text:
    STATE of Florida, Appellant, v. Lisa WOMACK, Chief of the Lakeland Police Department; Ann Dinges, Lakeland Police Department Public Information Officer; Roger Mallory, Lakeland Police Department General Counsel; Doug Thomas, City Manager of the City of Lakeland, Florida; and Gow Fields, Mayor of the City of Lakeland, Florida, Appellees.
    No. 2D13-1925.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Jerry Hill, State Attorney, and Victoria J. Avalon, Assistant State Attorney, Bar-tow, for Appellant.
    Robert E. Puterbaugh and Stephen Senn of Peterson & Myers, P.A., Lake-land, for Appellee Lisa Womack.
    Gary R. Trombley and Matt Luka of Trombley & Hanes, P.A., Tampa, for Ap-pellee Ann Dinges.
    Roger Mallory, pro se.
    Mark N. Miller, Kristie Hatcher-Bolin, and James C. Sidou of GrayRobinson, P.A., Lakeland, for Appellees Gow Fields and Doug Thomas.
    Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Amicus Curiae Citizens for Sunshine, First Amendment Foundation; and Maria Kayanan, Miami, for Amicus Curiae American Civil Liberties Union of Florida.
   PER CURIAM.

The State appeals a trial court order repressing a grand jury presentment after five parties argued various parts of the presentment should be expunged or repressed. These parties include: Lisa Womack, Chief of the Lakeland Police Department (LPD); Ann Dinges, former LPD Public Information Officer; Roger Mallory, LPD General Counsel; Doug Thomas, City Manager of Lakeland, Florida; and Gow Fields, Mayor of Lakeland, Florida. Because all of the expunged statements are lawful and proper, we reverse.

I. Legal Framework

“The question of whether statements in a presentment must be expunged, because they are unlawful or improper, is a question of law, not fact. Therefore, the trial court’s action is subject to plenary review by this court.” In re Grand Jury Investigation of Fla. Dep’t of Health & Rehabilitative Servs., 659 So.2d 347, 349-50 (Fla. 1st DCA 1995). Our review is limited to the content of the four corners of the presentment. Id. at 349 (“The factual foundation requirement does not ... require a circuit court to review the evidence presented to the grand jury. It is sufficient if the grand jury’s comments have a factual foundation in the presentment itself. In other words, the grand jury’s factual findings are not themselves subject to reversal.”). As such, no deference is given to the trial court’s ruling.

At issue in this case is the application of section 905.28(1), Florida Statutes (2012), which provides:

A report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

As both parties acknowledge, Miami Herald Publishing Co. v. Marko, 352 So.2d 518 (Fla.1977), provides important insight into how courts should apply section 905.28. Section 905.28 provides individuals who “may be exposed to criticism, scorn, or recommendations unfavorable to their reputation” a means to prevent publication of a presentment. Id. at 520. This danger alone, however, does not justify ex-punction or repression.

After all, a grand jury’s power to investigate “specific instances of criminality or general activities of public institutions and personnel” is broad. Id. at 521.

Our grand juries have ... the right to express the view of the citizenry with respect to public bodies and officials in terms of a “presentment”.... It is inevitable under these circumstances that public officials will be subject to criticism and that, at a minimum, their private reputations will be exposed to opprobrium.

Id. at 522, 523 (“[A] grand jury may legally recommend the removal of public officials.”). Understanding this risk, the people of the State of Florida have continued to employ the grand jury as an investigative tool — the only limitation being that a grand jury’s report must be lawful and proper. See id. at 523 (acknowledging “the public’s general right to know”).

As the Florida Supreme Court previously stated:

A society governed by representative officials concomitantly requires citizen review of public action. The grand jury has proven a most effective and reliable mechanism for that purpose....
The benefits to be derived from this extraordinary exercise in citizen participation would be severely limited if the fruits of that activity were not available to the public on whose behalf it is undertaken. Implicit in the power of the grand jury to investigate and expose official misconduct is the right of the people to be informed of its findings.

Id. (footnote omitted). We reiterate, the “right of the people to be informed” is an important and necessary aspect of representative government. Id.

Returning to the specific limitations placed on grand jury authority:

[C]omments in a grand jury report are “lawful” if they are made by an otherwise legally constituted grand jury on a matter which the grand jury is legally empowered to investigate.... [C]om-ments in a grand jury report are “proper” if they have a “factual foundation in, and [are] germane to, the scope of proceedings for which the grand jury was convened.”

Malcolm Pirnie, Inc. v. Monroe Cnty. Grand Jury Report, Fall Term, 1987, 558 So.2d 139, 140 (Fla. 3d DCA 1990) (quoting Moore v. 1986 Grand Jury Report, 532 So.2d 1103, 1105 (Fla. 3d DCA 1988)). As noted above, it is lawful for grand juries to investigate the general activities of public institutions and personnel. Compare In re Grand Jury (Freeport Sch. Project) Winter Term, 1988, 544 So.2d 1104, 1106 (Fla. 1st DCA 1989) (“Grand jury investigations may ... encompass investigations of the actions of public bodies and officials in the use of public funds, including reporting or presenting findings and recommendations as to practices, procedures, incompetency, inefficiency, mistakes and misconduct involving public offices and monies.”), with Kelly v. Sturgis, 453 So.2d 1179, 1182 (Fla. 5th DCA 1984) (“Section 905.28 ... does not authorize or legitimize a grand jury making an unfair commentary as to the actions or motives of a purely private citizen .... ”)• And if any fact supports a comment relevant to a lawful investigation, it should not be expunged or repressed. See Freeport Sch. Project, 544 So.2d at 1107.

It makes sense not to be overly rigid when evaluating factual support in the context of a grand jury presentment because of the confidentiality concerns underlying grand jury proceedings. See § 905.27. Consequently, as we evaluate factual findings in the presentment we remain mindful that it would not be appropriate to require complete disclosure of all of the sources and materials used by the grand jury to arrive at its findings, as a prerequisite to allowing those findings to stand. This is consistent with the court’s approach in Malcolm Pirnie, Inc. In that case the appellant argued, in part, that the following statements were conclusions or recommendations subject to the court’s review:

The grand jury ... found that as part of [a] study, MPI, as well as the city, erred in not examining the costs of a landfill operation and comparing them to the costs of an incinerator system. [Also,] ... MPI’s reports to the city on the incinerator project constituted a misrepresentation of the financial consequences accompanying the incinerator project.

558 So.2d at 140-41. The court found these statements were “findings of fact ... not subject to review....” Id. at 141.

II. Analysis

The presentment in this case reports a grand jury’s findings after an investigation into “the procedures by which the Lakeland Police Department collects, keeps, and disseminates public information.” The grand jury also “reviewfed] the hiring, training, evaluation, and retention of Lakeland Police Department employees who [were] responsible for public information, including Chief Lisa Womack and Public Information Officer Ann Dinges.” These are matters the grand jury was legally empowered to investigate. Therefore, each comment in the presentment with a factual foundation that is germane to this scope of inquiry is necessarily proper.

Having established the purpose for which the grand jury was lawfully assembled, we note at the outset that the trial court erred in ordering any expunctions. And, although numerous expunctions were ordered, many of them stem from a few discrete errors. As a result, we write only to address five of the issues raised by this appeal.

First, the trial court incorrectly concluded that the grand jury “understood the principle behind the public records laws, that of open government[,] but misconstrued or misunderstood the law itself that is permissive in some respects regarding release of public records .... ” Presumably, this assumption stemmed from the trial court’s failure to identify the broad scope of the grand jury’s investigation, instead limiting it to compliance with public records laws. The grand jury’s investigation was much broader, as outlined above. In this context, grand jury criticism of LPD that is not rooted in an established violation of the law is not an indication the grand jury misunderstood the law itself. Rather, it is an indication that the scope of inquiry extended beyond explicitly illegal conduct.

Also, comments pertaining to LPD’s failure to provide the public with “information” and “public information” are germane. These comments match up precisely to the stated scope of inquiry, and they fall well within the grand jury’s authority to “report[ ] or present[ ] findings and recommendations as to practices, procedures, incompetency, inefficiency, mistakes and misconduct involving public offices and monies.” Freeport Sch. Project, 544 So.2d at 1106.

Similarly germane are comments in the presentment regarding LPD’s relationship with the media. The grand jury was not strictly limited to investigating compliance with public records laws; the investigation focused more broadly on LPD’s public information practices. As a result, it is relevant to the grand jury’s investigation that media outlets — one of the public’s most reliable sources of information about government — find it extremely difficult to get information from LPD.

Additionally, statements in a presentment about public personnel should not be expunged because a court concludes they are “unnecessary.” In this case, the trial court expunged the following statements on this basis: “Ann Dinges often lists Lisa Womack as her emergency contact when that information is needed”; “Dinges is known for not returning phone calls, not returning emails and not answering or returning calls on the media line”; Dinges’ annual salary; and the fact that Dinges is “known to travel quite often,” despite the fact that she “has only been an employee of LPD for just over a year.”

Although the trial court pulled the word “unnecessary” from Freeport School Project, necessity is not a precise way to describe the inquiry required by section 905.28(1). The inquiry required by section 905.28(1) requires that statements be germane but not absolutely indispensible, as suggested by use of the word unnecessary. To the extent a necessity requirement may be appropriate, it is applicable when evaluating comments in a presentment about purely private citizens. See Kelly, 453 So.2d at 1182 (“[T]he public interest is properly served by an accurate report as to whatever is found to be true without comment on the actions or motives of private citizens that are not a necessary part of the findings relating to the public officials.” (emphasis added)). Here, all of the comments are about LPD’s former public information officer and chief of police, not private citizens.

Finally, a number of statements were expunged because they purportedly lack a factual foundation. These statements include the following: Womack “has created a hostile environment at LPD”; “[i]f anyone upsets or crosses Dinges, they also upset and cross the Chief’; Womack’s initial rank during the hiring process; and comments about the “questionable and unknown circumstances” of Womack leaving her previous position in Elgin, Illinois. All of these statements are themselves factual findings not subject to review. See Malcolm Pirnie, Inc., 558 So.2d at 141.

III. Conclusion

For these reasons, we conclude the expunged statements are lawful and proper. Therefore, the order repressing the presentment is reversed. The case is remanded with instructions that the presentment be made public in its entirety.

Reversed and remanded with instructions.

NORTHCUTT, KHOUZAM, and CRENSHAW, JJ., Concur.

      . Portions of the presentment discussing Mr. Mallory were repressed because the trial court found that the numerous other expunc-tions so changed the presentment that it needed to be repressed in its entirety. The trial court did not find comments regarding Mr. Malloiy to be independently unlawful or improper.

      . A comment that "the person who previously held Dinges’ position at LPD was also the department crime analyst and was responsible for the department website” was expunged on the same basis.

      . The same rationale resulted in the expunction of a finding that "Dinges is woefully unqualified.” It served as a secondary basis for expunging comments about Dinges' travel and time off.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tywann O. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5695.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2013.
    Nancy A. Daniels, Public Defender, Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief-Criminal Appeals, Brittany Ann Rhodaback and Giselle D. Lylen, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Jenkins v. State, 107 So.3d 560 (Fla. 1st DCA 2013).

THOMAS, RAY, and MAKAR, JJ., concur.


author: WARNER, J.

text:
    Aristides SUAREZ, Appellant, v. TRANSMONTAIGNE SERVICES, INC. and Transmontaigne Product Services, Inc., successor in merger to Transmontaigne Transport, Appellees.
    No. 4D12-333.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.

      Susan S. Lerner and Elizabeth K. Russo of Russo Appellate Firm, P.A., and Stokes & Gonzalez, PA., Miami, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellees.
   WARNER, J.

Aristides Suarez, the plaintiff below, appeals a final summary judgment for Tran-smontaigne Services, Inc. (“TSI”). The trial court found TSI immune from appellant’s negligence claim under the Florida worker’s compensation act because appellant was acting as TSI’s “borrowed servant.” Because there are material issues of fact as to the relationship of appellant to TSI, we reverse.

Appellant was employed by Gonzalez & Sons Equipment, Inc., a Miami-based contracting company that provides workers for Port Everglades. Appellant was injured while working at Port Everglades. According to appellant, a TSI employee negligently operated a boom truck owned by Transmontaigne Product Services, Inc. (“TPSI”), causing appellant to be seriously injured by an industrial hose. Gonzalez & Sons provided appellant with worker’s compensation benefits related to his accident. Appellant then sued TSI and TPSI for damages. Both answered, and TSI asserted worker’s compensation immunity as an affirmative defense based upon the borrowed servant doctrine. TSI moved for summary judgment on that ground. After an extensive hearing and the production of depositions, affidavits, and other discovery, the trial court granted the motion, entering judgment for TSI. Appellant appeals the summary judgment.

An order granting summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Martins v. MRG of S. Fla., Inc., 112 So.3d 705, 707 (Fla. 4th DCA 2013). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia Cnty., 760 So.2d at 130. “It is the burden of the moving party to conclusively prove that no genuine issue of material fact exists.” Martins, 112 So.3d at 707 (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999)). In reviewing an order granting summary judgment, the evidence should be viewed in the light most favorable to the party against whom summary judgment was granted. See, e.g., St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So.2d 1283, 1286 (Fla. 4th DCA 2007).

Where an employee covered by the worker’s compensation act is injured on the job, the employee’s sole remedy against his employer is through the provisions of the act. His employer is immune from negligence claims arising out of the same injury. § 440.11(1), Fla. Stat. (2012). Where an employee works for one employer, known as his general employer, another entity may still have immunity from a negligence claim as the employee’s special employer. Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98, 100-01 (Fla.1971); Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994). To obtain immunity, the special employer must establish that the employee was acting as the special employer’s “borrowed servant” at the time of the work-related injury. Sagarino, 644 So.2d at 165.

“[T]here is a presumption that the employee is not a borrowed servant, but instead continues to work for and be an employee of the general employer.” Id. at 165 (citing Shelby Mut. Ins. Co., 246 So.2d at 101) (emphasis added); see also Smith v. Greg’s Crane Serv., Inc., 576 So.2d 814, 816-19 (Fla. 4th DCA 1991) (reaffirming the presumption and discussing how it developed in Florida case law). To overcome this presumption, the employer must establish the following elements:

(1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer.

Biggins v. Fantasma Prods., Inc. of Fla., 943 So.2d 952, 957 (Fla. 4th DCA 2006) (citing Sagarino, 644 So.2d at 165). The critical element is the existence of the contract for hire; the remaining factors are indicia of such a contract. Id. at 957. “The question of whether there exists an employer/employee relationship is normally reserved for the jury to determine.” Sagarino, 644 So.2d at 164. “Since the contract to be proved is frequently an implied one, factors showing a consensual relationship [between the special employer and employee] such as benefit, right of control and payment of compensation, must be considered.” Shelby, 246 So.2d at 101.

The special employer must show “ ‘deliberate and informed consent by the employee’ to the contract.” Biggins, 943 So.2d at 957 (quoting Sagarino, 644 So.2d at 165). See also Pepperidge Farm, Inc. v. Booher, 446 So.2d 1132, 1132 (Fla. 4th DCA 1984) (“We similarly place great reliance on the presence of a definite arrangement between the general and special employers ... and the employee’s knowledge thereof.”), approved by Booher v. Pepperidge Farm, Inc., 468 So.2d 985, 985-86 (Fla.1985). Courts have required this because, by entering such an employment contract, the employee effectively waives the right to sue the special employer for common law negligence due to the immunity provisions of the worker’s compensation act. See Crawford v. Fla. Steel Corp., 478 So.2d 855, 859 (Fla. 1st DCA 1985) (“[C]ourts have usually been vigilant ,in insisting upon a showing of a deliberate and informed consent by the employee before an employment relationship will be held a bar to common-law suit.”); Shelby, 246 So.2d at 100-01 (same, quoting 1A Larson, Workmen’s Compensation, § 48.10 (1967)).

Applying this law to the facts on summary judgment in this case, there remain disputed issues of fact as to whether appellant was acting as the borrowed servant of TSI. In large part, the facts are convoluted as to who employed whom in the work being done at the port.

Port Everglades is owned and operated by various corporate entities associated with a national company called Transmont-aigne, Inc. TSI and TPSI are both subsidiaries of Transmontaigne, Inc. TPSI owns all of the “rolling stock” at the port, including boom trucks and transport trucks. TSI employs the “operational” workers at the port. The terminal real estate and the fuel storage tanks at the port are owned by an entity called Tran-smontaigne Partners, LP, which is not a subsidiary of Transmontaigne, Inc. and is not a party to this lawsuit. Another entity that is not a party to this lawsuit, Tran-smontaigne, GP, LLC, pays Gonzalez & Sons an hourly rate for its employees’ work at the port.

According to the record, Karl Bernard, a Transmontaigne representative, and Juan Carlos Gonzalez, president of Gonzalez & Sons, would hold a yearly meeting to determine how many workers were needed at Port Everglades, and Gonzalez & Sons would verbally agree to provide these workers. Neither Bernard nor Gonzalez were sure which Transmontaigne corporate entity was negotiating this verbal agreement. Bernard testified that he was “not certain on the relationship between Gonzalez [& Sons] and exactly which entity was contracted for those services.” When asked whether Gonzalez & Sons had a relationship with TSI, Bernard stated, “[n]o, I don’t believe so.” Bernard’s testimony was also somewhat ambiguous as to which entity employs him. Although he testified that he was TSI’s southeast regional manager, he agreed he was listed on an interrogatory as southeast area manager for the stand-alone company Tran-smontaigne Partners, LP. He explained, “Transmontaigne Partners, LP owns the terminal assets and I manage those terminal assets.”

Gonzalez at first testified that he thought Gonzalez & Sons’ verbal agreement was with TPSI, not TSI. Ultimately, he concluded that he just knew the entity as “Transmontaigne.” According to Gonzalez & Sons’ records, Gonzalez & Sons was being paid for appellant’s work at the port by an entity called Transmontaigne GP, LLC. Although TSI argues that the agreement must have been with TSI because Bernard worked for TSI, Bernard’s testimony on this point was ambiguous and he at one point denied that the agreement was with TSI. While the evidence established that there was a verbal agreement between Gonzalez & Sons and some Tran-smontaigne entity regarding appellant’s work at the port, it did not establish conclusively that the agreement was with TSI.

Appellant filed an affidavit opposing summary judgment stating that he was not aware of a company called TSI and that he had no idea of a contract for his services between Gonzalez & Sons and TSI or “any Transmontaigne entity.” During his deposition, he admitted that he knew he was “working doing jobs for Transmontaigne” at the port and was aware that, although he was working for Gonzalez & Sons, “the service was for Transmontaigne.” He did not know the difference between the Tran-smontaigne corporate entities, stating, “I just know Transmontaigne.” On cross-examination, he admitted that he was aware that “Transmontaigne” was paying Gonzalez & Sons for his services in some manner.

TSI argues that appellant’s consent to employment with TSI can be inferred from his acceptance of TSI’s direction and control. We rejected this proposition in Big-gins, and held that acceptance of direction from an alleged special employer is not sufficient, by itself, to establish that the employee consented to a contract for hire. 943 So.2d at 958 (relying on Austin v. Duval Cnty. Sch. Bd., 657 So.2d 945, 950 (Fla. 1st DCA 1995)).

TSI seems to ignore the confusion regarding which employee worked for which Transmontaigne entity, and contends that they all worked on the same projects. It wishes to disregard the separate entities involved in work at Port Everglades and simply construes the evidence as showing that the employees all worked for TSI and not for any other entity. Yet the evidence is not conclusive that all employees worked for TSI. Nor is it conclusive that it was TSI employees who exercised direction and control over appellant, or the extent of that direction and control.

Given the presumption that appellant was not a borrowed servant, see Greg’s Crane Serv., 576 So.2d at 816-19, and the fact that TSI had the burden to establish a record devoid of material factual disputes, see Martins, 112 So.3d at 707, the trial court erred in entering summary judgment for TSI. It is not clear which Transmont-aigne entity contracted for appellant’s ser.vices, supervised him, or benefited from his work. It is also unclear whether TSI had the power to control the details of appellant’s work, as there was testimony that appellant was partly supervised by Gonzalez & Sons’ employees. We therefore reverse and remand for further proceedings.

STEVENSON and GERBER, JJ., concur.


text:
    BOYI, LLC and Eduardo Bozo, Appellants, v. PREMIERE AMERICAN BANK, N.A., n/k/a Florida Community Bank, N.A., Appellee.
    No. 4D12-2084.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Tony Lee Stabenow of The Stabenow Law Firm, PLLC, Miami, for appellants.
    Kelly Brooks Smith and Paul D. Friedman of Friedman & Frost, P.L., Miami, for appellee.
   PER CURIAM.

Appellants, BOYI, LLC and Eduardo Bozo, appeal two orders of the trial court entered after the appellants defaulted on a commercial loan. One order reinstated a default final judgment against appellants and in favor of appellee, Florida Community Bank, N.A. The other order denied appellants’ subsequent motion to quash service of process and vacate the default final judgment, which the appellants had filed within ten days of the final judgment’s reinstatement. Although a number of appellate issues were raised as to these two orders and the default final judgment entered, we find only one issue worthy of comment.

Appellants contend the trial court erred by failing to vacate the portion of default final judgment which awarded un-liquidated damages in the amount of $2,845.00 because the Bank failed to provide the required thirty-day notice for a trial on such damages under Florida Rule of Civil Procedure 1.440(c). Appellants allege they were not afforded the opportunity to be heard regarding these damages, nor did the court require proof of said damages from the appellees before the court’s entry of the final judgment. Ap-pellees concede error on this point. We agree and reverse.

As this court stated in Minkoff v. Caterpillar Financial Services Corp., 103 So.3d 1049 (Fla. 4th DCA 2013):

“A default admits a plaintiffs entitlement to liquidated damages under a well-pled cause of action, but not to un-liquidated damages.” Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006) (citing Bowman v. Kingsland Dev., Inc., 432 So.2d 660 (Fla. 5th DCA 1983)). As a result, “ ‘[a] defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliquidated damages.’ ” Id. (quoting Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994)). “[D]amages are not liquidated if a court must consider testimony or evidence ‘to ascertain facts upon which to base a value judgment.’ ” Id. (quoting Bowman, 432 So.2d at 662).

103 So.3d at 1051.

Although the portion of the final judgment awarding unliquidated damages should be vacated, the remainder of the final judgment that included liquidated damages is not void for lack of proper notice. See Sarasota Estate & Jewelry Buyers, Inc. v. Joseph Gad, Inc., 25 So.3d 619, 621 (Fla. 2d DCA 2009) (“While the trial court may award liquidated damages without notice, it is fundamental error for the court to award unliquidated damages without providing the required notice and without requiring proof of damages.”); Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 666 (Fla. 3d DCA 2007) (“An error in notice, however, does not void the entire judgment, only that portion awarding unliquidated damages.”).

Therefore, that portion of the final judgment awarding unliquidated damages is reversed, and the matter is remanded to the trial court for an evidentiary hearing on the amount of such damages only. We affirm on all other issues raised.

Affirmed in part, Reversed in part, and Remanded.

STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Deborah MULLIGAN, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D12-2555.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Paul B. Feltman of Alvarez, Carbonell, Feltman, Jimenez & Gomez, PL, Coral Gables, for appellant.
    Kara Berard Rockenbach and David A. Noel of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges a final order dismissing her amended complaint against State Farm, her insurance company, with prejudice. The trial court granted State Farm’s motion to dismiss, which argued that the statute of limitations had expired on the action. Appellant had filed no written response to the motion and did not appear at the hearing. Although, in its order dismissing the complaint, the trial court noted that appellant’s attorney did not appear at the hearing, it did not enter a dismissal because of the non-appearance. It granted the motion with prejudice. Therefore, we conclude that the court ruled on the merits, and we affirm.

Appellant filed a motion for rehearing attempting to show excusable neglect for her counsel’s non-appearance, but the motion did not address the substance of the motion to dismiss or argue that the statute of limitations would not apply. See Acosta v. Deutsche Bank Nat’l Trust Co., 88 So.3d 415, 417 (Fla. 4th DCA 2012) (party seeking relief from judgment must demonstrate a meritorious defense). It also was not supported with counsel’s affidavit explaining the scheduling conflict that allegedly resulted in counsel’s nonappearance. Excusable neglect must be supported by sworn motions or affidavits. See DiSarrio v. Mills, 711 So.2d 1355, 1356-57 (Fla. 2d DCA 1998) (failure of attorney to attest, in sworn motion or testimony, to scheduling conflict resulted in insufficient evidence of excusable neglect). A paralegal’s affidavit was attached, but in that affidavit she simply relates that counsel told her that he had been overbooked. She did not state that she had done his scheduling. The trial court also knew that this was the second hearing at which counsel had failed to appear, the first resulting in the dismissal of appellant’s first complaint.

Even if there were excusable neglect in counsel’s failure to appear at the hearing, appellant’s arguments against the application of the statute of limitation, which she makes in her brief on appeal, were not preserved. See generally Aills v. Boemi, 29 So.3d 1105, 1108-10 (Fla.2010) (errors not raised in the trial court are not properly preserved for appeal); see also Vorbeck v. Betancourt, 107 So.3d 1142, 1148 (Fla. 3d DCA 2012) (affirming dismissal with prejudice because appellants had not argued below that dismissal should be without prejudice); Metro. Cas. Ins. Co. v. Tepper, 969 So.2d 403, 405 (Fla. 5th DCA 2007) (finding appellant waived argument made on appeal because it did not present the issue at the dismissal hearing or in its motion for rehearing). Without a meritorious substantive ground for setting aside the order of dismissal, properly raised in the trial court, appellant has failed to meet the standard for relief based upon excusable neglect.

Affirmed.

STEVENSON and GERBER, JJ., concur.

      . In .her brief, the appellant interprets the handwritten language in the order as stating, "The court rules that the plaintiff's counsel failed to appear.” The order, instead, states, "the court notes that the plaintiff's counsel failed to appear.” This discrepancy is not determinative; however, we would caution that writing should be completely legible for appellate review.


text:
    BROWARD COUNTY, a political subdivision of the State of Florida, Appellant, v. 8705 HAMPSHIRE DRIVE CONDOMINIUM, INC., Appellee.
    No. 4D11-4730.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Scott M. Behren of Behren Law Firm, Weston, for appellant.

      John S. Bernstein of Tucker and Tighe, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the final summary judgment denying foreclosure of a mortgage based upon the running of the statute of limitations. Appellant, Broward County, sought to foreclose its mortgage with ap-pellee on the grounds that appellee breached a covenant in the mortgage. This covenant obligated appellee to comply with certain reporting requirements of the program under which the promissory note and mortgage were given. The mortgage contained a specific clause allowing acceleration based upon breach of the reporting covenants. It also required the county to notify the appellee if the county exercised its option to accelerate the note.

The county made a written demand for the reporting information in July 2003, and the five-year statute of limitations began to run on that date. The county complied with the notification provision for breaches occurring prior to July 2003. However, the county did not file a cause of action based upon the breach of the reporting covenant until October 2009, and the five-year statute of limitations had expired in July 2008. See § 95.11(2)(b) and (c), Fla. Stat. (2009).

Nevertheless, the reporting requirements are continuing duties under the mortgage, and a subsequent breach of those duties could trigger another demand by the county to cure the default in accordance with the terms of the mortgage or face acceleration. Cf. Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931, 933 (Fla. 5th DCA 1980) (statute of limitations can run at different times from different installment obligations under note). Our affirmance is therefore without prejudice to a subsequent foreclosure action alleging future breaches of the covenants at issue in this case, if they occur and if the county provides proper notice of acceleration in accordance with the mortgage terms.

Affirmed.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. Major WILLIAMS, Appellee.
    No. 4D12-1046.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Adam J. Stallard, Tallahassee, for appellant.
    Floyd Faglie of Staunton & Faglie, PL, Monticello, for appellee.
    Steven E. Quinnell of Quinnell Elder Law Firm, Pensacola, for Amicus Curiae Academy of Florida Elder Law Attorneys.
    Pamela Jo Bondi, Attorney General, Louis F. Hubener and Rachel E. Nordby, Tallahassee, for Amicus Curiae State of Florida.
   PER CURIAM.

The Agency for Health Care Administration appeals an order limiting its Medicaid payments lien on appellee’s personal injury settlement to amounts allocated to medical expenses based upon an allocation formula asserted by appellee, rather than on the default allocation provision of section 409.910(ll)(f), Florida Statutes (2012). In Roberts v. Albertson’s Inc., 119 So.3d 457 (Fla. 4th DCA 2012), we recently addressed the precise issue of how the statutory provision should be applied. There we held that “a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.” Id. at 466. After our original opinion was issued, the U.S. Supreme Court held that state statutes containing default allocation formulas for Medicaid reimbursement are pre-empted by federal law to the extent that they can be categorized as conclusive presumptions. See Wos v. E.M.A. ex rel. Johnson, — U.S. —, 133 S.Ct. 1391, 1398, 185 L.Ed.2d 471 (2013). Roberts is consistent with Wos.

We reverse the trial court’s order, concluding that it did not hold an evidentiary hearing prior to adopting the allocation formula it used. Both Roberts and Wos emphasize the fact that the allocation must be based upon evidence.

Reversed and remanded for further proceedings.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Asley ESPUTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2538.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Asley Espute, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Moore v. State, 634 So.2d 214, 215 (Fla. 4th DCA 1994).

DAMOORGIAN, C.J., GERBER and FORST, JJ., concur.


text:
    Evelyn BRYAN, Appellant, v. COUNTRYWIDE HOME LOANS SERVICING, LP, n/k/a BAC Home Servicing, LP, Appellee.
    No. 4D12-1418.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.

      S. Tracy Long of Law Offices of S. Tracy Long, P.A., Deerfield Beach, for appellant.
    Elizabeth T. Frau of Ronald R. Wolfe & Associates, P.L., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010).

WARNER, CONNER and FORST, JJ., concur.


text:
    Angelo A. BLANCO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-648.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

MAY, LEVINE, CONNER, JJ., concur.


text:
    Larry MEDLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2451.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Larry Medlock, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011); Davis v. State, 100 So.3d 224 (Fla. 4th DCA 2012).

WARNER, STEVENSON and LEVINE, JJ., concur.


author: CASANUEVA, Judge.

text:
    Donald McKEE, Appellant, v. Esther JACOBO, As Interim Secretary, Department of Children & Family Services, Appellee.
    No. 2D11-6248.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
    Donald McKee, pro se.
    Gregory D. Venz, Assistant General Counsel, Department of Children & Family Services, Tallahassee, for Appellee.
   CASANUEVA, Judge.

Donald McKee, an involuntarily committed sexually violent offender, is presently in the custody of appellee, Esther Jacobo, as Interim Secretary of the Department of Children & Family Services (DCF). He is being held at the Florida Civil Commitment Center, which is operated by a private enterprise under the auspices of DCF. Having a myriad of complaints pertaining to both the quality and quantity of the rehabilitative services and treatment that the for-profit operator of the facility provides him and others similarly detained, he filed a petition seeking the issuance of a writ of habeas corpus pursuant to section 394.9215, Florida Statutes (2011). The circuit court concluded that a habeas petition was not the proper vehicle for Mr. McKee to seek relief because he was not requesting release from confinement. Instead, the circuit court deemed his petition as one seeking a writ of mandamus and summarily denied it as not having a clear legal right to the relief requested. Mr. McKee appealed that summary denial. We reverse.

By the plain language of the statute in its title and elsewhere, a habeas petition is the proper method to seek the type of relief Mr. McKee sought. In Curry v. Hadi, 903 So.2d 242, 243 (Fla. 2d DCA 2005), this court held:

[T]he trial court erred in its interpretation of section 394.9215 as a limitation on the general habeas corpus rights of detainees [and construing] section 394.9215 as an attempt by the legislature to limit the rights of ... detainees to invoke the writ of habeas corpus.... [W]e construe that statute to simply specify the procedural mechanism for detainees to use when challenging certain issues relating to their confinement.

See also Finfrock v. Fla. Civil Commitment Ctr., 28 So.3d 983, 984 (Fla. 2d DCA 2010) (reversing the trial court which dismissed the petition without a hearing because it was “facially insufficient in that [it] did not state a sufficient claim for relief’). It was therefore error for the circuit court to deem Mr. McKee’s petition as one seeking mandamus.

Having been properly filed as a petition for habeas, it must be reviewed for facial sufficiency. And although the circuit court did not reach this step, our review of the petition leads to a conclusion that the first of Mr. McKee’s allegations is facially sufficient so as to require a response from DCF. See § 394.9215(l)(b). Mr. McKee claims that the quality and quantity of rehabilitative services he has access to fall below constitutionally acceptable standards. See Youngberg v. Romeo, 457 U.S. 307, 316-18, 323, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (holding that involuntarily committed persons retain their constitutionally protected liberty interest that requires the State to provide “minimally adequate” treatment in an effort to return them to society or to “ensure safety and freedom from undue restraint,” if they were so amenable).

Accordingly, we reverse the circuit court’s order denying Mr. McKee’s petition for a writ of habeas corpus and remand with directions to the circuit court to require a response to the petition from DCF. Further proceedings shall be held in accordance with the procedures outlined in part V of chapter 394.

Reversed and remanded with directions.

SILBERMAN and VILLANTI, JJ., Concur.

      . Section 394.9215, titled “Right to habeas corpus,” provides in subsection (l)(a):
      At any time after exhausting all administrative remedies, a person held in a secure facility under this part may file a petition for habeas corpus in the circuit court for the county in which the facility is located alleging that:
      1. The person’s conditions of confinement violate a statutory right under state law or a constitutional right under the State Constitution or the United States Constitution; or
      2. The facility in which the person is confined is not an appropriate secure facility, as that term is used in s. 394.915.
      Mr. McKee’s petition focuses on the first proviso and makes no allegation that the facility where he is confined is not appropriate for him.

      . The second of Mr. McKee’s allegations is that the for-profit operator’s own psychologists have a conflict of interest when they prepare his annual psychological evaluation because the operator has a profit motive for keeping him and other detainees committed for as long as possible. We conclude that such an allegation is not cognizable in a petition for habeas corpus under section 394.9215 because it does not relate to a condition of his confinement. Mr. McKee does not have a statutory or constitutional right to preclude the director of his facility from employing a particular psychologist or psychiatrist to prepare his annual evaluation. However, he does have the right to an independent evaluator. See § 394.918(1) ("A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court’s discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person.”). As such, the circuit court did not err in summarily denying this portion of Mr. McKee’s petition.

      . Section 394.9215(l)(b) provides:
      Upon filing a legally sufficient petition stating a prima facie case under paragraph (a), the court may direct the Department of Children and Family Services to file a response. If necessary, the court may conduct an evidentiary proceeding and issue an order to correct a violation of state or federal rights found to exist by the court. A final order entered under this section may be appealed to the district court of appeal. A nonfinal order may be appealed to the extent provided by the Florida Rules of Appellate Procedure. An appeal by the department shall stay the trial court’s order until disposition of the appeal.

      . Although Youngberg reviewed the situation of a person who was involuntarily committed due to mental retardation, the precepts the Court discussed are equally applicable to persons such as Mr. McKee because he is also involuntarily committed by the State.


author: LaROSE, Judge.

text:
    DEPARTMENT OF REVENUE, o/b/o R.S.M., Appellant, v. B.J.M., Appellee.
    No. 2D12-2216.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

The Department of Revenue, on behalf of R.S.M., appeals the final judgment of paternity and support ordering the father, B.J.M., to pay child support to the mother, R.S.M., for their child, L.W.M. Competent substantial evidence does not support the final judgment. Consequently, we reverse and remand for further proceedings.

In November 2010, the Department filed its petition to establish paternity, child support, and other relief. See §§ 61.13, 742.011, Fla. Stat. (2010). The petition sought current and retroactive child support from the father; the mother and child lived in North Carolina. The mother was unemployed with income coming from support and supplemental security income payments for her other children. She earned $400 a month in her last job. She lost that job and had been unable to find work. The father was employed, earned $39,327.79 in gross income in 2010, and was currently earning a net monthly income of $2587.76. There was no dispute that B.J.M. was the child’s father.

The child, L.W.M., was born on January 31, 2000. The father agreed to an adoption that did not happen. The mother then married another man soon after the child’s birth. The father consented to adoption by the mother’s then-husband. The mother and then-husband divorced; that adoption never went through. The father never received papers confirming any adoption. He never inquired about it. At the final hearing, the father argued that the mother was not entitled to retroactive support because, believing that the child would be adopted, he never sought a relationship with the child. At the time of the final hearing, the child was twelve years old.

The final hearing took place in February 2012. The Department filed a proposed child support guidelines worksheet that listed the mother’s net monthly income as $1051.20, imputing North Carolina minimum wage. It listed the father’s net monthly income at $3527.42. The Department computed the father’s child support obligation at $675.64 per month. The father did not submit a separate child support guidelines worksheet.

The father asked the trial court to deviate downward from the guidelines. He argued that even though he could seek visitation, which would lower his child support obligation, see § 61.30(ll)(a)(10), he was not doing so, in the child’s best interests, because the child did not know him. The father looked forward to a future relationship with the child if the child was agreeable. In the end, the father believed that the support amount was too large and that support should be handled privately. The trial court took the matter under advisement.

The final judgment lists the father’s net monthly income as $3322.88, imputes to the mother a net monthly income of $1051.20, denies retroactive support, and orders the father to pay $600 monthly by income deduction order.

Child Support Guidelines Worksheet

The trial court erred in failing to include in its order a child support guidelines worksheet. See Voronin v. Voronina, 975 So.2d 1228, 1229 (Fla. 2d DCA 2008). The only guidelines worksheet in the record is that of the Department, which shows a higher amount for the father’s net monthly income. Consequently, the final judgment fails to show how the trial court calculated the child support amount. Moreover, our record does not detail how the trial court arrived at its $600 monthly support obligation, an amount more than 12% less than the Department requested.

Deviation from Guidelines

The trial court deviated from the child support guidelines with the following observation:

Respondent requests deviation due to the fact that he has chosen not to pursue parenting time which [sic] this child does not know him [and] that he was unaware the child was not adopted, which is plausible, as adoption records are sealed. There is no showing of need for this child who was to be adopted [and] the potential retroactive period has been extended by Petitioner’s delay at compliance with discovery.

Sectiori 61.30 allows the trial court to deviate from the guideline amount under certain circumstances, as follows:

61.30. Child support guidelines; retroactive child support
(l)(a) The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter. The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. Notwithstanding the variance limitations of this section, the trier of fact shall order payment of child support which varies from the guideline amount as provided in paragraph (ll)(b) whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with either parent. This requirement applies to any living arrangement, whether temporary or permanent.

The factors in the above paragraph, as well as those in section 61.80(ll)(a), all relate to the financial ability of the parents and the best interests of the child. “We do not agree with the father that section 61.30 authorizes a reduction based on the facts relied on by the father.” Krufal v. Jorgensen, 830 So.2d 228, 229 (Fla. 4th DCA 2002).

Retroactive Support

Finally, the trial court abused its discretion in failing to order support retroactive to at least the date of the petition. The father argues that he should not have to pay child support because the mother claimed she was placing the child for adoption. As stated above, the trial court’s order states, “There is no showing of prior need for this child who was to be adopted and the potential retroactive period has been extended by Petitioner’s delay at compliance with discovery.”

The adoption defense ceased with the filing of the petition because the father was on notice that no adoption occurred. Because retroactive support is based on the child’s need and the parent’s ability to pay at the time of filing, Beal v. Beal, 666 So.2d 1054, 1054 (Fla. 1st DCA 1996), the petitioner’s delay in discovery compliance is irrelevant. Moreover, if the petitioner had produced the discovery when due, the support order would have issued sooner and support for the time between the discovery due date and the production date would have been prospective instead of retroactive. It is evident from the record that the child was in need and the father had the ability to pay; the father was earning more than $39,000 per year, the mother was unemployed, and the child was receiving Medicaid benefits from North Carolina.

Reversed and remanded for further proceedings.

DAVIS, C.J., and WALLACE, J., Concur.

      . The Department argues on appeal that the trial court erred in imputing income of $1051.20 to the mother. We reject this argument because the Department provided this figure in its child support guidelines worksheet and provided testimony at the hearing as to how it calculated this imputed amount.

      . In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.
      § 61.30(17).


author: WALLACE, Judge.

text:
    Steven HOFFMAN, Appellant, v. Rechele R. HOFFMAN, Appellee.
    No. 2D13-1499.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
    C. Michael Kelly of C. Michael Kelly, P.A., Bradenton, for Appellant.
    Lori M. Dorman of Baker, Paul & Dor-man, P.P.A., and Lori M. Dorman, P.A., Bradenton, for Appellee.
   WALLACE, Judge.

Steven Hoffman (the Husband) appeals a nonfinal order entered in the underlying dissolution of marriage proceeding, which establishes a temporary parenting plan and awards Rechele R. Hoffman (the Wife) temporary spousal support, child support, and temporary attorney’s fees and costs. The Husband argues that the circuit court abused its discretion in ordering him to make support and attorney fee payments which consume more than 80% of his net monthly income and in requiring him to pay all of the Wife’s temporary attorney’s fees. We agree and reverse the order in part and remand for further proceedings.

“[TJemporary awards are among the areas where trial judges have the very broadest discretion.” Aziz v. Aziz, 45 So.3d 975, 978 (Fla. 2d DCA 2010) (alteration in original) (quoting Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005)). Thus appellate courts are typically reluctant to reverse such orders. Id. However, “[t]he correct standard by which temporary support and alimony are to be assessed balances needs, as fixed by the parties’ standard of living on the one hand, and ability to pay, on the other.” Fonderson v. Lairap, 98 So.3d 715, 717 (Fla. 2d DCA 2012). A temporary award that virtually exhausts one party’s income and deprives that party of the ability to support himself or herself is not based on that party’s ability to pay and constitutes an abuse of discretion. See Perez v. Perez, 11 So.3d 470, 473 (Fla. 2d DCA 2009); Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007).

I. THE FACTS

Here, the circuit court found the Husband’s net monthly income to be $6030.11. It determined that he has, the ability to provide the Wife with $3500 per month in temporary spousal support and directed him to pay her that amount. The circuit court further found that the Husband owes the Wife $22,730 in retroactive spousal support and directed him to pay $350 per month in retroactive support until that amount is paid in full. Based on the child support guidelines, the circuit court found that the Husband’s child support obligation is $502.90 per month, and it directed him to pay that amount until the parties’ minor child reaches the age of eighteen. Finally, the circuit court granted the Wife’s request for $25,960.50 in temporary attorney’s fees and costs, and it directed the Husband to pay $500 per month until the fees and costs are paid in full.

The total of the monthly payments that the circuit court directed the Husband to make is $4852.90. Thus based upon the circuit court’s finding that the Husband’s net monthly income is $6030.11, the total of the monthly court-ordered payments represents 80.48% of his net monthly income and leaves him with only $1177.21 to meet his monthly needs.

The circuit court did not make any findings in the order under review about the Husband’s monthly expenses. But the Husband’s financial affidavit reflects that his monthly expenses are $5761. His reported monthly rent is $1200. Thus after making his monthly court-ordered payments, the Husband has insufficient funds remaining to make his reported monthly rental payment. The circuit court found that the Wife’s total monthly needs are $4415.70. Under the circuit court’s order, she receives $4352.90 towards her monthly expenses from the Husband in the form of temporary spousal support, retroactive support, and child support.

II. DISCUSSION

Although the order under review is a temporary support order in which the circuit court has broad discretion, we conclude that the circuit court abused its discretion in requiring the Husband to virtually exhaust his monthly income to make the ordered payments, leaving him with insufficient funds to support himself. The order’s requirement that the Husband spend in excess of 80% of his income in monthly support and temporary attorney’s fee payments reflects an abuse of discretion on its face. See Perez, 11 So.3d at 473 (holding that a temporary order requiring the husband to pay approximately 86% of his net monthly income in temporary support and other financial obligations constituted an abuse of discretion); Hotaling, 962 So.2d at 1051 (holding that a temporary order that required the husband to make payments in excess of his monthly income constituted an abuse of discretion); see also Crick v. Crick, 78 So.3d 696, 698 (Fla. 2d DCA 2012) (holding that a final order requiring the husband to exhaust his net monthly income in his combined monthly outlay for alimony, child support, and debt service constituted an abuse of discretion); Ballesteros v. Ballesteros, 819 So.2d 902, 903 (Fla. 4th DCA 2002) (“[W]here the husband’s income is nearly exhausted on obligations imposed by the final judgment, leaving him with practically no money to support himself, reasonable persons could not differ as to the impropriety of the actions taken by the trial court.” (alteration in original) (quoting Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990), disapproved on other grounds by Acker v. Acker, 904 So.2d 384 (Fla.2005))).

The Husband does not challenge, and we do not find error in, the circuit court’s decision to award the Wife $3500 per month in temporary spousal support or in directing the Husband to pay his share of the child support obligation in the amount of $502.90 per month. Although these two payments represent more than one-half of the Husband’s net monthly income, we note that based upon the relatively short duration of the parties’ marriage, it seems unlikely that the circuit court will ultimately award any long-term alimony. Thus it does not appear that the Husband will be paying spousal support for an extended period.

The Husband also does not challenge the amount awarded for retroactive support, although, as discussed below, he challenges the award of the Wife’s temporary attorney’s fees. We find no error in the circuit court’s determination of the amount of retroactive support. But we observe that the court-ordered payments of $350 and $500 per month toward retroactive support and temporary attorney’s fees tip the scale to the extent that the Husband is deprived of sufficient funds to support himself. In his current predicament, the Husband cannot even make his reported monthly rental payment. Even if the Husband were able to secure a residence at the same monthly rate as that disclosed on the Wife’s financial affidavit in the amount of $900 per month, he would still have only $277.21 remaining to pay the rest of his monthly expenses.

On the other hand, the total payments to be made to the Wife nearly meet her monthly needs as found by the circuit court. This apparent “imbalance” is grossly unfair and reflects a failure to “balance[] needs, as fixed by the parties’ standard of living on the one hand, and ability to pay, on the other.” Fonderson, 98 So.3d at 717. Accordingly, because the circuit court ordered the Husband to make payments in excess of 80% of his income and failed to balance the parties’ needs and ability to pay, we conclude that the circuit court abused its discretion in entering the order under review. We observe that instead of impairing the Husband’s ability to support himself, the circuit court could temporarily lower the amounts that the Husband is required to pay towards retroactive support and the Wife’s temporary attorney’s fees and costs. The circuit court could provide for an increase in these payments if the Husband’s spousal support obligation ends or is reduced upon the entry of a final judgment dissolving the parties’ marriage.

Finally, as argued by the Husband, it appears that the circuit court may not have considered the effect of the court-ordered spousal support on the Wife’s ability to pay her temporary attorney’s fees, particularly in light of the retroactive support award totaling $22,730. See Crick, 78 So.3d at 699 (“A trial court must consider all assets and sources of income in an award for attorney’s fees.”). Accordingly, on remand the circuit court shall reconsider the Wife’s entitlement to temporary attorney’s fees.

III. CONCLUSION

Because the circuit court abused its discretion in ordering the Husband to make monthly payments that exceed 80% of his net monthly income and deprive him of the ability to support himself, we reverse the order on review to the extent that it requires the Husband to pay $300 per month in retroactive spousal support and $500 per month towards the Wife’s temporary attorney’s fees. We remand for the circuit court to reduce, at least temporarily, the amounts that the Husband is required to pay in retroactive spousal support and for any temporary attorney’s fees awarded so that he has sufficient monthly income to support himself. The circuit court shall also reconsider the award of temporary attorney’s fees and costs to the Wife. In so doing, the circuit court must consider whether the Wife has the ability to pay some or all of her fees in light of the support awarded to her and whether the Husband has the ability to pay after making his support payments. In all other respects, we affirm the order under review.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and LaROSE, J., Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

      . The circuit court also found the Husband owes retroactive child support in the amount of $29 and directed him to pay that amount within thirty days. This amount is nominal and presumably no longer an issue.

      . The circuit court entered an income deduction order on April 1, 2013, directing the Husband’s employer to withhold $4352.90 from the Husband’s monthly income. This amount apparently incorporates all of the support payments, including retroactive support, but not the monthly attorney fee payment in the amount of $500.

      . Because our record does not include a transcript of the hearing on the Wife’s motion for temporary support, we must accept that the circuit court’s factual findings of the parties' incomes and monthly needs are supported by competent substantial evidence in the record. See Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010).

      . According to the circuit court’s order on the Wife's motion for temporary relief, the parties were married on July 25, 2008; they separated on or about April 21, 2012.

      . The Manatee County Clerk’s records appear to reflect that a final hearing in the case is currently scheduled for January 17, 2014.


author: ALTENBERND, Judge.

text:
    Kathleen M. GEEZIL, Appellant, v. Mark SAVAGE and Richard J. Savage, Jr., as Co-Personal Representatives of the Estate of George B. Savage, Deceased; Danuta Savage; Hugo Savage; and Joseph Savage, Appellees.
    No. 2D13-1594.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
    Patrick R. Costello, Esq.; T. Robert Bulloch, Kenneth H. Haney and Keely F. Smith of Quarles & Brady LLP, Naples (substituted as counsel of record), for Appellant.
    Basil L. Bain of The Bain Law Firm P.L., Naples, for Appellees Mark Savage and Richard J. Savage, Jr.
    Bradley S. Donnelly of Treiser Collins, PL, Naples, for Appellee Danuta Savage.
    No appearance for Appellees Hugo Savage and Joseph Savage.
   ALTENBERND, Judge.

Kathleen M. Geezil, the daughter of George B. Savage, appeals an order resolving several disputes in the probate of her father’s estate. We affirm all of the probate court’s rulings with the exception of a directive that funeral expenses be paid from a specific account. In light of the extensive litigation that has undoubtedly created a larger than expected quantity of class 1 expenses, the probate court will need to consider the order in which assets abate under section 733.805, Florida Statutes (2007), as well as the order of the payment of expenses and obligations under section 733.707, Florida Statutes (2007), when determining the payment of claims and approving any distributions.

George Savage, who passed away in March 2008, apparently prepared his own will in Massachusetts in 2000. The unusual document is a valid will. It generally divided property between Mr. Savage’s second wife and his daughter from his first marriage, Ms. Geezil. Unfortunately, the will discussed not only property that would be included within Mr. Savage’s probate estate, but also property that he owned by the entireties with his wife that would not be included within his estate. The will did not dispose of all of Mr. Savage’s personal property and did not contain a residuary clause. These deficiencies contributed to the daughter’s decision to litigate several issues. In light of the relatively small size of the estate, the litigation has undoubtedly proven to be a noneconomic decision.

The will made several devises to Mr. Savage’s daughter and his three nephews. It is clear that the devises of the four “Wizard of Oz” plates to the daughter, a “marble bust of Michelangiolo” to one nephew, and Mr. Savage’s “Grandpa, Joe O’Rourke’s Knight’s of Columbus Sword” to another nephew were specific devises. Based on the language of the will, we conclude that the probate court correctly determined that the devise of an investment account to the daughter was a general devise, as was the devise of $2000 to one nephew. Likewise, the probate court properly determined that certain personal property, primarily household items, passed by intestacy in equal shares to Mr. Savage’s wife and daughter. The probate court also properly determined, under the evidence at trial, that certain bank and financial accounts that were in the names of both Mr. Savage and his wife were held as tenants by the entirety.

The daughter, as a party in interest, objected to the wife’s claim for funeral and burial expenses she had incurred. Initially, the wife sought approximately $17,000. As a result of the daughter’s objection, the wife filed a timely independent action, which ultimately was transferred to county court as an action seeking $14,892.25. Before the county court action was concluded, the co-personal representatives of the estate agreed to compromise the claim for $10,000. Over the objection of the daughter, the probate court approved this compromise pursuant to section 733.708. We reject the daughter’s argument that the probate court could not compromise this claim while the matter was pending unresolved in county court. Section 733.708 expressly gives the probate court power to compromise claims “whether in suit or not.”

In the order on appeal, the probate court determined that the $10,000 funeral expense could be paid to the wife immediately from the investment account that is a general devise to the daughter in the will. This decision was undoubtedly influenced by the fact that the funeral had occurred approximately five years before the trial in the probate court. Although this account appears to be the only liquid asset of this estate and may well ultimately prove to be the source of payment, the funeral bill is partially a class 2 claim and partially a class 8 claim. See § 733.707. From the discussion at oral argument, we know that the claim has not yet been paid. In light of the limited size of the estate and the uncertainty of class 1 claims, we reverse this specific instruction in the order. On remand, the probate court will need to comply with the order in which assets abate under section 733.805 as well as the order of the payment of expenses and obligations under section 733.707 when ordering the payment of claims prior to the distribution of estate property.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and SLEET, J., Concur.

      . See § 733.707, Fla. Stat. (2007) (establishing the order of the payment of a probate estate's expenses and obligations).


text:
    Krystal Rose ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-437.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.
   PER CURIAM.

Krystal Rose Allen appeals the postcon-viction court’s denial of her motion for relief under Florida Rule of Criminal Procedure 3.850. This court previously reversed the postconviction court’s initial order denying this motion. Allen v. State, 100 So.3d 747 (Fla. 2d DCA 2012). On remand, the court again denied the motion, attaching only a small portion of the transcript. To avoid a second reversal, this court ordered the record supplemented with the entire trial transcript. We have now reviewed the entire transcript.

Although there is no question that Ms. Allen’s trial counsel should have moved for a judgment of acquittal at the end of the State’s case, the evidence in this aggravated child abuse case is quite similar to the evidence described in State v. Law, 559 So.2d 187 (Fla.1989). Just as the circumstantial evidence in that case was sufficient to create an issue for resolution by the jury, we conclude that the trial court in this case appropriately submitted the case to the jury. Accordingly, we affirm the order on appeal.

Affirmed.

ALTENBERND, KELLY, and MORRIS, JJ., Concur.