author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULES OF JUDICIAL ADMINISTRATION 2.240 AND 2.241.
    No. SC13-1703.
    Supreme Court of Florida.
    Nov. 14, 2013.
   PER CURIAM.

The Court, on its own motion, amends Florida Rules of Judicial Administration 2.240 (Determination of Need for Additional Judges) and 2.241 (Determination of the Necessity to Increase, Decrease, or Redefine Appellate Districts). See Fla. R. Jud. Admin. 2.140(g)(1). The amendments add a procedure to rule 2.241 for assessing the need for increasing, decreasing, or redefining judicial circuits, and revise rules 2.240 and 2.241 to require that determinations regarding the need to increase, decrease, or redefine appellate districts and judicial circuits are undertaken in conjunction with the Court’s annual certification process for determining the need for additional judges.

Article V, section 9 of the Florida Constitution, charges this Court with establishing by rule uniform criteria for the determination of the need for additional judges, the necessity for decreasing the number of judges, and the necessity for increasing, decreasing or redefining appellate districts and judicial circuits. If the Court determines that such a need exists, it must certify its findings and recommendations concerning the need to the Legislature prior to the next regular legislative session. Currently, rule 2.240 provides the procedure for assessing the need for judges. And, rule 2.241 provides a procedure for assessing the necessity for increasing, decreasing, or redefining the appellate districts. Under the existing procedure, the Chief Justice must appoint, at least once every eight years, a committee to assess the capacity of the district courts to effectively fulfill their constitutional and statutory duties, and to make recommendations concerning the decisions the Court must make during the certification process outlined in the rule. See Fla. R. Jud. Admin. 2.241(b). No rule currently governs the process for determining the need to increase, decrease, or redefine Florida’s judicial circuits.

The amendments to rule 2.241, that we adopt here, remove the requirement that the Chief Justice appoint a committee to assess the district courts and add a uniform procedure for evaluating both the appellate districts and the judicial circuits. Under the new procedure, the certification process for the appellate districts and the judicial circuits must be completed in conjunction with the Court’s annual determination regarding the need for judges under rule 2.240(d). The chief judges of the trial and appellate courts will review annual statistics provided by the state courts administrator, along with the criteria set forth in the rule and any other relevant factors, and inform the Chief Justice of any perceived need. Taking these and other concerns into consideration, this Court may, but is not required to, appoint an assessment committee to make further inquiry. If an assessment committee is appointed, the committee will be charged by administrative order and the Court will consider the committee’s recommendations. If the Court finds a need exists for increasing, decreasing, or redefining appellate districts and judicial circuits, the Court will certify its findings and recommendations to the Legislature. Consistent with the amendments to rule 2.241, new rule 2.240(d)(5) requires the Court to consider the need for changes in the number or size of appellate districts and judicial circuits in conjunction with the rule 2.240 process by which the Court considers and certifies the need for judges.

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring and deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 2.240. DETERMINATION OF NEED FOR ADDITIONAL JUDGES

(a)-(c) [No Change]

(d) Certification Process. The process by which certification of the need to increase or decrease the number of judges shall include:

(1) [No Change]
(2) Each chief judge shall submit to the chief justice a request for any increase or decrease in the number of judges in accordance with the following:
(A)-(B) [No Change]
(3) The chief justice and the state courts administrator may then visitcon-fer with the chief judge and other representatives of the court submitting the request as well as representatives of The Florida Bar and the public to gather additional information and clarification about the need in the particular jurisdiction.
(4) [No Change]
(5) The supreme court, in conjunction with the certification process under this rule, shall also consider the necessity for increasing, decreasing, or redefining appellate districts and judicial circuits as required by article V, section 9, of the Florida Constitution and as set forth in Florida Rule of Judicial Administration 2.241.

Court Commentary

1983 Adoption — 2006 Amendment.

[No Change]

2013 Amendment. Subdivision (d)(5) was added to ensure the certification process under rule 2.240(d) is conducted in conjunction with the related process for determinations regarding increases, decreases, or redefinition of appellate districts and judicial circuits under Florida Rule of Judicial Administration 2.241.

RULE 2.241. DETERMINATION OF THE NECESSITY TO INCREASE, DECREASE, OR REDEFINE JUDICIAL CIRCUITS AND APPELLATE DISTRICTS

(a) Purpose. The purpose of this rule is to establish uniform criteria for the supreme court’s determination of the necessity for increasing, decreasing, or redefining judicial circuits and appellate districts as required by Aarticle V, section 9, of the Florida c Constitution. This rule also provides for an assessment committee and a certification process to assist the court bothin certifying to the legislature its findings and recommendations concerning such needand-in-mak-ing its own rules affecting-appellate court structure and jurisdiction:

(b) Assessment Committee, At-least once during every eight-year-period^-beginning-after-review — year-dlOCtój-the chief justice shall appoint a committee' that-shall assess the capacity of the district courts to effectively ■fulfill-their-constitutional — and statutory duties. — The—committee—shall make-a-recommendation-to the supreme court — concerning—the—decisions—that it should-make-during-the-process-described ■in-subdivision-(c-);

(1) The assessment — committee shall consist of three members from each district; — one attorney, one district 'judge and one circuit judge.
(■2-)-The-commlttee-should be appointed no later than August -3L of-the year ■prior-to-the-review year. It must report Its-reeonnnendations to the chief justice in writing no later than July 1 of the rev-iew-year;
(3) The chief justice shall select -the chair of-the committee.
(4.)-p.Fiog.4o-the-preparation-of-ifs-re-port," the- committee shall-solicit-wr-itten input from the public and shall hold at least- one- public-hearing;
(5) ■ -The -Qffice-of-the-State-Gourts-Ad-ministrator, — in consultation with the clerks — and—marshals—of the — district courts of appeal, shall provide staff sup-por-t-to-the-committeer
(6) The chief justice shall submit the committee’s recommendations to the supreme court. — On or before November 15-ofthe review-year, the supreme court shall certify'to the legislature its findings- and- recommendations.

(eb) Certification Process. The certification-process-balances.the ■ potential ■ impact and disruption caused-b-y-c-hanges-in appellate districts against the need to address-circumstances-that-limit-the-quality and-efficiency-ofr-and'-public confidence in, the appellate revie-va-proeess. — Given-the impact-and-disruption -that can arise from any-alter-ation-in-judicial structure, prior to recommending- a^ change in districts) the assessment-committee — and ■ - the. ■ -supreme court shall consider-less-disruptive-adjustments including, but not limited to, the addition of judges, the creation-of--branch locations, geographic or subject-matter-divisions-within-distr-icts,-deployment' of new technologies, and increased ratios of sup-por-t-staff-per-judge:- A certification process shall be completed in conjunction with the supreme court’s annual determination regarding the need for judges under Florida Rule of Judicial Administration 2.240(d) and in accordance with the following:

(1) The supreme court shall certify a necessity to increase, decrease, or redefine judicial circuits and appellate districts when it determines that the appellate-review judicial process is adversely affected by circumstances that present a compelling need for the certified change.
(2) The supreme court may certify a necessity to increase, decrease, or redefine judicial circuits and appellate districts when it determines that the appellate-reviewjudicial process would be improved significantly by the certified change.
(3) The state courts administrator will distribute a compilation of summary statistics and projections to each chief judge at a time designated by the chief justice.
(4) Each chief judge shall consider criteria as may apply under rules 2.241(c) and 2.241(d), as well as any other relevant factors, and shall inform the chief justice of any perceived need to increase, decrease, or redefine the state’s judicial circuits or appellate districts.
(5) Having been advised in these matters by the chief justice and taking into consideration other relevant factors, the supreme court, finding cause for further inquiry, may appoint an assessment committee to consider the capacity of the courts to effectively fulfill their constitutional and statutory responsibilities as well as any attendant need to increase, decrease, or redefine appellate districts and judicial circuits.
(6) If an assessment committee is appointed, the committee shall confer with the chief judges and other representatives of appellate districts and judicial circuits, district court of appeal and/or trial court budget commissions, The Florida Bar, and the public for purposes of gathering additional information regarding matters within its charge and shall submit written recommendations to the supreme court.
(7) The supreme court shall consider the assessment committee’s recommendations within a timeframe it deems appropriate.
(8) Whether or not an assessment committee is appointed, the supreme court shall balance the potential impact and disruption caused by changes in judicial circuits and appellate districts against the need to address circumstances that limit the quality and efficiency of, and public confidence in, the judicial process. Given the impact and disruption that can arise from any alteration in judicial structure, prior to recommending a change in judicial circuits or appellate districts, the supreme court shall consider less disruptive adjustments including, but not limited to, the addition of judges, the creation of branch locations, geographic or subject-matter divisions within judicial circuits or appellate districts, deployment of new technologies, and increased ratios of support staff per judge.

(c) Criteria for Judicial Circuits. The following criteria shall be considered when determining the necessity for increasing, decreasing, or redefining judicial circuits as required by article V, section 9, of the Florida Constitution:

(1) Effectiveness. Factors to be considered for this criterion include the extent to which each court:
(A) expedites appropriate cases;
(B) handles its workload in a manner permitting its judges to prepare written decisions when warranted;
(C) is capable of accommodating changes in statutes or case law impacting workload or court operations; and
(D) handles its workload in a manner permitting its judges to serve on committees for the judicial system.
(2) Efficiency. Factors to be considered for this criterion are the extent to which each court:
(A)stays current with its caseload, as indicated by measurements such as the clearance rate;
(B) adjudicates a high percentage of its cases within the time standards set forth in the Rules of Judicial Administration and has adequate procedures to ensure efficient, timely disposition of its cases; and
(C) uses its resources, case management techniques, and technologies to improve the efficient adjudication of cases, research of legal issues, and issuance of decisions.
(3) Access to Courts. Factors to be considered for this criterion are the extent to which:
(A) litigants, including self-represented litigants, have meaningful access consistent with due process; and
(B) decisions of a court are available in a timely and efficient manner.
(4) Professionalism. Factors to be considered for this criterion are the extent to which each court:
(A) handles workload issues in a manner permitting its judges adequate time and resources to participate in continuing judicial education and to stay abreast of the law in order to maintain a qualified judiciary;
(B) is capable of recruiting and retaining qualified staff; and
(C) affords staff adequate time to participate in continuing education and specialized training.
(5) Public Trust and Confidence. Factors to be considered for this criterion are the extent to which each court:
(A) handles workload in a manner permitting its judges adequate time for community involvement;
(B) affords access to open court and other public proceedings for the general public;
(C) fosters public trust and confidence given its geography and demographic composition; and
(D)attracts a diverse group of well-qualified applicants for judicial vacancies, including applicants . from all counties within the circuit.
(6) Additional criteria. Such other factors as are regularly considered when making a determination with respect to the need for additional judges under Florida Rule of Judicial Administration 2.240(b)(1) and (c).

(d) Criteria for District Courts. The following criteria shall be considered by ■the supreme court — and—the-assessment committee when determining the necessity for increasing, decreasing, or redefining appellate districts as required by article V, section 9, of the Florida Constitution:

(1)Effectiveness. The 'fFactors to be considered for this criterion áre the extent to which each court:
. appropriate cases;
(B) each court’s handles workload permits in a manner permitting its judges to prepare written opinions when warranted;
(C) each court functions in a collegial manner;
(D) each court’s handles workload permits in a manner permitting its judges to develop, clarify, and maintain consistency in the law within that district, including consistency between written opinions and per curiam affir-mances without written opinions;
(E) each- court’ handles its workload permits in a manner permitting its judges to harmonize decisions of their court with those of other district courts or to certify conflict when appropriate;
(F) each — cour-t’-s handles its workload permits in a manner permitting its judges to have adequate time to review all decisions rendered by the court;
(G) each courtis capable of accommodating changes in statutes or case law impacting workload or court operations; and
(H) each court’s handles its workload permits in a manner permitting its judges to serve on management committees for that-court and the judicial system.
(2) Efficiency. The fFactors to be considered for this criterion are the extent to which each court:
(A) each courtstays current with its caseload, as indicated by measurements such as the clearance rate;
percentage of its cases within the time standards set forth in the Rules of Judicial Administration and has adequate procedures to ensure efficient, timely disposition of its cases; and
(C) each-court utilizes uses its resources, case management techniques, and other technologies to improve the efficient adjudication of cases, research of legal issues, and preparation and distribution of decisions.
(3) Access to Appellate Review. The fFactors to be considered for this criterion are the extent to which:
(A)-(C) [No Change]
(4) Professionalism. The-fFactors to be considered for this criterion are the extent to which each court:
(A) each court’s handles its workload permits in a manner permitting its judges to-have adequate time and resources to participate in continuing judicial education opportunities and to stay abreast of the law in order to maintain a qualified judiciary;
(B) each courtis capable of recruiting and retaining qualified staff attorneys, clerk’s — office staff,--and — other support staff; and
(C) each court’s affords staff has adequate time to participate in continuing education and specialized training opportunities.
(5) Public Trust and Confidence. The ¿Factors to be considered for this criterion are the extent to which each court:
(A) eac-h-eourfe handles its workload permits in a manner permitting its judges to.have adequate time te conduct outreach-lo-attorneys and the general-public — within the district for community involvement;
(B) each-courtprovides adequate access to oral arguments and other public proceedings for the general public within its district;
(C) (each court’s- geographic-terri-teryfosters public trust and confidence given its geography and demographic composition; and
((D) each court’s ■demographic-composition-fosters-publie-trust-and-confi-dence; and.
4(E)(D) (each courtattracts an-adequate — diverse group of well-qualified applicants for judicial vacancies within its district, including applicants from all circuits within the district.

(e) Results of determination. Only upon the supreme court’s finding that a need exists for increasing, decreasing, or redefining appellate districts and judicial circuits, shall the court, acting prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

Committee Notes

[No Change]

Court Commentary

2013 Amendment. The rule has been amended so the supreme court’s annual certification process will include an analysis of the need to increase, decrease, or redefine judicial circuits. The requirement for an assessment committee to analyze, once every eight years, the capacity of the district courts to fulfill their duties has been deleted. Instead, the chief judges of the trial and appellate courts will review annual statistics provided by the state courts administrator, along with the criteria set forth in the rule and any other relevant factors, and inform the chief justice of any perceived need. Taking these and other concerns into consideration, the supreme court may appoint an assessment committee to make further inquiry. If an assessment committee is appointed, the supreme court will consider the committee’s recommendations and will certify to the legislature its own findings and recommendations concerning such need.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before January 13, 2014. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Kenneth Michael CARROSO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1282.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Dec. 20, 2013.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers and Susan D. Dunlevy, Assistant Attorneys General, Tampa, for Appellee.
   ALTENBERND, Judge.

Kenneth Michael Carroso appeals his judgment and sentence for workers’ compensation fraud involving a “monetary value” between $20,000 and $100,000. See § 440.105(4), Fla. Stat. (2005). Although he has already fully served his fourteen-month prison term for this offense, we reverse the judgment and sentence and remand for a new trial. In this case of first impression, the State and the trial court erroneously equated the “monetary value” that is an element of this criminal offense with the monetary amount of the noncriminal, administrative sanction available under section 440.09(4)(a), Florida Statutes (2005). This overarching error resulted in the admission of irrelevant evidence and an improper jury instruction. These preserved errors entitle Mr. Carro-so to a new trial.

I. THE UNDERLYING WORKERS’ COMPENSATION CASE

Mr. Carroso was employed by Sunwest P.E.O. on July 20, 2005. On that day, while in the course and scope of his employment, he was involved in a truck accident. While he was riding as a passenger, Mr. Carroso was teaching another employee how to drive the truck. The trainee oversteered and overbraked going into a corner, and the truck rolled over. It is undisputed that Mr. Carroso was injured in this accident. He sustained a spiral fracture of his left arm. He apparently developed complications in this arm. He had surgery for a torn rotator cuff and complained of lower back pain.

Mr. Carroso received medical treatment authorized by Sunwest’s workers’ compensation carrier, First Commercial. As explained in greater detail later in this opinion, First Commercial also paid him temporary total disability benefits from July 26, 2005, through August 24, 2006.

During the workers’ compensation proceedings, Mr. Carroso was deposed on February 14, 2006. In that deposition, Mr. Carroso allegedly made misleading statements or omissions regarding some relatively minor medical or chiropractic treatment he had received years earlier, possibly related to prior off-the-job automobile accidents. After the deposition, First Commercial reported the possible fraud to the State. It should be noted that the evidence in our record does not establish the outcome of the workers’ compensation proceeding or whether the judge of compensation claims took any action on the alleged misstatements in this deposition.

II. THE CRIMINAL PROCEEDING

The State charged Mr. Carroso with insurance fraud in the second degree, under sections 440.105(4)(b)(l) and (4)(f)(2), Florida Statutes (2005). Section 440.105(4)(b)(l) states that it shall be “unlawful” for any person: “To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.” Section 440.105(4)(f) provides the penalties for violating this statute:

If the monetary value of any violation of this subsection:
1. Is less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
2. Is $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. Is $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The “monetary value of any violation of this subsection” is an element of the crime. Cf. Insko v. State, 969 So.2d 992 (Fla.2007) (holding age of defendant is element of crime of lewd and lascivious molestation under section 800.04(6), Florida Statutes (2001), analogizing to value as element of third-degree grand theft under section 812.014, Florida Statutes (2001)).

Although the issue of intent is not presented in this appeal, it should be observed that this offense is a specific intent crime. See Linehan v. State, 442 So.2d 244, 246-48 (Fla. 2d DCA 1983) (explaining the distinction between general and specific intent crimes). Thus, it was not enough for the State to prove that Mr. Carroso misstated facts or omitted facts in his deposition. The State was required to prove that he made misrepresentations “for the purpose of obtaining ... any benefit or payment under this chapter.” § 440.105(4)(b)(l). One would expect that the State in such a case would need to identify, with some degree of particularity, a benefit or payment that the defendant was seeking to obtain when making a misrepresentation that he at least anticipated would be unavailable under the true facts.

The existence of prior medical conditions does not necessarily preclude workers’ compensation benefits under the Florida Workers’ Compensation Law. Any benefit available under chapter 440 can be payable despite an injured worker’s preexisting injuries and conditions. See § 440.02(1), Fla. Stat. (2005) (explaining that benefits can be payable for aggravation or acceleration of preexisting injury). For example, an injured worker can be entitled to temporary workers’ compensation disability benefits even when he or she is totally disabled from a condition unrelated to the workplace injury, if it is also established that the workplace injury “as a separate entity” would entitle the injured worker to workers’ compensation disability benefits. See Winn Dixie Stores, Inc. v. La Torre, 702 So.2d 1267, 1270 (Fla. 1st DCA 1997) (explaining that an employer cannot escape payment of workers’ compensation disability benefits because of unrelated disability, where compensable injuries would “otherwise have entitled the employee to workers’ compensation benefits”). Thus, it is not obvious from this record that any of the information concerning prior medical or chiropractic treatment that Mr. Carroso may have failed to disclose would have had any bearing on the outcome of his workers’ compensation claim.

The State’s reliance on the noncriminal, administrative sanction in this trial tended to minimize the evidence on this element of intent. At any retrial, proof of this element may prove challenging for the State unless its evidence is substantially different from the evidence in this record.

In this appeal, the focus is on section 440.105(4)(f)’s reference to a “monetary value.” That term is not defined in the statute. Because this statute is a criminal offense, the legislature requires this court to strictly construe it in a manner most favorable to the defendant. See § 775.021(1), Fla. Stat. (2005). We do not attempt any comprehensive definition of “monetary value” in this case. We merely hold that the trial court’s reliance on the noncriminal, administrative sanction as a measure of “monetary value” was incorrect.

III. THE NONCRIMINAL, ADMINISTRATIVE SANCTION

Before describing the two preserved issues on appeal, it is helpful to examine the statute that led the trial court astray. Section 440.09(4)(a) provides for a noncriminal, administrative sanction in the event that a claimant knowingly makes any false, fraudulent, or misleading statement for the purpose of obtaining any benefit under the workers’ compensation laws. Section 440.09(4)(a) states:

An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers’ compensation benefits. For purposes of this section, the term “intentional” shall include, but is not limited to, pleas of guilty or nolo contendere in criminal matters. This section shall apply to accidents, regardless of the date of the accident. For injuries occurring prior to January 1, 1994, this section shall pertain to the acts of the employee described in s. 440.105 or criminal activities occurring subsequent to January 1,1994.

This statute is most frequently addressed in the context of an order of a judge of compensation claims granting or denying benefits. See, e.g., Lucas v. ADT Sec. Inc./Sedgwick CMS, 72 So.3d 270 (Fla. 1st DCA 2011); Pavilion Apartments v. Wetherington, 943 So.2d 226 (Fla. 1st DCA 2006).

The First District, which has jurisdiction over appeals from workers’ compensation proceedings, has held that the administrative forfeiture of benefits under section 440.09(4)(a) does not require any nexus between the false statement and the benefits forfeited. See Rustic Lodge v. Escobar, 729 So.2d 1014, 1015 (Fla. 1st DCA 1999) (“[S]ection 440.09(4) ... does not limit a claimant’s forfeiture to those benefits that may have been obtained by virtue of the claimant’s unlawful conduct.”). The First District has interpreted the sanction in section 440.09(4)(a) to result in the cessation of an injured employee’s entitlement to any unpaid workers’ compensation benefits, but it has not required a return of or restitution for benefits already lawfully paid prior to the claimant’s misrepresentation. Thus, the sanction under section 440.09(4)(a) turns off the tap from which workers’ compensation benefits flow. See Alvarez v. Unicco, 958 So.2d 951, 952 (Fla. 1st DCA 2007) (holding judge of compensation claims is not required to order payment of benefits for “a period preceding the determination of a violation of section 440.09(4)”).

IY. THE ERRORS ARISING FROM THE APPLICATION OF SECTION 440.09(4)(A) IN THIS CRIMINAL TRIAL

The attorney who represented First Commercial in the workers’ compensation case testified at this criminal trial. Because the only document from the workers’ compensation case in evidence was Mr. Carroso’s deposition, her testimony focused on that deposition. The State asked the attorney only one question relating to “monetary value.” The State asked her: “In general, if there is fraud found in a deposition, does that affect the payments?” The attorney answered: “Absolutely.” The State did not ask the attorney to explain the effect. On cross-examination, the defense attorney asked the witness to clarify this answer and the witness stated that “[ijt’s a forfeiture of rights under Workers’ Compensation.” In other words, the testifying attorney was explaining the impact that the noncriminal, administrative sanction would or could have on Mr. Car-roso; she was not establishing the monetary value of any loss or potential loss sustained by her client.

The State relied on this testimony to measure the “monetary value” of this crime by the amount it believed to be involved in the “forfeiture.” It convinced the trial court that, if Mr. Carroso lied in the deposition, he forfeited all payments made to him by the carrier — payments made before and payments made after the deposition — not merely payments that otherwise would be payable after an order of cessation of benefits. This, of course, is not even consistent with the law established by the First District regarding section 440.09(4)(a), much less with the conclusion we reach today that section 440.09(4)(a) has no bearing on the measure of “monetary value” in section 440.105(4).

Based on its theory, the State introduced into evidence about thirty checks sent by First Commercial to Mr. Carroso beginning on July 26, 2005, and ending on August 24, 2006. These checks were not identified by a witness. Instead, they were introduced pursuant to section 90.902(11), Florida Statutes (2010), by a certification from the Chief Financial Officer of the State of Florida establishing that the checks were business records of First Commercial, for whom the State’s Division of Rehabilitation and Liquidation was then the current receiver. There was similar proof that the checks had been negotiated by Mr. Carroso and deposited into his bank account.

Along with the checks, the Chief Financial Officer also certified a document entitled “Payments for a Claim” that lists all of the checks, indicating that they were “Indemnity” and “Temporary Total Disability.” These checks total about $27,000. Approximately $17,000 of this amount was sent to Mr. Carroso before he was deposed and the remainder was sent to him after the deposition.

Mr. Carroso’s attorney objected to the admissibility of the checks, emphasizing the checks that were sent to him prior to the deposition. His attorney argued that even if the court were correct in treating these checks as a measure of “monetary value,” Mr. Carroso could not conceivably have made misrepresentations in the deposition for the purpose of receiving benefits that he had already received. The trial court overruled the objection and admitted all of the checks into evidence. The State relied in closing on the total amount of these checks as its measure of monetary value.

On the same theory, the trial court gave the jury a special jury instruction that was requested by the State over Mr. Carroso’s objection:

If you find the Defendant guilty of Workers’ Compensation fraud, you must further determine whether the State has proven beyond a reasonable doubt that the benefit received was $20,000 or more, but less than $100,000 or the benefit received was less than $20,000. A person shall not be entitled to compensation if any jury convened in this state determines that the employee has know ingly or intentionally engaged in Workers’ Compensation Fraud.

(Emphasis added.)

We conclude that the trial court erred on both of these issues. The noncriminal, administrative sanction is largely, if not completely, irrelevant in this criminal proceeding as a measure of monetary value. As properly administered by the judges of compensation claims, under the law established in the First District, the noncriminal sanction merely stops future benefits. Thus, it actually does not create any dollar measurement.

Even if the sanction resulted in a restitution order for prior benefits, that amount would be merely a measure of a civil sanction, penalizing the claimant. Such a sanction can actually result in an unexpected benefit for the carrier. The sanction allows the carrier to stop paying benefits that otherwise might often be payable.

Although we make no attempt to provide any comprehensive definition of “monetary value” for purposes of this statute, “monetary value” simply cannot be measured by other sanctions against the defendant; it cannot be measured by the administrative forfeiture in section 440.09(4). It would make no sense to measure the monetary value of the offense by an amount that is usually a benefit to the employer and the carrier, who are the apparent victims of. this crime. Logically, “monetary value” should be measured by some type of monetary loss or potential loss sustained by the employer or the carrier that has some relationship to the alleged misrepresentation.

The errors in this case, especially the error in the jury instruction, permitted the State to make a closing argument that incorrectly described the elements not only of the second-degree felony, but also of the third-degree felony that was a lesser offense. The instruction shifted the focus of the case from whether Mr. Carroso made misrepresentations for the purpose of obtaining benefits to whether he made misrepresentations that might result in an administrative sanction of forfeiture.

The shift in the focus of the case should not be underestimated because, as explained earlier, in a workers’ compensation case the existence of prior medical conditions does not necessarily preclude workers’ compensation benefits under the Florida Workers’ Compensation Law. Without these errors, the State would have been required to present a theory about why Mr. Carroso would misrepresent the rather modest medical matters involved in this case for the purpose of obtaining some benefit when it was undisputed that he had sustained work-related injuries that entitled him to significant benefits. Mr. Car-roso’s misrepresentations might have justified a noncriminal, administrative sanction under the First District’s nearly strict liability approach to section 440.09(4)(a), but in this criminal case the State was required to prove beyond a reasonable doubt that Mr. Carroso misrepresented his medical history for the purpose of obtaining a benefit. The improper evidence and jury instruction prevented the jury from addressing the real issue in the case. Accordingly, the errors can only be corrected by a new trial.

Reversed and remanded.

CRENSHAW, J., and CASE, JAMES R., Associate Senior Judge, Concur.

      . The facts in this opinion about the accident and resulting medical treatment come from Mr. Carroso's deposition in the workers’ compensation case. No one argues that he misrepresented anything about these facts.

      . The insurance company providing coverage was First Commercial Insurance Company. It apparently serviced claims through an entity described as First Commercial Claims Services. For purposes of this opinion, we describe both of these entities as First Commercial because the distinction between them would seem to make no legal difference in this context.

      . Although this criminal case involves an alleged fraud related to Mr. Carroso's workers' compensation case, the record contains very little information about the workers' compensation case itself. The lack of information must have been confusing for both the judge and the jury during the trial and it has hampered our review. For example, if Mr. Carro-so filed a petition for benefits, it is not in this record. Except for the deposition, the record contains no pleadings or other documents filed in any workers’ compensation case. It contains no transcript of proceedings in such a case. The record has no copies of any compensation order or any other decision made by a judge of compensation claims. Although a lawyer represented Mr. Carroso during the taking of the deposition, that lawyer did not testify in this case. No employee of Sunwest testified at the criminal trial. The State did not present any evidence from Mr. Carroso's treating workers’ compensation physicians at this trial.

      . In the context of this noncriminal sanction, the First District has explained:
      When an objective misrepresentation has been made, the ultimate question a JCC must answer involves intent, that is, whether the claimant subjectively believed or intended the statement, when made, to be false, and whether the claimant subjectively believed the statement would assist him in securing workers’ compensation benefits. See Arreola v. Admin. Concepts, 17 So.3d 792, 794 (Fla. 1st DCA 2009). A claimant's state of mind is an issue of fact to be determined by the JCC by evaluating the evidence, including the credibility and demeanor of the witnesses. See id. It is not axiomatic that providing false information following a compensable accident will disqualify a Claimant from receiving benefits. Id.

        Steel Dynamics Inc.-New Millennium v. Markham, 46 So.3d 641, 645 (Fla. 1st DCA 2010) (emphasis in original).

      . It appears the tap does not close until such a ruling becomes final, in light of the provision in section 440.09(4)(c), that if the employee appeals the section 440.09(4)(a) ruling, a JCC "shall have the jurisdiction” to order that the flow of benefits be paid into the court registry or an escrow account during the pen-dency of the appeal.

      . It is noteworthy that the checks have nothing on their face to indicate why First Commercial was sending the checks to Mr. Carro-so. The record contains no cover letters that may have been sent with the checks. The record does not explain who created the document entitled “payments for a claim” or what the "temporary total disability” designation meant to the person who created the document.

      . Presumably, a verdict or judgment in the criminal case might be used in the workers’ compensation case as proof to obtain the administrative sanction. That does not require, however, that the jury be instructed on this statute.


author: BENTON, J. MAKAR, J.,

text:
    Richard KEARNEY, Former Husband, Appellant/Cross-Appellee, v. Bernadette KEARNEY, Former Wife, Appellee/Cross-Appellant.
    No. 1D12-0754.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied Jan. 17, 2014.

      Peter D. Webster and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for AppellanVCross-Appellee.
    Susan L. Kelsey, Kelsey Appellate Law Firm, P.A., Tallahassee, and Jerome M. Novey, Shannon L. Novey, and Christin F. Gonzalez, Novey Law, Tallahassee, for Ap-pellee/Cross-Appellant.
   BENTON, J.

Richard Kearney appeals the amended final judgment entered in the dissolution of his marriage to Bernadette Kearney, who has filed a cross-appeal. Except as to the amended final judgment’s denial of credit for fees and costs Mr. Kearney had previously paid under an interim order, we affirm both on the appeal and on the cross-appeal.

Now the parents of four children, the parties married in 1987. After Mr. Kear-ney moved out of the marital home in April of 2007, Ms. Kearney filed a petition for dissolution of marriage on November 6, 2008. On November 15, 2010, the trial court entered its bifurcated final judgment of dissolution of marriage, and the parties subsequently filed three partial settlement agreements addressing equitable division of property they agreed was marital.

Early on in the marriage (in 1989, using Ms. Kearney’s credit card) the parties purchased what was then a much smaller business, Mainline Information Systems, Inc. (Mainline). On July 19, 2006, at Mr. Kear-ney’s request, Ms. Kearney signed an agreement (Mainline Agreement) ostensibly relinquishing her interest in Mainline, in exchange for three million dollars to be paid in annual million-dollar installments. But, after the first of two bench trials (held October 26-29, 2009), the original trial judge entered a 44-page order on March 80, 2010, invalidating the Mainline Agreement, at Ms. Kearney’s behest. As a corollary, the trial court ruled that Mainline should be treated as a marital asset subject, like the parties’ other marital assets, to equitable distribution in the parties’ dissolution proceeding.

Later the original trial judge recused herself, and Mr. Kearney sought reconsideration of the order invalidating the Mainline Agreement. His motion for reconsideration remained pending when the parties’ third partial settlement agreement was reached. The third partial settlement agreement, adopted by trial court order entered on July 13, 2011, memorialized the parties’ agreement “with respect to all remaining assets and issues,” except issues regarding Mainline’s value and what portion of its value (if any) was attributable to Mr. Kearney’s “active management” subsequent to November 6, 2008; and except whether (notwithstanding the order originally entered on the question as to which rehearing was subsequently denied) the Mainline Agreement was valid and enforceable.

A second bench trial (held August 8-12 and August 18-22, 2011) had primarily to do with the valuation of Mainline, and resulted in a lengthy order that fixed the value of Mainline at $48,063,800, explicated the rationale for the trial court’s appraisal, and allocated Mainline’s value equally between the parties. The trial court also rejected Ms. Kearney’s claim for prejudgment interest (which she sought for the period from the filing of the petition for dissolution until entry of final judgment) based on the value of her half of Mainline. In addition, Mr. Kearney was ordered to reimburse Ms. Kearney $797,223.06 for expenses and fees she incurred in (re)litigating whether the Mainline Agreement was valid and enforceable.

On appeal, Mr. Kearney first argues that the order invalidating the Mainline Agreement (which was not disturbed on rehearing) should be reversed. He points to evidence that Ms. Kearney consulted two attorneys before she signed, and argues that she was fully competent and informed at the time she did so. He contends the trial judge’s determinations that Ms. Kearney did not freely and knowingly sign the Mainline Agreement — and that she acted without even “approximate” knowledge of Mainline’s value — lack competent, substantial evidence in support, and that the order setting the Mainline Agreement aside was contrary to law.

We are not unaware of evidence that could support Mr. Kearney’s view. Ms. Kearney did consult two lawyers, both of whom advised her not to sign the Mainline Agreement, and the evidence suggests that she did not (and presumably does not) have any particular intellectual or psycho-logieal problems. But the rule is that postnuptial agreements governing disposition of the parties’ assets are not enforceable if entered into in the absence of full and fair disclosure of the assets at issue, and the trial court’s findings that such disclosure did not occur are binding on us, given the evidence adduced below.

The trial judge found that, when Mr. Kearney presented the draft agreement to his wife, he encouraged her to engage independent legal counsel, but told her not to heed any advice counsel might give not to sign; he told her that lawyers would try to talk her out of signing the agreement because they would not understand what it was intended to accomplish. He told Ms. Kearney that Mainline’s ability to move forward with a “recapitalization transaction” depended on her signing the Mainline Agreement. Ms. Kearney testified that Mr. Kearney never identified the three million dollars payable under the Mainline Agreement as payment for a sale of her interest in Mainline. She testified, “He did say that it would be separate from Mainline and it would be mine, so that on the off-chance that Mainline couldn’t repay their loan that this money would be safe from anybody coming after it.”

The original trial judge found that the primary purpose of the proposed recapitalization was, in fact, to provide $100 million for distribution to Mr. Kearney, and that new capital investment in Mainline would not have exceeded $3.9 million under the proposed “recapitalization transaction.” Judge Caloca-Johnson also found that neither of the other parties who contemplated participating in the transaction ever suggested Mr. Kearney needed to ask Ms. Kearney to relinquish her interest in Mainline.

The original trial judge found that the parties’ financial holdings and income are complicated, to begin with, and that the financial disclosures of income and assets attached to the agreement were unclear and ambiguous. The original trial judge found the husband misstated in significant and material respects the identity, nature, and value of the parties’ other (non-Mainline) marital assets (overstating the value by approximately 40% or $14 million, thus exaggerating their significance — and understating Mainline’s significance — in the overall distribution scheme). On the other hand, the husband’s financial statement omitted significant sums payable to the husband individually, including notes and receivables aggregating approximately $6.5 million. In addition to other misinformation about Mainline’s worth, Mr. Kearney’s financial statement misstated the income he received from Mainline: He revised a financial statement prepared by his accountant to reduce his stated income (total compensation by Mainline) from in excess of $6 million annually to approximately $712,000 annually.

Concluding the totality of the circumstances suggested overreaching and misrepresentation on the part of Mr. Kearney, the original trial judge did not find genuine, informed consent to the agreement on the part of Ms. Kearney, noting he had “inoculated” her against any advice from independent counsel by telling her the advice would be the product of their lack of understanding. The original trial judge found Mr. Kearney knew she would sign any business-related document he asked her to without question, and that he told her he would have to sell stock in Mainline if she did not sign the agreement.

Because “parties to a marriage are not dealing at arm’s length,” the Florida Supreme Court directs trial judges to “carefully examine the circumstances to determine the validity of these agreements.” Casto [v. Casto], 508 So.2d [330, 334 (Fla.1987)]. In other words, where, as here, the postnuptial agreement is made prior to full-fledged litigation over dissolution of marriage, the parties have a fiduciary relationship. See Macar v. Macar, 803 So.2d 707, 712 (Fla.2001). Because of this special relationship, a trial court may vacate a post-nuptial agreement on one of the following grounds:
(1) The agreement was reached as the result of fraud, deceit, duress, coercion, misrepresentation, or overreaching.
(2) The agreement was unfair or unreasonable, given the circumstances of the parties.

Casto, 508 So.2d at 333. The extensive order invalidating the Mainline Agreement demonstrates the original trial judge correctly applied the tests for determining the validity of a postnuptial agreement set forth in Casto. In the order on Mr. Kear-ney’s motion for rehearing, the successor trial judge understandably found no basis for disturbing the order invalidating the Mainline Agreement.

In concluding the Mainline Agreement was invalid based on overreaching and misrepresentation, the trial judge found numerous misrepresentations and failures to disclose on the part of Mr. Kearney. The trial judge also found the agreement was unfair and unreasonable, citing pressure surrounding the signing of the agreement, the value of the parties’ respective interests, the disparity between the business experience of the parties, and the emotional pressure and misinformation from Mr. Kearney; that Mr. Kearney’s disclosure to Ms. Kearney was neither full nor fair; and that Ms. Kearney did not have approximate knowledge of the marital assets and liabilities at the time she signed the Agreement. These findings are supported by competent, substantial evidence. See McNamara v. McNamara, 40 So.3d 78, 82 (Fla. 5th DCA 2010) (“The questions of whether a challenging spouse had some understanding of his or her rights, and had or reasonably should have had, a general and approximate knowledge of the proponent’s property, are matters of fact to be determined by the trial court upon the evidence, and its finding will not lightly be disturbed.”); Gordon v. Gordon, 25 So.3d 615, 616 (Fla. 4th DCA 2009) (“A trial' court’s findings on a motion to set aside a prenuptial agreement should not be disturbed absent a showing that the findings are not supported by competent, substantial evidence.”).

Mr. Kearney also argues that, even if Ms. Kearney was not adequately apprised of the parties’ finances when she originally signed the Mainline Agreement, the trial judge erred in rejecting his contention that Ms. Kearney should be deemed to have ratified the Mainline Agreement based on her receipt and retention of the money paid her under the Mainline Agreement once she was apprised of all pertinent circumstances. Mr. Kearney argues specifically that statements by Ms. Kearney in two e-mails to a friend establish that, by June of 2007 (after Mr. Kearney had moved out), she was aware of facts entitling her to rescind or invalidate the Agreement. Mr. Kearney further asserts that Ms. Kearney received the second and third million-dollar installment payments under the Mainline Agreement after June of 2007, directed investment of the funds (telling the bank the type of account in which to place the funds), and used interest earned on the funds for expenses (including attorneys’ fees related to the dissolution action) before she notified him on October 23, 2008, that she wanted to rescind the Mainline Agreement.

Mr. Kearney asserts that the controlling principles on the issue of ratification are set out in Hendricks v. Stark, 99 Fla. 277, 126 So. 293, 297 (1930) (holding rescission unavailable if contract has been ratified). In this decision, the court stated:

“Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm. This doctrine seems to rest ... upon a distinct principle of public policy, that all that justice or equity requires for the relief of a party having such cause to impeach a contract is that he should have but one fair opportunity, after full knowledge of his rights, to decide whether he will affirm and take the benefits of the contract, or disaffirm it and demand the consequent redress.”

Id. at 296-97 (citation omitted; emphasis supplied). See also Zurstrassen v. Stonier, 786 So.2d 65, 71 (Fla. 4th DCA 2001) (“Ratification occurs where a party with full knowledge of all the material facts makes an affirmative showing of his or her express or implied intention to adopt an act or contract entered into without authority. The issue is one of fact.” (citation omitted)).

Mr. Kearney’s contention that Ms. Kear-ney ratified the Agreement rests on the disputed foundation that Ms. Kearney accepted and retained the second and third million-dollar installments with full knowledge of all grounds for rescission. Even assuming for purposes of decision that Ms. Kearney retained the money after learning of Mr. Kearney’s misrepresentations, however, her possession of what she had the right to view as marital funds did not amount to ratification.

Contract principles are, of course, in play. See Lashkajani v. Lash kajani, 911 So.2d 1154, 1158 (Fla.2005) (“Valid prenuptial agreements regarding post-dissolution support are contracts.... [W]e enforce valid prenuptial agreements regarding post-dissolution support ‘as a matter of contract.’” (citation omitted)); Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009) (stating a “trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts”). Florida courts recognize, however, “ ‘a vast difference between a contract made in the market place and one relating to the institution of marriage.’” Lashkajani, 911 So.2d at 1158 (citation omitted).

At the time Ms. Kearney notified Mr. Kearney that she sought to rescind the Agreement, the parties were still married. Rejecting the Mainline Agreement was not, therefore, incompatible with retaining the funds. If the Mainline Agreement had been valid, the funds in Ms. Kearney’s possession, although marital in origin, could be viewed as her separate property. But because, as the trial court later ruled, the Mainline Agreement was not valid, the funds were marital assets, and Ms. Kear-ney had a right to possession of the funds at least as great as Mr. Kearney’s right to possession of the funds. That Ms. Kear-ney did not “return” the funds after she asserted the right to rescind the Mainline Agreement does not dictate a finding that she ratified the Mainline Agreement.

We find merit, however, in Mr. Kearney’s argument that the trial court erred in denying him credit against the “prevailing party” fees and costs awarded in the final judgment for the temporary fees and costs he had previously paid. On July 8, 2009, Mr. Kearney was ordered to give Ms. Kearney $550,000 as “temporary” payment for her attorney’s fees. The July 8, 2009 order’s fee award was explicitly tentative and subject to revision: it reserved “jurisdiction to determine the ultimate allocation of attorney’s fees pending the resolution of the validity of the post-nuptial agreement and equitable distribution.” Similarly, on December 20, 2010, Mr. Kearney was ordered to pay Ms. Kearney’s litigation expenses (other than attorney’s fees) and costs incurred through November 15, 2010, not to exceed $250,000. The December 20, 2010 order also provided that the payment it required was “without prejudice to either party’s rights to allocate this amount ($250,000) and Husband’s prior payments to Wife’s attorneys of Five Hundred Fifty Thousand Dollars ($550,000) to either (i) equitable distribution; or (ii) Husband’s obligation for attorneys’ fees and costs pursuant to section 61.16, Florida Statutes; or (iii) the prevailing party provisions of the Agreement between the parties dated July 24, 2006.”

Against this background, paragraph 9 of the partial settlement agreement signed by the parties on June 8, 2011, ie., before “the ultimate allocation of attorney’s fees,” clearly and unambiguously states that each party shall be responsible for his or her attorneys’ fees and costs incurred in the dissolution action through the entry of final judgment, excepting only fees and costs associated with litigating the validity of the partial settlement agreement itself.

9. The parties shall each bear their own attorneys’ fees and costs associated with this Agreement and the above styled litigation through the entry of a Final Judgment resolving the remaining issues in this cause provided, however, that with respect to attorney’s fees and costs relating to the litigation of the postnuptial agreement, they are not resolved by this Agreement and shall be determined when the enforceability of the postnuptial agreement is resolved. In the event that legal action is filed or arbitration is utilized by any party to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to an award of reasonable attorneys’ fees and costs.

Nothing in the partial settlement agreement exempts (or even addresses) the $800,000 in fees and costs “temporarily” paid by Mr. Kearney pursuant to the two earlier orders, and nothing suggests that fees and costs earlier and tentatively allocated fell outside the parties’ June 8, 2011 agreement regarding fees and costs. When the trial court made Mr. Kearney responsible for $797,223.06 in fees and costs under paragraph 9, therefore, he was entitled to credit for the $800,000 he had already been required to advance.

On cross-appeal, Ms. Kearney argues that the trial court undervalued Mainline. But the trial judge acted within his discretion in accepting the opinions of Mr. Kearney’s experts, over the opinion of Ms. Kearney’s expert. See Erp v. Erp, 976 So.2d 1234, 1239 (Fla. 2d DCA 2008) (“There admittedly is a significant debate about when marketability discounts are appropriate in any proceeding requiring the valuation of a closely held corporation. ... [A] trial court should be accorded the discretion to determine whether a marketability discount should apply to the valuation of a closely held corporation in a dissolution of marriage case where the court is traditionally charged with achieving equity through the use of various remedies.”); Lahodik v. Lahodik, 969 So.2d 533, 535 (Fla. 1st DCA 2007) (noting “the appellate court does not assess whether it is possible to recite contradictory record evidence which supports arguments rejected below, nor does it retry the case or substitute its judgment for the trial court’s on factual matters supported by competent, substantial evidence”); Nichols v. Nichols, 907 So.2d 620, 623-24 (Fla. 4th DCA 2005) (rejecting former husband’s argument that the trial court erred in computing the value of the business asset because “the record reveals the Former Wife’s expert testified as to the value of this asset and provided the trial judge with extensive calculations on the matter” and the “fact the trial court accepted this value over that offered by the Former Husband is not the type of error that would allow this court to substitute our decision for that of the trial court”); White v. White, 717 So.2d 89, 90 (Fla. 3d DCA 1998) (“Here, the parties each presented expert testimony regarding their preferred valuation method. The court did not abuse its discretion in using one method as opposed to the other.”).

Ms. Kearney argues the trial judge committed a number of “legal errors, the broadest of which was its decision to treat Mainline as if it were a small professional association or sole proprietorship, the entire intangible value of which was inextricably linked to a single person.” She also argues the trial judge abused his discretion by ignoring competent substantial evidence of the most reasonable valuation methodology. Relying on testimony from her expert and ignoring Mr. Kearney’s experts’ testimony, she argues we are required to remand for entry of judgment holding Mainline has substantial “enterprise goodwill” that should be calculated on the basis of “the income/going-concern valuation method.”

Like the court in Erp, 976 So.2d at 1237, “we doubt that this issue is actually a legal issue.”

The decisions that judges make when valuing businesses in the context of a divorce are fact-intensive and usually heavily dependent upon the opinions of well-trained experts. The question is not whether the trial court can employ one method or another in valuing a business, but is more appropriately phrased as whether an expert may be permitted to testify and render an opinion based upon a valuation method that the expert claims to be acceptable within his or her profession. If the expert is permitted to so testify, then the trial court, as a finder-of-faet, should have considerable discretion in deciding to what extent it accepts or rejects the expert testimony.

Id. at 1237-88. Mainline’s value is a question of fact which the trial court resolved, in a finding which we are obliged to uphold, given competent substantial evidence in support.

Finally, we reject Ms. Kearney’s argument as to prejudgment interest, unpersuaded that the trial judge erred in denying her claim for prejudgment interest on the value of her share of Mainline for the period from the December 31, 2008 valuation date to the date of the final judgment. The parties’ third partial settlement agreement covered all remaining assets, except equity in Mainline. The parties agreed Ms. Kearney would receive cash and certain enumerated assets, and that Mr. Kearney would retain all other “Remaining Assets,” defined to include “the distributions of Mainline to Former Husband from the beginning of time through and including the Final Judgment of this Court.” “[A]warding prejudgment interest ‘is not to penalize the losing party, but rather to compensate the successful .claimant for losing the use of the money between the date he or she was entitled to it and the date of judgment. A corollary purpose is to prevent the judgment debtor from being unjustly enriched by the use of that money.’ ” Catalfumo v. Catalfumo, 704 So.2d 1095, 1100 (Fla. 4th DCA 1997) (citation omitted). Because the third partial settlement agreement included past, present and future distributions from Mainline to Mr. Kearney, the trial judge did not err in determining that it would be inequitable to allow Ms. Kearney to receive prejudgment interest in addition, “especially where the [equitable] distributions [to the parties] are substantial” and in the absence of evidence that any passive increase in the value of Mainline after the parties’ third partial settlement agreement was executed exceeded Mainline’s distributions to Mr. Kearney.

That portion of the order on Mr. Kear-ney’s motion for rehearing denying his request to credit the $800,000 he had previously paid against the award of fees and costs in the final judgment is reversed, and on this issue alone the matter is remanded for further proceedings. In all other respects, every order challenged and the amended final judgment are affirmed.

RAY, J., concurs.

MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part.

Millions of dollars are at stake in this complicated divorce case, one involving a large IBM computer distribution company, Mainline Information Systems, Inc., whose valuation is in dispute. The former husband and wife purchased the company in 1989, shortly after they were married, and built it into a highly successful international enterprise.

While I concur in Judge Benton’s opinion generally, I write separately to express disagreement with the astonishing conclusion reached at trial that Mainline — a company with over a half billion in annual sales, over 600 employees, numerous high level managers, and over 800 professional certifications among its workers — has not a thimbleful of “institutional goodwill” to its name; instead, to the extent Mainline has goodwill, it has been deemed entirely “personal” to the former husband, and thereby not distributable to the former wife as a co-owner.

This conclusion is contrary to the record, which shows that — at the very least— Mainline acquired $3 million in distributable goodwill from its purchase of Cornerstone, a company independent of, but very similar in structure to, Mainline with sales of $40-45 million, annual profits of $5.5 million, and ninety employees. It is also based on the speculative assumption that Mainline could not be sold in the marketplace absent a non-compete signed by the former husband (who refuses to do so), which resulted in the trial court accepting the lowest estimated value of Mainline possible (i.e., the net value of the liquidation of its tangible assets), one that was at the bottom of Mainline’s historical valuation line and even below Mainline’s basis for tax purposes. Just two years later Mainline was worth $109.8 million.

But Mainline is wholly dependent on IBM — not the former husband. IBM controls every significant aspect of the relationship; indeed, the trial court found that IBM had “virtual absolute control” of Mainline. Its “control is so great that it can control the deals Mainline gets or doesn’t get, its profit margins and its sales requirements.” The relationship is much like a franchise-franchisee relationship, with the former husband in the role of a successful — but completely-controlled — franchisee. It is wholly speculative that Mainline, with all its institutional infrastructure and managerial talent, simply could not be sold in the marketplace without a non-compete from the husband; IBM’s absolute control over Mainline dictates to the contrary. In sum, the conclusion that Mainline’s operations have generated only personal goodwill owned exclusively by the former husband is erroneous warranting a modification to the amount to which the former wife is entitled or a retrial on this aspect of damages.

      . The motion for reconsideration was still pending when the third partial settlement agreement was signed by the parties on June 8, 2011, and when the third partial settlement agreement was adopted by the trial judge on July 13, 2011. The successor trial judge entered an order on December 20, 2011, denying the motion for reconsideration.

      . Mr. Moyle, one of the lawyers who advised her, testified pressure had been exerted on her to sign, and that he sensed her husband’s reaction was of paramount concern to her. She wrote Mr. Moyle in an e-mail "that I would be due much more in the case of a divorce without the document,” but Mr. Moyle testified that it was not clear even to him how much more she would be giving up and that expert analysis would be necessary to evaluate the situation. Mr. Holloway, who met with Ms. Kearney later, did not know she had sought other counsel or that Mr. Moyle had withdrawn from representing her because he thought she was not competent to sign, but Mr. Holloway, too, advised her not to sign.

      . After summarizing the testimony of a Dr. Ducas (who testified that Ms. Kearney believed her role was to submit to her husband and to get behind his mission in life; that she believed everything the husband told her; that the wife viewed the Mainline Agreement as merely one more in a string of documents she had been asked to sign for Mainline; and that she felt her assignment was to get the document signed off on by an attorney because that is what the husband and Mainline needed), the trial judge did state: "In sum, the Wife's internal psychological composition compelled her to sign the document and for that reason she signed against the advice of two attorneys.” However that may be, what is legally significant is that the trial judge found several, material misrepresentations that left Ms. Kearney without a clear picture of her financial circumstances.

      . The original trial judge found: "[T]he combination of pressure and misinformation combined to deprive the Wife of an understanding that she was doing anything more than signing a document for the purpose of effecting Mainline’s recapitalization. Though her attorneys recognized the effect the document would have, misrepresentations from her Husband left her unwilling to accept their advice. Certainly, the Husband never told the Wife he wanted to provide for a settlement of marital assets should they divorce.”

      . Mr. Novey testified that more than 80 different legal entities and taxable entities (including assets held in offshore trusts and real property in other countries) comprised the Kearney marital and non-marital estates, and that a contested hearing as to the classification and valuation of each of the assets could require three months.

      . The original trial judge concluded the husband had not rebutted the presumption that he concealed information. The financial information given to the wife did not detail the debt associated with each particular asset or any income produced by the particular asset. The financial statement included money in an irrevocable off-shore grantor asset protection trust (the RSK trust) of which the husband and wife are beneficiaries. By its terms, the RSK Trust removed the wife as a beneficiary when she filed for dissolution of marriage. The extent and complexity of the husband's financial holdings could not be understood in a mere six-page disclosure (noting that at an earlier hearing, counsel informed the court that a final hearing on equitable distribution would take approximately three months due to the very complex nature of the parties’ holdings). The original trial judge found the wife’s knowledge of the company was superficial, and the husband failed to rebut the presumption of lack of knowledge by the wife of the husband’s finances at the time of the agreement.

      .The record contains evidence that the distributions from Mainline in 2006 (before tax) were $ 15,128,534. In 2007, the year after the Mainline Agreement was executed, distributions totaled $23,347,365 (and Ms. Kearney presented evidence that Mainline did not distribute all available earnings). In 2008, Mr. Kearney testified he received some $18 million in distributions.

      . The trial judge noted the wife received $3 million (equivalent to a few months’ distributions from Mainline) in exchange for her interest, even though no evidence was offered at the original Mainline agreement hearing as to any value for Mainline of less than $231 million — a ratio of 231:3 (77:1) based on Mr. Kearney's July 12, 2006 financial disclosure, and found that unfair and unreasonable. That Mainline was later valued at $43,063,800 as of December 31, 2008, mitigates (the ratio becomes 43:3 or 14:1), but hardly eliminates the unfairness and unreasonableness.
      The trial judge also found it was unreasonable and misleading to cloak a postnuptial agreement in terms suggesting it was designed to help the business. Fair disclosure, the trial judge concluded, would have included disclosure by the husband that the agreement was intended to settle the parties’ assets upon dissolution.

      . Ms. Kearney testified that Mr. Kearney chose the bank and set up the account for the initial $1 million deposit. Subsequently, there were two automatic transfers into the account — on July 3, 2007, and June 2, 2008. Ms. Kearney’s Motion for Temporary Relief, filed March 16, 2009, asserted that she offered to return the funds. She further asserted that although she had paid certain expenses from interest earned on the funds, principally attorneys’ fees, she had not invaded any portion of the principal. During the October 2009 hearing regarding validity of the Agreement, Ms. Kearney testified she did not do anything to manage the money in that account. When asked how much was in the account at that time, she answered there "is the three million and then there is some interest. I’m not sure how much.” During the final hearing, when asked if she had asked the bank to invest the funds, she testified she "asked them to keep it low risk."

      . Mr. Kearney argues the trial judge erroneously relied on decisions that address ratification by a principal of an originally unauthorized act of an agent. In the order on appeal, the trial judge cited Frankenmuth Mutual Insurance Company v. Magaha, 769 So.2d 1012, 1022 (Fla.2000), and Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 732 (1946). The trial judge cited the decisions for the following propositions:
      "Before one may infer that a principal ratified an unauthorized act of his agent, the evidence must demonstrate that the principal was fully informed and that he approved of the act. Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 732 (1946).... The principal is charged only upon a showing of full knowledge, and not because he had notice which should have caused him to make inquiry, which in turn would have brought to his attention the knowledge of the unauthorized act of the employee.... And, [wjhenever he is sought to be held liable on the ground of ratification, either express or implied, it must be shown that he ratified upon full knowledge of all material facts, or that he was willfully ignorant, or purposely refrained from seeking information, or that he intended to adopt the unauthorized act at all events, under whatever circumstances. [Oxford Lake Line v. First Nat'l Bank, 40 Fla. 349, 24 So. 480, 483 (1898).]”

        Magaha, 769 So.2d at 1022 (quoting Bach v. Fla. State Bd. of Dentistry, 378 So.2d 34, 36-37 (Fla. 1st DCA 1979)).

      . In considering whether a principal ratified an act of an agent or whether a party to the contract ratified a contract, courts have held that the party must have full knowledge of the material facts that establish the ground for rescission. The record on appeal contains competent, substantial evidence to support the trial judge’s finding that Ms. Kearney "had no information as to the misrepresentations and misstatements in the Agreement until after she initiated a divorce proceeding and began discovery.”
      In June of 2007, Ms. Kearney acknowledged she had signed "what amounted to a post-nuptial agreement” and would “basically ... get very little in a divorce,” but there is no indication in the e-mails that Ms. Kearney was aware of the numerous misrepresentations and failures to disclose on the part of Mr. Kearney found by the trial judge to be a basis for invalidating the Agreement. Even though she retained counsel in the spring of 2008, she testified she was not prepared to divorce in April of 2008; instead, she felt she needed a lawyer because the threat was always there that Mr. Kearney was going to file for divorce. She also testified that she and Mr. Kearney were "getting along” and "having nice communications” in the summer of 2008, and she again had hope the marriage would survive. She testified she did not have information prior to October 2008 that would have led her to believe the business purposes stated by Mr. Kearney to have created a necessity for the Agreement were untrue or misleading in any way.

      . Although valid prenuptial agreements regarding post-dissolution support are enforced "as a matter of contract,” the "difference is in the standard we use to determine the contract's validity. When deciding whether to enforce a prenuptial agreement, trial courts must 'carefully examine the circumstances’ surrounding the agreement because parties to a prenuptial agreement are not 'dealing at arm’s length.' ” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005) (citation omitted). "[Cjourts may scrutinize nuptial agreements to ascertain that the parties acted without compulsion and based on full disclosure. Although contract principles play a role in dissolution proceedings, courts must remember that 'proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.’ ” Id. at 1159 (quoting Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997)).

      . Ms. Kearney argues the trial judge erred as a matter of law, but acknowledges that "there is no clear authority as to how to measure goodwill above and beyond the reputation of an individual practitioner nor is there clear authority as to how to value goodwill in a large commercial enterprise such as Mainline.”
      Although Thompson v. Thompson, 576 So.2d 267 (Fla.1991) examined whether the value of the husband’s professional association’s goodwill should be included as a marital asset, the supreme court’s analysis is instructive in the present context:
      There is no specific consensus as to a definition of professional goodwill ... or what method or methods should be used to value professional goodwill....
      Irrespective of the setting in which it is found, the meaning of goodwill does not change. It is property which attaches to and is dependant [sic] upon an existing business entity; the reputation and skill of an individual entrepreneur — be he a professional or a traditional businessman — is not a component of the intangible asset we identify generally as goodwill.

        Hanson v. Hanson, 738 S.W.2d 429, 434 (Mo.1987)....

      It should be emphasized that such goodwill, to be a marital asset, must exist separate and apart from the reputation or continued presence of the marital litigant.
      [I]f goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual. Any value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which, although relevant in determining alimony, is not a proper consideration in dividing marital property in a dissolution proceeding.

        Taylor [v. Taylor, 222 Neb. 721, 386 N.W.2d 851, 858 (1986)].

        Thompson, 576 So.2d at 269-70 (emphasis supplied). See also Schmidt v. Schmidt, 120 So.3d 31 (Fla.2013).

      . Goodwill "is property which attaches to and is dependent upon an existing business entity.” Thompson v. Thompson, 576 So.2d 267, 269 (Fla.1991). In a professional setting, goodwill is the "value of the practice which exceeds its tangible assets and which is the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner.” Id. There are two types of goodwill: enterprise (or institutional) and personal. Enterprise goodwill "exists separate and apart from the reputation or continued presence” of a particular individual. Id. at 270.

      . Part of the problem is that Mainline’s valuation was done with the rudimentary analytical guidelines from the seminal professional services case, Thompson, which dealt with valuing a former husband’s law firm in which he was the sole shareholder. No reported appellate cases have applied Thompson outside of that type of professional association context; or to a massive international corporate enterprise like Mainline. While Thompson may be workable for small or moderately-sized professional associations, it is a poor fit for valuing the goodwill of a complex and uniquely structured international corporation that is itself controlled by one of the largest corporations in United States history.

      .Mainline’s CFO testified that Cornerstone, like Mainline, was an IBM business partner in the west coast region; it was purchased for about $4 million with $3 million allocated to goodwill, and $949,000 for its tangible assets.

      . The former husband devotes approximately 20 hours a week to Mainline matters; the remainder is spent on community, economic development, and real estate activities. All managers at Mainline, other than the former husband, have non-compete agreements.


text:
    Randy SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3330.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied Jan. 10, 2014.
    Randy Spencer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. The motion for stay is denied as moot.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jerry MEANS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections and First Judicial Circuit for Okaloosa County, Respondents.
    No. 1D13-4295.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Rehearing Denied Jan. 10, 2014.

      Jerry Means, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of mandamus is treated as a petition for writ of certiorari and is dismissed as untimely.

WETHERELL, SWANSON, and OSTERHAUS, JJ„ concur.


text:
    Thomas E. RIDDELL, Appellant, v. BLACK CREEK CUSTOM HOMES, INC., Appellee.
    No. 1D13-1251.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    Rehearing Denied Jan. 17, 2014.
    Thomas E. Riddell, pro se, Appellant.
    Garry D. Adel of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   PER CURIAM.

Appellant, Thomas E. Riddell, appeals an order of the trial court that construed his motion for relief from judgment as a motion for rehearing and dismissed the motion as untimely. The content of the motion shows it to be a motion for relief from judgment. We reverse and remand for the trial court to reconsider the motion pursuant to Florida Rule of Civil Procedure 1.540(b).

REVERSED and REMANDED for further proceedings.

BENTON, PADOVANO, and RAY, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Jeffrey R. FULLER, Appellant, v. Nancy Lorraine Elizabeth Dube FULLER, n/k/a Nancy Lorraine Elizabeth Dubay, Appellee.
    No. 2D13-514.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.
    Rehearing Denied Jan. 7, 2014.

      Jeffrey R. Fuller, pro se.
    Nancy Lorraine Elizabeth Dubay, pro se.
   DAVIS, Chief Judge.

Jeffery Fuller, the Former Husband, challenges the trial court’s order finding him in contempt for failing to pay court-ordered alimony to Nancy Dubay, the Former Wife. The Former Husband argues on appeal that the trial court erred in finding that he has hidden certain sources of income and that he has the present ability to pay the alimony required. The Former Husband maintains that neither of these findings is supported by the evidence presented below.

In the supplemental final judgment of dissolution that ended the parties’ twenty-eight-year marriage, the trial court ordered the Former Husband to pay $4500 a month as permanent, periodic alimony. Subsequent to the final judgment, the Former Husband filed a petition seeking a reduction of the court-ordered alimony amount. He testified at the hearing on his petition that since the entry of that order, he ended his relationship with the law firm at which he was a partner. He further testified that it previously had been determined that the firm had a value between $1 and $3 million. He insisted that upon leaving the firm he received only $46,000 and an automobile valued at $29,000. Instead of seeking employment as an attorney, the Former Husband opted to open a mediation practice. He asserts that this new business venture resulted in a significant reduction in his income and that he no longer has the ability to pay the required alimony.

He therefore filed a petition seeking a reduction of the court-ordered alimony amount. The trial court denied the petition, finding that the Former Husband was voluntarily underemployed and that he had failed to show that the change in circumstance was involuntary and permanent. Additionally, the trial court found the Former Husband in contempt for willfully failing to pay his alimony obligation. The Former Wife has filed three subsequent motions asking that the Former Husband be held in contempt as he continuously has failed to comply with the court order. On the first motion, by its order entered April 28, 2012, the trial court denied the contempt request but did continue the alimony obligation established in the final judgment of dissolution. In October 2012, the trial court considered the Former Wife’s renewed motion. On October 16, 2012, the trial court entered an order finding that the Former Husband was in contempt and had the present ability to pay the ordered sum.

Two months later, the parties were again before the trial court on the Former Wife’s third motion seeking contempt. The trial court again found the Former Husband in contempt, concluding that he had presented no evidence to show a material change in circumstances regarding his ability to pay since the October hearing. It is this order that the Former Husband now asks us to review.

After reviewing the record, we affirm without further comment the trial court’s finding that the Former Husband had the present ability to pay the required sums and its holding him in contempt for failing to do so. However, the trial court’s order also included the following finding:

8. It is evident to this Court that the Former Husband has purposely shielded his income. Although the Former Husband has habitually paid less than a quarter of the current alimony owed this past year, he is able to come up with the purge amount when found in contempt. The Court finds the Former Husband has been generating regular income and misrepresenting his ability to pay in order to avoid and frustrate the orders of this Court.

Our review of the record reveals that this specific issue of hiding income was not argued below. Furthermore, the only evidence to support such a finding is the fact that the Former Husband has been capable of paying the purge amount when previously held in contempt. But that fact alone is not enough to create an inference that the Former Husband has hidden sources of income. As such, the trial court erred in including paragraph 8 in its order. See Prieto v. Smook, Inc., 97 So.3d 916, 917 (Fla. 4th DCA 2012) (“A trial court’s factual findings must be supported by competent, substantial evidence in the record.”).

We therefore reverse the trial court’s order to the extent that it includes the factual finding contained in paragraph 8, and we remand with instructions to strike this paragraph. We affirm the order in all other respects.

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

ALTENBERND and WALLACE, JJ., Concur.

      . In the October 4, 2011, order denying the Former Husband’s motion to modify the final judgment, the trial court recited the Former Husband’s allegation regarding the termination of employment with skepticism: ”[T]he thought of Former Husband taking only $46,000, and a car and going away, causes this court to pause, especially knowing that Former Husband has a $4500 monthly alimony obligation and other necessary expenses while claiming in his testimony that the expense of litigation over his termination would leave him unable to survive.”


text:
    Gene AMBERT, Petitioner, v. STATE of Florida, and Secretary Department of Corrections, Respondents.
    No. 1D13-4816.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Rehearing Denied Jan. 13, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Samuel MENDEZ-CARMONA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4931.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Rehearing Denied Jan. 13, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    James E. LANG, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections and State of Florida, Respondents.
    No. 1D13-4837.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.
    Rehearing Denied Jan. 10, 2014.
    James E. Lang, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

For at least the third time, James E. Lang challenges his 2001 Pinellas County conviction as invalid on grounds that he was tried without the assistance of counsel and without validly waiving his right to counsel. Lang’s claim is procedurally barred by Baker v. State, 878 So.2d 1236 (Fla.2004), and we DISMISS his petition for writ of habeas corpus on this basis.

The procedural bar recognized in Baker was brought to Lang’s attention in the court’s opinion disposing of his 2011 petition for writ of habeas corpus raising this same claim. Accordingly, we grant petitioner’s motion requesting that we undertake an inquiry pursuant to section 944.279(1), Florida Statutes (2013), conclude based on that inquiry that Lang’s present petition is frivolous or malicious, and direct that a certified copy of this opinion be forwarded to his correctional institution for disciplinary procedures pursuant to that statute and the rules of the Department of Corrections.

ROBERTS, WETHERELL, and MAKAR, JJ., concur.