author: EVANDER, J.

text:
    Marcus C. REED, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-742.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.

      Robert Wesley, Public Defender, and Justin Bleakley, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Marcus Reed was convicted, after a jury trial, of possession of a firearm by a convicted felon and carrying a concealed firearm. He raises two issues on appeal. First, Reed contends that the trial court erred in denying his pretrial motion to suppress. Second, he argues that the trial court abused its discretion in permitting “impeachment” testimony from a former venire person. On appeal, the State acknowledges that the testimony from the former venire person should not have been allowed, but argues that the error was harmless. We reverse.

The evidence below reflects that on the afternoon in question, law enforcement officers were engaged in an operation directed to narcotics activity occurring at a certain Orlando location. While hidden, two deputies observed what they believed to be an illegal drug transaction. One of the deputies radioed Deputy Nelson who was nearby in a marked police vehicle. Deputy Nelson was informed by his fellow officer that a black male wearing all black clothing had just purchased drugs and was traveling southbound on a “pink-colored style” bike. Within a minute thereafter, Deputy Nelson stopped an individual (Reed) who met the general description given by his fellow officer.

Immediately upon being stopped, Reed informed Deputy Nelson that he had a firearm in his right front pants pocket. After Deputy Nelson had secured the weapon, Reed advised the deputy that he had taken the gun from two children. Upon learning that Reed was a convicted felon, Deputy Nelson did not attempt to locate and/or interview the children from whom Reed allegedly took the gun. No drugs were found on Reed and it was subsequently determined that Reed was not the individual who had been observed in the purported drug transaction.

After an evidentiary hearing, Reed’s motion to suppress was denied and the case proceeded to trial. During a recess from jury selection in the first scheduled trial, venire person Anthony Ousley overheard Reed tell a female companion, “we ain’t going to say that, we are going to say he drawed [sic] it.” Ousley was apparently of the belief that Reed intended to lie on the stand. The trial court struck the venire and rescheduled the trial.

Prior to the commencement of the second trial, Reed sought to have Ousley’s anticipated testimony excluded. Reed correctly argued that Ousley did not know the context in which the alleged statement was made and that it was speculative for Ous-ley to believe that Reed was “going to fabricate something on the stand.” The prosecutor disagreed, arguing:

So, it’s the State’s position that if someone says they’re going to lie on the stand, then that needs to be brought to the jury’s attention.

The trial court ruled that should Reed testify, the State would be permitted to introduce Ousley’s testimony. In response to defense counsel’s argument that it was impossible to put Reed’s statement in context, the trial judge opined:

It’s not impossible, when you take into account this man was sitting in the gallery, was part of the jury selection process in the first trial, saw the defendant sitting up here, heard the charges read on the record, and this statement and the quoted text in the statement, in the light of that context, is perfectly clear, and I am going to deny the defense’s motion in limine with regard to this statement.

The State called only Deputy Nelson during its ease in chief. During cross-examination, Deputy Nelson acknowledged that Reed had been fully cooperative during the stop and had told him that he [Reed] had taken the gun from some children for their safety.

After the State rested, Reed testified. He claimed that while riding his bicycle he observed a man, who was running through a nearby field, discard a gun. According to Reed, some young children (who appeared to be approximately ten years of age) began to approach the discarded weapon. Reed testified that he seized the gun with the intent of bringing it to Vivian Adams — a family friend who was employed by the Orange County Sheriffs Department. Reed further testified that he was on his way to Adams’ residence when he was stopped by Deputy Nelson. The defense also called Vivian Adams. Adams confirmed that she had been employed by the Orange County Sheriffs Department for twenty-eight years, that she resided in the area, and that she was a family friend of Reed. Adams opined, based on her firearms safety training, that young children are often drawn to guns.

After the defense rested, the State called Ousley as a rebuttal witness. The State was permitted, over objection, to have Ousley testify as to the statement he had overheard Reed make during jury selection at the first scheduled trial. Ousley acknowledged that he did not hear the context of the entire conversation, but stated: “knowing what I heard ... I didn’t feel that I could be a good juror.”

During oral argument, the State’s counsel admirably conceded that the trial court erred in permitting Ousley’s testimony. However, it was the State’s position that because Ousley’s testimony was so clearly irrelevant, it was highly unlikely that the jury gave it any weight and, thus, the error was harmless. We reject this argument. The record below reflects that the prosecutor, defense counsel, and trial judge all believed that Ousley’s testimony would, at a minimum, imply to the jury that Reed intended to lie at his first trial. In the instant case, Reed’s primary defense was “necessity.” The defense’s effort to establish this defense was based almost exclusively on Reed’s testimony. Given that Reed’s necessity defense hinged on the credibility of his testimony, we cannot conclude that the error was harmless.

REVERSED and REMANDED.

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

      . § 790.23(l)(a), Fla. Stat (2009).

      . § 790.01(2), Fla. Stat. (2009).

      . Deputy Nelson did admit that Reed’s bicycle was more purple than pink.

      .Based on the evidence presented at the suppression hearing, we find no error in the trial court's denial of Reed’s motion. However, subsequent to the date of Reed's trial, the Florida Supreme Court rendered a decision holding "that the fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop ... to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.” State v. Bowers, 87 So.3d 704 (Fla. 2012). Although factually distinguishable, we believe that Bowers is applicable to the instant case. At the suppression hearing, the State did not present the testimony of any officer who had actually observed the purported illegal drug activity. Instead, Deputy Nelson testified, without objection, to his fellow officer’s alleged observations of a drug transaction involving an individual whose description was the basis for Reed’s stop. In light of the Bowers decision, the defendant should be allowed to seek another evidentiary hearing on the motion to suppress.

      . The essential elements of the defense of “necessity” are: (1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others, (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct, (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct, (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended. Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998); see also Butler v. State, 14 So.3d 269, 270-71 (Fla. 1st DCA 2009). The jury was appropriately instructed on the necessity defense in accordance with Florida Standard Jury Instruction 3.6(k).


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Whaley FERNANDES, Appellant, v. Valerie J. FERNANDES, Appellee.
    No. 5D10-3741.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Rehearing Denied May 25, 2012.

      Brian P. North and Nick James, of Leigh, James and Associates, Fleming Island, for Appellant.
    Rebecca Bowen Creed, of Creed & Gow-dy, P.A., Jacksonville, for Appellee.
   SAWAYA, J.

Whaley Fernandes (Husband) appeals the Supplemental Final Judgment of Dissolution and order of contempt. He argues that the trial court abused its discretion in ordering him to pay $2,000 per month in permanent alimony and in finding him in contempt of court for failing to make payments under a superseded mediation agreement. We agree and reverse.

The parties married in 1977 and had two daughters, both of whom have reached their majority. Husband is a 25-year employee of FedEx, where he earns $23.67 per hour driving a truck. He has numerous health issues that, along with the economic downturn, have caused him to work less hours and his income to decline. He generally works 35-36 hours per week, but occasionally gets to work overtime. He also provided testimony that he had become responsible for one daughter’s school loan, which had a current balance of $31,000 and was expected to reach over $70,000. He asserted that he had not taken out that loan and had not signed to do so; he discovered he was “on the hook” for the loan only when he received a loan balance statement in the mail. The loan document shows the loan to be in Husband’s name and states that he is obligated to make 118 payments of $261.56 per month.

Valerie Fernandes (Wife) worked as a receptionist for the St. Johns County School Board the year prior to the dissolution and had worked for the school board, in total, almost fifteen years. In 2008, Wife earned $20,246.58 and in 2009, she earned approximately $15,000. As of the June 2010 dissolution hearing, however, she had just received a letter from the school board advising her that she would not be re-employed for the 2010-11 school year. Her last day of work was the day before the hearing. She intended to find employment and hoped that the school board would hire her back. In prior years, she had received such letters, but had always been re-hired in the fall. She, too, has serious health issues, including pulmonary fibrosis, celiac disease, and a thyroid condition.

Wife filed for divorce in October 2008, and the case was referred to a general magistrate. Husband agreed at that time to pay the $2,226 monthly mortgage in lieu of any other spousal support. The general magistrate made a recommendation, which was subsequently confirmed by the trial court, that Husband pay the mortgage “until further order of the Court or agreement of the parties.” The parties then reached a mediated partial agreement in which various household items were divided, with the exception of one television, and Husband agreed to maintain insurance on Wife’s car “through the pending of this action.” He also agreed to pay the daughter’s college loan and give Wife 1/2 interest in his retirement accounts and 1/3 interest in his life insurance. He further agreed to “pay Wife the amount of $800 per month at the rate of $184.00 per week to assist the Wife with household expenses and other living expenses until the case is brought before the Court on the Wife’s motion or as [the] parties agree.” The parties reserved for the trial court the issues of the mortgage, disposition of the marital home, alimony, and possession of the one television.

The Final Judgment of Dissolution of Marriage was subsequently rendered and thereafter, Husband stopped making payments under the Partial Mediated Settlement Agreement. The judgment contained the following written finding that has caused considerable confusion among the parties:

A. It would be appropriate to move forward with the agreement the parties stipulated to in the Partial Mediated Settlement Agreement, dated June 22, 2009, and deny a further continuance, except as to any unresolved issues.

Wife interpreted this language as affirming and incorporating the Partial Mediated Settlement Agreement into the Final Judgment. Husband, on the other hand, read the language as simply reflecting that the case was going forward despite Wife’s request for a continuance and was of the understanding that the Final Judgment superseded the mediation agreement and all prior support agreements and orders.

Wife subsequently filed a motion for contempt alleging that the Partial Mediated Settlement Agreement had been incorporated into the Final Judgment via the above quoted provision. She alleged in her motion that Husband had stopped making the $800 monthly payment in December 2009 (the date of the Final Judgment) although he had the ability to pay. Wife also alleged that in December 2009, Husband violated the allegedly incorporated mediation agreement by cancelling her car insurance. As other evidence of contempt, she noted that the Final Judgment contained a specific provision requiring Husband to make sure that she is covered by his health insurance or COBRA and making Husband responsible for one half of the monthly premiums for said insurance. Wife alleged that Husband was in contempt for violating this provision of the Final Judgment, asserting that he had dropped her from his employer-provided insurance and had not paid Wife for one-half of the COBRA payments she had been making to keep insurance in place.

A final hearing was held both on the matters reserved in the Final Judgment, including alimony, and on Wife’s contempt motion. At the hearing, Husband raised the objection that contempt was inappropriate because the Final Judgment had superseded the Partial Mediated Settlement Agreement. He argued that by the express language of the mediation agreement, he was only to pay $800 per month temporary support and maintain car insurance for Wife until the Final Judgment was rendered. He argued that the language of the settlement agreement itself contemplated it would be affected by the eventual Final Judgment. He further contended that the $800 per month payment was temporary support that was replaced in the Final Judgment by the requirement that he pay support in an amount to maintain Wife’s health insurance. The trial court rejected Husband’s arguments and rendered the Supplemental Final Judgment of Dissolution and the contempt order that we now review finding Husband in contempt. Specifically, the trial court found that Husband failed to pay the $800 per month support payment after the Final Judgment was entered, for a total of $4221.76 in unpaid temporary support; failed to pay medical/dental insurance, causing Wife to pay $494.46 that Husband should have paid; and Husband failed to pay $972.28 in car insurance premiums. The trial court found that the total amount owed was $5,688.50, concluding, “The Former Husband is clearly in contempt for his failure to comply with these obligations he voluntarily agreed to pay.” It specifically found that Husband “has had the ability to pay” these temporary support items. The arrearage was ordered paid at a rate of $150 per month.

Addressing the contempt issue first, Husband contends that the Final Judgment did not expressly incorporate the Partial Mediated Settlement Agreement’s terms and he did not know he was supposed to comply with that agreement after the judgment was entered. The Final Judgment only provides, “It would be appropriate to move forward with the agreement the parties stipulated to in the Partial Mediated Settlement Agreement ... and deny a further continuance, except as to any unresolved issues.” It appears this provision was intended to explain why the trial court was rejecting Wife’s request for continuance. In any event, what is clear is that not only does the Final Judgment fail to explicitly incorporate the mediation agreement into the Final Judgment, the Final Judgment fails to even reference the mediation agreement in a manner showing that it was understood to have been adopted into the Final Judgment. Moreover, the Final Judgment stated that Wife’s health insurance obligation was imposed as support, without any indication whether that obligation was henceforth to be the sole temporary support award or whether that obligation was in addition to the $800 per month payment and the car insurance obligation. Neither party’s attorney was the attorney of record at the time of the Final Judgment and neither side has any direct knowledge of what was intended by the above quoted language of the Final Judgment. Under these circumstances, contempt was improper.

“For a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order.” Paul v. Johnson, 604 So.2d 883, 884 (Fla. 5th DCA 1992) (footnotes omitted); see also Bertuglia v. Roe, 42 So.3d 285, 285 (Fla. 5th DCA 2010) (“A party may not be held in contempt for violation of an order which is not clear and definite enough to provide notice of what the party is required to do in order to comply with the court’s decree.” (citing Marcus v. Marcus, 902 So.2d 259 (Fla. 4th DCA 2005); Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975))). Therefore, Husband cannot be held in contempt for willfully failing to adhere to the terms of the Final Judgment where such terms were never clearly set forth and he reasonably understood that the Final Judgment superseded the mediation agreement. The only clear obligation he had after the December 2009 Final Judgment was the health insurance obligation, which he met. He could not properly be found in contempt for not continuing to pay the $800 temporary support or car insurance premiums where there was no clear indication of any obligation to make those payments after the Final Judgment was entered.

We turn now to the alimony issue. Husband argues that the trial court abused its discretion in awarding Wife $2,000 per month permanent alimony. We agree. The court’s rationalization for awarding Wife $2,000 was to “place the Former Wife in the approximate financial position that she was in while she last earned income when her income as a ten month employee was $20,000.00 for the ten month period of employment.” To require Husband to shoulder that entire burden at the expense of leaving him unable to support himself is error. Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980) (“[A] trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ”). As the court explained in Marshall-Beasley v. Beasley, 77 So.3d 751 (Fla. 4th DCA 2011):

“The standard-of-living is not a super-factor” over the other considerations. Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006); see Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989) (“Indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household.”)_
... “Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity.” Pirino, 549 So.2d at 220.

Id. at 757.

Moreover, the amount ordered exceeded any rational support order given Husband’s own financial standing. The award would impoverish Husband and cannot, therefore, be allowed to stand.

Accordingly, we reverse the order of contempt. We also reverse that part of the Supplemental Final Judgment awarding Wife $2,000 per month permanent alimony and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER, C.J. and EVANDER, J., concur.

      . Apparently, Wife made this allegation in an attempt to fulfill the requirement of rule 12.615(d)(1), Florida Family Law Rules of Procedure, which provides, "An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, [and] that the alleged contemnor has failed to pay part or all of the support ordered....”

      . Husband cites several cases in support of his argument: Schumaker v. Schumaker, 931 So.2d 271, 274 (Fla. 5th DCA 2006) ("Once a final judgment of dissolution is rendered, the final judgment supersedes any prior temporary orders.”); Bell v. Bell, 664 So.2d 1075, 1076 (Fla. 4th DCA 1995) ("The court's written findings reflect the court's intent that the temporary arrearage order remain in effect, and the final judgment specifically incorporates the findings. We therefore affirm, but remind trial courts and counsel preparing dissolution judgments that unless temporary orders are incorporated in the final judgment they are not enforceable after final judgment.”); and Sims v. Sims, 846 So.2d 1188, 1189 (Fla. 4th DCA 2003).

      . We also note that the contempt order is fatally flawed because the trial court failed to abide by the requirements of rule 12.615, Florida Family Law Rules of Procedure. Its order did not contain specific findings that Husband had notice of the contempt proceeding, and it did not address Husband’s present ability to pay and whether he willfully failed to pay. Rather, it was silent on the notice issue and contained only the perfunctory statement that Husband "has had the ability to pay.” The order also failed to include an affirmative finding, as required by rule 12.615(2)(e), that the contemnor has the present ability to comply with the purge nor did the order provide a factual basis for that finding.


author: PER CURIAM.

text:
    Perry Omar BUCKNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-986.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2012.
    Cameron W. Eubanks of Brownstone, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. Office of State Attorney, 987 So.2d 206 (Fla. 5th DCA 2008).

PALMER, COHEN and JACOBUS, JJ., concur.


text:
    Martin Russell RYALS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2533.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2012.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011).

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


text:
    Juan Javier ROMO-JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3270.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Juan Javier Romo-Jimenez challenges the denial of his motion to suppress recordings obtained following the approval of a wiretap and the trial court’s sua sponte restriction of the cross-examination of a co-defendant. In addition, Romo-Jimenez raises a Shelton issue. Finding no error, we affirm. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition in Adkins.

AFFIRMED.

SAWAYA, COHEN and JACOBUS, JJ., concur.

      . Shelton v. Sec., Dep't of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011).


text:
    Albert HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1410.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Albert Hampton, Lake Butler, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2010-CF-004226-H, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and COHEN, JJ„ concur.


text:
    Luis F. DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-924.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Charles R.' Conroy, New York, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Castano v. State, 65 So.3d 546 (Fla. 5th DCA 2011), rev. granted, 81 So.3d 413 (Fla.2012). Because the issue reviewed in this case is currently pending before the Florida Supreme Court, mandate in this case will be withheld pending the final disposition of Casta-ño.

GRIFFIN, TORPY and LAWSON JJ„ concur.


text:
    Bruce James MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-217.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Bruce J. Miller, Belle Glade, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Bruce James Miller appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Miller’s motion raised a number of interrelated claims (numbered mostly as sub-claims), and we affirm the summary denial order as to all issues except one. Focusing on the one issue warranting reversal, Miller alleged that his trial counsel misinformed him that the State could prove the crime of dealing in stolen property, when the State’s evidence was insufficient to support a eonviction on that charge. He further alleged that he would not have pled guilty to that charge except for his counsel’s mistaken advice. Because the portions of the record attached to the trial court’s denial order do not conclusively refute this claim, we reverse the portion of the order denying this claim and remand with directions that the trial court hold an evidentiary hearing on this issue only. See Fla. R.Crim. P. 3.850(d) (2011). In all other respects, the trial court’s order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Ray W. FRIERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4528.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Ray W. Frierson, Jr., Arcadia, pro se.
    No appearance for Appellee.
   PER CURIAM.

Ray W. Frierson, Jr. appeals the trial court’s order dismissing his rule 3.850 motion, seeking enforcement of his plea agreement. The appellant argues that dismissal was improper and we agree.

On September 23, 2010, the appellant entered a plea to robbery (count one) and grand theft (count two) in Orange County Case No.2008-CF-007187. He was sentenced to nine years in the Department of Corrections followed by five years’ probation on count one and five years’ probation on count two (concurrent to the probation in count one). The appellant’s sentences were credited with two years and one hundred and thirty-five days for time served. The court later amended the sentencing order to reflect that the sentences were to run concurrent to the sentences imposed in the appellant’s Osceola County cases 2008-CR-002232, 2008-CR-002252, and 2008-CR-082253. No direct appeal was filed.

The sole issue raised in the appellant’s postconviction motion asserts that the Department of Corrections is not properly applying credit and gain time earned in his Osceola County case against his Orange County sentences. He contends that this is in violation of his negotiated plea agreement in his Orange County case, and he seeks enforcement of the agreement.

The appellant specifically maintains that while he was serving sentences in Osceola County, he was transported to face the Orange County charges. There, he entered into a negotiated plea agreement with regard to those charges, and his plea was accepted with the understanding of all parties that his Orange County sentences would be “co-terminus” with the Osceola County sentences. He was sentenced in Orange County. Despite the alleged agreement, the appellant claims the Department of Corrections is failing to effectuate the proper crediting of his sentence. Therefore, the appellant’s postcon-viction motion seeks correction of his sen-fencing documents so that the Department will apply the proper credit, thereby enforcing the plea agreement. This is a claim properly raised in the postconviction court. See Scott v. State, 19 So.3d 1115 (Fla. 5th DCA 2009).

The trial court, in reviewing the appellant’s motion and dismissing it, appears to mistakenly believe that the appellant is only challenging the Department of. Corrections’ failure to properly credit his sentence with all of the time awarded at sentencing. This is not the case, since the written sentence relied upon by the Department of Corrections in determining credit awards does not reflect the agreement as alleged by the appellant. Only the trial court can correct the written sentencing documents to properly reflect the accepted plea agreement, if they are deficient. See Jones v. State, 931 So.2d 282 (Fla. 5th DCA 2006) (citing Cowart v. State, 749 So.2d 506 (Fla. 2d DCA 1999) (claim that defendant was promised more prison credit by trial court than DOC is now providing should be raised pursuant to rule 3.850 as motion either to enforce or withdraw his plea)).

Accordingly, we reverse the order on appeal and remand to the postconviction court to consider the merits of the appellant’s motion for postconviction relief.

REVERSED and REMANDED.

SAWAYA, MONACO and LAWSON, JJ., concur.

      . Although the trial court dismissed the appellant's rule 3.850 motion, it did attach a copy of the written sentencing order.


author: COHEN, J.

text:
    Donna M. BROCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1028.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Diane Elizabeth See, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden and Rebecca Rock McGuigan, Assistants Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Donna M. Brock appeals her judgment and sentence for trafficking in fourteen to twenty-eight grams of Oxycodone. Finding no error, we affirm. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition in Adkins.

AFFIRMED.

MONACO and JACOBUS, JJ., concur.


text:
    N.S., Mother of J.S., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D12-244, 5D12-750.
    District Court of Appeal of Florida, Fifth District.
    May 22, 2012.
    Diana M. Tennis, of The Law Office of Diana M. Tennis, P.A., Orlando, for Appellant.
    Jeffrey Dana Gillen, Statewide Appeals Director, Children’s Legal Services, Department of Children and Family Services, West Palm Beach, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s concession of error, the “Judgment Withholding Adjudication of Dependency” and “Disposition Order” on appeal are reversed and this cause is remanded to the trial court with instructions to vacate said orders.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    DEPARTMENT OF CHILDREN and FAMILIES, Petitioner, v. Cayman Jerel DAVIS and State of Florida, Respondents.
    No. 5D12-1141.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2012.
    T. Shane DeBoard, Regional Counsel, Department of Children and Families, Orlando, for Petitioner.
    Daniel S. Ciener of Law Firm of Ciener & Ciener, Merritt Island, for Respondent, Cayman Jerel Davis.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
   COHEN, J.

Petitioner, Department of Children and Families (“DCF”), seeks certiorari review of a circuit court order entered in a commitment proceeding. Respondent, Cayman Jerel Davis, was charged by. amended information with two counts of lewd or lascivious battery. A competency evaluation was performed, and the circuit court thereafter entered an order adjudging Davis incompetent to proceed due to mental illness and committing him to DCF.

In filing this petition, DCF challenges the order and maintains that the written report upon which the circuit court relied did not conclude Davis is incompetent due to mental illness. Although DCF was not a party to the criminal case or commitment proceeding, it has standing to seek certiorari review of the circuit court order because it is affected by the order and no other remedy is available. See Dep’t of Children & Families v. Harter, 861 So.2d 1274, 1275 (Fla. 5th DCA 2003).

The circuit court order under review involuntarily committed Davis to DCF pursuant to section 916.13(1), Florida Statutes (2011), which governs the involuntary commitment of defendants who are mentally ill. In committing Davis, the circuit court relied on a written report prepared by Howard R. Bernstein, Ph.D., who conducted the competency evaluation. Dr. Bernstein observed that Davis had cognitive and learning deficits, borderline intellectual functioning, personality trait disturbance, and adult antisocial traits. The doctor found that no gross psychopathology was manifest, and there was no psychosis present. Ultimately, Dr. Bernstein opined that Davis was incompetent to proceed due to age-immaturity as well as educational and informational deficits.

Significantly, Dr. Bernstein did not conclude that Davis was incompetent due to mental illness. See § 916.106(13), Fla. Stat. (2011) (defining “mental illness” and specifically excluding defendants with only mental retardation and conditions manifested only by antisocial behavior); see also § 916.302, Fla. Stat. (2011) (providing for involuntary commitment of defendant determined incompetent due to mental retardation). Nevertheless, in committing Davis, the circuit court found that his incompetency was due to mental illness.

Additionally, Dr. Bernstein did not recommend that Davis be involuntarily committed to DCF for competency restoration training. Rather, he recommended that Davis receive competency restoration training in an outpatient setting. The doctor wrote:

Restoration is likely, due to no severe and chronic mental disorder, no psychotic disturbance. Competency instruction is required. Outpatient instruction by peers, teachers and advocates is suggested. Perhaps church or educational personnel would be appropriate.

Because Dr. Bernstein’s competency evaluation did not conclude that Davis was mentally ill and recommended less restrictive treatment alternatives, the circuit court departed from the essential requirements of law in ordering the involuntary commitment of Davis to DCF. See § 916.13(l)(a), (b), Fla. Stat. (2011) (requiring evidence of mental illness and evidence that all available, less .restrictive treatment alternatives have been judged to be inappropriate before involuntarily committing mentally ill defendant); cf. Dep’t of Children & Family Servs. v. Ramos, 82 So.3d 1121, 1124 (Fla. 2d DCA 2012) (holding when defendant is not mentally ill, trial court cannot commit defendant to DCF based on finding defendant’s incompetence to proceed is due to “education issues”); Graham v. Jenne, 837 So.2d 554, 558 (Fla. 4th DCA 2003) (finding that section 916.13, Florida Statutes, authorizes commitment of defendants who are both incompetent to proceed and meet criteria for commitment). We therefore grant the petition for writ of certiorari and quash the commitment order.

PETITION GRANTED; ORDER QUASHED.

TORPY and JACOBUS, JJ., concur.


text:
    Lissette C. SCHWIETERMAN, Appellant, v. James C. SCHWIETERMAN, Appellee.
    No. 5D11-143.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2012.

      Michele L. Hobby of The Law Office of Hobby & Hobby, P.A., Clermont, for Appellant.
    Patricia M. Lee, St. Petersburg, for Ap-pellee.
   COHEN, J.

Lissette C. Schwieterman appeals certain findings and rulings the trial court made in a final judgment of dissolution. We affirm in part and reverse in part.

The parties married in 2007 and had a child in December 2008. The final judgment’s provisions relating to the child form the bulk of the dispute. Critical to the resolution of this case is the determination of the standard of review. Former wife contends the trial court erred in the application of law and thus review is de novo. See Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005). Former husband contends the proper standard of review is an abuse of discretion. See Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010). In large part, the answer to that question controls the disposition of this matter.

Former wife argues the final judgment must be reversed as to the parenting plan and time-sharing schedule because the trial court presumed that the child’s time had to be split equally between the parties. She contends that the presumption used by the court violates section 61.13(3), Florida Statutes (2010), which requires the court to determine all matters relating to parenting plans and time-sharing of each minor child in accordance with “the best interests of the child.” Determination of the child’s best interests is to be made by evaluating all of the factors affecting the welfare and interests of the child and the family’s circumstances, including the factors explicitly set forth in the statute. See id. Former wife insists that, if the trial court had properly applied the factors set forth in the statute instead of a presumption that fifty-fifty time-sharing was appropriate, then the trial court would have ordered the child to live with her a majority of the time.

Former husband argues there is no evidence that the trial court applied an improper presumption that the parties should have equal time-sharing. He says the trial court considered the evidence presented at trial regarding the child’s best interests in crafting its parenting plan. Both he and former wife were granted equal time with the child, an arrangement he contends is consistent with Florida’s expressed public policy of frequent and continuing contact with both parents following a divorce, as set forth in section 61.13(2)(c)l., Florida Statutes (2010). Because there is competent substantial evidence to support the parenting plan adopted by the trial court, former husband argues the plan must be affirmed.

The parenting plan ordered by the trial court requires equal time-sharing by the parents, i.e., it calls for a fifty-fifty division of time. This is a form of “rotating custody,” the propriety of which has evolved under Florida law. See Bainbridge v. Pratt, 68 So.3d 310 (Fla. 1st DCA 2011). Prior to 1997, rotating custody was presumptively disfavored. Id. at 313. A statute enacted in 1997 allowed the court to order rotating custody if the arrangement was in the best interests of the child. See § 61.121, Fla. Stat. (1997). However, Florida courts still applied a presumption against rotating custody. See Cooper v. Gress, 854 So.2d 262, 266 (Fla. 1st DCA 2003). In 2008, the Legislature abolished the concept of custody and replaced it with parenting plans and time-sharing. Bainbridge, 68 So.3d at 313. Moreover, the Florida Legislature eliminated any presumption against rotating custody or time-sharing by amending section 61.13(2)(c)l., Florida Statutes, to now state:

It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

Ch. 2009-180, § 3, at 1853, Laws of Fla. (emphasis added). Thus, there is no presumption under current Florida law for or against any particular time-sharing schedule, including one calling for a fifty-fifty division of time. Instead, the sole requirement is that the time-sharing schedule must be set in accordance with “the best interests of the child.” See § 61.13(3), Fla. Stat. (2010).

Florida law requires the trial court to make the determination of the best interests of the child by evaluating at least twenty factors. See § 61.13(3), Fla. Stat. (2010). In the past, several factors set forth in section 61.13(3), Florida Statutes, were considered particularly relevant to the decision of whether to rotate time-sharing. One such factor was “[t]he geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan.” § 61.13(3)(e), Fla. Stat.; see Bainbridge, 68 So.3d at 313. In Bainbridge, the court examined the case law for other factors and recognized that rotating time-sharing may also have been in the child’s best interest if:

(1)the child was older and mature, (2) the child was not yet in school, (3) the parents lived near each other, (4) the child preferred rotating custody, (5) the rotation would not have a disruptive ef-feet on the child, (6) the periods of time spent with each parent were reasonable, (7) the periods of custody were related to divisions in the child’s life, such as the school year, and (8) severe acrimony and ill-will existed between the child’s parents.

Id. at 313-14 (citations omitted).

In this case, the trial court made several references to the need for equal time-sharing or a fifty-fifty division of time, which the court indicated was a matter of “fairness” and would best promote the parent-child relationship. However, the court did not refer to a presumption in favor of equal time-sharing. Instead, the court found in its written order that its time-sharing plan was in the “best interest of the minor child.... ” The court thus appears to have applied the correct legal principle in establishing a parenting plan and we reject former wife’s argument that the standard of review is de novo.

The trial court has broad discretion in child custody matters and its decision is reviewed for an abuse of discretion. Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003). A trial court’s time-sharing plan must be affirmed if there is competent substantial evidence to support that decision and reasonable people could differ with respect to the trial court’s decision. Ferri v. Apple, 900 So.2d 673, 673 (Fla. 2d DCA 2005); Sinclair v. Sinclair, 804 So.2d 589, 594 (Fla. 2d DCA 2002) (stating abuse of discretion exists only where, based on evidence presented to trial court, no reasonable person would take the view adopted by trial court). There is no statutory requirement that a trial court engage in a discussion as to each of the factors, although a discussion of the relevant factors can be helpful in determining whether the trial court’s judgment is supported by competent substantial evidence. Kelly v. Colston, 32 So.3d 186, 187 (Fla. 1st DCA 2010); Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998).

That said, this is a very close case. In the final judgment, the trial court stated: “respondent failed to present any evidence demonstrating that it was unsafe for the minor child to have equal time-sharing with the petitioner.” We can only assume that finding was not artfully drafted because there was substantial, unrebutted evidence to the contrary. The court reviewed the psychological evaluations of both parents. The psychologist found former wife, while suffering from anxiety and family stressors, to be a good and caring mom. In contrast, it was unrefuted that former husband had been committed under the Baker Act for threatening to kill both himself and the child; had exhibited violent tendencies; had been diagnosed with adjustment, depressed mood and paranoid personality disorders; had been diagnosed with severe family stressors; and had been placed on psychotropic medications. We must interpret the trial court’s finding that “respondent failed to present any evidence ...” in conjunction with other findings in the final judgment, namely, that subsequent to former husband’s initial psychotic reaction, there were no further temper outbursts like those which occurred at or around the time of the break-up of the marriage, and that former husband has been engaged in counseling. The trial court noted that the psychologist’s report dispelled any concern regarding the child’s safety while in former husband’s care.

The trial court was presented with a preschool-aged child who had been cared for by the paternal grandmother while both parents worked. There was evidence former wife had denied visitation due to concerns about former husband’s mental health. Former wife submitted a parenting plan that allowed former husband only two days supervised visitation per month, which the trial court felt was unreasonable.

No doubt other judges could very well have reached a different result, but in its totality, we cannot find a lack of competent substantial evidence to support the trial court’s determination or that the trial court abused its discretion. Her findings seem to discount former wife’s testimony and concerns and the credibility of witnesses is uniquely a function of the trial court, which is in the best position to evaluate witnesses. See, e.g., Maliski v. Maliski, 664 So.2d 341, 343 (Fla. 5th DCA 1995). Therefore, we affirm as to the time-sharing plan adopted by the trial court.

Former wife further argues that the trial court erred by including certain miscellaneous provisions in the parenting plan attached to the judgment which permitted former husband’s parents to act as referees in the event of a dispute between former husband and former wife, to determine the child’s best interests, and required them to hold all of the child’s legal documentation. The specific provisions in question state:

A. Vern Victor Schwieterman and Judy Ann Schwieterman [former husband’s parents] can make any immediate decision for the best interest of the Child, only if a mediator, the child’s primary Physician, school counselor, or family counselor is currently not available to help both parents when they cannot agree on any decision for their child’s well fare [sic].
B. All legal documentation such as the child’s Social Security, Birth Certificate, and Passport shall remain under the legal guardianship control of Judy Ann Schwieterman and Vernon Victor Schwieterman until the child is the age of fifteen.

Yet another provision stated that “[sjched-uled medical appointments of the Child must be notified to the other parent and Judy Ann Schwieterman.”

Former wife is correct that these provisions interfere with her rights as a parent to direct and control the upbringing and education of her child. A parent has a fundamental liberty interest against government interference with her or his parental rights. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Beagle v. Beagle, 678 So.2d 1271, 1275 (Fla.1996). These rights include the ability to make decisions in the child’s best interest, to make medical decisions, and to hold the child’s legal documentation without interference from former husband’s parents. See generally Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing parents’ fundamental interest in care, custody, and management of their child). In the event of a deadlock between the parents regarding these issues, the dispute must be presented to the trial court for resolution in accordance with the child’s best interests. Gerencser v. Mills, 4 So.3d 22, 23 (Fla. 5th DCA 2009); Sotnick v. Sotnick, 650 So.2d 157, 160 (Fla. 3d DCA 1995); Taman v. Turko-Tamari, 599 So.2d 680, 681 (Fla. 3d DCA 1992). It is error for the trial court to delegate the ultimate decision as to visitation and other issues to a third party. Lovell v. Lovell, 14 So.3d 1111, 1114 (Fla. 5th DCA 2009).

Here, the provisions improperly allow former husband’s parents to resolve a dispute between the parties. Additionally, while there is no impropriety in ordering former wife to notify former husband of any medical appointments, she should not be required to notify former husband’s parents in lieu of former husband. Accordingly, we reverse those provisions within the final judgment.

Former wife’s argument regarding the trial court’s failure to allow admission of a tape-recorded phone call is without merit. Former wife was allowed to testify as to the contents of the call and its substance was not disputed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED for entry of an amended final judgment consistent with this opinion.

MONACO and LAWSON, JJ., concur.

      . Recently, in Mudafort v. Lee, 62 So.3d 1196, 1197 (Fla. 4th DCA 2011), the court indicated that the Legislature's elimination of any presumption against time-sharing also eliminated the need to review any special factors when ordering equal time-sharing. However, the Bainbridge court disagreed with this portion of the Fourth District’s opinion, explaining that the factors were still useful in determining the propriety of this type of relationship. 68 So.3d at 314 n. 1. Most of these factors are listed in the statute, and therefore appear relevant to the trial court’s determination.

      . This does not mean, however, that the court itself decides the issue. Instead, the court is entitled to grant one parent decision-making responsibility if the parties are unable to reach agreement. § 61.13(2)(c)2.a., Fla. Stat. (2010); see Abbo v. Briskin, 660 So.2d 1157, 1161 (Fla. 4th DCA 1995).


text:
    Jason Michael DONALD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1391.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant raises two points on appeal. We affirm as to the first point without further discussion. As to the second point, we affirm based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED; QUESTION CERTIFIED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Jeremy FERRARA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-704.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Rehearing Denied Aug. 6, 2012.
    Jeremy Ferrara, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Ferrara appeals the summary denial of his motion for postconviction relief. We affirm as to the denial of Ferrara’s second claim, but reverse as to the first claim. We conclude that the record does not conclusively refute Ferrara’s allegation that his counsel was ineffective in misadvising him regarding the maximum sentence he could receive if found guilty after trial, which caused him to reject a favorable plea offer from the State. See Wright v. State, 892 So.2d 1209 (Fla. 5th DCA 2005) (where defendant alleged that counsel advised him that he faced maximum sentence of fifteen years in prison when he actually faced life imprisonment and defendant rejected favorable plea offer of two years in prison, defendant sufficiently alleged prejudice even though he only received fifteen-year prison sentence); see also Parks v. State, 814 So.2d 1135 (Fla. 5th DCA 2002); Lester v. State, 773 So.2d 1188, 1189 (Fla. 2d DCA 2000) (mere fact that defense counsel advised defendant that State had served notice of intent to seek habitualization did not mean counsel had explained to defendant what habitualization meant).

As the attachments to the trial court’s order did not conclusively refute Ferrara’s first claim, we reverse and remand for the trial court to attach portions of the record refuting the claim or to hold an evidentiary hearing.

AFFIRMED, in part; REVERSED, in part; REMANDED.

SAWAYA and COHEN, JJ., concur.


text:
    Carlos GUERRA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1644.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   COHEN, J.

Carlos Guerra has filed a As we have done in similar cases, we grant Guerra’s petition and remand for a new trial on the attempted second-degree murder charge. See Mendenhall v. State, 82 So.3d 1153 (Fla. 5th DCA 2012); Dill v. State, 79 So.3d 849 (Fla. 5th DCA 2012); Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011). We again certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

PETITION GRANTED; REMANDED for new trial.

PALMER and LAWSON, JJ., concur.


author: ■ PER CURIAM.

text:
    Gregory L. HOOVER, Appellant, v. Jack PARKER, as Brevard County Sheriff, Appellee.
    No. 5D11-3490.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Gregory L. Hoover, Cocoa, pro se.
    No Appearance for Appellee.
   ■ PER CURIAM.

Affirmed without prejudice to the right of the appellant to again seek the public records he desires by tendering the required payment. See Deas v. State, 985 So.2d 69 (Fla. 4th DCA 2008).

AFFIRMED.

PALMER and JACOBUS, JJ., and MONACO, D.A., Senior Judge, concur.


text:
    Vifrancis LOPEZ, Appellant/Cross-Appellee, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 5D11-4339.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.

      Vifrances Lopez, Orlando, pro se.
    Brenda J. Newman of Killgore, Pearl-man, Stamp, Ornstein & Squires, P.A., Orlando for Appellee/Cross-Appellant.
   ON MOTION TO STRIKE ANSWER BRIEF

PER CURIAM.

State Farm Florida Insurance Company moved to strike the answer brief filed by Vifrancis Lopez, alleging that the brief was filed ten days beyond the time limit mandated by the Florida Rules of Appellate Procedure. Determining that the answer brief was timely served, we deny the motion to strike. We write, however, to address the unnecessary burden placed upon both Lopez and this court by counsel for State Farm’s unprofessionalism in filing a meritless motion and, more significantly, in failing to withdraw such motion when its lack of merit was made clear.

Pursuant to rule 9.210(f), Lopez’s answer brief was due to be served within twenty days after State Farm served its initial brief. Rule 9.420(e) provides that five days shall be added to the prescribed time if service of the initial brief is made by mail. Also, rule 9.420(f) provides that, if a deadline falls.on a Saturday or Sunday, the deadline is extended to the next work day. Applying these rules, the answer brief was timely served.

Nevertheless, counsel for State Farm filed a motion to strike Lopez’s answer brief. Lopez filed a response, detailing each of the rules referenced above and clearly establishing that her brief was timely served. Even then, State Farm’s counsel did not withdraw her motion to strike. As a result, this court was required to expend time and effort addressing it. A staff attorney of the court was required to review the motion and prepare a summary and recommendation for a panel of the court. Then, the panel was required to spend time reviewing and ruling upon the motion, and then preparing an order denying the motion.

Attorneys handling appeals in our court have a professional responsibility to have a working knowledge of the Rules of Appellate Procedure and to act in a way that does not force the opposing party or the court to expend time and effort on baseless matters. In addition to not filing a merit-less motion, an attorney also has a professional responsibility to withdraw a motion when its lack of merit is made clear.

MOTION DENIED.

PALMER and JACOBUS, JJ., and MONACO, D.A., Senior Judge, concur.


text:
    HORIZONS A FAR, LLC, Appellant, v. PLAZA N 15, LLC, et al., Appellees.
    No. 5D11-2469.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.

      Craig A. Brand of The Brand Law Firm, P.A., Orlando, for Appellant.
    Stacy J. Ford of Pohl & Short, P.A., Winter Park, for Appellee.
   COHEN, J.

Horizons A Far, LLC (“Horizons”), seeks interlocutory review of the trial court’s non-final order denying the appointment of a receiver entered in favor of Appellees. We reverse.

In 2011, Horizons, a member of Plaza N 15, LLC (“Plaza”), filed a sworn complaint against Plaza’s managing member and subsidiary company. The complaint alleged causes of action for breach of fiduciary duty and conflict of interest arising primarily from violations of Plaza’s operating agreement. The complaint further sought injunctive relief in the form of an accounting, the temporary or permanent, if applicable, removal of the managing member, and the temporary appointment of a receiver to aid in an accounting and act as manager of Plaza in the manager’s stead. Horizons simultaneously filed an emergency motion seeking the same injunctive relief and appointment of a receiver.

While the motion was pending, the parties completed an accounting and Horizons filed an amended sworn complaint wherein it altered the claim for an accounting and raised additional causes of action, including fraud. After a hearing on the emergency motion, of which there is no transcript, the trial court denied the motion on the basis that Horizons waived the right to seek appointment of a receiver under Plaza’s operating agreement. We disagree with the trial court’s interpretation of the operating agreement.

The trial court based its decision on section 13.4 of the operating agreement, which provides:

No Petition for Dissohition. The Members agree that irreparable damage would be done to the good will and reputation of the Company if any Member should bring an action in any court to dissolve the Company and to have a liquidator or receiver for the Company appointed. Care has been taken in this Agreement to provide what the parties feel is fair and just payment in liquidation of the Interests of all Members. Accordingly, each Member hereby waives and renounces any right to file or pursue any such petition for dissolution of the Company or to seek the appointment by any court of a liquidator or receiver for the Company. If any Member, in violation of the foregoing provision, does file or pursue any such dissolution or liquidation petition or action in any court, the Company and/or any of the other Members shall be entitled to an injunction, as a matter of right, against such petition or action.

On appeal, Horizons argues section 13.4 did not constitute a waiver of its right to seek appointment of a receiver because it did not file a dissolution or liquidation action. Horizons claims section 13.4 only waives a member’s right to seek appointment of a receiver within the context of a dissolution or liquidation action. Conversely, Plaza argues the trial court properly interpreted the operating agreement to include a waiver of its members’ right to seek appointment of a receiver in all actions directed towards the company.

The trial court’s interpretation of a contract is a question of law subject to de novo review. Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 910 So.2d 381, 383 (Fla. 5th DCA 2005). The parties’ intent, which must be gleaned from the four corners of the document, governs contract interpretation and construction. Crawford v. Barker, 64 So.3d 1246,, 1255 (Fla.2011); Whitley, 910 So.2d at 383. A clear, complete and unambiguous contract does not require judicial construction. Jenkins v. Eckerd Corp., 913 So.2d 43, 50 (Fla. 1st DCA 2005). In interpreting a contract, “[cjourts are not to isolate a single term or group of words and read that part in isolation; the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.” Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002); see also Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So.2d 195, 197 (Fla.1992) (stating determination of intent requires consideration of contract’s language, subject matter, and object and purpose).

Section 13.4 is comprised of four sentences: two general statements of purpose, a statement of the parties’ agreement as to waiver, and a statement providing for the consequences of violating the agreement. The first sentence provides that the members agree “irreparable damage would be done to the good will and reputation of the Company if any Member should bring an action in any court to dissolve the Company and to have a liquidator or receiver for the Company appointed.” (Emphasis added). Employing the conjunction “and” suggests that the damage to Plaza would result from the filing of a dissolution action and petition to have a receiver (or liquidator) appointed therein. While the first sentence explains the potential damage of seeking to appoint a receiver or liquidator in the context of a dissolution action, the second sentence states that: “Care has been taken in this Agreement to provide what the parties feel is fair and just payment in liquidation of the Interests of all Members.” (Emphasis added). Plaza’s general interpretation of waiver is not consistent with the limited context in which the first two sentences of section 13.4 exist — dissolution and liquidation actions.

The third sentence, which the trial court found decisive, provides: “[E]ach Member hereby waives and renounces any right to file or pursue any such petition for dissolution of the Company or to seek the appointment by any court of a liquidator or receiver for the Company.” (Emphasis added). Though this language indicates the parties intended that the members waived the right to seek appointment of a receiver generally, the surrounding language of section 1B.4 strongly supports the interpretation that the parties’ agreement to waive the right to appoint a receiver was intended to be limited to the context of dissolution or liquidation proceedings.

The final sentence provides for a penalty if the waiver agreement is violated. That sentence reads: “If any Member ... does file or pursue any such dissolution or liquidation petition or action in any court, the Company and/or any of the other Members shall be entitled to an injunction ... against such petition or action.” (Emphasis added). Under Plaza’s interpretation, it would not be entitled to an injunction where a receiver is sought outside the context of a dissolution or liquidation action, an interpretation which renders the injunction penalty partially inapplicable and meaningless. See Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005) (explaining courts will not render provisions meaningless when there is a reasonable interpretation that does not do so). Additionally, the words “or action in any court” do not refer to an action to appoint a receiver, as Plaza claims. Instead, the words “dissolution” and “liquidation” modify the words “petition” and “action,” and no reference is made in this sentence to an action to appoint a receiver.

A limited interpretation of waiver under section 13.4 is reasonable in the context of the entire operating agreement. Section 13.4 is but part of the larger article of the operating agreement dealing with dissolution, liquidation and reinstatement of the company post-dissolution. Section 13.4 is the fourth and final provision of the article, restricting company members from seeking specific relief in court. When read in the context of the entire agreement, section 13.4 evidences the parties’ intent to waive the right to appoint a receiver only in the context of a dissolution or liquidation action. Accordingly, the trial court erred in its interpretation.

Because the trial court relied on an erroneous interpretation of the operating agreement, it did not reach the issue of whether appointment of a receiver was appropriate. There are significant expenses and ramifications to the appointment of a receiver, which should be exercised with great circumspection. See McAllister Hotel, Inc. v. Schatzberg, 40 So.2d 201 (Fla.1949); Apalachicola N.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361 (1920). This Court does not express an opinion as to the merits of Horizons’ request to appoint a receiver, and remands for such a determination.

REVERSED and REMANDED.

TORPY and LAWSON, JJ, concur.

      . Prior to entering the order on Horizons’ emergency motion for injunctive relief, the trial court granted Plaza's motion to dismiss the request to appoint a receiver on the same basis. However, the amended sworn complaint seeking appointment of a receiver was filed immediately before entry of the motion to dismiss.


author: GRIFFIN, J.

text:
    HEALTH FIRST, INC., Holmes Regional, etc., et al., Appellants, v. Richard A. HYNES, M.D., Facs, et al., Appellees.
    No. 5D11-632.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.

      Sylvia H. Walbolt, Matthew J. Coniglia-ro, and Leah A. Sevi of Carlton Fields, P.A., Tampa, and Jerome W. Hoffman, Dominic C. MacKenzie, and David C. Bo-rucke of Holland & Knight LLP, Tallahassee, and Clifton A. McClelland, Jr. of McClelland, Jones, Lyons, Lacey & Williams, LLC, Melbourne, for Appellants.
    S. Sammy Cacciatore, of Nance, Caecia-tore, Hamilton, Barger, Nance & Caccia-tore, Melbourne, for Appellees.
   GRIFFIN, J.

This is an antitrust case brought by Dr. Richard Hynes and his orthopedic center [“Plaintiffs”] against Health First, Inc. [“Health First”], Holmes Regional Medical Center, Inc. [“Holmes Regional”], Cape Canaveral Hospital, Inc., Health First Physicians, Inc., and Health First Health Plans, Inc. [“Defendants”]. Health First is the parent company of the other defendants, which are separate, wholly owned subsidiaries. Plaintiffs allege that, among other things, Defendants monopolized the hospital services market and tortiously interfered with Plaintiffs’ business relationships.

While this suit was on-going, Dr. Hynes made a call to a non-party, Dr. Marty Brown, who is another physician on staff at Holmes Regional. Dr. Hynes intentionally placed the call on what he knew to be a digitally recorded hospital emergency room telephone line so there would be a record of the call. During that call, Dr. Hynes made statements that Dr. Brown perceived to be threats against him personally. Both physicians knew the call was being recorded. The call was approximately thirty-six minutes in duration.

Shortly after the call from Dr. Hynes, Dr. Brown requested a copy of the recorded call from Holmes Regional. He claims that he did so because he was shocked that the president of the medical staff had threatened him in such a manner. Holmes Regional subsequently e-mailed Dr. Brown a shortened version of that call, approximately eight minutes in length. According to Holmes Regional, within a few days after the telephone conversation, the hospital had made a short version of the thirty-six minute recording in order to communicate by e-mail to many of their doctors and others about what had transpired between Dr. Brown and Dr. Hynes. Dead air and other pauses were deleted, but it was also substantively shortened, to provide “highlights.” That is what was sent to Dr. Brown when he asked for it shortly after the phone call took place.

Several months later, Plaintiffs subpoenaed Dr. Brown for deposition in this case, requesting that he produce “any documents (including e-mails) (1) to or from, or discussing, Dr. Richard Hynes....” Through his own attorney, Dr. Brown produced a compact disc containing the eight-minute recording that he had gotten from Holmes Regional, which he says was the only one he possessed.

Plaintiffs’ lawyers played that recording and introduced it as an exhibit at Dr. Brown’s March 25, 2009, deposition. Dr. Brown said that he received the recording from Mr. Senne, Holmes Regional’s president. He was not asked whether the recording reflected his entire conversation with Dr. Hynes. During the deposition, a chain of e-mails was introduced, mentioning the “40 minute phone call.”

The litigation proceeded for about a year with no further specific request by Plaintiffs counsel for a recording of the telephone call. Apparently, Plaintiffs counsel had assumed that what he got from Dr. Brown was the entire recording.

On April 29, 2010, almost a year after Dr. Brown’s deposition, Defendants called Dr. Brown to testify at a hearing on Dr. Hynes’s motion for a protective order, in which he sought to preclude any adverse action against him or others because of litigation against the hospital. After questioning Dr. Brown about Dr. Hynes’s July 2008 call to him, Defendants’ counsel announced that he would play a recording of the call. Counsel told the court that it would last “about 85 minutes.” Holmes Regional had previously given this recording to Defendants’ counsel. Defendants’ counsel in turn gave a copy of it to Plaintiffs counsel the morning of the hearing. Immediately after the full recording was played for the court, Plaintiffs’ counsel, who had been present at Dr. Brown’s deposition when he produced the eight-minute audio file, moved ore tenus for sanctions, claiming that Defendants had given Plaintiffs an altered and misleading version of the tape, essentially attempting to perpetrate a fraud on the court.

In the ensuing hearing, defense counsel offered the court a variety of explanations about why there might be two versions of the tape, but even after a recess overnight to allow for the gathering of facts, defense counsel seemed to be unable to articulate the factual scenario summarized at the hearing that was outlined in more detail in defendants’ subsequently filed memorandum. Defense counsel seemed to understand that the shortened version of the recording was related to e-mail, but he suggested that the recording of the conversation was merely truncated, not edited.

Several weeks later, Plaintiffs filed an extensive memorandum in support of their ore tenus motion for sanctions that included a comparison of the two tapes. Defendants filed a memorandum in opposition. When the trial court was made aware in the memorandum that, indeed, the short version was substantially edited and that defense counsel’s explanation had not been accurate, the court concluded that a fraud had been attempted by Holmes Regional and it entered a detailed sanctions order. This apparently occurred in an environment of acrimony and bad behavior by the litigants and their counsel that appears to have led to exasperation and suspicion on the part of the trial court. The lower court entered its sanctions order prohibiting Defendants from using either version of the Hynes/Brown conversation for any purpose or using any other telephonic recordings. Attorney’s fees were awarded that were subsequently assessed at $37,517.84.

It appears from the record that there is at least one finding by the trial court that is not accurate: (1) that the duces tecum deposition notice of Dr. Brown required production of the extended recording of the conversation with Dr. Hynes. Another important finding that probably is erroneous is that Dr. Brown’s request for and receipt of the recording from Holmes Regional was the result of the duces tecum request. There is no sworn evidence on this point, however. In the record before us, the facts underlying many of the findings in the trial court’s order are simply not clear, and the inferences to be drawn from the facts even less so. Given the gravity of the conclusions in the order, there will have to be an evidentiary hearing to sort out whether fraud or similar misconduct occurred. Getting at the truth of this claim of fraud on the court may well require in camera inspections of otherwise attorney-client privileged or work-product immune files or communications of both parties and their counsel.

REVERSED and REMANDED.

SAWAYA, J., and MARSTILLER, S„ Associate Judge, concur.

      . The law firm of Carlton Fields, P.A., did not represent defendants below.


text:
    Robert JONES and Julie Jones, Appellant, v. PUBLIX SUPER MARKETS, INC., Appellee.
    No. 5D09-4120.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.

      Desiree E. Bannasch, Orlando, for Appellant.
    Art C. Young, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee.
   PER CURIAM.

Robert Jones and Julie Jones [“the Joneses”] appeal a final judgment entered in favor of Publix Super Markets, Inc. [“Publix”] with respect to the negligence suit that the Joneses brought against Pub-lix after Mr. Jones fell in a Publix store. The Joneses argue that the trial court erred by (1) denying their motion to sanction Publix for its failure to timely disclose a key witness’s known address, (2) refusing to give a Valcin instruction with respect to Publix’s alleged spoliation of a surveillance video, (3) excluding Mrs. Jones’s testimony about a statement made by a Publix employee that constituted an admission of a party opponent, and (4) denying their motion in limine to exclude evidence of Mr. Jones’s involvement in previous motor vehicle accidents.

The Joneses filed a personal injury complaint against Publix on September 22, 2005, alleging that, on September 24, 2001, due to Publix’s negligent maintenance of a store’s premises, Mr. Jones slipped on a puddle of water in an aisle across from customer service and fell, sustaining significant injuries. Within three months after the accident, counsel for the Joneses asked Publix for the identity of any witness, but Publix refused. Suit was filed and discovery was propounded to Publix. Publix responded that there was one witness, Ivan Martinez [“Martinez”], but that Publix did not have his address. Publix asserted work product for the statement that it had taken from Martinez. As the trial date approached, Publix’s witness list was amended several times, but each time, the address information was the same for Martinez — address unknown.

During the week prior to the trial, while the attorney handling the case for Publix was out of the country, his staff again amended the witness list. This time, however, an address for Martinez — 12745 Woodbury Glen Drive — appeared, and, this time, it was identified as the last known address. It turned out that the “last known” address finally given was the same address at which Martinez had continually resided since well before the accident in 2001. By 2008, however, when counsel for the Joneses contacted him at the Wood-bury Glen Drive address, he no longer recalled much about the events. Counsel for the Joneses filed a motion to strike Publix’s pleadings and motion for default for this discovery violation. At the first hearing, counsel for Publix told the trial judge that they had not known how to get in contact with Martinez, but the trial judge was skeptical. She ordered the matter to be further heard. She specifically ordered counsel for Publix to be prepared to explain when and where they got the address for Martinez. She also ordered that Publix bring to the hearing the statement taken from Martinez and any other discovery information pertaining to Martinez. In a remarkable understatement, the trial judge explained to counsel for Publix: “But if the victim doesn’t know how to get ahold of the witness and you do, and she asks and you don’t tell her, that’s a problem.”

At the hearing on September 22, 2008, counsel for Publix elaborately and repeatedly explained to the trial court that they “never had the address of Mr. Martinez” and “never did.” According to counsel, he had reviewed the incident report and all they had available for Martinez was a “then” phone number. This naturally led the trial judge to inquire how Publix obtained the address finally given in the recently amended witness list. Counsel responded that he did not have it. Instead, he or his staff just looked in the phone book, found three “Ivan Martinezes” listed, and gave them all to counsel for the Joneses. Counsel said: “We gave her everything it is that we could conceivably ever had or mustered.” Counsel for the Joneses corrected that statement, pointing out that all she had been given was the one newly disclosed “last known address.” She also pointed out that the phone number had never been disclosed. Obviously confused by the discrepancies between the attorneys’ wildly differing versions about what was known or not known and what had been disclosed, the trial judge took a recess to study the record.

When the hearing recommenced, counsel for Publix reiterated that he did not provide the address in them February 24, 2006, answers to interrogatories because “we don’t have it and never did.” Still dubious, the judge asked: “[S]o where did you get this address that came in four days ago?” The response from counsel was that the address they disclosed four days earlier was just one of a number of addresses found in the phone book, or other reference, for Ivan Martinez. Counsel said: “[Wjhen we disclose ‘a’ [sic] address, we’re not sure it’s ‘the’ address. We still don’t know.” Not so easily put off the point, the trial judge began to ask about the statement taken by Publix referenced in the original interrogatory answer as a possible source of the address. Counsel for Publix told the court that there was no statement from Martinez. Rather, a Specialty Risk Services representative had interviewed him, but it was not question/answer. It was a synopsis.

Still perplexed, the trial judge said: “You know, if I were in your position I wouldn’t just make up an address or pull one willy-nilly out of the phone book that I didn’t confirm his address after years of saying you don’t know how to reach him.” Counsel then elaborated once more: “Well, Your Honor, basically what happened was we were unable to locate Mr. Martinez, and so I basically told my staff to find every Ivan Martinez you can in the Central Florida area and we’ll send him [sic] a letter and see if we can get a response.... Those are the addresses that you’re seeing.” Soldiering on, the trial judge said: “Oh, there’s only one address that was given.... You’ve listed him as a witness and gave an address, and Plaintiffs’ counsel went crazy.” To that, Publix’s lawyer responded: “And what I’m telling the Court as an officer of the court is that I don’t have any idea of Mr. Martinez’s actual address.... It is a similarly-named gentleman for sure, but the alleged witness in this case I cannot attest to that one way or the other.”

This representation as an “officer of the court” seemed to satisfy the trial judge, and she asked counsel for the Joneses if that was “OK” with her. It was not. Counsel for the Joneses reminded the court that she had ordered the attorneys for Publix to bring both Martinez’s statement and the incident report to see if the address for Martinez was contained in either. Counsel for Publix responded: “If it will satisfy Your Honor about — this has come down to a credibility in [sic] counsel, integrity — .” Accordingly, two documents were adduced by counsel for Publix, marked as A and B, and handed to the trial judge. The record does not reflect how long the court perused the first document before she said: “[T]here is an address next to his name.” The address was 12745 Woodbury Glenn Drive, the address that had finally appeared four days earlier on the amended witness list. The trial judge asked counsel for Publix for an explanation. He responded: ‘Your Honor, I can’t tell you anything other than what I have already told you. My contact with Mr. Martinez was unsuccessful.”

The trial court ordered the trial to be taken off the docket and said she was “too ticked off at several people” to proceed. She said that she was “a little miffed at them ... and it wouldn’t be fair to take up the motion to strike pleadings or affirmative defenses “right now either.” The Joneses filed an amended motion to strike Publix’s pleadings and affirmative defenses, and motion to issue a default judgment against Publix. The trial court entered an order denying the Joneses’ amended motion to strike Publix’s pleadings, without prejudice to the Joneses bringing the motion again. Instead, the trial court directed Publix to provide the Joneses with all of their incident reports and statements of witnesses. Publix provided the Joneses with the question and answer statement that Martinez gave to the claims representative. In his statement, Martinez described that Mr. Jones’s fall was due to water on the floor. He explained that there had been a young couple there from whom he believed Publix received contact information, and that it was the young lady who dropped a gallon of water on the floor.

Prior to trial, additional motions were filed. Publix filed a motion in limine to exclude a portion of Mrs. Jones’s expected testimony, specifically Mrs. Jones’s statement that when she spoke with an unidentified female Publix employee after Mr. Jones’s fall, the employee told her that she had already called someone to come and clean up the water.

At trial, the trial court denied the Joneses’ renewed motion in limine to exclude evidence of prior accidents. It also ordered that Mrs. Jones would be precluded from testifying that when she reported Mr. Jones’s fall, a Publix employee informed her that they had already sent someone to clean up the water. The trial court decided that his disclosure was tardy. During the jury charge conference, the Joneses requested that a Valcin instruction be given with respect to Publix’s alleged spoliation of a surveillance videotape that captured Mr. Jones’s fall, which the trial court refused. The jury returned a verdict in favor of Publix. The Joneses filed motions for a new trial, which the trial court denied.

The Joneses’ first issue on appeal is whether the trial court erred by failing to sanction Publix for its failure to timely provide the address of Martinez, the independent witness, to Mr. Jones’s fall. In its response to the Joneses’ first motion for sanctions, Publix explained that it informed the Joneses, through interrogatory answers, that Martinez witnessed the accident, that “a recorded statement was taken” of Martinez, that Ivan Martinez’s statements were protected by the work product privilege, but that Martinez’s address was unknown. The statement that the address was unknown is manifestly untrue, as the address of Mr. Martinez appears on the face of the December 28, 2001, statement ultimately ordered disclosed to the Joneses.

Counsel for the Joneses asserted her belief that, since the very beginning, Pub-lix had the address and phone number of Martinez, a “very key witness,” but deliberately withheld it. Counsel for the Joneses pointed out that Publix’s privilege log indicated that Publix did an incident report on September 24, 2001 and took Martinez’s statement on December 28, 2001, and, therefore, Publix “had to get in touch with him somehow.” It was only through counsel for the Joneses persistence that defense counsel’s knowledge of the address and telephone number of Martinez finally were revealed.

On appeal, Publix offers no defense of its failure to disclose the address; what is more, it simply ignores the point. Publix instead basically argues that they supplied the name of the witness, Ivan Martinez, in 2008, and plaintiffs’ counsel should have found the address herself. Publix also claims that there is no proof that the Joneses’ case was harmed by the failure to disclose the address of Martinez since it is impossible for the Joneses to show when he forgot what he knew in 2001.

In light of the record evidence, there is no doubt that, through its counsel, Publix violated the most basic rule of discovery by failing to timely disclose the address that was on its witness statement. The record also reveals that, with the benefit of the address finally provided in 2008, the Joneses were able to make contact with Martinez very soon. Unfortunately, Martinez testified that he no longer recalled the details of the incident. Based upon the record evidence, Publix’s late disclosure of Martinez’s address adversely impacted the Joneses’ case and their trial preparation. While Martinez was able to describe details of the incident shortly after it occurred, he was unable to do so by the time the Joneses were able to extract the contact information from Publix and get into contact with him. Importantly, the details described by Martinez suggest that Mr. Jones did fall due to water on the floor, that Publix had notice of the water spill prior to the fall, and that Publix likely had the contact information of the customer who spilled the water. Had the Joneses been provided with Martinez’s address when it was first requested and should have been provided, Martinez may have been able to give the Joneses the same or better details of the incident that he gave to Publix. If not, the Joneses would have had the opportunity under the rules of discovery to argue for disclosure of the work product to aid his recollection.

Although the question of imposition of sanctions for discovery violations and related attorney misconduct is a matter best left to the trial court’s discretion, that discretion is not without boundaries. Because Publix falsely maintained that it did not have contact information for Martinez and the excuses given by counsel for Pub-lix were incredible, it would have been error not to sanction Publix or its counsel for their misconduct. The trial court did require Publix to turn over to the Joneses their work product consisting of the witness statement of Martinez, but under the circumstances, the Joneses were entitled to that much under the rules of discovery. See Fla. R. Civ. P. 1.280(b)(8). For whatever reason never expressed in the record, in the face of multiple opportunities and considerable provocation, the trial court decided not to strike Publix’s pleadings for their counsel’s misconduct. If the trial court had done so, that sanction would have had our support. Instead, as Appellants urge, there effectively was no sanction for failing to disclose the address. Although we are not in a position to dictate what sanction the trial court must impose, we can require that some sanction be imposed. At the very least, under the rules of discovery, the Joneses are entitled to reimbursement for the fees and costs of uncovering the concealment of the witness’s address and for obtaining the discovery that they were entitled to have. See Fla. R. Civ. P. 1.380.

As we have already said about the willful non-disclosure of truthful facts in discovery: “A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.” Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998). If trial counsel cannot be relied on to comply with their ethical obligations for something as basic as the address of a witness, we will either have to do a better job of punishing misconduct or devise an entirely new system. On remand to the trial court, the trial court shall award to the Joneses their expenses associated with the failure of Publix to disclose the Martinez address. We further instruct the Clerk of this Court to forward this opinion to the Florida Bar for its examination of the conduct of counsel.

The Joneses also urge that the trial court erred by failing to give a Valcin instruction based on Publix’s spoliation of a video of Mr. Jones’s fall. The incident report that the trial court directed Publix to provide to the Joneses identifies Alan Milliron [“Milliron”] as the Publix manager who completed the report, and Melanie Goldstein as the person who told Milliron about the accident. The report contains several questions that are followed by “YES” and “NO” check boxes. The “NO” check box following the question, “DID ANY STORE ASSOCIATE SEE THE ACCIDENT,” has a check mark. The “YES” check box following the question, “SECURITY CAMERAS,” has a check mark. Beneath the check boxes pertaining to the security cameras question is the directive: “IF YES, FORWARD TAPE WITH REPORT.”

The Joneses, in a second request to produce dated April 15, 2009, asked Publix to provide them with video of the incident, as well as videos recorded of the front half of the Publix store surrounding the time frame of the incident. In its response to the request, Publix indicated that there was “NONE.”

Milliron testified during the trial that he had been the manager on duty at the store at the time of the incident. Milliron confirmed that he filled out the incident report on the day that the incident occurred. He indicated that his recollection of the incident was “[v]ery little” and that any recollection that he might have would probably be based upon the information in the incident report. Milliron also indicated that he did not witness Mr. Jones’s fall. When shown the incident report and asked if he had independent recollection of whether he forwarded a tape with the report, Milliron said: “No, I don’t.” Milli-ron confirmed that it would have been his “usual and customary way of doing things to pull the tape and send the tape with the report.... ” The following exchange transpired regarding Milliron having checked ‘YES” in response to the security cameras question on the incident report:

Q. Mr. Milliron, by checking yes where security cameras, that doesn’t state that there actually was a tape; is that correct? It’s just indicating that there were security cameras in existence?
[PLAINTIFFS’ COUNSEL]: Objection, leading.
THE COURT: Overruled.
A. I believe that means are there security cameras in the store—
[DEFENSE COUNSEL]:
Q. Right.
A. —in this particular store.

During the jury charge conference, the Joneses requested that a Valcin instruction be given with respect to Publix’s alleged spoliation of a surveillance video that captured Mr. Jones’s fall.

Publix claims no video ever existed, although no explanation is offered for the statement in the incident report that there were security cameras in the store. Presumably, there was a surveillance camera positioned to capture images at the location where Mr. Jones happened to fall as well as at the location of the customer service desk. In light of the incident report, which directs any surveillance video to be forwarded with the report, the unexplained lack of any surveillance video is suspicious, especially given the wrongful withholding of the Martinez address. Nevertheless, we conclude that there simply are not enough facts available from which to conclude that a video existed that Publix caused to disappear. The denial of the Valcin instruction was not reversible error.

The Joneses next contend that the trial court reversibly erred by precluding Mrs. Jones from testifying about the admission by the Publix employee that they were aware of the spill. The trial court precluded Mrs. Jones from testifying that when she reported Mr. Jones’s fall, a Pub-lix employee informed her that they were aware of the water on the floor and had already sent someone to clean it up. The trial court refused to allow the Joneses to offer this testimony on the basis that their disclosure of the admission was tardy.

Publix argued below that the Joneses had failed to timely disclose the substance of this admission because the information should have been included in Mr. Jones’s initial answers to Publix’s interrogatories, and could have been provided on numerous occasions well in advance of the trial.

In its interrogatories to Mr. Jones, Pub-lix asked:

5. List the name, residence address, business address and telephone number of each person believed or known by you, your agents or attorneys to have heard or who is purported to have heard the Defendant make any statement, remark or comment concerning the accident described in the complaint and the substance of each statement, remark or comment.

Oddly, Publix did not request similar information in its interrogatories to Mrs. Jones. Mr. Jones answered: “None at this time. Investigation is continuing.” Shortly before trial, Mr. Jones did supplement his answer to interrogatory #5 as follows: “When my wife, Julie, went to the counter to report that I had fallen in some water that had been spilled on the floor, she was told that they had already sent somebody to clean it up.”

The Joneses deny that Mr. Jones was guilty of any misconduct or concealment. Both he and counsel denied knowing about the statement when he answered the interrogatory. They point out that Publix did not include a question in its interrogatories to Mrs. Jones that would have elicited the substance of the admission; that Mr. Jones had no knowledge of the statement; that Mrs. Jones did not assist Mr. Jones in answering the interrogatories that were directed to him; that Publix took their depositions and did not take the opportunity to ask Mrs. Jones any questions that would have elicited the substance of the admission; and that Mrs. Jones “being a layperson and unaware of the legal significance of the admission, did not understand it to be something she should volunteer.”

There is no evidence in the record to suggest that the Joneses, or their counsel, attempted to conceal the admission, or that Mr. Jones knew of the statement when he answered the interrogatory. As such, Mr. Jones did not have a duty to supplement his answer to the interrogatory. Fla. R. Civ. P. 1.280(e). Publix had ample opportunity to discover Mrs. Jones’s testimony. During Mrs. Jones’s deposition, she testified that she went to the service desk, told them her husband had fallen, and asked for them to get a manager. She also explained that she had spoken with an unidentified woman after Mr. Jones’s fall, and that the woman informed her that she had spilled water and that she and another individual had asked for someone to clean it up and were waiting for someone to clean up the water. The excluded admission by the Publix employee was significant testimony in support of the Joneses’ case, especially in light of their loss of the opportunity to conduct other discovery as the result of Publix’s concealment of information that would have allowed the Joneses the opportunity to locate fact witnesses with better recollection. The trial court’s error in excluding the testimony about the admission was not harmless. The Joneses are entitled to a new trial.

REVERSED and REMANDED.

GRIFFIN, LAWSON, JJ. and ZAMBRANO, R.A., Associate Judge, concur.

      . Pub. Health Trust of Dade Cnty. v. Valcin, 507 So.2d 596 (Fla.1987).

      . We affirm on the fourth issue without comment.

      .Mrs. Jones also sought damages for the expenses for the care and treatment of her husband and for the loss of services, comfort, society and companionship.

      . See infra at note 6.

      . Publix also filed a notice of filing Mr. Jones's supplemental answers to interrogatories. In these supplemental answers to interrogatories, in response to being asked to provide the name and contact information of each person known to him to have heard Publix make any statement about the incident, as well as the substance of any such statement, he said: "When my wife, Julie, went to the counter to report that I had fallen in some water that had been spilled on the floor, she was told that they had already sent somebody to clean it up.”

      . At oral argument, counsel for Publix suggested that there was no duty of disclosure because the address on the statement was "incorrect.” When pressed on this point, counsel explained that the address was "misspelled.” It turns out that the "incorrect” address on the statement was 12745 Wood-bury Glenn Drive, not 12745 Woodbury Glen Drive.

      . The plaintiff’s bar of this State has long complained about the lack of symmetry or parity in sanctions imposed on defendants for fraud or other misconduct in litigation, suggesting that trial judges are more inclined to dismiss a plaintiff's unproven liability claim and eliminate a case from their docket than to expose a defendant to a trial and a significant award of damages based on misconduct rather than actual fault.

      . Although we do not find an order disposing of the motion in the record, we note that the Joneses also asked the trial judge to strike Publix’s offers of settlement on the seemingly unassailable reasoning that, in the face of a wrongful failure to disclose the address of a key witness, such an offer could not meet the test of “good faith” and the factors set forth in section 768.79(7), Florida Statutes.