author: SALTER, J.

text:
    ALTAMONTE SPRINGS IMAGING, L.C., etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Appellees.
    Nos. 3D08-652, 3D07-3009.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.

      Todd E. Copeland and Robert J. Crohan Jr., Orlando, for appellant.
    Carlton Fields and Benjamine Reid and Paul L. Nettleton and Cristina Alonso, Miami; Sacher, Zelman, Hartman, Paul, Beiley & Rolnick and Alan H. Rolnick, Miami, for appellees.
    Before ROTHENBERG, LAGOA and SALTER, JJ.
   SALTER, J.

Altamonte Springs Imaging, L.C., an in-tervenor below, appeals a final circuit court consent judgment certifying a class, approving a settlement agreement, and awarding fees to the class representative and its attorneys. The lawsuit is based on the alleged failure of State Farm Mutual Automobile Insurance Company to correctly compute and pay the amounts due medical providers for magnetic resonance imaging services under section 627.736(5)(b)5, Florida Statutes (2001). We affirm the final judgment in all respects.

I. CPI, MRI, PIP, and Commonality

The legislature enacted section 627.786(5)(b)5 in 2001 to provide consumer price index (CPI) adjustments for magnetic resonance imaging (MRI) reimbursements in personal injury protection (PIP) claims. Although the statutory language was refined over the next few years, a number of PIP insurers and MRI providers sparred over the manner in which the CPI adjustments should be computed and paid. Some insurers, including State Farm, apparently did not pay the adjustments for certain years because of the alleged interpretive issues.

To place the issue in perspective, allowed amounts for MRI services are typically between $1,000 and $2,000, and the average CPI adjustments (increases) per year have been between 3% and 5%. There are thousands of these claims for PIP reimbursement in Florida each year. If an insurer failed or refused to pay the correctly-adjusted amount and the MRI provider later prevailed in a county court action to obtain the adjustment — often an amount between $20 and $200 — the Florida Insurance Code fee-shifting provision mandated an award of attorney’s fees and costs to the MRI provider.

It is difficult to imagine a group of claims better suited for class adjudication. The claims are brought by a particular group under a particular statute, and the judicial economy obtained in a class action resolving thousands of such claims is obvious. An economic analysis regarding the efficiency of thousands of county court cases involving single claims averaging $100 and transactional costs (legal fees alone, and putting aside the costs incurred by the State’s judicial branch) of ten to a hundred times that, does not require extended number-crunching.

II. The Class Action and Proposed Settlement

Appellee and class plaintiff below, Open MRI of Miami-Dade, Ltd., commenced a circuit court action in 2004 on behalf of itself and other MRI providers allegedly denied the correct CPI adjustments by appellee-defendant State Farm. Following various motions and class-related discovery, Open MRI and State Farm entered into a proposed class action settlement agreement and sought court approval to notify over 14,600 putative class members regarding the proposed terms. The court entered a preliminary order regarding the proposed settlement and conditionally certifying the three classes proposed by the parties: a settlement class (all providers that billed State Farm for MRI services and were paid, but without the CPI adjustment), a declaratory judgment class (a mandatory class including all class members), and a money damages class (all members who have not opted out and share in the settlement funds). The preliminary order also scheduled a fairness hearing for a date well after the period allowed for mailings and other contacts with putative class members.

III. ASPs Intervention and Objections

ASI provides MRI services in central Florida and has previously obtained several judgments against State Farm for CPI adjustment claims under section 627.736(5)(b)5. In response to the notice and preliminary order regarding the proposed class action settlement, ASI moved to intervene. That motion was granted, and ASI submitted an opposition to the proposed settlement.

ASI ultimately represented that it had approximately 380 claims against State Farm that would be included in the class and the settlement, and it objected to class certification and approval of the settlement on a broad assortment of grounds. Procedurally, ASI claimed that it had been denied adequate notice of the settlement terms and an adequate opportunity to obtain certain discovery. Regarding class certification, ASI argued that the interests of the class members were too divergent to satisfy the commonality, typicality, and adequacy requirements imposed by Florida Rule of Civil Procedure 1.220(a). Regarding the proposed settlement, ASI asserted that the declaratory relief provision — essentially an injunction precluding class members from filing any suit in Florida seeking any computation of the statutory CPI adjustment other than as set forth in the settlement agreement — would preclude ASI and other claimants from exercising “opt out” rights and their rights under existing judgments. ASI also objected to the amount to be paid the class representative ($10,000) and to the attorneys for Open MRI and the class ($485,000). These objections were rejected by the trial court, and we review those findings under the abuse of discretion standard of review. Allstate Indem. Co. v. De La Rosa, 800 So.2d 245 (Fla. Bd DCA 2001) (findings supporting certification of a class under Rule 1.220); Ramos v. Philip Moms Cos., 743 So.2d 24 (Fla. 3d DCA 1999) (findings supporting settlement of the class member claims). We apply heightened scrutiny to the simultaneous certification of the class and class settlement, however, to assure that absent class members are adequately protected. Grosso v. Fidelity Nat’l Title Ins. Co., 983 So.2d 1165, 1170-71 (Fla. 3d DCA 2008).

A. Adequate Notice; Discovery

ASI filed its objections to the proposed settlement on October 23, 2007, over three months before the fairness hearing. Although it alleged in the objections that it had not directly received a copy of the preliminary order and class notice, there is no doubt that ASI received the notice package (including the Order Preliminarily Approving Settlement Agreement and Conditionally Certifying Classes for Settlement) sufficiently in advance of October 22, 2007, (the date of service of its objections), to permit its counsel to prepare a detailed twenty-page memorandum of law summarizing ASI’s objections. The trial court did not abuse its discretion in determining that ASI had adequate notice of the terms and effect of the proposed class certification and settlement.

ASI’s request for production of documents, served only three days before the fairness hearing, did not address the putative class members’ identities or claims. Rather, ASI sought three categories of documents: (1) any settlement or confidentiality documents other than the proposed class settlement agreement, (2) communications with legal counsel regarding any negotiations or settlements other than the proposed class settlement agreement, and (3) copies of checks paid by State Farm to “any and all legal counsel or their clients who objected to the class action, intervened in the class action, appealed any portion of the class action and/or opted out of the class action.” State Farm objected to the request on numerous grounds, and ASI provided no evidence to suggest collusion or “buy offs” of any objectors or their counsel as a predicate for such discovery.

The trial court correctly declined to postpone the fairness hearing to permit ASI’s last-minute discovery to proceed. ASI made no further showing that any such discovery would bear on the Rule 1.220 factors or an assessment of the fairness of the settlement as to ASI. ASI had over three months from its receipt of the notice package within which to seek discovery regarding the proposed attorney’s and class representative fees, the adequacy of Open MRI as a representative, and other details regarding the class and settlement.

B. Certification of the Class

As previously noted, ASI’s objections to class certification based on the requirements of Rule 1.220(a) were not well taken. The putative class members’ claims were concededly numerous. They arose from a common statutory provision and were asserted by a single type of medical service provider (MRI providers) against a single PIP insurer. Open MRI’s claim was a typical claim asserted by a putative class member. Open MRI showed that it could fairly and adequately represent the class, and that its counsel were experienced and capable. Under Rule 1.220(a), its federal counterpart, and too many state and federal cases to warrant further citations, Open MRI and State Farm established that the class action lawsuit was a textbook case for certification.

ASI’s objections to certification based on Rule 1.220(b) were more nuanced, but were also unfounded. Once the requirements of Rule 1.220(a) are satisfied, Rule 1.220(b)(1)(A) permits a class claim to be certified if the prosecution of the claim against individual members of the class would create a risk of “inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” In this case, different county courts had used different computations for the statutory CPI adjustment.

One problem occurred with the application of the 2001 and 2003 versions of section 627.736(5)(b)5. Neither the index nor the date for the annual adjustment was clearly stated. These details were provided in the amendment effective October 1, 2003. Ch.2003-411, § 8, at 3837, Laws of Fla. The lack of clarity before the amendment allowed for varying interpretations regarding the exact method and timing for CPI adjustments.

There is an additional issue that can be referred to as the “compounding” issue. ASI takes the position, as the Fourth District Court of Appeal has held in Progressive Auto Pro Insurance Co. v. One Stop Medical, Inc., 985 So.2d 10 (Fla. 4th DCA 2008), that the annual increases are to be compounded:

[T]he CPI adjustment for each year should compound so that one multiplies the base charge by each year’s adjustment. For example, if 2001 had a 5% inflation rate and 2002 a 6% rate, the correct formula for a 2003 MRI would be a base charge x 1.05 x 1.06, and so on, unless or until the legislature resets the base year.

Id. at 15 n. 1. The statutory provision can just as easily be applied, however, as the Open MRI-State Farm settlement applies it. Under the settlement, the base amount is adjusted annually, but without compounding. In the example and methodology in the Progressive Auto footnote, the 2003 rate would be 11.3% above the base year (2001) rate, while the Open MRI-State Farm settlement agreement rate for 2003 would be 11.0% above that rate. The difference occurs because of the compounding effect of multiplying each year’s increase cumulatively rather than simply adding the annual increase to the rate established for the preceding year.

There is another difference. The CPI figures published by the Bureau of Labor Statistics that are to be used in these adjustments are rounded to the nearest tenth, but the percentage increases can be computed to four or more decimal places, or they can be rounded up or down to a lesser number of decimal places. The Open MRI-State Farm class settlement method uniformly rounded the annual percentage up to the nearest one-tenth of one percent. An annual increase of 5.001% would be rounded up to 5.1%, for example.

The need for mandatory declaratory relief regarding the statutory adjustment method was also established in conformance with Rule 1.220(b)(2). State Farm was shown to have refused to apply a method applicable to the entire class. The opt-out provision in the settlement allows a claimant to seek various categories of money damages (attorney’s fees and costs, postal costs, penalties, and bad faith claims based on “unfair trade practices,” pursuant to section 627.736(11), Florida Statutes (2007), for example), but the predominant feature of the settlement is a uniform interpretation of the CPI adjustment as directed by the legislature.

The lack of uniformity otherwise confounding a PIP insurer such as State Farm is seen in the variety of computational outcomes evidenced in the county court judgments throughout the State and in the record; in the interpretation applied by the Fourth District in the Progressive Auto case; and in the different types of claims (temporally, based on the statute’s evolution) identified by the Second District Court of Appeal in Atlanta Casualty Co. v. Open MRI of Pinellas, Inc., 911 So.2d 135 (Fla. 2d DCA 2005). The goal of “no fault” insurance was to reduce litigation, not to spread it virally throughout the State.

C. Fairness of the Settlement

ASI’s primary objection to the fairness of the proposed settlement was that it would obtain less money as a result of the statutory CPI adjustments imposed by the settlement than ASI (or other putative class members) would obtain in standalone single-claim county court lawsuits. The arithmetic demonstrates that this claim is unfounded.

Using a hypothetical MRI reimbursable amount of $1,000 and actual CPI Medical Care figures from the Consumer Price Index for all Urban Consumers in the South Region (as determined and published by the Bureau of Labor Statistics of the U.S. Department of Labor) for June 30, 2001, through June 30, 2005, for comparison purposes, the settlement agreement adjustments would be:

June 30, 2001 265.4 Base ($1,000.00 payable)
June 30,2002 276.2 4.1% ($1,041.00 payable)
June 30,2003 287.3 8.3% ($1,083.00 payable)
June 30,2004 299.8 13.0% ($1,130.00 payable)
June 30,2005 311.8 17.5% ($1,175.00 payable).

Computing the amounts payable using the cumulative and compounding adjustments as urged by ASI, and as applied by the Fourth District in Progressive Auto, would produce these figures:

June 30, 2001 265.4 Base ($1,000.00 payable)
June 30, 2002 276.2 4.0693% ($1,040.69 payable)
June 30, 2003 287.3 4.0188% ($1,082.51 payable)
June 30, 2004 299.8 4.3509% ($1,129.61 payable)
June 30, 2005 311.8 4.0027% ($1,174.82 payable)

From these figures it can be seen that the difference between the two methodologies is extremely small, and that the settlement’s procedure for “rounding up” to the nearest one-tenth of one percent counterbalances the compounding feature of the alternative urged by ASI. The class settlement also provides for statutory prejudgment interest to be added to any adjustment amounts from the due date to the date of payment.

Further, the opt-out provisions permit an MRI provider to decline the settlement terms as to any remedy other than the CPI adjustment computation itself. Claims for attorney’s fees under prior or existing judgments, claims alleging bad faith under section 624.155, and any other claims, are thus preserved. The only mandatory aspect of the settlement involves the statutory CPI adjustment. Because the computational method rounds up the applicable percentage and is otherwise fair, and because the opt-out provision preserves all other remedies to the claimants, the trial court did not abuse its discretion in finding that the settlement as a whole is fair.

D. Class Representative Payment and Attorney’s Fees

Importantly, the payments to Open MRI as class representative ($10,000) and to the attorneys for the plaintiffs ($485,-000) were paid by State Farm and not from the sums recoverable by class members. While the trial court and this court must review the fees for reasonableness, it is highly significant that the class members bear no part of that particular burden. An adversary, State Farm, has made its own preliminary assessment of reasonableness.

The trial court correctly found that a payment of $10,000 to Open MRI as representative plaintiff was reasonable. The position as fiduciary for the class is less an honor than a headache. The representative plaintiff is identified as a class litigant in public records (potentially affecting credit reports and disclosures for financing), is subject to fiduciary duties to the class, may be deposed and required to produce records, and must meet with counsel and appear in court, for example.

The attorney’s fees were supported by a reviewing attorney’s affidavit, an affidavit from an attorney with each of the two firms providing legal support to the plaintiff, and summaries of hours and hourly rates. Following the disclosure of the anticipated range of legal fees in the motion for certification and to approve settlement in 2007, ASI intervened but did not serve requests for production of the supporting daily time entries or seek to depose the attorneys who performed the work.

An objector’s protestations that such daily time records were not filed does not establish that the affiants perjured themselves or that the fees are disproportionate to the benefits obtained. ASI’s protestations are particularly hollow in light of the legal fees that could be incurred if over 14,600 separate county court actions, each with a small sum in controversy but a reasonable legal fee for the prevailing claimant, were to proceed as an alternative to class disposition. In any event, the trial court correctly considered and applied the factors applicable to an award of attorney’s fees in such cases under Kuhnlein v. Department of Revenue, 662 So.2d 809 (Fla. 1995).

IV. Conclusion

In its effort to allow MRI providers reasonable annual inflationary adjustments based on changes in the CPI, the legislature inadvertently spawned competing interpretations and the potential for thousands of micro-lawsuits in which attorneys would recover far more than the adjustments payable to the MRI providers. The Open MRI-State Farm class action provided a vehicle for the efficient and statewide resolution of such claims against one of the largest PIP insurers. The trial court correctly certified the class, considered and approved the settlement, and approved an award of attorney’s fees and costs paid by the settling insurer (and not from the sums payable to class members). The provision for opt-outs allowed class member claimants, including ASI, to recover their CPI adjustments as computed in a fair interpretation of the controlling statute and to seek any other penalties, fees, or other amounts available by law.

Affirmed.

      . The original version of the provision specified an adjustment to a formula based on the Medicare Part B allowed MRI reimbursement amount to compensate for any increase in the "medical Consumer Price Index for Florida," and did not identify a base month for annual adjustments. Later amendments clarified that the CPI adjustment would occur for 12-month periods ending June 30 of each year and that the pertinent index figures would be the "Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor."

      . § 627.428, Fla. Stat. (2007).

      . The appellant, Altamonte Springs Imaging (ASI), appealed this preliminary order as well as the final judgment. That appeal, our Case No. 3D07-3009, was consolidated with ASI's appeal from the final judgment.

      . Three such judgments submitted by ASI were entered by the county courts in Orange and Osceola Counties, and were for recoveries of $27.48 each, plus prejudgment interest. ASI and its counsel did not disclose the amount of any attorney's fees and costs recovered in those three lawsuits.

        . Although ASI argued that Open MRI has an inherent conflict of interest vis-á-vis claimants who have already obtained judgments on their claims, that argument proceeds on the mistaken assumption that any such “judgment creditor claimants” will take less from the class settlement than from a judgment. No such showing has been made.

      . These are the base and adjustment dates used for reimbursement amounts during the year beginning the next August 1 and through July 31 of the following year.

      . This is a category of claim mentioned by ASI, and we express no opinion one way or the other regarding the viability or sufficiency of such a claim.


source: Caselaw Access Project

author: PER CURIAM. SHEPHERD, J.,

license: Public Domain

text:
    Susan L. HALSTEAD, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D08-2086.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Susan Halstead, in proper person.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission (Tallahassee), for appellee.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Kelle v. D.H. Holmes Co., 658 So.2d 1161 (Fla. 2d DCA 1995).

SHEPHERD, J.,

concurring.

This case belies the old legal maxim that “for every wrong there is a remedy.” See, e.g., Holland v. Mayes, 19 So.2d 709, 711 (Fla.1944); Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So.2d 1221, 1226 (Fla. 3d DCA 1991).

Susan Halstead began working for the University of Miami on July 30, 2006, under the supervision of Dr. Christine Thomas, maintaining and modifying Excel spreadsheets and managing a database for the Miami Project To Cure Paralysis. Although there are degrees of difference between her testimony and that of three present or former coworkers as to frequency and severity, the credible evidence demonstrates Dr. Thomas’ management style included harassment and verbal abuse of subordinates.

On January 18, 2007, seven months after she began her employment for the Miami Project, Halstead was sufficiently upset with her working conditions that she sought assistance from the University of Miami Human Resources Department. It fell to Maria Muniz, a Human Resources Manager in the department, to listen to Halstead’s concerns. Halstead related multiple instances where she was mercilessly upbraided by Dr. Thomas for her job performance, sometimes in the presence of other employees. Halstead naturally was concerned her supervisor was dissatisfied with her performance. At the same time, Dr. Thomas told Halstead on several occasions that if her performance was unsatisfactory, she would have been fired. Halstead’s work was apparently satisfactory in spite of the working conditions.

Because Halstead’s complaints did not include claims of unlawful discrimination or harassment of the civil rights variety, Muniz dispatched her back to Dr. Thomas’ laboratory to handle the problem on her own. Although the University had a “performance management director,” whose responsibilities included dealing with problematic managers, Muniz did not refer Dr. Thomas to that person or department at that time.

Ten months passed before Halstead again decided to address her working conditions — this time by delivering a resignation letter to Dr. Thomas and a copy to Muniz. During the interim, Halstead did not raise or discuss with any person, including Dr. Thomas’ boss, the fact she remained unhappy with her work environment. Her reason was that “she needed the job.” This time, Muniz arranged an appointment for Halstead with the University “program management director.”

The Appeals Referee determined Hal-stead “voluntarily quit effective December 21, 2007, because she was not happy with the manner in which her supervisor spoke to her about her work.” The Referee also found Halstead “resigned without giving the employer a chance to correct the claimant’s perceived complaints.” The Unemployment Appeals Commission affirmed the Referee’s decision, likewise concluding Halstead “did not make a reasonable effort to preserve the employment relationship prior to leaving.”

There is ample evidence to support the conclusion that Dr. Thomas was a difficult manager. On the other hand, rare is the employee who goes through life without experiencing “the difficult boss.” Therefore, when examining whether a claimant such as Halstead left her employment for “good cause,” as she is required to prove to receive benefits, see § 443.101(l)(a)l, Fla. Stat. (2007), the appeals referee must determine whether the cause was one “which would reasonably impel the average able-bodied qualified worker to give up his or her employment.” Uniweld, Prods., Inc. v. Indus. Relations Comm’n, Fla. Dep’t of Commerce, Tallabas see, 277 So.2d 827, 829 (Fla. 4th DCA 1973). The average able-bodied qualified worker is the “average man or woman, and not the su-persensitive.” Id.

[P]lease be advised that this is formal notification of my resignation effective December 21, 2007. I will leave my position as program specialist from the Thomas lab at the University of Miami. This should give ample time to find a replacement and to provide any necessary training. Sincerely, Susan Halstead.

Although Halstead testified to multiple insults by Dr. Thomas, many in the presence of her coworkers, the testimony of the three coworkers called by Halstead at the appeals hearing was less damning, both as to frequency and severity. In fact, one of the three witnesses called by Hal-stead could not recall any instance where Dr. Thomas acted unprofessionally toward him or anyone else in her laboratory.

In verbal abuse cases where courts have upheld a determination that a claimant voluntarily left his place of employment for good cause attributable to his employer, the conduct itself was wrongful in addition to the words uttered. See, e.g., Eulo v. Fla. Unemployment Appeal[s] Comm’n, 724 So.2d 636, 638 (Fla. 2d DCA 1999) (concluding Eulo voluntarily left employment for good cause attributable to employer where she was subjected to “constant harassment and verbal abuse from her supervisor for nearly two years”); Grossman v. Jewish Cmty. Ctr. of Greater Ft. Lauderdale Inc., 704 So.2d 714, 715 (Fla. 4th DCA 1998) (concluding Grossman was entitled to benefits where she resigned because of supervisors’ conduct and verbal abuse during her evaluation, and where she was screamed at and berated in front of others, and endured other abusive treatment for one year); Dempsey v. Old Dominion Freight Lines, 645 So.2d 538, 539 (Fla. 3d DCA 1994) (finding Dempsey was constant recipient of verbal abuse, which amounted to “constant profanity,” where supervisor repeatedly referred to Dempsey as a “dumb a. — ” “and other such offensive phrases”); Gollet Enters. E., Inc. v. Fla. Unemployment Appeals Comm’n, 630 So.2d 1166, 1166 (Fla. 4th DCA 1993) (upholding finding that claimant left for good cause where she was “subjected to repeated angry outbursts,” shouting, cursing, and profanity). In other words, “the employer’s actions [were] wrongful, not merely burdensome or unpleasant to the particular employee.” Buckeye Cellulose Corp. v. Williams, 522 So.2d 39, 40 (Fla. 1st DCA 1988) (Thompson, J., dissenting).

The appeals referee made no finding that Dr. Thomas’ actions were wrongful. Rather, the referee concluded that Hal-stead “voluntarily quit effective December 21, 2007, because she was not happy with the manner in which her supervisor spoke to her about her work.” He continued:

The evidence further shows that the supervisor did not discriminate against the claimant. In fact, the supervisor was frequently known to loudly, angrily, and sharply criticize many employees and associates. Applying a reasonableness standard, the supervisor’s conduct was not such that it would cause the average man or woman to resign under the same circumstances.

Neither the Unemployment Appeals Commission nor this Court is permitted to reweigh the evidenced presented to the appeals referee. Yaeger v. Fla. Unemployment Appeals Comm’n, 786 So.2d 48, 51 (Fla. 3d DCA 2001). There exists in the record substantial competent evidence to support this finding. Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992) (stating that appellate court will not disturb Unemployment Appeals Commission action unless there is a lack of competent substantial evidence to support that action).

Finally, while I am sympathetic to Hal-stead’s financial motivation to retain her job, I am unable to ignore the fact she remained in her position for ten months after she originally complained of Dr. Thomas’ behavior and sought no additional recourse in the interim. See Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89 (Fla. 3d DCA 1987) (“Whenever feasible, an individual is expected to expend reasonable efforts to preserve his employment.”); see also Lawnco Servs., Inc. v. Unemployment Appeals Comm’n, 946 So.2d 586 (Fla. 4th DCA 2006) (concluding claimant voluntarily left work without good cause when he quit due to dissatisfaction with his pay, without first bringing his concerns to the employer’s attention or making other reasonable effort to preserve his employment).

I do not condone Dr. Thomas’ actions in this case. It speaks volumes that Dr. Thomas did not testify in her own defense. However, I agree with the majority that Halstead has no remedy under Florida’s unemployment laws and, therefore, join the majority in affirming the decision of the Unemployment Compensation Commission.

      . Nor did her letter of resignation include any reason for resigning. The letter reads as follows in its entirety:


author: PER CURIAM.

text:
    Diane BROWN, Appellant, v. PANHANDLE CITIZENS COALITION, Bay County and Department of Community Affairs, and St. Joe Company and Clara Avenue, LLC, Appellees.
    No. 1D08-3998.
    District Court of Appeal of Florida, First District.
    June 3, 2009.
    Rehearing Denied July 16, 2009.

      Diane Brown, pro se, Appellant.
    Terrell K. Arline, Panama City, for Bay County, Bryan Duke, Tallahassee, for St. Joe Company, and J. Robert Hughes of Barron, Redding, Hughes, Fite, Sanborn & Kiehn, P.A., Panama City for Clara Avenue, LLC.
   PER CURIAM.

Diane Brown seeks review of an order of the administrative law judge imposing sanctions pursuant to section 57.105, Florida Statutes (2006). The administrative law judge entered a comprehensive, well-reasoned order on the requests for sanctions filed by St. Joe Company and Clara Avenue, LLC. As Ms. Brown correctly argues, however, even if there is competent, substantial evidence in the record to support the award of attorney’s fees — which we are unable to ascertain from this record — the judge was required to specify the number of hours reasonably expended on her allegation that Clara Avenue, LLC’s Future Land Use Map amendment failed to protect historic or cultural resources. See Teat v. City of Apalachicola, 880 So.2d 819, 820 (Fla. 1st DCA 2004); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So .2d 938, 939 (Fla. 4th DCA 1997). Accordingly, we reverse and remand, “albeit reluctantly, as the order awarding the fees fails to set forth findings as to the time reasonably expended.” Guardianship ofHalpert, 698 So.2d at 939.

Reversed and remanded.

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    Dilip ARCOT, Appellant/Cross-Appellee, v. Rama BALARAMAN, Appellee/Cross-Appellant.
    No. 5D07-1989.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.

      Catherine G. Swain, of Catherine G. Swain, P.A., Daytona Beach, for Appellant/Cross-Appellee.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appel-lee/Cross-Appellant.
   PER CURIAM.

ON MOTIONS FOR REHEARING, CLARIFICATION AND CERTIFICATION

We deny the Husband’s Motions for Rehearing, Clarification and Certification, but withdraw our earlier opinion and substitute the following in its place.

Dilip Arcot, M.D. (the “Husband”) and Rama Balaraman, M.D. (the “Wife”) appeal and cross-appeal, respectively, the amended final judgment of dissolution of marriage, asserting numerous claims of error. In addition to the financial disputes between the parties, the Husband also appeals the trial court’s approval of the Wife’s request to relocate with the parties’ daughter from Ormond Beach to Ocala. We find no error regarding the relocation and affirm as to that issue without further discussion. However, we find several financial matters requiring correction as will be detailed hereafter.

Initially, the parties agree that the Husband is entitled to a credit of $8,472.73 against his child support arrearage. The parties also agree that the Bank of America account, ending in 9378, was included twice in the trial court’s equitable distribution to the Husband, once with a balance of $35,506.51, and a second time with a balance of $21,506.51. Having considered the record carefully, we conclude that the correct amount is $21,506.51, and that the equitable distribution schedule should be adjusted accordingly.

The Husband next contends that the trial court erred by adding the Wife’s health insurance premium for their child to the basic child support calculation without also requiring the Wife to provide such coverage. We find no error in the court’s inclusion of the health insurance premium in the calculation of child support. However, the final judgment should be amended to require the Wife to provide health insurance for the child and to provide the Husband with a copy of the child’s health insurance card in the event that the child needs medical attention while in the Husband’s care.

The Husband also disputes the trial court’s calculation of his child support ar-rearage. He contends that the court erred when it used the Wife’s estimated income for the year following dissolution instead of the parties’ actual income during the period that the Husband failed to pay child support. We agree with the Husband that the parties’ actual income must be used to calculate the retroactive child support award. Cameron v. Dickey, 871 So.2d 1022, 1028 (Fla. 5th DCA 2004). On remand, the court should determine the actual income earned by the parties during the time of the arrearage and utilize those figures in calculating the award of retroactive support.

The next area of disagreement concerns three checks, totaling $11,871.87, which were not treated as a marital asset, but instead as an asset of the Wife. The record supports the Husband’s contention that as of the valuation date, the Wife had earned the sum represented by the un-cashed checks in her possession. The Wife makes no compelling argument to demonstrate that this sum is not a marital asset. Accordingly, on remand, the amount of $11,871.87 shall be treated as a marital asset and equitably distributed.

The Husband, Wife and child are practicing Hindus. The Husband argues that the trial court erred by not establishing a schedule for the child to celebrate the major Hindu holidays with the parents on an alternating basis. We agree. On remand, the trial court shall establish such a schedule to the extent that one can be drawn to minimize any impact on the child’s schooling.

Finally, we address several minor matters. Paragraph 4 of the amended final judgment does not reflect the child’s full legal name. It appears this discrepancy may cause some difficulty in registering and enforcing the order in India or Australia should that become necessary. Accordingly, on remand, the judgment shall be amended to reflect the child’s full legal name as it appears on her birth certificate. We also agree that the Wife is entitled to interest prospectively on the amount of retroactive child support from the date that the court determined the arrearage and ordered payment. On remand, the trial court shall award interest at the statutory rate on the unpaid child support. Finally, we agree with the Wife that there was a mathematical error in the total of the assets attributed to her in the trial court’s amended final judgment. However, since the court must revisit the equitable distribution of the marital assets, we are confident that this error will be corrected. We find no merit in the remaining issues asserted by the parties.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . This complex dissolution proceeding involving two high-earning physicians was difficult because the parties have assets in the United States, India and Australia. We agree with the trial court’s expressed concern that the parties' failure to cooperate with each other frustrated their attorneys' efforts to satisfy their respective evidentiary burdens and significantly complicated an already complex matter.


author: COHEN, J.

text:
    John DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3560.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    John Diggs, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

John Diggs challenges his sentences for extortion and possession of a firearm by a felon because the trial court did not fully credit him for time served as agreed in his written plea agreement. We reverse.

Diggs was charged with two counts of possession of a firearm by a felon, carrying a concealed firearm, extortion, and violating an injunction. In a written plea agreement, Diggs agreed to concurrent sentences of three years’ imprisonment for the possession of a firearm by a felon and extortion charges with 497 days credit for time served; the State agreed to nolle prosequi the carrying a concealed firearm and violating an injunction charges. The parties also agreed Diggs would be taxed costs of prosecution, payable within five years of his release.

At the plea and sentencing hearing, the trial court accepted Diggs’ plea of nolo contendere and sentenced him to concurrent sentences of three years’ imprisonment and taxed costs of prosecution, payable within five years of release. However, despite agreeing to 497 day’s of credit for time served, the State argued that Diggs should not be given credit for 49 of those days. After hearing argument, the trial court agreed and reduced the credit for time served to 453 days. Subsequently, Diggs’ counsel filed a notice of appeal and Diggs, himself, filed a motion to withdraw his plea. The trial court struck Diggs’ pro se motion to withdraw his plea as a nullity because he was represented by counsel when he filed it.

On appeal, as he urged in his motion to withdraw, Diggs contends the trial court erred in imposing a sentence that exceeded the terms of the written plea agreement. The State correctly argues that Diggs failed to preserve this issue because his motion to withdraw plea was invalid when he filed it while still represented. A pro se pleading filed by a defendant who is still represented by counsel is generally considered a nullity unless it asserts counsel coerced him into taking a certain action, reflects an adversarial relationship between the attorney and the client, or is accompanied by an unequivocal request to discharge counsel. Whiting v. State, 929 So.2d 673, 674-75 (Fla. 5th DCA 2006). Because Diggs’ motion did not meet any of these exceptions, the trial court properly struck it as a nullity. This, however, does not end our analysis.

Although Diggs’ motion to withdraw his plea was a nullity, because the face of the record reflects the merit of an ineffective assistance of counsel claim, we have the jurisdiction to consider the issue he raises on appeal. See Barber v. State, 901 So.2d 364, 366 (Fla. 5th DCA 2005). In the case at bar, the State agreed to a negotiated plea agreement that credited Diggs for 497 days of time served. Despite agreeing to this express term, the State changed course and persuaded the trial court that Diggs was not entitled to the entire 497 days. Once the trial court imposed a sentence that did not comply with the negotiated plea agreement, Diggs’ counsel should have filed a motion to withdraw the plea. Instead, his counsel filed a notice of appeal and, according to Diggs, refused to file a motion to withdraw the plea. We cannot deem this refusal to be a tactical decision in this case, particularly where this issue must first be raised in a motion to withdraw to preserve it for appellate review. See Fla. R. App. P. 9.140(b)(2)(A)(ii). Consequently, we conclude that the face of the record clearly indicates an ineffective assistance of counsel claim. See Barber, 901 So.2d at 366; see also Taylor v. State, 919 So.2d 669 (Fla. 2d DCA 2006); Garcia v. State, 981 So.2d 561 (Fla. 3d DCA 2008). We reverse and remand to allow Diggs the opportunity either to withdraw his plea or to accept the sentence as rendered.

REVERSED AND REMANDED.

PALMER, C.J., and LAWSON, J„ concur.


text:
    Mary A. FERREIRA, Appellant, v. HOME DEPOT/SEDGWICK CMS, Appellees.
    No. 1D08-5919.
    District Court of Appeal of Florida, First District.
    June 9, 2009.
    Teresa E. Liles and T. Rhett Smith of Smith & Liles, P.A., Pensacola, for Appellant.

      Philip R. Augustine and Margaret E. Sojourner of Langston, Hess, Augustine, Sojourner & Moyles, Maitland, for Appel-lees.
   PER CURIAM.

Claimant challenges an order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s (E/C) Motion for Repayment of Seed Money, arguing the JCC erred by reforming a final contract of settlement between the parties. We agree, and reverse.

The parties to this workers’ compensation claim entered into a settlement agreement, which included funds for Claimant to establish a workers’ compensation Medicare Set-Aside Account (MSA). The settlement contract expressly states that Claimant, and not the E/C, is responsible for administering the MSA. The agreement provides that the sums allocated for the MSA (which included “seed money” in the amount of $10,851.08, and $38,694.64 for the purchase of an annuity yielding $2,154.18 per year) were final, not subject to change (or reallocation), and not dependent on the approval of the Center for Medicare and Medicaid Services’ (CMS). Moreover, the agreement provides that the sums allocated for the funding of the MSA were to be paid within 30 days of the order approving attorney’s fees, at which time all claims, petitions, and causes of action would be dismissed with prejudice. In the agreement, the parties agreed that if CMS determines “more money is necessary for future medical expenses,” Claimant would be responsible for “paying or funding” the difference.

Ten months after the JCC entered an order approving the attorney’s fees relative to the settlement, the E/C filed a motion alleging it had received correspondence from CMS indicating the gross amount of the parties’ proposed MSA was accurate, but the sums projected for annual deposits into the MSA were deficient. The motion requested the JCC to compel Claimant to reimburse an alleged “overpayment” of seed money, so the E/C could purchase the annuity it had promised to fund as part of the agreement (but which it had not yet purchased). Claimant contested the motion, arguing the settlement agreement was final and not dependent on CMS’ approval, and she alone was responsible to satisfy CMS’ requirements; therefore, the JCC had no jurisdiction to resolve a dispute between her and a federal agency. Additionally, Claimant argued that the E/C was in breach of the agreement by failing to purchase the annuity as promised.

The JCC entered an order granting the E/C’s motion, reasoning Claimant agreed to pay or fund the difference should CMS deem more money was necessary for future medical expenses and, because CMS made such a determination, Claimant was required to return monies so the E/C could purchase an annuity to satisfy CMS’ requirements.

A JCC is authorized to determine whether a valid, binding settlement agreement was reached and, if so, to establish its terms. See Chubb Group Ins. Co. v. Easthagen, 889 So.2d 112 (Fla. 1st DCA 2004). The JCC has authority to give effect to the terms of a settlement agreement. See Jacobsen v. Ross Stores, 882 So.2d 431, 433 (Fla. 1st DCA 2004). A JCC has jurisdiction to determine whether a party complied with the terms of a settlement agreement. See McCallum v. Palm Beach County Sch. Dish, 969 So.2d 562 (Fla. 1st DCA 2007) (holding where settlement resolved all claims but also contained employer’s promise to indemnify employee for any liens filed by Medicare, JCC had jurisdiction subsequent to settlement to ensure employer complied with the agreement).

Based on the authority cited herein, we agree with the JCC that he had jurisdiction over the parties and subject matter to determine whether Claimant was in compliance with the terms of the agreement. We do not agree with the JCC’s interpretation of the written contract, however, because it renders essential terms void and constitutes an impermissible rewrite of the parties’ agreement.

The standard of review with respect to a JCC’s interpretation of a written settlement agreement is de novo. Klatt v. Wal-Mart Stores, Inc., 913 So.2d 79, 80 (Fla. 1st DCA 2005). Interpretation of settlement agreements is governed by contract law. See Munroe v. U.S. Food Serv., 985 So.2d 654, 655 (Fla. 1st DCA 2008). Contracts are to be construed in accordance with the plain meaning of the words contained therein, and it is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties. See Churchville v. GACS Inc., 973 So.2d 1212, 1216 (Fla. 1st DCA 2008).

Although the agreement clearly provides that Claimant is solely responsible for administering the MSA, and satisfying any requirements of CMS (a proposition Claimant does not contest), nothing in the agreement requires Claimant to contribute, in any way, to the E/C’s primary responsibilities under the contract (i.e., to pay the sums promised and purchase the annuities as agreed to). The E/C agreed that the sums designated in the settlement agreement were final, not subject to reallocation, due within 30 days of the JCC’s order, and not subject to CMS approval. Moreover, an express provision of the agreement relating to the annuity payments states:

Each Party herein acknowledges and agrees that neither the Periodic Payments nor any rights thereto or interest therein (collectively, “Payment rights”) can be accelerated, deferred, increased or decreased by such Party ...

And with respect to the specific fact scenario presented here, the parties agreed:

... Finally, the parties acknowledge, understand and agree that no action or decision by CMS concerning [Claimant’s eligibility or the sum of money required to be set-aside for [C]laimant’s future Medicare-covered costs will render this release void or otherwise ineffective, or in any way affect the finality of [Claimant’s workers’ compensation settlement.

By not purchasing the annuity as promised the E/C created a predicament whereby the JCC was forced to rectify the potentially conflicting provisions which, on one hand, provided the annuity amounts were fixed, not subject to change, and not dependent of CMS’ approval, and on the other hand, made Claimant responsible for any deficiencies later identified by CMS. The JCC’s order rewrites the parties’ agreement. Although the parties’ agreement does not set forth the means by which Claimant was to fund or pay for any shortcomings of the MSA, the clear and unambiguous language of the agreement provides that the annuity amounts are not subject to change and are not to be affected by actions of CMS. As argued by Claimant, under the agreement she is solely responsible for satisfying CMS’ requirements for administration of the MSA, and she is free to resolve any existing dispute with CMS without the E/C’s involvement.

The date of the accident is not material to the issue before the court.

REVERSED and REMANDED for proceedings consistent with this opinion.

BARFIELD, PADOVANO, and LEWIS, JJ., concur.

      . The amount paid to Claimant as seed money was in accordance with the express terms of the parties’ agreement and, thus, was not an overpayment. The E/C titled this an “overpayment,” because CMS indicated the initial deposit required for funding the MSA was less than the amount to which the parties agreed. From this, the E/C, not CMS, apparently concluded that a solution to this dilemma was to have Claimant return a portion of the seed money, so that the E/C could purchase an annuity which was in accordance with CMS' request, as opposed to the annuity required by the agreement.


text:
    Vernon Antonia WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2410.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2009.
    Rehearing Denied July 2, 2009.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

SAWAYA and COHEN, JJ., and COBB, W., Senior Judge, concur.


author: HAZOURI, J.

text:
    K.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2283.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Appellant, K.A., a minor, was charged with the first degree misdemeanor of resisting or opposing an officer without violence. Following an adjudicatory hearing, the trial court found K.A. guilty of resisting arrest without violence. K.A. asserts that the trial court reversibly erred in denying his motion for judgment of dismissal because the evidence was insufficient as a matter of law to support the finding of guilt. We agree and reverse, and direct the trial court to vacate the finding of guilt and placement on probation.

The charges and conviction of K.A. arose out of an incident that occurred on November 4, 2007, at the Galaxy Skating rink in North Fort Lauderdale, Florida. The skating rink closed for the evening, and there were approximately 600 to 700 people in the parking lot. Deputy Riyath Behnam and several other deputies were at the rink to assist with crowd dispersement.

There is no evidence that any of the young people congregating in the parking lot of the Galaxy Skating rink were trespassing, in violation of any curfew, or otherwise engaging in any unlawful activity.

Deputy Behnam observed the crowd in the parking lot. He testified that based upon his training and experience, he thought a fight was taking place. He and other deputies approached the crowd to disperse it. While some people were running away screaming, K.A., in the middle of the crowd, was yelling “Why are you leaving?” and “Don’t leave. They can’t do anything about it.” As Deputy Behnam approached, K.A. continued yelling at the people who were running, “Why are you running? They can’t — Police can’t do anything about it[.]” Deputy Behnam told K.A. to stop yelling at the crowd, but K.A. kept yelling. Deputy Behnam advised him that if he continued to do so, he would take K.A. into custody. K.A. ignored Deputy Behnam’s request, and Deputy Behnam then advised K.A. that he was under arrest.

Deputy Behnam had Deputy Frey assist in taking K.A. into custody. He ordered K.A. to sit in the back of a patrol car, which K.A. refused to do. K.A. insisted that he had done nothing wrong, stating “You can’t tell me what to do.” Deputy Frey eventually had to assist K.A. by lowering his head and placing him in the patrol car.

K.A. argues on appeal that Deputy Frey, the deputy named in the petition, was not engaged in the lawful execution of a legal duty, but rather, was merely on duty when he assisted Deputy Behnam in walking K.A. to the patrol car. K.A. asserts that he was subjected to an illegal stop and arrest for mere speech. K.A. asserts that the trial court erred in denying his motion for judgment of dismissal on these grounds.

In reviewing a denial of a motion for judgment of acquittal, we examine “the legal sufficiency of the state’s evidence. If the trial evidence taken in a light most favorable to the state does not support a conviction, the motion must be granted.” J.P. v. State, 855 So.2d 1262,1264 (Fla. 4th DCA 2003) (citation omitted). A motion for judgment of acquittal is the equivalent of a motion for judgment of dismissal in the juvenile court. See Fla. R. Juv. P. 8.105(k).

Section 843.02, Florida Statutes (2007), under which K.A. was charged, provides:

Whoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....

“To support a conviction under section 843.02, the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999) (quoting S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995)). “On the question of whether the officer was performing a legal duty, ‘[i]t is important to distinguish between a police officer ‘in the lawful execution of any legal duty’ and a police officer who is merely on the job.’ ” Id. (quoting D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995)).

In Jay, the arresting officer, while on a sting operation, attempted a solicitation of two females, one of whom the officer knew was a prostitute. The defendant told the females that the officer was a cop and not to get in his ear. The females walked away and were not arrested. The officer arrested the defendant because he perceived the defendant’s comment as obstructing him in the execution of his legal duty. The defendant fled. When he was caught and arrested, he was found to have a knife. He was charged with resisting without violence and possession of a weapon by a convicted felon. “The resisting charge was based upon Jay’s flight from the officer’s attempted arrest for the uncharged offense of obstruction.” Id. The defendant’s motion to suppress was denied and he pleaded nolo contendere. On appeal, the defendant argued that his comment did not obstruct the officer in executing his legal duty. As such, the attempted arrest for obstruction was unlawful, and he was free to resist the arrest without violence. This court held:

An essential element of resisting an officer without violence is that the arrest is lawful. “If an arrest is not lawful, then a defendant cannot be guilty of resisting it.” “[T]he common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.”

Id. (citations omitted).

This court then analyzed whether the initial arrest was legal by determining whether “(1) the officer’s involvement in the ‘sting operation’ must have been the performance of a legal duty; and (2) Jay’s words, ‘don’t get into the car, he’s a cop,’ must have obstructed the officer in executing his legal duty.” Id. As to (1), this court concluded that because there was no evidence that the two women agreed to anything illegal or that the women were being detained or the officer was attempting to detain them, the officer was merely on the job. Because this element was not met, the attempted arrest for obstruction was illegal.

The state argues, in the instant case, that Deputy Behnam could have lawfully taken K.A. into custody for violating three separate statutes. The first is section 843.02, the statute at issue in Jay and the statute K.A. was charged with violating here. The trial court determined that K.A. was charged with interfering with the investigation of a disturbance. For the arrest to be legal, the police must be executing a legal duty.

The evidence presented was that the deputies were at the skating rink at closing time because sometimes there were disturbances or fights. On this night, neither deputy testified that there were any fights. In fact, the people were running away due to the presence of the deputies or some other reason until K.A. started yelling that they did not have to. There was no evidence that the deputies had been called by the rink management to disperse the crowd, or that there were trespassing concerns by the management. On this basis, it appears that the deputies’ alleged investigation of a disturbance was no investigation at all and, therefore, they were not executing a legal duty.

With respect to the other element of obstructing, D.G. v. State, 661 So.2d 75 (Fla. 2d DCA 1995), is instructive. It states the following general proposition:

If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction. Thus, obstructive conduct rather than offensive words are normally required to support a conviction under this statute.

Id. at 76.

The evidence was that K.A. was in a parking lot with 600 people who were dispersing by running. K.A. yelled, “Why are you running? They can’t — Police can’t do anything about it[.] Why are you running?” K.A.’s words do not rise to the level of obstruction. If anything, urging the crowd of people not to run could be viewed as intending to prevent panic.

The state also suggests K.A. could properly have been arrested for inciting a riot under section 870.01(2), Florida Statutes (2007). That section states: “[a]ll persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree....” Again, K.A.’s words were not encouraging the people to riot, only to stop running away.

Additionally, the state suggests K.A. was violating section 843.06, Florida Statutes (2007), which provides:

843.06 Neglect or refusal to aid peace officers. — Whoever, being required in the name of the state by any officer of the Florida Highway Patrol, police officer, beverage enforcement, agent, or watchman, neglects or refuses to assist him or her in the execution of his or her office in a criminal case, or in the preservation of the peace, or the apprehending or securing of any person for a breach of the peace, or in case of the rescue or escape of a person arrested upon civil process, shall be guilty of a misdemeanor of the second degree....

There was no testimony that K.A. was asked by the officer to assist in preserving the peace. K.A. was only told to stop yelling. In State v. Parish, 509 So.2d 1365 (Fla. 2d DCA 1987), the court held:

The words of section 843.06, when given their common meaning, do not render the statute unconstitutionally vague. The statute simply provides that whenever an individual is asked by an officer, in his official capacity, to assist the officer in his official duties (including preserving the peace, apprehending or securing a suspect or assisting in the rescue or preventing the escape of a person arrested for civil process), the individual must do so, or he will be guilty of a second degree misdemeanor. Simply, one must assist an officer in the performance of the officer’s duties when asked by the officer to do so.... The statute is thus sufficiently definite to warn a person of common intelligence that one must not refuse or neglect to aid an officer who asks for assistance.

Id. at 1366. There is no evidence the officer asked K.A. for his assistance. We therefore reverse and remand and direct the trial court to vacate K.A.’s finding of guilt and placement on probation.

Reversed and Remanded.

STEVENSON and LEVINE, JJ., concur.


text:
    A.L.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1682.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, A.L.J., appeals the trial court’s denial of his motion for judgment of dismissal on the charge of felony criminal mischief or, in the alternative, a reduction in the charge to a first degree misdemeanor due to the state’s failure to prove property damage in excess of $1,000. We affirm the denial of the motion for judgment of dismissal without discussion. We agree that the state failed to prove allowable property damages exceeding $1,000.

Appellant was adjudicated delinquent of felony criminal mischief after witnesses testified that he sprayed a large amount of pepper spray into the drive-thru window of a McDonald’s restaurant. The pepper spray hit two employees and spread into the restaurant’s cooking area. McDonald’s manager testified that due to the necessary closing of the restaurant for three hours, it lost $1200 in sales, $200 in food, $500 for workers’ compensation, and $250 in labor to clean up.

The standard of review for a motion for judgment of dismissal is de novo. J.G. v. State, 915 So.2d 274, 276 (Fla. 4th DCA 2005). A motion for judgment of dismissal tests the legal sufficiency of the state’s evidence. J.P. v. State, 855 So.2d 1262, 1264 (Fla. 4th DCA 2003).

Section 806.13(1), Florida Statutes (2007), provides:

(l)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism.
(b)l. If the damage to such property is $200 or less, it is a misdemeanor of the second degree....
2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree....
3. If the damage is $1,000 or greater, or if there is interruption or impairment of business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree....

In the petition for delinquency, appellant was charged with injuring the property of the McDonald’s by “impairing or interrupting said business costing one thousand dollars ($1,000.00) or more, in labor and supplies to restore.” Accordingly, the only costs for damages proven by the state were the $250 for labor costs to clean the restaurant, and the $200 cost to replace the food which was damaged by the pepper spray, totaling $450. The $500 for workers’ compensation was paid for the injuries to the victims, not for property damage. The lost sales or profits of $1200 are not included in the costs to restore the business’s operation.

We, therefore, reverse appellant’s conviction for felony criminal mischief and remand for adjudication of delinquency on criminal mischief, a misdemeanor of the first degree, pursuant to section 806.13(l)(b)2., Florida Statutes (2007).

Reversed and Remanded with Directions.

STEVENSON, HAZOURI and LEVINE, JJ., concur.


text:
    D.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2038.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

When D.B. was fifteen she was charged with possession of ecstasy with intent to sell, possession of ecstasy, and trafficking in ecstasy. D.B. pled no contest to possession of ecstasy with intent to sell. The State, in turn, entered a nolle prosequi for the other two charges. In its Pre-Disposition Report, the Florida Department of Juvenile Justice noted D.B.’s lack of previous supervision history with the DJJ, D.B’s score as a low risk re-offender, and D.B.’s supportive home and educational environment. Based on this information, the DJJ recommended that D.B. be placed on juvenile probation. The trial court departed from the DJJ’s recommendation, imposing a moderate risk residential program. In doing so, it cited the seriousness of the offense and the protection of the community from such crimes.

After the trial court entered its order, however, the Florida Supreme Court decided E.A.R. v. State, 4 So.3d 614 (Fla. 2009). In that decision, the supreme court “announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.” M.J.S. v. State, 6 So.3d 1268, 1269 (Fla. 1st DCA 2009).

In this case, the trial court’s explanation for departing from the DJJ’s assessment and recommendation is not in accordance with the required analysis set forth by the supreme court in E.A.R. We, therefore, “reverse and remand to provide the trial court an opportunity to enter an order in compliance with EAR., or, if the court cannot, impose the probation recommended by the DJJ.” Id.

Reversed and Remanded.

GERBER, J., concurs.

FARMER, J., concurs in result only.


author: EVANDER, J.

text:
    Michael A. REIGELSPERGER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3414.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2009.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Reigelsperger contends that his convictions for grand theft and dealing in stolen property violate double jeopardy and constitute fundamental error. We affirm, concluding that Reigelsperger entered into a bargained plea agreement with the State and thereby waived his double jeopardy claim.

Reigelsperger was charged in a two-count information with grand theft and dealing in stolen property. Both offenses were alleged to have occurred on the same date. Reigelsperger’s plea agreement called for him to enter no contest pleas to both charges and receive a composite sentence of fifteen months imprisonment. However, prior to the court’s acceptance of the plea, Reigelsperger requested a brief furlough to get his affairs in order prior to commencing his incarcerative sentence. The trial court agreed to accept the negotiated plea, defer sentencing, and release Reigelsperger pending sentencing — provided that Reigelsperger understood that if he failed to timely appear for sentencing or committed a new law violation during his release, he could be sentenced to up to twenty years imprisonment. Reigelsper-ger accepted these conditions as part of his plea agreement, entered a no contest plea to both charges, and was released pending sentencing. Reigelsperger failed to appear for his scheduled sentencing hearing because, by his own admission, he was “stuck in a crack house.” The court sentenced Reigelsperger to five years incarceration on the grand theft charge to be followed by fifteen years incarceration on the dealing in stolen property offense. Reigelsperger’s subsequent motion to withdraw plea was denied.

On appeal, Reigelsperger relies on Hall v. State, 826 So.2d 268, 271 (Fla.2002), for the proposition that conviction of both grand theft and dealing in stolen property violates double jeopardy if both charges flow from one scheme or course of conduct. However, as the State correctly argues, this case is controlled by Novaton v. State, 634 So.2d 607 (Fla.1994). There, the court held that where the record reflects a bargained-for plea, any double jeopardy attack on the plea-based conviction is waived. The fact that Reigelsperger lost the benefit of the low sentence that he bargained for by failing to timely appear for sentencing does not alter the fact that Reigelsperger entered into a negotiated plea agreement by which he was given the opportunity to significantly decrease his potential maximum sentence. Novaton does not suggest that a negotiated plea requires courts to weigh the wisdom or sufficiency of the consideration given by the respective parties to the plea agreement. Bryant v. State, 644 So.2d 513 (Fla. 5th DCA1994).

AFFIRMED.

PALMER, C.J. and SAWAYA, J, concur.

      . § 812.014(1) and (2)(c), Fla. Stat. (2007).

      . § 812.019(1), Fla. Stat. (2007).

      . As a result of his failure to appear, Reigel-sperger's sentencing hearing was delayed more than five months.


text:
    Charlie BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5019.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant, Charlie Brown, appeals the trial court’s order revoking his probation in two cases and imposing a sentence of 8.125 years as a habitual offender. The trial court found that Brown willfully and substantially violated six conditions of his probation-although we are compelled to find that the state proved only two of the six violations. Because we are unable to conclude that the trial court would have revoked Brown’s probation as to the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.

In 2003, Brown was charged with failure to register as a sex offender. In 2005, while the 2003 case was pending, he was charged with possession of heroin. Initially Brown was found to be mentally incompetent to stand trial. Subsequently, when he was found to be competent to proceed, he pled guilty to both charges and was sentenced concurrently to two years in prison followed by three years of probation. In April of 2007, a violation of probation affidavit was filed in both of the original cases alleging that Brown had violated probation by committing the two new offenses of obstruction without violence and failure of a sex offender to give notification of a change of address (counts I and II); changing his residence (on February 28, 2007) without the consent of his probation officer (count III); failing to report to the probation office after being instructed to report (count IV); changing his residence (on February 26, 2007) without the consent of his probation officer (count V); and failing to produce valid identification to the Department of Highway Safety and Motor Vehicles (“DHSMV”) for purposes of registration after being instructed to do so (count VI).

On appeal, Brown concedes that the record supports the trial court’s finding that a violation occurred by twice moving without the probation officer’s consent (counts III and V).

As to counts I and II, there was scant evidence that appellant had been arrested for the new offenses, let alone that he actually committed the crimes. Although the prosecutor referred to a probable cause affidavit and said it was “self-authenticating,” no documents of any kind were ever admitted into evidence. The only testimony offered by the state came from Brown’s probation officer who testified that Brown committed two new criminal acts while on probation. The probation officer’s fleeting testimony (“He committed a criminal offense without violence, failed to notify sex offender, ... ”) renders the record devoid of anything that could reasonably lead to a finding that Brown committed two new crimes while on probation. In the light most favorable to the state, the probation officer’s twelve words of testimony, offered to support counts I and II, were pure hearsay and not supported by competent, non-hearsay proof. This court has consistently held that probation cannot be revoked solely on the basis of hearsay evidence. E.C. v. State, 675 So.2d 192 (Fla. 4th DCA 1996).

Count IV of the third amended affidavit for violation of probation alleged that Brown failed to report as directed “as of March 7, 2007.” The probation officer’s testimony regarding this alleged violation did not establish that Brown failed to abide by the requirement. In fact, it may show the opposite. In any case, the probation officer’s testimony was convoluted, contradictory and inconclusive. The state failed to prove this allegation under any standard.

As to the requirement that Brown register with the DHSMV (count VI), Brown testified that he went to the driver’s license office and was told that he needed a birth certificate in order to get a Florida identification card or otherwise register with the DHSMV. Brown’s unre-futed testimony was that he was unable to obtain a birth certificate in his home state of Georgia because the facility from which he could obtain a copy had burned down. The state offered no evidence of any nature to suggest that Brown’s failure to register or otherwise obtain a valid DHSMV identification card was willful.

We reverse the violations of probation on counts I and II (commission of the two new crimes), count IV (failing to report to the probation office after being instructed to report) and count VI (failing to produce valid identification to the DHSMV for purposes of registration after being instructed to do so) because there was simply insufficient evidence to show willful and substantial violations of probation. We affirm the violations of probation on counts III and V (changing residence without first procuring consent of the probation officer). We remand for the trial court to reconsider Brown’s probation revocation and subsequent sentence because it is unclear whether the trial judge would have decided this matter in the same manner if faced with these two violations rather than the six as Brown was originally found to have committed. See Wilson v. State, 967 So.2d 1107 (Fla. 4th DCA 2007).

Reversed and remanded.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.

      . There was an additional count alleging a willful failure to pay the costs of supervision which the trial court dismissed.

      . The record indicates that three documents were marked for identification but they never became evidence.


author: LAWSON, J.

text:
    Richard SPIVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2638.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Richard Spivey was involuntarily committed under the Jimmy Ryce Act in 2006, after his release from prison on a charge of lewd and lascivious exhibition in the presence of a person under age sixteen. In 2008, Spivey petitioned for release pursuant to section 394.920, Florida Statutes, based on a doctor’s report concluding that “it is safe for [Spivey] to be at large and that he will not engage in acts of sexual violence if released.” Undergirding this opinion is the examiner’s conclusion that Spivey’s diagnosed behavior — exhibitionism — is not sexually violent conduct.

At the probable cause hearing, the trial court reviewed the report and denied the petition, finding that Spivey had not met his burden of establishing probable cause. On appeal, Spivey argues that the trial court erred in ruling that he had not established probable cause to believe that he would no longer engage in sexual violence upon release, making it safe for him to live at large. The State first argues that the report was not “evidence” that could be considered in making the probable cause determination. Alternatively, the State argues that the report did not support a probable cause finding. We agree with the trial court’s conclusion that Spivey did not meet his burden of establishing probable cause, and affirm.

Background and Facts

In February 2008, the Florida Civil Commitment Center (“FCCC”) issued its second annual review of Richard Spivey, recommending that he continue treatment at FCCC because he had “yet to fully address relevant treatment issues ... that may be associated with his offending history.”

In May 2008, Spivey petitioned for release pursuant to section 394.920, Florida Statutes (2008), alleging in part the following:

Committed Person was evaluated by Dr. Dean Cauley, and he opined that he no longer has a mental condition that causes him to engage in acts of sexual violence. Thus, because Committed Person’s condition has so changed, Dr. Cauley concluded that it is now safe for him to be released to the community. See verified evaluation report submitted by Dr. Cauley....”

Contrary to Spivey’s assertion, Dr. Cau-ley’s report was not made under oath or otherwise “verified.” In the report, Dr. Cauley was critical of the FCCC’s diagnosis and treatment. Although he noted that Spivey had been committed as a sexual predator, Dr. Cauley took issue with that conclusion. In Dr. Cauley’s view, Spivey was neither sexually violent nor attracted to children; he merely liked to expose himself.

At the probable cause hearing, the State made no objection to the trial court relying on Cauley’s report to make its probable cause determination.

Discussion

Two of the procedural safeguards provided by the Jimmy Ryce Act are section 394.918’s procedure for annual review and section 394.920’s right to petition for release. Larimore v. State, 2 So.3d 101, 116 (Fla.2008). Section 394.920 states,

Petition for release. — A person is not prohibited from filing a petition for discharge at any time after commitment under this part. However, if the person has previously filed such a petition without the approval of the secretary or the secretary’s designee and the court determined that the petition was without merit, a subsequent petition shall be denied unless the petition contains facts upon which a court could find that the person’s condition has so changed that a probable cause hearing is warranted.

The trial court correctly concluded that in the absence of any authority explaining the procedure under section 394.920, it would follow the procedure outlined in section 394.918, which states in pertinent part:

Examinations; notice; court hearings for release of committed persons; burden of proof.—
1) A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court’s discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person’s status.
(3) The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue. (4) At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney shall represent the state and has the right to have the person examined by professionals chosen by the state. At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person’s mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.

(Emphasis added). A petitioner must meet his or her burden of establishing probable cause under section 394.918 by presenting evidence in the form of testimony or affidavits. E.g., Allen v. State, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006); Westerheide v. State, 888 So.2d 702, 706 (Fla. 5th DCA 2004). Although Spivey’s petition alleged that Dr. Cauley’s report was “verified,” it was not, and thus did not constitute sworn evidence. However, by failing to lodge a proper evidentiary objection below, the State clearly waived this issue. See, e.g., Murphy v. State, 667 So.2d 375, 376 (Fla. 1st DCA 1995) (recognizing challenges to unverified or unsworn testimony are waived unless made contemporaneously).

Considering the substance of the report, Dr. Cauley’s conclusion that Spivey would not engage in sexual violence if released was based on his opinion that Spivey had never engaged in sexual violence. Central to his opinion was his erroneous legal conclusion that Spivey’s diagnosed behavior— exhibitionism — is not sexually violent. He stated, in pertinent part:

Mr. Spivey does not suffer from Para-philia NOS — non consent or from Pedophilia or any condition other than Exhibitionism. Although he has been committed as a sexual predator.... Mr. Spivey is not sexually attracted towards rape; in fact he has never committed a rape. His is not sexually attracted towards children. He is sexually aroused by exposing himself to unsuspecting strangers. Indecent exposure is not rape or pedophilia. The facility seems to believe that the target of the offense determines the disorder; however the truth is that the arousal itself defines the disorder.... His effort was not to isolate and violently assault the victim; it was to expose himself to the victim. Typically, such non-contact nuisance crimes do not reach the threshold of indefinite civil detention.

Clearly, Dr. Cauley equated sexually violent behavior with crimes involving violent contact with a victim or sexual attraction to children. Thus, he expressly excluded exhibitionism, even if it was done in the presence of a child, because in his opinion, the child was not the target. While Dr. Caule/s opinion may or may not be clinically correct, it is legally flawed. In the Jimmy Ryce Act, the Legislature defined a “sexually violent offense” as including a “lewd, lascivious or indecent assault or act upon or in the presence of a child in violation of s. 800.04 or s. 847.0185(5).” § 394.912(9)(e), Fla. Stat. (2008). And, section 800.04(7), Florida Statutes, expressly criminalizes lewd exhibition in the presence of a child under sixteen.

In short, Dr. Cauley’s conclusion that Spivey was not likely to engage in acts of sexual violence was legally insufficient because it expressly excluded lewd exhibition in the presence of children, which was the offense for which Spivey was most recently imprisoned. Dr. Cauley never stated that Spivey was not likely to re-offend by engaging in exhibitionism with child victims if released into the community. Accordingly, we find that the report was insufficient to establish probable cause.

AFFIRMED.

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


text:
    Matthew Michael RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4263.
    District Court of Appeal of Florida, First District.
    June 24, 2009.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant is serving probation for animal cruelty. A condition of probation is that he pay fines and fees totaling over $5,000. Over the course of his probation, the appellant has paid only a single payment of $800. He is here seeking review of an order finding him in violation of his probation for failing to make monthly payments. He argues that the trial court failed to establish he had the ability to pay the fines and fees required by his probation.

The appellant has an eighth-grade education and no G.E.D. He drives a logging truck, earning approximately $1200 each month. All of his income supports the needs of appellant and his two children.

The State must prove appellant had the ability to pay and that he willfully violated his probation. See Smith v. State, 892 So.2d 513 (Fla. 1st DCA 2004); see also Davis v. State, 704 So.2d 681 (Fla. 1st DCA 1997). The trial court found that appellant somehow could have found a way to make the payments, but those findings are speculative. There is no record evidence upon which the trial court could have found that appellant had the ability to make his monthly payments or that he willfully violated his probation.

REVERSED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


author: WARNER, J.

text:
    Carola YEAKLE, Appellant, v. David H. YEAKLE, Appellee.
    No. 4D08-2012.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.

      Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellant.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The wife and husband each appeal various aspects of the trial court’s final judgment of dissolution of marriage. Of the multiple issues raised, we reverse on two. First, the trial court erred in refusing to include the parties’ stipulated settlement agreement in the final judgment. Second, the cumulative total of the financial awards the wife was ordered to pay are excessive.

The wife and husband married in 1991 and had two children. The wife filed for divorce in 2007. The parties disputed various issues regarding the children as well as their incomes and finances. At trial, the husband’s counsel read a stipulation into the record regarding the marital residence:

The Husband is going to be receiving the marital residence and he’s going to be responsible for the mortgage encumbering the residence and he’s going to make his best efforts to see if he can assume the mortgage to have the Wife’s name removed from the mortgage.

(Emphasis supplied). The court asked whether removal of the wife’s name could be done by court order, to which both parties acknowledged that it could not without the mortgagee’s consent. The husband’s counsel explained that the husband had been trying to get the wife’s name removed, but had been unsuccessful so far. The wife’s counsel noted that the husband was only required to use his best efforts to achieve that result. Nevertheless, the final judgment provides:

[T]he parties reached an agreement on ... equitable distribution which was dictated into the record and is included in this Final Judgment.... Husband shall be solely responsible for the mortgage encumbering the property. The lender is ordered to permit Husband to solely assume the mortgage.

The wife complains that the court changed the stipulation. She would not have consented to the stipulation regarding the marital residence if it were not for the requirement that the husband use his best efforts to compel the mortgage lender to remove her name and allow the husband to assume the mortgage. We agree that the court should not have changed the stipulation in this way and that it deprived the wife of the ability to enforce the provision that the husband use his best efforts to remove her from the note and mortgage.

“A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Steiner v. Steiner, 638 So.2d 174, 175 (Fla. 1st DCA 1994) (quoting Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971)). Accord Lift v. Lift, 1 So.3d 259, 261 (Fla. 4th DCA 2009). The court must not disturb the stipulation “unless found to be ambiguous or in need of clarification, modification or interpretation.” Steiner, 638 So.2d at 175 (citation omitted).

In this case, the parties stipulated to the husband using “his best efforts to see if he can assume the mortgage to have the Wife’s name removed from the mortgage.” The trial court expressed concern that the husband would not succeed in removing her name without the help of a court order directing the lender to permit the husband to assume the entire mortgage. However, in reality the court could not order the lender to remove the wife’s name from the mortgage without the lender being a party to the proceedings. Without the provision requiring the husband to use his best efforts to remove her from the mortgage, the wife did not receive the benefit of the bargain she negotiated with the husband and would have no means of enforcing the provision. The stipulation was not ambiguous or in need of interpretation, and the court should have enforced it in the final judgment.

In the final judgment, the court found that the wife currently earned a gross income of $65,000 a year and the husband earned $500 a week ($26,000/ year). The court expressly rejected the husband’s request to impute income to the wife. The court ordered shared parental responsibility and declared the husband the primary residential parent. The court awarded the husband permanent periodic alimony and child support. The court ordered the parties to each pay 50% of non-covered medical and dental expenses, together with 50% of the private school tuition. It also required the wife to maintain life insurance for the benefit of the husband.

The court did not calculate the net income of the parties, but the child support worksheet is attached to the judgment. In it, the net income of the wife is calculated at $3,171, and the net income of the husband is $3,215. This would constitute the wife’s income after deduction of alimony and the husband’s income including the alimony. See § 61.30(2), Fla. Stat. From this income, the wife will be required to pay $939 per month to the husband for child support and also pay her share of the private tuition of the children, which amounts to $445 per month. She pays $120 for their health insurance, while the husband pays $210 for child care. After deducting the child support, private tuition, and health insurance, she will be left with $1,677, plus she must pay for the life insurance and, due to her expanded visitation schedule, must also maintain a residence capable of housing the children during their visits. The husband on the other hand will have approximately $3,400, after payment of child care expenses and private tuition, to support himself and the expenses of the children.

Particularly in these present tough economic times, it is difficult for any marital dissolution to provide sufficient funds to each party to sustain the standard of living to which they might have been accustomed during their marriage. In this case, the wife was the primary income producer, yet her income has been reduced drastically, as has the husband’s. The total of their combined incomes amounts to less than half of what it was two years ago.

Although each award or responsibility placed on the wife, standing alone, may not be excessive, the cumulative total of the awards can constitute an abuse of discretion. See Posner v. Posner, 988 So.2d 128, 129 (Fla. 4th DCA 2008); Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990). Posner compiled various cases to show what cumulative amounts can constitute an abuse of discretion:

Based on the record evidence and findings as to his ability to pay, the total award places an undue burden on him without any justification-assuming that he could be required to pay an amount leaving him with nothing for his personal needs. See Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999) (former husband could not be charged with permanent periodic alimony, child support, and mortgage payments totaling $2549, where his net income was $2760); Radziwon v. Radziwon, 710 So.2d 748, 748-49 (Fla. 4th DCA 1998) (the trial court abused its discretion in setting former husband’s alimony obligation at $866 per month, with an additional payment of $200 per month toward the alimony ar-rearage; former husband’s net monthly income was $1775, former wife’s net monthly income was $1263, and the former husband was left with only $709 per month to support himself after paying alimony. Former wife would have had $2,128.85 available for her needs); Benenfeld v. Benenfeld, 705 So.2d 1072 (Fla. 4th DCA 1998) (alimony award was excessive where alimony award and insurance deductible together constituted nearly 80% of the husband’s net income); Decker v. Decker, 660 So.2d 1162 (Fla. 4th DCA 1995) (court abused its discretion in awarding wife alimony and child support constituting 76% of husband’s income); Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982) (reversed alimony and child support award which amounted to 58% of husband’s net income).

988 So.2d at 130. Similar to the cases cited in Posner, here the amounts assessed against the wife cumulatively are excessive. While in actual dollars the wife might be left with slightly more than the husbands in the foregoing cases, this still amounts to an abuse of discretion where the wife is left with less than the husband makes per month in his own occupation. The court’s awards leave her with only about 35% of her net income.

The husband contends that given the wife’s prior income history, it was not an abuse of discretion. Yet the court affirmatively refused to impute additional income to the wife. Therefore, we cannot consider the award in relation to what the wife could make.

We reverse and remand for further consideration of the awards made and to correct the final judgment to include the stipulation of the parties as to the marital home. On remand, the court may simply refashion the award or may take further testimony as the court deems necessary.

Reversed and remanded for further 'proceedings.

GROSS, C.J., and CIKLIN, J., concur.


text:
    Ronald DANIELS, and Rowena Daniels, individually and as parents and next friends of Ronald Daniels, Jr., a minor, Appellants, v. David DRUCKER, M.D. and South Florida Pediatric Surgeons, P.A., Appellees.
    No. 4D08-2746.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.
    Rehearings Denied Aug. 5, 2009 and Aug. 13, 2009.

      Ronald Daniels and Rowena Daniels, Pompano Beach, pro se.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


author: LAGOA, Judge.

text:
    PINES PROPERTIES, INC., Appellant, v. Janet TRALINS, etc., et al., Appellees.
    No. 3D08-958.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Schuler, Halvorson, Weisser and Richard D. Schuler, West Palm Beach; Burlington & Rockenback, West Palm Beach, and Philip M. Burlington and Andrew A. Harris, for appellant.
    Boies, Schiller & Flexner and Jennifer G. Altman, Miami; Gerson & Schwartz and Edward S. Schwartz, Miami, for ap-pellees.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   LAGOA, Judge.

Appellant-Plaintiff Pines Properties, Inc., appeals an order dismissing its legal malpractice complaint with prejudice. We find no error and affirm the order dismissing the complaint as to appellee-defendant Janet Tralins, as personal representative of the Estate of Myles Tralins. However, we reverse the trial court’s order granting a dismissal as to the remaining appellees-defendants Zack Koznitzky, P.A., Jennifer Altman, Boies, Schiller and Flexner, and Myles Tralin, P.A., based on the expiration of the statute of limitations. As we stated in Alexander v. Suncoast Builders, Inc., 837 So.2d 1056 (Fla. 3d DCA 2002):

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted “in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law.”

Id. at 1057 (quoting Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987)). See Saltponds Condo. Ass’n v. Walbridge Aldinger Co., 979 So.2d 1240 (Fla. 3d DCA 2008); Saltponds Condo. Ass’n v. McCoy, 972 So.2d 230 (Fla. 3d DCA 2007); Chodorow v. Porto Vita, Ltd., 954 So.2d 1240 (Fla. 3d DCA 2007); cf. Bott v. City of Marathon, 949 So.2d 295 (Fla. 3d DCA 2007). Because we find that the statute of limitations defense does not appear affirmatively on the face of the complaint as to these appellees-defendants, we reverse the judgment as to them.

Affirmed in part, reversed in part, and cause remanded.


text:
    Rejon MOWATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1131.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.
    Rehearing Denied Aug. 5, 2009.
    Leonard P. Fenn of DeFabio and Fenn, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nichols v. State, 10 So.3d 1150 (Fla. 4th DCA 2009).

STEVENSON, HAZOURI and LEVINE, JJ., concur.