author: BENTON, J.

text:
    Jose Juan ANDINO-RIVERA, Appellant, v. SOUTHEAST ATLANTIC BEVERAGE COMPANY/GALLAGHER BASSETT SERVICES, INC., Appellees.
    No. 1D13-0598.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.

      Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
    Hillarey A. McCall of Harbsmeier DeZa-yas, LLP, Lakeland, for Appellees.
   BENTON, J.

On appeal from a compensation order denying all relief, Jose Juan Andino-Riv-era contends he proved he was entitled to temporary partial disability benefits and, on two different theories, to medical evaluation and possible care from a pain management specialist. We reverse with directions to award temporary partial disability benefits for April 16, 2012, and continuing; and with directions that the judge of compensation claims make findings as to whether and, if so, when ap-pellees responded to either of the authorized physicians’ requests that a pain management specialist be authorized, as well. We reject appellant’s alternative theory that he was entitled to elect a pain management physician in lieu of a surgeon under section 440.13(2)(f), Florida Statutes (2011), and so leave intact his prerogative to invoke his rights under section 440.13(2)(f) in appropriate circumstances in the future.

Mr. Andino-Rivera suffered two com-pensable injuries as a result of his compen-sable workplace accident on October 14, 201—a lumbar strain and an inguinal hernia. The employer’s insurance carrier (Gallagher) authorized Lakeside Occupational Medical Centers (Lakeside) and Dr. Hirsch, a general surgeon who repaired Claimant’s hernia surgically. After the surgery, Dr. Hirsch made a written recommendation on January 31, 2012, that Mr. Andino-Rivera be referred to a pain management specialist, a recommendation the adjuster acknowledged receiving on February 9, 2012. Separately, on April 16, 2012, Lakeside recommended evaluation by a pain management specialist, a recommendation Southeast Atlantic Beverage Company (Southeast) conceded it received the following day.

The judge of compensation claims failed to rule on appellant’s claim for temporary partial disability benefits beginning on April 16, 2012, and continuing. Based on uncontested findings (and in the absence of any affirmative defense), Mr. An-dino-Rivera was entitled to temporary partial disability benefits for the period in question. See § 440.15(4)(a), Fla. Stat. (2011) (“Benefits shall be payable ... only if overall maximum medical improvement has not been reached and the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work.”). The finding that he had not reached maximum medical improvement at the time of hearing is not challenged here. Neither is the finding that medical personnel at Lakeside restricted him from performing his work for Southeast (in the course of an evaluation that was, according to unchallenged findings of the judge of compensation claims, “clearly related to [his] industrial injury”) beginning on April 16, 2012, and continuing. Accordingly, we reverse the order under review insofar as it denies compensation benefits, and remand for entry of an order awarding temporary partial disability benefits beginning on April 16, 2012.

Under sections 440.13(3)(d) and (i), an employer or carrier “forfeits the right to contest” the medical necessity of an authorized doctor’s referral for (additional) medical treatment, unless the employer or carrier responds to the authorized doctor’s written request for a referral within the time allowed. Elmer v. Southland Corp. 7-11, 5 So.3d 754, 756 (Fla. 1st DCA 2009). Although a carrier is not required to grant the request for a referral within the times specified in sections 440.13(3)(d) (three days) and (i) (ten days), it must respond to each written request within the time prescribed. As an incentive for prompt responses, the carrier is deemed to agree to the medical necessity of the referral, in the absence of a timely grant or denial. See id.

In the present case, the claimant cited the foregoing legal authority, specifically arguing that Gallagher had waived or forfeited the right to deny the medical necessity of a pain management referral by failing to respond on two separate occasions to two separate, written recommendations by two different, authorized medical providers. The judge of compensation claims denied the request for a referral to a pain management specialist, however, based on the stated ground that pain management was not “warranted” or “required.” No findings were made as to how, or when (if ever), Southeast or Gallagher responded to the authorized, referring medical providers, as required by section 440.13(3)(i). We can only interpret the judge’s decision to deny as having been based on a conclusion that there was no medical necessity for the referral.

The judge of compensation claims erred by not determining whether Southeast or Gallagher timely responded to Dr. Hirsch within ten days of receiving Dr. Hirsch’s recommendation. Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (explaining that the court will “consider the JCC’s failure to rule reversible error based on the JCC’s noncompliance with the duty to adjudicate all issues that are ripe for adjudication”). If not, the question of medical necessity is moot. Accordingly, we reverse and remand for additional proceedings based on the record already established (without taking additional evidence) for the judge of compensation claims to make findings of fact as to when and how, if at all, Southeast or Gallagher responded to Dr. Hirsch’s January 31, 2012 recommendation for referral to a pain management specialist. If the judge of compensation claims finds that neither the carrier nor the employer did respond to Dr. Hirsch in a timely fashion, Mr. Andino-Rivera should be awarded an evaluation with a pain management specialist. See Elmer, 5 So.3d at 756.

Separate and apart from the pain management referral made by Dr. Hirsch, the evaluating medical personnel at Lakeside made a report dated April 16, 2012, indicating that Mr. Andino-Rivera should refrain from working until such time as he was evaluated by a pain management specialist. If the claimant is not awarded an evaluation with a pain management specialist on account of a lack of timely response to Dr. Hirsch’s recommendation, the judge of compensation claims should determine, on remand, again apart from any question of medical necessity, whether the Carrier responded to Lakeside within ten days of receipt of the April 16, 2012 written recommendation for a pain management specialist. See Betancourt, 693 So.2d at 682.

Accordingly, we reverse and remand for additional proceedings based on the record already established (without taking additional evidence) for the judge of compensation claims to make findings of fact as to when the carrier received the April 16, 2012 recommendation from Lakeside, and as to when and how the carrier responded to Lakeside regarding the April 16, 2012 recommendation for a pain management specialist. If on remand the judge of compensation claims finds that the carrier did not timely respond to the Lakeside referral, Mr. Andino-Rivera shall be awarded an evaluation with an authorized pain management specialist. See Elmer, 5 So.3d at 756.

We affirm the denial of the claim for a one-time change in physician under section 440.13(2)(f). We reverse the unexplained denial of an evaluation by a pain management specialist sought under section 440.13(3)(i), and the denial of temporary partial disability benefits beginning April 16, 2012. We also reverse the denial of penalties and interest for the disability benefits, and the denial of attorney’s fees and costs, as to all issues except the section 440.13(2)(f) claim.

Affirmed in part, reversed in part, and remanded.

LEWIS, C.J. and SWANSON, J., concur.

      . The argument that the judge of compensation claims did not deny the claim for an evaluation with a pain management specialist on the grounds of medical necessity finds no support in the record. We do not reach the question of medical necessity because it is irrelevant to any issue on appeal.

      . At oral argument held in this case, counsel for the claimant conceded that, because Dr. Hirsch requested the authorization of a specialist, the ten-day response period provided for in section 440.13(3)(i) pertains.

      . A representative of Southeast testified that Southeast received the April 16, 2012 recommendation for a pain management specialist on April 17, 2012. The claims adjuster handling die file testified that she also received this written recommendation, albeit at a later date.

      . If a pain management evaluation is awarded based on Dr. Hirsch's January 31, 2012 recommendation, the judge of compensation claims need not address the second, separate recommendation for a pain management specialist. If, however, the judge of compensation claims finds the carrier timely responded to Dr. Hirsch, the judge of compensation claims shall then address whether the carrier timely responded to the second, separate recommendation for a pain management specialist.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Fernando MONTES and Xiomara Frometa, Appellants, v. MASTEC NORTH AMERICA, INC., etc., Appellee.
    No. 3D12-2622.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.

      Daniel A. Bushell, Boca Raton, for appellants.
    Richard A. Sherman, Fort Lauderdale, and James W. Sherman; Julio C. Acosta, Miami, and John Oprandi, for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Fernando Montes and his wife appeal a final summary judgment against them in favor of Mastec North America, Inc. The circuit court lawsuit arose from personal injuries sustained by Mr. Montes, a condominium security guard, in 2008 when a ladder owned or used by Mastec allegedly fell on him, with resulting medical expenses exceeding $100,000. The final summary judgment was based on Mr. Montes’ failure to disclose his potential (then unfilled) lawsuit against Mastec in the “contingent and unliquidated claims” section of his Chapter 13 personal bankruptcy in 2010. We reverse.

Chronology
The pertinent dates and events are:
• April 2008 — Alleged injury.
• September 2009 — Mr. Montes and his wife consulted with a personal injury attorney regarding the alleged incident. That law firm declined to take the case.
• October 2009 — Mr. Montes and his wife consulted a second law firm (“K&G”), which agreed to take the case. In the same month, K&G sent a letter to the condominium where the injury occurred advising that a liability claim would be made against the condominium and DirectTV (the vendor allegedly using the ladder at the time of Mr. Montes’ accident).
• March 2010 — K&G sent a letter to the condominium’s insurance carrier summarizing the claim and theory of liability-
• April 2010 — a separate law firm, RS, filed a joint petition for bankruptcy relief on behalf of Mr. Montes and his wife, under Chapter 13 (individual debt adjustment) of the United States Bankruptcy Code. The potential — as yet unfiled — lawsuit against Mastec was not listed in the Schedule B (contingent and unliquidated claims) section of the petition.
• July 2010 — the bankruptcy court entered an order approving Mr. Montes’ and his wife’s Chapter 13 plan for paying their creditors. That order did not close the Chapter 13 case or discharge Mr. Montes or his wife from any indebtedness.
• March 2011 — K&G filed suit against Mastec in the circuit court on behalf of Mr. Montes and his wife.
• June 7, 2012 — Mastec moved for summary judgment on grounds of judicial estoppel. K&G maintains that it first became aware of the bankruptcy petition on that date. The bankruptcy case was still pending.
• June 22, 2012 — Mr. Montes and his wife, with the assistance of their bankruptcy attorney, filed amended documents (a) including the lawsuit against Mastec as a contingent and unliquidat-ed claim in the still-pending bankruptcy case, and (b) representing that any funds recovered would be included in the assets to be administered.
• September 10, 2012 — the circuit court granted Mastec’s motion for summary judgment based on judicial estoppel.
This timely appeal followed.
Analysis

Mastec argues for affirmance on two separate grounds. First, Mastec argues that Mr. Montes and his wife lack standing to bring the circuit court lawsuit, because once they commenced the bankruptcy, all of them assets, including the lawsuit, became the property of the bankruptcy trustee. Second, Mastec maintains that the summary judgment was properly granted based upon judicial estoppel.

Regarding standing, Mastec’s argument is based on an erroneous proposition. In a Chapter 7 liquidation proceeding, a bankruptcy trustee retains control over a state court lawsuit or cause of action of the debtor. In a Chapter 13 bankruptcy case, however, “the debtor retains possession of and may use all the property of his estate, including his prepetition causes of action.” Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 911 (Fla. 4th DCA 2013) (quoting Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3d Cir.1991)). Mr. Montes and his wife had and have standing to proceed with their lawsuit.

Regarding judicial estoppel, Mastec relies principally on Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001). In that case, Richard Blum-berg alleged that his insurance agent had been negligent in procuring appropriate coverage under his residential insurance policy. In a prior lawsuit directly against the insurer, however, Blumberg had (a) alleged that such coverage existed, (b) recovered a jury verdict in his favor awarding damages for his alleged losses, and (c) dismissed that lawsuit with prejudice before the entry of judgment because of Blumberg’s exposure to attorney’s fee claims by the insurer under the offer of judgment rules.

The Blumberg case is readily distinguishable. Mr. Montes and his wife never obtained a verdict after trial inconsistent with a later lawsuit. At the time they filed their bankruptcy petition, it was unclear that a lawsuit would be filed at all. They had a bankruptcy lawyer for their bankruptcy petition, and a different lawyer evaluating their tort claim. The phrase “contingent and unliquidated claim” is a legal term that may be confusing to a lay person, particularly when it is as yet undetermined whether a particular pre-petition injury is actionable and ripe for filing.

In the present case, Mr. Montes and his wife promptly amended their bankruptcy schedules and their proposed Chapter 13 plan after Mastec raised the omission in their circuit court lawsuit. Because their joint Chapter 13 case remained pending at that time, no creditor was defrauded.

Mastec’s reliance upon Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir.2002), is equally unavailing. In that case, a Chapter 13 debtor failed to report his potential (as yet unfiled) claim for employment discrimination. His lawsuit was filed six months later. In Bumes, however, the debtor never amended his Chapter 13 schedule to include the lawsuit. The debt- or converted his Chapter 13 bankruptcy to a Chapter 7 liquidation and obtained a complete discharge of his debts, despite having never disclosed the existence of his lawsuit. In the present case, Mr. Montes and his wife amended their schedules and plan in a still-pending ease, and they did not obtain a discharge from indebtedness under Chapter 7.

Finally, Mastec’s reliance on Grau v. Provident Life & Accident Insurance Co., 899 So.2d 396 (Fla. 4th DCA 2005), is misplaced. In that case, the district court of appeal actually reversed a trial court’s summary judgment based on judicial es-toppel. Dr. Gerard Grau filed for Chapter 11 bankruptcy following the entry of an adverse medical malpractice judgment. In his bankruptcy schedules, he listed two personal disability insurance policies valued at “$0.00” “because he was unsure whether he was ‘disabled’ when he filed bankruptcy.” Id. at 397. Two years later, Dr. Grau converted his Chapter 11 proceeding to a Chapter 7 liquidation. During a creditors’ meeting, Dr. Grau testified that he had recently become disabled and that he was working on filing a claim for disability benefits. A year later, he was permitted to amend his bankruptcy schedules to claim a state exemption for the disability policies. Dr. Grau then filed lawsuits against his disability insurers seeking benefits under the policies. His Chapter 7 trustee testified that Dr. Grau had told him that “‘he was, in fact, not disabled.’ ” Id. at 398. The circuit court granted the insurers’ motion for summary judgment on the basis of judicial estoppel.

The Fourth District, applying Blumberg, reversed the summary judgment. “To find that a party to be estopped has successfully maintained a claim or position requires that the first court adopt the claim or position, ‘either as a preliminary matter or as part of a final disposition.’ ” Grau, 899 So.2d at 401 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 n. 5 (6th Cir.1982)). The Fourth District also found judicial estoppel inapplicable because the insurers were not parties to the bankruptcy action. In the present case, the bankruptcy court did not rely on the presence or absence of a recovery in the personal injury suit, obviously there has been no such recovery to date, any such recovery will be part of the amended plan, and Mastec was not a creditor or otherwise involved in the bankruptcy case of Mr. Montes and his wife. Here, as in Grau, we “decline the [defendant’s] invitation to apply judicial estoppel punitively against [the debtor], bestowing a windfall upon [the defendant].” Grau, 899 So.2d at 402.

For these reasons, the final summary judgment is reversed and the case is remanded to the circuit court for further proceedings.

      . Mr. Montes and his wife appealed that order, but the order was not final. They later filed an unopposed motion for relinquishment, which we granted, and a final judgment was entered by the trial court.

      . In a similar case cited by Mastec, De Leon v. Comcar Industries, Inc., 321 F.3d 1289 (11th Cir.2003), judicial estoppel was upheld as applied to a debtor’s failure to disclose an employment discrimination and retaliation claim in his bankruptcy petition under Chapter 13. As described in Losacano v. Deaf & Hearing Connection of Tampa Bay, Inc., 988 So.2d 66, 70 n. 2 (Fla. 2d DCA 2008), the elements of judicial estoppel under federal law in such cases "may not be identical to the elements usually required under state law in Florida.”

      . § 222.18, Fla. Stat. (2001).


author: MORRIS, Judge.

text:
    Stephanie C. DOWDEN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Velocity Brands LLC, Appellees.
    No. 2D12-5128.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.

      Stephanie C. Dowden, pro se.
    Thomas R. Persely, Jr.; M. Elaine Howard; and Amanda L. Neff, Tallahassee, for Appellee Reemployment Assistance Appeals Commission.
    No appearance for Appellee Velocity Brands LLC.
   MORRIS, Judge.

The appellee’s motion for rehearing and clarification is granted in part. The opinion issued on November 8, 2013, is withdrawn, and the following opinion is substituted therefor. No further motions for rehearing or clarification will be entertained.

Stephanie Dowden appeals an order issued by the Reemployment Assistance Appeals Commission affirming the decision of an appeals referee, which determined that Dowden is not entitled to benefits because her unemployment was voluntary without good cause chargeable to her employer. See § 443.151(4)(a), (c), (e), Fla. Stat. (2012). We conclude that the Commission properly affirmed the referee’s determination that Dowden did not qualify for benefits. However, we reverse and remand for further proceedings on the limited issue of overpayment.

I. Background

Dowden applied for unemployment benefits in June 2011 after losing her job at Publix. On June 29, 2011, Dowden received a “Wage Transcript and Determination” from the Agency for Workforce Innovation, Unemployment Compensation Program, stating that Dowden was eligible for a weekly benefit amount of $208 until June 18, 2012, based on her employment history at Publix. In mid-July 2011, she obtained a job at Dunkin Donuts, but she left that job in late August 2011, because she did not have childcare for her children. Dowden continued to receive unemployment benefits.

In March 27, 2012, Dowden received a document titled “Monetary Determination/Redetermination for Extended Benefits,” which stated that she was eligible for extended benefits. But on May 11, 2012, the Unemployment Compensation Program issued a document stating that Dow-den “voluntarily quit the job [at Dunkin Donuts] due to lack of childcare. The reason for quitting was personal.” The Program determined that the “law requires disqualification from 08/28/11 and until you earn $3,536.” It also stated that “any benefits received for which you were not entitled are overpayments and subject to recovery.” Dowden appealed that determination.

A hearing was held on July 23, 2012, before an appeals referee. At the hearing, Dowden explained that she left her job at Dunkin Donuts because her husband had to leave the country and she had nobody to take care of her two children and she could not afford daycare. Her husband returned after being away for a few months. In closing, Dowden stated that she had “been completely honest with this whole experience in doing unemployment.” She had tried her “best to do everything online that [she was] supposed to do.” She was astonished in May 2012 when she received notice that she would have to pay back the benefits she had received because “[n]o-body from unemployment' ever let [her] know that [she was] doing something wrong.” During the process, she had “been in phone contact with a lot of unemployment people.” She argued that if she had been “doing something wrong[,] somebody from the unemployment side should have a lot earlier caught on to it and let [her] know.” She claimed that she is an honest person, that she did not mean to “mess up anything” or “cheat anybody,” and that she was just trying to feed her children.

The appeals referee issued her decision, affirming the denial of benefits based on a finding that Dowden voluntarily left her employment with Dunkin Donuts because her husband left the country and she had no childcare. The referee also found that Dowden did not return to work at Dunkin Donuts after her husband returned to the country a few months later. The referee concluded that Dowden left her work without good cause attributable to her employer and that she was therefore disqualified from receiving benefits. The decision also stated that if Dowden were determined to be disqualified or “ineligible for benefits already received,” she “will be required to repay those benefits” in an amount to be “set forth in a separate overpayment determination.”

Dowden appealed the referee’s decision to the Commission, which concluded that the record supports the referee’s findings and conclusions of law. Specifically, the Commission stated that “[although the claimant may have quit for personally compelling reasons, benefits cannot be paid on that basis.”

II. Analysis

The facts as found by the appeals referee are supported by Dowden’s testimony at the hearing. See Ford v. Se. Atl. Corp., 588 So.2d 1039, 1040 (Fla. 1st DCA 1991) ([T]he appeals referee is the fact finder and his or her decision must be upheld if there is CSE [competent, substantial evidence] to support it.” (citations omitted)). Based on the facts, the appeals referee determined that Dowden was not eligible for benefits after August 28, 2011, because she voluntarily left employment with Dunkin Donuts on that date due to lack of child care. Section 443.101(l)(a) provides that “[a]n individual shall be disqualified for benefits” if he or she has “voluntarily left work without good cause attributable to his or her employing unit.”

[T]he term “good cause” includes only that cause attributable to the employing unit which would compel a reasonable employee to cease working or attributable to the individual’s illness or disability requiring separation from his or her work. Any other disqualification may not be imposed. An individual is not disqualified under this subsection for voluntarily leaving temporary work to return immediately when called to work by the permanent employing unit that temporarily terminated his or her work within the previous 6 calendar months, or for voluntarily leaving work to relocate as a result of his or her military-connected spouse’s permanent change of station orders, activation orders, or unit deployment orders.

§ 443.101(l)(a)(l).

Dowden’s reason for voluntarily leaving her employment constitutes a personal reason that is not considered good cause attributable to her employing unit. See Beard v. State Dep’t of Commerce, Div. of Emp’t Sec., 369 So.2d 382, 385 (Fla. 2d DCA 1979) (“[T]he legislature, when it added the phrase ‘attributable to the employer’ to the good cause requirement for voluntary termination, must have intended to remove domestic obligations as good cause for voluntary termination.”); Marchese v. Unemployment Appeals Comm’n, 946 So.2d 123, 124 (Fla. 4th DCA 2007) (recognizing a “family emergency exception” so that an employee may voluntarily take time off work to care for an ill family member or because a death occurred but holding that a mother’s leave of absence because her nanny quit did not constitute good cause attributable to her employer). Therefore, under section 443.101(l)(a), the appeals referee correctly determined that Dowden is not entitled to benefits. See Home Fuel Oil Co. v. Fla. Unemployment Appeals Comm’n, 494 So.2d 268, 270 (Fla. 2d DCA 1986) (“The statute protects employees of only those employers who wrongfully cause their employees to ‘voluntarily’ leave their employment.”). The Commission did not err in affirming the appeals referee’s application of the law to the facts in regard to the conclusion that Dowden was disqualified from benefits.

But the Commission erred in failing to remand the case for an additional hearing on the issue of overpayment. The facts of this case are similar to those in Arensen v. Florida Unemployment Appeals Commission, 48 So.3d 936 (Fla. 1st DCA 2010). In Arensen, the claimant applied for benefits after she lost her job in June 2008. Id. at 937. She was initially told by an agency employee that her benefits could not be approved until after her former employer was contacted.

Two weeks after this eligibility interview, Arensen received a Wage and Transcript Determination, informing her that she had been approved. She then received regular unemployment benefits until the Spring of 2009. During this time, Ms. Arensen received written confirmation that she was eligible to collect unemployment compensation benefits. The agency sent her a formal notice on December 8, 2008, stating that she was entitled to receive additional benefits under the Emergency Unemployment Compensation Extension Act of 2008. Then, on April 20, 2009, the agency sent her another formal notice stating that she was entitled to receive additional benefits under the Act.
Nine days later, on April 29, 2009, approximately ten months after Arensen began receiving continuous unemployment benefits, the Agency for Workforce Innovation issued a non-monetary Notice of Determination, finding that she had been discharged for misconduct connected with work and that she was therefore ineligible for receipt of benefits. This notice also informed her that she was responsible for repaying the Agency the benefits she had received to date. Finally, the notice advised Aren-sen that she had twenty calendar days from the mailing date of the determination to file an appeal. The agency did not explain why it had failed to make this determination initially. Nor did it explain why it had implied that it had already determined that Arensen was eligible for benefits.

Id. at 937-88. The First District first held that the appeals referee erred in dismissing the claimant’s initial appeal because although it was untimely as to the non-monetary notice denying benefits, it was timely as to the subsequent monetary notices that determined the exact amount of benefits she was required to repay. Id. 989-40. The First District went on to hold that

the agency acted so slowly in this case as to violate due process. Although the limited record suggests that the employer was partly to blame for the procedural delinquency in this case, the agency itself acted in a way that severely prejudiced the claimant. For whatever reason, it paid the claimant for at least ten months before finally notifying her that she was disqualified from receiving the nearly $9,000 in benefits it had paid her up to that point. It then ceased her benefits without affording her notice or an opportunity to be heard on the merits of her claim.
It is true that initial eligibility determinations are frequently issued, followed by the payment of benefits for a short time, which must ultimately be repaid when the agency later determines that the claimant is, in fact, disqualified from receiving benefits when the employer contests the claim in a timely fashion. Here, however, the record indicates in more than one way that, although it did not issue a written non-monetary notice before April 29, 2009, the agency did indeed determine that the claimant was eligible for benefits within two weeks of the date she filed her claim. If not a formal determination, the agency certainly made a de facto determination of eligibility, by force of its actions and the documentation it issued over the course of nearly a year. Thus, the claimant essentially became entitled to the continued receipt of benefits; and the agency suddenly ceased them and demanded repayment on a retroactive finding of ineligibility, all without a hearing. In issuing the nonmonetary notice on April 29, 2009, the agency was, in effect, making a rede-termination, not an initial determination. In so doing, and in dismissing her appeal, it violated her due process rights.
The prolonged delay in the determination of ineligibility, after the agency took a number of actions leading her to believe that Ms. Arensen had been approved, including paying her benefits for the better part of a year, substantially impaired the fairness of the proceedings. As the record reveals, after filing her claim in June of 2008, Ms. Arensen spoke with an agency employee, who informed her that the agency would have to contact her employer before ruling on her claim. She then received benefits, which would lead her to believe that she was, in fact, eligible. This belief was undoubtedly reinforced by the subsequent notices informing her that she was entitled to receive additional unemployment compensation benefits under an emergency act of Congress.
It is understandable that Ms. Arensen was surprised to learn that her benefits had been disapproved and that she was required to reimburse the agency for the benefits she had been receiving. The nonmonetary determination of ineligibility came almost a year after Ms. Arensen first started receiving payments and little over a week after the latter of two notices confirming her continuing eligibility for benefits under the federal emergency extension act. It appears from the transcript of the telephonic hearing that she was confused not only by the prolonged period of payment of benefits, but also by the multiple notices that she received after the original non-monetary notice.

Id. at 939-41. The court reversed the agency’s decision affirming the appeals referee’s dismissal and remanded for “a hearing on the monetary determination, as well as on the underlying decision,” so that the claimant “could contest both the amount of the overpayment and the original determination of eligibility.” Id. at 941.

Here, Dowden applied for benefits after she lost her job at Publix in June 2011. She was determined eligible for benefits in June 2011, and she began receiving benefits in August 2011. In the meantime, she was hired at Dunkin Donuts, but she left that job in late August 2011. According to Dowden’s unrefuted testimony at the hearing, she was truthful with agency employees and informed them of her reason for leaving Dunkin Donuts. She testified that nobody ever informed her that she would not qualify for continued benefits. She continued to receive benefits for another eight months. Within that time, she received notice in March 2012 that she was “monetarily eligible” for extended benefits. It was reasonable for Dowden to assume that she had been determined to qualify for benefits after leaving her employment with Dunkin Donuts based on the document she received from the agency in March 2012 indicating that she was “eligible,” her communications with agency employees, and her receiving benefits for another eight months.

As noted in Arensen, a claimant may be required to repay benefits that he or she received for a short time while the agency is investigating a claim. Id. at 940. But Dowden received benefits for more than just a short time after she left her job at Dunkin Donuts. There is nothing in the record explaining why the agency delayed so long in making its determination after she left her job at Dunkin Donuts, and we note that the statute clearly requires that when determining eligibility, the agency must act “promptly” when providing notice of claims to employers and the employer must respond within twenty days. § 443.151(3)(b). It can be assumed that this prompt process was not followed in this case. And even though a claimant is generally liable for repaying benefits which she was not entitled to receive, see § 443.151(6)(b), if the delay in the denial of benefits was caused by Dunkin Donuts’ failure to timely respond, the agency was not permitted to hold Dowden liable for the benefits she was improperly paid, see § 443.151(6)(c) (“Any person who, by reason other than fraud, receives benefits under this chapter to which she or he is not entitled as a result of an employer’s failure to respond to a claim within the timeframe provided in subsection (3) is not liable for repaying those benefits to the department....").

In Arensen, the appeals referee and the Commission never considered the issues of eligibility or repayment because the referee dismissed the initial appeal as untimely and the Commission affirmed that dismissal. Here, the referee made a decision on the issue of eligibility and the Commission affirmed that decision. Even though Dow-den argued that she should not have to repay the benefits she received, neither the appeals referee nor the Commission explicitly considered the issue of repayment. Yet the referee’s order included language determining that Dowden is required to “repay those benefits.” To the extent that the Commission affirmed the referee’s decision without remanding the case for an additional hearing on the issue of repayment, the agency erred as a matter of law in light of the undisputed facts of the case. See § 120.68(7)(d), Fla. Stat. (2012); Krulla v. Barnett Bank, 629 So.2d 1005, 1006 (Fla. 4th DCA 1993) (“[WJhere the commission errs as a matter of law, this court is empowered to reverse their determination.”). Accordingly, we reverse the Commission’s order as it relates to the repayment of benefits and we remand for a new hearing in light of Arensen, section 443.151(6), and the facts in this case. We affirm the Commission’s affirmance of the referee’s determination that Dowden was not entitled to benefits because she voluntarily left her employment without good cause attributable to her employer.

Affirmed in part; reversed in part; remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

      . We also note that “[rjecoupment from future benefits is not permitted if the benefits are received by any person without fault on the person’s part and recoupment would defeat the purpose of this chapter or would be inequitable and against good conscience.” § 443.15 l(6)(d).


author: PER CURIAM.

text:
    Alex RACKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4679.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Kelly H. Papa of the Law Office of Kelly Papa, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Taylor v. State, 120 So.3d 540 (Fla.2013); Johnson v. State, 22 So.3d 802 (Fla. 1st DCA 2010).

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    Miguel Angel RIOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0356.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Miguel Angel Rios, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, RAY, and SWANSON, JJ., concur.


text:
    Rodney McCUTCHEON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-6182.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rodney McCutcheon, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Because this petition seeks belated appeal of an order which dismissed a petition for writ of mandamus, the petition for belated appeal is denied. See Powell v. Florida Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141(c) are not applicable). This disposition is without prejudice to petitioner’s right to seek relief in the circuit court by a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See, Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

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


text:
    Rodney McCUTCHEON, Petitioner, v. FLORIDA PAROLE COMMISSION, et al., Respondents.
    No. 1D14-0166.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rodney McCutcheon, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

Because this petition seeks belated appeal of an order which dismissed a petition for writ of prohibition, the petition for belated appeal is denied. See Powell v. Florida Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141(c) are not applicable). This disposition is without prejudice to petitioner’s right to seek relief in the circuit court by a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See, Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

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


author: LOGUE, J.

text:
    May FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-894.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   LOGUE, J.

May Francois appeals his convictions of armed robbery and conspiracy to commit armed robbery. He contends that the trial court erred in admitting testimony that he possessed four rifles in his residence when it was undisputed that those rifles were not used in the robbery. We agree because the State failed to establish (1) how Francois’s mere possession of four rifles, concededly unrelated to the robbery, was relevant to any issue at trial, and (2) that the erroneously admitted evidence was harmless beyond a reasonable doubt.

At trial, the State informed the trial court of its intention to introduce testimony that officers discovered four rifles in Francois’s residence, one of which was found “sticking out from the mattress” and another “sticking out from underneath the bed.” It is undisputed that the rifles were not used in the robbery. Both the victim and the other witness to the robbery described the weapon used in the robbery as a pistol, specifically a black revolver. The revolver used in the robbery was never found. The State, however, argued that evidence of the four rifles, two of which were partially hidden, was relevant to prove that Francois might once have possessed the revolver used in the robbery and subsequently concealed it, thereby causing the police to be unable to find it. The trial court immediately recognized that this argument was tenuous, at best, and labeled it “far-fetched.” The trial court nevertheless admitted the evidence, apparently believing that the evidence comprised part of the police investigation and that Francois would not be prejudiced by the testimony.

It is true, of course, that under section 90.403, Florida Statutes (2008), a trial court must balance whether the probative value of relevant evidence “is substantially outweighed by the danger of unfair prejudice .... ” Before undertaking that analysis, however, the court must first determine that the evidence is actually relevant — that it constitutes “evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). Contrary to the State’s suggestion, Francois’s possession of four rifles in his residence unrelated to the robbery, without more, did not tend to prove that he possessed and hid the never-found pistol used in the robbery. See Agatheas v. State, 77 So.3d 1232, 1237 (Fla.2011) (holding evidence that the defendant “carried a gun that could not possibly be the murder weapon in his backpack five years after the crime” was irrelevant); but cf. Johnson v. State, 93 So.3d 1066, 1069 (Fla. 4th DCA 2012) (holding evidence of a handgun that was not used in the charged offenses was relevant because it directly corroborated a material fact in a witness’s testimony — i.e., that the defendant sold the handgun used in the crime and obtained another).

The State argues in the alternative that any error in admitting the evidence of the four firearms was harmless. For good reason, the State must meet a high standard to establish that the improper admission of evidence, over objection, was harmless. As this court has repeatedly recognized:

Harmlessness is not established, as the state seems to argue, when there is otherwise sufficient, even persuasive, evidence in the record to support the convictions. Nor, as it seems to suggest, is the pertinent test satisfied by our being pretty sure either that the defendant actually was guilty, or that the jury was not influenced by the error we have identified. Instead, ... we must be satisfied beyond a reasonable doubt that it did not contribute to the verdict.

Cooper v. State, 778 So.2d 542, 545 (Fla. 3d DCA 2001) (quoting Ousley v. State, 763 So.2d 1256, 1257 (Fla. 3d DCA 2000)).

The State attempts to meet that burden by relying on Knight v. State, 15 So.3d 936 (Fla. 3d DCA 2009). The State’s argument hinges on the following language in the opinion: “[m]ere proof of legal ownership of the other weapons was, as defense counsel elicited from the venire, not to be considered prejudicial.” Id. at 939 (emphasis added).

Knight is distinguishable. In Knight, the overwhelming evidence indicated that the defendant owned an AK-47 rifle which he fired on the night in question, killing one person and wounding another. Id. at 937. He had a large collection of legal guns in his home that were not hidden, but the murder weapon was found in his home hidden in a crawl space. Id. The State in Knight argued that the contrast between the open possession of a collection of weapons and the concealment of the murder weapon tended to demonstrate consciousness of guilt. On appeal, this court agreed that admission of the existence of the open collection of guns, in light of the manner in which the murder weapon was so carefully hidden, was not an abuse of discretion and, in any event, constituted harmless error. Id. at 938. This conclusion was particularly inescapable because the defense itself had raised the existence of the defendant’s legal gun collection in its voir dire and opening statement. Id.

Absent from the instant case are the elements that were crucial to the holdings in Knight: the pistol used in the robbery was never found in Francois’s residence, or even found at all; there was no contrast between how some weapons in the residence were unconcealed but the weapon used in the crime was carefully concealed (and thus no inference of consciousness of guilt to be drawn by the concealment); and the defense did not raise the existence of the rifles on its own. Moreover, in Knight, the undisputed evidence was that the defendant’s ownership of the gun collection was legal. In contrast, in the instant case, there was no evidence that the four rifles at issue were legally owned by Francois and therefore that their possession was innocent. In fact, the State consciously or unconsciously may have been encouraging jurors to connect the dots and realize that Francois, a convicted felon, was in possession of firearms, which was itself illegal. Cf. Herman v. State, 396 So.2d 222, 229 (Fla. 4th DCA 1981) (holding that any error in admitting a shotgun into evidence that was not proven to be the shotgun used in the shooting was harmless because it is not illegal to own a shotgun and there were “no adverse connotations ... which would give rise to prejudicial inferences on the part of the jury”) (emphasis added).

Under the facts in this case, therefore, a real possibility existed that the admission of the existence of the four rifles, two of which were partially concealed, would cause the jurors to conclude that Francois exhibited a propensity to commit crimes. See Agatheas, 77 So.3d at 1239. “However, it is axiomatic that evidence of collateral crimes, wrongs, or acts committed by the defendant is not admissible where its sole relevance is to prove the bad character or propensity of the accused.” Id. In fact, the Florida Supreme Court has repeatedly held “the erroneous admission of irrelevant collateral crimes evidence is presumed harmful error ....” Id. at 1240 (internal quotation omitted). Given these circumstances, and our review of the entire record, we cannot conclude that the erroneously admitted evidence was harmless beyond a reasonable doubt.

Reversed and remanded for a new trial.

      . A trial court’s ruling on the relevance of evidence will not be reversed absent an abuse of discretion. Johnston v. State, 863 So.2d 271, 278 (Fla.2003). However, "[s]uch discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an 'erroneous view of the law or on a clearly erroneous assessment of the evidence.' " Patrick v. State, 104 So.3d 1046, 1056 (Fla.2012) (quoting McDuffie v. State, 970 So.2d 312, 326 (Fla.2007)).

      . In an amended information, the State had charged Francois with possession of a firearm by a convicted felon. This charge was severed from the other charges — armed robbery and conspiracy to commit armed robbery— prior to trial. This may explain why there was no discussion at trial concerning whether Francois — who testified at trial and admitted on cross-examination that he was a convicted felon — legally possessed the four firearms. It further serves to highlight the potential prejudice that can result from the erroneous admission of evidence of firearms.


author: SUAREZ, J.

text:
    Eric DUQUE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2381.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.
    Eric Duque, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   SUAREZ, J.

We affirm the trial court’s denial of the defendant’s motion to compel production of files and inspection.

Affirmed.


text:
    Kelvin STEWART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3186.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.
    Kelvin Stewart, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   SUAREZ, J.

Affirmed. See McDonald v. State, 957 So.2d 605 (Fla.2007); Knight v. State, 808 So.2d 210 (Fla.2002).


author: COHEN, J.

text:
    Sharon A. MOTIE, Appellant, v. Anirude MOTIE, Appellee.
    No. 5D12-3951.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2014.

      Tiffany Crews Loris of The Loris Law Group, Viera, for Appellant.
    Michael H. Kahn of Michael H. Kahn, P.A., Melbourne, for Appellee.
   COHEN, J.

Sharon Motie (“Former Wife”) appeals a final judgment of dissolution of marriage (“Final Judgment”). She raises several issues on appeal, only two of which have merit. She argues that the trial court erred in awarding her durational instead of permanent alimony and in incorrectly calculating retroactive alimony and child support. We agree.

Former Wife was married to Anirude Motie (“Former Husband”) for over seventeen years. During the marriage, the parties had two children who reached the age of majority prior to entry of the Final Judgment.

Former Wife obtained a bachelor’s degree in 1988 and worked prior to the marriage, earning between five and six dollars per hour. During the marriage, Former Husband, a veterinarian with his own practice, was the primary breadwinner for the family. Former Wife occasionally worked in Former Husband’s veterinary office but she was not paid. She also served as the full-time manager of an unsuccessful Blim-pies franchise that the parties purchased in 2004 until it closed in 2008. This was her only employment outside the home during the marriage.

The parties resided together with the children in the marital home until approximately June, July, or August 2010, even after Former Wife filed a petition for dissolution of marriage. From the date of filing until the sale of the marital home in February 2011, Former Husband gave Former Wife $6,021.83 per month to pay the household bills, including the mortgage on the marital home. After the house sold, Former Husband reduced his payment to Former Wife to approximately $1,700 per month until the court ordered him to pay $3,500 per month as temporary alimony.

Following trial, the trial court entered the Final Judgment. Among other rulings, the trial court imputed income of $10 per hour to Former Wife and awarded her durational alimony of $3,500 per month for eight years. The court calculated retroactive child support and alimony and found that Former Husband did not owe Former Wife any arrearage.

The first issue on appeal is whether the trial court erred in awarding Former Wife durational instead of permanent alimony. We review the trial court’s award of durational alimony for an abuse of discretion. See, e.g., Marshall v. Marshall, 953 So.2d 23, 25 (Fla. 5th DCA 2007) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)).

The purpose of permanent alimony is to “provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris, 382 So.2d at 1201; accord § 61.08(8), Fla. Stat. (2013). The primary factors to be considered in deciding to award alimony are the needs of one spouse and the ability of the other spouse to pay. Canakaris, 382 So.2d at 1201. The alimony statute, section 61.08, Florida Statutes, provides that permanent alimony may be awarded “following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2).... In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” § 61.08(8), Fla. Stat. Durational alimony, on the other hand, “may be awarded when permanent periodic alimony is inappropriate.” § 61.08(7), Fla. Stat. “The purpose of du-rational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis.” Id. Both types of alimony remain subject to modification upon a substantial change in circumstances. § 61.08(7), (8), Fla. Stat.

There is a rebuttable presumption that permanent periodic alimony is appropriate after a long-term marriage. Cerra v. Cerra, 820 So.2d 398, 401 (Fla. 5th DCA 2002) (citing Hill v. Hooten, 776 So.2d 1004, 1007 (Fla. 5th DCA 2001)). Neither age nor a spouse’s ability to earn some income will alone rebut the presumption. Id. There is also a rebuttable presumption that a marriage lasting seventeen years or longer is a long-term marriage. § 61.08(4), Fla. Stat.

Although the trial court has considerable discretion in determining an award of alimony, that discretion is not unlimited. Canakaris, 382 So.2d at 1203. Courts should avoid substantial disparities in domestic judgments that result from similar factual circumstances. See id. In almost every case with factual circumstances similar to those in the instant case, courts have found that permanent alimony was appropriate. See, e.g., Fortune v. Fortune, 61 So.3d 441 (Fla. 2d DCA 2011) (holding trial court abused discretion by not awarding permanent alimony in a “classic permanent alimony case” where former husband was breadwinner and former wife was homemaker); Alcantara v. Alcantara, 15 So.3d 844 (Fla. 3d DCA 2009) (holding trial court abused discretion by not awarding permanent alimony in long-term marriage where parties did not enjoy a lavish standard of living during marriage; noting that an award of permanent alimony is particularly appropriate where spouse has remained at home caring for the family rather than pursuing a career); Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994) (holding trial court abused discretion in not awarding permanent alimony to wife where marriage lasted for 13.5 years, parties agreed that husband would earn income while wife would be homemaker, and there was no evidence to indicate that wife would ever be able to support herself in a manner reasonably commensurate with the lifestyle attained during marriage).

In this case, there is a presumption in favor of permanent alimony because the marriage was long-term. See Cerra, 820 So.2d at 401. The trial court correctly considered the needs of Former Wife and the ability of Former Husband to pay. It found that Former Wife had a monthly need of $3,765 and imputed a monthly income of $1,738.38 to her. Regarding Former Husband’s ability to pay, it found that he earns a monthly gross income of $16,279.33 and is able to support Former Wife. The court then made the requisite findings of fact regarding the statutory factors. The court concluded that, considering the relevant factors, Former Wife had a need for support consisting of durational alimony for eight years. It noted that “[t]he actions of the parties, their credibility, their age, their expected ability to produce a fruitful income and the remaining considerations in the above factors do not meet the criterion for permanent periodic alimony.” The court’s factual findings were insufficient to conclude that there was no need for ongoing permanent support and rebut the presumption of permanent alimony. Therefore, we hold that the trial court abused its discretion in failing to award permanent periodic alimony.

The next issue is whether the trial court erred in finding that no arrearage was due. An award of retroactive alimony or child support is reviewed for an abuse of discretion. See, e.g., Cleary v. Cleary, 872 So.2d 299, 303 (Fla. 2d DCA 2004). In this case, the trial court made three legal errors in calculating the arrearage that require reversal.

First, the trial court erred by not making the requisite findings of fact and by failing to consider Former Wife’s need and Former Husband’s ability to pay during the retroactive period. Like an award of alimony, an award of retroactive alimony must be based on the payor-spouse’s ability to pay and the payee-spouse’s need for alimony. Alpert v. Alpert, 886 So.2d 999, 1002 (Fla. 2d DCA 2004); accord Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010) (reversing award of retroactive alimony and remanding where trial court did not make findings of fact regarding need and ability to pay during the retroactive period). Likewise, in this case, the trial court did not make any findings of fact regarding Former Wife’s need or Former Husband’s ability to pay during the retroactive period.

Second, the trial court erred in calculating the retroactive child support. In determining child support, “the court has discretion to award child support retroactive to the date when the parties did not reside together in the same household with the child ....”§ 61.30(17), Fla. Stat. (2013). Awarding child support retroactively to a time period when the parties were residing together is reversible error. See Ditton v. Circelli, 888 So.2d 161, 162-63 (Fla. 5th DCA 2004). Here, the trial court did not make a finding regarding when the parties separated. However, the record demonstrates that the parties were living together for at least part of the retroactive period. Therefore, the trial court erred in awarding child support retroactively to a period of time when the parties were still residing together.

Lastly, the trial court erred by giving Former Husband a credit for making payments to Former Wife that she used to pay the mortgage and by double-counting those payments. We have held that when the husband was generally responsible for paying the mortgage and other household expenses during the marriage, by virtue of being the primary breadwinner, it is “inappropriate for the trial court to award a credit to [the husband] for paying the expenses on the marital home during the separation.” Cortese v. Cortese, 72 So.3d 269, 269-70 (Fla. 5th DCA 2011) (citing Kranz v. Kranz, 737 So.2d 1198, 1202-03 (Fla. 5th DCA 1999)); accord Valentine, 42 So.3d at 274-75; Knecht v. Knecht, 629 So.2d 883, 888 (Fla. 3d DCA 1993).

Here, the court found that Former Husband was paying “undifferentiated support” of approximately $6,000 per month from October 2009 until February 2011, when he decreased the support to approximately $1,763. It is undisputed that at least part of the $6,000 Former Husband gave Former Wife per month between October 2009 and February 2011 was used to pay the mortgage and other household expenses. Therefore, under Córtese, Valentine, and Knecht, it was improper to give Former Husband a support credit for the entire $6,000 per month, and the $103,823.97 credit must be recalculated.

The court then found, after calculating retroactive child support, that Former Husband owed an arrearage of $4,536 in total, but concluded that no arrearage was due because “the husband paid the full mortgage and other marital bills.” Thus, because the court used the $6,000 payments, which were used to pay the mortgage, to calculate Former Husband’s credit, it was error for the court to also consider the fact that “the husband paid the full mortgage and other marital bills” to justify that no arrearage was due. In essence, it appears that the court double-counted the mortgage payments.

In sum, we reverse the portion of the Final Judgment that awards Former Wife durational alimony and the portion that provides that no arrearage is due, and remand for further proceedings consistent with this opinion. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER and WALLIS, JJ., concur.

      . The trial court did not abuse its discretion in imputing income to Former Wife. Although she had never earned $20,000 per year during the marriage, she obtained marketable skills working in the veterinary office and managing the Blimpies. Cf. Shafer v. Shafer, 45 So.3d 494 (Fla. 4th DCA 2010); Schlagel v. Schlagel, 973 So.2d 672 (Fla. 2d DCA 2008).

      . Former Husband claims that Former Wife has the ability to earn substantially more in the future; however, the evidence was not conclusive on this issue. If Former Wife secures a job where she earns substantially more income than expected, Former Husband's remedy is to file a petition for modification.

      . Former Husband maintains that the calculation was nevertheless correct because he continued to pay Former Wife’s car insurance and Former Wife failed to pay some of the necessary household expenses with the money given to her; however, the trial court made no such findings of fact.


text:
    Gregory WINTERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0165.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.

      Gregory Winters, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Appellant’s request for leave to file a petition for belated appeal is denied. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

THOMAS, RAY, and SWANSON, JJ., concur.


author: GRIFFIN, J.

text:
    Amy M. LEMING, Appellant, v. Jody D. JENKINS, Appellee.
    No. 5D13-2240.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2014.
    Dorothy J. McMichen, of McMichen, Ci-nami & Demps, PLLC Orlando, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Amy M. Leming [“Wife”], appeals the trial court’s non-final order denying Wife’s motion to transfer to Tennessee the child custody portion of the dissolution action, which was filed in Florida by her estranged husband, Jody D. Jenkins, based on her contention that Florida is an inconvenient forum. Wife contends that the trial court abused its discretion by denying her motion and, moreover, contends that this denial violated her due process rights.

The trial court denied the motion, filed pursuant to section 61.520, Florida Statutes (2013), after weighing the factors enumerated under that section and finding that Wife had not met her burden to establish that Tennessee is a more appropriate forum for hearing the case. The trial court’s decision to retain jurisdiction over the child-custody determination did not constitute an abuse of discretion.

AFFIRMED.

EVANDER and BERGER, JJ., concur.


text:
    Chester J. TROW, etc., et al., Appellants, v. John SINGLETON and Susan C. Singleton, et al, Appellees.
    No. 5D13-467.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2014.
    Thomas Jeffrey Dobbins, of Trow & Dobbins, P.A., Ocala, and Jonathan S. Dean and Patrick I. McLaughlin, of Dean & Dean, LLP, Ocala, for Appellants.
    Michael S. Hoffman and Trenton M. Swan, of Hoffman, Larin & Agnetti, P.A., Miami, for Appellees John Singleton and Susan C. Singleton.

      Sarah Lahlou-Amine, of Fowler White Boggs P.A., Tampa, for Appellee, Susan Hogan.
   PER CURIAM.

Because there was a lack of “summary judgment evidence” to support all of the necessary allegations set forth in Appel-lees’ motion for summary judgment, we are compelled to reverse. See Fla. R. Civ. P. 1.510(c) (“The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies.... The judgment sought shall be rendered forthwith if the pleadings and summary judgment 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.”).

REVERSED.

ORFINGER, EVANDER and WALLIS, JJ., concur.


text:
    CITY OF APALACHICOLA, Appellant, v. FRANKLIN COUNTY, Board of County Commissioners, Appellee.
    No. 1D13-1929.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    J. Patrick Floyd, Apalachicola, for Appellant.
    Thomas M. Schuler, Apalachicola, for Appellee.
   PER CURIAM.

The City of Apalachicola appeals a final order dismissing, with prejudice, its complaint for failure to state a cause of action. Because the complaint sufficiently stated a claim for declaratory relief, we reverse, in part, affirm, in part, and remand for further proceedings consistent with this opinion.

After members of the Franklin County Board of Commissioners failed to attend two meetings scheduled by the City pursuant to the Florida Governmental Conflict Resolution Act, chapter 164, Florida Statutes, to address the distribution of funds allocated to the County following the oil spill in the Gulf of Mexico in 2010, the City of Apalachicola (hereafter, City) filed suit alleging:

Plaintiff, City of Apalachicola through its Mayor and City Commission, hereby files this suit against the Franklin County Board of County Commissioners, for declaratory and incidental injunctive relief as well as attorney’s fees and costs necessitated by the Franklin County Commissioners intentional refusal and failure to comply with the requirements of the Florida Governmental Conflict Resolution Procedure in Statute § 164 and in particular the refusal by Defendant to participate and meet in the required conflict resolution procedure Statute § 164.1053 of a “joint public meeting” with the City Commissions of City of Apalachicola and the City of Carrabelle on December 19, 2012, and Plaintiff states as follows:
1. This is an action for declaratory and incidental injunctive and other relief as necessary all within the jurisdiction of this court regarding conflicts between and among governmental entities (between the Franklin County Commission and the Cities of Apalachicola and Car-rabelle) under Florida Statutes Chapter 164.

The City further alleged:

15. [The City] is in doubt as to its responsibilities and duties under Florida Statute § 164.055 and Plaintiff requests] the Court to issue a declaratory decree to define the rights and duties of the parties under Florida Statutes Section § 164.055 and specifically declaring that Defendants, among other requirements set forth in the Statute, is [sic] mandated to attend the Joint Public Meeting and perform the tasks as delineated in Florida Statute § 164.1055(1).

In its prayer for relief, among other things, the City requested of the circuit court:

I. To issue a declaratory decree declaring that Franklin County, Board of County Commission[ers,] is required under the facts of this case by Florida Statute 164.1055 to attend the Joint Public Meeting and take action as required by Florida Statutes § 164.1055(l)(a)(b) and (c) referenced above.
III. To declare that the Franklin County Board of County Commission[ers] is required to comply with the requirements of Florida Statute § 164.1055(2) if no agreement is reached upon completion of Florida Statute § 164.1055(1) — Joint Public Meeting requirements and reserve jurisdiction to issue injunctive and other relief as necessary to compel the participation of Franklin County, Board of County Commissioners in the Governmental Conflict Resolution Procedures of Florida Statute § 164.1055(2) with the Cities of Apalachicola and Carrabelle.

On motion of the County, the circuit court dismissed the complaint with prejudice because, it ruled, the Florida Governmental Conflict Resolution Act does not create a cause of action. The circuit court erred in construing the complaint as asserting a cause of action for relief pursuant to the Florida Governmental Conflict Resolution Act. Instead, the complaint seeks declaratory relief, and adequately states a cause of action for such relief.

In chapter 164, Florida Statutes, the legislature intended to enhance intergovernmental coordination by creating a governmental conflict resolution procedure to provide a method for resolving conflicts between and among local and regional governmental entities. § 164.102, Fla. Stat. (2012). Section 164.1056 provides that, if the governmental entities fail to resolve a conflict through the procedures set forth in sections 164.1053 and 164.1055, “the entities participating in the dispute resolution process may avail themselves of any otherwise available legal right.” A declaratory judgment action is an “otherwise available legal right.”

Florida’s Declaratory Judgment Act, sections 86.11 through 86.111, Florida Statutes (2012), gives jurisdiction to the circuit courts to grant declaratory relief. The declaratory judgment act is to be liberally construed so as to afford parties relief from insecurity and uncertainty with respect to their rights and status. Olive v. Maas, 811 So.2d 644, 648 (Fla.2002); Santa Rosa County v. Administration Comm’n, Div. of Administrative Hearings, 661 So.2d 1190, 1192 (Fla.1995).

While the complaint does not specifically reference chapter 86, Florida Statutes, the passages quoted above plainly disclose that the City seeks declaratory relief as authorized by that chapter. The facts alleged in the complaint, which must be accepted as true when passing on a motion to dismiss, see Cortez v. Palace Resorts, Inc., 123 So.3d 1085 (Fla.2013), demonstrate there is a bona fide, actual, present practical need for the declaration with respect to the interests and obligations under the Florida Governmental Conflict Resolution Act. See Santa Rosa County v. Administration Com’n, Div. of Administrative Hearings, 661 So.2d at 1192-1193 (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)); see also Florida Dep’t of Ins. v. Guarantee Trust Life Ins. Co., 812 So.2d 459 (Fla. 1st DCA 2002).

As the City makes no argument as to the dismissal of its claim for injunctive relief, the final order of dismissal is affirmed with regard to that claim. As to the claim for declaratory relief, and any attending attorney’s fees and costs which may be awardable, the final order is reversed, and the cause is remanded for further proceedings.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.


author: LEWIS, C.J.

text:
    Ralph K. FRANKLIN, Jr., Appellant, v. RIVIERA BEACH FIRE RESCUE and Gallagher Bassett Services, Appellees.
    No. 1D13-2765.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.

      Michael H. Stauder of the Stauder Law Group, Jupiter, for Appellant.
    Christine M. Tomasello of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Appellees.
   LEWIS, C.J.

In this workers’ compensation case, Claimant argues that the Judge of Compensation Claims (JCC) erred when he denied Claimant’s claim for upgraded hearing aids. Because the employer/servicing agent (E/SA) agreed to provide the upgraded hearing aids — and only challenged the specific model requested by Claimant — we hold that the JCC abused his discretion, when he denied the claim in its entirety based on insufficient evidence to establish the need for upgraded hearing aids.

The basic facts in this case are not in dispute. Claimant, a former firefighter, suffered a partial loss of hearing in both ears related to on-the-job noise exposure. The E/SA accepted compensability for a date of accident of October 19, 1999, and provided medical care, including the furnishing of hearing aids. According to Claimant, the E/SA had routinely provided upgraded hearing aids at the request of the authorized treating physician approximately every two years.

In July 2012, the authorized treating physician wrote a prescription for “upgrade new hearing aides (sic) for [Claimant] as per audiologist’s request.” Claimant met with a hearing aid specialist who, after testing, recommended the Beltone True 17. The claims adjuster for the E/SA later told the hearing aid specialist that the Beltone True 17 model was too costly and asked for something less expensive. Claimant, however, was unwilling to consider another hearing aid model.

On October 3, 2012, Claimant filed a petition for benefits (PFB) requesting “authorization for appropriate hearing aids recommended by [Claimant’s] medical professional which carrier has refused to authorize.” In its response to the PFB, the E/SA stated that “[t]he hearing aids as recommended by the treating physician were never denied, they were previously authorized.” In the written pretrial stipulation and at the final hearing, the E/SA continued to assert that the hearing aids recommended by the authorized treating physician had never been denied. At the beginning of the final hearing, the attorney for the E/SA conceded that “[t]he issue here is preference, not medical necessity” and whether the E/SA should provide Claimant with “the specific and only request” that Claimant had made. At no point, however, did the E/SA provide any argument or evidence of what other model, or models, would be appropriate medically necessary hearing aids in accordance with the authorized treating physician’s recommendation.

Despite the E/SA’s concession that Claimant is entitled to new (upgraded) hearing aids based on the recommendation from the authorized treating physician, the JCC here found that Claimant failed to prove the need for an upgrade with objective medical evidence. In reaching this finding, however, the JCC abused his discretion. The right to receive workers’ compensation benefits is a property right protected by procedural due process. Rucker v. City of Ocala, 684 So.2d 836, 840-41 (Fla. 1st DCA 1996). At pretrial, the parties are required to identify the claims, defenses and issues to be addressed at the final hearing. Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1006 (Fla. 1st DCA 2004). Furthermore, “[b]e-cause due process rights are implicated, a party has a right to rely upon the issues as framed in the pretrial statement.” Knight v. Walgreens, 109 So.3d 1224, 1228 (Fla. 1st DCA 2013) (citing Isaac, 871 So.2d at 1004).

In Knight, this court held that the JCC violated the claimant’s due process rights where the JCC considered defenses of medical necessity and major contributing cause, which were not raised by the employer/carrier in the pretrial stipulation. 109 So.3d at 1228. Here, the E/SA stated in the pretrial stipulation that the claim for the hearing aids recommended by the treating physician had never been denied and expressly conceded at the final hearing that the medical necessity of upgraded hearing aids, as recommended by the authorized treating physician,' was not an issue. Under these circumstances, it was a violation of due process and an abuse of discretion to deny Claimant’s claim for authorization of upgraded hearing aids, without qualification, based on a finding that Claimant failed to produce evidence of medical necessity for any upgrade. Accordingly, the order is REVERSED and REMANDED for further proceedings regarding appropriate upgraded hearing aids.

WOLF and ROBERTS, JJ., concur.


author: KELLY, Judge.

text:
    AMERICAN HOME MORTGAGE SERVICING, INC., Appellant, v. Lucy BEDNAREK, Appellee.
    No. 2D12-2099.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Albert Zakarian and Aaron W. Saoud of the Law Office of Daniel C. Consuegra, Tampa, for Appellant.
    Matthew D. Weidner and Michael P. Fuino of Matthew D. Weidner, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

American Home Mortgage Servicing, Inc. (AHMSI), appeals a final order dismissing its foreclosure action against Lucy Bednarek for lack of standing. Because we conclude the trial judge erred in finding that AHMSI did not establish its standing to foreclose on the mortgage when it filed the complaint, we reverse.

On May 31, 2005, Ms. Bednarek executed a note and mortgage in favor of American Brokers Conduit for the purchase of real property. Thereafter, the loan was sold to Deutsche Bank. On March BO, 2006, American Brokers Conduit assigned the mortgage to the bank’s servicing agent, AHMSI-Maryland. In September 2007, AHMSI-Maryland filed a complaint for foreclosure, alleging it was the owner and holder of the underlying promissory note. With the complaint and the amended complaint, AHMSI-Maryland filed copies of the mortgage, the promissory note showing a blank endorsement, and the 2006 assignment of mortgage. In April 2008, AHMSI purchased AHMSI-Mary-land, acquiring the company’s servicing rights. In 2009, AHMSI filed the original note and mortgage with the trial court.

At the nonjury trial, AHMSI introduced the original note and mortgage into evidence. AHMSI also presented the testimony of its foreclosure special assets specialist, Krystal Kearse, who traced the history of the loan from its inception in 2005 when the loan was being serviced by its predecessor, AHMSI-Maryland, until AHMSI received the documents to proceed with foreclosure proceedings. Ms. Kearse testified that in purchasing AHM-SI-Maryland, AHMSI acquired the servicing rights to all of AHMSI-Maryland’s loans.

At the close of testimony, counsel for Ms. Bednarek made an oral motion to involuntarily dismiss the action, arguing AHMSI had no standing to foreclose because it was not the original plaintiff and not the owner and holder of the note. Relying on McLean v. JP Morgan Chase Bank National Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012), the trial court granted the motion on the ground AHMSI had failed to prove it was the owner of the note and mortgage.

A party seeking foreclosure must establish that it had standing to foreclose at the time it filed the complaint. McLean, 79 So.3d at 173. A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed. Id. A plaintiff may also establish standing to foreclose by submitting evidence of a special endorsement on the note in favor of the plaintiff or a blank endorsement, an assignment from the payee to the plaintiff, or an affidavit of ownership. Id. at 174.

Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.

Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011)).

Here, because the note at issue is endorsed in blank, and because AHMSI possessed the original note, its standing to foreclose is established from its status as the note holder. See id.; see also BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”); Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.”). Accordingly, we reverse the involuntary dismissal of AHMSI’s foreclosure action and remand for further proceedings.

Reversed and remanded.

CRENSHAW and BLACK, JJ„ Concur.

      . The original plaintiff in this foreclosure action was American Home Mortgage Servicing, Inc., a Maryland corporation (AHMSI-Mary-land). The appellant, American Home Mortgage Servicing, Inc., a Delaware corporation (AHMSI), purchased AHMSI-Maryland during the pendency of the action.


text:
    Alexeis RAMAYO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3336.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   SALTER, J.

Alexeis Ramayo appeals from a judgment of conviction and sentence following a jury trial. He was convicted of sexually molesting his three-year-old niece, S.N.R., in the absence of any physical evidence and in the absence of any eyewitness testimony (other than the child’s videotaped interview). The jury returned a verdict of not guilty as to sexual battery on a child under 12, but guilty of battery as a lesser included offense of sexual battery, and a verdict of guilty on separate counts of lewd and lascivious exhibition and molestation. We reverse and remand for a new trial on the three counts as to which the jury found Mr. Ramayo guilty, concluding that the testimony of a pediatrician (who made no physical findings of abuse but diagnosed the case as one of “sexual abuse by history”) impermissibly bolstered S.N.R.’s statements.

I. Proceedings in the Circuit Court

The evidence adduced both before and at trial was sharply conflicting. There was no DNA or other forensic evidence to prove or disprove guilt. Mr. Ramayo’s wife, from whom he was separated well before the alleged incident, and her sister (S.N.R.’s mother), freely admitted that they had a poor relationship with Mr. Ra-mayo before the alleged incident occurred. At the time of the investigation, and later upon remote video testimony observed by the jury, S.N.R. gave inconsistent accounts of what happened and dubious answers to questions designed to determine whether she knew the difference between true and false, and between right and wrong. When interviewed by an expert psychologist before trial, S.N.R. initially denied that anyone had touched her private parts or had seen anyone else’s private parts. After an assistant state attorney had a private discussion with the child, S.N.R. was crying, and she then told the psychologist that yes, Mr. Ramayo had done those things. The psychologist testified that she asked the child why she was crying, and S.N.R. said, “the other lady tricked me.”

The case proceeded to trial. During jury selection, the prosecutor intimated that the jury might wonder how there might be police reports that would not be introduced into evidence. After a defense objection, the trial judge sustained the objection and gave the venire a curative instruction. The trial judge denied a defense motion for a mistrial based on the prosecutor’s statement.

Of greater significance, the State offered (over repeated objection) expert testimony by Dr. Walter Lambert, a physician specializing in pediatrics. Dr. Lambert testified that he is a pediatrician at the University of Miami and a medical director for the Child Protection Team for Miami-Dade and Monroe Counties. A 1985 graduate of the University of Miami School of Medicine, Dr. Lambert testified that he is an associate professor of clinical pediatrics at U.M.’s medical school. He is a Florida board-certified pediatrician with a subspe-cialty in child abuse, but not a psychologist.

Dr. Lambert described the Child Protection Team as a “group of people independent of the Department of Children and Families, independent of law enforcement, of the State Attorney’s office to look at [child abuse] cases that are reported as suspicious.” He described the team’s job as “to say if it’s true, if it’s not true, or we can’t tell.” He said the Team is multidisciplinary, including social workers and psychologists as well as physicians. Most of his work, he said, “is going to involve allegations of inflicted injuries, problems with nutrition, failure to thrive, and allegations of sexual abuse.” He testified that he has conducted such investigations since 1988. He estimated that he has conducted about 5,000 evaluations with the Child Protection Team over that period.

Dr. Lambert testified that he teaches at the Medical School and lectures “fairly extensively across the United States and South America, occasionally other places.” Over a renewed defense objection (relating to the nature of, and basis for, his opinion in the case, and not to his impeccable credentials as a pediatrician), Dr. Lambert was accepted by the trial court as an expert witness in “pediatric child maltreatment and sexual abuse.”

During the continued direct examination, Dr. Lambert described the guidelines for his investigations with the Child Protective Team and the difference between an “acute” case (child patient presenting with pain, visible signs of injury, or physical evidence susceptible to forensic analysis) and a case (as here) that is past that stage. Dr. Lambert examined S.N.R. when she was approximately three years and ten months old. The examination took place sixteen days after the alleged incidents. Dr. Lambert’s testimony and contemporaneous written report (admitted into evidence) found no bruises or lesions; and no discharge, rash, or other lesions in the area of her genitalia and rectum. Dr. Lambert testified that “She had a completely normal exam. She would have an exam like that if she had walked into my office and I was her regular pediatrician that I would have expected.” But based on S.N.R.’s statements, Dr. Lambert rendered an opinion that “this case represents sexual abuse by history.”

On cross-examination, Dr. Lambert explained that “history” meant “the history the person provided when they presented themselves,” as well as reports by others (in the present case, this was the State’s forensic investigator who had interviewed the mother and S.N.R. the same day Dr. Lambert examined S.N.R.).

Mr. Ramayo testified that he had not committed any of the alleged acts, and that S.N.R.’s mother (his sister-in-law) had a very bad relationship with him. He testified that he was separated from his wife (the sister of S.N.R.’s mother). The defense emphasized that Mr. Ramayo’s wife and sister-in-law were upset with him over an IRS refund check that they did not want to share with him, and Mr. Ramayo contended that the alleged crimes could not likely have been committed in a one-bedroom apartment with nine persons in it.

As noted, the jury returned guilty verdicts on two of the four counts, a guilty verdict on a lesser included offense as to a third count, and a verdict of not guilty on the charge of sexual battery on a victim under 12. This appeal followed.

II. Analysis — Bolstering

Dr. Lambert’s qualifications, experience, and good faith are not questioned by the parties or the Court. Mr. Ramayo’s legal argument, instead, is that Dr. Lambert’s expertise, credentials, and articulate testimony may have so bolstered the child’s testimony as to announce guilt before the jury heard all the evidence and considered the case. Dr. Lambert’s testimony that there were no physical findings during his examination of S.N.R. supporting an allegation of sexual abuse was proper. It was also proper for him to opine that the absence of physical findings does not necessarily disprove the allegation of sexual abuse, particularly given the sixteen-day interval between the alleged incident and Dr. Lambert’s physical examination of S.N.R.

What Dr. Lambert could not do, however, was to opine directly on S.N.R.’s credibility or otherwise vouch for her truthfulness. Geissler v. State, 90 So.3d 941 (Fla. 2d DCA 2012). In Geissler, the allegations of child sexual abuse were related by a seven-year-old. The child was examined by an advanced registered nurse practitioner and medical examiner with the New Port Richey office of the regional Child Protection Team. The nurse practitioner “has a master’s degree in child health and has conducted thousands of examinations for child sexual abuse during her nine years with CPT.” Id. at 946. As here, the physical examination of the child “disclosed no physical findings supporting the allegation that sexual abuse had occurred.” Id. at 947. The nurse practitioner testified that many types of sexual abuse do not leave physical findings in an exam, and that the case appeared to be one of “sexual abuse without physical findings on the exam.”

On appeal, the Second District reversed Mr. Geissler’s conviction and remanded the case for a new trial:

As a general rule, “it is not proper to allow an expert to vouch for the truthfulness or credibility of a witness.” Frances v. State, 970 So.2d 806, 814 (Fla.2007) (citing Feller v. State, 637 So.2d 911, 915 (Fla.1994), and State v. Townsend, 635 So.2d 949, 958 (Fla.1994)). The general rule applies to prohibit an expert witness from testifying concerning the truthfulness or credibility of the victim in child sexual abuse cases. Tingle v. State, 536 So.2d 202, 205 (Fla.1988); Weatherford v. State, 561 So.2d 629, 634 (Fla. 1st DCA 1990). Of course, a nurse practitioner such as Ms. Nadkarni may testify to the physical findings observed on examination of a child victim. See State v. Gerry, 855 So.2d 157, 160 (Fla. 5th DCA 2003). It is also proper for such a nurse practitioner to explain why, given the nature of the abuse alleged, physical injury may not be observed on examination. Id.
Even if the expert does not comment directly on the child victim’s credibility, expert testimony is improper if the juxtaposition of the questions propounded to the expert gives the jury the clear impression that the expert believed that the child victim was telling the truth. Hitchcock v. State, 636 So.2d 572, 575 (Fla. 4th DCA 1994); Price v. State, 627 So.2d 64, 66 (Fla. 5th DCA 1993). Here, Ms. Nadkarni did not opine directly on [the child’s] credibility. Nevertheless, Ms. Nadkarni’s testimony concerning her “medical assessment” that sexual abuse had occurred was based entirely on the history of sexual abuse reported by the child. This testimony left the jury with the unmistakable impression that Ms. Nadkarni’s opinion — supported as it was by her impressive credentials — was that [the child’s] account of the sexual abuse was truthful. The admission of this opinion testimony — especially in a case where the child has testified that she fabricated her story about the sexual abuse for an ulterior motive — was error. See Feller v. State, 637 So.2d 911, 915 (Fla.1994).

Id.

In the present case, as in Geissler, we cannot conclude that the admission of Dr. Lambert’s testimony and written examination report regarding a diagnosis of sexual abuse was harmless error. The State has not met its burden to show beyond a reasonable doubt that the improper bolstering of S.N.R.’s video testimony did not contribute to the jury’s verdict. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Our conclusion on this issue also finds support in appellate decisions from at least four other states. See Michigan v. Harris, 2012 WL 2946100 (Mich.App. July 19, 2012) (stating that a medical expert’s opinion based on the history of the victim, not on the expert’s expertise, is inadmissible as being nothing more than an opinion that victim is truthful); Oregon v. Southard, 347 Or. 127, 218 P.3d 104 (2009) (finding that a medical diagnosis of sexual abuse is not admissible in the absence of physical evidence because the methodology used to reach that diagnosis is largely dependent on an implicit credibility assessment, making the risk of prejudice greater than its probative value, particularly where the expert does not tell the jury anything it could not determine on its own); Ohio v. Winterich, 2008 WL 1747433 (Ohio App. 2008) (finding inadmissible the testimony of a doctor who based her abuse diagnosis only on the alleged victim’s statement, as this was improper bolstering of victim’s allegations); Rhode Island v. Castore, 435 A.2d 321, 326 (R.I.1981) (rejecting admissibility of expert testimony where opinion “was based, not upon his examination of [the alleged victim] or upon laboratory tests, but solely on what [the alleged victim] had related to him about what went on”).

III. Conclusion

We have carefully considered the remaining arguments raised by Mr. Ra-mayo and find them moot, lacking merit, or both. We do not find that Dr. Lambert’s testimony and opinion regarding a diagnosis of “sexual abuse by history” in this case warranted a Frye test, because of our conclusion that his expert opinion was impermissible bolstering and thus inadmissible. Nor do we find that the trial court abused its discretion in denying a defense motion for mistrial based on the prosecutor’s comments about possible police reports. The trial judge sustained the defense objection and promptly issued a curative instruction to the jury. Joseph v. State, 704 So.2d 1149 (Fla. 3d DCA 1998).

For all these reasons, we reverse the judgment of conviction and sentence below, and we remand the case for a new trial.

      . The alleged sexual abuse occurred on June 5, 2010; the first report to the North Miami Police was made by S.N.R.’s mother on June 11, 2010; and the medical examination was on June 21, 2010.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The State made no attempt to proffer or establish any medical literature or consensus regarding a diagnosis of "sexual abuse by history” in reliance on statements by an alleged child victim in the absence of physical or forensic evidence.


author: EMAS, J.

text:
    Raymond B. VICKERS, Appellant, v. HBS COLLECTIONS, LLC, Appellee.
    No. 3D13-1368.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.

      South Milhausen, P.A. and Fred Lee Morrison, for appellant.
    Fowler White Burnett, P.A. and June Galkoski Hoffman, Fort Lauderdale, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Raymond B. Vickers appeals a non-final order denying his motion to dismiss the amended complaint for lack of personal jurisdiction. Vickers, a resident of Alaska since January 2008, was sued in 2011 by HBS Collections, LLC (“HBS”), as assign-ee of the law firm of Fowler White Burnett (“FWB”), for unpaid legal bills allegedly incurred by Vickers from 2007 through 2010. The amended complaint, which included a count for breach of oral contract and quantum meruit, alleged, in part, that FWB and Vickers orally agreed FWB would perform legal services in the State of Florida and that all payments for those services were due to be paid in Miami-Dade County. It also alleged that Vickers maintained several residences in Florida and had continuous and systematic business relationships in Florida. Attached to the amended complaint were nearly 150 pages of invoices sent by FWB to Vickers between 2007 and 2010, purportedly covering a variety of matters in which FWB performed legal services on behalf of Vick-ers, as well as legal services related to various Florida ventures in which Vickers was involved.

Vickers moved to dismiss for lack of personal jurisdiction. In support of his motion, Vickers filed an affidavit in which he denied entering into an oral contract with FWB to perform legal services on his behalf, denied agreeing to pay for any of the legal services allegedly performed, and denied authorizing FWB to perform on his behalf the legal services reflected in the invoices attached to the amended complaint. Vickers further averred that since his move to Alaska in 2008, any communication with FWB was not in a personal capacity but only in his capacity as a director of Florida companies and as personal representative of his mother’s estate.

HBS responded by filing the affidavit of FWB attorney, Howard Gordon, who disputed Vickers’ assertion that he did not contract with FWB for legal services. Gordon also averred that the law firm has maintained a continuous professional relationship with Vickers from 1998 to the present, that Vickers directed the litigation and other legal matters in Florida, that legal services were provided to Vickers both personally and in a representative capacity, and that FWB continued to provide legal services to Vickers even after he relocated to Alaska.

After a non-evidentiary hearing, the trial court denied Vickers’ motion to dismiss. Because those averments in the competing affidavits that bear on the issue of personal jurisdiction are in direct conflict and cannot be harmonized, the trial court is required to conduct a limited evidentiary hearing to resolve the disputed facts and determine the jurisdictional issue. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989); Instrumentacion, Ltda. v. Philips Elec. N. Am. Corp., 951 So.2d 1001, 1003 (Fla. 3d DCA 2007). We therefore reverse and remand for the trial court to permit limited jurisdictional discovery (if necessary), and thereafter to conduct a limited evidentiary hearing as set forth by the Florida Supreme Court in Venetian Salami.

REVERSED AND REMANDED.

      . Because we reverse and remand for a limited evidentiary hearing, we do not reach the merits of the other issues raised in this appeal.