text:
    HIGHWAY 46 HOLDINGS, LLC, Appellant/Cross-Appellee, v. Michael MYERS, Jacqueline Myers, and Southeast, etc, Appellees/Cross-Appellants.
    No. 5D10-4096.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2012.

      James S. Toscano and Jennifer R. Dixon of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant/Cross-Appellee.
    Gus R. Benitez of Benitez Law Group, P.L., Orlando, for Appellees/Cross-Appel-lants.
   COHEN, J.

Highway 46 Holdings, LLC (“Highway 46”), appeals from the trial court’s non-final order refusing to dissolve a temporary injunction entered in an action filed by Highway 46 against two of its members, Michael and Jacqueline Myers (“the Myerses”). The Myerses filed a counterclaim to the action below and cross-appeal from the same order. Highway 46 and the Myerses challenge the validity of the injunction as to the other, as well as the trial court’s decision to forgo the imposition of an injunction bond. We affirm in part, reverse in part, and remand for a new bond hearing.

The dispute in this case stems from a joint venture between sophisticated businesspersons, the Myerses and Donald and Glenda Hachenberger (“the Hachenber-gers”). The Myerses partnered with the Hachenbergers to develop an entertainment complex consisting of several bars, a restaurant, a sound stage, and a smokehouse. The Myerses owned the real property upon which they planned to develop the project. They also possessed, among various other assets, between $1 and $4 million in collectible memorabilia, some of which they planned to incorporate, to some degree, in the project. The memorabilia included a range of items, from antique motor vehicles to vintage gas station pumps, signs and trinkets known as “pe-trobilia.” As for the Hachenbergers, they provided cash and financing for the venture. The parties came together to form and own in equal shares a holding company to shield the project’s assets and receive its profits, creating Highway 46.

As the project was being developed, the memorabilia was stored on the project site in various warehouses leased by Highway 46. The memorabilia was inventoried for insurance purposes; however, title to the motor vehicles was never transferred to Highway 46. Commingled within the growing memorabilia collection were other items, including the Myerses’ household furniture, children’s toys, tools and family heirlooms. At some point, relations between Michael Myers and Donald Hachen-berger deteriorated. Eventually, Donald Hachenberger terminated Michael Myers’ employment with Highway 46 and had him removed from the premises. He also changed the locks on the buildings and warehouses containing the memorabilia.

Pursuant to certain agreements executed by the parties, Highway 46 filed an action against the Myerses and Southeast Communications Company of Central Florida, Inc., for breach of contract and specific performance. Specifically, Highway 46 sought the transfer of the titles to the motor vehicles and a liquor license. The Myerses filed an answer with affirmative defenses and counterclaims against Highway 46, the Hachenbergers, and an attorney involved in the transaction, alleging, inter alia, fraud and wrongful conversion of their personal property and the memorabilia. The Myerses requested declaratory, injunctive and equitable relief, including access to the project site and the return of the memorabilia and personal property.

After several confrontations erupted between the parties at the project site, Highway 46 filed a verified emergency motion for temporary injunctive relief. With the motion, Highway 46 sought to enjoin Michael Myers from coming near Donald Ha-chenberger, from entering the property site, and from removing, destroying or encumbering the memorabilia and related property. The Myerses responded in kind with an amended verified emergency motion for temporary injunctive relief. With it, they sought the return of the memorabilia and personal property, or, alternatively, that the items be secured and maintained at the project site and warehouses. They also sought unfettered access to the premises and protection from Donald Hachen-berger.

After an evidentiary hearing before a special master at which both parties presented witness testimony and other evidence, the special master recommended the following terms for a temporary injunction: Michael Myers and Donald Ha-chenberger were to refrain from coming into physical contact with one another; the memorabilia and related personal property were to remain with the Hachenbergers and Highway 46, who were to “secure and safeguard all antique cars, memorabilia, petrobilia, and other personal property and fixtures previously or currently belonging to the Myerses”; the memorabilia could not be sold, alienated, transferred or disposed of pending final resolution of the suit; the items could not be removed from the warehouses; and the Myerses were entitled to “reasonable access” to the premises and to the memorabilia due to their ownership interests and the possibility of property depreciation. The special master then established the parameters of the Myerses’ — and in the interests of fairness, the Hachenbergers’ — reasonable access to the property, which included a requirement that the party seeking access give the other advance notice before viewing the items. The non-viewing party was also required to be present at the viewing of the memorabilia by the other. The Hachenbergers were permitted to retain control over access to the restaurant property and warehouses, and hire a security detail to guard the premises. The trial court adopted the special master’s recommendation, and neither party appealed from this order.

At separate times and within one year of the trial court’s order, Highway 46 sought to dissolve the temporary injunction, and, alternatively, both parties sought to have an injunction bond posted pursuant to Florida Rule of Civil Procedure 1.610. At a hearing on the motions, Donald Hachen-berger testified as to the change in circumstances surrounding Highway 46’s business. He claimed Highway 46 was operating at a $20,000 deficit each month, $10,000 of which was attributable to the costs of storing the memorabilia. Michael Myers testified as to the circumstances surrounding the business venture and the memorabilia. Ultimately, both sides sought full possession and control of the memorabilia. In the event the court did not lift the injunction, each argued that the other had to post an injunction bond, as it was agreed that the law required a bond be posted. Due to the relief each thought the other was receiving under the injunction, however, the parties hotly contested who was enjoined and who benefited under the terms of the injunction.

At the conclusion of the hearing, the trial court noted that Highway 46 would likely prevail on the underlying merits of the case, and that the injunction benefited both parties. The court initially held that the Myerses would have to post a $50,000 bond (half the storage fees for ten months), but decided to forgo a bond upon further deliberation. The court stated that both parties originally requested the temporary injunction, and that it still served to preserve the status quo. In its written order, the court modified the injunction to the extent that Highway 46 was permitted to transfer to the Myerses possession of the memorabilia — along with the burden of paying the related storage costs — if it so desired. Both parties appealed from this order.

Highway 46 and the Myerses effectively raise two issues on appeal. First, both argue that the trial court erred in continuing the temporary injunction because the injunction was improperly entered ab initio. Both assert that the original order entering the injunction, and the order denying the motion to dissolve it, were without the factual findings necessary to support the grounds for a temporary injunction to the extent it benefited the other. To buttress their claims, the parties refer to the trial court’s specific findings — or lack thereof — that expressly relate to the grounds for temporary injunctions.

Generally, a temporary injunction may be obtained either ex parte and without notice to the adverse party pursuant to heightened procedural requirements, or after the adverse party has received notice and a hearing. Fla. R. Civ. P. 1.610(a)(1), (2). A temporary injunction is an extraordinary remedy, to be granted sparingly and only after the moving party establishes the following criteria: “(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) consideration of the public interest.” Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.3d 653, 655 (Fla. 5th DCA 2009). Upon entering an injunction, the trial court must specify the reasons for the injunction and, in reasonable detail, the acts restrained. Fla. R. Civ. P. 1.610(c).

Once entered, a party seeking relief from the injunction may choose to file a direct appeal from the injunction order within thirty days of rendition under Florida Rule of Appellate Procedure 9.130(a)(3)(B), or a motion to dissolve the injunction at any time under Florida Rule of Civil Procedure 1.610(d). The procedural posture chosen by the party has a direct effect on whether an appellate court can conduct a plenary review of the matter. As explained by this Court in Thomas v. Osler Medical, Inc., 963 So.2d 896 (Fla. 5th DCA 2007):

In cases where the enjoined party takes a direct appeal from an ex parte injunction and does not file a motion to dissolve, in which instance there obviously is no factual record to be reviewed on appeal because there has been no evidentiary hearing, the appellate court is constrained to review only the legal sufficiency of the order, the complaint, and any supporting documents. Hence, the appellate court may not address the factual basis for issuance of the injunction. In such instances, a motion to dissolve and an evidentiary hearing are necessary to make a factual record that an appellate court can review. If a motion to dissolve an ex parte temporary injunction is filed and a hearing on the motion is held, the party who obtained th'e injunction bears the burden of going forward with evidence to establish a pri-ma facie case to support the injunctive relief, and the appellate court may review the factual basis for the injunction.
If the enjoined party takes a direct appeal after notice and a hearing without moving to dissolve, an appellate court may consider the underlying factual matters because there is a record of the evidence and testimony presented upon which the trial court based its decision to grant the temporary injunction.
To summarize, a motion to dissolve is necessary only where an ex parte temporary injunction was issued. If proper notice was provided and an evidentiary hearing conducted prior to issuance of the temporary injunction, an appeal should he filed to review the propriety of the temporary injunction; in this instance, a motion to dissolve is limited to raising only new matters and a trial court will not abuse its discretion in denying the motion if the enjoined par ty does not establish that a change in conditions justifies dissolution.

963 So.2d at 900 (footnote, quotation and citations omitted) (emphasis added).

Accordingly, as explained in Thomas, “[w]hen a motion to dissolve is directed to a temporary injunction after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution.” Id. at 899 (emphasis added). The alleged change must be different from what was raised or could have been raised at the contested hearing on the initial request for the injunction. Courts will dissolve the injunction only “where the facts have changed to the point that equity dictates the injunction is no longer needed.” Id. (quotation omitted). Accord Hunter v. Dennies Contracting Co., 693 So.2d 615, 615-16 (Fla. 2d DCA 1997) (affirming lower court’s refusal to dissolve or modify injunction after noticed hearing because motion “merely sought to have the judge reconsider his initial ruling,” and movant failed to prove change in circumstances); Brock v. Brock, 667 So.2d 310, 312 (Fla. 1st DCA 1995) (reversing order unfreezing assets because circumstances had “not altered in a manner that would justify releasing possible assets of the estate.”).

Here, neither party filed an appeal from the original injunction order entered after notice and a hearing. Thus, the sufficiency of the original, un-appealed injunction order is not before this Court for review. Instead, Highway 46 filed a motion to dissolve the injunction, and as a consequence, it was required to show a change in circumstances to the point equity dictated the injunction was no longer needed. The company succeeded in showing a change to the extent the injunction was modified, but failed to persuade the trial court to dissolve the injunction. Highway 46’s corollary argument that dissolution was the only reasonable conclusion to be drawn from the change in circumstances is unsupported and impermissibly invites this Court to substitute its judgment for that of the lower court. Cf. Cunningham v. Dozer, 159 So.2d 105 (Fla. 3d DCA 1963); see also Meyers v. Club at Crystal Beach Club, Inc., 826 So.2d 1086, 1089 (Fla. 5th DCA 2002) (providing trial court has wide discretion to either grant, deny, dissolve, or modify injunctions). As such, the trial court did not err in refusing to revisit the original injunction order, or abuse its discretion in modifying the injunction so as to provide Highway 46 an opportunity to avoid further storage fees. Therefore, the trial court’s decision to keep the temporary injunction in place as modified is affirmed.

As to the second issue raised, both Highway 46 and the Myerses claim the trial court erred because the other should have been required to post an injunction bond. We hold that the trial court erred in failing to require both parties to post bonds.

Temporary injunctions are governed by Florida Rule of Civil Procedure 1.610(b), which provides:

No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision thereof, the court may require or dispense with a bond, with or without surety, and conditioned in the same manner, having due regard for the public interest. No bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.

(Emphasis added). Outside the exceptions listed in the rule, the easelaw is clear that the trial court cannot waive the requirement for bond or set a nominal amount. Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997); see also Fla. High Sch. Activities Ass’n v. Mander ex rel. Mander, 932 So.2d 314, 315-16 (Fla. 2d DCA 2006) (“An injunction is defective if it does not require the movant to post a bond.”); Image Data, L.L.C. v. Sullivan, 739 So.2d 725, 727 (Fla. 5th DCA 1999) (finding reversible error where injunction was entered without bond).

Bond must be set after both parties have had the opportunity to present evidence regarding the proper amount. Bellach, 704 So.2d at 680. The trial court must have some basis for the exercise of its discretion in setting the bond amount, which is typically the evidence provided to the court by the parties. AOT, Inc. v. Hampshire Mgmt. Co., 653 So.2d 476, 478 (Fla. 3d DCA 1995). Peculiar or extraordinary circumstances may justify a court’s decision to impose a bond in an amount that varies from the evidence. See Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 532 (Fla. 5th DCA 2003) (remanding bond amount for hearing to determine whether parties stipulated to amount set); Cushman & Wakefield, Inc. v. Cozart, 561 So.2d 368, 369 (Fla. 2d DCA 1990) (cautioning, where $10 bond was imposed, “Before a trial court sets a bond below the range of anticipated costs and damages, the trial judge should be very confident that this extraordinary decision is completely appropriate under the circumstances of the case.”).

The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s costs and damages if the injunction is wrongfully issued. Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047, 1047 (Fla. 2d DCA 1993). “[T]he court may consider factors other than anticipated costs and damages in setting a bond, including the adverse party’s chances of overturning the temporary injunction. However, damages recoverable for wrongfully obtaining an injunction are limited to the amount of the injunction bond.” Id. (citation omitted); see also § 60.07, Fla. Stat. (2011). In Parker Tampa Two, Inc. v. Somerset Development Corp., 544 So.2d 1018, 1021 (Fla.1989), the supreme court explained the rationale for limiting the wrongfully enjoined party’s damages to the amount of the bond:

Limiting liability to [the] bond amount thus provides an orderly step-by-step procedure whereby all parties can be continually apprised of the consequences of their actions. To hold the obtaining party fully liable would in many cases expose the party to potentially staggering consequential damages difficult or impossible to project. The public policy encouraging fair access to the courts for those who are in good faith pursuit of their equitable rights must be protected from the deterrent certain to be posed by unknown liability for mistake.
Limiting liability to the bond amount can also be viewed as an equitable way of apportioning liability between the two entities generally at fault in the issuance of a wrongful injunction, i.e., the obtaining party and the court. The obtaining party often is at fault for asking the court to act hastily, requiring it to dispense with normal procedural safeguards. The court, on the other hand, at times simply misreads or misapplies the law independent of any time constraint imposed upon it by the obtaining party. Limiting liability to the bond amount strikes a median between holding the court fully liable (in which case no recovery could be had), and holding the obtaining party fully liable.

Id. (footnote and citation omitted). Consequently, in the event no bond is posted, the wrongfully enjoined party, if any, is without recourse as to damages stemming from the wrongful injunction. See, e.g., Ross v. Champion Computer Corp., 582 So.2d 152, 153 (Fla. 4th DCA 1991) (finding appellant would be unable to collect damages where no bond was posted and reversing for trial court to consider enforceability of no-bond clause in contract).

The circumstances of this case, where two private parties moved for and received injunctive relief without initially requesting the other post bond, do not warrant a waiver of the bond requirement of Rule 1.610(b). With no bonds in place, neither party would be able to collect any damages if either was found to be wrongfully enjoined. Accordingly, the trial court’s decision to forgo the bond is reversed and the matter is remanded to the trial court for a new bond hearing. See Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 117 (Fla. 2d DCA 2003).

AFFIRMED in part, REVERSED in part, REMANDED for a new bond hearing.

GRIFFIN and EVANDER, JJ„ concur.

      . In Myers v. Highway 46 Holdings, L.L.C., 65 So.3d 58 (Fla. 5th DCA 2011), this Court reversed the trial court’s dismissal of the counterclaim with prejudice. The reply brief and answer to the cross-appeal in this case notes that the Myerses had no claims for relief pending as of October 2011. It is unknown whether a new counterclaim has been filed.

      . Southeast Communications was Jacqueline Myers’ wholly owned company which held a liquor license to be used in the project.

      . Following the order, the Myerses eventually took possession of some but not all of the memorabilia.

      . The bond may include attorney’s fees directly related to dissolving the injunction. Braun v. Intercont'l Bank, 452 So.2d 998, 999 (Fla. 3d DCA 1984).

      . There are exceptions to this rule. Actual damages from the wrongful injunction are awarded when the injunction was sought in bad faith. Parker Tampa Two, Inc., 544 So.2d at 1020. Also, where the court dispenses with the bond requirement for cities pursuant to rule 1.610(b), the enjoined party is entitled to the full measure of damages. Provident Mgmt. Corp. v. City of Treasure Island, 718 So.2d 738, 739 (Fla.1998).

      . As to the Myerses’ request for bond, the trial court is to first determine whether bond was sought from the appropriate party.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mervyn Paul ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-424.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2012.
    Mervyn Arnold, Zephyrhills, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Mervyn Arnold appeals from the trial court’s dismissal of his petition for writ of habeas corpus. Arnold’s petition is identical to a petition he previously filed, which was denied by the lower court and affirmed on appeal in case number 5D11-2366. He also presents the same argument made in two prior postconviction motions. Arnold seeks relief from his “unlawful detention” because the sentencing court agreed that if Arnold was extradited to Texas on parole violations, then he could serve his forty-year Florida sentence in Texas concurrently with any later-imposed Texas sentence. According to Arnold, once he finished serving the forty-year Texas sentence, which he accomplished in just over twelve years, he should have been released rather than returned to Florida to serve the remainder of his forty-year Florida sentence. It seems that what Arnold takes issue with is that Florida, unlike Texas, does not utilize a parole system. That fact, however, does not render Arnold’s stay in the Department of Corrections an unlawful detention.

Arnold confuses concurrent sentencing with coterminous sentences. He received precisely what he bargained for. He was able to dispose of his Texas sentence up front rather than waiting until he had completed his Florida sentence. He was allowed to serve the Florida sentence concurrently with the Texas sentence, and has been given credit for the time served in Texas. Accordingly, the dismissal of the petition for writ of habeas corpus is affirmed.

Because we have now addressed the same arguments on multiple occasions, contemporaneously with this opinion we issue a Spencer , order to show cause as to why Arnold should not be barred from further pro se filings.

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . There were a total of seven cases from Florida with sentences ranging from ten to twenty years with a mix of concurrent and consecutive sentences. Arnold was sentenced to twenty-five years' probation following his imprisonment term.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: BERGER, J.

text:
    Mayra DIAZ, as Personal Representative, etc., Appellant, v. FEDEX FREIGHT EAST, INC., et al., Appellee.
    No. 5D11-1834.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2012.
    Rehearing Denied Jan. 15, 2013.

      Roberto M. Ureta, of Roberto M. Ureta, P.A., Miami, for Appellant.
    E.T. Fernandez, III, and Brian Sebaaly of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellee.
   BERGER, J.

Appellant, Mayra Diaz, as personal representative of the decedent’s estate, appeals a final judgment entered in favor of Appellees, in a case involving a fatal accident between a motorcycle and a FedEx tractor trailer. Appellant raises two issues on appeal, only one of which merits discussion. She argues that the trial court reversibly erred when it denied her motion for a mistrial following the investigating detective’s testimony regarding fault. We agree and reverse.

The accident occurred at the intersection of Hangar Road and Heintzelman Boulevard in Orlando, Florida, when the decedent, Yuniel Avila Diaz, drove his motorcycle into the side of the tractor trailer driven by Vincent Jackson. When the crash occurred, Jackson was crossing the two southbound lanes of Heintzelman in order to make a left-hand turn. He was at a complete stop in the median and had cleared one of the two southbound lanes. The decedent was traveling between fifty-nine to seventy-nine miles per hour at the time of the crash, well above the posted speed limit of forty-five miles per hour, and could have avoided the accident had he not been speeding.

Appellants sued for Jackson’s alleged comparative negligence in failing to stop at a stop sign before proceeding onto Heint-zelman Boulevard. Jackson testified that he stopped at the stop sign before crossing the southbound lanes, but this was disputed by Appellant’s experts. The three eyewitnesses could not testify one way or the other because they either could not see the tractor trailer at the stop sign or were not paying attention.

Prior to trial, the court granted Appellant’s motion in limine precluding testimony regarding the issuance of a citation or the assignment of fault. In direct violation of the ruling, the defense elicited testimony from Detective Harold Felshaw, the traffic homicide investigator, who had already testified for Appellees regarding the decedent’s excessive speed. In response to a question regarding contributing causes to the accident, the detective testified that he “was given no reason to feel there was any fault on the part of the other vehicle based on the information or the evidence that [he] found at the scene.” This statement triggered the motion for mistrial.

Although the trial court determined that Detective Felshaw’s testimony clearly violated its order in limine, it denied Appellant’s motion for mistrial and offered a curative instruction instead. The court reasoned that “an adequate instruction can be fashioned where the jurors are directly told that this individual is not competent and cannot testify as to fault.” Despite the curative instruction, at the end of Detective Felshaw’s testimony, a juror asked the court to pose the following question to the detective: “Was Mr. Jackson ticketed for any improper movements and/or actions he may have done that day?” The trial judge did not present the question to Detective Felshaw and instructed the jury that “[w]hether or not anyone was ticketed is not an issue to be considered in this case; therefore, the question cannot be asked.”

Appellant argues that a mistrial was required because Detective Felshaw’s testimony effectively precluded the jury from finding that Jackson negligently contributed to the accident, especially given the undisputed evidence that the decedent was exceeding the speed limit. We agree. As a general rule, a jury should not be informed of an investigating officer’s determination of who caused an accident and who was cited. Galgano v. Buchanan, 783 So.2d 302, 307 (Fla. 4th DCA 2001). Florida courts have consistently found the error sufficiently prejudicial to require a new trial. See, e.g., Budget Rent A Car Sys., Inc. v. Jana, 600 So.2d 466, 467 (Fla. 4th DCA 1992) (finding that police officer’s testimony that citation had been issued to other driver was improper and should have resulted in mistrial); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (holding that statement by police officer that there was no improper driving on the part of defendant motorist required a new trial, as statement was tantamount to a declaration by officer that no traffic summons had been issued in the case); Estate of Wallace v. Fisher, 567 So.2d 505, 508 (Fla. 5th DCA 1990) (holding that admission of officer’s testimony regarding issuance of traffic citation was prejudicial and reversible). The rationale behind the rule was explained in Albertson v. Stark, 294 So.2d 698, 699 (Fla. 4th DCA 1974), wherein the court stated:

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror’s determination of fault on the part of the respective drivers.

Here, the question to Detective Fel-shaw, regarding other contributing causes to the accident, did not include inquiry as to whether or not Jackson was cited. Nonetheless, he testified that his investigation found “no fault” on the part of Jackson. Because the only reasonable inference from the detective’s response is that Jackson was not charged, the question improperly placed the information before the jury.

We also reject the argument that the curative instruction was sufficient to overcome the prejudice created by this testimony. Improper questioning regarding traffic citations may not, in every case, warrant the granting of a mistrial or reversal of the judgment. See Hulick v. Beers, 7 So.3d 1153, 1156 (Fla. 4th DCA 2009). However, when liability is at issue, curative instructions are usually insufficient to cure the error. See, e.g., Vantran Indus., Inc. v. Ryder Truck Rental, Inc., 890 So.2d 421, 425-26 (Fla. 1st DCA 2004) (finding that curative instruction did not cure the prejudice of an officer’s testimony that no tickets were written); Golden v. Tipton, 723 So.2d 871, 871 (Fla. 1st DCA 1998) (holding that curative instruction did not cure prejudice of an officer’s testimony implying that one of the parties had received a traffic citation as a result of the collision); see also Wainer v. Banquero, 713 So.2d 1104, 1105 (Fla. 4th DCA 1998) (holding that curative instruction was insufficient to overcome prejudice caused by the defendant’s testimony that she was not ticketed for accident); Ryder Truck Rental, Inc. v. Johnson, 466 So.2d 1240, 1241 (Fla. 1st DCA 1985) (determining that curative instruction did not countermand prejudice caused by plaintiffs testimony that he had not been cited for accident).

Although the evidence was undisputed that the decedent was traveling at a high rate of speed at the time of the accident, and that the accident could have been avoided had decedent been driving the speed limit, there was disputed evidence as to whether or not Jackson failed to stop at the stop sign and whether this contributed to the accident. Detective Felshaw’s testimony that he did not feel there was any fault on the part of Jackson was especially critical, given the conflict in the evidence, because his testimony effectively eliminated the issue of comparative negligence from the jury’s consideration. Accordingly, we find the trial judge’s curative instruction, though well intended, was insufficient to cure the prejudice. The error was not harmless and Appellant is entitled to a new trial.

REVERSED and REMANDED.

EVANDER, J., and SMITH, III, C.M., Associate Judge, concur.

      . We find no error in the trial court’s refusal to grant a directed verdict in Appellant’s favor on tire issue of negligent entrustment by the non-party defendants.

      . Specifically, the trial court ordered: "So no one's going to testify that the officer issued a citation to anybody, because that’s very clear. The other is the issue of fault, and that’s also pretty clear. But I don’t want to foreclose the witness testifying from his expertise as to, you know, what an expert might draw from the physical evidence so long as we’re not talking about fault.”

      . The jury received the following curative instruction: “Okay, I’ve got to give you a little bit of an instruction. You heard what the witness indicated. This witness is not allowed or competent to testify as to fault. That is a factual decision that is your decision, so you're instructed to disregard that testimony.”


text:
    Michael Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1805.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2012.
    Rehearing Denied Jan. 15, 2013.
    John C. Notari, of Sigman, Sigman, No-tari & Sigman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Reaves v. State, 979 So.2d 1066 (Fla. 1st DCA 2008).

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Charles J. SOTIS, Appellant/Cross-Appellee, v. Diane J. SOTIS, Appellee/Cross-Appellant.
    No. 5D11-1654.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2012.
    Rehearing Denied Jan. 14, 2013.
    Rhonda Portwood, of Law Office of Rhonda Portwood, P.L., Inverness, for Appellant/Cross-Appellee.
    Patricia M. Moring, of Moring & Mor-ing, P.A., Crystal River, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Charles Sotis (“Husband”) appeals the Final Judgment of Dissolution of Marriage and the related Order on Equitable Distribution and Other Requested Relief rendered by the trial court. Husband raises the following issues: (1) the trial court erred by finding that Diane Sotis’s (“Wife”) marital retirement accounts were minimal in value and by failing to include them in equitable distribution; (2) the trial court erred in failing to identify and set apart Husband’s premarital personal property as non-marital property and by awarding said property to Wife; and (3) the trial court erred in failing to consider whether a gift was intended by Husband to Wife in the Crystal River property and by not awarding an inequitable distribution of marital assets and liabilities. Wife filed a cross-appeal contending that the trial court erred when it awarded an unequal distribution of assets.

We affirm as to all issues except the first. Regarding Wife’s retirement accounts, one is a State of Florida Retirement System account and the other two are BENCOR retirement accounts. Wife concedes that the trial court erred in failing to include in the equitable distribution amount the State of Florida retirement account. We believe that all three accounts should have been included in the equitable distribution amount. See Bardowell v. Bardowell, 975 So.2d 628 (Fla. 4th DCA 2008). Accordingly, we reverse as to the first issue and remand for further proceedings to determine the value of these accounts, include them in the equitable distribution calculation, and adjust the equitable distribution amount accordingly.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, COHEN and BERGER, JJ., concur.


text:
    Claude BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1368.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2013.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Claude Bell appeals from his convictions and sentences, entered following guilty verdicts on three counts of aggravated assault with a firearm, two counts of robbery with a firearm and one count of attempted robbery with a firearm. The only argument on appeal is that the aggravated assault convictions violate double jeopardy because they are subsumed within the robbery convictions. Although all of the counts arose from a single criminal act— robbing three victims at gunpoint — the aggravated assault with a firearm counts do not violate double jeopardy because they contain different elements than the robbery with a firearm and attempted robbery with a firearm counts. As such, we affirm.

Facts and Analysis

Bell and a co-defendant robbed three people at gunpoint, taking property from two of them. He was charged, tried, and convicted of three counts of aggravated assault with a firearm, two counts of robbery with a firearm and one count of attempted robbery with a firearm. Additional counts of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon were severed for trial and later nolle prossed. Bell timely appealed.

Bell correctly argues that double jeopardy violations may be raised for the first time on appeal as fundamental error, Bailey v. State, 21 So.3d 147 (Fla. 5th DCA 2009), and that such violations based on undisputed facts are reviewed de novo. McKinney v. State, 66 So.3d 852 (Fla.2011). He also correctly notes that separate convictions for robbery and assault violate double jeopardy, Latimer v. State, 44 So.3d 1239, 1240 (Fla. 5th DCA 2010), and that separate convictions for burglary with assault while armed with a firearm and aggravated assault with a firearm violate double jeopardy. White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000).

Although neither of those crime combinations are the same as the ones involved in this case, Bell mistakenly argues that the “principle announced in White ” applies to this case because it is not possible to commit an armed robbery with a deadly weapon without committing an aggravated assault with a deadly weapon. That is not the principle announced in White. Rather, White reasoned that all of the elements of aggravated assault with a firearm are contained within the crime of burglary with assault while armed. Id. Instead, the principle upon which Bell relies was announced in a dissent by Judge Cowart in Akins v. State, 462 So.2d 1161, 1163 (Fla. 5th DCA 1984), as follows:

It is not ‘possible’ to attempt to commit an armed robbery by threatening to do violence with a deadly weapon to a victim if he does not part with the possession of property in his possession without at the same time by the same act also committing an aggravated assault on that victim. Therefore, the two offenses are in law and in fact indistinguishable and it cannot be demonstrated that they are not “the same offense” within the constitutional double jeopardy prohibition.

Bell cites to Akins, but fails to indicate that he is relying on a dissent to a per curiam affirmance. Moreover, the principles are not the same, as the prevailing double jeopardy principle announced in White compares the elements of the respective crimes, while Judge Cowart’s dissent focused on the criminal acts. See McKinney, 66 So.3d at 854 (“There is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments.”).

Bell also fails to acknowledge cases directly on point from both the Florida Supreme Court and this court upholding convictions arising from a single criminal act for robbery with a firearm and aggravated assault with a firearm, against a double jeopardy challenge. The State correctly notes that in State v. Baker, 452 So.2d 927 (Fla.1984), the Florida Supreme Court rejected the defendant’s double jeopardy challenge to his convictions for armed robbery and aggravated assault with a deadly weapon, which both arose from the defendant’s robbing a victim at gunpoint. The Court explained:

In virtually every case of armed robbery, the deadly weapon carried by the perpetrator is the means by which he induces “force, violence, assault, or putting in fear,” one of the elements of any robbery, armed or unarmed. However, the statutory element which enhances punishment for armed robbery is not the use of the deadly weapon, but the mere fact that a deadly weapon was carried by the perpetrator. The victim may never even be aware that a robber is armed, so long as the perpetrator has the weapon in his possession during the offense. For double jeopardy purposes, this Court is bound to consider only the statutory elements of the offenses, not the allegations or proof in a particular case. Bell. Where an offense is not a necessarily lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses. § 775.021(4), Fla. Stat. (1979). The trial court therefore properly convicted and sentenced Baker for both counts I and II.

Id. at 929.

Two years later, in Royal v. State, 490 So.2d 44 (Fla.1986), the Florida Supreme Court held that defendants could not be convicted of robbery with a firearm based on force exerted after a theft. It remanded for entry of judgments for aggravated assault with a firearm, “which is a necessarily lesser included offense of robbery with a firearm ...” Id. at 46. Based on the above quote, several district court cases, including ones from this court, concluded that Royal overruled sub silentio Baker’s holding that separate convictions for those crimes, arising from a single criminal act, did not violate double jeopardy. See, e.g., Wright v. State, 519 So.2d 1157 (Fla. 5th DCA 1998).

However, in 1992, the Florida Supreme Court clarified that Royal did not overrule Baker. Taylor v. State, 608 So.2d 804, 805 (Fla.1992). After reciting the above-quoted reasoning from Baker, the court stated:

We acknowledge that our opinion in Royal v. State placed this rationale in doubt. Compare Brown v. State, 569 So.2d 1820 (Fla. 1st DCA 1990), with Wright v. State, 519 So.2d 1157 (Fla. 5th DCA 1988). However, it must be noted that the necessarily lesser included offense question was not the primary issue in Royal, and we did not expressly overrule Baker. In any event, we hereby reiterate that aggravated assault is not a category-one necessarily lesser included offense of armed robbery.

Id. Since that clarification, the district courts have uniformly held that separate convictions for robbery with a firearm and aggravated assault with a firearm do not violate double jeopardy. See Ward v. State, 898 So.2d 1152, 1158 (Fla. 5th DCA 2005); Delaney v. State, 673 So.2d 541 (Fla. 3d DCA 1996); Owens v. State, 626 So.2d 240, 242 (Fla. 2d DCA 1993), rev. denied, 634 So.2d 626 (Fla.1994); Stone v. State, 616 So.2d 643 (Fla. 4th DCA 1993). Bell failed to acknowledge any of these cases.

Conclusion

We caution counsel that the most basic tenets of professionalism in appellate practice require more than this of a practitioner.

AFFIRMED.

PALMER, LAWSON and COHEN, JJ., concur.

      . §§ 784.021(l)(a) and 775.087(2), Fla. Stat. (2010).

      . §§ 812.13(2)(a) and 775.087(2), Fla. Stat. (2010).

      .§§ 812.13(2)(a), 777.04, and 775.087(2), Fla. Stat. (2010).

      . In addition to failing to acknowledge binding precedent contrary to his argument and instead citing a dissent in support of his argument, without noting it as a dissent, Bell’s counsel has previously raised the same challenge before this court at least once without success. See Vargo v. State, 717 So.2d 153 (Fla. 5th DCA 1998).


text:
    Ebenezer BOSOMPEM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4477.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2013.
    Robert Wesley, Public Defender, and Andrew M. Clark, Assistant Public Defender, Orlando, for Petitioner.
    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. 2012-001275-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, JACOBUS and BERGER, JJ., concur.


text:
    Grant V. Manstein MORSE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3921.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
    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 nos. 2010-CF-000616, 2010-CF-000618, and 2011-CF-000680, in the Circuit Court in and for Flagler County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER and BERGER, JJ., concur.


author: PER CURIAM. PALMER, J.,

text:
    MAGICAL CRUISE COMPANY LIMITED, etc., Petitioner, v. Dorothy TURK, Respondent.
    No. 5D12-1835.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2013.
    Charles T. Wells, Adam M. Bird and Ted L. Shinkle, of GrayRobinson, P.A., Melbourne, for Petitioner.
    Shannon McLin Carlyle and Christopher V. Carlyle, of the Carlyle Appellate Law Firm, The Villages, and Edward S. Schwartz, of Gerson & Schwartz, P.A., Miami, for Respondent.
   PER CURIAM.

Magical Cruise Company Limited d/b/a Disney Cruise Line (“DCL”), seeks a writ of certiorari to quash an order requiring it to turn over work product to plaintiff. Because the trial court made no findings to justify ordering the production of work product, we grant the writ and quash the order. See Dismas Charities, Inc. v. Dabbs, 795 So.2d 1038 (Fla. 4th DCA 2001) (granting certiorari and quashing order requiring production of documents, where order failed to make any findings in support of denial of petitioner’s work product objections). As the court did in Dabbs, we remand with instructions to the trial court to reconsider the work product objections and to support any order requiring production of the documents with appropriate findings. Id. at 1039.

CERTIORARI GRANTED.

LAWSON and BERGER, JJ., concur.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because I do not believe that the petitioner, DCL, met its burden of establishing that the trial court departed from the essential requirements of the law by ordering production of the photographs in question after an in camera inspection thereof.

DCL is the defendant in a personal injury action. Respondent, Dorothy Turk, sued DCL alleging that she slipped and fell on the gangway as she was leaving the Disney Magic to go ashore at Disney’s island in the Bahamas. In her complaint, Turk alleged that, as a result of her fall, she suffered bodily injury and incurred medical expenses. As part of the investigation of Turk’s accident, and at the direction of counsel, DCL employees took 17 photographs of the forward and aft gangways used by the Disney Magic. Turk requested production of all photographs showing the location of the accident. DCL objected on work product grounds and provided a privilege log identifying the 17 photographs that were taken. Turk filed a motion to compel. At the hearing on the motion to compel, the trial court sustained DCL’s work product objection, but required DCL to provide additional information in its interrogatory answers.

Turk later served a second request for production seeking all photographs of the ramp on which she fell. DCL renewed its work product objection, but provided photocopies of three photographs of the gangway alleged to be representative of all 17 of the photographs, without waiving its objection as to the other photographs. Turk filed a motion to compel production of the other 14 photographs. The trial court heard argument on the motion. At the conclusion of the hearing, the trial court agreed to inspect the photographs in camera. After the in camera inspection, the trial court ordered DCL to produce all 17 photographs. DCL seeks certiorari relief from this discovery order.

The work product doctrine promotes the adversary system by protecting an attorney’s trial preparation. See Universal City Dev. Partners v. Pupillo, 54 So.3d 612 (Fla. 5th DCA 2011). However, it is not an absolute privilege. Under Florida Rule of Civil Procedure 1.280(b)(3) (Apr.2012), a party may obtain discovery of documents and tangible objects prepared in anticipation of litigation or for trial by or for another party upon a showing that the party has need of the materials in the preparation of the case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. See Ashemimry v. Ba Nafa, 847 So.2d 603 (Fla. 5th DCA 2003). During an in camera review, the trial court can evaluate whether the materials sought provide the requisite evidentiary value alleged by the requesting party and can determine whether the materials are substantially similar to materials already available. See Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003). Orders improperly compelling production of work product materials may be quashed by a writ of certiorari. See, e.g., Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983). Certiorari relief is proper

when the petitioner can establish three necessary elements: (1) the order “de-partís] from the essential requirements of the law,” and (2) “result[s] in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.” Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)).

Keck v. Eminisor, 104 So.3d 359 (Fla.2012). DCL did not meet its burden of establishing entitlement to receive certio-rari relief, because DCL did not provide the photographs to this court, and, without seeing the photographs, we cannot determine that the trial court erred in ordering their production.

The majority reverses the trial court’s order because of a lack of written findings. I do not agree that findings are required in this situation. No statute or rule mandates that the trial court provide findings. Although the majority cites Dismas Charities, Inc. v. Dabbs, 795 So.2d 1038 (Fla. 4th DCA 2001), that case fails to cite any statute or rule requiring such findings, and I disagree with its conclusion.

Additionally, even if findings were required, any objection to the lack of findings was not preserved for review in this proceeding because DCL failed to raise the issue of findings to the trial court. See Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004). In Mathieu, this court noted:

Rather than bring the fact-finding defect to the trial court at the time the decision is made so that the same judge who decided the case can correct the omission while the case is fresh in his mind, often the defect is not ascertained on appeal until many months have elapsed. At best, the trial court has to recall facts that have receded in memory. At worst, the case may land in the lap of a different judge, who has to start all over.

Id. at 741. We concluded that “[i]n the usual case, we will treat the lack of adequate findings as an unpreserved error unless previously brought to the trial court’s attention.” Id.; see also Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001). The rationale for that ruling is equally applicable in this case.

I would affirm the trial court’s order.


text:
    Mary Lauder CRANE f/k/a Mary E. Lauder, Appellant, v. Kathleen SCHREIBER, as Personal, etc., Appellee.
    No. 5D12-1598.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2013.
    Tino Gonzalez, Melbourne, for Appellant.
    Michele L. Lieberman, of Law Office of Michele L. Lieberman, Inverness, for Ap-pellee.
   PER CURIAM.

See Guntner v. Jennings, 980 So.2d 1185, 1188 (Fla. 5th DCA 2008) (holding that without transcript or stipulated statement of facts, appellate court “cannot second-guess the factual basis for a forum non conveniens transfer”).

AFFIRMED.

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


author: PERKINS, T.R., Associate Judge.

text:
    Linda BISHOP, Appellant, v. The ESTATE OF Edward D. ROSSI, Deceased, Appellee.
    No. 5D12-565.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2013.

      Brandon D. Bellew and Sarah J. Man-they, of Johnson Pope Bokor Ruppel & Burns LLP, Clearwater, for Appellant.
    Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellee.
   PERKINS, T.R., Associate Judge.

Linda Bishop (“Bishop”) appeals a judgment entered against her, awarding attorney’s fees to Cheryl Ann Rossi (“Rossi”), the personal representative of the estate of the deceased Edward C. Rossi. Bishop argues that the trial court erred by entering the judgment because it failed to hold an evidentiary hearing to determine entitlement and the reasonable amount of attorney’s fees awarded under Florida Probate Rule 5.080. For the reasons expressed, we affirm the trial court’s finding of entitlement to attorney’s fees, but reluctantly reverse and remand the case back to the trial court to determine the reasonable amount of such fees.

Under rule 5.080, the probate court has broad discretion to assess attorney’s fees and costs associated with discovery against a party or beneficiary of an estate. It is clear from the record that the trial court conducted a hearing on Rossi’s request for fees and costs. Moreover, the trial court stated in its order that it heard argument of counsel and testimony of the parties on the issue. Unfortunately, the order does not detail the evidence offered or the court’s specific findings in support of the fees awarded. Making matters more difficult, Bishop has not provided this Court with a transcript or transcript substitute of the hearing during which the trial court addressed Rossi’s motion for attorney’s fees and costs. As a consequence, it is not possible to review the evidence and/or testimony, if any, Rossi presented in support of her motion. Rossi did attach invoices to her motion, and the amount awarded by the trial court does appear to be the same as the total of those invoices.

In awarding attorney’s fees, the trial court made two distinct findings; first, entitlement to fees and, second, the reasonable amount of such fees. Entitlement to attorney’s fees is largely a question of law. While specific factual findings are helpful when reviewing a determination of entitlement, such findings are not essential where, like here, “entitlement to attorney’s fees is based on the interpretation of contractual provisions ... or a statute ... as a pure matter of law....” Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007).

However, where the court sets the amount of the fee, “[t]he law is clearly established that an award of attorney’s fees ‘must ... contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.’ ” Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So.3d 34, 37 (Fla. 4th DCA 2009) (citations omitted) (emphasis added). This lodestar method of determining reasonable attorney’s fees, adopted by our state Supreme Court in Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), applies equally to probate matters. See In re Estate of Platt, 586 So.2d 328, 335 (Fla.1991). Because the trial court here did not make written findings in the order in which it awarded $9,870.00 worth of attorney’s fees against Bishop, it is not possible to ascertain from the face of the order whether the trial court considered and determined the reasonable number of hours expended and the reasonable hourly rate(s).

Faced with the same inadequacy in an award of attorney’s fees to a guardian, the court in Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003) reversed and remanded to the trial court for the entry of a written order containing the necessary findings, providing: “The court need not hold a new evidentiary hearing if it is able to enter a written order from its notes or a transcript of the original fees hearing.” Id. The court explained:

It is well-settled that an award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. See Zucker v. Zucker, 774 So.2d 890, 893 (Fla. 4th DCA 2001); Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000); Rodriguez v. Campbell, 720 So.2d 266, 267 (Fla. 4th DCA 1998); Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997).

Id.

In Guardianship of Halpert v. Rosenbloom, 698 So.2d 938 (Fla. 4th DCA 1997), the Fourth District Court of Appeal reversed an award of attorney’s fees, albeit reluctantly, as the order awarding the fees failed to set forth “findings as to the time reasonably expended, the hourly rate, or other factors, if any, considered.” Id. at 939. The court explained that no transcript existed of the hearing and neither the order nor record contained any of the specific findings required by Rowe.

While Bishop has not provided a transcript or transcript substitute of the hearing during which the trial court addressed Rossi’s motion for attorney’s fees and costs, the lack of a transcript or transcript substitute does not hinder this Court’s review of the order because reversible error appears on the face of the order, namely the lack of written findings regarding the reasonable number of hours expended and reasonable hourly rate(s). Nor does the record contain any such findings. Accordingly, like the court in Guardianship of Halpert, we reluctantly reverse and remand this matter back to the trial court for a written order expressly finding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER and BERGER, JJ., concur.


text:
    David Allan GORNY, Appellant, v. Renee L. ST. LEGER, Appellee.
    No. 5D11-4123.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2013.
    Carina M. Leeson and Jeffrey Feulner, of Men’s Divorce Law Firm, Orlando, for Appellant.
    Christina D’Amato-Miller, of Christina D’Amato-Miller, PA, Ocala, for Appellee.
   PER CURIAM.

David Alan Gorny [“Gorny”] appeals two non-final orders in the proceeding below by which Renee L. St. Leger [“St. Leger”] is attempting to collect almost $200,000 in unpaid child support. In one, the trial court determined that service of process on Gorny had been effectuated, and set the case for a hearing on St. Leger’s amended petition for domestication and enforcement of a foreign judgment. In the second, a composite order, the trial court denied St. Leger’s motion for judicial default, and also denied Gor-ny’s motion to strike St. Leger’s motion for contempt, his motion for protective order, and his motion to dismiss St. Leger’s amended petition for domestication and enforcement. We find merit only in Gor-ney’s claim that service of process was not established.

St. Leger filed a petition for domestication and enforcement of a foreign judgment from Tennessee in 2007. The Sheriff attempted service of process on Gorny at 144 Deerpath Road, DeBary, FL 32713, on September 11, 2007, but, according to the return of non-service, after diligent search and inquiry, he was unable to find Gorny in Volusia County, Florida. According to the resident at the address where service was attempted, Gorny lived in the Cayman Islands at the time.

Thereafter, on May 28, 2008, St. Leger filed an amended petition for domestication and enforcement of the foreign judgment, as well as a motion for contempt for Gorny’s alleged failure to pay child support. She filed a notice of filing “ORIGINAL AFFIDAVIT OF SERVICE OF ALIAS SUMMONS: PERSONAL SERVICE ON AN INDIVIDUAL, SERVED UPON SUBSTITUTE FOR RESPONDENT ON JUNE 7, 2008.” The affidavit indicates that substitute service of process was made on Gorny through his son at 144 Deerpath Road, DeBary, FL 82718, on June 7, 2008.

Through an untitled pro se pleading, which was sent via certified mail to the Clerk of Court, Gorny objected to the substitute service, asserting:

IN REFERENCE TO THE SUMMONS SERVED UPON MY FORMER ADDRESS OF 144 DEERPATH ROAD, DEBARY, FL. 32713. THIS IS NOT MY LEGAL ADDRESS AND THE TENANTS THAT RESIDE THERE NOTIFIED ME THAT THIS SUMMONS WAS SERVED THERE ON JUNE 7, 2008.
ATTACHED YOU WILL FIND MY WORK PERMIT GRANT FOR WORKING AND LIVING IN GRAND CAYMAN, CAYMAN ISLANDS. I HAVE BEEN A RESIDENT OF THE CAYMAN ISLANDS SINCE MAY, 2007 AND MY WIFE HAS BEEN A RESIDENT HERE SINCE FEBRUARY 2008. MY HOME AT 144 DEERPATH ROAD IS RENTED AND SERVICE SHOULD NOT BE ACCEPTED THERE.
THE PETITIONER RENEE L. ST LEGER IS WELL AWARE OF [sic] THAT I NO LONGER LIVE AT THE FLORIDA ADDRESS AND I HAVE BEEN OUT OF THE COUNTRY. I WILL BE HAPPY TO ADDRESS THIS SITUATION WITH THE PETITIONER ONCE I RETURN TO THE UNITED STATES.

The trial court treated Gorny’s objection as a motion to quash service and directed that a hearing on the motion be held.

It appears that, as a result of a hearing held on August 16, 2010, counsel for St. Leger sent Gorny copies of the documents that had been filed in the case, including but not limited to the summons and alias summons, through certified mail with return receipt requested to 144 Deerpath Road, DeBary, FL 32713 and P.O. Box 30751 SMB Grand Cayman, Cayman Islands, KYI-1204.

On September 2, 2010, the trial court entered an order setting the case for trial. Thereafter, on November 3, 2010, the trial court entered a final judgment of domestication and enforcement. In the final judgment, the trial court provided that Gorny “failed to appear” and found that Gorny “was provided with proper notice of the trial on this matter at both of his mailing addresses in Florida and the Cayman Islands.” It provided that Gorny was in arrears on child support in the amount of $138,005.00, and that the interest on the arrearage totaled $45,451.30.

Gorny filed a motion for reconsideration, for rehearing, to vacate final judgment, and to dismiss. He asserted that the purported substitute service of the amended petition was invalid because the substitute service was made at an address at which he was not then residing, and that the scheduled hearing for his pleading that the trial court treated as a motion to quash service was never held.

On March 3, 2011, the trial court entered an order on Gorny’s motion for reconsideration, for rehearing, to vacate final judgment, and to dismiss the amended petition. In the order, the trial court found that venue was not proper, granted the motion to vacate final judgment and the motion to quash service, and denied the motion to dismiss the amended petition.

It appears that, on May 3, 2011, counsel for St. Leger sent a copy of all pleadings in the case to counsel for Gorny, explaining in a cover letter:

Enclosed herewith please find a copy of all pleadings filed by my office in the above entitled matter. In accordance with Fla. R. Civ. P. 1.080(b) and Fla. Fam. L.R.P. 12.080(a)(1), this perfects service of process upon your client, and a timely response is expected.

Subsequently, on June 15, 2011, the trial court entered a case management order, finding:

1. Former Wife filed an Amended Petition for Domestication and Enforcement of Final Judgment of Dissolution of Marriage on May 13, 2008.
2. To date, service of said Petition has not yet occurred.
3. Counsel for Former Wife has indicated that she has registered a foreign judgment pursuant to Florida Statutes § 55.501- § 55.509.
4. The Court finds that certain requirements for proper registration of a foreign judgment in accordance with the above referenced statutes have not yet been met.

It ordered:

To aid in the disposition of this cause pursuant to Florida Rule of Civil Procedure 1.200, the Court ORDERS the following herein:
1.Pursuant to Florida Statutes § 55.505(2), counsel for Former Wife must send a Notice of Recording of Foreign Judgment via registered mail with return receipt requested to Former Husband at the address given in the Affidavit setting forth the name, address, and social security number of judgment creditor and debtor and shall record proof of mailing with the Clerk, within sixty (60) days.

On August 12, 2011, St. Leger filed a certificate of service of pleadings with an attached domestic return receipt, certifying that a true and correct copy of the certificate of service of pleadings and the attached domestic return receipt had been furnished to counsel for Gorny. Included among the pleadings that were certified to have been “served by Certified mail, Return Receipt” upon Gorny were the petition for domestication and enforcement, the summons, the notice of recording foreign judgment, the amended petition for domestication and enforcement, and the alias summons. The attached domestic return receipt indicates that Gorny received an article at 144 Deerpath Road, DeBary, FL 32713 on August 3. ' The signed domestic return receipt bears a date stamp of August 3, 2010, but a track and confirm print-out lists a delivery date of August 3, 2011.

On October 25, 2011, St. Leger filed a motion for judicial default, asserting:

1. The Amended Petition for Domestication and Enforcement was served upon Husband by Certified Mail, per the Court’s instruction, on August 3, 2011.
2. As of this date, no Answer to the Amended Petition for Domestication and Enforcement has been served, nor has Former Husband made any request for an extension.
3. The twenty (20) days permitted for filing an Answer has passed.

On October 26, 2011, the trial court entered an order on the second case management conference held on October 25, 2011. In the order, the trial court explained that counsel for St. Leger, as well as counsel for Gorny, were present, that service had been effectuated, and that a final hearing would be held on November 28, 2011.

On November 7, 2011, Gorny filed a motion for relief from the order on the second case management conference, and an objection to entry of judicial default. He asserted in part:

1. On October 25, 2011, counsel for the parties attended a Second Case Management Conference with [sic] resulted in this Court’s Order, a copy of which is attached at “Exhibit A.”
2. In 2007, Former Wife registered a foreign judgment previously entered in Tennessee.
3. The Former Husband does not dispute the propriety of the registration which was properly mailed to his home address.
4. Thereafter, the Former Wife filed a Petition for Domestication which requires personal service. An Amended Petition for Domestication was also filed, however, said Amended Petition was similarly not properly served on Former Husband.
5. A significant issue of contention was specifically addressed at both the First and the Second Case Management Conferences, to wit: that the Former Husband was never personally served with the Petition for Domestication or the Amended Petition for Domestication.
6. Former Wife also filed a Motion for Contempt which is currently pending.
7. Specifically, Paragraph 1 of the Court’s Order states:
“Court determines that service has been effectuated.”
8. Paragraph 2 provides:
“The Court will set this case for hearing on enforcement. Two hours to be set aside.”
9. The undersigned asserts that the Court intended to state that “registration ” has been effectuated, and that inclusion of the word “service,” was a clerical mistake.
10. Immediately following entry of this Court’s order, the Former Wife filed a Motion for Judicial Default stating that the Former Husband failed to timely respond to the Petition for Domestication “which was served wpon Husband by certified mail, per the Court’s instruction, on August 3, 2011.
11. While the Former Wife can certainly proceed with enforcement proceedings via the properly registered foreign judgment, she cannot proceed under her Petition, or Amended Petition, for Domestication, as neither have been properly served.
12. Former Husband is under no obligation to answer an unserved petition.
13. It is disconcerting that the Former Wife and/or her counsel would attempt to manipulate the Court’s ruling such that the Former Wife can circumvent the Rules of Procedure as it pertains to service of process.
14. Rule 1.540(a) provides that “clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion for [sic] any party and after such notice, if any, as the court order.”
15. Former Husband requests that this Court correct the clerical mistake of including the word “service” in place of the word “registration.”
16. The Former Husband further requests that this Court deny the Former Wife’s Motion for Judicial Default, which is not only improper, but should also be stricken.

On the same day, November 15, 2011, Gor-ny filed an objection to St. Leger’s request to produce and standard family law interrogatories, and a motion for protective order. He asserted in part that there was “no pending action as required by Florida Rule of Civil Procedure 1.280(6)(l)[sic].” On November 16, 2011, Gorny filed a motion to dismiss St. Leger’s amended petition for domestication and enforcement, asserting lack of service of petition.

On November 18, 2011, the trial court entered an order denying St. Leger’s motion for judicial default, and denying Gor-ny’s motion to strike St. Leger’s motion for contempt, his motion for protective order, and his motion to dismiss St. Leger’s amended petition for domestication and enforcement. In the order, the trial court provided:

THIS CAUSE came before the Court on Counsel for Petitioner/Former Wife’s Motion for Judicial Default, filed with the Clerk on October 25, 2011.
Counsel for Respondent/Former Husband’s Objection to Entry of Judicial Default was filed with the Clerk on November 7, 2011.
Also before the Court is Counsel for Respondent/Former Husband’s Motion to Strike Former Wife’s Motion for Contempt for Improper Venue, Former Husband’s Objection to Former Wife’s Request to Produce and Standard Family Law Interrogatories and Motion for Protective Order, both filed with the Clerk on November 15, 201[sic] Respondent/Former Husband’s Motion to Dismiss Former Wife’s Amended Petition for Domestication and Enforcement, filed with the Clerk on November 16, 2011.
Respondent/Former Husband [sic] Motion to Strike Former Wife’s Contempt for Improper Venue provides no legal authority set forth in the said motion to strike and Fla.R.Civ.P. 1.410(f) does not apply to Former Husband’s basis for striking Former Wife’s Motion for Contempt.
In the Court’s Order on Second Case Management Conference entered on October 25, 2011, the Court determined service was effectuated for purpose of proceeding to a final hearing on enforcement rendering Respondent/Former Husband’s Motion to Dismiss Former Wife’s Amended Petition for Domestication and Enforcement moot.
After reviewing the Court file, Counsel for Petitioner/Former Wife’s Motion, Counsel for Respondent/Former Husband’s Objection and Motions, the Court’s prior Order and being otherwise advised in the premises, it is
ORDERED AND ADJUDGED
1. Petitioner/Former Wife’s Motion for Judicial Default is denied.
2. Respondent/Former Husband’s Motion to Strike Former Wife’s Motion for Contempt for Improper Venue is denied.
3. Motion for Protective Order is denied.
•4. Counsel for Respondent/Former Husband shall have seven (7) calendar days from the date of this Order to respond to discovery.
5. Respondent/Former Husband’s Motion to Dismiss Former Wife’s Amended Petition for Domestication and Enforcement is denied as moot.

Based upon our review of the record, at the time the trial court made the finding that service had been effectuated, the following events had occurred: (1) St. Leger was unable to effectuate service of the initial petition for domestication and enforcement, as is evidenced by the notice of non-service; (2) St. Leger was unable to effectuate service of process in relation to the amended petition for domestication and enforcement, as is evidenced by the trial court’s order wherein it granted Gor-ny’s motion to quash service of process; and (3) counsel for St. Leger sent Gorny and Gorny’s counsel, through certified mail with return receipt requested, copies of the pleadings in the case. The record does not contain a return of service for any service of process that occurred subsequent to the trial court’s order granting Gorny’s motion to quash service of process. Nor does it contain an order vacating its grant of Gorny’s motion to quash service of process. We have accordingly been unable to find in the record the basis for the trial court’s determination that service had been effectuated. On appeal, St. Leger argues waiver, which we do not credit. She also argues facts that she contends establish that Gorny’s residence was, in fact, the DeBary address at the time service of process was attempted, but it is unclear whether this or any other evidence was ever put before the court or whether this could have been the basis of the trial court’s decision. It does not appear from the record that a hearing was ever conducted for the purpose of determining the issue of service of process, and the trial court never made any findings to explain its conclusion as to how or when proper service was made. Accordingly, we reverse and remand to the trial court to conduct a hearing to determine the issue of service of process and to enter a proper order.

REVERSED and REMANDED.

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


text:
    B.W., Mother Of T.G., A.H., and C.H., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-2189.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.

      Lori D. Loftis, Chief Assistant Regional Counsel, Jeffrey Deen, Appellate Counsel, and Ryan Thomas Truskoski, Special Assistant Regional Counsel, The Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant, Mother, B.W.
    Nickole E. Frederick, Orlando, for Father, T.G., David C. Knapp, of McDonald Toole Wiggins, P.A., Orlando, for Guardian ad Litem, Nicola Boothe-Perry.Rosemarie Farrell, of Children’s Legal Services, Orlando, for Appellee.
   PER CURIAM.

B.W., Mother of T.G., Jr., A.H., and C.H., Children, [“Mother”] appeals an order entitled “ORDER GRANTING STATE’S MOTION FOR REUNIFICATION OF [A.H.] and [C.H.] ONLY, AND CLOSING CASE AS TO [T.G., JR.], WITH HIS FATHER.” Mother contends that the trial court erred by placing T.G., Jr., into the custody of T.G., Sr. [“Father”] and closing the case because she had substantially complied with her case plan and there was insufficient evidence to establish that reunification of T.G., Jr., with her would be detrimental to T.G., Jr.

On September 15, 2011, the Department of Children and Families [“DCF”] filed a dependency shelter petition, requesting an order of shelter for A.H., C.H., and T.G., Jr., after receiving a report that C.H. had marks and scars, and that Mother and her paramour, Máxime Milford “[Milford”] hit C.H. According to the petition, A.H. and C.H. share the same father, T.G., Jr., has a different father (T.G., Sr.), and Milford is the father of a fourth child, S.M., a child for whom DCF was not seeking shelter. DCF asserted that it had conducted interviews with C.H. and A.H.; that “[b]oth children stated that the form of discipline in the home [was] that they [were] whooped on the butt with a belt by Max;” and that T.G., Jr., and C.H. were beaten more often. C.H. was examined by the Child Protection Team [“CPT”] and physical abuse was confirmed.

CPI Simpson contacted the Orlando Police Department and filed a child abuse report against Milford:

At this time Mr. Milford is on home confinement at the mother’s home. There were concerns about Mr. Milford being bonded out to the home and the other children remaining in the home with verified physical injuries regarding [C.H.]. CPI Simpson Safety Planned with the mother and Mr. Milford for the children to remain out [sic] the home until Mr. Milford was able to change his home confinement address and/or services could be placed in the home. However, the mother continued to allow [T.G., Jr.] and [A.H.] to frequent the home while Mr. Milford was in the home despite being aware of the nature and extent of [C.H.’s] injuries and being aware that the paramour had been criminally charged with Child Abuse.
The mother and Mr. Milford have a child in common that remains in the home ... [S.M.]. At this time there is no concern for her remaining in the home as the non-biological children appear to be the target children. The maternal relatives and the children’s father have stated concerns about the children remaining in the home with Mr. Milford. There is concern over Mr. Milford’s aggression towards the non-biological children and the mother. The mother has been observed with marks and bruises due to possible domestic violence with Mr. Milford. The children have expressed fear to family members about being in the home with Mr. Milford. The eldest children have informed family members that they are undressed and spanked while bending over the bed. The mother has been provided VPS services in prior cases.
The Department cannot ensure the children’s safety while in the care of the mother as she failed to comply with recommended action to ensure the safety of her children. The mother has continued to allow the paramour access to the children despite the physical abuse to [C.H.] which has resulted in a criminal charge of child abuse. The Department is respectfully requesting that probable cause be found on behalf of the children and that they be sheltered and placed in the Department’s care.

The trial court ordered T.G., Jr., placed with his father [“Father”], and placed A.H. and C.H. with their paternal grandparents. In the order, the trial court found that Mother had disregarded the Safety Plan, bonded her paramour out of jail, and continued to expose the children to the paramour. The trial court directed that Milford was to have no contact with the children.

Subsequently, on October 3, 2011, after conducting a hearing, the trial court entered an order of arraignment, as well as an order of adjudication, disposition, acceptance of case plan, and notice of hearing. In the order of arraignment, the trial court noted that Mother and the father of A.H. and C.H each consented to dependency, and that there were no allegations with respect to the father of T.G., Jr. [Father],

In the order of adjudication, disposition, acceptance of case plan, and notice of hearing, the trial court adjudicated A.H. and C.H. dependent, and placed them in the temporary custody of their paternal grandparents. With respect to T.G., Jr., the trial court withheld adjudication and continued T.G., Jr.’s, placement with Father. The trial court also accepted DCF’s case plan, the permanency goal of which was “Reunification with Parent with an expiration. date of 06-15-2012.” In a separate order, the trial court appointed a guardian ad litem.

On December 9, 2011, DCF filed a judicial review social study/case plan update, which reported that Mother had substantially complied with her case plan task of participating in domestic violence counseling, but had only partially complied with her case plan task of attending a twelve-week parenting class.

On March 8, 2012, a general magistrate, after conducting a status compliance hearing, filed findings and a recommendation, including in part:

Mother’s compliance: Mother maintains that she has reached substantial compliance having completed domestic violence, separated from her paramour, maintaining stable housing and income. Mother is requesting a home study.

The general magistrate directed that a home study be performed on Mother. The trial court entered an order ratifying and approving the report and recommendation of the general magistrate.

On May 7, 2012, a status report of the case manager was filed with the trial court. In the report, the case manager provided:

Attached is a home study recommending reunification of the following children: [C.H.] and [A.H.]
It is being recommended that the third child above, [T.G., Jr.], be allowed by the Court to continue living in the home of his father.... Rationale for this recommendation is as follows:
[T.G., Jr.] is currently placed in the home of his father, ... has been with his father since the date of removal and has been doing extremely well in his current placement. Upon his arrival at his father’s home, [T.G., Jr.] displayed concerning behaviors and an intense fear of adult males; it is believed that this fear is the result of the abuse that the children allegedly suffered at the hands of the mother’s paramour. In the time that has transpired, [T.G., Jr.] has worked with a therapist and has been successfully discharged from therapy due to his behaviors subsiding and his thriving in the home of the father. The father and mother both report a healthy relationship where they work together to parent their child. The father reports having no issues with allowing the mother to be an integral part of the child’s life however, the father has expressed concern regarding the environment that his child was exposed to as a result of the mother’s negligence in the past.
There is a concern that [C.H.] and [A.H.] may need time to adjust to their new placement with the mother and that between the two children being reunified, the infant in the home, and the child that has yet to be born, the mother will have multiple stressors in her life. The father has expressed a legitimate concern (and the Department shares the concern) that five children in this household may be unmanageable both emotionally and financially.
It is believed that uprooting [T.G., Jr.] from his current home with his parent, [T.G., Sr.], would be extremely detrimental to this child and to the prospect of a successful reunification with the children [C.H.] and [A.H.]. In an effort to make this reunification as successful as possible with the children [C.H.] and [A.H.], it is strongly recommended that [T.G., Jr.] be allowed to stay in the home with his father permanently and that his mother maintain her right to unsupervised visits with her child while providing a home for her four other children.
Also, it is believed that it would be detrimental to the family system to suggest that this non-offending father will only be afforded his fundamental right to care for and live with his son for several months while the mother rectifies a situation that never should have happened in the first place. The mother has previously put this child at risk and has admitted that she continued to expose this child to the same level of risk knowingly without pursuing help for her children prior to removal.
Devereux requests at this time that the Court issue a self-executing order stating that upon four (4) successful weekend overnight visits that the children [C.H.] and [A.H.] be reunified with their mother.
Devereux requests at this time that the Court issue an order placing the child [T.G., Jr.] in the home of his father, [T.G, Sr.] and that [T.G., Jr.’s] case be closed out to this father, [T.G., Sr.].
Devereux requests at this time that the Court issue a self-executing order that states upon four (4) successful weekend overnight visits that the child [T.G., Jr.] be allowed UNSUPERVISED OVERNIGHT CONTACT with the mother, [B.W.].

In the parental reunification readiness assessment and home study, attached to the case manager’s report, the case manager wrote in part: “The mother reports that she and the alleged perpetrator (Máxime Milford) are no longer in a romantic relationship despite the fact that she has a child with him and another one on the way.”

On the same day, May 7, 2012, DCF filed a motion for reunification of A.H. and C.H., only, and closing case as to T.G., Jr. with his father. It alleged:

3. The mother has substantially complied with her case plan, and requested reunification. Devereux Florida has completed a home study on the mother’s home and it is positive for reunification of [C.H.] and [A.H.]. (see attached Home Study).
4. Therefore, the State is requesting the court grant an order to reunify the minor children, [A.H.] and [C.H.], with their mother.
5. However, Devereux Florida does not recommend reunification of the child [T.G., Jr.]. The State believes that between [C.H.] and [A.H.], [S.M.] (an 11 month old of whom the mother did not lose custody), and the mother’s soon-to-be born child, the mother will have multiple stressors both financially and emotionally. (See attached Status Report).
6. The addition of a fifth child, [T.G., Jr.], who is only 2 years old, is an unnecessary stressor. [T.G., Jr.] is thriving in his father’s care, after completing therapy for an intense fear of adult males. The father and mother both report a healthy relationship where they work together to parent their child.
7. The State requests a self-executing Order which will reunify [A.H.] and [C.H.] with their mother, and grant unsupervised visitation for the mother with [T.G., Jr.], after four (4) successful overnight weekend visits. (See attached Status Report).
8.The State also requests the Court enter an Order placing [T.G., Jr.] in the permanent custody of his father, and closing his case.

On May 15, 2012, DCF filed a status report, to which it attached a treatment update for Milford, consisting of a letter from a licensed psychotherapist reporting that he “administratively discharge[ed] him due to non-compliance to treatment.”

The trial court conducted a hearing on May 16, 2012. At the outset of the hearing, the trial court inquired about the position of the parties regarding DCF’s motion for reunification of A.H. and C.H. only, and closing the case with respect to T.G., Jr., with his father. Counsel for DCF replied: “The reason we are before you is because the mother is objecting to the non-return of [T.G., Jr.], and that is the only issue.” The Guardian ad Litem asserted: “Your Honor, we think it’s in the best interests of [T.G., Jr.], to be with his father at this time.”

Upon inquiry by the trial court about whether Mother had a case plan at the then present time, counsel for DCF replied:

She does, Your Honor. And she has — I have additional information that — and reasons why, even if we were to follow this case — that I believe that it’s detrimental to this child to return him to his mother.
The specifics of this case: Mom has substantially complied. The reason the children were taken is because the mother’s paramour, who is the father of her two younger children, a newborn who was just born last week and a toddler — ....
So we have a one-year-old and a newborn — are the children of the paramour who was responsible for the abuse of the three children that were removed.
And so our position is that — regardless of the fact that the court reserved ruling, is that ... [A.H.] and [C.H.] are seven and five, approximately, give or take a month here or there in this new year. Seven and five, they’re verbal and are able to report if someone is to do something — because we are under the assumption that this — he’s not just a paramour anymore. He’s the father of two of her children.
He had voluntarily said that he would do a case plan which included counseling and behavior education regarding his issues. He’s been discharged from that program and they’ve had no further contact with him. So he did not do what we would have hoped he would have done to resolve that.
We believe [A.H.] and [C.H.] can report if something happens. [T.G., Jr.] is just turning three and he is speech-delayed. He’s not extremely verbal.
And we believe that given the two children she’s getting back and the newborn and one-year-old she has in the home, that [T.G., Jr.] is not able to protect himself and that it could be detrimental to him to put him back in this home where we believe this person is still going to be present.

Counsel for Mother asserted:

The mother and the paramour at this time, they are not a couple. Yes, they do share children together, and they will continue to do that until whenever. But they are not actively a couple. They do not live together. The only thing that they share right now in common are the two children that they have together.

Upon inquiry by the trial court about whether the Guardian ad Litem “believe[d] reunification with mother would be detrimental to the child,” the Guardian ad Li-tem responded affirmatively:

Our main concern is the fact that there will be contact with the paramour if the child is returned to the mother, and the fact that he is not yet three years old so he won’t be able to report as [A.H.] and the other son will be able to do. And even though I understand that they’re not in a romantic relationship, I echo the court’s concern that the probability that there will be contact with the paramour with — if [T.G., Jr.] is in the house, is very high. She just had a baby, and there is a one-year-old.
And certainly, she seems to be a young lady who takes into consideration that there should be some relationship between her children and their fathers, so the probability of contact with [T.G., Jr.], and the father — and the paramour — excuse me — is very high, and it’s concerning us regarding whether or not he will be safe.
So it is our position that at this time, particularly since she just had the baby, that it would, in effect, endanger [T.G., Jr.], to be returned at this time. He can’t fend for himself and he can’t report anything that’s happening in the house because he’s non-verbal.

On June 13, 2012, the trial court, entered the order granting DCF’s motion for reunification of A.H. and C.H. only, and closing the case as to T.G., Jr., with his father. It provided:

1. At Disposition on October 3, 2011, the Court reserved ruling on ... [T.G., Jr.’s] Father’s Motion to Terminate Supervision and Jurisdiction.
2. [T.G., Jr.’s Father] has had custody of his child, [T.G., Jr.], since shelter on September 15, 2011.
3. The mother has substantially complied with her case plan.
4. The mother’s paramour, who caused injury to the children resulting in the shelter, has not engaged with voluntary services.
5. Although the mother asserts she and the paramour are no longer involved in a romantic relationship, the mother and paramour have had two children together, who live with the mother.
6. There is a likelihood that [A.H.], [C.H.], and [T.G., Jr.] will continue to be exposed to the paramour.
7. Due to his age and limited verbal ability, [T.G., Jr.] is not sufficiently able to self-report fear of or abuse by the paramour.
8. There is a sufficient showing that reunification of [T.G., Jr.] with the mother would be detrimental to the child. See M.M. v. DCF, 29 So.3d 1200 (Fla. 5th DCA 2010).
9. Had the Court known in October, 2011, the facts of which it is now aware, including that the paramour has not engaged with services, the Court would have granted the father’s Motion to Terminate Supervision and Jurisdiction made at Disposition.
Therefore, it is hereby ORDERED AND ADJUDGED:
1. [T.G., Jr.’s] ... Father’s Motion to Terminate Supervision and Jurisdiction, made at the Disposition on October 3, 2011, is GRANTED.
2. The State’s Motion for Reunification of [A.H.] and [C.H.] with the mother is GRANTED, after four successful consecutive unsupervised weekend visits, pursuant to this Court’s previous Order.

On appeal, Mother contends that, because she had substantially complied with her reunification case plan, she was entitled to have T.G., Jr., returned to her, unless adequate findings of fact establishing that reunification would be detrimental to the child were made and were based on competent evidence. See D.G., v. Dep’t of Children & Families, 903 So.2d 1042 (Fla. 5th DCA 2005). DCF, on the other hand, urges that the facts on which the trial court relied were not in dispute. In the main, DCF is correct, although it appears that the likelihood of T.G., Jr.’s, future exposure to Milford is contested by Mother. In the past, Mother has demonstrated an unwillingness to protect her children from abuse at the hands of Milford or from exposure to her own abuse by Milford. Nevertheless, where an offending parent in the position of the mother in this case contests the issue of “detriment to the child,” and one or more facts are in dispute, an evidentiary hearing must be held at which both sides can adduce evidence, and adequate findings must be made to support a finding that return of the child to the mother would be detrimental.

Here, the trial court acknowledged during the hearing that there were factual issues, including the risk of future harm to T.G., Jr., if he were returned to Mother. Nevertheless, the court made findings of fact without conducting an evidentiary hearing. Accordingly, we are bound to reverse and remand for that purpose.

REVERSED and REMANDED.

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

      . It is unclear from the record whether the paramour's last name should be spelled "Mi-lord" or "Milford.”