author: DAMOORGIAN, J.

text:
    Flavio TOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3231.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Antony P. Ryan, Regional Counsel and Louis G. Carres, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Flavio Tomas appeals his conviction and sentence for sexual battery on a person less than twelve years of age and lewd and lascivious molestation. Tomas raises three issues on appeal: 1) the improper use of a foreign language transcript and recording; 2) failure to conduct a timely Nelson hearing; and 3) the preclusion of certain testimony regarding the victim and her mother. We affirm.

With respect to the first issue, the State during trial introduced a recording of Tomas’s custodial interrogation by police, in which Tomas made incriminating admissions. Tomas spoke in Spanish during the interview, and the State was permitted to use an unauthenticated transcript of the English translation of the interview at trial. A copy of the translation was also provided to each juror, and the jury had the translation during deliberations. Tomas argues that the trial court erred when it allowed the jury access to the transcript of the translated interview during deliberations. Moreover, Tomas alleges that the error was compounded by the fact that the court failed to instruct the jury on the use of a foreign language recording.

We begin our analysis by noting that Tomas did not object to the jury having access to the translation, he never requested the standard foreign language instruction, nor did he argue that the translation was in fact inaccurate. Accordingly, Tomas claims fundamental error.

In response, the State argues that the Florida Supreme Court has held that the “[ffeilure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error.” Sochor v. State, 619 So.2d 285, 290 (Fla.1993). In this case, the foreign language recording instruction did not go to an essential element of the offenses charged. Therefore, Tomas cannot establish that the trial court committed fundamental error by failing to give the instruction.

As for the jury having access to the translation during deliberations, the State correctly points out that Tomas consented to the jurors having the translation during deliberations. Even if the trial court erred by allowing the transcript of the Tomas’s taped statement into the jury room, the error was invited. Under the rule of invited error, “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Sheffield v. Superior Ins. Co., 800 So.2d 197, 202-03 (Fla.2001) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)).

We also conclude that the error was not fundamental. See Janson v. State, 730 So.2d 734, 735 (Fla. 5th DCA 1999) (allowing a transcript into the jury room is not per se reversible); see also Young v. State, 645 So.2d 965, 968 (Fla.1994) (“We do not suggest that allowing the videotape [of a witness’s testimony] to go to the jury room was fundamental error.”).

Tomas argues that the “cumulative prejudice from these errors require[s] a finding that the fairness of the proceedings was compromised to the extent that a new trial is required.” Tomas cites Davis v. State, 937 So.2d 273 (Fla. 4th DCA 2006) and Fuller v. State, 540 So.2d 182 (Fla. 5th DCA 1989), which are both distinguishable. Davis and Fuller involved multiple prejudicial errors allowed by the trial court that resulted in fundamental error. In Davis, such errors included improper closing arguments, comments on the witnesses’ credibility, and improper questioning about the defendant’s prior felony convictions. See Davis, 937 So.2d at 277. Here, the trial court was not required to give the instruction on the foreign language recording, and Tomas invited the error of the transcript entering the jury room.

Next, Tomas claims that the trial court failed to conduct a sufficient Nelson hearing on his two written complaints to the trial court about the effectiveness of his trial counsel. In Tomas’s first letter, he only complained about the lack of communication with his defense attorney, he never raised specific instances of attorney incompetence, and most importantly, he did not request a new attorney. Tomas’s second letter was not sent to the State Attorney’s Office or to Tomas’s trial counsel. Tomas stated that his counsel did not visit him enough and that he felt ignored by his counsel. In his second letter, Tomas requested appointment of another attorney.

In resolving this issue, we are guided by our holding in Sheffield v. State, 769 So.2d 493 (Fla. 4th DCA 2000). In Sheffield, we concluded, under circumstances similar to this case, that:

Prior to trial, appellant filed a handwritten motion to discharge the assistant public defender who was representing him. However, he never called the motion to the court’s attention. He never asked for a hearing on the motion. He proceeded to trial with the same public defender, without voicing any objection to the trial court. Under these circumstances, appellant waived his right to have the trial court conduct a hearing under Nelson v. State, 274 So.2d 256, 259 (Fla. 4th DCA 1973). See Kinzie v. State, 696 So.2d 530, 530-31 (Fla. 4th DCA 1997).

Id. at 493. Tomas filed a handwritten request for counsel, but never asked for a hearing. He proceeded to trial with the same attorney without voicing any objections to the trial court. Furthermore, the trial court noted that it did not actually receive a letter from Tomas or any correspondence within the terms of the Nelson hearing. Accordingly, Tomas waived his right to have the trial court conduct a Nelson hearing. Cf. Penn v. State, 51 So.3d 622, 623 (Fla. 2d DCA 2011) (holding that defendant had been entitled to a Nelson hearing because even though the attorney did not specifically ask for a Nelson hearing, “the record leaves no doubt that the attorney was asking for such a hearing” right before trial).

Finally, Tomas complains that the trial court should have allowed him to introduce the victim’s testimony that she sometimes told lies to get out of trouble, and that the victim’s relationship with her mother was not good.

The victim’s “prior bad acts” of lying are not admissible for purpose of impeachment. “The plain language of section 90.610, Florida Statutes, authorizes impeachment with only prior convictions; there is no exception written into or considered by the statute.” Roebuck v. State, 953 So.2d 40, 43 (Fla. 1st DCA 2007); see also Washington v. State, 985 So.2d 51, 52 (Fla. 4th DCA 2008) (holding that trial court did not abuse its discretion by preventing the introduction of evidence that the victim submitted a false police report).

More recently, the Florida Supreme Court in Pantoja v. State, 59 So.3d 1092 (Fla.2011), held that a defendant charged with sexual battery against a child was not entitled to cross-examine the victim about a prior accusation of molestation that she made against her uncle. Id. at 1096-97 (“ ‘The only proper inquiry into a witness’s character for impeachment purposes goes to the witness’s reputation for truth and veracity.’ ”) (quoting Fernandez v. State, 730 So.2d 277, 282 (Fla.1999)). The testimony that Tomas’s attorney was attempting to elicit did not relate to the victim’s reputation for truth and veracity.

Tomas argues that the inquiry into the victim’s relationship with her mother was relevant to establish the motive behind the accusations of the victim. See § 90.401, Fla. Stat. (2010) (“Relevant evidence is evidence tending to prove or disprove a material fact.”). Tomas acknowledges that the evidence code grants a trial court wide discretion to permit the introduction of evidence relating to the motive of the victim. See King v. State, 89 So.3d 209, 224 (Fla.2012) (A “trial court has broad discretion in determining the relevance of evidence, and such a determination will not be disturbed absent an abuse of discretion.”). Even if the trial court erred by excluding the evidence above, the error was harmless because Tomas admitted to committing the crimes in his recorded interview. See Hughes v. State, 819 So.2d 815, 815-16 (Fla. 1st DCA 2002) (holding that the two errors committed at trial were harmless because the defendant admitted to committing the lewd and lascivious acts upon the child).

Affirmed.

MAY, C.J., and CONNER, J„ concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Standard Jury Instruction 2.12, adopted in 2006, provides that the foreign language instruction advises the jury to rely upon the translation in evidence and not upon its own independent translation. See In re Standard Jury Instructions In Criminal Cases (No.2005-7), 937 So.2d 1092, 1092-93 (Fla.2006).

      . See Janson v. State, 730 So.2d 734, 734 (Fla. 5th DCA 1999) (“Florida Rule of Criminal Procedure 3.400, 'Materials to the Jury Room,’ lists the items the jury is allowed to have in the jury room, and it does not include trial transcripts.”).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Alexander COLLETTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4914.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Alexander Colletta appeals a final judgment and sentence of 117.45 months in the Department of Corrections (DOC) imposed after he pled guilty to thirty counts of possession of child pornography. The basis of Colletta’s appeal is that the trial court desired to impose a downward departure sentence based upon a mental health disorder but because of this court’s prior decision in State v. Gatto, 979 So.2d 1232 (Fla. 4th DCA 2008), it had no discretion to impose a downward departure sentence. We reverse.

At sentencing, the defense produced extensive evidence of Colletta’s long-standing mental illness, and argued for a sentence below the guidelines range pursuant to section 921.0026(2)(d), Florida Statutes (2009), which allows a downward departure sentence if the defendant needs specialized treatment for a mental disorder and is amenable to treatment. The statute provides in part:

(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

§ 921.0026(2)(d), Fla. Stat. (2009).

After hearing evidence and argument and reviewing written submissions, the trial court found that Colletta suffered from a mental illness. Nonetheless, it ruled that it could not depart downward because, as argued by the state, the defense had not shown treatment was unavailable in prison:

And again, there has not been a showing or evidence elicited when we had your hearing that the Department of Corrections cannot provide psychiatric treatment for your psychotropic medications. I know they have a psychiatric hospital and unit. But without that second tier being met I cannot go below the guidelines but I will give you the minimum which is 117.45 months. That will be followed by 10 or 15 years, I’m sorry, of probation. We already told you’ll be a registered sex offender.

(Emphasis added.)

At the close of the sentencing hearing the trial judge stated:

Mr. Colletta, I hope you know I have absolutely no pleasure of sending someone your age to prison but the law requires it and that’s my job. I don’t have a choice. I really don’t.

The state asserts that this court does not have jurisdiction to entertain an appeal of the sentence where it did not exceed the limits of the sentence called for under the Criminal Punishment Code. However, this court has remanded for re-sentencing where the defendant received a legal sentence but the trial court failed to exercise the discretion it had under the statutes. See Goldwire v. State, 73 So.3d 844 (Fla. 4th DCA 2011) (remanding for resentencing where trial court was under the mistaken belief that it did not have the discretion to impose a youthful offender sentence); Washington v. State, 82 So.3d 828 (Fla. 4th DCA 2011) (remanding for resentencing where trial court believed it could not reinstate probation without grounds for downward departure).

In the instant case it appears the trial judge denied the motion for downward departure sentence because she believed, under State v. Gatto, that she had no discretion to do so. In Gatto, this court held that a trial court cannot enter a downward departure sentence if treatment for the defendant’s condition is available in DOC and that the burden to prove otherwise is upon the defendant seeking the downward departure. 979 So.2d 1232, 1233-34. Under Gatto, the trial judge made the correct ruling. However, since the sentencing and while this matter was on appeal this court in an en banc opinion receded from our holding in Gatto. See State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012).

As we noted in Chubbuck, this court in Gatto supplemented the plain language of section 921.0026(2)(d) with a further requirement that the defendant must establish, by preponderance of the evidence, that the DOC cannot provide the required specialized treatment. The plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing. Id. at 921.

By requiring the defendant seeking a downward, departure from a criminal punishment code sentence to prove that the services to treat his or her medical condition are unavailable in prison, the courts have placed an additional burden on the defendant which is not required by the Legislature. In fact, nothing in the legislative history even hints that in order to justify a downward departure on this ground, services must be unavailable in prison to treat the condition.

Id. at 922.

Because Colletta preserved this issue for appeal, we reverse and remand for resen-tencing. As we explained in Chubbuck, on remand the state should have the opportunity to present evidence as to whether the DOC can provide the required “specialized treatment.” However, if the state presents such evidence at the new sentencing hearing, the trial court is not precluded from granting Colletta’s request for downward departure. Rather, the state’s evidence is merely an additional factor which the trial court may consider in exercising its discretion as to whether to grant Col-letta’s request for downward departure. Id. at 923.

Reversed and Remanded for new sentencing hearing.

POLEN and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    Patricia WATTERSON, Appellant, v. SMALLWOODS, INC. and Jimmy Floyd, Appellees.
    No. 4D11-1071.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    G. Ware Cornell, Jr. of Cornell & Associates, P.A., Weston, for appellant.
    Peter L. Sampo of Allen, Norton & Blue, P.A., Coral Gables, for appellees.
   PER CURIAM.

We affirm the circuit court’s order granting final summary judgment in favor of the plaintiffs former employer. See Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 158-60 (Fla.2003) (pleadings of unwelcome conduct including touching in a sexual manner do not state a cause of action for the Florida common law tort claim of invasion of privacy); Natson v. Eckerd Corp., 885 So.2d 945, 948 (Fla. 4th DCA 2004) (a defending employer may raise an affirmative defense to liability or damages on a sexual harassment claim on the basis: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); Scott v. DMN Inc., 31 Fed.Appx. 836 (5th Cir.2002) (“We agree with the district court that [the employer] then discharged its burden by coming forth with a legitimate non-discriminatory reason for terminating [the plaintiff] — namely, that [the plaintiff] violated [the employer’s] established attendance policy by failing to report to work for at least three consecutive days without providing documentation explaining her absence and thus was terminated for job abandonment.”) (footnote omitted).

Affirmed.

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Willie E. BROWN and Brenda Brown, husband and wife, Appellants, v. Kim J. NAGELHOUT, individually, Helena Chemical Co., Inc., a foreign corporation, and CSX Transportation, Inc., a foreign corporation, Appellees.
    No. 4D09-4140.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso Spier & Connolly, P.A., Miami, for appellants.
    Richard A. Sherman, Sr., and James W. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, David B. Goulfine of Hightower & Partners, Orlando, for appel-lees, Kim J. Nagelhout and Helena Chemical Co., Inc.
    Daniel J. Fleming and Jose A. Gutierrez of Melkus, Fleming & Gutierrez, Tampa, for appellee, CSX Transportation.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAMOORGIAN, J.

We reconsider on remand our opinion in Brown v. Nagelhout, 33 So.3d 83 (Fla. 4th DCA 2010), which was quashed by the Florida Supreme Court following its decision in Brown v. Nagelhout, 84 So.3d 304 (Fla.2012).

Based on the Supreme Court’s holding in Brown, applying the plain language of sections 47.011, 47.021, and 47.051, Florida Statutes (2009), we reverse the trial court’s order granting Kim J. Nagelhout, Helena Chemical Co., Inc., and CSX Transportation, Inc.’s motion to transfer venue from Broward County to Pasco County, Florida.

Reversed.

MAY, C.J., and HAZOURI, J., concur.


text:
    Antonio RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4240.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Diaz v. State, 14 So.3d 1156 (Fla. 4th DCA 2009).

POLEN, GROSS and LEVINE, JJ., concur.


text:
    Maria CORREA, Appellant, v. SUNSHINE STATE INSURANCE COMPANY, Appellee.
    No. 4D11-636.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Paul B. Feltman of Alvarez, Carbonell, Feltman, Jimenez & Gomez, PL, Coral Gables, for appellant.
    Anna D. Torres of Powers, McNalis, Torres & Teebagy, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513-14 (Fla. 5th DCA 2007) (affirming a final summary judgment for the insurer where the insured did not complete a sworn proof-of-loss form before suing the insurer).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Ashton CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5373.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Clayton R. Kaeiser, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Rodriguez v. State, 75 So.3d 391 (Fla. 4th DCA 2011); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011) (citing Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011)), rev. granted, 81 So.3d 414 (Fla.2012), disagreed with on other grounds by Lopez v. State, 84 So.3d 389 (Fla. 4th DCA 2012); State v. Green, 944 So.2d 208 (Fla.2006). See also Smith v. State, 85 So.3d 551 (Fla. 4th DCA 2012).

MAY, C.J., POLEN and DAMOORGIAN, JJ., concur.


text:
    Yulia FOREST-KOHL, Appellant, v. Norman Dean KOHL, Appellee.
    No. 4D11-698.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Chet E. Weinbaum, Fort Pierce, for appellant.

      John Edgar Sherrard, Stuart, for appel-lee.
   PER CURIAM.

The former wife, Yulia Forest-Kohl, appeals the final judgment of dissolution, contending, among other things, that the trial court erred in failing to designate her credit card and student loan debt as either marital or non-marital liabilities and allocate them accordingly in the final distribution of marital assets and liabilities. The former wife presented evidence that she accumulated both credit card debt and a student loan during the marriage. However, the court did not address these liabilities in its final judgment. A court commits reversible error when it fails to classify a contested liability as either marital or non-marital. Preudhomme v. Bailey, 82 So.3d 138, 141 (Fla. 4th DCA 2012); § 61.075(3)(a), (b), Fla. Stat. (2008). We reverse and remand for the court to make the necessary statutory findings. We affirm all other aspects of the final judgment.

Affirmed in part, Reversed in part, and Remanded for fatrther proceedings.

TAYLOR, CIKLIN and GERBER, JJ„ concur.

      . We address this issue despite the former wife's failure to bring it to the trial court's attention in a motion for rehearing. See Mon dello v. Torres, 47 So.3d 389, 400 n. 3 (Fla. 4th DCA 2010) (citing Dorsett v. Dorsett, 902 So.2d 947, 950 n. 3 (Fla. 4th DCA 2005)).


author: MAY, C.J.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. FLORIDA GAS TRANSMISSION COMPANY, LLC, a Delaware Limited Liability Company, Appellee.
    No. 4D11-2567.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Erik M. Figlio and John Beranek of Ausley & McMullen, Tallahassee, and Gregory G. Costas, Roger Wood and Marc Peoples, Tallahassee, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Bricklemyer, Smolker & Bolves, P.A., Tampa, Daniel W. Bishop, II, and Christina Carlson Dodds of Bishop London & Dodds, Austin, and Tom Q. Ferguson of Doerner, Saunders, Daniel & Anderson, LLP, Tulsa, for appellee.
   MAY, C.J.

The historical saga of the Florida Gas Transmission Company (“FGT”) and the Florida Department of Transportation (“DOT”) provides the factual background for this appeal. DOT appeals a declaratory judgment that set an easement’s width and a damages judgment rendered after a jury verdict that determined who was responsible for the cost of relocating gas pipelines because of a Turnpike expansion project. DOT argues error in the trial court’s submission of unambiguous contract language to the jury for interpretation, the resulting verdict finding FGT entitled to reimbursement for relocation expenses, and in the trial court granting FGT a uniform permanent and temporary space easement width. Numerous sub-issues are raised. On cross-appeal, FGT argues the trial court erred in requiring it to pay the cost of relocating the pipeline if it does not consent to DOT paving over the pipeline in the future, and failing to find that mechanically-stabilized earth walls always interfere with FGT’s easements. We affirm in part and reverse in part.

The History Begins: The 1958 Easement

In 1958, the Florida Turnpike Authority entered into an easement agreement with Houston Gas for the purpose of laying, constructing, maintaining, and operating a natural gas pipeline within the Turnpike right-of-way. Pursuant to the 1958 easement, Houston Gas installed an eighteen-inch pipeline along 109 miles of the Turnpike.

The easement contained a metes and bounds description with a starting and ending point, but did not specify where within the easement the pipeline would be located. The pipeline and necessary appurtenances were “to be constructed in the most practicable and workable locations, consistent with usual pipeline construction procedures, by and with the consent of [the Turnpike Authority] and its engineers.” The easement specified that the pipeline would be located “at a distance of not less than 40 feet from the outer edge of the pavement of [the Turnpike], except where structures and topographical features shall require a lesser distance, as permitted by [the Turnpike Authority] or its engineers.” The legal description did not specify a uniform easement width or guarantee a minimum amount of tempo.-rary work space.

The History Continues: The 1967 Easement

Houston Gas became known as FGT in 1962. Five years later, the Turnpike Authority entered into a second easement agreement that allowed FGT to lay a second twenty-four-inch pipeline along the Turnpike right-of-way south of Fort Pierce and a nine-mile pipeline in Orange County. The 1967 easement again contained a metes and bounds description with beginning and ending points, but no specific location within the right-of-way for the pipeline. The 1967 easement also contemplated that FGT would lay the pipeline at least forty feet from the outside edge of the pavement, subject to the Turnpike Authority’s ability to grant a variance.

Paragraph four of the 1967 easement stated in part:

The laying and installation of said pipeline, and the construction and operation thereof, shall be in conformity with the industry’s standards for the highest grade of design, construction and operation, for a similar facility paralleling a limited access highway in a populated urban area; provided, however, that in no event shall the standards be below those requirements set forth in the American Standard Code for Pressure Piping, ASA B31.8, with any changes or additions which may be mutually agreed upon in writing by both [DOT] and [FGT],

The 1967 easement required FGT “to conduct its activities in connection with the construction and operation of any and all pipelines which have been, or may be, constructed and operated by [FGT] in such a manner so as to interfere to the least possible extent with the overall operation of the [Turnpike].”

The 1967 easement required FGT to be responsible for its own expenses should a Turnpike expansion require relocation of its pipeline. It also incorporated the terms of the 1958 easement “relative to maintenance, operation, relocation and removal of [the] pipeline.” The parties agreed that sections of the pipeline located under crossings of underpasses, access roads, interchanges, and the Turnpike itself would be bored underground.

The History Continues: The 1987 Amendment

In 1987, the parties agreed to amend the 1967 easement to clarify the rights of the parties with respect to the cost of relocating the gas pipelines. Following the 1987 amendment, section 10 of the 1967 easement read:

In the event it shall become necessary to rearrange or relocate the pipeline system to accommodate changes or improvements on or to the [Turnpike] and such rearrangements and relocations are reasonably required for such purposes, they will be made by [FGT] at its own expense.... In construing this paragraph, it is understood that [DOT] will fully cooperate with [FGT] to the end that such changes and relocation of [FGT’s] pipeline system may be held to the minimum necessary to accomplish [DOT’s] purposes; and when an alternative method or methods are possible, and in the judgment of [DOT] are substantially equal in cost and feasibility, such alternative method or methods may be adopted and [FGT’s] pipeline system permitted to remain in place or with a minimum of disturbance. [DOT] shall not have any obligation or responsibility to pay or reimburse [FGT] for rearrangements or relocations of [FGT’s] pipeline(s) under this Paragraph 10; provided that such rearrangements or relocations are reasonably required to accommodate changes or improvements to the [Turnpike].... The determination of what changes and improvements are to be made on or to the [Turnpike] is reserved solely to [DOT],

The Plot Thickens: The 1992 Agreements

In 1992, FGT and DOT entered into two agreements, one for use when FGT was located within the state right-of-way, pursuant to a permit or license (the “Non-Reimbursable” Agreement), and another if FGT owned a property interest in DOT’s right-of-way (the “Reimbursable” Agreement). The Reimbursable Agreement provided that “[w]hen the [DOT] has served an order on [FGT] regarding relocation of [FGT’s] facilities along, over and under property in which [FGT] holds a compen-sable interest,” FGT agreed to relocate the necessary facilities. DOT agreed to reimburse [FGT] “for all costs incurred by it in each such relocation of said facilities.”

Paragraph 1 specifically incorporated the terms of the Utility Accommodation Guide (“UAM”), and “any supplements thereto or revisions thereof.” The 2004 UAM, which was admitted into evidence without objection, defines “compensable interest” as “having established real property rights.”

The Saga Begins: The Widening Projects

In 2000, the Turnpike Authority initiated the widening projects. On April 19, 2004, the Turnpike Authority sent the first of four'“Final Agreement Package” letters to FGT, confirming the project would require FGT to adjust and/or relocate its pipeline facilities. These “Final Agreement Packages” included documentation for FGT to submit its relocation costs to DOT. The Turnpike’s Utility Manager testified that the Turnpike Authority’s normal practice was to send these “packages” authorizing reimbursement of utility relocation expenses only after the correspondence had been subject to a full review by DOT’s legal department.

As the expansion plans were modified, the Turnpike Authority sent additional Final Agreement Packages to FGT on July 22, 2004, December 28, 2004, and January 5, 2005. Those letters included paperwork consistent with FGT’s entitlement to seek reimbursement of its relocation costs from DOT. At trial, DOT argued that the packages were sent by mistake. However, the Turnpike Authority’s Director of Planning and Production, who was in charge of overseeing all Turnpike projects and budgets, testified that DOT would be required to provide FGT with a place to relocate because FGT had a “compensable interest.”

Pursuant to the Reimbursable Agreement and the four Final Agreement Package letters, FGT sought reimbursement for its relocation costs. DOT refused to pay, and FGT filed suit seeking reimbursement of the relocation costs and a determination of a permanent easement width and temporary easement workspace. DOT counterclaimed for breach of the easement agreements by FGT, and sought damages for delays caused by FGT and for having to remove FGT’s old pipelines.

DOT moved for summary judgment on FGT’s demand for reimbursement, arguing the Reimbursable Agreement could not apply as a matter of law because FGT lacked a “compensable interest” in the property and DOT had never “served an order of relocation” triggering the Reimbursable Agreement. FGT argued the term “com-pensable interest” was unambiguous and defined by DOT’s 2004 UAM to mean “having established real property rights,” which FGT had through the easement agreements. The trial court denied DOT’s motion. The trial coui’t also denied both parties’ motions for summary judgment on the easement width issue.

The evidence at trial included factual and expert testimony regarding standards in the industry; federal regulations; and the space needed by FGT to install, operate, repaii’, and maintain its gas pipelines. At the close of FGT’s evidence, DOT moved for a directed verdict on the meaning and application of the Reimbursable Agreement. The trial court denied the motion.

DOT’s proposed Jury Instruction number 32, entitled “Easement Interpretation: Ambiguous,” addressed how the jury should determine the meaning of the easements if the trial court determined they were ambiguous. The instruction did not address the Reimbursable Agreement or suggest that any provision was ambiguous. FGT’s proposed Jury Instruction number 33 provided that any ambiguous term in an easement must be resolved against DOT as the grantor.

During the charge conference, the trial court asked the parties what they contended was ambiguous. FGT responded that the width of the easement was ambiguous. The trial court denied both requested instructions on ambiguity.

DOT agreed to the verdict form even though it did not contain an interrogatory directed to the interpretation of either the Reimbursable Agreement or the easements. The verdict form contained only two relevant interrogatories: (1) whether DOT breached the Reimbursable Agreement; and (2) the amount of damages. The other questions asked whether FGT or DOT had breached the easement agreements. The jury answered all easement questions in the negative. The jury answered yes to whether the DOT had breached the Reimbursable Agreement, and awarded $82,697,567 in damages.

Subsequent to the jury verdict, the trial court determined the two declaratory relief counts. The trial court concluded that FGT was entitled to an easement with a permanent width of fifteen feet on each side of the pipeline, and a width of seventy-five feet of temporary workspace for construction, repair, and removal of its pipelines. In the final judgment, the trial court concluded: (1) the legal description contained in the easements clearly demonstrated the pipelines were intended to be outside of the pavement boundaries; (2) the placement of pavement over FGT’s pipelines is an interference with FGT’s easement rights; (3) DOT is not permitted to pave over the pipelines without FGT’s consent except at those road crossing situations specifically addressed in the easements; and (4) the Reimbursable Agreement between DOT and FGT is terminated.

DOT moved for judgment notwithstanding the verdict, arguing the trial court should have determined the meaning of “compensable interest” as a matter of law before the case was submitted to the jury and that FGT did not have a compensable interest. DOT continued to argue that the Reimbursable Agreement had not been triggered because DOT had never served an order of relocation on FGT. The trial court denied the motion. DOT appealed the final judgment; FGT filed a cross-appeal.

On appeal, DOT first argues the trial court erred in submitting the interpretation of the Reimbursable Agreement to the jury without determining the meaning of compensable interest as a matter of law. DOT argues that compensable interest means “a legal right claim or title in something that, if taken, results in an entitlement to compensation.” FGT responds that the trial court properly rejected DOT’s definition of compensable interest, properly considered extrinsic evidence, and correctly ruled that FGT had a “com-pensable interest.” On cross-appeal, FGT argues the trial court misconstrued the parties’ rights and obligations should DOT desire to pave over FGT’s pipelines, and in failing to find that mechanically-stabilized earth walls always constitute a material interference with FGT’s easement rights.

Our standard of review is de novo. Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207, 1210 (Fla. 4th DCA 2006) (reviewing a trial court’s interpretation of a contract); Cassell v. India, 964 So.2d 190, 193 (Fla. 4th DCA 2007) (reviewing the denial of a motion for directed verdict); Dorestin v. Hollywood Imports, Inc., 45 So.3d 819, 823 (Fla. 4th DCA 2010) (reviewing a trial court’s ruling on a motion for judgment notwithstanding the verdict).

As we have explained, “the construction of all written instruments is a question of law and belongs to the courts, provided ‘the language used is clear, plain, certain, undisputed, unambiguous, unequivocal, and not subject to conflicting inferences.’ ” Okeelanta Corp. v. Bygrave, 660 So.2d 743, 747 (Fla. 4th DCA 1995) (quoting Friedman v. Va. Metal Prods. Co., 56 So.2d 515, 516 (Fla.1952)). When a contract is unambiguous, “the intent of the parties must be determined from only the four corners of the document.” V & M Erectors, Inc. v. Middlesex Corp., 867 So.2d 1252, 1253-54 (Fla. 4th DCA 2004).

If a contract is ambiguous, however, then “the matter must be submitted to the finder of fact” and extrinsic evidence may be used Critchlow v. Williamson, 450 So.2d 1153, 1156 (Fla. 4th DCA 1984); Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010). A contract provision is ambiguous if it is “rationally susceptible to more than one construction.” Segal v. Rhumbline Int’l, Inc., 688 So.2d 397, 398 (Fla. 4th DCA 1997).

DOT argues the trial court erred in allowing the jury to interpret the meaning of compensable interest during their deliberations on breach and damages, and in admitting extrinsic evidence when there was no ambiguity. DOT suggests that compensable interest can only mean “an interest that is capable of being compensated.”

Not surprisingly, DOT and FGT agree on a few things: (1) our standard of review; and (2) the law governing the interpretation of contracts. But, FGT suggests DOT failed to preserve its extrinsic evidence argument by failing to object to the admission of that evidence. Cf. King v. Bray, 867 So.2d 1224, 1226 (Fla. 5th DCA 2004) (“Florida courts generally agree that failure to object to the introduction of par-ol evidence in the trial proceedings waives the right to invoke the rule on appeal”). Alternatively, FGT argues the 2004 UAM, which was incorporated into the Reimbursable Agreement, defined compensable interest in the context of relocation expenses. As defined, FGT had a compen-sable interest based on the property rights contained within the easement agreements. FGT contends the trial court properly allowed the jury to consider the Reimbursable Agreement in the context of the testimony and UAM, and determine if the agreement was breached and the amount of damages. We agree with FGT.

We have previously held that although both parties contend there is no ambiguity, a paradox can be created. See Okeelanta Corp., 660 So.2d at 747. “ ‘It is a paradox, therefore, that the language which all parties assert (and the court found) to be unambiguous can be rendered ambiguous in fact by the different reasonable constructions advocated for it....’” Id. at 747 (quoting Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336, 338 (Fla. 4th DCA 1968)).

Here, the trial court properly admitted relevant evidence without objection so the fact finder could determine whether the easements or Reimbursable Agreement had been breached. The Reimbursable Agreement incorporated the 2004 UAM by reference. The 2004 UAM defined com-pensable interest.

With that evidence in mind, we agree with the trial court that the easement is a real property right, a compensable interest, entitling FGT to reimbursement. The jury had the benefit of this evidence and determined that DOT breached the Reimbursable Agreement. We see no error in the submission of the “breach” and “damage” issues to the jury.

The second issue involves the easement’s failure to set forth a precise location for the pipeline’s placement. DOT argues the trial court erred in establishing a uniform permanent easement width of “15 feet on each side of Florida Gas’s natural gas pipelines” and establishing a seventy-five foot temporary work space because the easements clearly did not contemplate a permanent width. FGT argues there is no error because permanent width and temporary work areas are consistent with current industry standards and FGT’s needs.

We have de novo review of a trial court’s construction of language in an easement. Terrill v. Coe, 1 So.3d 223, 225 (Fla. 5th DCA 2008).

We find Northwest Pipeline Corp. v. Luna, 149 Idaho 772, 241 P.3d 945 (2010) particularly helpful in resolving this issue. Luna also involved a linear easement without a specified width. The trial court established a width of twenty feet; the Supreme Court of Idaho reversed.

The supreme court explained that, “[wjhile Northwest Pipeline presented evidence that a twenty-foot easement may be necessary for pipeline safety and maintenance under today’s standards, it failed to present substantial evidence of the parties’ intent concerning the intended width of the easement at the time it was granted.” Luna, 241 P.3d at 948. The court further noted that the evidence presented by Northwest Pipeline consisted of “the instrument granting the easement, the testimony of Northwest’s personnel regarding their current excavation practices and pipeline standards, and federal regulations concerning natural gas pipelines. This evidence, taken together, does not support the district court’s finding of a twenty-foot easement.” Id.

The supreme court explained there was no evidence to suggest that the current industry guidelines used by Northwest were “within the contemplation of the parties at the time the easement was granted.” Id. at 949. The court therefore concluded that the plaintiff did not satisfy its burden of demonstrating “the intention of the parties to create a twenty-foot easement or that the twenty-foot easement was necessitated by conditions existing at the time of the grant.” Id. at 948.

Here, the trial court’s award of a permanent easement width and temporary work space—while laudable—was not contemplated by the parties when the easement was created. Although FGT offered evidence concerning modern industry standards and safety concerns, it did not establish that a fixed width was within the contemplation of the parties. We agree with Luna’s reasoning.

The 1958 easement defined the length of its boundaries in metes and bounds, and required the placement of the pipeline to be “at a distance of not less than 40 feet from the outer edge of the payment of the Highway.” The 1967 easement also described the easement’s length in metes and bounds, and required the pipeline not “be any closer than forty (40) feet from the outside edge of the pavement.” Even though the FGT easements incorporate compliance with industry standards, such compliance was limited to the “grade of design, construction, and operation.”

We are further persuaded by another portion of the easement that requires FGT “to conduct its activities in connection with the construction and operation of any and all pipelines which have been, or may be, constructed and operated by [FGT] in such a manner as to interfere to the least possible extent with the overall operation of the [Turnpike].” (Emphasis added). It is the emphasized language which convinces us that the easement width was purposely left vague so that it would cause “the least possible” interference to the Turnpike’s operation.

We also agree that the trial court’s temporary workspace for “construction, repair, and removal of its natural gas pipelines” was likewise intentionally left open. While the testimony supported the seventy-five foot award of temporary workspace, the project-by-project approach that the easements suggest would leave that space open and dependent on the needs of the particular relocation. This would also comply with the language requiring FGT to interfere with the Turnpike to the least extent possible.

On cross-appeal, FGT challenges the trial court’s ruling on what happens when the Turnpike needs to pave over existing pipeline. The trial court’s finding that DOT was prohibited from paving over FGT’s pipelines except at road crossings without FGT’s consent is consistent with the easements’ language. Both easements state that FGT’s pipelines will not be less than forty feet from the edge of the roadway’s pavement.

Evidence indicated that the easements allow pavement over FGT’s pipelines only at “toll plazas, ramps, and crossings.” The inclusion of those locations indicates that DOT was not permitted to pave over FGT pipelines in other locations. We therefore find no error in the trial court’s conclusion concerning what happens when DOT intends to pave over the pipeline and requiring FGT to pay for relocation if it does not consent to the Turnpike paving over the pipeline.

However, the last sentence of the final judgment concerning this issue fails to take into consideration paragraph 10 of the 1967 easement. That provision requires DOT to implement alternative measures, where feasible, to prevent FGT from having to relocate its pipelines. We therefore direct the trial court, upon remand, to revise part “c” of the final judgment to make reference to DOT’S obligation to seek reasonable alternatives to relocation.

Finally, FGT argues the trial court improperly declined to rule that mechanically-stabilized earth walls will always constitute a material interference when placed within fifteen feet of its "pipelines. DOT responds that the testimony does not support such a finding.

The owner of the land on which the easement exists may not interfere with the rights of the easement-holder. Stephens v. Dobbins, 511 So.2d 652, 653 (Fla. 2d DCA 1987). “[A]n easement which grants the right to operate a natural gas pipeline must, if the easement is not to be wholly illusory, imply the right to operate the pipeline in accordance with applicable federal laws and regulations.” Swango Homes, Inc. v. Columbia Gas Transmission Corp., 806 F.Supp. 180, 185 (S.D.Ohio 1992); Mid-America Pipeline Co. v. Lario Enters., Inc., 942 F.2d 1519, 1527 (10th Cir.1991) (holding that installation of an asphalt surface and structures within the subject easement interfered with the normal operation and maintenance of pipelines).

While the evidence established that mechanically-stabilized earth walls constitute a material interference when they are placed “in close proximity” to FGT’s pipelines, no such evidence supports the proposition that they always constitute a material interference when they are placed “within fifteen feet” of FGT’s pipelines. We therefore agree with the trial court’s conclusion on this issue.

The Finale

We affirm the trial court’s ruling in all respects except for the permanent easement and temporary space width determination and that part of the final judgment that fails to make reference to DOT’S obligation to seek reasonable alternatives to relocation.

Affirmed in part; Reversed in pari; and Remanded.

GROSS and DAMOORGIAN, JJ, concur.

      . The relevant version was the Utility Accommodation Manual, revised August 2004.

      . At trial and during the post-trial motions, DOT maintained that it never actually “served an order” regarding relocation, and therefore the easement agreements controlled who paid for relocation expenses. That argument appears to have been abandoned on appeal.

      . In February 2007, DOT sent FGT a letter stating that it was terminating the Reimbursable Agreement.


text:
    Omar PIEDRA, Appellant, v. Jean Ines PIEDRA a/k/a Jean Ines Martinez, Appellee.
    No. 4D11-2023.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Mark E. Pollack of Pollack & Rosen, P.A., Coral Gables, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The former husband, Omar Piedra, appeals from the final judgment of dissolution entered by the trial court. He argues that the trial court erred in its equitable distribution of assets and liabilities, in ordering him to pay all the premiums for their minor children’s health insurance and in its imputation of income to the former husband. We affirm without discussion the trial court’s distribution of the parties’ assets and liabilities. We also affirm the trial court’s conclusion that income should be imputed to the former husband. However, we reverse as to the amount of income imputed to the former husband and remand for the trial court to recalculate deducting all legitimate business expenses. We also remand for clarification of the apportionment of the cost of insurance premiums.

The former husband argues that the trial court erred in imputing $109,909 as gross annual income to him. “The standard of review governing a trial court’s imputation of income is whether the determination is supported by competent, substantial evidence.” Brown v. Cannady-Brown, 954 So.2d 1206, 1207 (Fla. 4th DCA 2007).

Although the trial court is free to determine the credibility of witnesses, restraints on imputation exist in the form of a required two-step analysis. First, the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” See Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005) (quoting Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991)). In any event, the trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. See id.

Brown, 954 So.2d at 1207-08 (quoting Schram v. Schram, 932 So.2d 245, 249-50 (Fla. 4th DCA 2005)).

As background, during the parties’ marriage, they owned a business called Master Irrigation, Inc. The former wife was the bookkeeper for the business and the former husband handled all other aspects of the business of installing irrigation systems. After the parties separated in 2006, the number of clients declined and by the end of 2008, the former husband closed down Master Irrigation, Inc. The former husband testified that, at the time of the hearing, he had just started working as a diesel mechanic for $400 per week. However, he also admitted that a new business called Master Irrigation and Services LLC had been formed by his brother. The former husband was a member/manager of the new company.

Based on this and other evidence presented, the trial court found that the former husband was voluntarily underemployed and that his new occupation as a diesel mechanic was chosen in an attempt to show his inability to pay child support. The trial court found the former husband’s testimony less than credible with respect to income. We conclude that there was substantial, competent evidence presented which supports the trial court’s determination that income should be imputed to the former husband.

With respect to the amount of income imputed, the trial court relied on the 2008 tax return for an S corporation filed by Master Irrigation, Inc. to calculate the former husband’s level of income. The return showed $150,622 in gross receipts with a cost of goods reduction of $40,713 leaving $109,909 as gross profit and total income for the business. The trial court noted that there were total deductions of $60,028 but did not allow any of the deductions to offset the total income because the evidence showed that most of this amount paid for personal expenses of the parties such as vehicle expenses and medical insurance. The trial court imputed income of $109,909 to the former husband. The trial court also imputed income to the former wife in the amount of $30,000 based upon her ability to work as a bookkeeper.

By imputing the total income of the business to the former husband, the trial court disregarded a deduction of $1,107 for repairs and maintenance and a deduction of $3,494 for taxes and licenses for the business. Other deductions taken by the business were $23,251 for automobile and truck expenses and $6,191 for insurance. The trial court found that these were deductions for personal expenses from which the parties benefitted and should be considered as “add backs.” By lumping together these deductions or “add backs” without determining which were legitimate business expenses instead of personal expenses, the trial court erred in attributing these all to the former husband’s income.

The former husband also argues that the former wife was a 50% shareholder in the business and income was distributed to her, which reduces his income by half. The former husband was awarded the entire business in equitable distribution. Because the former husband performed all of the work for the business except for the bookkeeping, it appears that the expense for a bookkeeper should also be deducted from the former husband’s total income as a business expense. We note that the trial court imputed income $30,000 to the former wife based upon her abilities as a bookkeeper.

The former husband also argues that the trial court erred when it ordered him to pay all premiums for medical and dental insurance for the parties’ children. The trial court stated in the final judgment:

28. The Respondent/Husband shall obtain health, medical and dental insurance for the benefit of the parties’ minor children. The parties shall share all uncovered health, medical and dental insurance in accordance with their respective share.

Section 61.13(l)(b), Florida Statutes (2011), provides, in pertinent part:

[T]he court shall apportion the cost of health insurance, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6).

That section also permits the trial court to order one party to obtain the insurance. “However, the court is required by statute to apportion the cost of the insurance between the parties on a percentage basis.” Schoditsch v. Schoditsch, 888 So.2d 709, 709 (Fla. 1st DCA 2004).

The trial court’s order properly ordered the former husband to obtain the health insurance but the judgment as written does not clearly order the apportionment of the cost of health insurance as required by the statute. Therefore, we remand for clarification of this provision in the judgment.

We also reverse and remand for the trial court to recalculate the amount of income to impute to the former husband based upon the discussion above.

Reversed and remanded for further proceedings.

MAY, C.J., HAZOURI and GERBER, JJ., concur.


author: TAYLOR, J.

text:
    Robert FUNCHESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4932.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant, Robert Funchess, appeals his conviction for petit theft. He raises three issues on appeal. He argues that the trial court erred in (1) failing to instruct the jury on his theory of defense; (2) allowing photographs into evidence that were not disclosed in discovery and placing the burden on the defense to show actual prejudice; and (3) not allowing impeachment of a witness with his prior inconsistent statement. We reverse and remand for a new trial on the first issue: failure to instruct the jury on the defendant’s good faith theory of defense.

The defendant makes his living by hauling debris and salvaging scrap. He testified at his trial that on December 8, 2009, he spotted a dumpster filled to the brim with aluminum and concrete. The dumpster was located behind a closed restaurant that was undergoing renovations. A tall Hispanic man in casual wear was standing next to it. The defendant parked his truck and walked over to the dumpster. He asked the man if it would be alright if he hauled off the scrap. The man told him he could take anything in the dumpster and anything lying against the wall. However, because the defendant’s truck was already filled with scrap from a long day of scavenging, he decided to return in the morning.

The next day, the defendant returned to the area and began loading his truck with scrap aluminum. After two hours or so, his truck was fully loaded. As he was winding up, the property owner, James Waddell, drove up and walked over to the defendant. Waddell wanted to know what the defendant' was doing with his scrap. The defendant explained that a man had told him he could take it, and he described this man to -Waddell. Waddell told the defendant that he did not have any Hispanic workers. He then asked the defendant how he was going to pay for everything. The defendant told Waddell that he had no money and that this was just a misunderstanding.

Waddell spotted a patrol car parked nearby and signaled for assistance. After speaking to Waddell, a police service aide called for backup. Two officers arrived on the scene and spoke with Waddell and the defendant. They saw a dumpster filled with scrap and a truck loaded with scrap. Waddell told the officers that the defendant did not have permission to take the scrap; the defendant explained why he thought he had permission. One of the officers took pictures of the scene and then arrested the defendant.

The defendant was charged with grand theft. On the second day of his jury trial, the state informed the court and defense counsel that it had photographs from the crime scene. Defense counsel was unaware that photographs had been taken. He objected to admission of these photographs, whereupon the court conducted a Richardson inquiry.

The prosecutor advised the court that he had just found out about the photographs that morning. He discovered them when he called down to the property room to retrieve documents regarding restitution. The court accepted the state’s explanation and determined that the state had not deliberately failed to disclose the photographs. After questioning defense counsel about any prejudice resulting from the late disclosure, the trial court determined that the defendant did not demonstrate actual prejudice from admission of the photographs. The court stated: “The fact of the matter is, the allegation in this case is that he had certain scrap metal in his vehicle. These photographs are consistent with the testimony that was heard in court. And I don’t think the defense in this case is the defendant never had scrap metal in his car. The question is one of either knowledge or permission.”

During cross-examination, Waddell testified that the defendant offered to pay for the scrap after he was arrested. Defense counsel asked Waddell if he had ever given an inconsistent statement. The state objected to the question’s relevance.

Defense counsel informed the trial court that he had Waddell’s prior written statement, in which he said that the defendant offered to buy the scrap before he was arrested. The court determined that this statement was inconsistent, but it sustained the state’s objection, finding that it was wholly irrelevant. Later on, defense counsel was able to elicit the gist of Wad-dell’s prior statement when he asked him if he ever offered to take the defendant’s money for the scrap metal.

During the charge conference, the defendant requested a special jury instruction on his theory of defense that he had apparent authority or permission to remove the property in question. The court declined to give the instruction, reasoning that his theory of defense was adequately covered by the standard theft instruction. The court instructed the jury as follows:

To prove the crime of Theft, the state must prove the following two elements beyond a reasonable doubt:
1. ROBERT FUNCHESS knowingly and unlawfully obtained or endeavor [sic] to obtain the property of James Waddell.
2. He did so with intent to, either temporarily or permanently,
a. deprive James Waddell of his right to the property or any benefit from it.
or
b. appropriate the property of James Waddell to his own use or to the use of any person not entitled to it.

The jury found the defendant guilty of the crime of petit theft.

Generally, “ ‘[a] criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.’ ” Quick v. State, 46 So.3d 1159, 1160 (Fla. 4th DCA 2010) (quoting Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006)). The defendant is entitled to a special jury instruction if the following three elements are satisfied: (1) the special instruction was supported by the evidence; (2) the standard instruction did not cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing. Dorsey v. State, 74 So.3d 521, 526 (Fla. 4th DCA 2011) (citing Stephens v. State, 787 So.2d 747, 756 (Fla.2001)). All three elements were satisfied here. First, the special instruction was supported by the evidence. “A good faith belief in one’s right to possession of property is a defense to the charge of theft.” Alfaro v. State, 837 So.2d 429, 432 (Fla. 4th DCA 2002) (citing Rodriguez v. State, 396 So.2d 798, 799 (Fla. 3d DCA 1981)). The defendant’s testimony, if accepted by the jury, established his good faith belief that he had permission to remove the scrap from someone with apparent authority to give him permission.

Second, the standard jury instruction was inadequate to cover the theory of defense. The defendant admitted that he “knowingly obtained the property of James Waddell with intent to deprive him of its enjoyment.” However, his sole defense, that he believed he had permission to do so, is not included in the standard instruction. The standard instruction covers only the essential elements of theft to be proved.

Third and finally, the proposed jury instruction, though perhaps inartfully crafted, was not misleading or confusing; nor was it an inaccurate statement of the law. We thus agree with the defendant that the trial court erred in refusing to instruct the jury on his defense of a good faith belief in his right to possession of the property. Moreover, because this was the defendant’s sole defense at trial, we cannot say the error was harmless. Quick, 46 So.3d at 1161. We therefore reverse and remand for a new trial.

Because we are reversing and remanding this case for a new trial, the discovery issue raised by the defendant will be moot. However, we choose to address an evidentiary issue that may arise during the retrial of this case. The defendant argues that the trial court erred in refusing to allow him to impeach James Waddell with a prior inconsistent statement. Waddell testified that the defendant offered to pay for the materials, but made the offer only “after the police had actually already taken him into custody.” Defense counsel sought to impeach Wad-dell with his prior statement that the defendant made the offer before they went to the police. When shown the prior statement, the trial court agreed that it was a prior inconsistent statement, but the court did not allow impeachment, reasoning that the timing of the offer to pay — before or after police involvement — was immaterial.

“To determine the proper scope of a defendant’s cross-examination in a criminal case, a court must keep in mind ‘the expansive perimeters of subject matter relevance which the constitutional guarantee of cross-examination must accommodate to retain vitality.’ ” Stotler v. State, 834 So.2d 940, 943 (Fla. 4th DCA 2003) (quoting Coxwell v. State, 361 So.2d 148, 151 (Fla.1978)). Under Coxwell, “a fair and full cross-examination of a witness upon the subjects opened by the direct examination is an absolute right, as distinguished from a privilege, which must always be accorded to the person against whom the witness is called.... ” 361 So.2d at 151 (quoting Coco v. State, 62 So.2d 892, 894-95 (Fla.1953)).

Cross-examination “is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.” Id.; accord McDuffie v. State, 970 So.2d 312, 324-25. Of course, the defendant’s right to a fair and full cross-examination includes the right “to impeach the credibility of the witness.” Romero v. State, 901 So.2d 260, 266 (Fla. 4th DCA 2005) (quoting Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982)).

In this case, impeachment of Waddell with his prior inconsistent statement regarding the timing of the defendant’s offer to pay went to the “subject matter” of Waddell’s testimony and bore on his credibility. The trial court thus erred in refusing to allow the impeachment. On retrial, if Waddell again testifies that the defendant offered to pay for the materials only after police had already taken him into custody, the trial court should allow the defense to impeach Waddell with his prior inconsistent statement that the defendant made the offer before the police arrived.

Reversed and Remanded.

CIKLIN and GERBER, JJ., concur.

      . The defendant was originally charged with grand theft, but at the close of the state's evidence the trial court granted his motion for judgment of acquittal based on insufficient evidence of the property’s value.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Jay Paul GREEN, Appellant, v. Sharon J. GREEN, Appellee.
    No. 4D10-4706.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Jay Paul Green, Hollywood, pro se.
    Lane Weinbaum of Weinbaum P.L., Fort Lauderdale, for appellee.
   DAMOORGIAN, J.

Jay Paul Green (“Former Husband”) appeals the trial court’s amended final judgment of dissolution of marriage, raising a number of issues which include the award of permanent periodic alimony. While we affirm the award of permanent periodic alimony, we reverse the trial court’s determination of the amount of the monthly alimony payment and remand for further proceedings consistent with this opinion. We affirm the final judgment in all other respects without discussion.

After seventeen years of marriage, Former Husband filed a petition seeking to dissolve his marriage with Sharon Green (“Former Wife”). Former Wife responded by filing a counter-petition. Relevant to this appeal is Former Wife’s claim to permanent periodic alimony. The case was referred to a general magistrate who, after conducting an evidentiary hearing, entered a report detailing findings and recommendations. See Perrone v. Frank, 80 So.3d 402, 404 (Fla. 4th DCA 2012) (explaining that the magistrate report’s factual findings, which are intertwined with legal conclusions, must be supported by competent, substantial evidence). The following facts are relevant to the issue on appeal.

Before their marriage, Former Wife had her own photography business, where she made $80 an hour. Since 2001, Former Wife has not worked. During the pen-dency of the dissolution of marriage action, Former Wife tried to get a sales job without any success. She also unsuccessfully looked for other jobs, but testified that “I know that I can’t go work for $10 an hour.”

Before Former Husband filed the petition for dissolution, Former Wife withdrew the balance from the parties’ joint savings account and charged a $30,000 cash advance on the parties’ Bank of America credit card. Former Wife used the funds from the parties’ savings account to pay her day to day expenses during the pen-dency of the divorce. Former Husband testified he earns approximately $51,000 per year or $4,282 per month after taxes.

At the conclusion of the evidentiary hearing, the magistrate entered a report which provided findings and recommendations. The magistrate found that Former Husband’s monthly salary was $5,800 per month, including tips and bonuses, based upon his last twelve months of income. The report recommended, amongst other things, that Former Husband pay $2,500 a month in permanent periodic alimony to Former Wife and be solely responsible for the outstanding balance on the Bank of America credit card debt. In addition, Former Wife retained the marital home, but both parties would be equally responsible for the mortgage and property taxes. Former Husband was awarded sole possession of two vehicles while Former Wife retained one. Former Husband filed his exceptions to the report. The trial court overruled the exceptions and approved the report in all respects. An amended final judgment of dissolution of marriage containing the recommendations followed.

Former Husband makes several arguments to support his contention that the trial court erred in adopting the general magistrate’s recommendation that Former Wife is entitled to permanent periodic alimony in the amount of $2,500 per month. While we conclude that the trial court did not abuse its discretion in awarding permanent periodic alimony, we agree with Former Husband that the trial court erred in failing to impute income to Former Wife. Additionally, we assign error to the trial court’s failure to consider the impact of the equitable distribution of the Bank of America credit card debt to Former Husband when it calculated the monthly alimony amount. The trial court did not err in failing to take into consideration the fact that Former Wife had depleted a portion of the parties’ savings account because Former Husband did not demonstrate misconduct on the part of Former Wife. See Karimi v. Karimi, 867 So.2d 471, 475 (Fla. 5th DCA 2004) (“Where the asset is used by one of the parties out of necessity for reasonable living expenses, however, that asset should not be assigned to the party who used them, absent a finding of misconduct”).

We begin our analysis by referring to Florida’s alimony statute found at section 61.08, Florida Statutes (2010). Section 61.08 provides in pertinent part:

2) ... If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance, the court shall consider all relevant factors, including, but not limited to:
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

§ 61.08(2)(d)-(e).

The Florida Supreme Court set forth the following criteria to be evaluated in awarding alimony: “(a) the parties’ earning ability, (b) age, (c) health, (d) education, (e) duration of marriage, (f) standard of living, and (g) the value of the parties’ estate.” Bacon v. Bacon, 819 So.2d 950, 952 (Fla. 4th DCA 2002) (citing Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000)). “ ‘[T]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.’ ” Lule v. Lule, 60 So.3d 567, 569 (Fla. 4th DCA 2011) (quoting Mondello v. Torres, 47 So.3d 389, 396 (Fla. 4th DCA 2010)) (internal quotation marks omitted). Therefore, we review alimony awards for an abuse of discretion. See Mondello, 47 So.3d at 396.

“As to the imputation of income to the wife, the amount of income a spouse may be able to earn is a factor the court should consider in determining an alimony award.” Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (citing § 61.08(2)(d)-(e), Fla. Stat.). “The spouse claiming that the other spouse is voluntarily unemployed bears the burden of proof.” Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009) (citation omitted).

Here, there was competent, substantial evidence that Former Wife had the requisite skills that allowed her to earn $80 per hour operating her own photography business. And, although Former Wife testified that her job searches proved unsuccessful, her acknowledged unwillingness to “work for $10 an hour” is competent evidence that Former Wife’s unemployment status was self-imposed. At the very least, this evidence established a lack of best efforts on the part of Former Wife to seek gainful employment. See Durand v. Durand, 16 So.3d 982, 985 (Fla. 4th DCA 2009) (stating that a court may impute income when one spouse has failed to use his or her best efforts to obtain income). On the record before us, we conclude that it was error for the trial court not to impute income to Former Wife.

We next consider whether the trial court erred by failing to consider the effect of the equitable distribution of the Bank of America credit debt when calculating Former Husband’s alimony obligation. Presently, Former Husband is obligated to pay the monthly obligation on the credit card, one-half the monthly mortgage payment encumbering the parties’ marital residence, and an alimony amount of 43% of his gross monthly income. In its present form, the final judgment lacks sufficient findings to justify awarding alimony equating to 43% of Former Husband’s gross monthly income while at the same time assigning the $30,000 debt exclusively to him. See Paul v. Paul, 648 So.2d 1211, 1212-13 (Fla. 5th DCA 1995) (“Equitable distribution of the parties’ marital assets is the first order of business in a dissolution case. Only after that is accomplished, can the relative post-dissolution financial situations of the parties be ascertained and compared, and the need of one party for additional support and the ability of the other to pay it, be determined.”).

Our holding finds support in the Third District’s decision in Byrne v. Byrne, 128 So.3d 2 (Fla. 3d DCA 2012). In Byrne, the Third District held that the permanent alimony award was improper. Id. at 5. In reaching its holding, the court reasoned that section 61.08(2)(d) mandates that the trial court make findings regarding distribution of marital liabilities before determining the amount of permanent alimony. See id. The Third District stated:

We conclude that the trial court’s financial analysis was tainted by its failure to properly consider all of the relevant factors pursuant to section 61.08. Specifically, the trial court did not properly consider: each spouse’s pre-dissolution debts; the income [the former husband] receives from his Fidelity Magellan Retirement account; and the $7,000 reduction to [the former wife’s] annual salary.

Id.

“Ordinarily, the distribution of marital assets should be equal unless some relevant factor justifies disparate treatment, such as the payment of permanent periodic alimony or the performance of extraordinary services over and above the normal marital duties.” Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994) (citations omitted). Based upon the record, the trial court distributed the $30,000 marital debt unequally without considering the permanent periodic alimony that Former Husband would be responsible to pay, or in the alternative, failed to properly consider the distribution of the $30,000 marital debt before determining the amount of permanent alimony. See § 61.08(2)(d); Byrne, 128 So.3d at 6.

Accordingly, we reverse the portion of the final judgment pertaining to the amount of permanent alimony, and remand the cause for the trial court to impute income to Former Wife. The trial court shall also recalculate the permanent alimony award after taking into consideration the disproportionate distribution of the credit card debt and newly imputed income to Former Wife. We affirm the final judgment in all other respects.

Affirmed in Part; Reversed in Part and Remanded.

MAY, C.J., and CONNER, J., concur.


text:
    Denise L. MARTINEC, Appellant, v. EARLY BIRD INTERNATIONAL, INC. and Larry Martinec, Appellees.
    No. 4D103828.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      James A. Bonfiglio of the Law Offices of James A. Bonfiglio, P.A., Boynton Beach, for appellant.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for Appellee-Early Bird International, Inc.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

In this mortgage foreclosure action, appellant, Denise Martinec, appeals a final judgment entered in favor of Early Bird International (EBI). Appellant raised defenses and counterclaims below, seeking relief under the Federal Truth in Lending Act (TILA), the Federal Home Ownership and Equity Protection Act (HOEPA), and the Florida Fair Lending Act (FFLA). The trial court entered judgment in favor of EBI upon determining that EBI is not a “creditor” for purposes of TILA and HOE-PA and is, therefore, not subject to then-requirements. We disagree and reverse, concluding that TILA does apply to the subject mortgage agreement and that appellant is entitled to statutory remedies for any of EBI’s TILA violations that are established upon remand. We agree, however, with the trial court’s ruling that appellant does not have a private right of action under the FFLA.

Factual Background

Appellant, seeking a loan, obtained the services of a mortgage broker. The broker then contacted EBI. EBI had never solicited appellant before and did not know of her until the mortgage broker forwarded her documents to EBI. Indeed, before extending credit to appellant, EBI had never secured a loan via a promissory note and a mortgage on real property.

At closing, appellant signed several TILA disclosures, and the parties entered into a note and mortgage agreement for a $250,000 loan, with an interest rate of 13%, to be repaid by monthly interest-only payments for eleven months, with a balloon payment of the final interest payment and all unpaid principal due in twelve months. Appellant struggled to make her payments and ultimately defaulted on the loan. Upon her default, EBI initiated foreclosure proceedings. In response to EBI’s complaint for foreclosure, appellant filed an answer and asserted several affirmative defenses. Relevant to this appeal, she alleged that the mortgage agreement violated TILA and that she was entitled to both rescission of the mortgage agreement and damages.

After a two-day bench trial, the trial court entered judgment in favor of EBI. The trial court concluded that EBI is not a “creditor” as defined by TILA and HOE-PA because EBI is not in the business of regularly extending credit to consumers and the subject loan was not “originated through a mortgage broker.” Instead, the loan was “originated by [appellant] herself,” as she had solicited the services of a mortgage broker. The trial court further held that, even if TILA does apply, appellant’s affirmative defenses were barred by TILA’s statute of limitations and appellant’s right of rescission was limited to a three-business-day window following the closing of the transaction as she had received all necessary documentation relating to her right of rescission.

Analysis

The trial court’s interpretation of TILA is a question of law and is subject to de novo review. Dep’t of Revenue v. Varela, 67 So.3d 1205, 1206 (Fla. 4th DCA 2011). TILA defines a creditor as including a person who originates two or more mortgages in any twelve month period or any person who originates one or more mortgages through a mortgage broker in a twelve month period. 15 U.S.C. § 1602(g) (emphasis added). A mortgage broker is defined as a person, other than an employee of the creditor, who, for compensation or other monetary gain, or in expectation of monetary gain, arranges, negotiates, or otherwise obtains an extension of consumer credit for another person. 12 C.F.R. § 226.36(a)(l)-(2). Common sense dictates that a mortgage broker “originates” a loan when he or she brings two parties together — one seeking credit and the other seeking to extend it — and draws up a loan agreement. On the issue of whether or not a loan “originates” when a consumer seeks out the services of a mortgage broker, we are persuaded by the reasoning of the United States District Court for the Central Division of Utah in In re Kitts, 442 B.R. 818 (D.Utah 2010).

In Kitts, the court explicitly disagreed with any notion that a broker must actively pursue prospective borrowers to qualify as a broker under TILA:

TILA is to be liberally interpreted in favor of the consumer. But the [lower court] interpreted the term “mortgage broker” narrowly in favor of the lender by requiring not only that mortgage brokers act as the “go-between” for their principals, but that they also must make the initial contact with the borrowers and be actively shopping loans for their lenders. Such a narrow interpretation goes against the clear intent of TILA because it would make high-cost mortgages originated by brokers less likely to be covered by TILA. It would also allow lenders to make high-cost mortgage loans through the services of brokers, who would simply wait for the borrowers to make the initial approach and so evade the requirements of TILA. Borrowers who approach these brokers would be penalized and left without the protections of TILA.

Id. at 828-29 (internal citation omitted).

We disagree with the trial court’s ruling in this case that TILA does not apply to the subject loan. EBI “originated” the loan when it relied upon the services of a mortgage broker to place it in touch with appellant, a prospective borrower; EBI is thus a creditor as defined by TILA. As such, TILA applies to the transaction between appellant and EBI.

Because the trial court found that TILA did not apply to this transaction, it failed to make factual findings regarding whether EBI failed to make all necessary TILA disclosures to appellant and what, if any, remedies may be available to her. A consumer, relying on 15 U.S.C. § 1640(a)(1), is entitled to actual and statutory damages as a defense of recoupment or set-off to an action for collection of a debt even when such claims in an action brought by the consumer would be barred by TILA’s statute of limitations. Beach v. Great W. Bank, 670 So.2d 986, 989 (Fla. 4th DCA 1996) (citing 15 U.S.C. § 1640(e)) aff'd, 692 So.2d 146 (Fla.1997), aff'd, sub nom. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998).

Further, in finding that appellant received all necessary TILA disclosures relating to her right of rescission, the trial court did not determine whether EBI provided inaccurate disclosures which would be considered the equivalent of a material nondisclosure within the meaning of TILA, entitling her to an extended three-year right of rescission. See Steele v. Ford Motor Credit Co., 783 F.2d 1016, 1018-19 (11th Cir.1986) (quoting Davis v. Fed. Deposit Ins. Corp., 620 F.2d 489, 492 (5th Cir.1980)).

Accordingly, we reverse and remand this case for further proceedings. We affirm without discussion the trial court’s ruling that appellant did not have a private right of action for violations of the Florida Fair Lending Act. See Reese v. JPMorgan Chase & Co., 686 F.Supp.2d 1291, 1300-01 (S.D.Fla.2009).

Reversed and Remanded.

POLEN, TAYLOR, and HAZOURI, JJ., concur.

      . Prior to answering the complaint, appellant had never made a formal request to have the mortgage agreement rescinded pursuant to TILA.