author: STEVENSON, J.

text:
    Harlan S. GINSBERG, Appellant, v. NORTHWEST MEDICAL CENTER, INC., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc., Appellees.
    No. 4D08-3032.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.

      Ben Murphey of Lawlor, Winston & Justice, Fort Lauderdale, and Bruce Botsford of Botsford & White, LLC, Hollywood, for appellant.
    Debra Potter Klauber of Haliczer, Pettis & Schwamm, Fort Lauderdale, for appel-lee Northwest Medical Center, Inc.
   STEVENSON, J.

Harlan Ginsberg went to the emergency room at Northwest Medical Center complaining of a sharp pain on his left side near his kidney. After Ginsberg was admitted, Dr. Weinstein, a urologist, informed Ginsberg that he would attempt to remove a kidney stone. Dr. Weinstein and Dr. Perelman performed surgery, ultimately removing Ginsberg’s left kidney. Ginsberg filed a complaint, alleging medical negligence on the part of the two urologists/surgeons and the vicarious liability of Northwest Medical, and their alleged employer, Uro-Medix, Inc. Ginsberg appeals the trial court’s order granting final summary judgment in favor of Northwest Medical. We reverse and remand because, in view of the totality of the circumstances, the signed hospital consent form indicating that the surgeons were independent contractors, standing alone, did not conclusively refute an apparent agency relationship.

In its motion for summary judgment, Northwest Medical maintained that, prior to his surgery, Ginsberg had signed a consent form expressly negating any agency relationship between Northwest Medical and the independent contractor physicians. In pertinent part, the consent form stated: “I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that Northwest Medical Center does not control the manner or methods by which such procedures are performed.” Persuaded by Northwest Medical’s argument, the trial court granted the motion for summary judgment and entered a final judgment in accordance therewith.

Entry of summary judgment is proper “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c) (emphasis added). In Bifulco v. State Farm Mutual Automobile Insurance Co., 693 So.2d 707 (Fla. 4th DCA 1997), this court reversed a final summary judgment in favor of State Farm, the defendant below, because State Farm had supported its motion for summary judgment by attaching various un-sworn and uncertified documents. Id. at 707-08. Without a proper foundation, State Farm could not introduce those documents as business records. Id. at 710-11. As an initial matter, in the instant case, the trial court erred in failing to require Northwest Medical to properly lay the predicate for the business records exception to hearsay before admitting the consent form into evidence. However, even if Northwest Medical can cure its hearsay problem, summary judgment premised on the consent form alone remains improper.

An apparent agency relationship exists if three elements are present: (1) a representation by the purported principal, (2) a reliance on that representation by a third party, and (3) a change in position by the third party in reliance on the representation. Guadagno v. Lifemark Hosps. of Fla., Inc., 972 So.2d 214, 218 (Fla. 3d DCA 2007). In Guadagno, a widower appealed a final judgment entered in favor of the hospital pursuant to the trial court’s order granting the hospital’s motion for judgment notwithstanding the verdict. Id. at 216. The third district affirmed, explaining that the evidence at trial established the doctor was an independent contractor, and, genei’ally, a hospital may not be held liable for the negligence of independent contractor physicians to whom it grants staff privileges. Id. at 218. The third district noted that the hospital expressly disavowed an agency relationship and conveyed that information to the decedent in its admission forms that she signed. Id. In sum, none of the elements of an apparent agency relationship were established at trial. Id.

Northwest Medical’s reliance on Guadagno is misplaced because the instant case involves a final summary judgment and not an order entered at trial after submission of all the evidence. Here, the consent form alone fails to quiet all genuine issues of material fact. At the summary judgment hearing, Ginsberg explained that when he signed the consent form, he was in pain, did not have his glasses, and had taken pain medication, rendering him unable to understand the form. “Tf the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA) (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)), review denied, 969 So.2d 1018 (Fla.2007). Northwest Medical’s presentation of the consent form, at this juncture, did not conclusively refute Ginsberg’s allegations that Northwest Medical, by its actions, held the two doctors out as possessing the authority to act on its behalf and knowingly permitted the two doctors to hold themselves out as possessing the authority to act on its behalf. In Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003), our supreme court explained that it is not uncommon for parties to include conclusory statements in documents with regard to the independence of the relationship of the parties, and this may occur even where the totality of the circumstances reflects otherwise. Id. at 853-54 (quoting Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966) (“While the obvious purpose to be accomplished by this document was to evince an independent contractor status, such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other.”)).

We reverse and remand to provide Northwest Medical with the opportunity to attach an affidavit laying the proper predicate for the business records exception. In addition, on remand, the parties may submit additional record evidence in support of the granting or denial of summary judgment under the apparent agency theory, and thereafter, the trial court may reevaluate whether genuine issues of material fact exist.

Reversed and, remanded,.

HAZOURI and LEVINE, JJ., concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Murray BREITBERG, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3681.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.

      Murray Breitberg, Belle Glade, pro se.
    No appearance required for appellee.
   WARNER, J.

We reconsider this appeal from the denial of a rule 3.800(a) motion in which appellant challenged his sexual predator designation. We had originally affirmed the ruling in Breitberg v. State, 942 So.2d 439 (Fla. 4th DCA 2006), on the ground that a challenge to the sexual predator designation could not be made through a rule 3.800(a) motion, because the sexual predator designation was not a sentence, relying on Saintelien v. State, 937 So.2d 234 (Fla. 4th DCA 2006), aff'd on other grounds, 990 So.2d 494 (Fla.2008). We certified conflict with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), on the issue. In Saintelien, the supreme court held that a rule 3.800(a) motion may be used to challenge a sexual predator designation, but specified its holding applied only when it is apparent from the face of the record that the criteria for designation were not met. It then quashed our decision in this case, and remanded for reconsideration and review of the record based upon Saintelien. See Breitberg v. State, 3 So.3d 1193 (Fla.2009). Because the issue raised on this challenge is not within the narrow ruling of Saintelien, we affirm.

Appellant claims his sexual predator designation is void, because it was entered after he had filed a notice of appeal from his qualifying conviction and sentence. This jurisdictional challenge was not addressed in Saintelien. In that case, the supreme court acknowledged that the sexual predator designation is not a sentence or a punishment. 990 So.2d at 496. Bowing to the reality that criminal courts make that designation shortly after sentencing, the court determined that for judicial efficiency reasons, it would permit challenges to the sexual predator designation to be made by filing a rule 3.800(a) motion but only where it is apparent from the face of the record that the defendant did not meet the criteria for being designated a sexual predator.

That is not the claim of appellant in this case. He does not challenge that fact or claim that he does not meet the criteria. He challenges the designation order as being made -without jurisdiction because of the pendency of his appeal. Therefore, given the narrow use of rule 3.800(a) motions to correct sexual predator designation approved by Saintelien, we affirm.

Even if this issue cannot be considered in a rule 3.800(a) challenge, if the trial court was without jurisdiction it would make the order void and thus reachable by some procedural vehicle. However, we conclude that the filing of the notice of appeal of the conviction and sentence did not divest the trial court of jurisdiction to enter the sexual predator designation order. “The general rule is that an appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal.” Kimmel v. State, 629 So.2d 1110, 1111 (Fla. 1st DCA 1994). Because the sexual predator designation is not a sentence at all, it would not interfere with the power of the appellate court to dispose of issues related to appellant’s conviction and sentence. The trial court was not divested of jurisdiction to consider the issue even after the filing of an appeal.

Appellant relies on Shepherd v. State, 912 So.2d 1250 (Fla. 2d DCA 2005), in which a sexual predator designation was vacated on direct appeal, the appellate court concluding that the trial court was divested of jurisdiction to amend the sentence after the filing of the notice of appeal. Although Shepherd reaches a contrary result to our decision, it relied on cases which hold that the trial court is “divested of jurisdiction to amend the sentence ” once an appeal is filed. Id. at 1252 (citing Dailey v. State, 575 So.2d 237 (Fla. 2d DCA 1991)) (emphasis added). Because the supreme court held in Saintelien that the sexual predator designation is not a sentence, Shepherd’s analytical underpinning has been removed. We therefore find it distinguishable.

Based upon the foregoing analysis, we affirm the order denying relief to appellant.

FARMER and HAZOURI, JJ., concur.


author: SAWAYA, J.

text:
    Christopher J. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4499.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2009.
    Christopher Wells, Raiford, pro se.
    No appearance for Appellee.
   SAWAYA, J.

In December 1974, Christopher J. Wells committed strong-arm robbery, was arrested, and was charged with that offense. The jury found him guilty, and on June 12, 1975, he was sentenced to life in prison. He did not appeal. At last count, Wells has filed three rule 3.800(a) motions, a habeas petition, and nine rule 3.850 motions. In light of his numerous previous filings, we concluded his motion and this appeal were without legal merit and constituted an abuse of process, requiring a show cause order under State v. Spencer, 751 So.2d 47 (Fla.1999).

In response to this court’s order, Wells reargued the alleged merits of his claim involving various versions of the early 1970s robbery and sentencing statutes, this time arguing primarily the 1971 law, Chapter 71-136, which both amended the robbery statute and enacted the sentencing statutes, classifying felonies by degrees for the first time in Florida. Amazingly, Wells asserts that it was only in “December 2008, through the exercise of due diligence it was discovered the change in the statute 813 Ch. 71-136 which was unknown to defendant and his Attorney.”

Even if we were to somehow conclude that Wells could not have discovered, in 1975, the changes in the law made by Chapter 71-136, he certainly could have done so in 1996, when he was arguing about a 1974 amendment to the robbery statute. At that time, with due diligence, he could have looked into the entire history of both statutes and all their amendments. This court has examined the various permutations of the robbery and sentencing statutes in the 1970s, and their effective dates, in conjunction with the timing of Wells’ crime, and it is clear his claim is without merit.

This case is a prime example of the frequent, routine misuse and abuse of the post-conviction system with which, unfortunately, the court system is not unfamiliar. “The number thirteen proves unlucky” for Wells, as it has for others, Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995); accord Young v. State, 852 So.2d 368 (Fla. 5th DCA 2003); Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003), and we, accordingly, prohibit Wells from filing with this court any further pro se pleadings concerning Ninth Judicial Circuit Court Case No. 1974-CF-3408. The Clerk of this court is directed not to accept any further pro se filings from Wells concerning this case. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”).

The Clerk of this court is further directed to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures as provided in section 944.09, Florida Statutes (2008). See Stephens v. State, 992 So.2d 364, 365 (Fla. 5th DCA 2008). We also note that, on more than one occasion, Wells has made untrue statements under oath in his motions. See §§ 944.279-.28(2)(a), (b), Fla. Stat. (2008); Oquendo v. State, 2 So.3d 1001, 1007 (Fla. 4th DCA 2008) (“Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth. An organized system of justice cannot operate without respect for truth.”).

AFFIRMED.

TORPY, J. and COBB, W., Senior Judge, concur.


author: EVANDER, J.

text:
    Jessica LABANCE, Appellant, v. Jeffrey J. DAWSY, as Sheriff of Citrus, etc., Appellee.
    No. 5D08-3380.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2009.

      Jeffrey E. Appel, Appel Law Group, Lakeland, for Appellant.
    Ian D. Forsythe and Bruce R. Bogan, of Hilyard, Bogan & Palmer, P.A., Orlando, for Appellee.
   EVANDER, J.

Jessica Labance was shot in the hand during an exchange of gunfire between a Citrus County Sheriffs deputy and one Larry Robbins that occurred when deputies were attempting to execute a search warrant at Robbins’ residence. She appeals from an order dismissing the negligence count of her amended complaint with prejudice in favor of the Sheriff of Citrus County, Jeffrey J. Dawsy. We find that the trial court erred in concluding that the Sheriff did not owe a legal duty to Labance.

We review de novo the dismissal of a complaint for failure to state a cause of action. Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009). To determine whether the amended complaint should have been dismissed, we must treat Labance’s well-pled allegations as true. City of Pinellas Park v. Brown, 604 So.2d 1222, 1224 (Fla.1992). The recitation of the facts herein come entirely from the amended complaint.

The Citrus County Sheriffs Office obtained a search warrant on May 23, 2003, for Robbins’ residence after several narcotics buys were made there by a confidential informant. The warrant was not executed until May 30, 2003. On that date, the Sheriffs deputies arrived at the residence at approximately 6:00 a.m. The deputies observed that there were four to five motor vehicles present at the residence— more than the two vehicles they had expected. Robbins had an extensive criminal history, including charges for aggravated assault and carrying a concealed weapon. At least one of the deputies had knowledge that Robbins routinely carried a firearm.

Labance did not know Robbins and was not the subject of the search warrant. She had arrived at the residence to pick up her mother who was babysitting the two minor children living at the residence. A plain-clothed deputy knocked on the door and, after Robbins opened the door, an exchange of gunfire transpired between Robbins and one of the deputies. Labance was sitting on a couch when she was struck in the hand by a bullet from the deputy’s gun.

In her amended complaint, La-bance alleged that the Sheriff, by and through his deputies, had a duty to exercise reasonable care for her safety. She alleged generally that the deputies had breached that duty of care by, inter alia, failing to warn her of, and/or protect her from, the dangerous conditions created during the execution of the warrant. The trial court concluded that because the enforcement of a facially sufficient and validly issued warrant is a duty owed to the general public and not to any individual person, see, e.g., Willingham v. City of Orlando, 929 So.2d 43, 50 (Fla. 5th DCA 2006), the Sheriff did not have a legal duty to protect Labance from harm during the execution of the warrant. We respectfully disagree with the trial court’s analysis.

When addressing the issue of governmental liability under Florida law, a court must first determine whether the governmental entity owed a duty of care to the plaintiff. Wallace, 3 So.3d at 1044. If no duty of care is owed with respect to the alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign shall be immune from suit does not need to be reached. Id. However, if a duty of care is owed, it must then be determined whether sovereign immunity bars any action for an alleged breach of duty. Id.

A law enforcement officer’s duty to enforce the law and protect the public safety is generally considered a matter of governance for which there has never been a common-law duty of care. Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985). Thus, there is no governmental liability where an officer exercises his discretion not to make an arrest. See, e.g., Everton v. Willard, 468 So.2d 936 (Fla.1985). However, when an officer acts to enforce the law, Florida law has consistently recognized that a special relationship may arise between an officer and a tort victim when the officer’s conduct creates a foreseeable zone of risk to a determinate individual or group. See Pinellas Park, 604 So.2d at 1226 (officers conducting high-speed chase of motorist who ran red light had duty to reasonably safeguard surrounding motorists); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (officer who detained motorist pursuant to traffic stop had duty to reasonably safeguard motorist’s well-being); Brown v. Miami-Dade County, 837 So.2d 414, 417-18 (Fla. 3d DCA 2001) (when conducting sting operation in hotel, police had duty to reasonably protect safety of innocent bystanders); City of Miami v. De La Cruz, 784 So.2d 475, 478 (Fla. 3d DCA 2001) (when giving chase to criminal suspect in midst of crowded street festival, police had duty to reasonably safeguard surrounding revelers). Here, Labance adequately alleged the existence of a special relationship based upon the deputies’ creation of a foreseeable zone of risk to the occupants of Robbins’ residence at the time of the execution of the search warrant.

The Sheriff contends that even if he owed a duty to Labance, he was entitled to sovereign immunity because the decision of how to execute a duly issued search warrant is “discretionary” and should not be the subject of tort litigation. This argument was not ruled upon by the trial court and, given the vagueness of Labance’s amended complaint, cannot be fully addressed by this court.

The sovereign immunity doctrine is based upon the separation-of-powers provision present in Article II, section 3 of the Florida Constitution. Wallace, 3 So.3d at 1053. The separation-of-powers doctrine necessitates that certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability. Id. The Florida Supreme Court has rejected the definitional approach to “discretion,” observing that all government functions, no matter how seemingly ministerial, can be characterized as embracing some degree of discretion. Id. Rather, the focus is on whether the challenged act involves the exercise of a planning level function or the exercise of an operational level function. Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. Id. Only the former entitles the governmental entity to immunity for its alleged negligent actions.

To assist in the determination of whether a challenged act involves the exercise of a planning function, the Florida Supreme Court has adopted a group of four related questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective, as opposed to one that would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority to do or make the challenged act, omission, or decision? Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1019 (Fla.1979). If all of these preliminary questions can be answered in the affirmative, then the governmental entity is immune from liability. If one or more questions call for a negative answer, then further inquiry is necessary, depending upon the facts and circumstances involved. Id.

In the instant case, we are unable to apply this four-question test because the amended complaint is remarkably devoid of specific factual allegations necessary to support Labance’s conclusionary assertions of negligence. For example, La-bance alleges that the deputies failed to warn her of the dangerous circumstances surrounding the execution of the warrant, yet fails to assert any facts which would support a finding that the deputies had the opportunity to give her warning. La-bance’s general assertions that the Sheriff breached his duty of care by “failing to use reasonable care,” “creating a dangerous condition on the premises,” “negligent use of a firearm,” “negligent use of deadly force” and “negligent execution of a search warrant” are similarly unsupported by specific factual allegations.

Although Labance’s amended complaint adequately alleged the existence of a legal duty on the part of the Sheriff, it was woefully inadequate in alleging ultimate facts to support Labance’s claim for relief. See Fla. R. Civ. P. 1.110(b); see also Pratus v. City of Naples, 807 So.2d 795, 796-97 (Fla. 2d DCA 2002). Based on the inadequacy of the amended complaint, we are unable to determine whether Labance would be able to allege a cause of action that would survive a motion to dismiss based on sovereign immunity.

As previously noted, the trial court granted the order of dismissal based on its erroneous conclusion that Labance would be unable to allege the existence of a legal duty — not on the failure to allege sufficient ultimate facts. Accordingly, on remand, the trial court shall afford Labance the opportunity to file a second amended complaint.

REVERSED and REMANDED.

ORFINGER and COHEN, JJ., concur.

      . Labance filed a notice of voluntary dismissal as to the remaining count of her amended complaint.

      . While there appears to be no Florida cases that directly address the issue of whether a law enforcement entity is entitled to immunity for decisions made regarding the time and manner of execution of a search warrant, we can envision circumstances in which application of the sovereign immunity doctrine would be inappropriate. As observed in Pinellas Park, there can be circumstances in which an officer engages in flagrantly dangerous conduct that goes far beyond what is necessary to vindicate the law and such conduct cannot be honestly characterized as "policy” or "planning.” Pinellas Park, 604 So.2d at 1226.

      . This rule provides, in part:
      A pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief....


author: ROBERTS, J.

text:
    BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., and Health Options, Inc., Appellants/Cross-Appellees, v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, a Public Body Corporate, for the Benefit of the University of Florida College of Medicine, University of Florida College of Public Health and Health Professions, and University of Florida College of Dentistry, Appellee/Cross-Appellant.
    No. 1D08-3813.
    District Court of Appeal of Florida, First District.
    July 6, 2009.

      H. Michael Muniz, Andres Gonzalez, and Steven M. Ziegler of Steven M. Ziegler, P.A., Hollywood, for Appellants/Cross-Ap-pellees.
    A. Graham Allen, Christine M. Russell, and Robert H. Pritchard of Rogers Towers, P.A., Jacksonville, for Appellee/Cross-Appellant.
   ROBERTS, J.

In this interlocutory appeal, the appellants, Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., and the appellee, the University of Florida Board of Trustees, both challenge the trial court’s non-final order denying in part and granting in part the motions to compel arbitration filed by the appellants. The appellants raise two issues on direct appeal, which we do not address because they are subsumed by our ruling on the cross-appeal. The appellee raises one issue on cross-appeal. The appellee argues that the trial court erred in finding that an arbitrable issue existed. We agree and reverse and remand with instructions to the trial court to enter a non-final order denying the appellants’ motions to compel arbitration.

FACTS

Between 1987 and 1993, the parties entered into six agreements (the pre-existing agreements), four of which contained arbitration clauses. Two of the arbitration clauses included any claim or controversy “arising out of or relating to” the agreements, The other two arbitration clauses included any claim or controversy “arising out of or relating to” an audit finding under the agreements or any claim or controversy “arising under” the agreements.

In 2004, the parties entered into the Letter of Agreement. The Letter of Agreement did not contain an arbitration clause. It did, however, provide that it would “modify and supplement but not replace any existing agreements” between the parties. The Letter of Agreement also provided a reimbursement formula for the appellants’ calculation of the payments due to the appellee. The formula utilized relative value units (RVUs) to assign a value to specific medical procedures or services, a methodology adopted by the Centers for Medicare and Medicaid Services (CMS) for calculating the amount of Medicare reimbursements; applied geographical practice costs indices to adjust each RVU by geographical area; and then made adjustments based on a specifically negotiated conversion factor. According to the appel-lee, in January of 2007, CMS adopted a new methodology to reduce Medicare reimbursements which applied a “budget neutrality factor adjustment.” The parties, however, did not modify the reimbursement formula to adopt this new methodology.

In 2008, the appellee filed a declaratory judgment action against the appellants regarding the rights and obligations of the parties under the Letter of Agreement. The appellee alleged that the appellants were applying the CMS’s “budget neutrality factor adjustment” to reduce payments due to the appellee, in violation of the Letter of Agreement.

The appellants then filed motions to compel arbitration of the declaratory judgment action. The appellants argued that, because the Letter of Agreement supplemented the pre-existing agreements and was made part of the complaint, the preexisting agreements were also part of the complaint. The appellants also argued that, because four of the pre-existing agreements contained arbitration clauses, any disputes related to those agreements had to be submitted to arbitration.

Following a hearing on the motions, the trial court entered a non-final order denying in part and granting in part the appellants’ motions. The trial court found that (1) there was a valid agreement to arbitrate; (2) there was an arbitrable issue, specifically whether the “budget neutrality factor” methodology applied to medical procedures or services under the “subject contracts;” and (3) arbitration had not been waived. With respect to the two preexisting agreements not containing arbitration clauses, the trial court denied the motions with prejudice. With respect to the four pre-existing agreements containing arbitration clauses, the trial court denied the motions without prejudice and stayed the issues pertaining to those agreements.

ANALYSIS

In ruling on a motion to compel arbitration, a trial court must consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert v. United States Home Corp., 750 So.2d 633, 636 (Fla.1999). The issue on cross-appeal does not relate to the first or third elements. It is undisputed that the Letter of Agreement did not contain an arbitration clause. It is also undisputed that four of the pre-exist-ing agreements did contain arbitration clauses and the right to arbitration under those agreements was not waived.

The issue on cross-appeal relates to the second element. The appellee argues that no arbitrable issue existed. This argument has merit. To find that an arbi-trable issue existed, there must have been some nexus between the claim and the four pre-existing agreements containing arbitration clauses. See id. at 638. At a minimum, the claim must have raised some issue which could not have been resolved without reference to or construction of some portion of the four pre-existing agreements containing arbitration clauses. See id.

The appellee’s claim sought a declaratory judgment regarding the rights and obligations of the parties under the Letter of Agreement and alleged that the appellants were in violation of that agreement. The appellee’s claim did not seek a declaratory judgment regarding the rights and obligations of the parties under the four preexisting agreements containing arbitration clauses or allege that the appellants were in violation of those agreements. Consequently, there is no nexus between the appellee’s claim and the four pre-existing agreements containing arbitration clauses. It is also clear that resolution of the appel-lee’s claim does not require reference to or construction of any portion of the four preexisting agreements containing arbitration clauses. Accordingly, the trial court erred in finding that an arbitrable issue existed.

REVERSED and REMANDED with instructions for the trial court to enter a non-final order denying the appellants’ motions to compel arbitration.

KAHN and THOMAS, JJ., concur.


author: HAWKES, C.J.

text:
    Melissa LONG, Appellant, v. AvMED, INC., Appellee.
    No. 1D08-5899.
    District Court of Appeal of Florida, First District.
    July 8, 2009.
    Gary C. Luke, of Luke Law, LLC, Orange Park, for Appellant.
    Frank Morreale and Gigi Rollini, of Holland & Knight, LLP, Tallahassee, for Ap-pellee.
   HAWKES, C.J.

Melissa Long brought a complaint against her HMO — AvMed—in which she requested injunctive relief and attorney’s fees due to AvMed’s refusal to provide coverage for a certain medical treatment. During the subsequent filings and hearing, Long admitted AvMed had agreed to pay for the treatment prior to the filing of the complaint, meaning she did not actually require injunctive relief at the time the suit was filed. The trial court dismissed the claims for injunctive relief and attorney’s fees with prejudice. It emphasized the request for injunctive relief was merely a pretext, and that the true purpose of the suit was for Long to collect attorney’s fees. Long has now appealed the dismissal of the request for attorney’s fees. Her persistence is difficult to understand in light of this record. Obviously, we affirm.

We write only to address Av-Med’s motion for appellate attorneys’ fees pursuant to section 57.105, Florida Statutes (2007). We find such fees should be imposed. Fees are appropriate under section 57.105(1) when the party or the parties’ attorney pursued a claim or defense that is without factual or legal merit. The section reads:

the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of the then-existing law to those material facts.

The determination of factual or legal merit can occur either when the claim or defense is first made, or later when the party discovers, or should have discovered, that the claim or defense lacks factual or legal merit. See Gopman v. Department of Education, 974 So.2d 1208, 1210 (Fla. 1st DCA 2008). The test is simply whether the “party or his counsel knew or should have known, at the time of filing, [that the claims were] not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law.” Id. Importantly, section 57.105 “does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.” Id.; see also Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003). Section 57.105 permits an appellate court to impose appellate attorneys’ fees for conduct on appeal. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 574-75 (Fla.2005).

This criteria, when applied to the arguments raised in Long’s complaint, mandates an imposition of the sanction of appellate attorneys’ fees pursuant to section 57.105 for at least two reasons: (1) Long’s appeal of the trial court’s dismissal of her request for attorney’s fees lacked any statutory support; and (2) Long has attempted to keep material facts from this Court. Each of these deficiencies should have been obvious to Long and her counsel at the time the appeal was filed. Each deficiency, on its own, constitutes sufficient reason to impose the sanction.

First, Long’s appeal lacks a statutory basis. In the proceeding below, the trial court dismissed Long’s request for attorney’s fees. On appeal, Long continues to argue the trial court should have awarded fees under section 641.28, Florida Statutes (2007), because she received payment from AvMed after filing her lawsuit. This argument ignores the express language of the statute, which states “[i]n any civil action brought to enforce the terms and conditions of a health maintenance organization contract, the prevailing party is entitled to recover reasonable attorneys’ fees and court costs.”

Section 641.28 is limited to only those suits “brought to enforce.” At first blush, the complaint appears to have been brought to enforce the terms of Long’s HMO policy due to her request for injunc-tive relief. However, prior to the filing of the complaint, AvMed agreed to pay for the treatment in full. Consequently, the request for injunctive relief was merely a pretext for the lawsuit’s true purpose — to obtain attorney’s fees. Indeed, Long’s counsel admitted during a hearing that Long was “not entitled to injunctive relief because AvMed [had already] authorized payment for the treatment.” Since the purpose of the lawsuit was not to enforce the terms of an HMO contract, Long’s argument on appeal lacks legal and factual merit.

Second, regarding Long’s statements of fact, she argues the trial court should have awarded her attorney’s fees because AvMed agreed to pay for her medical treatment after the suit was filed. However, as previously discussed, the record reveals AvMed agreed to pay for the cost of Long’s medical treatment prior to the filing of the complaint. Since the case hinges on this fact, it is clearly material. Long failed to acknowledge this agreement in her complaint; Long also failed to acknowledge it in her appellate brief. Presumably, she failed to do so because the acknowledgment would destroy her entire argument. Unfortunately, refusing to acknowledge unfavorable facts was not an option Long or her attorney possessed. This conduct is sanctionable as it violates an appellate counsel’s “ethical obligation to present [] the facts [] accurately and forthrightly.” Boca Burger, Inc., 912 So.2d at 571; see also Hays v. Johnson, 566 So.2d 260, 261 (Fla. 5th DCA 1990) (finding the omission of a material fact sanctionable as “all counsel who appear before this court must be truthful and fair in their petitions”).

We grant AvMed’s motion and find appellate attorneys’ fees should be paid in equal amount by Long and her attorney pursuant to section 57.105(1), Florida Statutes. The case is REMANDED to the trial court to determine the reasonable attorney’s fees AvMed incurred.

LEWIS and THOMAS, JJ., concur.

      . During the same hearing, the trial court rebuked Long’s counsel, stating the "suit was a jump-the-gun suit, a gotcha suit. After you heard that they were going to pay for [the treatment], you rushed the suit, in effect, so that you could try to get your attorney's fees out of it."


author: PER CURIAM.

text:
    Steven DOHERTY, Appellant/Cross-Appellee, v. Sandra BROWN, Appellee/Cross-Appellant.
    No. 1D08-5211.
    District Court of Appeal of Florida, First District.
    July 8, 2009.
    Rehearing Denied Aug. 25, 2009.

      R. Flint Crump, Gainesville, for Appellant/Cross-Appellee.
    Randi E. Dincher of Randi E. Dincher, P.A., Gainesville, and Sharon H. Proctor, Lake St. Louis, MO, for Appellee/Cross-Appellant.
   PER CURIAM.

Appellant/Cross-Appellee appeals certain statements contained in the trial court’s Order Modifying Foreign Decree, and Appellee/Cross-Appellant appeals the denial of that portion of her petition for modification requesting a change in the minor child’s primary physical residence.

In the introductory findings section of the order on appeal, the trial court referred to the parties’ Joint Custody Agreement wherein the parties agreed to review the Agreement every six months, and speculated that accordingly, no substantial change in circumstances would be required in future modification proceedings. In the adjudicatory section of the order denying modification of the child’s primary residence, the court stated its intent that in the future, the child might “be able to rotate year to year between parents.”

We find that the challenged statements in the order on appeal pertain to matters which might arise in the future but were not necessary to the resolution of the case before the court. “[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle, or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple.” Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975). These dicta had no binding legal effect but, as demonstrated by this appeal, served only to confound the trial court’s final ruling. See Cobb v. State, 511 So.2d 698, 700 (Fla. 3d DCA 1987) (Baskin, J., specially concurring) (“Judicial pronouncements which are obiter dicta in character more often serve to confound than to clarify the jurisprudence of this State.”). Because the trial court’s comments did not address the merits of the modification proceedings then before it, such dicta did not constitute grounds upon which the Order Modifying Foreign Decree might be reversed.

We reject Appellee/Cross-Appel-lant’s assertion that the trial court abused its discretion in denying her petition to modify the child’s primary physical residence. See Jannotta v. Hess, 959 So.2d 373 (Fla. 1st DCA 2007) (standard of review for denial of modification of child custody is abuse of discretion). The trial court’s rejection of portions of the custody evaluation report was a valid exercise of the court’s discretion, and the denial of modification of the child’s primary physical residence was supported by competent substantial evidence other than the custody evaluation report. It is unnecessary to determine whether competent substantial evidence supports a denial of relief to the party carrying the burden of proof. See Mitchell v. XO Communications, 966 So.2d 489, 490 (Fla. 1st DCA 2007); see also Fitzgerald v. Osceola County School Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (“a decision in favor of the party without the burden of proof need not be supported by competent substantial evidence.”).

AFFIRMED.

HAWKES, C.J., ALLEN, and CLARK, JJ., concur.


text:
    Markey CRUSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6208.
    District Court of Appeal of Florida, First District.
    July 8, 2009.
    Rehearing Denied Aug. 13, 2009.
    Markey Cruse, pro se, Appellant.
    Bill McCollum, -Attorney General, and Daniel A. David, Assistant Attorney General, for Appellee.
   PER CURIAM.

Markey Cruse appeals the trial court’s order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court improperly dismissed ground six of the appellant’s ineffective assistance of counsel claims as facially insufficient without giving him leave to amend as required by Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse and remand.

The appellant filed his postconviction motion and motion for rehearing before Spera was issued. In Spera, the Florida Supreme Court held that when a trial court summarily denies a defendant’s rule 3.850 motion as facially insufficient, it must also give the defendant an opportunity to amend his motion. Id. at 762. In Gilmore v. State, 989 So.2d 714, 715 (Fla. 1st DCA 2008), the trial court denied the appellant’s motion as facially insufficient without giving him an opportunity to amend his motion as Spera had yet to be issued. On appeal, this Court held that the appellant was entitled to amend his postconviction motion in accordance with Spera even though Spera had not been issued when the lower court reviewed the motion. Id. This Court, therefore, reversed and remanded for the trial court to allow the appellant leave to amend his motion in accordance with Spera. Id.

Similarly, in the instant case, the appellant filed his postconviction motion and motion for rehearing before Spera was decided. The trial court summarily denied ground six of the appellant’s ineffective assistance of counsel claims as facially insufficient. As such, the appellant is entitled to the benefit of Spera.

REVERSED and REMANDED to the trial court pursuant to the requirements of Spera.

WOLF, LEWIS, and ROBERTS, JJ., concur.


author: FULMER, Judge.

text:
    Terry J. SAYLES, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1503.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Terry J. Sayles, Sr., appeals his judgments and sentences for various criminal offenses, specifically challenging the denial of his motion to withdraw plea after sentencing filed pursuant to Florida Rule of Criminal Procedure 3.110(1). We reverse and remand for an evidentiary hearing.

Sayles entered a no contest plea to several charges in exchange for a sentence of thirty-six months’ probation with the condition that he serve eight months in jail. Because two of the offenses were driving under the influence of alcohol, the revocation of his driver’s license was an issue. See § 322.28, Fla. Stat. (2007). The plea form signed by Sayles states that his sentences would “consist of ... [a] 10 year DL revocation.” At the plea and sentencing hearing, the trial court addressed the issue of the revocation of Sayles’ driver’s license by the Department of Motor Vehicles (DMV):

DMV is going to do what it wants to do, and ... they will do administratively with the driver’s license what they do regardless of what I say, sir. So, I assume it will be 10-years revocation by DMV, not 20, but I can’t make you any promises about what DMV will do. They’re going to get this as two convictions, so I don’t even want to begin to tell you or make you promises or assurances on your plea today with respect to your driver’s license. I’m not going to do anything other than say it’s a 10-year DL revocation.

At other times throughout the hearing, the prosecutor, the court, and defense counsel made references to a ten-year driver’s license revocation.

After sentencing, Sayles filed — through his defense counsel — a timely rule 3.170(i) motion, alleging that he was

advised [by counsel] that since he was resolving both DUI’s on the same day, that he would not have a lifetime revocation of his driver[’]s license.... Based on the information that his driver[’]s license would be revoked for 10 years and at the most 20 years, [he] pled to the charges.

The motion further alleged that subsequent to Sayles’ plea, he “received an order of permanent license revocation” from the DMV. He claimed that his “plea was involuntary because he was advised his license would not be permanently revoked.”

After defense counsel filed the motion, she moved to withdraw based on conflict, and new counsel was appointed for the hearing on the motion to withdraw plea. At the hearing on the motion, at which no evidence was presented, Sayles’ new counsel argued that Sayles’ plea was entered with the understanding that his driver’s license would not be permanently revoked. The trial court orally denied the motion without any explanation. The tidal court’s written order of denial states only that Sayles’ “plea was freely and voluntarily entered.”

On appeal, Sayles argues that in considering the motion to withdraw plea, the trial court incorrectly assumed that the revocation of his driver’s license is a collateral consequence of his plea. Sayles contends that it is a direct consequence of his plea and that he therefore had a right to receive accurate advice about it. He also alleges that there is nothing in the record to refute the allegation made in his motion that he was misadvised by his attorney. Sayles asserts that the trial court should have held an evidentiary hearing on his motion.

The State responds that although all parties were operating under the mistaken assumption that Sayles would only be subject to a temporary license revocation, the record shows that the trial court specifically stated that it could not make any promises regarding what the DMV would do. The State recognizes that affirmative mis-advice about collateral matters may justify withdrawal of a plea but argues that Sayles had no right to rely on any misad-vice from counsel in light of the trial court’s advice at the plea hearing.

Revocation of a driver’s license is a collateral consequence of a plea, and therefore, neither defense counsel nor the trial court is required to inform a defendant about such a consequence before the defendant enters his or her plea. See Bolware v. State, 995 So.2d 268, 275 (Fla.2008). However, “[ajffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.” Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001); see also Deck v. State, 985 So.2d 1234, 1236 (Fla. 2d DCA 2008) (“[Wjhile counsel has no obligation to be proactive by voluntarily advising a defendant about the collateral consequences of a guilty plea, if counsel chooses to offer such advice, then the advice given must be accurate.”).

The record of the plea hearing does not refute Sayles’ claim that his plea was involuntary because he relied on his counsel’s misadvice that his license would not be permanently revoked. First, Sayles’ plea form indicates that his sentences “would consist of ... [a] 10 year DL revocation.” Second, the transcript of the plea and sentencing hearing shows that neither his defense counsel nor the trial court informed him that his license could be permanently revoked. The trial court discussed the probability of the DMV temporarily revoking Sayles’ license for a term of ten or twenty years, but the trial court never informed Sayles that his driver’s license could be permanently revoked. Therefore, contrary to the State’s assertion, the trial court did not cure the alleged misadvice given to Sayles by his defense counsel.

Accordingly, we reverse and remand for an evidentiary hearing on Sayles’ motion to withdraw plea. See Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004).

Reversed and remanded.

WHATLEY, and DAVIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    SHLISHEY THE BEST, INC., Appellant, v. CITIFINANCIAL EQUITY SERVICES, INC.; and Darryl Lowery and Wedsel Lowery, Appellees.
    No. 2D09-135.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.

      George J.F. Werner, Clearwater, for Appellant.
    W. Glenn Jensen and Shayne A. Thomas of Roetzel & Andress, LPA, Orlando, for Appellee CitiFinancial Equity Services, Inc.
    No appearance for Appellees Darryl Lowery and Wedsel Lowery.
   VILLANTI, Judge.

Shlishey the Best, Inc., the third-party purchaser at a foreclosure sale, appeals the trial court’s order that set aside the foreclosure sale and vacated the certifícate of sale, contending that it was denied procedural due process because the trial court entered the order ex parte and with no opportunity for Shlishey to be heard. Because the record supports this assertion, we reverse and remand for further proceedings.

The facts here are very straightforward. CitiFinancial filed a foreclosure action against property owners Darryl and Wed-sel Lowery. CitiFinancial obtained a final judgment of foreclosure for $168,856.75 on October 30, 2008. That final judgment set the foreclosure sale for December 4, 2008, at 2 p.m.

CitiFinancial subsequently began negotiating with the Lowerys in an effort to allow them to remain in their house. However, as the sale date approached, Ci-tiFinancial did not file a motion seeking to have the foreclosure sale stayed or rescheduled. Instead, on the day of the sale, CitiFinancial apparently sent its representative to the clerk’s office, where that representative told the clerk to remove the property from the sale list. The clerk did not do so, and the property was offered at the judicial sale on December 4 as scheduled. Shlishey bought the property at that judicial sale for $2000.

On December 5, 2008, CitiFinancial sent an unsworn letter to the trial judge asserting that the sale had been held due to a clerk’s mistake and that the winning bid was insufficient. In the letter, CitiFinan-cial said that it was enclosing a proposed order vacating the foreclosure sale and the certificate of sale. This letter was not copied to Shlishey or otherwise provided to it.

On December 9, 2008, CitiFinancial served its “Objection to Foreclosure Sale; Motion to Vacate Foreclosure Sale of December 4, 2008; and Motion to Vacate Certificate of Sale.” This motion was served by mail on Shlishey on December 9. However, the trial court signed CitiFinan-cial’s proposed order granting its motion to vacate the foreclosure sale and certificate of sale on December 10. Thus, Shlishey never had an opportunity to object to the motion, and the trial court’s decision to grant the motion was apparently based solely on the unsworn allegations of CitiFinancial’s counsel. Shlishey now appeals, contending that it was denied due process when the court granted CitiFinan-cial’s motion without an opportunity for Shlishey to be heard.

“Due process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard.” E.I. Du-Pont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995) (citing Cavalier v. Ignas, 290 So.2d 20, 21 (Fla.1974)); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 [1914]. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.”); Massey v. Charlotte County, 842 So.2d 142, 146 (Fla. 2d DCA 2003) (“Procedural due process requires both fair notice and a real opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” (quoting Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001))); Prunty v. State ex rel. Williams, 226 So.2d 448, 450 (Fla. 1st DCA 1969) (holding that it is “a denial of due process” to “enter an order on the motion without first giving the parties affected notice and an opportunity to be heard before a party’s rights are taken away”).

This court recently reversed the ex pai’te entry of an order vacating a previous order based in part on a finding that it resulted from a due process violation. In McCrea v. Deutsche Bank National Trust Co., 993 So.2d 1057 (Fla. 2d DCA 2008), the trial court had dismissed a foreclosure action brought by Deutsche Bank. Eleven days after the final order of dismissal was entered, Deutsche Bank faxed a cover sheet, unsigned letter, and proposed order to the trial court. Id. at 1058. In the letter, Deutsche Bank asserted that the dismissal order had been “wrongfully” entered based on the McCreas’ alleged fraud. Id. A copy of the letter was also faxed to the McCreas. The clay after the fax was sent and before the McCreas could respond, the trial court signed the order vacating the dismissal and reinstating the case. Id.

On appeal, the McCreas argued that the order vacating the dismissal order was improperly entered when the court had no jurisdiction to do so. Deutsche Bank asserted that the order was properly entered pursuant to Florida Rule of Civil Procedure 1.540(b), and it submitted documents in its appendix that purportedly supported the trial court’s ruling. However, this court reversed, stating:

It may well be that the earlier order was the product of mistake, as opposed to judicial error, and was properly corrected by the trial court under rule 1.540(b). However, the McCreas were precluded from establishing the misapplication of rule 1.540(b) by the ex parte procedure that led to entry of the order. For this reason, we reverse and remand with directions for the court to hold a hearing on the matter.

Id. at 1058-59. While this court did not specifically reference “due process” in its ruling, the reversal due to lack of notice and opportunity to be heard is clearly a determination that entry of the order ex parte violated the McCreas’ due process rights.

In a factual setting more similar to that presented by Shlishey, the Fourth District reversed an ex parte order vacating a judicial sale. In White v. Loschiavo, 597 So.2d 373 (Fla. 4th DCA 1992), the clerk held a judicial sale in a partition action. White was the winning bidder at the first sale, but she failed to timely pay the bid price. Id. at 373. The clerk held a second sale, and White was again the winning bidder, but she again failed to timely pay the bid price. Id. at 373-74. At that point, Los-chiavo filed an ex parte motion to vacate the bids and sell the property again. Id. at 374. The court granted the motion without a hearing or notice to White, and Loschiavo was the winning bidder at the third sale. Id. White then filed a motion challenging the third sale. The Fourth District held that the order granting the third sale and declaring the prior bids false and fraudulent was entered in violation of White’s due process rights because it was “the result of ex parte contact between the court and Loschiavo” and because the third sale was conducted without notice to White. Id. Thus, the court reversed and remanded with instructions to vacate the third sale and have a new sale. Id.

Here, as in McCrea and White, Shlishey had neither notice nor an opportunity to be heard before its rights to the property it purchased at a facially valid judicial sale were taken away by the court’s order vacating that sale. CitiFinancial’s December 5, 2008, letter to the trial court challenging the foreclosure sale was not copied to Shlishey. The actual motion to vacate the sale and certificate of sale was not served on Shlishey until December 9, and the trial court ruled on the motion on December 10 — quite possibly before Shlishey even received the motion served upon it by mail. It is apparent from this sequence of events that Shlishey was denied procedural due process relating to the entry of the order vacating the foreclosure sale.

In this appeal, CitiFinancial argues that Shlishey was not entitled to be heard on the objections because it had no pro-tectable legal rights in the property. We disagree. Shlishey was the winning bidder at a properly noticed and facially proper foreclosure sale. It held a certificate of sale to the property at issue. Pursuant to that certificate of sale, Shlishey had the right to obtain title to the property unless objections to the sale were filed within ten days and sustained by the court. See § 45.031(5), Fla. Stat. (2008) (providing that the certificate of title will be automatically issued by the clerk ten days after the sale unless objections are filed); see also In re Jaar, 186 B.R. 148, 153-54 (Bankr.M.D.Fla.1995) (noting that a mortgagor’s right of redemption expires with the filing of the certificate of sale, objections to the sale do not affect or cloud the title of the purchaser in any way, and that a certificate of sale must be set aside before a mortgagor can have any rights back and concluding based on these statutory provisions that “in Florida a residence is sold at a foreclosure sale ... at the time that the certificate of sale is filed by the clerk”). Thus, while Shlishey’s rights in the property may have been inchoate during the ten-day objection period, see Roy v. Matheson, 263 So.2d 604, 606 (Fla. 4th DCA 1972), it nevertheless had protectable legal rights in the property. Accordingly, Shlishey was entitled to notice and an opportunity to be heard before those rights were taken away.

CitiFinancial also contends that the trial court’s actions could not violate procedural due process because no specific post-sale procedure is statutorily mandated. It contends, in essence, that because there are procedural gaps in chapter 45, the trial court could proceed however it wished. This argument is baseless for two reasons. First, this court has previously held that when a statute contains procedural gaps, those gaps will be filled “by the commonsense application of basic principles of due process.” Massey, 842 So.2d at 145 (quoting City of Tampa v. Brown, 711 So.2d 1188, 1189 (Fla. 2d DCA 1998)). Thus, the absence of an explicit statutory procedure for post-sale proceedings did not give the trial court liberty to simply ignore the procedural due process rights of interested parties.

Second, contrary to CitiFinan-cial’s argument, the statute does set forth the required procedure. Section 45.031(8) provides that objections based on the amount of the bid may be filed within ten days after the clerk files a certificate of sale, and “[i]f timely objections to the bid are served, the objections shall be heard by the court.” (Emphasis added.) For the court to “hear” objections, it must provide both notice and an opportunity for any interested party to address those objections. See, e.g., Nelson v. Santora, 570 So.2d 1374, 1376 (Fla. 1st DCA 1990) (interpreting former version of section 45.031(8) to require the court to hold an actual hearing on any objections). We recognize that “[t]he specific parameters of the notice and opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding,” Massey, 842 So.2d at 146, and we do not hold that a court may only “hear” objections to a foreclosure sale at an in-court proceeding with counsel physically present. However, we are certain that the word “heard” in section 45.031(8) does not contemplate that objections to a foreclosure sale may be decided ex parte and without notice to all interested parties, including the buyer holding the facially valid certificate of sale.

Because of the patent procedural due process violations in this ease, we reverse the order setting aside the foreclosure sale and remand for 'further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND and FULMER, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Luis C. RUIZ-ALEGRIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5612.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Luis C. Ruiz-Alegria appeals his convictions for resisting an officer with violence, resisting an officer without violence, and driving without a valid driver’s license. We conclude that principles of double jeopardy prevent the dual convictions for resisting an officer under the facts in this case. Accordingly, we reverse the misdemeanor conviction and sentence for resisting an officer without violence. This reversal does not affect Mr. Ruiz-Alegria’s sentences for the other two convictions.

In February 2007, a Hillsborough County deputy sheriff observed Mr. Ruiz-Aleg-ria commit a traffic violation in his pickup truck. The deputy ran a check of the truck’s license plate and found an outstanding warrant for Mr. Ruiz-Alegria’s arrest. The deputy stopped the truck, but Mr. Ruiz-Alegria and his passenger fled on foot. The deputy called for assistance. Three additional deputies — deputies Woods, Goff, and Catlin — soon arrived at the scene. These deputies collectively chased Mr. Ruiz^-Alegria into a stand of trees. He refused their commands to come out and physically resisted their efforts to arrest him.

For this conduct, the State charged Mr. Ruiz-Alegria with one count of resisting arrest with violence and one count of resisting arrest without violence, identifying as victims deputies “Woods or Goff or Catlin,” in each count. The information did not identify the deputy who initiated the traffic stop or make any allegation that Mr. Ruiz-Alegria resisted or eluded that officer. After a bench trial, the trial court found Mr. Ruiz-Alegria guilty as charged. For the misdemeanor resisting offense, he received a sentence of time served that was concurrent with a longer sentence for resisting with violence and a sentence for an unrelated conviction for child abuse. The .2 points on the scoresheet for the misdemeanor clearly did not affect his sentences for the other offenses.

The only issue identified on appeal is whether the convictions for resisting without violence and with violence in this context violated double jeopardy. In a very similar case, this court held that a defendant’s conduct that begins as resisting without violence and evolves into resisting with violence does not permit two convictions so long as the conduct occurs in a single criminal episode. See Williams v. State, 959 So.2d 790 (Fla. 2d DCA 2007). Although it is likely that the State in this case could have charged a separate episode involving the officer who stopped Mr. Ruiz-Alegria, and may even have established separate offenses if it had not alleged the three deputies as alternative victims in this case, under the allegations in the information and the proof at trial, these two offenses arose within a single criminal episode and can support only one conviction.

While this case was pending on appeal, the Florida Supreme Court decided Valdes v. State, 3 So.3d 1067 (Fla.2009). We allowed the parties to supplement their briefing as a result. The State responded that, even in light of Valdes, the outcome of this case would not change unless we were to find a temporal break between Mr. Ruiz-Alegria’s offenses, recede from Williams, or determine that the offenses do not fall under an exception provided under section 775.021(4)(b), Florida Statutes (2006). Having found no occasion to apply Valdes to this case or to recede from Williams, we reverse the misdemeanor conviction and sentence for resisting an officer without violence, but affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.


text:
    Richardson FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1267.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Richardson Francois, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Bjorn Christopher BLAKE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1378.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Bjorn Christopher Blake, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141 (b)(2)(A)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: PER CURIAM. SHEPHERD, J.,

text:
    Maximo RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1399.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Maximo Ramos, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed.

WELLS and LAGOA, JJ., concur.

SHEPHERD, J.,

concurring.

I write only to note that the order from which the defendant seeks to take this appeal is an order denying him postconviction relief under Florida Rule of Criminal Procedure 3.800(a) in Case Numbers F95-28664B and F95-17949C. The defendant has completed his sentences in these two cases.

The defendant presently is incarcerated in Case Number F00-40643 and desires to challenge the amount of credit for time served he was awarded in that case. There is no order before us from that case.

Accordingly, affirmance is in order.


text:
    James E. SCHULTE, Petitioner, v. Carol ANGUS, Golda Oxenborg, Clara Murphy and Mildred Depietro, Respondents.
    No. 3D09-1529.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Rehearing Denied Aug. 25, 2009.

      Shulte & Bisbing and John H. Schulte, Miami, for petitioner.
    Murphy & O’Brien and William F. Murphy, North Miami Beach; Michael Las-celle; Herbert S. Rose, for respondents.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Petitioner seeks certiorari review of his motion to disqualify counsel for respondent, William F. Murphy, based on prior cases in which Mr. Murphy had represented the petitioner. The trial court initially granted the motion to disqualify, but, after the filing of a motion for reconsideration and rehearing, the court vacated the order of disqualification.

Petitioner relies on Rule 4-1.7(a) of the Rules Regulating the Florida Bar as the basis for Mr. Murphy’s disqualification. Rule 4-1.7(a) provides:

Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

This rule governs conflicts between attorneys and existing, as opposed to former, clients. Rule 4-1.9 governs conflicts between attorneys and former clients. Since, in the court below, petitioner sought disqualification of Mr. Murphy based solely on rule 4-1.7(a), we need not address the applicability, if any, of rule 4-1.9.

The record before us is devoid of any evidence that petitioner was an existing client of Mr. Murphy at the time of the instant litigation. On its face, rule 4-1.7 is titled as applying only to “Current Clients.” Indeed, no court has applied rule 4-1.7 to cases involving any individual or entity that is not a current client. See, e.g., Fenik v. One Water Place, No. 3:06cv514/RV/EMT, 2007 WL 527997, at *2 (N.D.Fla. Feb. 14, 2007) (describing rule 4-1.7 as governing disqualification for conflicts of interest with a current client as and rule 4-1.9, as governing disqualification for conflicts of interests with & former client); In re Servico, Inc., 149 B.R. 1009, 1011 (Bankr.S.D.Fla.1993) (“Rule 4-1.7 regulates conflicts of interest between existing clients, as opposed to former clients, which are regulated by Rule 4-1.9.”). Given that petitioner has not shown that he is a current client of Mr. Murphy, it cannot be said that the trial court departed from the essential requirements of law in finding no conflict under rule 4-1.7.

Petition Denied.


text:
    Joaquin TAMAYO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1149.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Carlos J. Martinez, Public Defender, and Shannon P. McKenna, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See State v. Pereira, 967 So.2d 312, 314 (Fla. 3d DCA 2007).


text:
    Jerry WIGGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-1687.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Rehearing Denied Sept. 9, 2009.
    Glenn H. Mitchell, West Palm Beach, and Michael Maher, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Dismissed. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

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


text:
    William ALLEN Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3036.
    District Court of Appeal of Florida, First District.
    July 9, 2009.
    William Allen Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent. :
   PER CURIAM.

DENIED. Gary v. State, 5 So.3d 713 (Fla. 1st DCA 2009).

DAVIS, BROWNING, and THOMAS, JJ., concur.


text:
    Mark H. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2685.
    District Court of Appeal of Florida, Second District.
    July 10, 2009.

      Mark H. Johnson, pro se.
   FULMER, Judge.

Mark H. Johnson challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Johnson raised nine grounds in his motion. We affirm the denial of all grounds but two, four, and seven, which we reverse and remand for further consideration.

Johnson was convicted of DUI manslaughter, DUI with serious bodily injury, and two counts of driving with license suspended or revoked. Johnson’s vehicle collided with another vehicle driven by Anthony Martin. Johnson alleges that he had been drinking prior to the accident but that he was not driving when it occurred. He contends that the driver was his girlfriend, Barbara Davis, who died from her injuries. Johnson alleges that Martin was the only witness to testify that Johnson had been driving.

In Ground Two, Johnson alleged that his counsel was ineffective in failing to file a motion to sever the offenses because Johnson was prejudiced when the jury was confronted with Johnson’s driving history which was admitted to prove the driving on a suspended license counts. The post-conviction court denied this claim as legally insufficient because under Florida Rule of Criminal Procedure 3.150, offenses that are based on the same act or transaction may be joined. Thus, joinder was proper and counsel cannot be faulted for failing to raise a meritless issue.

We reverse the denial of this claim because the postconviction court’s order overlooks the provision in Florida Rule of Criminal Procedure 3.152 that allows a motion for severance, even if the offenses were not improperly joined, if appropriate to promote a fair determination of guilt or innocence. The defense could have filed a motion to sever the driving on a suspended license counts. See State v. Wittman, 794 So.2d 725 (Fla. 3d DCA 2001) (noting that driving on a suspended license charge was severed from DUI charges). Thus, because this claim is not refuted by the postconviction court’s order, we reverse and remand for further consideration.

In Ground Four, Johnson alleged that his counsel was ineffective for failing to move for an independent toxicology expert on the basis that medical records showed that at the time of the accident Martin was under the influence of cocaine and other drugs, which could have affected his ability to recall events and ability to drive. Johnson attached some of Martin’s medical records from the accident. The hospital discharge summary states that Martin was “cocaine-positive among other drugs” at the time of his admission and that “MHAR was consulted in that regard as well as Psychiatry.” The psychiatric notes indicate a diagnosis of cocaine abuse.

In denying this claim, the postconviction court adopted the State’s response of November 8, 2007. The State asserted the jury was instructed to determine whether Johnson caused or contributed to the victim’s death. It asserted that, as to Martin’s ability to perceive, the record reflects that defense counsel brought out on cross-examination Martin’s driving on a suspended license, the time he had to observe, and that his memory was blurred by the trauma of the crash. It concludes: “Given that the record refutes that Mr. Martin bore sole responsibility as noted supra, the Defendant should not be allowed to advance a hindsight argument that more cross-examination on this subject would somehow have caused a different result.”

We reverse for an evidentiary hearing-on this ground because we are unable to say that there is no prejudice where Johnson alleged that Martin was the only witness to say that Johnson was driving and the jury did not hear that Martin was intoxicated with cocaine and other drugs at the time of the accident. Because this information could have affected the jury’s view of Martin’s ability to recall who was driving Johnson’s vehicle, the State’s response does not conclusively refute the claim.

In Ground Seven, Johnson alleges that his counsel was ineffective in failing to keep out (1) opinion testimony as to who was driving and (2) Johnson’s prior traffic convictions, which were both the subject of motions in limine. The postconviction court’s order addresses only the first part of this claim. The court attached a trial excerpt showing that defense counsel objected and moved for mistrial when a witness gave a nonresponsive answer giving his opinion that Johnson was the driver. This excerpt refutes the allegation that counsel failed to object to the testimony. However, the court’s order does not address the second allegation. Therefore, we reverse for the postconviction court to address the second allegation of Ground Seven.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and KHOUZAM, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Michael RILEY, Appellant, v. Ellen RILEY, Appellee.
    No. 2D08-62.
    District Court of Appeal of Florida, Second District.
    July 10, 2009.

      Jaime L. Wallace and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
    Kathi B. Halvorsen, Sarasota, for Appel-lee.
   SILBERMAN, Judge.

Michael Riley appeals an Order Entry and Final Judgment of Dissolution of Marriage which approves and incorporates the Amended Magistrate’s Decision and Recommended Final Judgment of Dissolution of Marriage. Except to the extent that it dissolves the parties’ marriage, we reverse the appealed judgment based on the magistrate’s denial of the Husband’s motion for a continuance of the final hearing. We remand for a new final hearing, and for purposes of remand we also point out error in the failure to hear objections to the magistrate’s report and recommendations and in the failure to impute any income to the Wife.

In this long-term marriage of twenty-six years, the Wife filed a petition for dissolution of marriage on July 7, 2006. By order rendered on January 5, 2007, the trial court referred the case to a magistrate. The final hearing before the magistrate was set for April 2, 2007. The Husband contends that the magistrate abused her discretion in denying his request for a continuance of the final hearing so that the Husband could retain counsel.

The Husband’s attorney, Ms. Walch, filed her motion to withdraw as counsel on March 5, 2007, based on irreconcilable differences, and the motion reflects service on the Husband on March 2, 2007. On March 7, 2007, the Wife filed a motion to compel regarding a request to produce and asserted that the Husband was “trying to hinder this matter from concluding.” The motion to compel reflected that the Husband’s counsel had filed a motion to withdraw, and the Wife objected “to this matter being delayed as this matter needs to proceed forward. The Husband has ample time to retain alternate counsel should he choose to do so.” The Wife served the motion to compel on the Husband’s counsel. On March 21, 2007, the trial court entered a brief order granting the motion to withdraw as counsel, although it appears that no hearing was held on the motion.

The Husband filed a pro se motion for continuance on March 26, 2007, seeking a continuance “for the purpose of hiring new counsel and preparing for the case.” The Wife filed a response on March 27, 2007, stating that the Husband had ample time to retain new counsel and that the Husband filed the motion for purposes of delay and harassment. Although the Husband did not set his motion for continuance for hearing, the magistrate heard the Husband’s motion on April 2, 2007, before the start of the final hearing. The only testimony regarding the motion was from the Husband.

The Husband testified that there had been “very bad communications” with his former counsel, that she did not discuss the process with him, and that she made “numerous errors in filing.” The Husband explained that he cancelled a mediation in the end of January or beginning of February because they were unprepared and he decided that he would try to work it out with his wife. He assumed that the trial date would be pushed out because the mediation was cancelled. He received a letter on March 26 advising him that his lawyer was withdrawing from the case and that he had a court date on April 2. He called his former lawyer and was advised to file a motion for continuance, and the Husband did so on the same day. He contacted a lawyer referral service and made an appointment with a new attorney, Patricia Kent. She advised him that if the motion for continuance were granted, he could talk to her about representation. The Husband also testified that he got access to the case online and noted that some documents that he had given his former lawyer back in November, such as a financial affidavit, had not been filed. The Husband went to the courthouse on March 28 and filed it.

The Wife’s counsel argued that the case had been going on since July and that the Husband had not complied with discovery. Counsel argued that the Husband had can-celled the mediation and that the trial had been set for three months. Counsel contended that the Husband was aware that trial was coming and that the whole case consisted of “a house, two cars, two Har-leys, one money market and two debts.” The Wife had to incur additional fees because the Husband had not provided documents.

The magistrate denied the Husband’s motion to continue on the following basis: “Well, Mr. Riley, it shows that you knew about Ms. Walch’s withdrawing, that she sent you a copy of the Motion on March 2nd so you’ve had plenty of time to get another lawyer, Sir. You didn’t do it, so I’m denying the Motion. We’re going forward.” The Husband argues that the magistrate’s failure to grant the motion to continue requires reversal. We agree.

Although a trial court has broad discretion in determining whether to grant a motion for continuance, that discretion is not absolute. Neal v. Swaby, 975 So.2d 431, 433 (Fla. 2d DCA 2007). The appellate court considers the following factors in determining whether the trial court abused its discretion in ruling on a motion for continuance: “1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.” Id. (quoting Baron v. Baron, 941 So.2d 1233, 1235-36 (Fla. 2d DCA 2006)).

In Peiman v. Peiman, 829 So.2d 307, 309 (Fla. 5th DCA 2002), the court determined that the denial of a motion for continuance created an injustice for the former husband when his attorney had withdrawn one month before the final hearing. The court explained as follows:

The facts clearly evidenced the Former Husband’s desire to be represented by counsel. The Former Husband had not previously represented himself and there was no indication from the record that he could do so competently. Therefore, the denial of the motion for a continuance created an injustice for the Former Husband.

Id.

Here, the Husband clearly indicated his desire to be represented by counsel by contacting a lawyer referral service the same day he learned that counsel had withdrawn and by meeting with an attorney who would consider representation if a continuance were granted. The Husband had not previously represented himself in court in the divorce proceedings, although he had apparently tried to reach a settlement with the Wife. With respect to whether the Husband could represent himself competently, the Wife complains that the Husband did not set his motion to continue for hearing. However, this seems to support that he did not know how to represent himself competently. Although the Husband managed to try his own case, it was clear that he was not familiar with courtroom procedure. Also, the primary issue that he raised in his objections to the magistrate’s decision, the failure to impute income to the Wife, may have been avoided if the Husband had counsel to represent him at the final hearing. Thus, although the Husband managed to get through the final hearing on his own, the record as a whole reflects that the denial of the motion for continuance created an injustice.

The second factor is whether the cause for the continuance request was unforeseen and not a result of dilatory practices. The magistrate denied the motion based solely on her assessment that the Husband’s former attorney served him with the motion to withdraw on March 2, 2007, as shown on the certificate of service, and that was “plenty of time to get another lawyer” for a trial on April 2, 2007. Although the Wife argued that the Husband engaged in dilatory practices, the Husband’s testimony indicated that any delay may have been caused by former counsel and not the Husband. There was no testimony to the contrary. The Husband testified that he learned that his counsel had withdrawn when he received a “letter” on March 26, 2007. We do not know if this was the court order entered on March 21, 2007, or perhaps a letter from his former counsel. But based on the Husband’s testimony, he had only seven days’ notice that he was without counsel. Even based on the certificate of service on the former counsel’s motion to withdraw, the Husband had under a month’s actual notice that counsel was seeking to withdraw from his case. Counsel served the motion by mail, and the record does not show when the Husband received the motion. The Husband unsuccessfully attempted to retain an attorney for the final hearing as soon as he learned that the court granted the motion to withdraw. We cannot say that the Husband ignored a foreseeable circumstance, and the record does not reflect that the continuance request was made for purposes of delay.

With respect to the third factor, the Wife argued that she would be prejudiced because the final hearing had been set for three months. In Neal, this court recognized that “it is undoubtedly inconvenient and sometimes costly to appear for a hearing that is continued,” but “those practical concerns certainly must yield” in appropriate circumstances. 975 So.2d at 434. Nothing in our record indicates that the Wife would have suffered prejudice and injustice if the motion were granted to allow the Husband to retain counsel for a proceeding that would result in the equitable distribution of assets and liabilities and the award of alimony.

Therefore, we determine that the magistrate abused her discretion in denying the motion to continue. Accordingly, we reverse the appealed judgment, except to the extent that it dissolves the parties’ marriage, and remand for a new final hearing. For purposes of remand, we discuss the other two issues that the Husband raises on appeal.

The Husband correctly contends that the trial court erred in refusing to hear his exceptions to the magistrate’s report and recommendations. The magistrate entered her report on April 23, 2007, and it was filed on April 24, 2007, so at the earliest the report was mailed to the Husband on April 23, 2007. The Husband, acting pro se, served his exceptions (which he called objections) on May 8, 2007. The trial court determined that the Husband’s exceptions were untimely filed and refused to hear them.

A trial court must hear timely filed exceptions to a magistrate’s report. See Fla. Fam. L.R.P. 12.490(f); Betz v. Betz, 790 So.2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, “The parties may serve exceptions to the report within 10 days from the time it is served on them.” Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate’s report was served on him by mail. See Werntz v. Floyd, 814 So.2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So.2d 639, 640 n. 1 (Fla. 3d DCA 1991). In fact, the Wife cites Werntz in her answer brief and recognizes that the Husband was allowed the additional five days to serve his exceptions.

The time to serve the exceptions began to run on April 24, 2007, the day after the earliest date the report could have been served on the Husband. See Fla. R. Civ. P. 1.090(a); Palmer, 582 So.2d at 639-40. The Husband timely served his exceptions on May 8, 2007, the fifteenth day after April 23, 2007. Thus, the trial court should have considered the Husband’s exceptions before it entered the final judgment. See Betz, 790 So.2d at 1130.

The Husband also contends on appeal that the trial court erred in its alimony award to the Wife by failing to impute any income to her. The Husband does not dispute the court’s decision to award permanent alimony in this marriage of twenty-six years, and the Husband does not dispute the finding that the Wife has a need of $3000 per month. Rather, he eon-tends that the trial court should have imputed at least a minimum wage income to the Wife if the court did not impute the starting salary for a teacher.

“A court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts.” Koeppel v. Holyszko, 643 So.2d 72, 75 (Fla. 2d DCA 1994). In Koeppel, this court affirmed the imputation of $630 per month income for child support purposes to a husband who had not worked in many years but was “an able-bodied, college educated man.” Id. Although it appeared “that the husband could earn substantially more than minimum wage,” this court explained that “the trial court did not have an employment history on which to base imputation of a larger monthly amount.” Id.; see also Solomon v. Solomon, 861 So.2d 1218, 1220 (Fla. 2d DCA 2003) (“In imputing income, the court must consider recent work history as well as occupational qualifications and prevailing earnings.”).

In Kreisler v. Kreisler, 752 So.2d 1288, 1289 (Fla. 5th DCA 2000), the Fifth District vacated an alimony award and remanded for the trial court to reconsider the amount of alimony after imputing income to the wife. The parties had been married for twenty years, their children had almost reached majority, and the wife had a college degree but did not work during most of the marriage. The appellate court determined that “at least a minimum wage amount of income should have been imputed to” the wife. Id. In Bracero v. Bracero, 849 So.2d 388 (Fla. 5th DCA 2003), the Fifth District determined that the trial court committed reversible error in failing to impute at least minimum wage to the wife for purposes of determining the alimony award. The trial court had found that the wife could be working even though she did “not have significant recent gainful employment.” Id. at 389.

Here, the Wife was fifty-two years old and in good health at the time of the final hearing. She has a bachelor’s degree in education but has never worked as a teacher. The trial court adopted the magistrate’s finding that the Wife had worked part time for six years earlier in the marriage and that more recently she worked part time for three months at a craft store. The magistrate had also found, “There was no testimony what Wife’s earning capability was, if anything at all. She testified that she has no plan to go to work. The Husband supported her stay-at-home status during the marriage.”

The record reflects that the Wife had worked part time in the past and could earn minimum wage, and the parties acknowledged that the Wife could work part time. The Wife testified that she “could probably” do part-time work but would not accept a full-time job. Further, although the Wife stayed home to raise the parties’ children, they are all adults now. Based on this record, the trial court should have imputed at least a part-time income of minimum wage to the Wife. Because we are reversing and remanding for a new final hearing, the trial court shall reconsider the imputation of income based on the circumstances presented at the hearing on remand.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and LaROSE, JJ., Concur.


text:
    V.J.V., a child, etc., et al., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 5D09-630.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2009.
    Thomas Wade Young, of Dempsey & Associates, P.A., Winter Park, and Kira Romero-Craft, Orlando, for Petitioner, V.J.V.
    Annette Lizardo, Orlando, for Petitioner, Guardian ad Litem.
    Thomas Paul Turcotte and Jeffrey Dana Gillen, for Respondent, Department of Children and Families.
   PER CURIAM.

The Petitioner, V.J.V., a child [“the Child”], seeks certiorari review of an order in a dependency case directing the Respondent, Florida Department of Children and Families [“DCF”], to start the process of sending the Child back to Guatemala (changing her case plan goal from a permanent planned living arrangement to reunification with her adoptive parents in Guatemala). DCF concedes that the trial court departed from the essential requirements of the law in entering the order. We grant the petition and quash the order.

In this petition, the Child, through her attorney ad litem, argues that the order violated several clearly established principles of law: 1) the trial court improperly relied on unverified information obtained through ex parte communication with an unidentified witness, 2) the order, which represents a change in the Child’s case plan goal and change of custody, is not supported by competent evidence, and the trial court failed to make any specific findings of fact or conclusions of law, and 3) the trial court improperly allowed the Child’s immigration status to affect the dependency proceedings. In response to the certiorari petition, at DCF’s request, we relinquished jurisdiction to the lower tribunal for reconsideration of the order. The assigned judge recused himself from the case and another judge was assigned. DCF has now advised that the successor judge has declined to reexamine the issue.

Accordingly, we grant certiorari and quash the order requiring DCF to start the process of sending the Child back to Guatemala. The currently assigned judge shall proceed without reference to the quashed order.

WRIT GRANTED; ORDER QUASHED.

GRIFFIN, TORPY and COHEN, JJ„ concur.

      . This case was filed as a direct appeal but has been treated as a certiorari petition by this Court.