that his unlawful firing was the cause of his disability, Aery relied in part on the following snippets from his deposition testimony:

Q. Okay. And is it your position that you’ve been totally disabled and unable to work since May 2005?
A. Yes.
Q. And why do you believe you’ve been unable to work since May of 2005?
A. Well, I suffer from PTSD from an injury in the military and I’ve worked through it all my years without it affecting my ability to work or perform at all. But after what happened to me in the last two jobs, it increased my — they call it stress, you know, level and depression. So that’s what that caused. And after that, I — I just had a hard time — it would be hard for me to try to go in and try to get a job. I — I’m just not mentally there. And — and, of course, I — I—for the last almost two years now, I’ve been laid up with three major surgeries on my stomach, so that — that’s chilled me for the last two years from doing anything.
Q. And it was only after you were terminated from [Maroone] that you became unable to work?
A. Yeah, I just — I chose not to work anymore. I just didn’t have it in me anymore.

Trial Court’s Order

Following a hearing, the trial court entered an order granting summary judgment in favor of Maroone upon several grounds. First, relying upon the doctrines of judicial estoppel and failure to mitigate damages, the court ruled that Aery was precluded from recovering the lost wages that had accrued since May 26, 2005, because, on that date, Aery had “successfully asserted before the Social Security Administration that he has been unable to work,” and he had otherwise retired and not sought further employment. In addition, the trial court found that Aery lacked standing to bring his suit altogether since his “wrongful discharge claim [wa]s property of the bankruptcy estate,” subject to the exclusive control of the bankruptcy trustee.

With the trial court’s finding on the standing issue effectively bringing litigation to a close, Aery moved for rehearing and clarification, again making reference to the trial court’s earlier ruling that he had standing to bring suit as a Chapter 13 debtor. The trial court denied Aery’s motion and entered a final judgment.

Standard of Review

“A circuit court’s order granting summary judgment is reviewed de novo.” Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So.3d 602, 606 (Fla. 4th DCA 2013) (citing Sunshine State Ins. Co. v. Jones, 77 So.3d 254, 257 (Fla. 4th DCA 2012)). “In reviewing a summary judgment, [the court] must consider all record evidence in a light most favorable to the non-moving party. If material facts are at issue and the slightest doubt exists, summary judgment must be reversed.” Mills v. State Farm Mut. Auto. Ins. Co., 27 So.3d 95, 96 (Fla. 1st DCA 2009). “ ‘To obtain a final summary judgment, the moving party must conclusively demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to a judgment as a matter of law.’ ” Flanigan’s Enters., Inc. v. Shoppes at 18th & Commercial, Inc., 954 So.2d 758, 764 n. 4 (Fla. 4th DCA 2007) (quoting Maldonado v. Publix Supermarkets, 939 So.2d 290 (Fla. 4th DCA 2006)).

Standing for Bankruptcy Debtors

As a Chapter 13 debtor, Aery had standing to bring this case in the circuit court.

“The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable.... ” Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006) (citing Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997)). To satisfy the standing requirement, “the plaintiff must show that a case or controversy exists between the plaintiff and the defendant.” United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So.2d 23, 25 (Fla. 3d DCA 2006) (citing Godwin v. State, 593 So.2d 211 (Fla.1992); Montgomery v. Dept. of Health Rehabilitative Servs., 468 So.2d 1014 (Fla. 1st DCA 1985)). “In its broadest sense, standing is no more than having, or representing one who has, a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So.3d 14, 16 (Fla. 4th DCA 2012) (quoting Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1182 (Fla. 3d DCA 1985)) (internal quotations omitted).

When an individual files for bankruptcy, the “[clauses of action which belong to the debtor, including employment discrimination claims,” become part of the estate property. Richardson v. United Parcel Serv., 195 B.R. 737, 739 (E.D.Mo.1996); see also McGuire v. United States, 550 F.3d 903, 914 (9th Cir.2008) (“A chose in action is property of the bankruptcy estate pursuant to 11 U.S.C. § 541(a)(1).”) (citing City & Cnty. of San Francisco v. PG & E Corp., 433 F.3d 1115, 1126 (9th Cir.2006)); Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir.2006) (“[T]he estate in bankruptcy, not the debtor, owns all pre-bankruptcy claims.... ”). As a result, where a plaintiff files for bankruptcy while a suit is pending, issues of standing inevitably will arise, since, in certain instances, suits claimed by the estate “may only be pursued by the bankruptcy Trustee,” as representative of the bankruptcy estate. Canterbury v. Federal-Mogul Ignition Co., 483 F.Supp.2d 820, 825 (S.D.Iowa 2007); Nat’l Am. Ins. Co. v. Ruppert Landscaping Co., 187 F.3d 439, 441 (4th Cir.1999).

Whether a bankruptcy debtor may pursue a lawsuit in another court depends on the chapter under which the debtor filed bankruptcy. In this regard, “Chapter 7 and Chapter 13 provide two distinct methods for an individual to cure ... indebtedness.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 2013 WL 2130939, at *5 (4th Cir.2013). “Chapter 7 establishes a much more radical solution to indebtedness, requiring the liquidation of the debtor’s property, to which end Congress granted the trustee broad powers without interference from the debtor.” Cable v. Ivy Tech State Coll., 200 F.3d 467, 472 (7th Cir.1999). In such circumstances, “[t]he trustee has sole authority to dispose of property, including managing litigation related to the estate.” Id.

Chapter 13, on the other hand, has been characterized as a “hybrid” of Chapter 7’s liquidation process and Chapter ll’s reorganization plan for business debtors. In re Griner, 240 B.R. 432, 436 (Bankr.S.D.Ala.1999). Chapter 13 bankruptcy differs from Chapter 7 in that it is

available to individuals who earn a regular income. Debtors propose a plan by which they will repay some or all of their debts through regular payments to a chapter 13 trustee. The trustee pays the sums collected to creditors according to the plan for a period of up to five years. The trustee is not involved in the daily lives of the debtors. He or she does not take possession of debtors’ nonexempt assets or monitor ordinary course usage of assets. The trustee does not receive any of the debtors’ earnings except what is paid to him or her as prescribed by the chapter 13 plan.

Id.

These differences between the degree of control given to a debtor under Chapter 7 and Chapter 13 are crucial because “an essential feature of a chapter 13 case is that the debtor retains possession of and may use all the property of his estate, including his prepetition causes of action.” Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3d Cir.1991). In other words, unlike a Chapter 7 bankruptcy, “ ‘[t]he reality of a filing under Chapter 13 is that the debtors are the true representatives of the estate and should be given broad latitude essential to control the progress of their case.’ ” Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515 (2d Cir.1998) (quoting In re Freeman, 72 B.R. 850, 854 (Bankr.E.D.Va.1987)); see also Cable, 200 F.3d at 472 (“[T]he Chapter 13 debtor has been considered analogous to Chapter 11, ... which grants the debtor full authority as representative of the estate typical of a trustee.”) (citation omitted); Smith v. Rockett, 522 F.3d 1080, 1082 n. 2 (10th Cir.2008).

Since the Chapter 13 debtor therefore “steps into the role of trustee and exercises concurrent authority to sue ... on behalf of the estate,” Cable, 200 F.3d at 473, the majority position among the federal circuit courts appears to be that Chapter 13 debtors, unlike their Chapter 7 counterparts, “are empowered to maintain suit even after a bankruptcy trustee has been appointed in their case.” Maritime Elec. Co., 959 F.2d at 1209 n. 2; see, e.g., Crosby v. Monroe Cnty., 394 F.3d 1328, 1331 n. 2 (11th Cir.2004) (“[BJecause Crosby filed under Chapter 13 of the Bankruptcy Code, he retains standing to pursue legal claims on behalf of the estate.”); Smith, 522 F.3d at 1082 (“We therefore hold that Plaintiff, as a Chapter 13 debtor, had standing to file this complaint on behalf of the bankruptcy estate.”); Cable, 200 F.3d at 472-73; Olick, 145 F.3d at 515. Finding otherwise “would frustrate the essential purpose of’ Chapter 13 by “granting] the debtor possession of the chose in action yet prohibiting] him from pursuing it for the benefit [of] the estate.” Cable, 200 F.3d at 473; see also Looney v. Hyundai Motor Mfg. Ala., LLC, 330 F.Supp.2d 1289, 1292-99 (M.D.Ala.2004) (providing detailed justification as to why Chapter 13 debtors retain standing to maintain pre-petition suits).

The trial court’s ruling that Aery lacked standing was based on two decisions that relied on Chapter 7 cases to conclude that a debtor did not have standing to pursue a pre-petition lawsuit. In Smith v. Cumulus Broadcasting, LLC, C.A., No. 4:09-cv-02885-JMC, 2011 WL 3489820, at *3 (D.S.C. Aug.8, 2011), the district court determined that it was bound by precedent which established that all bankruptcy debtors lack standing to pursue pre-petition claims. However, upon reconsideration less than a year later, the district court withdrew its previous order and clarified that it had erroneously relied upon Chapter 7 cases to resolve a Chapter 13 matter. Smith v. Cumulus Broad., LLC, No. 4:09—cv-02885-JMC, 2012 WL 1067749, at *3 (D.S.C. Mar.29, 2012).

Likewise, in Hadden v. State Farm Fire & Casualty Co., 37 So.3d 918, 919 (Fla. 5th DCA 2010), the plaintiff “filed a pro se petition for federal bankruptcy protection,” although the court did not specify the chapter. Thereafter, in finding that the plaintiff lacked standing to bring suit, the Fifth District relied upon Chapter 7 cases for the contention that the plaintiffs act of filing for bankruptcy made his lawsuit part of the “property of the bankruptcy estate subject to the trustee’s exclusive control.” Id. at 920. Thus, although not specified in the opinion, the holding of Hadden is distinguishable in that it is applicable only to Chapter 7 proceedings.

“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of ‘the legal capacity to sue subsequently on that cause of action.’ ” Potruch & Daab, LLC v. Abraham, 97 A.D.3d 646, 949 N.Y.S.2d 396, 397 (N.Y.App.Div.2012) (quoting Whelan v. Longo, 23 A.D.3d 459, 808 N.Y.S.2d 95 (N.Y.App.Div.2005)). Here, since Aery properly listed his suit against Maroone in the Schedule “B” form of his bankruptcy plan, and since he is a Chapter 13 debtor, the trial court erred in finding that he lacked standing to individually pursue the circuit court action.

Damages Under Florida’s Whistleblower Act

As codified in section 448.102, Florida’s Whistleblower Act (“FWA”) is an exception to Florida’s at-will employment doctrine, Schultz v. Tampa Elec. Co., 704 So.2d 605, 605 (Fla. 2d DCA 1997), in that it “provides employees a cause of action against employers who wrongfully discharge them for ... objecting to or refusing to participate in the employer’s illegal practices.” Vanacore v. UNC Ardco Inc., 697 So.2d 892, 893 (Fla. 4th DCA 1997) (citations omitted). As a statute that serves a remedial purpose, the FWA “should be construed liberally in favor of granting access to the remedy so as not to frustrate the legislative intent.” Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1132 (Fla. 4th DCA 2003). Moreover, due to similarities in application, the Eleventh Circuit has recognized that “retaliation claims under the [FWA] are analyzed in the same manner as Title VII retaliation claims.” U.S. ex rel. Vargas v. Lackmann Food Serv., Inc., 510 F.Supp.2d 957, 968 (M.D.Fla.2007) (citing Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950-51 (11th Cir.2000)).

When a plaintiff prevails on a private-sector FWA claim, “the court may order relief’ in the form of, inter alia, “[c]ompensation for lost wages, benefits, and other remuneration” and “[a]ny other compensatory damages allowable at law.” § 448.103(2)(d)-(e), Fla. Stat. (2005). The plain and unambiguous language of section 448.103(2)(e) “authorizes the court to award compensatory damages” without limitation to mere “economic damages,” since any other interpretation “would render the catch-all provision of subsection (e) meaningless.” Wood v. Cellco P’ship, No. 8:06-CV-687-T-27TBM, 2007 WL 917300, at *5 (M.D.Fla. Mar.23, 2007). As a result, given the FWA’s liberal construction, damages in the form of emotional distress are recoverable under section 448.103(2)(e) as a form of compensatory damage. Cf. Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla.1990) (explaining, within the context of the worker’s compensation anti-retaliation provision, that wrongful discharge suits sound in intentional tort, making “damages for emotional distress ... recoverable”). Thus, even if Aery were not entitled to lost wages, his suit still could proceed on the theory that the wrongful discharge caused him mental anguish.

Judicial Estoppel

In ruling upon Maroone’s motion for summary judgment, the trial court found Aery to be judicially estopped from recovering the lost wages that accrued after May 25, 2005, since, on that date, he successfully attained social security benefits on the strength of his statements affirming his total disability. Assuming that the obtaining of social security disability benefits could be a basis for judicial estop-pel in this case, that doctrine has no application since Aery has not taken conflicting positions — he contends that Maroone’s statutory violation caused his total disability-

As this Court has previously explained, Florida’s general rule of judicial estoppel can be stated as follows:

A claim or position successfully maintained in a former action or judicial proceeding bars a party from making a completely inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial proceeding, to the prejudice of the adverse party, where the parties are the same in both actions, subject to the “special fairness and policy considerations” exception to the mutuality of parties requirement.

Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005) (footnotes omitted). The purpose of judicial estoppel is “to ‘preserve[ ] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.’ ” Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998) (quoting Teledyne Indus., Inc. v. N.L.R.B., 911 F.2d 1214, 1218 (6th Cir.1990)).

By way of illustration, in Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061, 1063 (Fla.2001), the plaintiff sued an insurance company under the theory of promissory estoppel for representations made to him by the insurer’s agent regarding his policy’s coverage. After he received what he perceived to be an insufficient $25,000 jury verdict following trial, the plaintiff dismissed his claim with prejudice before judgment was entered. Id. With his previous claim dismissed, the plaintiff then brought a separate suit, this time claiming, contrary to his previous suit, that the insurer’s agent had negligently failed to procure any insurance coverage. Id. Under such circumstances, the Supreme Court held that the plaintiff was barred from making the latter argument since he was “attempting ‘to make a mockery out of justice’ by asserting inconsistent positions,” claiming existence of coverage in one case and its non-existence in the other. Id. at 1066.

Here, unlike the plaintiff in Blumberg, Aery has not taken a position in this case that entirely conflicts with the position he took to obtain social security disability benefits. The gravamen of Aery’s claim for future lost wages is based not on his ability to work, but on the allegation that Maroone’s alleged violation of FWA caused his total disability, forcing him to receive less pay than he would have received had the violation not occurred. Nothing about this contention conflicts with his position in the social security proceeding that he was totally disabled. While the causal link between the firing and the alleged disability is tenuous, there is an issue of fact sufficient to avoid partial summary judgment.

Duty to Mitigate

As a separate ground for granting summary judgment, the trial court found that Aery would not be entitled to lost wages after May 25, 2005, the date he applied for disability benefits, since he failed to mitigate his damages by retiring and not seeking equivalent employment. If Maroone’s alleged FWA violation caused Aery’s disability and resulting inability to work, Aery’s duty to mitigate damages by finding other employment would be discharged.

A court’s purpose in awarding lost wages is to “make the plaintiff ‘whole,’ to restore the plaintiff to the economic position the plaintiff would have occupied but for the illegal [acts] of the employer.” Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir.1988). As an equitable award, such damages will typically consist of either back pay, front pay, or both. See Hudson v. Chertoff 473 F.Supp.2d 1292, 1299 (S.D.Fla.2007) (quoting Szedlock v. Tenet, 139 F.Supp.2d 725, 733 (E.D.Va.2001)).

In awarding back pay, “the trial court must determine what the employee would have earned had she not been the victim ..., and must subtract from th[at] figure the amount of actual interim earnings.” E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F.Supp.2d 1364, 1378 (S.D.Fla.1998). Front pay, on the other hand, “is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001). While reinstatement, when feasible, is typically “the preferred remedy” for a wrongful firing, Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346 (9th Cir.1987), front pay may be applied where “ ‘reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result’ ” of the firing. Haines City HMA, Inc. v. Carter, 948 So.2d 904, 905 n. 2 (Fla. 2d DCA 2007) (quoting Pollard, 532 U.S. at 846, 121 S.Ct. 1946) (emphasis added).

In seeking back or front pay, the plaintiff “must mitigate her damages by seeking employment ‘substantially equivalent’ to the position [from which] she was” terminated. Reiner v. Family Ford, Inc., 146 F.Supp.2d 1279, 1287 (M.D.Fla.2001) (quoting Joe’s Stone Crab, 15 F.Supp.2d at 1378) (internal quotations omitted); Szedlock, 139 F.Supp.2d at 733-34 (“While a Title VII plaintiff is generally entitled to back pay ‘as a matter of course,’ the right of a plaintiff to claim back pay is limited by a claimant’s statutory duty to mitigate the employee’s damages.” (footnote omitted)). However, the defendant/employer “bears the burden to allege and prove that the plaintiff failed in that regard,” Pennsylvania State Police v. Suders, 542 U.S. 129, 152, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), and the failure to mitigate will be used only to “limit the amount of ... pay available.” Castle, 837 F.2d at 1562 (emphasis added). Moreover, “[t]he employer must show that the claimant failed to exercise ‘reasonable diligence to locate other suitable employment and [or] maintain a suitable job once it is located.’” Richardson v. Tricorn Pictures & Prods., Inc., 334 F.Supp.2d 1303, 1310 (S.D.Fla.2004) (quoting Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1179 (N.D.Iowa 2003)).

Under this doctrine, “[c]ourts have generally excluded periods of unavailability, such as periods of disability, from computation of [front or] back pay awards,” since holding otherwise would provide the plaintiff with a windfall. Sowers v. Kemira, Inc., 701 F.Supp. 809, 826 (S.D.Ga.1988). However, where “the disability would not have occurred but for the employer’s” act, “[a] different rule is justified.” Id.; see, e.g., Arnold v. City of Seminole, 614 F.Supp. 853, 871, 873 (E.D.Okla.1985) (finding front and back pay to be warranted where the eom-plained-of sexual harassment caused the plaintiff to endure psychological disability). Under those circumstances, the claimant may be entitled to lost wages “where the defendant’s ... conduct caused the disability,” since holding otherwise would allow an employer to get off the hook for forcing the plaintiff out of the job market. Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 794 (11th Cir.1999); see, e.g., Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir.1999) (finding that a trial court did not abuse its discretion in ordering front pay instead of reinstatement where “[t]he evidence supported] the district court’s finding that [the plaintiffs] medical and psychological condition, by making her ‘unable to work for Amtrak’ and ‘preventing] her from obtaining employment in another field of work,’ would make reinstatement impossible”).

In this case, despite struggling through a period of depression, Aery obtained similar employment in Leesburg, Florida. After he was fired for what he believed to be another unjustified reason, Aery contends that he lost the ability to work and sought the only form of income he could acquire — disability benefits. Aery cannot be required to mitigate his damages by working if his disability and inability to work were caused by Ma-roone’s alleged FWA violation. Because there are disputed issues of fact, summary judgment was inappropriate on the issue of mitigation of damages in this case.

Failure to State a Cause of Action

Although not addressed in the trial court’s order, Maroone argues on appeal that the third amended complaint failed to state a cause of action under the FWA since Aery did not specifically tell his supervisor what laws the body shop manager allegedly was breaking.

To establish a prima facie case under the FWA, Aery was required to show “1) that [ ]he objected to or refused to participate in any illegal activity, policy or practice of [Maroone]; 2)[ ]he suffered an adverse employment action; and 3) the adverse employment action was causally linked to h[is] objection or refusal.” Gleason v. Roche Labs., Inc., 745 F.Supp.2d 1262, 1270 (M.D.Fla.2010). “Once the pri-ma facie case is established, the employer must proffer a legitimate, non-retaliatory reason for the adverse employment action.” Rice-Lamar, 853 So.2d at 1133 (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)). Thereafter, “[t]he plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.” Id.

To satisfy the first prong of the above-mentioned standard, Aery was required to show that he ‘“objected to or refused to participate in (i) an illegal activity, policy, or practice of an employer, (ii) illegal activity of anyone acting within the legitimate scope of their employment, or (iii) illegal activity of an employee that has been ratified by the employer.’ ” Pinder v. Bahamasair Holdings Ltd., Inc., 661 F.Supp.2d 1348, 1351 (S.D.Fla.2009) (quoting McIntyre v. Delhaize Am., Inc., No. 8:07-CV-2370-T-30TB M, 2009 WL 1039557, at *3 (M.D.Fla. Apr.17, 2009)). In meeting this standard, however, all that is required is that the “employee have a good faith, objectively reasonable belief that h[is] activity is protected by the statute.” Luna v. Walgreen Co., 575 F.Supp.2d 1326, 1343 (S.D.Fla.2008). Here, in the light most favorable to the non-moving party, the evidence shows that Aery observed the body shop manager commit acts which, if true, appear to be illegal, and which Aery could have reasonably believed were illegal. By immediately and repeatedly reporting this matter to his superiors and describing these acts as “against the law,” Aery created a sufficient prima facie showing to satisfy this requirement. It was not necessary that Aery provide his employer with statutory and case law citations to support his claim of illegal conduct.

We do not address the “temporal proximity”/causation issue raised by Maroone because it was not raised in the circuit court.

Reversed and remanded.

WARNER and FORST, JJ., concur.

      . Maroone is now AutoNation.

      . Neither party has briefed the issue of whether a claim for disability benefits constitutes a "former action or judicial proceeding” for the purposes of judicial estoppel. We therefore do not address the merits of the issue. See Hagood v. Wells Fargo N.A., 112 So.3d 770, 771 n. 2 (Fla. 5th DCA 2013). Nonetheless, we note that in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 797, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), the United States Supreme Court held, in the context of Americans with Disabilities Act claims, that the "pursuit, and receipt, of [Social Security Disability Insurance] benefits does not automatically estop the recipient from pursuing an ADA claim.” However, to survive a defendant's motion for summary judgment, "an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work” but "must explain why that SSDI contention is consistent with her ADA claim.” Id.; see also Smith v. Avatar Props., Inc., 714 So.2d 1103, 1108 (Fla. 5th DCA 1998) ("[T]he determination of whether an individual who has certified total disability to the Social Security Administration is judicially estopped from later bringing a claim under the [Florida Civil Rights Act or] ADA will depend upon the facts of the case, including the specific statements made in the application for disability benefits and other relevant evident in the record.” (citations omitted)).


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Rolando MOYA, Appellant, v. Mildred MOYA n/k/a Mildred Lazo, Appellee.
    No. 3D12-1471.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Rolando Moya, in proper person.
    Mildred Moya, n/k/a Mildred Lazo, in proper person.
    Before WELLS, SUAREZ and LAGOA, JJ.
   WELLS, Judge.

The former husband appeals from an order: (1) finding him in contempt for intentionally frustrating a prior court order regarding parental timesharing between the parents and ordering make-up time sharing for the former wife as a sanction; and (2) awarding fees and costs as a sanction for his contemptuous behavior. We find no merit in the claim regarding parental timesharing, however we reverse and remand the fees order because the record does not demonstrate compliance with section 61.16, Florida Statutes (2012) , or with Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). As Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997) (emphasis added), explains:

Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

Accord Dybalski v. Dybalski, 108 So.3d 736, 738 (Fla. 5th DCA 2013).

Additionally, Tullos v. Tullos, 37 So.3d 355, 357 (Fla. 2d DCA 2010), citing Rowe, explains:

[I]n computing an attorney fee, the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2) [“the lodestar amount”]; and, when appropriate, (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims.
Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151-52 (Fla.1985); Lanham v. Lanham, 528 So.2d 80, 80 (Fla. 2d DCA 1988). Further, in dissolution actions under section 61.16, Florida Statutes (2008), the trial court must exercise its discretion “to provide justice and ensure equity between the parties.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).
After determining the lodestar amount, the trial court must consider the parties’ respective financial resources and then assess other relevant circumstances including the scope and history of the litigation, its duration, the merits of the respective positions, whether the parties bring or maintain the litigation primarily to harass or present a defense mainly to frustrate or stall, and the existence and course of prior or pending litigation. Id.

Accord Campbell v. Campbell, 46 So.3d 1221, 1222-23 (Fla. 4th DCA 2010) (“The law is ‘well established that the trial court must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors.’ Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990) ... Where there is nothing in the trial court’s order that allows the appellate court to discern whether any of the above factors were considered in determining a reasonable attorney’s fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper and an abuse of discretion.”).

Also, “the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct.” Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002); see Pietras v. Pietras, 842 So.2d 956, 962-63 (Fla. 4th DCA 2003) (concluding that as to fees imposed as a sanction for “litigious behavior,” such awards must be based on the “additional work” that results from that behavior); see also Heiny v. Heiny, 113 So.3d 897, 897 (Fla. 2d DCA 2013) (“[A]fter finding that the husband engaged in misconduct, the trial court was required to apportion the wife’s award of fees based on the additional work caused by the husband’s misconduct.”).

Here, the record makes brief mention of the former wife’s financial position but makes no reference to the former husband’s financial resources. The record reflects no consideration of the hours the former wife’s counsel spent on the matter or his hourly rate, and fails to demonstrate any “apportion[ment].” Pietras, 842 So.2d at 963. The trial judge asked the former wife’s counsel how much he was due and the trial judge simply ordered the former husband to pay that amount. For these reasons, that part of the order under review requiring the former husband to pay the former wife’s fees cannot stand.

Accordingly, the order under review is affirmed in part, reversed in part, and remanded for compliance with section 61.16, Rosen, Rowe, and Pietras.

      . Section 61.16, Florida Statutes (2012), provides:
      (1) 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, including enforcement and modification proceedings and appeals.


author: DAMOORGIAN, C.J.

text:
    Yolene ELISIAS, Appellant, v. GEICO GENERAL INSURANCE CO. and Promene Charles, Appellees.
    No. 4D11-4461.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.
    Ronald D. Rodman of Friedman, Rod-man & Frank, P.A., and Pamela Beckham of Beckham & Beckham, P.A., Miami, for appellant.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee GEICO General Insurance Co.
   DAMOORGIAN, C.J.

This appeal arose out of a declaratory action to determine coverage under a bodily injury insurance policy issued by Geico General Insurance Co. (“GEICO”). GEI-CO initiated the declaratory action after Appellant, Yolene Elisias, filed a personal injury suit against its insured. The declaratory action was filed in the circuit court where the personal injury action was also filed. After determining that the GEICO policy did not cover Elisias, the trial court entered a final declaratory judgment in GEICO’s favor. Elisias appeals the declaratory judgment, raising two issues. First, Elisias argues that the trial court improperly concluded that she met the definition of an “insured” under the policy and, therefore, was excluded from coverage. Second, Elisias argues that the circuit court lacked subject matter jurisdiction because the amount in controversy was based upon the policy limit which was $10,000.00. We affirm.

As to the issue of coverage, we hold without further discussion that the trial court correctly determined that Elisias was excluded from coverage under the terms of the policy.

Turning to the issue of the trial court’s subject matter jurisdiction, Elisias argues that the amount in controversy is under the $15,000.00 threshold required to invoke the jurisdiction of the circuit court. § 34.01(l)(c), Fla. Stat. (2010) (the county court has exclusive jurisdiction over a claim that “does not exceed the sum of $15,000, exclusive of interest, costs, and attorney’s fees”). In reaching this conclusion, Elisias relies upon the undisputed fact that the GEICO insurance policy had a $10,000 limit, and cites to United Automobile Ins. Co. v. Kendall S. Med. Center, 54 So.3d 543 (Fla. 3d DCA 2011). GEICO counters that the cost of providing its insured with a defense in the underlying personal injury suit was also at issue in the declaratory action. By including this cost, the amount in controversy exceeded the $15,000 jurisdictional threshold.

Elisias’ reliance on United Automobile is misplaced. There, the appellate court held that the circuit court did not have subject matter jurisdiction to determine whether medical providers were required to mediate a PIP claim before filing a breach of contract action against the insurer since the maximum liability the insurer faced under the PIP policy was less than $15,000. Id. at 544. There was no underlying suit against the insured implicating the insurer’s contractual duty to tender a defense. Id. Thus, United Automobile is not instructive as the court did not consider whether the cost of tendering a defense could be included in the amount in controversy for jurisdictional purposes. Id. Indeed, no Florida court has considered this issue. However, federal courts have addressed the matter, and we find guidance in those cases.

In Stonewall Ins. Co. v. Lopez, 544 F.2d 198, (5th Cir.1976), the Fifth Circuit, applying federal jurisdiction statutes, noted that in a declaratory coverage action, the amount in controversy is determined from the insurer’s perspective. Id. at 198. Thus, it held that “[t]he pecuniary value of the obligation to defend the separate lawsuit is properly considered in determining the existence of the jurisdictional amount.” Id. at 199. The Federal District Courts for the Middle and Southern Districts of Florida held the same in Dairyland Ins. Co. v. Chadwick, 2008 WL 912428, *3 (M.D.Fla. April 1, 2008), and Clarendon America Ins. Co. v. Miami River Club, Inc., 417 F.Supp.2d 1309, 1316 (S.D.Fla.2006), respectively.

Adopting the Fifth Circuit Court’s reasoning in Stonewall, we hold that the pecuniary value of an insurer’s obligation to tender a defense to its insured in the underlying suit implicating the coverage issue is properly considered in determining the existence of the jurisdictional amount in an action to determine coverage.

Affirmed.

CIKLIN and CONNER, JJ., concur.


author: PER CURIAM.

text:
    Agustin BUSTAMANTE, Appellant, v. AMBER CONSTRUCTION COMPANY and American Interstate Insurance Company, Appellees.
    No. 1D13-1118.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2013.
    James R. Parris, Jacksonville, for Appellant.
    Edward T. LeFever of Edward T. Le-Fever, P.A., Ocala, for Appellees.
   PER CURIAM.

We have for review an order of the Judge of Compensation Claims (JCC) that finds the Employer/Carrier timely authorized a change in Claimant’s authorized treating physician following Claimant’s request for a one-time change pursuant to section 440.13(2)(f), Florida Statutes (2011). For the following reasons, we reverse the order.

Claimant’s attorney e-mailed a request for a one-time change to the adjuster on September 25, 2012. On September 26, the adjuster responded and advised that he would “send notes to the Orthopaedic Institute to see if one of their orthopedics will assume treatment.” On September 28, the adjuster faxed a letter to Jacksonville Orthopaedic Institute, sending Claimant’s medical records, and advising the Institute it was authorized to “evaluate and treat” Claimant and asking that “one of your physicians review the attached medical notes and schedule an appointment” for Claimant. It is undisputed that neither Claimant nor his attorney was sent a copy of that fax.

Thereafter, on October 5, the adjuster emailed Claimant’s attorney advising that an appointment was scheduled with Dr. Kaplan on October 19. Claimant’s attorney replied that when the adjuster did not respond to the request within five days, he had referred Claimant to a physician. Following consideration of this issue— whether the Employer/Carrier timely responded to Claimant’s request — at an expedited hearing, the JCC determined Dr. Kaplan to be the “appropriate authorized treating physician as the Employer/Carrier complied with the statutory provision of F.S. § 440.13(2)(f) in authorizing the alternative physician within five (5) days.” The JCC based this conclusion on his finding that the Employer/Carrier “actually authorized a change of physician to Dr. Kap-lan with JOI when it faxed its letter of authorization to that provider on September 28, 2012.”

The JCC’s conclusion that Dr. Kaplan was authorized via the September 28 fax lacks record support as the adjuster testified he did not know on September 28 whether the Jacksonville Orthopaedic Institute would agree to undertake Claimant’s treatment. Because Claimant was not informed of the name of a specific physician until October 5, the JCC further erred in his interpretation of the relevant statutory language requiring that an employee be “granted” a change.

We have previously addressed this issue. In Harrell v. Citrus County School Board, 25 So.3d 675, 676 (Fla. 1st DCA 2010), we reversed the JCC’s determination that the employer/carrier timely authorized a onetime change when it sent a response to the claimant that simply agreed that a change would be provided and advised that it was in the process of scheduling an appointment. “Based on the plain reading of the statute, an E/C is required, however, to authorize at least one specific physician within five days of a claimant’s request.” Id. at 678.

Additional support is found in HMSHost Corp. v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012). This court reversed the JCC’s finding that the E/C had not timely authorized a change in physician. Id. “The E/C’s informing Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor.” Id. Frederic represents the flip side of the situation here. In Frederic, the claimant was notified but not the doctor. Id. Here, Jacksonville Ortho-paedic Institute was notified but Claimant was not. The situations are not, however, equal. In Frederic, because the claimant knew the doctor’s name, she had the ability to follow up if she heard nothing. On the other hand, here, Claimant had no way to follow up as he was not provided a name.

Because competent substantial evidence does not support the JCC’s finding that the E/C “actually authorized a change of physician to Dr. Kaplan with Jacksonville Orthopaedic Institute when it faxed its letter of authorization to that provider on September 28, 2012,” and the JCC erred in determining that unilateral notice to Jacksonville Orthopaedic Institute was sufficient to comply with section 440.13(2)(f), the JCC abused his discretion in naming Dr. Kaplan as the authorized treating physician. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (“The role of this court must be to guard against fanciful or arbitrary abuse of discretion in workers’ compensation cases, and we will continue to do so by scrutinizing JCC findings under the lift of the basic rule requiring competent substantial evidence in support of such findings.”). Accordingly, the February 7, 2013, order is REVERSED, and this matter is REMANDED for entry of an order recognizing Dr. Joseph as Claimant’s onetime change in treating physicians.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ„ concur.


text:
    Carl M. SCHWAGLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5558.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2013.
    Carl M. Schwagler, pro se.
   PER CURIAM.

Carl M. Schwagler appeals the summary dismissal of his pro se motion for postcon-viction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court’s order and remand for further proceedings.

On February 12, 2007, Schwagler entered an open plea to one count of armed burglary, one count of kidnapping, and one count of attempted robbery. On April 23, 2007, the court sentenced him to concurrent terms of fifteen years’ imprisonment. Schwagler did not file a direct appeal, instead allegedly retaining counsel to file a postconviction motion. On August 31, 2009, Schwagler, through counsel, filed his first motion for postconviction relief pursuant to rule 3.850. One month later, counsel filed an amended motion. On November 4, 2011, the postconviction court dismissed both motions as untimely because they were filed beyond the rule 3.850(b) two-year time limit. On May 30, 2012, Schwagler subsequently filed the current pro se rule 3.850 motion, which the postconviction court again dismissed as untimely, finding that the exception to the two-year time limit provided in rule 3.850(b)(3) did not apply.

Under rule 3.850(b)(3), an otherwise untimely rule 3.850 motion may be considered on the merits if “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.” Schwa-gler allegedly obtained counsel to file for postconviction relief, and he has provided a record of payments made to counsel dating back to March 16, 2009. As the initial two-year rule 3.850 time limit expired in May of 2009, this would have provided counsel with approximately two months to file a timely motion. Counsel’s first motion, filed in August of 2009, was therefore properly dismissed as untimely. After this dismissal, Schwagler filed the current pro se motion, relying upon rule 3.850(b)(3) as an exception to its untimeliness. Indeed, “[r]ule 3.850(b)(3) was adopted in order to deal with the exact situation asserted by the defendant in this case.” Sanchez v. State, 848 So.2d 1253, 1254 (Fla. 3d DCA 2003).

Although Schwagler’s potential entitlement to consideration on the merits appears evident, on June 23, 2011, the following limitation was added to rule 3.850(b)(3): “A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.” See In re Amendments to Fla. Rules of Criminal Procedure 3.850 & 3.851, 72 So.3d 735, 736 (Fla.2011). Relying on this amendment— which took effect on July 1, 2011, while Schwagler’s first motion was pending — the court specifically found that his current motion filed on May 30, 2012, was untimely even under the 3.850(b)(3) exception. However, as pointed out by Schwagler in his motion for rehearing, the court did not rule upon his counsel-filed motion until November 4, 2011, over two years after its filing. Notably, the extra two-year limitation recently added to rule 3.850(b)(3) lapsed on May 23, 2011, while that motion was still pending.

In the context of a civil appeal, this court has held that to deny relief to a party who has lost a right “as a result of action attributable to the trial court would be inconsistent with due process of law.” David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280-81 (Fla. 2d DCA 2008). This principle should apply equally to this case. Accordingly, we reverse the postconviction court’s dismissal and remand for further proceedings consistent with Steele v. Kehoe, 747 So.2d 931 (Fla.1999).

Reversed and remanded.

DAVIS, C.J., and CASANUEVA and CRENSHAW, JJ., Concur.


author: LaROSE, Judge.

text:
    In the Interest of R.C., a child. D.C.; Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D13-564.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2013.

      Scott L. Robbins, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Meredith Hall, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   LaROSE, Judge.

D.C. appeals the trial court’s order placing his son, R.C., in a permanent guardianship. We have jurisdiction. See Fla. R.App. P. 9.146. Because the trial court’s order contained insufficient factual findings to permit a permanent guardianship, we reverse and remand for further proceedings.

In determining whether a trial court erred in placing a child in a permanent guardianship and terminating protective supervision by the Department of Children & Family Services (DCF), we look at whether the trial court considered and applied the factors set forth in the permanent guardianship statute. I.Z. v. Dep’t of Children & Families, 967 So.2d 425, 427 (Fla. 4th DCA 2007). Section 39.6221, Florida Statutes (2012), lists the factors that the trial court must consider in determining that reunification or adoption is not in the best interest of the child and that a permanent guardianship is appropriate.

The order before us states generally that “[t]he parents are not fit to care for the child and reunification is not possible because of the circumstances from which the court previously based its finding that the child is dependent in the order of adjudication.” The trial court also referenced that D.C. had not completed his case plan. This is inadequate. Section 39.6221(2)(a) allows the trial court to refer to specific findings of fact made in the dependency order or to make separate findings of fact. The order does neither. A general reference to the dependency findings does not satisfy the statute. See J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009) (citing C.A. v. Dep’t of Children & Families, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008)); see also M.G. v. Dep’t of Children & Family Servs., 86 So.3d 1149, 1150 (Fla. 3d DCA 2012); R.T. v. Dep’t of Children & Families, 27 So.3d 195, 196 (Fla. 5th DCA 2010). Further, the reference to D.C.’s failure to complete a case plan would not be sufficient, by itself, to support a permanent guardianship placement. See J.S., 18 So.3d at 714. On remand, the trial court should reconsider whether DCF presented sufficient evidence to support the permanent guardianship. Id.

D.C. also argues that the trial court’s visitation provision is nonspecific and runs afoul of statutory requirements. We have held that a nonspecific visitation requirement does not comply with section 39.6221(2)(c). See S.W-R. v. Dep’t of Children & Family Sens., 64 So.3d 1283, 1284 (Fla. 2d DCA 2011) (holding that visitation cannot be left to the discretion of either of the parties). Here, the trial court ordered visitation as to D.C. be supervised at all times by the child’s therapist, the permanent guardian, or an adult approved by DCF. The visitation “shall occur on a schedule agreed by the parties and at a place agreed to by the parties.... Once recommended by the therapist, the visitation shall be supervised visitation at a minimum of once a month for a minimum of one hour.” This portion of the order does not necessarily violate section 39.6221(2)(c). However, because we are reversing the order placing the child in permanent guardianship, D.C. may seek to revisit this matter in the trial court.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


text:
    Tanisha ROEBUCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1061.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2013.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Tanisha Roebuck, was convicted of resisting an officer with violence and resisting an officer without violence. She appeals claiming a double jeopardy violation. We agree. The acts giving rise to both convictions involved the same officer and occurred during the same incident as part of one criminal episode with no temporal break. See Davila v. State, 98 So.3d 122 (Fla. 5th DCA 2012). Therefore, we reverse the conviction for resisting an officer without violence.

REVERSE and REMAND.

SAWAYA, PALMER and EVANDER, JJ., concur.


author: WALLIS, J.

text:
    Octavio MINAYA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1609.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2013.

      Octavio Minaya, Sanford, Pro se.
    No Appearance for Respondent.
   WALLIS, J.

Petitioner seeks a writ of prohibition ordering the disqualification of the trial judge presiding over the lower proceedings after the judge denied Petitioner’s motion for disqualification as legally insufficient. We grant relief.

Petitioner was charged with various criminal offenses. During a pretrial conference, Petitioner’s trial counsel, Helen N. Silva, requested a continuance to consult with an immigration attorney regarding the potential deportation consequences of accepting the State’s plea offer. Part of the exchange between the.judge and Ms. Silva was as follows:

MS. SILVA: What I have is a new offer. What I have is a client asking me to allow him enough time to consult with not only an immigration attorney, because he’s out of custody and he’s not understanding the whole immigration consequence and I believe he should have a right to do that, and I have a client who’s asking me—
THE COURT: How complicated is it? If he pleads, he’s going to get two years, and then he’s going to be deported from the country. I mean, have I got to hire a scientist to do that? Maybe I got to get Einstein to figure that one out?

After the judge confirmed that Petitioner understood the specific plea offer, the record inquiry escalated as follows:

THE COURT: Does he understand what the offer is?
[PETITIONER]: [Through the Interpreter] I understand the offer.
THE COURT: And he wishes to maintain his not-guilty plea and go to trial? [PETITIONER]: Can I ask a question to my attorney?
THE COURT: I guess so.
MS. SILVA: Your Honor, at this point, if I annoy this Court so much, I am asking this Court to allow me—
THE COURT: Do not point your finger at me. Don’t point your finger at me, and don’t raise your voice to me. This is real simple. I want to make sure that he’s making the decision, that the attorney’s not forcing him, so if it goes highly wrong for him and he winds up in DOC for a significant period of time he’s not blaming you because he made the decision, so he’s aware of the offer, and he’s making the decision, the attorney is not forcing him to go to trial.
MS. SILVA: Your Honor, I’m going to ask the Court to allow me to put in writing a motion to request of this Court to disqualify yourself.
THE COURT: Denied. Thank you. Take it up with the—
MS. SILVA: I still have a rights
THE COURT: Take it up with the appeals court. Yeah, you can file a written motion; it’s denied.
MS. SILVA: — to file that motion in writing.
THE COURT: Thank you.
MS. SILVA: And you’ve already prejudged the motion before I even filed it.
THE COURT: That’s right, because I’ve been sitting here and I’ve watching the whole thing. You’re running — I’m running this court, not you. Thank you.

The hearing concluded with the following exchange:

THE COURT: Thank you. He needs to be here on the morning of March 22 at 8:30. If he’s one minute—
[PETITIONER]: But you’re not giving me a chance to find another attorney. I told — I said that I wanted another attorney.
[In English] He’s not giving me the chance.
THE COURT: Then why did we have him here today?
MS. CRUMPLER: Because you — because he did not show up at pretrials and you asked him to be here today.
THE COURT: All right. He needs to be here for the next pretrial. We’ll put his trial on April 22nd at 8:30. Should he fail to appear, there’s a capias with no-bond status.

Thereafter, Petitioner filed a motion to disqualify the judge, alleging prior unsavory interactions between Ms. Silva and the judge. The motion specifically alleged:

Judge Law has expressed discontent with Ms. Silva before, he has expressed discontent in the choice of filings when he questioned the filing of an annulment as opposed to a dissolution of marriage in a case where Ms. Silva’s client discovered that his wife was still married to another. Judge Law followed her to the lobby of his chamber and yelled that he was going to report her to the Florida Bar.

More importantly, the motion referred to the judge’s prejudgment on Petitioner’s motion to disqualify, which occurred during the pretrial conference. Petitioner attached two affidavits in support of his motion. Petitioner’s own affidavit stated, in part: “I feel that the Judge is not going to be fare [sic] to me because he don’t [sic] like my lawyer and me. At least with a different judge I can have a fare [sic] chance.” The second affidavit was from Amy Bueknell, who was present at the pretrial conference. Ms. Bucknell’s affidavit provided as follows:

I feel that at this point, the way Judge Law was acting towards Mrs. Silva and this case, [Petitioner] will not have a fair unbiased chance. Judge Law made me feel like he already judged [Petitioner] guilty. I feel that Judge Law has violated [Petitioner's rights to a fair trial and legal representation. I have never been so shocked and appalled to see a judge act that way in a courtroom. When I was getting up to leave the courtroom, even the other people sitting in the courtroom had looks of surprise and shock on their faces.[]

The judge subsequently denied the motion as legally insufficient.

“Prohibition lies to review trial court orders denying motions to disqualify trial judges.” Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001). This Court reviews an order denying a motion to disqualify under the de novo standard. Gore v. State, 964 So.2d 1257, 1268 (Fla.2007). A motion to disqualify must show that “ ‘the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge’; or that the judge is either an interested party to the matter, related to an interested party, related to counsel, or ‘is a material witness for or against one of the parties to the cause.’” Id. (quoting Fla. R. Jud. Admin. 2.330(d)). A motion to disqualify is legally sufficient if the facts alleged — presumed as true and considered objectively — would reasonably cause a defendant to have a well-founded fear that he or she would not receive a fair trial or hearing before the presiding judge. Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001); see also Gore, 964 So.2d at 1268. A defendant’s subjective fear, alone, is insufficient to support disqualification. Shuler, 791 So.2d at 1215.

Although a judge may form mental impressions and opinions during the course of hearing evidence, he or she may not prejudge the case. Wargo v. Wargo, 669 So.2d 1123, 1124-25 (Fla. 4th DCA 1996) (citing Brown v. Pate, 577 So.2d 645, 647 (Fla. 1st DCA 1991)); accord Barnett v. Barnett, 727 So.2d 311, 312 (Fla. 2d DCA 1999) (“While it is well-settled that a judge may form mental impressions and opinions during the course of hearing evidence, he or she may not prejudge the case.”). In Petitioner’s case, the judge’s immediate denial of the ore tenus motion for disqualification — based entirely upon counsel’s request for an opportunity to file such motion in the future — crossed the line from simply forming mental impressions to prejudging the legal sufficiency of the motion to disqualify. As such, Petitioner had an objectively reasonable, well-founded fear of not receiving a fair hearing or trial before the current judge. Accordingly, we grant the petition for writ of prohibition.

PETITION FOR WRIT OF PROHIBITION GRANTED.

TORPY, C.J. and COHEN, J., concur.

      . The record does not indicate the nature of Ms. Bucknell's relationship to the proceedings.


text:
    Carlos BODOY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2218.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2013.
    Carlos Bodoy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    Jacoby ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4193.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2013.
    Sheila Callahan and Melissa Joy Ford, Assistant Regional Conflict Counsels, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

In this Anders appeal, Appellant challenges the imposition of certain costs. Because Appellant knowingly and voluntarily entered into a plea agreement that specifically called for these costs, we affirm the trial court’s denial of Appellant’s motion to correct his sentence. See Fla. R.Crim. P. 3.800(b)(2).

Appellant was charged with four counts, including the second degree felony of fleeing or attempt to elude a law enforcement officer. Pursuant to a negotiated plea agreement, he was adjudicated guilty of the four charges and was sentenced to serve sixty-days in jail (with credit for fifty-eight days time served) followed by thirty-six months of probation; he was also ordered to pay restitution. As an additional part of the negotiated plea agreement, Appellant agreed to “Court Costs $1522.50,” “P.D. Fee $50,” “P.D. LAD $100,” and “Cost of Prosecution $100.” At sentencing, the court accepted the plea and orally ordered “the $1,552.50 fine and court costs, $100 cost of prosecution, $100 legal assistance lien and $50 P.D. Application Fee.” Further, provided that Appellant made the required restitution payments, the court waived “costs of supervision.”

The corresponding written judgment and order of probation do not, however, specify the particular costs which comprise the total $1552.50 “court costs.” Instead, the court docket report is the only document which lists some of the costs. Further, each of the three documents contains language that waives “costs of supervision, fee’s [sic] and surcharges as long as” restitution payments are made.

In his motion to correct his sentence, under rule 3.800(b)(2), Appellant asserted the trial court erred by not orally pronouncing each individual discretionary cost comprising “court costs.” See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). Appellant also contended the public defender lien was improperly assessed as the trial court did not notify Appellant he could contest the lien amount. McCarthan v. State, 91 So.3d 268, 269 (Fla. 1st DCA 2012). Appellant, through Anders counsel, presents the same arguments here. His arguments are unavailing.

Appellant entered into a valid and binding contract through his negotiated plea. State v. LaFave, 113 So.3d 31, 38 (Fla. 2d DCA 2012) (stating a negotiated plea agreement is a contract). Through this contract, he negotiated the parameters of his sentence and punishment, which he is permitted to do. See Costin v. State, 46 So.3d 96, 97 (Fla. 1st DCA 2010) (citing Carson v. State, 37 So.3d 884, 887-88 (Fla. 1st DCA 2010) (drug-offender probation can be agreed to); Allen v. State, 642 So.2d 815, 816 (Fla. 1st DCA 1994) (reimbursement of medical expenses can be agreed to)).

Here, Appellant knowingly and voluntarily signed and entered into a negotiated agreement; he also obtained the enormous benefit of his negotiated agreement by way of a comparatively brief jail and probation sentence. The record does not indicate otherwise and Appellant does not contend anything less. Accordingly, we will not permit Appellant to reap the rewards of his bargained-for exchange yet relieve him of all his corresponding duties. See LaFave, 113 So.3d at 38 (“[W]here a defendant has enjoyed the benefits of a plea bargain, Florida courts have, not surprisingly, consistently refused to relieve the defendant of his or her burden under the contract.”). Simply stated, Appellant assented to pay the delineated monies, and he is bound to do so.

Appellant is correct, however, that the three written documents detailing the court’s pronouncement of Appellant’s negotiated sentence are not in accord with the oral pronouncement. Because it is the oral pronouncement that controls, Timmons v. State, 453 So.2d 143, 144 (Fla. 1st DCA 1984), the written judgment, order of probation, and court docket must be corrected. First, the written judgment and order of probation do not detail any costs. They must be corrected to detail the orally pronounced costs and those mandatory costs imposed by statute. Second, each document contains the superfluous language waiving “fees and surcharges” in addition to “costs of supervision.” The trial court orally pronounced waiver of only “costs of supervision.” The additional language must therefore be removed.

Accordingly, finding no reversible error, we AFFIRM Appellant’s judgment and sentence. But, we REMAND to the trial court WITH INSTRUCTIONS to correct Appellant’s written judgment and order of probation, as well as the court docket, in accord with this opinion.

CLARK, MARSTILLER, and SWANSON, JJ„ concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Certainly, Appellant could not have agreed to an "illegal" sentence. See Carter v. State, 786 So.2d 1173, 1181 (Fla.2001). He does not contend the costs are "illegal,” and they are not. See id. (holding that "illegal” means that "no judge under the entire body of sentencing statutes could possibly inflict [them] under any set of factual circumstances”).


text:
    Vaughn R. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0028.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2013.
    Vaughn R. Simpson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

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


text:
    Markque M. REED, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3572.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2013.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Johnson v. State, 670 So.2d 1121 (Fla. 5th DCA 1996).

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


text:
    Andres SALCEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4821.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2013.
    Andres Salcedo, Kissimmee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Butler v. State, 613 So.2d 1348 (Fla. 2d DCA 1993).

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


text:
    Christopher R. MUZZI, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-889.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2013.
    Christopher R. Muzzi, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), rehearing denied, 115 So.3d 385 (Fla. 3d DCA 2013); Ferrell v. State, 105 So.3d 539 (Fla. 5th DCA 2013).

GRIFFIN, PALMER and WALLIS, JJ., concur.


author: KHOUZAM, Judge.

text:
    J.D.C., Appellant, v. M.E.H., Appellee.
    No. 2D12-719.
    District Court of Appeal of Florida, Second District.
    Aug. 7, 2013.

      Larry R. Chulock of Larry R. Chulock, P.A., Bradenton, for Appellant.
    Susan J. Silverman, Sarasota, and Melton H. Little of KalJins, Little & Delgado, Palmetto, for Appellee.
   KHOUZAM, Judge.

J.D.C., the Father, appeals a final judgment of paternity entered in his suit against M.E.H., the Mother. Although we find no error in the parenting plan the trial court fashioned, we agree with the Father that the trial court erred in concluding that the Father engaged in vexatious litigation by challenging the findings and conclusions in a social investigation report. In addition, the trial court’s calculations of the support award contain inconsistencies as to the Father’s income and health insurance. Consequently, we reverse and remand on those issues only.

The Father filed a paternity action seeking to establish paternity and a timeshar-ing agreement concerning the parties’ minor child. The Father requested that the child reside primarily with him or, alternatively, that he be granted three weekends per month with the child. The Mother filed an answer and counterpetition admitting the Father’s paternity but seeking to retain majority time-sharing with the child. The Father moved for appointment of a psychologist to conduct a social investigation and make recommendations for a parenting plan. The trial court granted his request.

After conducting the investigation, the psychologist produced a report containing findings and recommendations. The investigator found that both parents loved and cared for the child, but also that the child was more attached to the Mother and was thriving with her. The investigator found that both parents admitted to having a tense relationship and ongoing conflict with one another, particularly regarding scheduling time with their child. Ultimately, the report concluded that despite “serious communication issues” between the parties, the findings did not warrant changing the Mother’s majority time-sharing.

The matter proceeded to a two-day trial. The Father maintained his request for primary time-sharing or, in the alternative, an increase from two to three weekends per month with his child. He also sought child support. The Mother requested to retain primary time-sharing and asked for an award of child support and attorney’s fees. The trial court subsequently entered a final judgment finding that it was in the child’s best interest that the parents share parental responsibility. The judgment essentially formalized the parties’ previous time-sharing arrangement, with the Mother retaining primary time-sharing and the Father still receiving two weekends per month. The trial court also calculated the income of both parties and ordered the Father to pay retroactive and ongoing child support. Finally, the trial court ordered the Father to pay all of the Mother’s attorney’s fees incurred after the investigation report was completed. The basis for this award was the trial court’s finding that by continuing to litigate after receiving the unfavorable results of the report, the Father had engaged in vexatious litigation. The Father timely appealed.

Pursuant to statute, a trial court may order a social investigation and recommendations where parents are unable to agree on a parenting plan and may use the information and recommendations in making a decision on the parenting plan. § 61.20(1), Fla. Stat. (2010). But that section contains “a procedural due process requirement that when the trial court relies on such investigative reports, counsel for the parties should be given an opportunity to review the reports for purposes of introducing any evidence that might rebut the conclusions or recommendations which the reports contained.” Kern v. Kern, 333 So.2d 17, 20 (Fla.1976); see also Leinenbach v. Leinenbach, 634 So.2d 252, 253 (Fla. 2d DCA 1994) (“Procedural due process prohibits a trial court from relying upon a social investigation report to determine child custody without first providing the report to the parties and permitting them to introduce evidence that might rebut the conclusions or recommendations contained in the report.”). Consequently, a party cannot be forced to accept the findings and recommendations in such a report without first being given the opportunity to challenge them.

A trial court possesses inherent authority to impose attorney’s fees against a party as a sanction. Bennett v. Berges, 50 So.3d 1154, 1159 (Fla. 4th DCA 2010). However, any such award must be “ ‘supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incur-rence of attorneys’ fees.’ ” Id. (quoting Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002)). We review a trial judge’s imposition of sanctions for bad faith litigation conduct for an abuse of discretion. Id.

Here, although it is undisputed that the Father was given the report and was permitted to introduce evidence rebutting it, the trial court punished him for doing so. The trial court found that once the Father received the unfavorable report, “to continue to litigate after that point is evidence of bad faith and an award of attorney’s fees may be sustainable as an exercise of the trial court’s inherent authority to punish bad faith conduct.” On that basis alone, the trial court ordered the Father to pay all of the Mother’s attorney’s fees incurred after the report was completed.

This is troubling for two reasons. First, in the alternative to his request for primary time-sharing, the Father sought three weekends per month with his child-a request which did not conflict with the recommendations in the report. But second, and much more important, is that in challenging the findings and conclusions in the social investigation report, the Father was exercising a due process right. Therefore, the trial court’s conclusion that the Father engaged in vexatious litigation by continuing with the paternity action is not supported by the record. See Landers v. Landers, 429 So.2d 27, 29 (Fla. 5th DCA 1983) (holding that a trial court “cannot, by ordering the report, deprive or restrict the parties of their right to present testimony or other evidence or to cross-examine witnesses”). Consequently, the award of attorney’s fees was an abuse of discretion and we must reverse it.

Having determined that the award of attorney’s fees must be reversed, two support calculation irregularities remain. First, in addressing the Father’s ability to pay attorney’s fees, the trial court found that the Father had recently stopped paying $700 per month in rent for his abandoned race car business, “which frees that obligation” to be put toward attorney’s fees. However, there is no indication that his business obligation was factored into the income determination the trial court used to calculate child support. The trial court simply listed the total amount received by the business and divided it to determine a monthly average income. Consequently, there appears to be a discrepancy on the face of the final judgment if the rent was determined to be a legitimate business expense in awarding attorney’s fees, but not one in the calculation of child support.

Second, it is not clear from the record whether the Father received proper credit for his monthly payments to the child’s health insurance. Insurance payments were omitted from the original support calculation, but a value of $111.41 was added in an order granting the Father’s motion for rehearing as to child support only. The Father argues that the amount is inaccurate and should instead reflect a monthly payment of $147.59. The Mother conceded in her answer brief that the amount reflected on the updated calculation was inaccurate and that the Father was entitled to a credit for the difference. But at oral argument, the Mother argued instead that the updated calculation was correct because it reflected the Father’s payments toward his own health insurance rather than that of the child. It is unclear from the record which of the Mother’s positions is accurate.

The trial court shall resolve these irregularities upon remand in recalculating the Father’s support obligation. On remand, we urge the trial court to apply the correct standard in determining the impact of financial assistance the Father receives from family members. In assessing the Father’s ability to pay the attorney’s fees award, the trial court imputed as income past financial assistance he received from his mother because “there was no evidence that the gifts will not continue, citing Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2d DCA 2009). This language suggests the trial court applied a presumption that the gifts would continue, absent affirmative evidence to the contrary. Although our reversal of the award of attorney’s fees renders moot the issue of whether the Father had the ability to pay it, we note that the standard is actually the converse of that described in the order. See id. at 1039 (“An exception applies allowing the court to impute income based on gifts ‘if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.’” (emphasis added) (quoting Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002))). If necessary, the trial court shall apply the standard as described in Oluwek.

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

CASANUEVA and CRENSHAW, JJ, Concur.


text:
    Shannon PULLIS, Appellant, v. Michael G. PULLIS, II, Appellee.
    No. 3D12-1835.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2013.

      Shannon Pullis, in proper person.
    David L. Manz, Marathon, for appellee.
    Before WELLS, LAGOA and LOGUE, JJ.
   PER CURIAM.

Shannon Pullis (“former wife”), acting pro se, appeals from an order granting Michael G. Pullis, II (“former husband”) the right to claim their child as a dependent on his tax returns for the years 2012 and 2013, denying her motion for reconsideration of the trial court’s prior order establishing child support, and awarding attorney’s fees to the former husband. For the reasons addressed below, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

In June 2010, the former husband filed a petition for dissolution of marriage. The parties have a seven-year-old son. The former wife, who was represented by counsel at the time, filed an answer and the case pi'oceeded to trial. Two days after the start of trial, the former wife filed a petition for relocation from Monroe County, Florida to Broward County, Florida. The former husband objected and trial was continued to allow the parties to properly address the issue of relocation. Trial resumed on April 5, 2011, and a final judgment was ultimately entered on April 29, 2011. The final judgment granted the former wife’s petition for relocation and ordered the former husband to pay child support in the amount of $125.00 per month, with a credit of $100 per month for transportation costs attributable to the former wife’s relocation to Broward County.

This child-support payment was to continue for three months from the date of entry of the final judgment, after which each party was to exchange financial information evidencing income and the parties’ child-support obligations were to be recalculated at that time. In December 2011, the former husband filed a motion to establish child support and enforce the final judgment. This motion was served on the former wife’s counsel. No response was filed on behalf of the former wife. A hearing on the motion was held on March 23, 2012. Neither counsel for the former wife nor the former wife appeared at the hearing. On April 2, 2012, the trial court entered an order granting the former husband’s motion to establish child support and enforce the final judgment, and ordered the former husband to continue to pay child support in the net amount of $25.00 a month to the former wife. The order also awarded attorney’s fees and costs to the former husband and reserved jurisdiction to determine the amount of the award. The April 2, 2012 order indicates that it was served on the wife’s former counsel, but not the former wife, herself.

Ten days later, the former husband filed a Motion to Determine Claim of Child as Dependent on Tax Returns and to Determine Amount of Attorney’s Fee Award. This motion was again served on the former wife’s counsel. The former wife’s counsel then advised the former husband’s counsel that he no longer represented the former wife, and had not contemplated representation of the former wife after the dissolution trial. Counsel for the former husband then served the motion on the former wife directly via certified mail.

On May 1, 2012, the former wife filed a motion for reconsideration of the trial court’s order granting the former husband’s motion to establish child support, alleging that she was never served with a copy of the motion and notice of hearing. She further explained her own attempts to resolve the issue of child support through the Department of Revenue.

On May 5, 2012, the former wife’s counsel filed a motion to withdraw, alleging that representation was not contemplated past trial. The trial court granted the motion to withdraw on May 8, 2012.

On May 10, 2012, the trial court held a hearing on the parties’ motions; the former wife, acting pro se, appeared by telephone. In an order dated June 11, 2012, the trial court granted the former husband’s motion to permit him to claim the parties’ child as a dependent on his 2012 and 2013 tax returns, and denied the former wife’s motion for reconsideration. The order also granted the former husband’s motion to determine the amount of attorney’s fees and awarded him $1,216.00, finding that amount represented reasonable attorney’s fees incurred by the former husband as a result of the former wife’s non-compliance with the terms of the final judgment. This appeal followed.

II. ANALYSIS

A. Former Wife’s Motion for Reconsideration

We agree with the former wife that her failure to appear at the hearing and contest the former husband’s motion to establish child support was, at the very least, the result of excusable neglect — if neglect at all. The former wife’s motion, in essence, sought to vacate the trial court’s order establishing child support because the former wife — through no fault of her own — did not receive notice of the motion or the hearing. The former wife remained unaware of the proceedings until she received, via certified mail, the former husband’s subsequent motion to claim the parties’ child as a dependent on his tax returns, and to award fees. Once she was personally served with the former husband’s subsequent motion, she immediately filed her motion for reconsideration and appeared at the hearing on the motions. This demonstrated excusable neglect and due diligence on the part of the former wife. See, e.g., Schneider v. Schneider, 683 So.2d 187 (Fla. 4th DCA 1996) (holding that former wife’s failure to attend calendar call or trial was the result of excusable neglect where her former attorney failed to properly forward the notice of trial or any other filings to her).

Moreover, a meritorious defense is clear as the trial court’s order establishing child support “is facially erroneous because it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed.” Capo v. Capo, 73 So.3d 902, 902 (Fla. 4th DCA 2011). As our sister court in Whittingham v. Whittingham, 67 So.3d 239, 239-40 (Fla. 2d DCA 2010), succinctly stated:

Section 61.30[, Florida Statutes (2012),] sets forth guidelines as to the amount of child support which should be awarded based on the monthly incomes of the parties. If a trial court awards child support which deviates more than five percent from the guidelines, it must make a written finding explaining why the guidelines amount would be inappropriate or unjust. § 61.30(l)(a). Consequently, when determining child support a trial court is required to make findings of fact regarding the incomes of the parties because such findings are required in order to determine whether the support award departs from the guidelines. Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010). When a trial court fails to make findings regarding the parties’ incomes, the final judgment is facially erroneous.

Accordingly, we find that the trial court’s denial of the former wife’s motion to vacate the order establishing child support was an abuse of discretion and must be reversed and remanded for the trial court to make its findings as to the net income of each party, and based on those findings calculate the child support.

On remand, the trial court shall recalculate the child support award and enter a new order specifying the basis for the award pursuant to section 61.30, Florida Statutes (2012). This award may be made retroactive to the date of filing of the former husband’s motion to establish child support as provided in section 61.30(17), Florida Statutes (2012). See Leventhal v. Leventhal, 885 So.2d 919, 920 (Fla. 3d DCA 2004) (“A trial court abuses its discretion when it fails to award retroactive child support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay.”); Levi v. Levi, 780 So.2d 261, 263 (Fla. 3d DCA 2001) (“When child support is modified, retroactivity is the rule rather than the exception. Although the award of retroactive child support is discretionary, it is an abuse of discretion not to make the award retroactive where the need for support and the ability of the parent to pay exists at the time the petition for modification is filed.”); Mayfield v. Mayfield, 103 So.3d 968, 971 (Fla. 1st DCA 2012) (same); Thyrre v. Thyrre, 963 So.2d 859, 862 (Fla. 2d DCA 2007) (same).

In remanding this issue back to the trial court, we note that “[t]he expense of transporting the minor child for visitation is a childrearing expense like any other,” which “should he shared by the parents in accordance with their financial means. The guidelines statute [§ 61.30] provides the framework for arriving at a fair and equitable child support award. The expense of transporting the child for visitation must be evaluated in this framework.” Drakulich v. Drakulich, 705 So.2d 665, 667 (Fla. 3d DCA 1998) (citation omitted); see also Hindle v. Fuith, 33 So.3d 782, 786-87 (Fla. 5th DCA 2010). Here, the record shows that the trial court’s order reduced the child support amount by $100.00 to cover the transportation costs attributable to the former wife’s relocation from Monroe County to Broward County. Because the trial court did not evaluate the expense of transporting the child for visitation within the framework provided by section 61.30, Florida Statutes (2012), on this record, the trial court’s action cannot be viewed as anything “other than a de facto reduction of the child support figure.” Buckingham v. Buckingham, 492 So.2d 858, 860 (Fla. 1st DCA 1986).

B. Former Husband’s Motion to Determine Claim of Child as Dependent on Tax Returns

We next address the trial court’s order granting the former husband’s request for use of a Federal Tax Dependency Exemption. As counsel for the former husband conceded at oral argument, the trial court did not have the power to allocate the exemption directly. The trial court can only “require the custodial parent to transfer the exemption to the noncustodial parent through the execution of a waiver. However, the transfer of the dependency exemption to the non-eustodial parent is conditioned on that parent being current with support payments.” Robertson v. Bretthauer, 712 So.2d 1140, 1141 (Fla. 3d DCA 1998) (citations omitted).

The trial court did not require the former wife, as the custodial parent, to execute a waiver transferring the exemption to the former husband, and also did not condition the waiver on the former husband being current with his child support payments. We therefore find that the trial court erred by not structuring the transfer of the exemption in accordance with the requirements of section 61.30(ll)(a)(8), Florida Statutes (2012).

C. Attorney’s Fee Award

Lastly, we address the trial court’s award of attorney’s fees to the former husband. This award was predicated on the trial court’s finding that the former wife was in non-compliance with the terms of the final judgment as a result of the former wife’s failure to submit her financial information and appear at the hearing to re-calculate the parties’ child support obligations. Because we conclude that the former wife’s non-compliance with the terms of the final judgment was the result of excusable neglect and not willful, we reverse the award of attorney’s fees to the former husband. See Woolf v. Woolf, 901 So.2d 905, 915 (Fla. 4th DCA 2005) (reversing award of attorney’s fees where record did not support the notion that either side had engaged in any serious misconduct).

Accordingly, the trial court’s June 11, 2012 order is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Although the former wife denominated her motion as one for reconsideration, it is appropriately viewed as a motion to vacate under Florida Rule of Civil Procedure 1.540(b). See Schneider v. Schneider, 683 So.2d 187, 187 (Fla. 4th DCA 1996) (former wife’s motion for rehearing was properly treated as a motion for relief pursuant to Florida Rule of Civil Procedure 1.540(b)).