author: POLEN, J.

text:
    Concetta RAFANELLO, Appellant, v. Mark Wellman BODE, Craig Bode, M.C.C. Stocks, Inc., a Florida corporation, B.W.M., Inc., a Florida corporation, and CRB Stocks, Inc., a Florida corporation, Appellees.
    Nos. 4D08-2480, 4D08-4426.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.
    Rehearing Denied Dec. 16, 2009.
    Stephen Rakusin of The Rakusin Law Firm, A Professional Association, Fort Lauderdale, for appellant.

      No brief filed for appellees.
   POLEN, J.

Appellant, Concetta Rafanello (wife), appeals the trial court’s final judgment of dissolution of marriage and order declining to hear her objection to the clerk’s determination of Appellee, Mark Bode’s (husband), indigency for purposes of appeal. We reverse in part and remand for further proceedings.

The parties’ marriage was dissolved by final judgment of dissolution of marriage on May 5, 2008. Appellees, Craig Bode (Mark Bode’s son from a previous marriage), M.C.C. Stocks, Inc., a Florida corporation, B.W.M., Inc., a Florida corporation, and CRB Stocks, Inc., a Florida corporation were also named respondents in wife’s petition for dissolution of marriage. Judge Charles E. Burton entered a default judgment against the corporate defendants on August 21, 2007 for their failure to retain counsel and defend the action. On March 6, 2008, Judge Elizabeth T. Maass vacated the default judgment noting that the corporate respondents had filed answers to the petition through counsel. The court also noted that the corporate respondents may continue to defend the action through counsel. The corporate respondents neglected to defend against the action any further, and the trial court never reentered a default judgment against them after the final hearing.

Because of the great complexity of husband and wife’s financial affairs during their two-year marriage, we limit our opinion to the trial court’s equitable distribution of the value of the marital home which is the only erroneous portion of the distribution.

Husband and wife married on December 30, 2004, approximately three months after they first met. The couple resided in a home which, in November 1997, husband’s son, Craig, and husband’s former wife purchased for $425,000 as tenants in common. Husband arranged the financing of the home, and Craig used $50,000 he had inherited from his grandparents as a deposit. In February 1998, the former wife conveyed her share of the house to Craig by executing a Quit Claim deed.

The trial court found that most of the home’s expenses were paid from a bank account in Craig’s name but largely funded by husband’s earnings. Husband made all of the mortgage payments on the home, and took out several loans secured by the home. In June 2003, prior to the marriage of husband and wife, appraiser John Cáta-lo valued the property at $1,725,000. In November 2006, one month prior to the parties’ separation, Catalo appraised the home at $2,530,000.

In November 2007, after petitioning for divorce, wife hired appraiser Michael Slade to appraise the home, and he determined that as of the date of the couple’s marriage on December 30, 2004, the home was worth $1,800,000. Slade reached this determination by researching the sales of comparable homes during 2004. Slade admitted on cross-examination that it would not be uncommon for the land to constitute two-thirds of the value of the home. Slade also stated that since 2000, given market conditions, hurricane damage, and rapid appreciation, it was the value of the land and not the value of the home that was appreciating. At the conclusion of his testimony, the trial court asked Slade whether, when he appraised the home in 2007 to determine its value in 2004, he knew what work had been completed since 2004. Slade responded that he did not specifically know what work had been completed, but that he assumed the home was in slightly worse condition in 2004 than it appeared in 2007.

Wife testified that, during the course of the marriage, she invested her labor and approximately $50,000 in marital funds in the improvement of the home. Wife explained that she and her father installed tiles around the pool, painted almost the entire house, applied a faux finish to several rooms, redesigned and painted the entertainment room, replaced portions of the landscaping which were damaged during a hurricane, and stained and refinished the kitchen cabinets. Kent Martindale, the Bodes’ neighbor, testified that most of the significant work done on the home was completed prior to husband and wife’s marriage. Martindale also stated that the entire family worked on the faux painting and that Craig did most of the landscaping repairs himself.

Wife argues the trial court erred in finding that the value of the marital home was not increased by the expenditure of marital labor and funds because competent, substantial evidence showed that the home’s equity increased from $1,800,000 to $2,530,000 during the course of the marriage. Further, wife argues, she is entitled to a share of the home’s equity because $12,000 in marital funds was used to pay the mortgage on the home during the marriage.

A trial court’s equitable distribution of marital assets is reviewed for an abuse of discretion. Hollister v. Hollister, 965 So.2d 341, 343-44 (Fla. 2d DCA 2007). “The trial court’s findings are entitled to the presumption of correctness accorded to trial court judgments where the credibility of witnesses is a factor.” Seijas v. Seijas, 557 So.2d 102, 103 (Fla. 3d DCA 1990).

As to wife’s contention that her expenditure of marital funds and labor resulted in the increase in value of the marital home, we have reviewed the record and hold that the trial court did not abuse its discretion in finding otherwise. Wife did not present substantial, competent evidence that her expenditure resulted in the appreciation. Earner v. Earner, 716 So.2d 795, 797-98 (Fla. 4th DCA 1998).

Wife asserts that the trial court erred in neglecting to award her half of the equity in the home because marital funds were used to pay the mortgage. In Oldham v. Oldham, 683 So.2d 579 (Fla. 4th DCA 1996), this court held:

Absent a showing that either marital funds, assets, or the work efforts of one or both spouses contributed to the enhanced value of the asset, the appreciated value of one spouse’s nonmarital asset occurring during the marriage is not subject to equitable distribution. If the nonmarital property is encumbered by a mortgage, however, and marital funds are expended to service the mortgage or to pay taxes, the ‘property then becomes marital even if the enhanced value is due solely to market forces.

Id. at 580 (citations omitted) (emphasis added).

Wife points to the emphasized portion of Oldham to support her conclusion that, because $12,000 of marital funds paid down the mortgage during the marriage, she is entitled to half of the home’s equity. The broad proposition announced in Oldham was drawn from Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995), which held:

An asset brought by one party to a marriage, which appreciates during the course of the marriage, solely on account of inflation or market conditions, becomes in part a marital asset, if it is encumbered by indebtedness which marital funds service.

Id. at 1307.

Most recently, however, the Second District addressed this specific issue in Kaaa v. Kaaa, 9 So.3d 756 (Fla. 2d DCA 2009), and certified its decision as in direct conflict with Stevens. In Kaaa, prior to marrying wife husband owned a home which he purchased for $36,000. During the couple’s twenty-seven year marriage, $22,279 of marital funds were used to reduce the mortgage on the home. Id. Also during the marriage, the couple built a 360-square-foot addition on the home which wife’s expert testified increased the value of the home by $40 per square foot, or $14,400. Id. At the time of separation, the home was worth $225,000. The trial court found that the value of the home had been enhanced by a total of $36,679 during the course of the marriage and that each party was entitled to half of that amount. Id.

Wife appealed arguing that under Stevens, she was entitled to half of the equity in the home, even that which was due to passive appreciation of the property. Id. The court relied on its previous holding in Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003), and upheld the trial court’s distribution: “[T]he increase in the value of the Riverview property resulting from passive appreciation is the Husband’s non-marital asset.” Id. The Third District has held similarly in Adkins v. Adkins, 650 So.2d 61 (Fla. 3d DCA 1994).

The broad holding in Stevens and Old-ham can be problematic in a case like the present one because it supports the contention that, regardless how brief the marriage or how insubstantial the investment of marital funds, the mere fact that marital funds were used to pay the mortgage entitles a party to half of the equity in the home. Thus, although we have relied on Stevens in some of our other cases, the holding in Stevens is limited to the facts of that case.

Equity will not allow a hard and fast rule that the non-deed spouse is entitled to one-half of the difference between the value of the property at the beginning of the marriage and the value at dissolution where some marital funds were used to reduce the principal of the mortgage. A trial court may also consider the following when supported by competent, substantial evidence in keeping with section 61.075 and applicable case law: the length of the marriage; whether marital labor, money, or both were used to enhance the value of the marital property; and other equitable factors.

In the present case, the trial court erred in failing to consider the $12,000 of marital funds used to pay the mortgage on the property in reaching an equitable distribution. On remand, the trial court must factor the use of marital funds used to pay the mortgage into its equitable distribution but must also consider the factors listed above.

The trial court also erred in refusing to enter a default judgment against the corporate defendants as they were not represented by counsel at trial. Richter v. Higdon Homes, Inc., 544 So.2d 300, 300 (Fla. 1st DCA 1989) (“[a] corporation may not represent itself through non-lawyer employees, officers, or shareholders”). Therefore, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER, J., and KAPLAN, MICHAEL G., Associate Judge, concur.

      . We note that not a single Appellee, including husband, filed an answer brief in the instant appeal.


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. EDUARDO J. GARRIDO, P.A., D.C., a/a/o Angelica Rodriguez, Appellee.
    No. 3D08-2517.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Michael J. Neimand, Miami, for appellant.
    Panter, Panter, Sampedro and Christian Carrazana, Miami, for appellee.
    Before WELLS, COPE, and CORTINAS, JJ.
   WELLS, J.

United Automobile Insurance Company appeals from a final summary judgment declaring that a section 627.736(7)(a) report must be predicated on either a personal examination of the insured by the reporting physician or on a physical examination conducted on behalf of the insurance company (an IME). Because this case is controlled by section 627.736(4)(b) and not section 627.736(7)(a), and moreover because neither a personal examination by the reporting physician nor an IME is necessary to support a valid section 627.736(7)(a) report, we reverse.

Angelica Rodriguez, the insured, was involved in an automobile accident and subsequently treated by Eduardo J. Garrido D.C. P.A. As assignee of Rodriguez’s personal injury protection (“PIP”) benefits, Dr. Garrido submitted bills totaling $8,245 to United Auto for Rodriguez’s treatment. None of those bills were paid.

Dr. Garrido ultimately brought suit to collect payment and moved for summary judgment. In support of that motion, Dr. Garrido served an affidavit from Rodriguez’s treating physician stating that the care provided to Rodriguez was medically necessary and related from a chiropractic standpoint. In opposition, United Auto submitted the affidavit and report of Dr. Neil Fleischer, D.C., who, based solely on a review of Rodriguez’s medical records, concluded that the services rendered were neither related nor necessary.

Dr. Garrido objected to consideration of Dr. Fleischer’s affidavit and report because the report was not predicated on either a personal examination conducted by Dr. Fleischer or on an examination conducted on behalf of the insurer (an IME). The trial court agreed, concluding that the report was invalid for failure to comply with the requirements of section 627.736(7)(a) in that it was not predicated on either a personal examination by the reporting physician or on an examination conducted on behalf of the insurance company. Summary judgment was entered in Dr. Garrido’s favor.

The County Court certified to this Court the following question of great public importance:

WHETHER A PHYSICIAN’S REPORT BASED ON A REVIEW OF RECORDS THAT IS PREPARED AT THE REQUEST OF THE INSURER UNDER § 627.736(7)(a), FLA. STAT. (2003) SATIFIES [SIC] THE STATUTORY CRITERIA OF A VALID REPORT WHERE THE REPORT IS NOT FACTUALLY SUPPORTED BY A PHYSICIAL EXAMINATION CONDUCTED BY ANOTHER PHYSICIAN AT THE REQUEST OF THE INSURER PURSUANT TO § 627.736(7)(a)?

See Fla.R.App.P. 9.160.

We rephrase the question as follows:

Where an insurer has not paid any Personal Injury Protection benefits and denies a claim, must the insurer comply with section 627.736(7)(a) of the Florida Statutes?

We answer the question in the negative.

As this court explained in Partners in Health v. United Automobile Insurance Co., 21 So.3d 858, 2009 WL 3364884 (Fla. 3d DCA 2009), in cases such as this, where no payments have been made resulting in a total rejection of a provider’s bills, section 627.736(4) of the Florida Statutes applies. This provision permits an insurer to deny a PIP claim at any time, either before or after that claim becomes “overdue [because not paid within thirty days]” provided it has “reasonable proof’ that it is not responsible for payment. And, while such proof may come in the foi'm of a report described in section 627.736(7)(a), such a report is not necessary to deny a claim under section 627.736(4)(b). Thus, judgment should not have been granted in this case merely because the report provided by the insurer purportedly did not comply with the requirements of section 627.736(7)(a).

Moreover, and as we confirmed in United Automobile Insurance Co. v. Bermudez, 980 So.2d 1213, 1214 (Fla. 3d DCA 2008), and Partners in Health Chiropractic v. United Automobile Insurance Co., 21 So.3d 858, 2009 WL 3364884 (Fla. 3d DCA 2009), a “valid report,” even where appropriately required under section 627.736(7)(a), need not be predicated on either a physical examination conducted by the reporting physician or on a physical examination conducted on behalf of the insurance company. The report submitted in this case was not, therefore, invalid as not being predicated on a physical examination by either Dr. Fleischer or by another physician on United Auto’s behalf.

The judgment entered below is, therefore, reversed with this matter remanded for further proceedings consistent with this opinion.


author: BROWN, LUCY CHERNOW, Associate Judge.

text:
    Ted DUNLAP, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1004.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.
    Rehearing Denied Dec. 14, 2009.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, August A. Bonavita and Don M. Rogers, Assistant Attorneys General, West Palm Beach, for appellee.
   BROWN, LUCY CHERNOW, Associate Judge.

We affirm the trial court’s final judgment adjudicating appellant guilty of trafficking in cocaine. We write to explain our determination of the first issue raised by appellant. Appellant argues the trial court reversibly erred by denying his motion for mistrial which was based solely on one comment made by the prosecutor during opening statement. Appellant asserts the comment improperly instructed the jury to reach its verdict based on “the truth,” rather than on proof beyond a reasonable doubt. We disagree and examine the comment in context.

During October, 2003, Agent Chris Hunt of the Drug Enforcement Agency (DEA) worked with an informant to investigate appellant. The informant had been charged with drug trafficking several months earlier. Facing thirty years imprisonment and a fifteen-year mandatory minimum sentence, informant chose to work with law enforcement as a cooperating source. Because of his cooperation in several cases informant was ultimately sentenced to five years probation.

At trial, informant testified that he had been selling drugs to appellant on a weekly basis for approximately one year. A few months after informant’s arrest, informant saw appellant at Cheers bar in Ft. Lauder-dale. Appellant gave informant his business card and informant said he would call appellant in a few days to arrange the sale of nine ounces of cocaine. Agent Hunt and Detective Pat Fletcher, of the Bro-ward Sheriffs Office, recorded a conversation between appellant and informant on October 21, 2003, in which appellant told informant that he could give informant $1,000 any time, and informant replied that he would get appellant “a nine” and appellant would owe him the remaining $3,500. Informant testified that “a nine” referred to nine ounces of cocaine.

On October 22nd, another telephone conversation was recorded in which appellant called informant to tell him he had $1,000 and informant responded that it would have to wait one day because informant had not yet seen his source.

On October 23rd, appellant met informant at Bru’s Room in Pompano Beach. Informant was sitting in his car in the parking lot. Informant’s car had been equipped with video recording equipment. Appellant approached the vehicle and told informant that he had left the money at home, and asked whether he could take “it” and bring the money back. Informant told appellant that he would wait there for appellant to return with the money, and appellant did return in ten minutes with $1,000. Informant counted the money and opened the glove box containing the cocaine. Appellant took the cocaine from the glove box and put it in a black “Hard Rock” bag. As appellant exited the vehicle, police surrounded and arrested him. A videotape of the transaction and the audio tapes of the recorded telephone conversations were introduced into evidence.

The testimony of both Agent Hunt and Detective Fletcher corroborated informant’s account of the events leading up to appellant’s arrest. Fletcher testified that he monitored and recorded the telephone conversation of October 21st. Fletcher explained that the lab tech at the Sheriffs office packaged the cocaine in a gallon zip lock baggie and that he placed the baggie in the glove box. Fletcher testified that he searched informant’s vehicle before and after the meeting between appellant and informant and that the black “Hard Rock” bag had not been in the vehicle during either search.

Appellant took the witness stand to testify to his own version of the events. Appellant testified that he had previously lent a number of expensive tools to informant and that informant still had his tools. According to appellant, when the two met at Cheers in October, 2003, informant told appellant that informant had been in legal trouble and had no money, reminding appellant that appellant still owed him $4,500 dating back to the time when they had lived together. According to appellant’s testimony, appellant then offered to give informant $1,000 and informant agreed to return appellant’s tools. The two agreed to meet at Bru’s Room to exchange the tools and money. Appellant stated that when he entered informant’s vehicle, there was a black “Hard Rock” bag on the passenger seat, which he picked up without knowing what was inside. Appellant testified that he never saw any drugs in the vehicle and never attempted to purchase cocaine.

The jury found appellant guilty of trafficking in cocaine. The trial court sentenced him to eight years imprisonment. On appeal, appellant argues that one comment made by the prosecutor in his opening statement created reversible error. In relevant part, the prosecutor’s opening statement was as follows:

Yes, through the help of [informant], the sheriffs office, through DEA we’re selling a quarter kilogram of cocaine to a man that was readily in the business of buying it. And readily in the business of buying it from [informant] for a fairly lengthy period of time and he got caught.
And, yes, [informant], you’re going to hear he’d (sic) a convicted felon. Yes, you’re going to hear a convicted drug trafficker from his case in Palm Beach County. Yes, you’re going to hear that he was facing a thirty year prison sentence with a fifteen year minimum mandatory and he worked for over a year with the DEA to make bunch of cases to work himself out of a jam. And eventually the Palm Beach County State Attorney’s Office convicted him of that crime, drug trafficking, and gave him a-a five year probationary sentence for all the cases that he had worked on. You’re going to hear that he’s currently still on supervision for that ease out of Palm Beach County.
And you’ll hear that I had nothing to do with that case relating to — I wasn’t his prosecutor. I’m a Broward County Prosecutor; wasn’t involved in the decision of that sentence. Wasn’t involved in, you know, monitoring his probation currently or any of that other scenario. I guess somebody in my position in Palm Beach County is doing that.
But this case was made in Broward. It was the only case made in Broward; dropped in my lap to prosecute. So, therefore, folks, I ask you: judge his credibility, judge all the witnesses’ credibility, listen to the phone conversations, watch the tapes, listen to all the evidence, don’t make any fixed opinions, and when you come back and you hear everything — when you hear everything — [informant], the police, the films, the tapes, photos — then get together and make a collective decision on what the truth is about that circumstance of how that case came to be developed on October 23rd [objection by counsel] — about what actually happened on October 23, 2003 and make your decision after the close of all the evidence. Thank you.”

(Emphasis added.)

At that point, at sidebar, appellant’s attorney made his motion for mistrial, stating “the prosecutor said the jury should make a decision as to what’s the truth. That is, per se, a mistriable comment. The jury is not here to decide what the truth is of the matter. The jury is here solely to determine whether or not the State has proven its case beyond a reasonable doubt.”

Immediately after the motion was denied, appellant’s counsel gave the defense opening statement, starting with a direct response to the prosecutor’s comment about the jury’s job of judging the credibility of witness informant. The defense opening statement focused on explaining to the jury why it should not believe informant’s testimony. Defense promised the jury that the defendant would testify to a different version of the events and urged the jury to believe appellant over informant. Defense concluded that appellant would tell them “what actually occurred” and explained to the State’s burden of proof:

You’ll hear, and you’ll hear it from the judge, that the State has the burden of proving everything beyond a reasonable doubt. We went through this yesterday. ...
When you hear the evidence, and you hear all the evidence, and you consider it in conjunction with the instructions of the court and what we talked about yesterday, that it’s always the State’s burden and even the defendant’s testimony only becomes part of what is the State’s evidence to make that determination that the case has been proven beyond a reasonable doubt. When that is all done the verdict that will be returned, ladies and gentleman, as I give this to you is not guilty. Thank you.

A trial court’s decision as to whether to grant a motion for mistrial is reviewed for abuse of discretion. Freeman v. State, 1 So.3d 373, 377 (Fla. 5th DCA 2009). The power to declare a mistrial should be exercised with care and caution and only in cases of absolute necessity. Id. “[A] mistrial should only be declared if ‘the error is so prejudicial and fundamental that it denies the accused a fair trial.’ ” Lubin v. State, 754 So.2d 141, 143 (Fla. 4th DCA 2000) (citing Buenoano v. State, 527 So.2d 194, 198 (Fla.1988)).

We find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial because the State’s single reference to “the truth” in opening statement neither insinuated that defendant needed to prove anything, nor invited the jury to convict the defendant for a reason other than the State proving defendant’s guilt by evidence beyond a reasonable doubt.

Appellant relies on our opinion in Northard v. State, 675 So.2d 652 (Fla. 4th DCA 1996). In that case, we held that a comment made by the prosecutor in opening statement, together with another comment made in closing argument, constituted reversible error because the remarks, considered together, invited the jury to convict the defendant for a reason other than his guilt of the crimes charged. In Northard, during opening statement, the State told the jury: “The State is confident that after you review all the evidence that will be presented to you during this trial, you will deliberate and come back with a verdict, a verdict that simply reflects the truth; that the defendant in this case was caught red-handed.” (Emphasis added.)

In its closing the State argued:

If you believe the defendant’s events (sic) the police cannot be telling you the truth, and you’ve got to decide if that’s what they did and they got up here and deliberately fabricated evidence and fabricated testimony for you in order to convict this guy. In order to find him not guilty you’re going to have to believe that. And that’s what your verdict, in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying....

(Emphasis added.)

Those two comments together, each of which specifically instructed the jury how to reach its verdict, improperly stated the legal burden of proof. Considered in context, these two comments together suggested that the jury should reach its ver-diet based solely on a determination of who was lying and who was telling the truth.

On the other hand, the prosecutor in the case at bar properly discussed the jury’s obligation to determine the credibility of the witnesses’ testimony and did not suggest any improper basis for reaching a verdict. There was no suggestion that the jurors’ determination of who was telling the truth should be the sole basis for the jury’s verdict. The appellant’s reliance on our opinion in Paul v. State, 980 So.2d 1282 (Fla. 4th DCA 2008), is likewise misplaced. In that case, the State explicitly and improperly shifted the burden of proof by telling the jury during closing argument that “[t]he State has the burden of proving all of these elements beyond a reasonable doubt. And if [the defense attorney] wants to present theories of how she believes this case should play out, there’s got to be some level of proof that Mr. L'aboy was lying.” (Emphasis in original.)

In Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967), the Second District held that comments made by the judge to the jury panel during voir dire in a first degree murder case were improper because the limited explanation of how jurors were to reach a verdict could have resulted in a juror voting to convict the defendant solely because the juror felt that the defendant, in truth, committed the offense, even though his guilt may not have been proven to the exclusion of every reasonable doubt. The Gibbs court found that even these improper comments from the bench constituted reversible error only when considered in combination with other legal errors, including the court’s overruling defendant’s proper objection to a witness giving his opinion about the guilt of the accused. The court explicitly held that the judicial comments during voir dire, standing alone, did not constitute reversible error.

Such comments must be considered in the context of the entire trial. In the instant case, the prosecutor made one reference to “the truth” in opening statement, in the context of a discussion of the credibility of witness informant. Informant and the appellant were expected to, and did, give conflicting versions of the relevant events. It was not improper to utter the word “truth” in the context of the jury’s role as factfinder, particularly where, as here, the comment was immediately followed by a clear explanation of the State’s burden of proof in the defense opening statement, and the jury was properly instructed on the State’s burden of proof by the judge at the conclusion of the case.

We hold that neither the word “truth” nor the topic of witness credibility is prohibited in a criminal trial in proper context.

Affirmed.

STEVENSON and GERBER, JJ., concur.


author: HAZOURI, J.

text:
    James SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-580.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.

      Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

James Santiago appeals a final judgment finding him to be a sexually violent predator pursuant to the Sexually Violent Predator Act, also known as the Jimmy Ryce Act. This followed a jury verdict. Santiago argues that the trial court abused its discretion when it failed to permit him to reopen his case so that false testimony presented by the state to demean the credentials of one of Santiago’s experts could be countered and corrected prior to the jury beginning its deliberations. We agree and reverse for a new trial.

Santiago was declared a sexually violent predator in 2002. The jury trial in question occurred in 2007. Its purpose was to determine whether Santiago continued to qualify as a sexually violent predator, i.e., whether he was likely to reoffend should he be released from commitment.

Santiago called Natalie Novack Brown, Ph.D., a clinical psychologist who is licensed in the state of Florida and Washington. She does forensic evaluations at the request of attorneys and on referral from the courts, especially in Seattle. She is a certified sex offense treatment provider in the state of Washington. She was at one time a sexually violent predator evaluator for the State of Florida, Department of Children and Families (DCF), where she did risk assessments. She is also a member of the Association of State and Provincial Psychology Boards (ASPPB), as well as other associations. She has done over 300 risk assessments in the civil commitment context.

Dr. Brown performed two evaluations of Santiago. The first was done when she worked for DCF and Santiago was about to leave prison. She found Santiago to be an exhibitionist, having a history of poly-substance dependence, malingering because of his self report of fabricated symptoms of schizophrenia, and antisocial personality disorder. She found paraphi-lia not otherwise specified. She reevaluated Santiago in 2006. Based upon her reevaluation in 2006, she opined that he was not at risk to recommit sexual violence, nor was there any indication of pedophilia. Dr. Brown was the only expert presented by Santiago who was permitted to give an opinion as to Santiago’s risk for reoffend-ing.

After Santiago’s case had rested, the state recalled forensic psychologist Dr. Amy Swan. During the state’s case, Dr. Swan opined that Santiago was at extremely high risk to reoffend. The state’s purpose for recalling Dr. Swan was to impeach the credentials and credibility of Dr. Brown. Dr. Swan was permitted to testify, over objection, that she was a member of the ASPPB and a delegate from Florida to that Board. She was further permitted to testify over objection that she had never seen Dr. Brown at any of the meetings of this organization and that Dr. Brown was not a member of the organization. Additionally, through the testimony of Dr. Swan, the state introduced into evidence a letter from the ASPPB, which stated that Dr. Brown was not currently a member of the ASPPB and not a member of the licensing board.

After the jury was instructed, but prior to it retiring for deliberation, outside its presence, the following colloquy took place:

MR. FLEISCHMAN [counsel for Santiago]: This is outside the presence of the jury, just for the record. I just got a call from Natalie Brown. I had left a message on her phone because I knew that she was in flight. She just landed in the Seattle airport. She’s faxing me her membership card that’s good through 2008 in the Association of State and Provisional (sic) Psychology Boards showing that she is, in fact, a member contrary to what Dr. Swan alleged, so I’m going to ask the Court, although unusual—
THE COURT: It is unusual. Let me ask the State what they think.
MS. KANNER [counsel for the state]: About what?
THE COURT: I mean, we closed the case, it’s closed, but it’s up to you.
MS. KANNER: Well, what’s he want to do?
THE COURT: He wants to show that she’s qualified because the other woman said she wasn’t; is that correct?
MR. FLEISCHMAN: I mean, basically Dr. Swan is saying she’s out and out lying, that she’s not a member, and it turns out that she is.
MS. KANNER: It’s not really Dr. Swan, it’s the organization is saying she’s not a member. They issued a flat out statement saying that she doesn’t belong to their — the executive officer, that she doesn’t belong to them.
THE COURT: Was that introduced into evidence?
MS. KANNER: Yes.
THE COURT: Okay.
MR. FLEISCHMAN: It’s saying—
THE COURT: Just because she has a card—
MR. FLEISCHMAN: It says: Without more information it’s not possible to estimate whether this Natalie Brown holds — because there may be more than one Natalie Brown, but she’s saying she does hold the certificate. She’s faxing me her membership card.
THE COURT: I think it’s too late to introduce something now, the case is closed.
MS. KANNER: We’ve already charged the jury. I’m uncomfortable allowing more evidence in at this point.
THE COURT: I’m not going to allow it. Unfortunately, I understand it, I sympathize with him, but the jury’s ready to go back there.
MR. FLEISCHMAN: Judge, the only thing that I would, just to make a record, not a reargument—
THE COURT: You can make the record.
MR. FLEISCHMAN: It’s a falsehood. In other words, it’s not true, she is a member of that Board. It leaves the jury — In this case, it’s not just argument, it’s a complete lie. It leaves the jury with a misleading idea that she lied, which is false.
THE COURT: What’s your theory now, it’s the end of the case?
MR. FLEISCHMAN: Well, I agree it is unusual. I’ve never had it come up before.
THE COURT: I don’t know how you can introduce — I respect you for what you’re doing. I mean, you’ve got to do everything you can for your client, that’s what I did when I was a lawyer.
MR. FLEISCHMAN: I would ask you to let us reopen for that sole issue, to allow me to introduce it, and if the State wants to reargue any points on it I would have no objection to that, and then to just re-close and allow them to deliberate, barring that I would move for a mistrial also if that’s not allowed.
THE COURT: What’s the mistrial?
MR. FLEISCHMAN: Because they’re saying—
THE COURT: Because you didn’t have the evidence to present at the time; is that what you’re telling me?
MR. FLEISCHMAN: Well, there’s been rebuttal and she was in flight. I left her a message as soon as I learned this was an issue and I think it paints a false picture of Dr. Brown because it’s contrary to what Dr. Swan in this letter — Actually, this letter didn’t say with certainty that she’s not, it actually says, without more information.
THE COURT: They’re going to read the letter.
MR. FLEISCHMAN: But it does paint—
THE COURT: It doesn’t say without certainty. I don’t even think that’s going to influence the case. What do you have to say?
MR. FLEISCHMAN: And I did object to that letter coming in originally.
THE COURT: Well, did I rule on it?
MR. FLEISCHMAN: Yes, you overruled the objection.
MS. KANNER: Hearsay is allowed in these cases, as you well know. Judge, at this juncture and that may be true, but Dr. Brown could have stayed for rebuttal, rebuttal, rebuttal, whatever. I mean, she sat here through all the rest of the trial and was prepared to help Mr. Fleischman through the trial. I don’t know what to tell you, we’ve charged—
THE COURT: Well, you’re objecting to him entering this, the case is finished.
MS. KANNER: Yes. We’ve charged the jury. I think even if we hadn’t charged the jury he might have an argument, but I can’t fathom at this point to reopen the case at this juncture. I mean, but for me correcting that piece of paper and her needing a cigarette they would be back there deliberating.

The trial court denied Santiago’s counsel’s request.

“The decision to reopen a case lies within the discretion of the trial court and will not be disturbed on appellate review absent an abuse of discretion.” Donaldson v. State, 722 So.2d 177, 181 (Fla. 1998).

Although the decision to allow a case to be reopened involves sound judicial discretion, not usually interfered with on the appellate level, a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had significant impact upon the issues to be resolved.

Delgado v. State, 573 So.2d 83, 86 (Fla. 2d DCA 1990) (citation omitted).

The supreme court held in Donaldson:

Where the case is not technically closed (i.e., counsel have not begun closing argument and the case has not been submitted to the jury), the denial of a defendant’s motion to reopen the case will be reversed if the motion was timely and a proper showing has been made as to why the evidence was omitted. Steffanos v. State, 80 Fla. 309, 86 So. 204 (1920) (holding that the case should be reopened where “the cause ha[s] not proceeded so far that the ends of justice would [be] defeated, or the orderly process of the court disturbed”)....

Donaldson, 722 So.2d at 181-82 (citations omitted). Steffanos’s holding was in regards to timeliness of a request by the defendant to reopen his case to allow him to present testimony that would prove his innocence. In it the court stated:

The motion was to reopen the case, but the case was not technically closed. The judge had not charged the jury; the counsel had not begun the argument; the case had not been submitted. It had only reached that stage where each party announced that it rested; that there was no more evidence to be introduced. The court then took a recess. Upon convening on Monday following, the motion was made. Whatever delay or confusion may have resulted in the trial of the case by permitting the witnesses to testify might have been fully requited by the establishment of defendant’s innocence, for it was the province of the jury to weigh the evidence introduced and place a value upon its probative force.
Even if the case had been technically closed, it would have been an abuse of discretion to refuse to open the case and permit the evidence to be introduced, upon the proper showing being made as to why it had been previously omitted. See 38 Cyc. 1361.
While the record does not disclose that any showing was made when the motion was submitted, yet the cause had not proceeded so far that the ends of justice would have been defeated, or the orderly processes of the court disturbed, by an admission of the testimony.
The refusal to allow the evidence to be introduced under the circumstances was an abuse of discretion, which was harmful to the defendant, and was therefore error.

Steffanos, 86 So. at 205-06 (emphasis added).

In Silber v. Cn’R Industries of Jacksonville, Inc., 526 So.2d 974 (Fla. 1st DCA 1988), a civil case, the trial court stated the following principle on reopening cases:

As a general rule, the trial court has broad discretion to allow a party to reopen its case and present additional evidence, whether it does so after a party rests, after the close of all evidence, or even after having directed a verdict for one party; and such ruling by the trial court, absent a showing of abuse of discretion, will not be overturned on appellate review. Indeed, it may even amount to an abuse of discretion not to permit a party to reopen its case in some circumstances. But the trial court’s discretion is not unlimited, for it may allow reopening only “where this can be done without injustice to the other party.”

Id. at 978 (citations omitted).

The circumstances in this case establish a proper basis for presenting additional evidence due to the state’s presentation of evidence that misled the jury as to the credibility of Santiago’s expert witness who testified to his progress from a high risk sexual predator to one of low risk. To permit the state to impugn the credentials and credibility of Santiago’s only expert witness on the issue of his likelihood to reoffend in the manner in which it was done in this case is an abuse of discretion. We cannot consider this harmless error. To further compound the error, the state, in its final argument, told the jury Dr. Brown lied. “She stood here and lied to you, and if you have any questions about that listen to the transcript. She told you she was on that Board and she clearly isn’t, it’s the tip of the iceberg.” We, therefore, reverse and remand for a new trial.

Santiago asserts two other points on appeal. We find it unnecessary to address these two issues because we are reversing and remanding for a new trial.

Reversed and Remanded.

FARMER and CIKLIN, JJ., concur.

      . §§ 394.910-394.932, Fla. Stat. (2007).

      . The letter introduced was from Stephen T. DeMers, an executive officer of the ASPPB sent to "to whom it may concern" and stated: “[l]o the best of our knowledge and information, Natalie Brown from Florida is not currently an individual member of ASPPB, nor a member of an ASPPB member licensing board. Without more information it is not possible to ascertain whether this Natalie Brown holds, or has ever held a Certificate of Professional Qualification (CPQ) from ASPPB."

      . The faxed card is the Certificate of Professional Qualification in Psychology for Natalie J. Novick-Brown which would expire on 4/11/2008, after the trial was held.


author: PER CURIAM.

text:
    QUALITY ROOF SERVICES, INC., Appellant, v. INTERVEST NATIONAL BANK, Appellee.
    No. 4D08-3382.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.

      Virginia Cassady, Clifford B. Shepard and Morgan G. Bourdat of Shepard, Smith & Cassady, P.A., Maitland, for appellant.
    Diane Noller Wells of Devine Goodman Pallot Rasco & Wells, P.A., Coral Gables, Joshua Magidson and Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Clear-water, for appellee.
   PER CURIAM.

The appellant, Quality Roof Services, Inc. (“Quality Roof’), appeals the trial court’s order denying Quality Roofs Amended Motion to Amend Answer to Plaintiffs Complaint and the resulting Order Granting Motion For Final Summary Judgment, For Entry of Final Judgment of Foreclosure of Apartment Complex and For Award of Attorneys’ Fees and Costs, and the award of Partial Summary Judgment of Foreclosure of Apartment Complex. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).

This appeal arises from a foreclosure action filed by Intervest against The Villas at Lauderhill, LLC, the owner of an uninhabitable, hurricane-damaged apartment complex (“the Villas”). Quality Roof is a roofing contractor that subcontracted to furnish materials, labor, and equipment for roofing, stucco, and other hurricane repairs for the Villas. Intervest is the lender which refinanced the Villas’ pre-existing mortgage indebtedness. Intervest filed a first mortgage on the property and recorded on August 19, 2005. Quality Roof recorded a claim of lien against the Villas for unpaid invoices on July 25, 2007.

Intervest filed its foreclosure action on November 29, 2007. Quality Roof was joined as a defendant because of its recorded claim of lien. Quality Roof did not raise any affirmative defenses, nor did it cross-claim to enforce or foreclose its claim of lien. The Villas at Lauderhill, LLC, consented to final summary judgment and the sale of the property, and Intervest moved for final summary judgment on June 11, 2008. The hearing on the motion was scheduled for July 17, 2008. Quality Roof did not file any affidavits or other evidence in contravention of Intervest’s summary judgment motion and supporting affidavits.

On July 3, 2008, Quality Roof moved to amend its answer and assert an affirmative defense of unclean hands against Intervest to prevent Intervest’s foreclosure. Responding on July 14, 2008, Intervest claimed that the amendment would be futile and prejudicial. On July 16, 2008, the day before the hearing, Quality Roof served an amended motion to amend its answer, which elaborated its allegations of Intervest’s unclean hands. In the amended motion to amend, Quality Roof alleged that Intervest failed to properly distribute insurance proceeds it had received from a hurricane damage insurance claim on the Villas; and but for Intervest’s wrongful actions, the default would not have occurred and the property would not have been foreclosed upon.

On July 17, 2008, the trial court held a hearing on both Quality Roofs Motion to Amend and Intervest’s motion for final summary judgment. In denying the Motion to Amend, the trial judge found that although allowing the amendment would not prejudice Intervest, the amendment would be futile in the context of the case as currently postured. We agree that In-tervest would not be prejudiced, but disagree that allowing the amendment would be futile. We therefore reverse and remand.

A trial court’s denial of a motion to amend is reviewed for abuse of discretion. See Noble v. Martin Mem’l Hosp. Ass’n, 710 So.2d 567, 568 (Fla. 4th DCA 1997). Florida Rule of Civil Procedure 1.190(e) states that “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” A court “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Thompson v. Bank of Neiv York, 862 So.2d 768, 770 (Fla. 4th DCA 2003) (citation omitted); see also Montero v. Compugraphic Coup., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988). In ruling on a motion for leave to amend, “all doubts should be resolved in favor of allowing an amendment, and the refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Cason v. Fla. Parole Comm’n, 819 So.2d 1012, 1013 (Fla. 1st DCA 2002); see also Fields v. Klein, 946 So.2d 119, 121 (Fla. 4th DCA 2007); Thompson, 862 So.2d at 770. A proposed amendment is futile if it is insufficiently pled, id., or is “insufficient as a matter of law,” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999).

Although the unclean hands defense may be asserted in foreclosure cases when the parties are in privity, see, e.g., Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995); Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995), privity is not an essential element of the equitable defense. Unclean hands may be asserted by a defendant who claims that the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation. See Yost v. Rieve Enters., Inc., 461 So.2d 178 (Fla. 1st DCA 1984) (“There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party.”); see also Hauer v. Thum, 67 So.2d 643, 645 (Fla.1953) (“It would matter not that the [defendants] were parties to the fraudulent transaction nor that the fraud was perpetrated upon a third party.”); Marin v. Seven of Five Ltd., 921 So.2d 699, 700 (Fla. 4th DCA 2006) (“Generally, the conduct constituting the unclean hands must be connected with the matter in litigation.”) (citation omitted).

Here, the trial court should have allowed Quality Roof to assert its affirmative defense of unclean hands. The affirmative defense was sufficiently pled and, as a matter of law, is sufficient to be able to prevent a foreclosure. Based on Quality Roofs allegations that the default and foreclosure would not have occurred but for Intervest’s unclean hands, Quality Roof need not be in privity with Intervest to assert its affirmative defense. We note, however, that unclean hands may not be used in this case to subordinate Intervest’s mortgage to Quality Roofs lien. Indeed, at oral argument, counsel for Quality Roof conceded that Quality Roof did not seek to have its lien become superior to Intervest’s mortgage. Therefore, on remand, the trial court should allow Quality Roof to assert its affirmative defense of unclean hands.

Reversed and remanded.

POLEN, STEVENSON and GERBER, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Liliu PEREZ, Respondent.
    No. 3D09-667.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.
    Michael J. Neimand, Miami, for petitioner.
    Marlene Reiss, for respondent.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   WELLS, J.

United Automobile Insurance Company petitions for a writ of certiorari to quash a decision of the Circuit Court Appellate Division affirming a summary judgment in favor of insured Liliu Perez. That opinion adopted a lower court ruling striking as untimely a report from United Auto’s expert on reasonableness, relatedness, and necessity. We grant the petition and quash the decision below.

Perez was involved in an automobile accident on or about September 25, 2003. From October 1, 2003 until November 19, 2003, she received medical treatment for injuries she claims to have sustained in that accident. On November 11, 2003, Perez submitted to an independent medical examination (“IME”) conducted by Dr. Pedro Musa-Ris, who issued a report concluding that “further treatment or diagnostic testing within my licensing chapter would not be reasonable, necessary or related for the accident in question.” Based on this report, on November 17, 2003, United Auto issued a letter stating: “[pjlease be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after 11/24/03.”

On September 8, 2004, Perez filed suit against United Auto for breach of contract for failure to pay any of her medical bills. On October 31, 2006, United Auto filed a report that had been prepared by Dr. Richard Glatzer on May 12, 2005. That report stated that “none of the care rendered at Florida Institute for Pain was reasonable, necessary or related.” Perez, claiming that the report was untimely, moved to strike Dr. Glatzer’s report and to prohibit him from testifying. The motion was granted. Without Dr. Glatzer’s report, United Auto had no evidentiary support for its claim that Perez’s treatment was not reasonable, related or necessary. Judgment was, therefore, entered on Perez’s claim for payment of charges incurred before November 24, 2003.

The Appellate Division of the Circuit Court, while observing that “Florida law is devoid of any requirement that an insurance company ... obtain a peer review report within thirty days from the date of the notice of loss to establish or contest the reasonableness, relatedness, and necessity of a PIP [personal injury protection] claim,” nonetheless concluded that an insurer cannot “wait three years after the denial of a claim and two years after the commencement of litigation ... to file a peer review report as the only evidence which supports a blanket denial of a claim.” On this basis, the trial court’s ruling in Perez’s favor was affirmed.

We reverse on the authority of this court’s recent decisions in United Automobile Insurance Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So.3d 60, 2009 WL 3188957 (Fla. 3d DCA 2009) and Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Automobile Insurance Co., 21 So.3d 858, 2009 WL 3364884 (Fla. 3d DCA 2009). In these cases we concluded that where, as here, an insurer fails to pay any or some of an insured’s medical bills, section 627.736(4)(b) of the Florida Statutes applies. That provision requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; that such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise; and that such proof may be provided at any time. Thus, the Appellate Division in this case erred in concluding that Dr. Glatzer’s report was untimely and could not be used to support United Auto’s position.

We therefore grant certiorari, quash the decision below, and remand for further proceedings consistent with this opinion. See Morningside Civic Ass’n, Inc. v. City of Miami Com’n, 917 So.2d 293, 295 (Fla. 3d DCA 2005) (“The exercise of ‘second-tier’ certiorari jurisdiction is appropriate where the circuit court appellate division has applied the incorrect law.”); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1286 (Fla. 2d DCA 2005) (“In measuring the seriousness of an error to determine whether second-tier certiorari is available, one consideration is whether the error is isolated in its effect or whether it is pervasive or widespread in its application to numerous other proceedings.” (quoting Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002))).

Writ granted.

      . Perez made no claim for services provided or charges incurred after November 24, 2003. According to the IME report, that was the date following which no further payments were justified. We therefore do not address payment of any charges after November 24, 2003.


author: MAY, J.

text:
    Sandra S. ROBERTS, Appellant, v. Mark Elliot ROBERTS, Appellee.
    No. 4B08-2178.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.
    Rehearing Denied Dec. 18, 2009.
    Eddie Stephens of Law Office of Eddie Stephens, P.A., West Palm Beach, for appellant.
    Howard P. Newman, Palm Beach Gardens, for appellee.
   MAY, J.

The former wife appeals a post-dissolution modification order reducing her permanent periodic alimony. The former husband cross-appeals and argues error in the trial court’s calculation of the retroactive portion of the modified alimony and in its award of attorney’s fees. We agree with the former husband that the trial court made a mathematical error in applying the reduced alimony retroactively and reverse on this issue alone. We affirm in all other respects.

When the parties divorced in 2004, the court ordered the former husband to pay $8,100 per month in permanent periodic alimony to the former wife. In December 2004, the former husband filed his first petition for modification. The court found the former husband failed to establish a permanent, involuntary decrease in his income. The court also found that the adjustable rate in the former wife’s mortgage did not provide a permanent decrease in her need. The court denied the petition for modification.

On January 19, 2006 the former husband filed a second supplemental pro se petition for modification of child support, and on June 1, 2006, filed an amended petition for modification of alimony. For the three preceding years, the former husband’s income was in the $125,000 range. But because the trial court could not accurately determine the former husband’s income “with sufficient precision,” the court concluded that it was less than $250,000 but more than $125,000. The court further found that the former wife was voluntarily unemployed and imputed income of $40,000 per year. The court also found that the former wife’s need had decreased due to the refinancing of her home and a reduction in expenses attributable to her adult children and parents. Based on the imputed income and reduction in need, the court reduced the former husband’s alimony obligation from $8,100 per month to $3,300 per month.

The court subsequently held a hearing on the retroactive application of the reduced alimony and attorney’s fees issues. The court decreased the alimony effective June 1, 2006, the date the amended petition for modification of alimony was filed. The court then calculated the amount of alimony to be paid set off by the newly found reduction. The court did not apply the reduced alimony for six months, the period of time calculated by the court between the filing of the pro se motion on January 19th and the filing of the amended petition for modification of alimony on June 1st.

The parties filed motions for rehearing. The former husband also filed a motion to amend the calculation in the final judgment concerning the retroactive alimony reduction. In it, the former husband argued that the trial court had made a mathematical error because there were four months between February 1, 2007 and May 31, 2007 (February, March, April and May), not six as used in the final judgment. The court denied the motions.

We review orders on the modification of alimony awards for an abuse of discretion. Cleary v. Cleary, 872 So.2d 299, 303-04 (Fla. 2d DCA 2004).

On appeal, the former husband first argues that the reduced monthly alimony should relate back to the date of his pro se request filed in January, 2006. We disagree. As the trial court found, that petition related solely to child support. The request to modify alimony was filed on June 1, 2006 when the petition was amended.

The former husband next argues that the court erred in its decision that the reduced alimony not be applied to the “six months” between January 19 and May 31, 2006. He argues that the court mathematically erred when it required him to pay six months instead of four months of full alimony. He claims the January alimony obligation should not have been included because the original dissolution order required bimonthly payments, which had been paid prior to filing the pro se modification petition on January 19th. Thus, the court should have calculated the time period from February 1 to May 31, 2006.

With this argument, we agree in part. Because the amended petition was filed on June 1st, the court should not have excluded June from the retroactive reduction in alimony. We disagree with the husband with regard to the court’s inclusion of January, however. His claim that the January alimony became due and was paid before the filing of his January petition is belied by his status of being in contempt for nonpayment of alimony at that point in time.

For this reason, we reverse and remand with directions to the trial court to correct this mathematical error. In all other respects, we affirm.

Reversed in part and Remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Judge Phillips ruled on the original petition. Judge Rapp entered the order now on appeal.


author: DAMOORGIAN, J.

text:
    Edna Ramos CHUE, Appellant, v. Richard S. LEHMAN, individually and Richard S. Lehman, P.A., a professional association, Hilda Piza Lucom, individually, Melinda Morrice, individually, Frank Morice, individually, Gilberto Arias, Jr., individually, Julian Cabarcos, individually, Hector E. Infante, individually, Infante & Perez Almillano, a civil law firm partnership, Appellees.
    No. 4D09-128.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.

      Matías R. Dorta of Tew Cardenas, LLP, Miami, for appellant.
    Steven M. Katzman and Charles J. Ben-nardini of Katzman, Wasserman, Bennar-dini & Rubinstein, P.A., Boca Raton for appellees, Richard S. Lehman and Richard S. Lehman, P.A.
   DAMOORGIAN, J.

Edna Ramos Chue appeals the trial court’s denial of her Motion to Recover Attorney’s Fees and Tax Costs and Motions for Sanctions under section 57.105(1), Florida Statutes (2008). The standard for reviewing the denial of a motion for attorney’s fees under section 57.105(1) is clear abuse of discretion. Nasser v. Nasser, 975 So.2d 531, 532 (Fla. 4th DCA 2008).

This appeal arises out of a complaint filed by Richard S. Lehman, individually, and Richard S. Lehman, P.A. against Chue and several other defendants for abuse of process and civil conspiracy. Lehman alleged that Chue and the other defendants conspired to force him to resign as personal representative of The Estate of Wilson C. Lucom, and thereby obtain control of the estate through an abuse of the civil and criminal processes in Panama and the civil process in Florida. Chue moved to dismiss the complaint on the grounds that it failed to state a cause of action for abuse of process and that she was not subject to personal jurisdiction in Florida. The trial court denied Chue’s motion with respect to the issue of failure to state a cause of action, writing that “[wjhile the mere filing of a complaint and having it issue, in and of itself does not constitute abuse of process, the complaint alleges misuse of that process subsequent (i.e. to extort actions) which well pled facts this court must accept as true.” The court deferred ruling on the personal jurisdiction issue and allowed jurisdictional discovery. Lehman subsequently amended his complaint and Chue moved to dismiss the amended complaint on the same grounds as she moved to dismiss the original complaint. Prior to the trial court ruling on Chue’s motion, Lehman voluntarily dismissed Chue from the suit.

After she was dismissed from the suit, Chue moved for attorney’s fees pursuant to section 57.105(1). The trial court denied her motion after an evidentiary hearing.

On appeal, Chue argues that the trial court abused its discretion by denying her motion for attorney’s fees pursuant to section 57.105(1) because Lehman cannot state a claim for abuse of process under the precedent of this court. Lehman responds that Chue is attempting to circumvent the rules of appellate procedure by asking this court to review the denial of her motion to dismiss, even though that is not the order on appeal.

On a motion for attorney’s fees pursuant to section 57.105(1), the trial court must make “ ‘an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.’ ” Hustad v. Architectural Studio, Inc., 958 So.2d 569, 571 (Fla. 4th DCA 2007) (quoting Bowen v. Brewer, 936 So.2d 757, 762 (Fla. 2d DCA 2006)). To award attorney’s fees under section 57.105(1), the trial court must find that the action was “frivolous or so devoid of merit both on the facts and the law as to be completely untenable.” Murphy v. WISU Props., Ltd., 895 So.2d 1088,1093-94 (Fla. 3d DCA 2004); see also Hustad, 958 So.2d at 570 (the mere dismissal of a lawsuit does not necessarily justify an award of attorney’s fees).

Against this backdrop, our task is to determine whether the trial court abused its discretion in ruling that Lehman’s lawsuit was not frivolous; it is not to conduct a de novo review of Lehman’s complaint. Thus, we must consider the evidence presented at the evidentiary hearing concerning what Lehman and his attorney knew or should have known at that point in the litigation. After reviewing this evidence, we conclude that Lehman and his attorney provided testimony from which the trial court could have reasonably concluded that Lehman’s claim was not frivolous. Thus, the trial court did not abuse its discretion in denying Chue’s motion for attorney’s fees. Once again, however, we emphasize that we are not ruling on the sufficiency of Lehman’s complaint, and nothing in this opinion should be construed as such.

We note that Lehman’s attorney testified that Lehman dismissed Chue from the suit for tactical reasons, but that he planned to go forward with the suit in the future. Our decision is based solely on the record before this court in this appeal, and does not bar Chue from seeking attorney’s fees in a future incarnation of this suit, should Chue discover and present additional evidence that Lehman’s claim is frivolous.

Affirmed.

MAY and CIKLIN, JJ„ concur.

      . Chue, a Panamanian lawyer, was hired by Wilson C. Lucom’s widow, Hilda Piza Lucom, to represent her in the various estate proceedings.

      . Chue also filed motions for sanctions pursuant to section 57.105(1) after each of her motions to dismiss. The trial court dealt with all three of the motions at the same time.


text:
    Jack R. KOTLARZ, Appellant, v. Wendy W. KOTLARZ, Appellee.
    No. 1D08-5698.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2009.

      E. Jane Brehany, Pensacola, for Appellant.
    Ross A. Keene and Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

We affirm all issues in this appeal from a final judgment in a dissolution of marriage action, except for the requirement that the former husband maintain a life insurance policy to secure alimony and child support obligations.

The trial court is authorized by sections 61.08(3) and 61.13(l)(c), Florida Statutes, to require a party who is ordered to pay alimony and child support to purchase or maintain a life insurance policy to secure those awards. In order to support the life insurance requirement, the trial court must make specific evidentiary findings as to the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant such security. Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005); Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004). “Such special circumstances include a spouse potentially left in dire financial straits after the death of the obligor spouse due to age, ill health and/or lack of employment skills, obligor spouse in poor health, minors living at home, supported spouse with limited earning capacity, obligor spouse in arrears on support obligations, and cases where the obligor spouse agreed on the record to secure an award with a life insurance policy.” Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005) (quoting Alpha v. Alpha , 885 So.2d 1023, 1034 (Fla. 5th DCA 2004)). “The amount of insurance must be related to the extent of the obligation being secured.” Burnham, 884 So.2d at 392 (citing Zangan v. Cunningham, 839 So.2d 918, 920 (Fla. 2d DCA 2003)). Here, the final judgment includes no specific findings supporting the life insurance requirement; therefore, we reverse as to the life insurance issue and remand for reconsideration.

HAWKES, C.J., WOLF and WETHERELL, JJ., concur.


author: ALTENBERND, Judge.

text:
    David C. MANN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-127.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2009.
   ALTENBERND, Judge.

David C. Mann appeals the trial court’s order summarily denying his motion for postconviction relief that was filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse because the attachments to the trial court’s order do not conclusively show that Mr. Mann is entitled to no relief.

The State filed an information alleging four counts against Mr. Mann. The State charged him with possession and sale of cocaine within 1000 feet of a school on February 17, 2006, and with possession and sale of cocaine within 1000 feet of a school on March 2, 2006.

At trial, Mr. Mann took the stand and admitted that he had sold cocaine to an undercover police officer on March 2. He denied that he had committed the offense on February 17. At the time of the offense on February 17, he claimed that he was visiting his son, who was seriously ill and in Lee Memorial Hospital. He presented no witnesses or documents to confirm this alibi. His credibility concerning this alibi was undoubtedly affected by his admission that he had committed five prior felonies.

Mr. Mann was convicted as charged and sentenced to four concurrent terms of imprisonment, 180 months on the first-degree felonies and 60 months on the third-degree felonies. He filed an appeal but dismissed the appeal in order to pursue this postconviction proceeding.

In his postconviction motion, Mr. Mann raises several claims, only one of which warrants discussion. He maintains that his lawyer was ineffective because she failed to investigate his alibi for the events on February 17. He claims that his son’s mother, whom he identifies by name, could have provided relevant testimony. He also claims that his lawyer failed to examine the hospital records that would have confirmed his visit and perhaps have provided the identities of nurses or doctors who could have testified in support of his alibi.

Although Mi*. Mann’s motion could be alleged in greater detail, the trial court did not dismiss the motion as facially insufficient. Instead, the trial court denied the motion, attaching major portions of the trial transcript. Concerning the claim that Mr. Mann’s attorney was ineffective because she failed to call his son’s mother as a witness to support his alibi and failed to .investigate the hospital records, the trial court denied this claim on the theory that the evidence would have been cumulative to Mr. Mann’s testimony and because Mr. Mann “provided no proof’ that the woman would have testified favorably to him. Given that Mr. Mann was confessing to one drug transaction and had five prior convictions, testimony from another witness could have been invaluable to him. Although a motion is more persuasive if it is accompanied by an affidavit from such an overlooked witness, the law does not require a prisoner to support his sworn motion with additional evidence. See Roundtree v. State, 884 So.2d 322 (Fla. 2d DCA 2004). Thus, the records attached to this order do not refute Mr. Mann’s allegation.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

WALLACE and KHOUZAM, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Maida Solano VOIGT, Appellee.
    No. 2D08-2186.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2009.
    Steven M. Brady of Swartz Campbell LLC, Orlando, for Appellant.

      Jeffrey M. Byrd of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
   SILBERMAN, Judge.

Nationwide Mutual Fire Insurance Company appeals a $50,000 final judgment entered on remand in favor of Maida Solano Voigt on her claim for underinsured motorist benefits. We reverse and remand for the circuit court to set off the sanction awards totaling $23,021.60 that Voigt owes to Nationwide against the $50,000 that Nationwide owes to Voigt.

In a prior appeal, this court reversed a judgment of $440,915.49 in favor of Voigt and remanded for the circuit court to enter a final judgment in accordance with the insurance policy limits of $50,000. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 240 (Fla. 2d DCA 2008). This court granted Nationwide’s motion for appellate attorney’s fees as a sanction pursuant to section 57.105, Florida Statutes (2006), and also remanded for the circuit court to determine a reasonable amount of fees. Id. at 243. The circuit court ultimately entered two judgments, awarding attorney’s fees and costs for circuit court post-judgment proceedings and for appellate proceedings as sanctions against Voigt and her attorney.

Nationwide now contends that the circuit court erred in failing to set off Voigt’s sanctions owed to Nationwide against the $50,000 Nationwide owes to Voigt in a single, net judgment. In a related appeal, this court upheld the sanction awards made pursuant to section 57.105. See Voigt v. Nationwide Mut. Fire Ins. Co., 13 So.3d 61 (Fla. 2d DCA 2009) (table decision). The sanction awards and the $50,000 judgment arise from one proceeding, and there is no reason that the sanction awards against Voigt should not be offset against the $50,000 judgment in her favor. See Lombardo v. Haige, 971 So.2d 1037, 1038-39 (Fla. 2d DCA 2008) (recognizing the propriety of setting off a separate fees and costs order in favor of the tenant against a judgment for unpaid rent in favor of the landlord); Angel Home Health Care, Inc. v. Mederi of Dade County, Inc., 696 So.2d 487, 488 (Fla. 3d DCA 1997) (reversing and remanding for entry of a net judgment rather than a judgment for damages for breach of contract in favor of the plaintiff and a separate judgment on a counterclaim for damages for fraud in favor of the defendant).

Therefore, we reverse the $50,000 judgment in favor of Voigt and remand for the trial court to enter a net judgment after setting off the $23,021.60 that Voigt owes to Nationwide from the $50,000 that Nationwide owes to Voigt.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., Concur.


author: EVANDER, J.

text:
    Jimmy WARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-62.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Ward appeals his judgment and sentence for possession of a firearm while engaged in a criminal offense, possession of cocaine with intent to sell or deliver, and providing a false name to a law enforcement officer. He entered a guilty plea to these three charges, reserving the right to appeal the denial of his dispositive motion to suppress. The firearm and cocaine were found on Ward’s person after his arrest on the providing a false name offense. He contends that his arrest was illegal because he was not lawfully detained at the time he gave a false name. We disagree and, accordingly, affirm Ward’s convictions.

At approximately 2:30 a.m. on September 13, 2007, Ocala police officers Sirolli and Smith were on foot patrol in the multi-building Ocala Place Apartments complex when they observed Ward walk through a fence opening onto the complex’s common grounds. The Ocala Police Department had a written agreement with the apartment complex owner authorizing officers to patrol the property grounds and enforce trespass laws. The complex had large, “no trespassing” signs posted on multiple sides of every building. Officer Sirolli testified that the signs were at eye level, in well-lit areas, cited to Florida’s trespass statute, and referenced that Ocala Police Department officers were authorized representatives for the apartment complex owner. According to Officer Sirolli, one such sign would have been readily visible to Ward at the time he entered upon the apartment complex property.

The officers approached Ward and asked him if he was a resident of the complex. Ward responded “no” and stated that he was just “cutting through.” Officer Sirolli then asked Ward for his name for the purpose of issuing a trespass warning. Ward identified himself as “Jim-ball Covington.” However, when asked to spell the name, Ward gave at least two different spellings. After a computer check indicated that the name was “invalid,” Ward was placed under arrest for giving Officer Sirolli a false name. A search incident to arrest resulted in the discovery on Ward’s person of a pistol and 44 pieces of crack cocaine.

It is a misdemeanor for an individual who has been arrested or lawfully detained to falsely identify himself to a law enforcement officer. See § 901.36(1), Fla. Stat. (2007). In this ease, it is undisputed that Ward provided the officers with a false name prior to his arrest. Thus, the only issue is whether Ward was lawfully detained at the time he falsely identified himself.

To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1998). Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the stop and is based solely on the facts known to the officer before the stop. Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). However, a detention does not occur simply because an officer approaches an individual and initiates a conversation. Voorhees v. State, 699 So.2d 602, 608 (Fla.1997). Thus, when the officers approached Ward and asked him if he lived at Ocala Place Apartments, their actions constituted a consensual encounter, not a detention. Id.

After Ward advised the officers that he was not a resident, but was “cutting through,” the consensual encounter was elevated to a detention because, as acknowledged by Officer Sirolli, Ward was no longer free to leave. This detention was lawful because the officers had reasonable suspicion to believe that Ward had just committed the crime of trespass. Specifically, section 810.09(l)(a), Florida Statutes (2007), provides that an individual commits the offense of trespass when, without being authorized, licensed, or invited, such person willfully enters upon property, other than a structure or conveyance, as to which notice against entering has been given either by actual communication or by posting as described in section 810.011. By his own admission, Ward had no lawful reason to be on the Ocala Place Apartment’s property. Furthermore, there were numerous large, visible “no trespassing” signs throughout the apartment complex, including at the location where Ward entered onto the property.

Having been lawfully detained, Ward’s act of providing a false name to the officers constituted a violation of section 901.36(1). The fact that Officer Sirolli initially intended to exercise his discretion to give Ward a written warning, rather than effect an arrest, did not render the detention unlawful. An officer can lawfully detain an individual who the officer reasonably suspects has committed a crime regardless of whether the officer intends to make an arrest. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (subjective intentions of officers play no role in ordinary, probable cause Fourth Amendment analysis); State v. Wise, 603 So.2d 61, 63 (Fla. 2d DCA 1992) (officer had authority to temporarily detain suspect in order to investigate misdemeanor even though officer could not effect arrest because misdemeanor had occurred outside officer’s presence).

Ward additionally argues that the State failed to establish that the posted “no trespassing” signs strictly complied with the requirements of section 810.011(5). However, the issue is whether the officers had reasonable suspicion to believe that Ward had committed the offense of trespassing, not whether the defendant had actually committed a crime. A police officer is not required to determine conclusively that a crime has occurred prior to detaining an individual. State v. Wimberly, 988 So.2d 116, 119-20 (Fla. 5th DCA 2008). We find no error in the trial court’s denial of Ward’s motion to suppress.

AFFIRMED.

TORPY and COHEN, JJ., concur.

      . § 790.07(2), Fla. Stat. (2007).

      . § 893.13(l)(a), Fla. Stat. (2007).

      .§ 901.36(1), Fla. Stat. (2007).

      . Section 901.36(1) provides:
      It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer.

      . Section 810.011 (5)(a) 1., Florida Statutes (2007), provides:

        (5)(a) 'Posted land’ is that land upon which:
      1. Signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words "no trespassing" and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line....


text:
    Trevor PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-865.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.
    Brian N. Onek, of Onek and Mawn, P.A., Melbourne, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse the trial court’s summary denial of Appellant’s first, third, fifth, and eighth claims in the instant rule 3.850 proceeding as the trial court has failed to conclusively refute the allegations raised therein. We find that these four claims must be resolved in an evidentiary hearing.

In his first claim, Appellant alleged that defense counsel was ineffective for failing to call Matthew Thomas as a witness at Appellant’s jury trial. According to Appellant, Thomas would have testified, inter alia, that while incarcerated with Appellant’s co-defendant, Keith Holloway, at the Brevard County Detention Center, Holloway informed Thomas that he (Holloway) shot the victim and that Appellant was neither in the vehicle at the time of the shooting nor otherwise involved in the events that culminated in the death of the victim.

In claim five, Appellant raised a claim of newly discovered evidence, alleging that co-defendant Keith Holloway was now willing to testify on behalf of Appellant that Appellant was neither at the scene of the shooting nor otherwise involved. Furthermore, Appellant alleged that Holloway would testify that he (Holloway) was the actual shooter and that he was accompanied at the scene by Reginald Patterson and Allen Patterson. Finally, Holloway would testify that after fleeing from the scene in Reginald Patterson’s purple Crown Victoria, the three men would later switch cars and flee in Ashley Barks’ vehicle.

In claim three, Appellant alleged that defense counsel was ineffective for failing to call Ashley Barks as a witness at Appellant’s trial. According to Appellant, Barks was the girlfriend of Allen Patterson at the time of the crime and would testify that, in its immediate aftermath, she was awakened by Allen Patterson at her home and told by Allen that he needed to borrow her car to take Reginald Patterson and Keith Holloway home. Barks would further testify that Appellant was not present during this conversation and that she would later be told by Allen Patterson that he (Allen Patterson) was involved in the offenses.

The trial court denied Appellant’s first claim, finding that any testimony regarding the statements made by co-defendant Keith Holloway while in jail would be merely cumulative to the same testimony actually offered by co-defendant Reginald Patterson at Appellant’s trial. As for the potential testimony of Holloway himself (claim five), the trial court again concluded that any such testimony would be merely cumulative of the trial testimony of co-defendant Reginald Patterson. Finally, with respect to the testimony of Ashley Barks, the trial court concluded that her testimony would not have affirmatively demonstrated that Appellant was not otherwise involved in the offense.

We conclude that these claims, as well as Appellant’s eighth claim (cumulative error), should be reversed and remanded for an evidentiary hearing. It is apparent from the instant record that Appellant’s defense at trial was premised on a mistaken identity between himself and Allen Patterson. Although Appellant did not take the witness stand himself, he did present the testimony of his girlfriend, who testified that Appellant was at her house, where he spent the night, during the time when the instant crimes occurred. In addition, Appellant also offered the testimony of another co-defendant, Reginald Patterson, who testified that Appellant was not involved in the shooting nor present at the scene of the crime, but that Allen Patterson was.

Because the record appears to support the conclusion that the instant case boiled down to a credibility contest between the testimony of witnesses from the State and the defense, we are not convinced that the trial court’s conclusion that the apparently cumulative nature of the testimony of potential witnesses Matthew Thomas and Keith Holloway is sufficient to conclusively refute claims one and five. Cf. Peter v. State, 844 So.2d 699, 699 (Fla. 4th DCA 2003) (“[T]he testimony of a witness should not be excluded as cumulative if doing so reduces the case to a credibility contest between the victim and the defendant.”). Nor are we persuaded by the trial court’s summary conclusion as to claim three that Ashley Barks’ testimony that Appellant was not present when she spoke to Reginald, Keith, and Allen in the immediate aftermath of the offenses would be irrelevant.

Instead, we believe these claims should be entertained at an evidentiary hearing where the trial court will have an opportunity to evaluate the credibility of these potential witnesses and determine whether there exists a reasonable probability that Appellant’s trial might have resulted in a different outcome had this testimony been offered.

We affirm the trial court’s summary denial of Appellant’s remaining claims.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, LAWSON, and COHEN, JJ„ concur.

      . According to Appellant, at the time of Appellant's trial, co-defendant Keith Holloway had not been tried and was asserting his Fifth Amendment privilege.


author: CASANUEVA, Chief Judge.

text:
    Kevin PIPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4626.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2009.
   CASANUEVA, Chief Judge.

Kevin Piper appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial of grounds two and four, as well as the dismissal of ground three, without comment. We reverse the denial of ground one and remand for further proceedings.

Mr. Piper pleaded guilty to three counts of trafficking in methamphetamine in exchange for a total of fifteen years’ imprisonment, day for day. He did not directly appeal his judgment and sentences but timely filed this rule 3.850 motion. In ground one, Mr. Piper claimed that counsel’s ineffective assistance compelled him to enter an involuntary plea. Specifically, he alleged that he accepted the State’s offer because his counsel told him he would not go to trial without a $3000 advance payment. When he told counsel he could not afford that amount, his counsel handed him a plea form. Counsel told him that he had to sign it because “the State let their witnesses go and the Court would be mad and sentence him to 45 to 90 years.” Mr. Piper asserted that the “factual scenario clearly impaired the volun-tariness of defendant’s decision to plea, instead of proceeding to a jury trial on this matter.” The motion contained an oath signed by an unknown person “For KP /s/.”

The postconviction court adopted most of the State’s response in denying this ground, providing two reasons. First, the postconviction court correctly noted that the oath is insufficient. The purpose of the oath is to subject the petitioner to the penalties of perjury should he knowingly misstate the facts. See State v. Shearer, 628 So.2d 1102 (Fla.1993). An oath signed by a person who is not the postconviction movant is generally insufficient to subject the movant to perjury if he alleged any falsities.

Second, the postconviction court determined that the ground was “procedurally barred as raising defenses that [Mr. Piper] knew of and waived as a result of his plea under oath.” Relying upon Gidney v. State, 925 So.2d 1076, 1077 (Fla. 4th DCA 2006), the court held that this ground was an attempt to go behind his plea and that he signed the written plea form, which stated that he had not been coerced into his decision.

However, Gidney’s breadth is not quite so broad. In that case the Fourth District held that the defendant was prohibited from raising three of his claims in a post-conviction motion because they were “possible defenses that he abandoned when he entered his plea.” Id. at 1077. However, Mr. Piper did not raise defenses but asserted that his counsel put him in fear of vindictive sentencing if he chose to go forward to trial. Moreover, Mr. Piper’s assertion that counsel put him in fear of a vindictive sentence from the trial court if he disregarded counsel’s advice by proceeding to trial is not refuted by the record.

Consequently, we reverse the denial of this ground. As previously noted, Mr. Piper’s oath is insufficient. Additionally, he fails to sufficiently allege prejudice. See Ey v. State, 982 So.2d 618, 621 (Fla.2008) (“With regard to guilty and nolo contendere pleas, prejudice is satisfied by demonstrating ‘a reasonable probability that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).”). Therefore, on remand, the post-conviction court shall issue a nonfinal order striking ground one with leave to amend within a reasonable period. See Spera v. State, 971 So.2d 754 (Fla.2007); Lawrence v. State, 987 So.2d 157, 158-59 (Fla. 2d DCA 2008). If Mr. Piper fails to file an amended ground with a proper oath within that period, the postconviction court may enter a final order that is a disposition on the ground’s merits. If Mr. Piper timely files an amended ground with a proper oath, the postconviction court shall consider the ground and dispose of it in a final order. See Koszegi v. State, 993 So.2d 133,134 (Fla. 2d DCA 2008).

Reversed and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . We use the term “generally'' because there certainly may be situations in which this practice is acceptable, i.e., the movant is physically unable to sign.


author: TORPY, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Boyd NICHOLS and Linda Nichols, et aL., Appellees.
    Nos. 5D08-2873, 5D08-4199, 5D08-4200, 5D08-4201, 5D08-4202.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.
    Scot E. Samis of Abbey, Adams, Byel-ick, Kiernan, Mueller, Marone & Samis, L.L.P., St. Petersburg, for Appellant.
    Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, Tampa, for Ap-pellees.
   TORPY, J.

In these consolidated appeals, we address disputes between State Farm and its insureds concerning when it is obligated to pay for subsurface sinkhole repats under its homeowners’ policies. Relying on a statute, State Farm contends that it need not pay for these repats until after the homeowners enter into contracts for the performance of the repairs, notwithstanding language in its policies to the contrary. The insureds contend that the policy language, not the statute, controls and that payment is due within sixty days after the amount of the loss is settled by appraisal. We agree with the insureds and accordingly affirm.

In each of the cases here, appraisal awards separately listed the amount of above-ground damages and the amount of subsurface damages caused by sinkholes. State Farm promptly tendered a check to each of the homeowners for the total amount designated as above-ground damages, but it did not tender the amount designated as subsurface damages, contending that that amount was not due until the homeowners entered into contracts for those repairs.

The homeowners’ policies clearly require State Farm to pay the full amount of an appraisal award within sixty days of the award. They provide, in pertinent part, as follows:

SECTION I — CONDITIONS

10. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
a. 20 days after we receive your proof of loss and reach agreement with you; or
b. 60 days after we receive your proof of loss and:
(1) there is an entry of a final judgment; or
(2) there is a filing of an appraisal award with us.

Notwithstanding this language, State Farm contends that it is authorized by section 627.707(5)(b), Florida Statutes (2007), to withhold the funds until the homeowners have contracted for the repairs. This statute provides in pertinent part:

The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs. After the policyholder enters into the contract, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. The insurer may not require the policyholder to advance payment for such repairs.

We construe this language as permissive, not mandatory. Because it is permissive, the policy language that requires payment of subsurface repairs within sixty days after the appraisal award is not in conflict with the statute and is binding on the parties to the insurance contract.

We decline to address the issue of entitlement to attorney’s fees below because the trial court has not yet ruled on this issue. We also find it unnecessary to address the issue concerning the construction of section 627.702(l)(a), Florida Statutes (2007), which is addressed in one of the appeals.

AFFIRMED.

EVANDER, J. and MOXLEY, J.D., Associate Judge, concur.


author: PER CURIAM. COPE, J.

text:
    Bessie CARDELLA-NAVARRO, Appellant, v. Ralph Lazaro NAVARRO, Appellee.
    No. 3D09-327.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Patricia A. Dempsey, Miami; Gerald I. Kornreieh, Miami, for appellant.
    Elser & Foster-Morales and Dori Foster-Morales, Miami, and Kelly Daniela Feig, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

ROTHENBERG, J., and SCHWARTZ, Senior Judge, concur.

COPE, J.

(dissenting).

We should reverse the order now before us and remand for entry of a written order clarifying the judgment.

This is an appeal of an order denying a post-judgment motion for enforcement in this dissolution of marriage case.

The amended final judgment is internally inconsistent regarding two pieces of property: (1) a Pinecrest home in which the former wife resided after the parties separated, and (2) the husband’s 16% interest in Victoria Bay Estates, LLC, a limited liability company formed for development of real estate. Neither party had complained about these two pieces of property in the prior appeal in this court. See Cardellar-Navarro v. Navarro, 992 So.2d 856 (Fla. 3d DCA 2008).

With regard to the Pinecrest property, the text of the final judgment stated that the court awarded the property to the wife and that she would be “responsible for the mortgage, insurance and tax payments or expenses commencing on the date of the original final judgment, September 22, 2006.” If it stood alone, this language would make the former wife responsible for the mortgage.

Contrarily, however, the table of assets and liabilities in the same amended final judgment places the home’s estimated equity of $165,500 in the wife’s column and requires the parties to split the mortgage debt 50/50. A liability of $238,326.21 was entered in the wife’s column, and an identical amount in the husband’s column. We are told that the home is presently in foreclosure proceedings.

The wife filed a motion for enforcement, contending that the husband was responsible for 50% of the mortgage. The wife requested entry of judgment in her favor for that amount. The former husband contended that the entry in the liabilities portion of the final judgment was a scrivener’s error and that the former wife is responsible for the entire amount.

With regard to Victoria Bay Estates, the text of the amended final judgment states that the “Wife shall be awarded the amount of $136,000.00 from the value of the Husband’s 16% interest in Victoria Bay Estates, LLC.” The table of assets in the amended final judgment lists Victoria Bay Estates as a marital asset valued at $136,000 and places $136,000 in the wife’s asset column. The wife’s motion for enforcement argued that she was to be given the value of the asset, not the asset, and therefore was entitled to a judgment for $136,000. The former husband argues that because the table of assets in the amended final judgment places the $136,000 value in the wife’s column, it follows that his entire 16% interest in the limited liability company has already been transferred to the wife. That is so, the former husband says, because the table of assets indicates that “[e]ach party shall keep, as his or her own, the assets awarded in this section, and the other party shall have no further rights or responsibilities regarding these assets.”

The trial court took the motion for enforcement under advisement and then entered a simple denial without explanation and without clarification of the judgment. Respectfully, the trial court should have entered an order of clarification.

With regard to the Pinecrest property, I accept the proposition that the trial court is saying that the former wife must be responsible for the Pinecrest mortgage.

However, the issue regarding Victoria Bay Estates cannot be resolved so easily. If we look to the text of the judgment, it states that the former wife will receive a payment of $136,000 from the value of the former husband’s interest in that property. This language suggests, but does not say, that the former wife has a lien of some sort on the husband’s interest in the limited liability company. The former husband insists, however, that the amended final judgment has, by operation of law, already conveyed his interest in the limited liability company to the former wife.

Plainly the parties are entitled to clarification whether the former wife is now the owner of the 16% interest in Victoria Bay Estates, as the former husband argues, or whether the former husband continues to own his interest in Victoria Bay Estates subject to some sort of lien in favor of the former wife.

For the stated reasons, I would reverse the order now before us and remand for entry of a written order of clarification.