text:
    Donnie WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0505.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2009.
    Rehearing Denied Dec. 3, 2009.
    Donnie Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., BARFIELD and BENTON, JJ., concur.


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Jose MILTON, etc., Appellant, v. John REYES, Appellee.
    Nos. 3D08-3121, 3D09-493.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 2009.
    Rehearing Denied Dec. 9, 2009.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, and Hinda Klein, Hollywood, for appellant.
    Phillip D. Parrish; Jugo & Murphy, and Steven G. Jugo, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

The appellant, Jose Milton, Trustee, d/b/a International Club Apartments, appeals a judgment rendered upon a jury verdict awarding appellee, John Reyes, $584,500 before reduction, for comparative fault for personal injuries suffered on the International Club premises. International Club challenges the final judgment on the ground the jury was erroneously charged in several respects and the trial court erred in granting Reyes’ motion in limine to exclude evidence of injury to the same shoulder Reyes claimed he injured in this case. Reyes cross-appeals the trial court’s denial of attorney fees pursuant to his offer of judgment.

On the points of error asserted by International Club, we find merit only on the single point, conceded by Reyes, that the trial court erred in failing to give Florida Standard Jury Instruction 6.10, which instructs the jury to reduce the award of future economic damages to present money value. See Seaboard Coast Line R.R. Co. v. Burdi, 427 So.2d 1048, 1050 (Fla. 3d DCA 1988). Accordingly, we reverse this case solely for the purpose of retrial of the jury’s award of damages for future medical expenses. See e.g., Sanchez v. Hernandez, 971 So.2d 944, 946 (Fla. 3d DCA 2007) (ordering new trial only as to the issue of past and future economic damages); Bradshaw v. State Farm Auto. Ins. Co., 714 So.2d 620, 623 (Fla. 5th DCA 1998) (reversing and remanding for new trial solely on the element of the wife’s entitlement to loss of consortium damages). In all other respects, we affirm the verdict reached in this case.

We also find no merit in the cross-appeal. On March 1, 2007, fifteen months before trial, counsel for Reyes filed "with the trial court a one-page “Notice of Service of Proposal for Settlement to Defendant Pursuant to F.S. § 768.79 and Fla. R. Civ. P. 1.442.” The Notice contained the following certificate of service:

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 1st day of March, 2007, to Herbert C. Andrews, Esquire, Law Office of Paul F. Clark, 9130 South Dadeland Boulevard, Two Datran Center, Suite 1701, Miami, Florida 33156.

It is not disputed that counsel for Reyes mailed the Notice to opposing counsel on the date stated in the certificate. Counsel for Reyes also included in the envelope a separate, two-page document entitled “Plaintiff’s Proposal for Settlement to Defendant,” offering to settle the case for $199,999. It also is agreed International Club received the envelope and its enclosures. However, the proposal did not contain a certificate of service. Florida Rule of Civil Procedure 1.442, “Proposals for Settlement,” reads in pertinent part:

(c)(2) A proposal shall:
(G) include a certificate of service in the form required by rule 1.080(f).

Id. (emphasis added). In all other respects, the proposal met the requirements of section 768.79 of the Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442.

We conclude, as did the trial court, this case is legally indistinguishable from the recent Florida Supreme Court decision, Campbell v. Goldman, 959 So.2d 223 (Fla.2007). In Campbell, the Court considered whether an offer of settlement was unenforceable because it failed to make reference to section 768.79 of the Florida Statutes, as expressly required by subsection (2)(a), and Florida Rule of Civil Procedure 1.442(c)(1), which states a proposal for settlement shall identify “in writing ... the applicable Florida Law under which it is being made.” Concluding that both the rule and statute must be strictly construed “[because] in derogation of the common law rule that parties are responsible for their own attorney’s fees,” Campbell, 959 So.2d at 226, the supreme court found the offer unenforceable even though at the time there was only one statute governing offers of judgments implemented by Rule 1.442. Id. at 227. The court further stated the rule of strict construction “is applicable to both the substantive and procedural portions of the rule and statute.” Id.

We recognize that shortly after Campbell, the First District Court of Appeal, in Jefferson v. City of Lake City, 965 So.2d 174, 175 (Fla. 1st DCA 2007), found enforceable an offer which therein cited a non-existent statutory provision, but the correct statute number in the “notice of proposal for settlement.” However, we find persuasive Judge Kahn’s dissent that “[p]rudent counsel, being aware of [Campbell], may have well made a tactical decision not to respond to the offer of settlement in this case, confident that, because the form of the offer was defective, no sanctions could flow from rejection of the offer.” Id. (Kahn, J., dissenting). “The ... result here may be viewed as strict, but it is certainly not harsh.” Id.

Affirmed in part, reversed in part.

      . The final judgment remains well above this sum, even considering our reversal for retrial on future medical expenses.


author: PER CURIAM.

text:
    James THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3259.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2009.
    Rehearing Denied Nov. 17, 2009.
    Nancy A. Daniels, Public Defender, Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction for second-degree murder, raising two issues on appeal: The trial court erred in admitting expert testimony over Appellant’s objection that the State failed to demonstrate that the formula used to calculate the combined frequency statistics of several DNA mixtures satisfied the Frye test; and the trial court fundamentally erred in giving the standard jury instruction for manslaughter by act.

We affirm as to the first issue because the trial court properly found that the combined frequency analysis at issue was an extension of the product rule, which has been recognized in Florida as a generally accepted method of DNA calculations. See Butler v. State, 842 So.2d 817, 829 (Fla.2003) (acknowledging that Florida and other jurisdictions have accepted use of the product rule). Further, even if the trial court erred in admitting the evidence, any such error was harmless.

With regard to the second issue, we are required to reverse Appellant’s conviction in light of Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009).

AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.

WEBSTER, LEWIS, and THOMAS, JJ., concur.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


text:
    Daniel Karr JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2314.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2009.
    Rehearing Denied Dec. 3, 2009.
    Daniel Karr Johnson, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee and, Ladawna Murphy, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

LAWSON, EVANDER, and COHEN, JJ. concur.


author: COPE, J.

text:
    VILLAGE OF DORAL PLACE ASSOCIATION, INC., Appellant, v. RU4 REAL, INC.; For Sale by Owner Realty, Inc.; Joel W. Robbins, as Property Appraiser of Miami-Dade County; and Ian Yorty, as Tax Collector of Miami-Dade County, Appellees.
    No. 3D08-944.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 15, 2009.

      Boyd Santini Parker & Colonnelli and Frank Colonnelli, Jr., Miami, for appellant.
    Larson and Jones and Steven L. Jones, Miami Shores, for appellee For Sale by Owner Realty, Inc.; Deborah Marks, Miami, for appellee RU4 Real, Inc.; R.A. Cue-vas, Jr., Miami-Dade County Attorney and Alexander S. Bokor and Scott Fabricius and Craig E. Leen, Assistant County Attorneys, for appellees Miami-Dade County Tax Collector and Property Appraiser.
    Before COPE, GERSTEN, and SALTER, JJ.
   COPE, J.

The main question we address is whether a part of the condominium’s common area — the swimming pool — could be sold by tax deed after the condominium association failed to pay the tax bill. We conclude that the answer is no.

The Village of Doral Place is a 381-unit condominium located in Miami-Dade County, Florida. On January 1, 1998—the date for assessment of the 1998 taxes—the developer was in control of the condominium association and was the record owner of Tract F, a portion of the condominium property on which the condominium swimming pool was located.

In June, 1998, the developer turned over control to the Village of Doral Place Condominium Association, Inc. (“the Association”). By quitclaim deed, the developer conveyed title to Tract F to the Association. The public property record was changed to reflect that the Association was the new owner of Tract F.

The Miami-Dade County Property Appraiser placed a value of $83,464 on Tract F and a tax bill for $2,593.85 was sent to the Continental Group, the property manager for the Association. The property manager failed to pay the taxes and, according to the Association, failed to inform the Association about the tax bill. In due course, a tax certificate was sold to a local bank, which in turn conveyed it to appel-lees RU4 Real and For Sale by Owner (“FSBO”) (collectively, “the Buyers”).

After two years, the Buyers applied for a tax deed. See § 197.502(1), Fla. Stat. (2003). Notice of the application was addressed to the Association and mailed to the property management company. The Buyers purchased Tract F for $57,000 at the public sale. They came to the property and installed fences which barred access to the swimming pool.

The Association filed suit in circuit court seeking an injunction to restore access to the swimming pool. The Association requested that the tax deed be set aside and requested a declaratory judgment.

The trial court issued a temporary injunction allowing swimming pool access to the unit owners, and requiring the Association to maintain the pool. The court declined to set aside the tax deed, accepting the argument of the Property Appraiser and Tax Collector (collectively “the County”) that this relief was barred by the tax non-claim statute. See § 194.171(2), Fla. Stat. (2003). The court granted declaratory relief, holding that when the Buyers bought Tract F at the public sale, the Buyers took the property subject to the already existing condominium declaration, and that the Association and unit owners are entitled to exclusive use and enjoyment of the swimming pool. The Association has appealed and the Buyers have cross appealed.

The tax deed sale was illegal because it violated section 718.107, Florida Statutes (2003). That statute forbids the separate sale of the common elements of a condominium. The statute provides:

718.107. Restraint upon separation and partition of common elements
(1) The undivided share in the common elements which is appurtenant to a unit shall not be separated from it and shall pass with the title to the unit, whether or not separately described.
(2) The share in the common elements appurtenant to a unit cannot be conveyed or encumbered except together with the unit.
(3) The shares in the common elements appurtenant to units are undivided, and no action for partition of the common elements shall lie.

At oral argument, the County maintained that this statute is inapplicable. The County argued that there is a distinction between a “common element” of a condominium and a “common area.” The County maintained that a “common element” must be something which is integral to the condominium building. According to the County, the swimming pool was part of a “common area,” not a “common element,” and sale of a common area is not prohibited under the statute.

As a preliminary matter, this argument was not raised in the County’s brief or the brief of any other party. The County apparently contends that the trial court’s ruling should be upheld on a right-for-wrong reason basis. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

Assuming for purposes of discussion that this argument is properly before us, the County’s argument is without merit. Chapter 718 provides the applicable definitions.

“Condominium property” is defined as “the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.” § 718.103(13), Fla. Stat. (2003).

A “Unit” is defined as “a part of the condominium property which is subject to exclusive ownership.” Id. § 718.103(27).

“Common elements” are defined as “the portions of the condominium property not included in the units.” Id. § 718.103(8).

Tract F is part of the condominium property which is not subject to exclusive ownership. For purposes of chapter 718, then, Tract F is a common element. Under the plain language of section 718.107, a separate sale of a condominium’s common elements is prohibited.

It is true that the condominium declaration defines the areas outside the condominium units as “common areas.” The declaration does not use the term “common elements.” This difference in terminology makes no difference in substance. For purposes of chapter 718, Tract F satisfies the statutory definition. It is a common element which cannot be separately sold.

The County argues, and the trial court agreed, that the Association’s action is barred by subsection 194.171(2), Florida Statutes (2003), which provides that “[n]o action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s.193.122(2).... ” The statute is inapplicable here. The Association’s claim is that Tract F is a common element which is prohibited from being sold separately by section 718.107, Florida Statutes. That is not a challenge to the assessment. The claim is not barred by subsection 194.171(2).

The County relies on this court’s decision in Hidden Bay Master Association, Inc. v. Miami-Dade County Department of Property Appraisal, 938 So.2d 599 (Fla. 3d DCA 2006), but that case is not on point. In Hidden Bay, the association alleged that the property appraiser erroneously assessed the common areas separately, instead of proportionally adding the assessment to the individual condominium units. Title to the common areas remained in the developer in 2001 and 2002, the years at issue. The Association maintained that the alleged error in the assessment or classification of the property had resulted in an overpayment of taxes. This court agreed with the trial court that the challenge was, in substance, a challenge to the assessment of the property which was time-barred under the sixty-day limit established by subsection 194.171(2), Florida Statutes. The Hidden Bay opinion did not involve any discussion of tax deeds, nor any discussion whether the common elements of a condominium property could be separately sold.

The Buyers argue that they are entitled to prevail under subsection 65.081, Florida Statutes (2003). That statute authorizes the grantee under a tax deed to maintain a quiet title action. Id. § 65.081(1). The statute provides in part, “No defense to the action [to quiet title] or attack upon the tax deed shall be made except the defense that the taxes assessed against the property had been paid by the former owner before issuance of the tax deed.” Id. § 65.081(3). Since the taxes had not been paid before the issuance of the tax deed, the buyers contend that the Association’s challenge to the tax deed must fail. We disagree.

Our responsibility is to read the Florida Statutes in pari materia and to harmonize the statutes with each other wherever possible. “[R]elated statutory provisions must be read together to achieve a consistent whole, and ... ‘[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007); see also Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Indeed, the principle of construing statutes in pari materia with each other was applied by the Florida Supreme Court to an earlier version of section 65.081. Palmquist v. Johnson, 41 So.2d 313, 316-17 (Fla.1949).

The legislature has specifically provided that there shall pass with each condominium unit “[a]n undivided share in the common elements .... ” § 718.106(2)(a), Fla. Stat. (2003). The legislature has specifically prohibited the separate sale of such common elements. Id. § 718.107(2). “The share in the common elements pertinent to a unit cannot be conveyed or encumbered except together with the unit.” Id. § 718.107(2). These concepts are basic to the ownership interests in a condominium. Reading section 718.107 and 65.081 together, we find no indication that subsection 65.081(3) overcomes the ban on separate sale of common elements contained in subsection 718.107.

Further, another applicable maxim of statutory construction is that statutes will not be construed so as to reach an absurd result. See City of St. Petersburg v. Siebold, 48 So.2d 291, 294 (Fla.1950). Here, the Buyers entered and fenced off a portion of the condominium property from the unit owners, which not only interfered with the unit owners’ use and enjoyment, but created troublesome issues regarding who had responsibility to maintain the premises, who had responsibility for safety issues relating to the pool, and who had responsibility to maintain liability insurance. It is simply beyond belief that the legislature intended such a result. We conclude that section 718.107 retains its field of operation and prohibits separate sale of the common elements of a condominium, including separate sale for a tax deed.

On this issue, we reverse the trial court’s order and remand with directions to set aside the 2003 tax deed. As acknowledged by the Association, the Association must repay the Buyers the purchase price with interest. Although the parties have not addressed the issue, apparently section 197.602, Florida Statutes (2003), is applicable. We affirm on the cross-appeal.

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


author: LAGOA, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. Diana LEZCANO and Ricardo Diaz, Respondents.
    No. 3D09-212.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 17, 2009.
    Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy W. Gregoire, Ft. Lauderdale; Roig Kasperovich Tutan & Woods and Fernando L. Roig, Deerfield Beach, for petitioner.
    Lopez & Best and Virginia M. Best, for respondents.
    Before RAMIREZ, C.J., LAGOA, and SALTER, JJ.
   LAGOA, Judge.

State Farm Fire and Casualty Company (“State Farm”) seeks certiorari review of the circuit court appellate division’s per curiam affirmance of two final summary judgments entered by the county court in favor of the respondents Diana Lezcano (“Lezcano”) and Ricardo Diaz (“Diaz”). Because we conclude that State Farm was deprived of due process with respect to the entry of the Lezcano summary judgment, we grant the petition and quash the circuit court’s order as to that case only. We deny the petition as to Diaz without further comment.

I. FACTUAL AND PROCEDURAL HISTORY

State Farm insured Lezcano and Diaz under the same auto insurance policy. As a result of a 2005 accident, Lezcano and Diaz received medical treatment at Figueroa Medical Center (“FMC”). State Farm admits that it received written notice of the loss and received all bills from October 13, 2005, through December 29, 2005.

On February 8, 2006, Lezcano and Diaz filed separate suits against State Farm, alleging that it breached the policy by failing to pay for the medical treatment each received at FMC. State Farm filed amended answers and affirmative defenses alleging that it paid the appropriate amounts under the policy, that the remainder claimed was not reasonable, that the medical services were not reasonable, related, or necessary, and that Lezcano’s and Diaz’s demand letters were invalid because they failed the include an assignment of benefits or revocation of those benefits.

Subsequently, Lezcano and Diaz each filed motions for summary judgments as to liability, reasonableness, relatedness and medical necessity. The county court conducted two hearings on Diaz’s motion for summary judgment: the first on December 5, 2006, and the second on January 16, 2007. At the January 16th hearing, counsel for State Farm advised the trial court that the court was scheduled to conduct an identical hearing in the Lezcano case the next day, January 17, 2007. Counsel for Lezcano, however, responded that that hearing had been continued. As a result, both parties agree that the county court never conducted a hearing on Lezcano’s motion for summary judgment.

On May 17, 2007, the county court entered an order granting Diaz’s motion for summary judgment and also entered final judgment in favor of Diaz. A week later, the trial court entered an order granting Lezcano’s motion for summary judgment and also entered final judgment in favor of Lezcano. Subsequently, State Farm appealed the final judgments to the circuit court’s appellate division, and argued, among other things, that the county court deprived State Farm of due process when it entered the final judgment as to Lezcano without conducting the required hearing. The circuit court per curiam affirmed the final judgments, which were consolidated for appellate purposes. This petition followed.

II. ANALYSIS

As this Court explained in Williams v. Miami-Dade County, 969 So.2d 389, 392 (Fla. 3d DCA 2007), “[review on second-level certiorari is extremely limited, as we are confined to determining whether the lower court provided due process and followed the correct law.” See also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). A lower tribunal provides due process if the complaining party was given notice and an opportunity to be heard. Id. Moreover, a circuit court’s failure to follow the correct law must be “something more than a simple legal error.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). Unless a ruling constitutes a violation of a principle of law which results in a miscarriage of justice, we must deny certiorari. Williams, 969 So.2d at 392.

Here, the county court granted Lezcano’s motion for summary judgment without conducting a hearing on the motion. Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. “The rule does not provide the trial court with discretion to decide whether ‘a hearing is required.’ ” Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992). A trial court’s failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard. Id. (“An order granting summary judgment on liability determines a party’s right to the relief requested and to deny either party a hearing must be construed as a denial of due process.”); accord Greene v. Seigle, 745 So.2d 411 (Fla. 4th DCA 1999) (where trial court granted defendant’s motion for summary judgment without a hearing or notice to plaintiff it violated Rule 1.510(c) and plaintiffs due process rights requiring reversal). A denial of the guarantee of due process represents a violation of a clearly established principle of law such that certiorari relief is warranted. See Casa Inv. Co. v. Nestor, 8 So.3d 1219 (Fla. 3d DCA 2009) (granting certiorari relief and quashing circuit court appellate division’s affir-mance of trial court’s granting of ore ten-us motion for summary judgment which was neither written or properly noticed).

Because State Farm was deprived of a hearing as required under Rule 1.510(c), we conclude that the circuit court appellate division departed from the essential requirements of the law and deprived State Farm of due process. Accordingly, as to Lezcano, we grant the petition for writ of certiorari, quash the circuit court’s decision with directions to reverse the summary judgment entered in her favor, and to remand to the county court for further proceedings.

Petition granted in part, denied in part.

      . Rule 1.510(c) states, in pertinent part:
      (c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ("summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice mailed to the movant's attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent such summary judgment evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing them at least 5 days prior to the day of the hearing, or by delivering them to the mov-ant's attorney no later than 5:00 p.m. 2 business days prior to the day of hearing.

      (emphasis added).

      . This opinion does not preclude State Farm from addressing on remand the claims regarding reasonableness, relatedness, or necessity, as they pertain to Lezcano.


author: ROTHENBERG, J.

text:
    GLK, L.P. and Emanuel Organek, Appellants, v. FOUR SEASONS HOTEL LIMITED and Terremark Brickell II, Ltd., Appellees.
    No. 3D09-591.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 18, 2009.

      Mombach, Boyle & Hardin and Michael P. Hamaway, Fort Lauderdale; Broad and Cassel and Beverly A. Pohl and Linda Spaulding White, Fort Lauderdale, for appellants.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein and Lawrence S. Gordon, Hollywood, for appellees.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

GLK and Emanuel Organek (collectively, “appellants”) appeal from the trial court’s order in favor of the Four Seasons Hotel and Terremark Brickell II (collectively, “appellees”) dismissing with prejudice appellants’ action for rescission and damages because the claim was barred by the statute of limitations. We affirm.

Facts

The facts, viewed in the light most favorable to appellants as the non-moving party, are as follows. Appellants closed on the purchase of seven condominium units in the Millennium Tower Condominium Hotel owned by appellees on July 23, 2004, for a total of $6,656,640. The hotel is part of a mixed-use development project and includes residential units above the hotel. Appellants allege that appellees knew they intended to use the units as rentals for investment purposes and would not be permanently residing in the units. Appellants also claim that appellees guaranteed a certain amount of rental income on the units.

Nearly four years later, on April 6, 2008, Organek read an article in The Wall Street Journal stating that the sale of the condominiums could be considered the sale of securities. Under the Florida Securities and Investor Protection Act, Chapter 517 of the Florida Statutes, the sellers of securities are required to register the purchase agreements, secure a permit or license to sell, and provide buyers with a prospectus. Appellants reviewed the documents appel-lees provided them during their 2004 transaction and found that they did not receive the registration documentation or the applicable exemption documentation required under Chapter 517, Florida Statutes. On September, 24, 2008, appellants filed a one-count complaint alleging that the purchased units qualify as securities and that the sale violated sections 517.07 and 517.12(1). Appellants filed an amended complaint on January 23, 2009, alleging when they discovered the facts giving rise to their cause of action. The trial court dismissed the amended complaint because the suit was time barred. This appeal followed.

Analysis

The standard of review from a trial court’s order dismissing a complaint with prejudice is de novo. Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400 (Fla. 3d DCA 2009). A court may grant a motion to dismiss based on the statute of limitations “only in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law....” Saltponds Condo. Ass’n v. McCoy, 972 So.2d 230, 231 (Fla. 3d DCA 2007).

In this appeal, we must determine whether the trial court erred by concluding, as a matter of law, that the statute of limitations barred appellants’ claim. Appellants contend that what constitutes a security is not easily recognizable and that their cause of action did not accrue until they knew or should have known that a violation of Chapter 517 occurred, which was on April 6, 2008, when Organek read the article and first learned that the purchase of the units may qualify as the purchase of securities, with certain requirements. We disagree.

Under section 95.11(4)(e), Florida Statutes, the limitations period for Chapter 517 violations is two years “running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.... ” The operation of the statute of limitations is not postponed where plaintiffs are in possession of all the facts necessary to determine whether they have a cause of action but are ignorant of the law on which their claim is based. Chidiac v. Cadillac Gage Co., 541 So.2d 650, 650-51 (Fla. 3d DCA 1989). The limitations period begins to run as soon as “a plaintiff has actual or constructive knowledge of only ‘the facts forming the basis of his cause of action’ and not that of the cause of action itself.” Becks v. Emery-Richardson, Inc., 1990 WL 303548, at *9 (S.D.Fla.1990) (citations omitted); see also Vigman v. Cmty. Nat’l Bank & Trust, 635 F.2d 455, 459 (5th Cir.1981) (specifically rejecting appellants’ contention that their causes of action began to run four years after a loan transaction took place when they learned from their lawyer that they might have a cause of action).

Appellants had the documents containing the necessary factual information to form the basis of their cause of action by the time of the July 23, 2004, transaction, according to allegations in appellants’ amended complaint. With the exercise of due diligence, appellants could have discovered the alleged securities violations at the time of the transaction and/or within the two-year statute of limitations. The fact that appellants did not review the documents until after reading The Wall Street Journal article in 2008 does not delay the accrual of their claim. Because appellants had actual notice in 2004 of the facts forming the basis of their claim, the statute began running at that time and bars the suit they brought four years later.

Appellants also contend that because of “material misstatements and omissions,” they were unaware they were purchasing securities and that the delayed discovery rule should be applied to postpone the accrual of their cause of action. Although appellants broadly alleged concealment, they failed to plead fraud with particularity as required. Cedars Healthcare Group, Ltd. v. Mehta, 16 So.3d 914 (Fla. 3d DCA 2009). Moreover, it is well settled that the delayed discovery doctrine postpones the accrual of a cause of action until the plaintiff discovers or reasonably should have discovered a violation when the plaintiff is blamelessly ignorant. Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla.2000).

Although this rule has regularly been applied to securities fraud claims, where tortfeasors conceal their fraudulent conduct, it is not applicable to cases where plaintiffs allege the sale of an unregistered security. McCullough v. Leede Oil & Gas, Inc., 617 F.Supp. 384 (W.D.Okla.1986). “[A] seller of securities cannot conceal the fact that the securities he sells are not registered.... Thus, the discovery rule has little justification in the nonregistration setting.” Id. at 397. Accordingly, because appellants had the documents needed to determine whether they had a cause of action in 2004, they cannot be considered blamelessly ignorant and invoke the delayed discovery rule for their nonregistration claim.

Affirmed.


author: WOLF, J.

text:
    Kelvin COTTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2795.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Rehearing Denied Nov. 17, 2009.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Kelvin Cotton, appellant, challenges his involuntary commitment pursuant to the Jimmy Ryce Act. §§ 394.912 and 394.9155, Fla. Stat. Appellant raises four issues with several sub-issues. We affirm as to all issues but find one merits discussion: whether the trial court erred in admitting evidence of sexual misconduct in other cases to which appellant neither pled guilty nor was convicted. Appellant argues that rules should be adopted in civil commitment cases similar to “Williams Rule” evidence in criminal cases involving admission of collateral crimes evidence. We reject the wholesale adoption of the Williams Rule case law to civil commitment proceedings where the very issue involves propensity to “engage in acts of sexual violence in the future.” See § 394.912(10)(b), Fla. Stat. (2008) (defining a sexually violent predator as one who is “likely” to engage in acts of sexual violence).

On November 17, 2008, the State filed a Petition to Have Respondent Declared a Sexually Violent Predator. The petition alleged that appellant was imprisoned for one count of burglary and three counts of sexual battery. The petition further alleged appellant pled guilty to one count of burglary for another incident during which he grabbed the victim in the vaginal area before she struggled free. The petition also alleged appellant was arrested for sexual assault in three other cases, although the charges were dropped.

Appellant filed several pretrial motions, including a motion to exclude references to unproven crimes or criminal conduct. These motions were denied. During the trial, the State admitted direct evidence of appellant’s involvement in other sexual assaults for which he had not been tried.

Appellant’s main argument on appeal is that evidence of the other sexual acts im-permissibly became a feature of the trial. We reject the argument.

Pursuant to section 394.9155, Florida Statutes (2008), in “all civil commitment proceedings for sexually violent predators,”

(4) The court may consider evidence of prior behavior by a person who is subject to proceedings under this part if such evidence is relevant to proving that the person is a sexually violent predator.

(Emphasis added). A “sexually violent predator” is defined as one who “(a) Has been convicted of a sexually violent offense; and (b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10), Fla. Stat.

The Williams Rule, now codified in section 90.404(2)(a), provides that in a criminal proceeding, “[sjimilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue ... but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” (Emphasis added). See also Nicholson v. State, 10 So.3d 142, 145 (Fla. 4th DCA 2009). The Williams Rule is inapplicable here because a Ryce Act proceeding is not a criminal proceeding and is conducted for the purpose of determining propensity. See § 394.912(10)(b), Fla. Stat. (defining sexually violent predator as one who is “likely” to engage in acts of sexual violence). See also § 394.9155(4), Fla. Stat. (permitting evidence of prior behavior in a Ryce Act proceeding, provided it is relevant to demonstrating the individual is a sexually violent predator).

The large body of Williams Rule jurisprudence was developed to prevent mere propensity evidence from being used in criminal trial. The concern is obvious — a defendant’s inclination toward criminality does not prove the defendant actually committed the crime charged; but, without more, is influential to the point of undue prejudice. Such concern does not arise in the context of Ryce Act proceedings, because the State is required to prove there is likelihood the respondent will commit violent sexual crimes in the future.

AFFIRMED.

PADOVANO and THOMAS, JJ., concur.


author: SALTER, J. SHEPHERD, J.,

text:
    Terje GULBRANDSEN, Appellant, v. Lorraine GULBRANDSEN, Appellee.
    No. 3D07-3043.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.

      DeVane & Dorl, and William N. De-Vane, Jr., Marathon; Greene Smith, and Cynthia L. Greene, Miami, for appellant.
    Joel Lee Sherman, Tampa, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

The former husband in a dissolution of marriage action, Terje Gulbrandsen, appeals an amended final judgment of dissolution of marriage. The former husband raises seven alleged errors by the trial court, although four of these relate to the valuation of specific assets. We reverse on issues relating to an equitable distribution of rights in a patent application and related corporation, and as to both alimony awards; we affirm as to all other points.

Background

At the time the former wife filed the petition below, the parties had been married 23 years. She was 56 years old, and the former husband was 55 years old. The parties’ two children had attained the age of majority before the filing date.

Although the former wife had worked as a professional in the financial industry before marrying, and early in the marriage, she devoted most of the years of the marriage to the care of the parties’ children and home. Her doctor testified at trial that she presently suffers from activity-limiting back and neck conditions.

The former husband worked as an engineer and inventor and has enjoyed good health. He had successfully started and sold a company in his area of specialty, industrial controls. The parties prospered, owning a home in Maryland that sold for $1,800,000 (yielding net proceeds of $1,400,000), a condominium in Marathon, Florida, found by the trial court to be worth $675,000, a retirement account of $1,187,000, and other assets.

During the later years of the marriage, the former husband had devoted his efforts to an invention known as the “Singu-lator,” a component intended to improve the manner in which paper inserts are collated with newspapers and other periodicals. Working on a fifty-fifty basis with a partner who had worked for a major metropolitan newspaper, the former husband and his partner filed a provisional patent application for the Singulator in 2004. The former husband and his business partner also formed a limited liability company, “RT Solutions,” to handle the contractual and accounting matters relating to their efforts. RT Solutions was capitalized with “sweat equity,” and it entered into agreements with a Dutch company whereby RT Solutions was to be paid $17,000 per month for two years for the joint development of the Singulator. After ten months, however, the former husband’s partner stopped invoicing the Dutch company for the monthly payments.

Although the former husband characterized his work on the Singulator as a “hobby,” he and his co-applicant spent tens of thousands of dollars on their patent applications for the Singulator, and they trav-elled extensively to Amsterdam, Chicago, Atlanta, and other locations in connection with the device and its prospective use by newspapers.

The Amended Final Judgment

The trial court entered its judgment of dissolution in substantially the same form as the proposed judgment submitted by the former wife. The equitable distribution provisions were largely unremarkable. Each party retained her or his remaining proceeds from the sale of the Maryland home, the Marathon condominium was valued at $675,000 (each party’s share, $337,500), the retirement account was divided equally ($587,000 per party), the parties retained their Jaguar and Infiniti automobiles, and certain accounts receivable of RT Solutions were split as well.

With regard to the Singulator patent application and RT Solutions, the trial court found that these assets were approximately 50% developed at the time of the dissolution, such that the former husband’s share of each was 25% and the former wife’s equitable distribution should be 12.5% of each. The language of the amended final judgment regarding these assets (and various future contingencies) was sweeping:

The Wife’s entitlement to a 12.5% interest includes a 12.5% interest in any and all prospective future revenue streams that may be derived from the prospective patent, patent application, or amended patent application, future income streams associated with the Sin-gulator or any of its component applications), and future income streams associated with the Singulator process, its component applications, or transferra-ble integrations. Further, the Wife is entitled to a 12.5% interest in RT Solutions, LLC, and any successor entities, successor corporations, successor business entities, successor LLC’s, patents, successor patents, and amended patents.

Am. Final J. of Dissolution of Marriage, ¶ 22, p. 16.

The trial court also found that a $40,000 payment by the former wife’s mother— paid $10,000 to custodial accounts for each child and $20,000 to them, but also deposited by the parties into the children’s custodial accounts — was made with a condition. That condition, which the court found had been accepted by the parties, was that the former wife’s mother be paid 6% interest on the payment, or $2,400 per year. Accordingly, the trial court specified that the parties would be required to continue to pay one-half of that obligation, at $300 per calendar quarter each.

The amended final judgment also awarded the former wife periodic permanent alimony and lump sum alimony. The periodic permanent alimony was computed as the present value of the former wife’s monthly cash flow shortfall ($2,250) from the date of the petition through the former husband’s estimated retirement date. This value, $237,000, was directed by the court to be paid by the former husband within ten days of entry of the final judgment from his remaining proceeds of sale of the Maryland residence.

The trial court then awarded the former wife the former husband’s one-half share of the Marathon condominium (each half valued at $337,500) as lump sum alimony in addition to the lump sum cash award of permanent period alimony. Without addressing the nearly-offsetting distribution of smaller assets (a boat, a Rolex watch, the automobiles, and the accounts receivable), the bottom line on the three major assets (Maryland home proceeds, retirement account, and Marathon condominium, totaling $2,991,000) as adjusted by these alimony awards, was an allocation of $2,081,000 to the former wife (70%) and $910,000 to the former husband (30%).

Analysis

We find no error in the values assigned by the trial court to the boat or the Rolex watch. These values were based on cost and the sparse testimony by the parties. The appellant, former husband, did not present expert valuation testimony that might have been more probative, and chances are that this might have cost more than any indicated reduction in fair market value.

Nor do we find merit in the former husband’s arguments that the former wife should not have been awarded one-half of an RT Solutions receivable and one-half of an amount distributed by RT to the former husband’s business partner. The receivable award was subject to a “pay on pay” provision; “the Wife shall receive her share of the receivable, up to the total of $29,750, at the same time as the Husband and [the former husband’s business partner] receive any amount of the receivable.” This provision made this distribution to the former wife subject to the inherent collection risk in any receivable. The former wife’s half of an amount that had been paid by RT to the former husband’s partner ($44,000), but not to the former husband, reflects a finding based on competent substantial evidence — other amounts were distributed equally between the two partners, and it was reasonable to con-elude that the former husband deferred receipt of the income for attempted tactical advantage in the dissolution proceeding.

Similarly, the record supports the trial court’s analysis and conclusions regarding the $40,000 paid to the parties by the former wife’s mother during the marriage. It was undisputed that the proceeds were invested for the benefit of the children of the marriage (providing an equal benefit to both parties to the marriage) and that the parties agreed to pay 6% interest to the former wife’s mother upon her request. The interest, $2,400 per year, was then apportioned equitably for payment in equal shares by each party.

More detailed assessment is warranted for the three remaining issues raised by the former husband: the broadly-crafted interests in the Singulator patent application and in RT Solutions awarded to the former wife; the permanent periodic alimony; and the lump sum alimony (the former husband’s half interest in the Marathon condominium). The first of these— equitable distribution of an interest in a pending patent application and thus in any later royalties or other proceeds of the patent (if issued) — -is apparently a question of first impression in Florida.

The Patent Application and RT Solutions

There is ample record and legal support for the trial judge’s conclusion that the former husband’s personal 50% interests in the patent application and in RT Solutions were marital assets that were subject to equitable distribution. The former husband invested huge amounts of his own professional time and marital funds in the design, marketing, and patent applications relating to the Sin-gulator. His testimony that his work on the project was a “hobby” is flatly contradicted by the record and the extent of international interest in the device.

Florida law is clear that a trial court may award one spouse one-half of the other spouse’s ownership interest in a closely held corporation. Although such awards are not favored and may well produce friction or additional litigation between the former spouses, one of whom essentially becomes a shareholder in the other spouse’s post-judgment business activity, this is an equitable remedy and the former wife obviously believes that it will produce future income for her.

While the former wife is correct that there exists “a wide range of options to value patent applications,” that is not the path she chose at trial. Eschewing consideration of (1) the value of the professional time and expenses invested in the Singulator or (2) a professional appraisal of the invention as it then existed (reducing any ultimate value by the costs of further development and the uncertainties of actual issuance of a patent), the former wife chose door three, an appropriate in-kind share (fixed by the trial court at one-eighth, rather than half of the former spouse’s half, interest) of the rights themselves and any net royalties or proceeds. This choice is important because it affects the legal analysis applicable to the alimony awards, infra.

Courts outside Florida have reached the same logical conclusion — a patent is personal property that may be the subject of equitable distribution when the inventor and his or her spouse dissolve their marriage. See Monslow v. Monslow, 259 Kan. 412, 912 P.2d 735 (1996), and the related annotation, Frank J. Wozniak, Annotation, Copyright, Patent, or Other Intellectual Property As Marital Property For Purposes of Alimony, Support, or Divorce Settlement, 80 A.L.R.5th 487 (2000). We see no reason to apply a different analysis to a patent application that was deemed sufficiently well developed to submit to the federal patent authorities on a non-provisional basis.

The former husband is correct, however, that the 12.5% distributions in the patent application and the interests in RT Solutions are phrased too broadly. The percentage interest is inequitable to the extent it purports to apply to other patents (i.e., other than the Singulator and its components or “transferrable integrations” under development before the entry of judgment) obtained solely because of post-judgment work by the former husband or others. Similarly, the “successor entities” provisions overreach. While it is true that the former wife’s percentage interest in RT Solutions should not be diluted because of non-arms’-length conveyances or business combinations, it is also possible that the assets of RT Solutions may be sold to a new entity on terms that reduce the parties’ percentage interest in the acquiring entity. The former husband is correct that the language of paragraph 22, page 16, of the amended final judgment must be narrowed so that it applies to a 12.5% interest in the Singulator patent application and in RT Solutions, with the proviso that any subsequent transfers of the application, the patent (if and when issued), or RT Solutions must be at arms’length and must provide proportionate interests or value as between the former husband and the former wife.

Permanent Periodic Alimony

Though acknowledging the substantial discretion of the trial court in these matters, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in this case the former wife’s present need for permanent periodic alimony was not established. The court correctly concluded that there is a disparity in income-producing capacity and that several of the statutory elements in section 61.08, Florida Statutes (2007), were satisfied. In view of the substantial marital assets and minimal liabilities distributed to each of the parties, however, the cash award of $237,000 for permanent periodic alimony was unwarranted.

The former husband’s income-producing capacity is embodied, and according to the record will continue to be expended, toward the mutually-beneficial objective of generating royalty or other income from the Singulator and through RT Solutions. Those assets, apportioned to reflect the equities as of the date of the petition, have already been distributed to the former wife as a 12.5% interest. Her election to take a percentage interest in these assets versus a valuation and buyout, see Monslow, 912 P.2d at 742-43, makes the further award of substantial permanent periodic alimony duplicative and inequitable. On remand, the trial court should award nominal periodic alimony, $1.00 per year, so that the award may be modified if both parties’ hopes for the Singulator’s royalties prove completely unfounded and the wife’s needs are materially altered by other circumstances. This prospect should also further incent the former husband to finalize his pre-judgment work on the Singulator, the related processes, and RT Solutions (rather than to abandon them for post-judgment opportunities that are not subject to the former wife’s 12.5% interests).

Lump Sum Alimony

Similarly, the trial court’s award of the former husband’s one-half interest in the Marathon condominium must be reversed. This is not a case in which such an award is made to allow minor children to continue to reside with a custodial spouse. Nor is it similar to George v. George, 583 So.2d 1043 (Fla. 3d DCA 1989), in which the former wife in a marriage of 38 years was awarded the former husband’s interest in the marital home as lump sum alimony in addition to an award of permanent periodic alimony. In that case, the former husband was “a practicing attorney earning a considerable amount of money each year,” and those future earnings were his alone. Id. at 1044. In contrast, this case features an inventor whose royalties or other passive income have been equitably distributed to the former wife because of the unique nature of the intellectual property he created during the marriage.

In this case, then, the further award of one-half of the condominium as lump sum alimony is grossly inequitable in view of the very substantial equitable distributions to the former wife. On remand, the final judgment must be amended to award each party one-half of the Marathon condominium and to allow the former wife a reasonable period within which to buy out the former husband’s interest. Failing a buy out, the property should be sold and the proceeds divided.

Conclusion

Though reluctant to encroach upon the broad discretion of the trial court in dissolution cases (all appellees’ mantra in dissolution appeals, based on Canakaris), that discretion does have identifiable boundaries. In this case, the judgment below crosses those boundaries on three of the awards, and must therefore be reversed in part.

We affirm the amended final judgment of dissolution in all respects save these:

1. With regard to the patent application and RT Solutions, we reverse and remand for a modification of the overbroad provisions of the judgment, as detailed in this opinion.

2. The award of permanent periodic alimony is reversed and remanded to the trial court for the entry of a nominal award of periodic alimony.

3. The award of lump sum alimony (the former husband’s interest in the Marathon condominium) is reversed and remanded with directions to allow a reasonable time for an agreed buyout by either party of the other’s interest and, failing that, to provide for the sale of the property and equal distribution of the net proceeds of sale.

Affirmed in part, reversed in part, and remanded with directions.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD, J.,

concurring in part and dissenting in part.

I concur in the well-reasoned opinion of the majority in all respects but one. In its Final Judgment, the trial court found a present need for alimony. I concur in the majority opinion that the lower court abused its discretion in making such an award on the facts of this case. I differ with the majority’s sua sponte decision to award nominal alimony to the former wife for two reasons: (1) it is not at all certain the evidence is sufficient to justify such an award; and, (2) regardless, it is our responsibility to allow the trial court to make such a determination in the first instance.

Although the award reversed (permanent periodic alimony) and the award made (nominal alimony) appear at first blush as two sides of the same coin, they are completely different. A permanent alimony award, when granted, is based on present circumstances. See Hollinger v. Hollinger, 684 So.2d 286, 288 (Fla. 3d DCA 1996) (stating a decision to award permanent alimony must be made “on the basis of the evidence before [the court] at the time and not what would or might happen in the future”). An award of nominal alimony looks to the future, and is awardable only if there is a likely future change in circumstances. Esteva v. Rodriguez, 913 So.2d 684, 686 (Fla. 3d DCA 2005) (“[T]he rule, generally, is that where there is a likelihood of a change in the future that would warrant an award of alimony, the court should retain jurisdiction.”) (emphasis added) (quoting Roy v. Roy, 522 So.2d 75, 76 (Fla. 4th DCA 1988)). For good and sufficient reason, including the fact the trial judge is on site and has the ability to observe and evaluate the demeanor of the witnesses, the discretion to make either type of award is reposed in the sound discretion of the trial judge. See Lightcap v. Lightcap, 14 So.3d 259, 260 (Fla. 3d DCA 2009); Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). I am not aware of any case which holds that an appellate court possesses any such authority on the facts of this case.

This case constitutes a good case study for not making such a decision at this level. Adjusting for the results of our opinion today, the former wife and former husband each will exit this marriage with more than $1.1 million dollars in readily accessible cash, a half interest each in a $675,000 unencumbered Florida Keys townhouse, negligible debt, and a potential future hit from the Singulator. The only potential “likely” change of circumstance in the future that might justify an award of alimony is the wife’s health. The former wife complains of severe neck and back pain resulting from two falls on a ski slope, one in 1980 and another in 1995. Yet, the only provable times during all these years she sought medical attention for this condition were in March 2006 — the same month she filed her petition for dissolution — when, as she candidly admits, she consulted a neurosurgeon, Dr. Albert Dudley, solely “because of all the things that were happening and I just wanted to know where I stood physically with what I’m facing,” and on a second occasion just days before trial. These visits produced a diagnosis of “some degenerative disk disease,” and, on the second visit, a herniation of a disk which had not yet manifested itself. The former wife takes Tylenol as needed for her condition. No further treatment or future surgery is indicated.

There is no need for a reservation of jurisdiction or nominal alimony award in this case. As this court has stated, to retain jurisdiction, “there must presently appear in the record foreseeable circumstances to take place in the future as would at that time support an award of alimony.” Esteva, 913 So.2d at 686 (emphasis added). There is no such presently appearing evidence in this case.

      . A “non-provisional" patent application was submitted by the former husband and his partner in 2005, and this was rejected by the Patent Office in early 2007; the former husband and his co-applicant for the patent were continuing to work on amendments to address the Patent Office response.

      . As the judgment itself notes, however, the trial court deleted a proposed provision retaining jurisdiction for an award of attorney's fees and costs (specifying instead that each party would bear its own fees and costs), and made additional, if cosmetic, edits.

      . Although each party had received $700,000 as one-half of the proceeds, their proceeds had been reduced by living and litigation expenses by the time of trial. At that point, the former husband retained approximately $560,000, and the former wife, $582,000.

      . As noted, approximately $22,000 of the former wife’s share is attributable to the greater sum of remaining proceeds in her half of the Maryland home sale proceeds ($582,000 of $700,000, versus the former husband's remaining balance of $560,000).

      . The trial court found, and the evidence showed, that the RT bank account contained sufficient funds at the pertinent date to permit an equivalent $44,000 distribution to the former husband.

        . Awards providing for joint operations or property rights by former spouses are disfavored, for obvious reasons. Robbins v. Robbins, 549 So.2d 1033 (Fla. 3d DCA 1989). In this case, the former wife is placed in a position more analogous to a limited partner or minority shareholder.

      . In other cases, however, a court has determined that a particular patent is simply too speculative to consider. Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985). In this case, the trial court concluded that sufficient interest in the Singulator had been demonstrated and that it was not too speculative for distribution.

      . The dissent expresses a concern that the majority substitutes itself for the trial court and "exempts itself” from the findings required by § 61.08(2), Fla. Stat. (2007). To the contrary, we find that the trial court made appropriate findings as to five of the seven statutory factors. As to factors (d) and (g), however, there are only presently adequate funds available to the former wife by virtue of the equitable distribution, and there is a likelihood that this may change. Two unique and undisputed facts support a nominal alimony award here: the former husband's current income is likely to change based on the success or failure of the Singulator and RT Solutions, and the former wife lacks employment and health insurance. Because it will be several years before she can obtain Medicare coverage, these are factors "necessary to do equity and justice between the parties” (§ 61.08(2)) and matters that will allow the trial court to consider, in later years, modification of the alimony award if there is a substantial change in circumstances. Our instruction to award nominal permanent periodic alimony finds ample support in the case law. Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008); Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001); Squindo v. Osuna—Squindo, 943 So.2d 232, 237 (Fla. 3d DCA 2006); Misiak v. Misiak, 898 So.2d 1159, 1160 (Fla. 5th DCA 2005).

      . In Barbieri v. Barbieri, 582 So.2d 640 (Fla. 3d DCA 1991), cited by the trial court in the amended final judgment, a minor child was residing in the home at the time of the lump sum award. The former husband in that case also received all of the former wife’s one-half interest in his plumbing business as part of award.

      . Upon remand, the parties (guided by their counsel and this opinion) may be able to reflect on the inherent problems of jointly owning certain property together (as a result of the Singulator and RT Solutions interests) after dissolution of the marriage, and may consider instead a settlement in which the former husband’s condominium interest, some part of it, or some other asset is exchanged for the former wife’s interest in the patent application and company. What is abundantly clear from this record, however, is that as a matter of equity and need, the former wife may not exit the marriage with both 70% of the very substantial marital assets and a substantial claim on the former husband's patent application and company.

      . Nor has the majority found any such authority. See supra n. 8. The other three cases cited by the majority — Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008); Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001); Misiak v. Misiak, 898 So.2d 1159, 1160 (Fla. 5th DCA 2005) — are all cases in which there was a clear and present need for an award of alimony, but an inability to pay. As the trial court explained in Schmidt, 997 So.2d at 454, in such a circumstance, 'To]nce the trial court found that the Wife was entitled to be awarded permanent periodic alimony, it was required to do just that — award her permanent periodic alimony, even if only a nominal amount.” In our case, "the former wife’s present need for permanent periodic alimony was not established.” See supra p. 645. Final Judgments of Dissolution should divorce parties, not insert placeholders for future litigation based upon speculation. I hesitate to think what the result might be in this case if the former wife were the inventor. See Kennedy v. Kennedy, 622 So.2d 1033, 1036 (Fla. 5th DCA 1993).

      . The former wife testified she also consulted Dr. Dudley in 2000 and 2001, but Dr. Dudley had no record of any such consultations.


author: HAWKES, C.J.

text:
    Rafael HOLLAND, Appellant, v. CHENEY BROTHERS, INC., and St. Paul Travelers, Appellees.
    No. 1D08-5917.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Rehearing Denied Dec. 3, 2009.

      Kenneth B. Schwartz, West Palm Beach, for Appellant.
    Jerry McKim and Kurt A. Wyland of Walton, Lantaff, Schroeder & Carson, LLP, West Palm Beach, for Appellees.
   HAWKES, C.J.

Claimant challenges the legal sufficiency of an order of the Judge of Compensation (JCC) that denies temporary partial disability (TPD) benefits. Claimant argues that the order fails to contain sufficient findings of ultimate fact, making meaningful appellate review impossible. Because this issue was not preserved, we affirm.

On appeal, Claimant does not raise a substantive argument as to the JCCs application of section 440.15(4)(a)-(e), Florida Statutes (2007), which establishes the legal standard for an award of TPD benefits. Rather, Claimant argues as the basis for reversal that the JCCs order is deficient because it fails to contain ultimate findings of fact regarding the denial of TPD benefits, and that the findings contained in the order are conelusory and prohibit meaningful appellate review. Although Claimants argument has merit, he failed to preserve the issue by bringing the deficiencies to the JCCs attention to allow clarification or amendment prior to initiating the appeal. For this reason, we affirm.

Preservation of Error

This court has held that where an order does not contain the degree of specificity necessary to determine how the JCC reached her conclusions, it must be remanded for additional findings, see Trujillo v. S. Wine & Spirits, 525 So.2d 481, 484 (Fla. 1st DCA 1988); we have never excused, however, the requirement that a party seeking appellate review must preserve an issue by first presenting the perceived deficiency to the JCC.

Traditional rules of preservation of issues apply to workers’ compensation appeals. Cf. Jettison v. Dixie S. Indus., Inc., 857 So.2d 365, 366-67 (Fla. 1st DCA 2003) (affirming JCC’s order because issues on appeal were not preserved by timely objection below). For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation. See Anderson v. Wagner, DPM, 955 So.2d 586, 590 (Fla. 5th DCA 2006). If there is any opportunity to do so, an objection concerning the content of an order or the procedures being utilized should first be presented to the JCC. See Jellison, 857 So.2d at 366-67.

“In workers’ compensation cases, as in other cases, we will not consider arguments which were not presented in a meaningful way to the lower tribunal.” Id. at 366. When “the issue ... arises for the first time in the final order” or “[i]f the error is one that first appears in the final order,” an objection must be preserved by filing a motion for rehearing on the issue. Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234 (Fla. 1st DCA 2008).

The very purpose of a motion for rehearing is to allow the JCC, the sole finder of fact and arbiter of law, the opportunity to consider, correct, and clarify any perceived errors, whether factual or legal, before an order becomes final. See Fla. Admin. Code R. 60Q-6.122(l)-(5). Because reversal by this court on the basis of insufficient findings of facts will result only in a remand for the JCC to do precisely that which was available by way of rehearing — i.e., make additional findings of fact —preservation is necessary. A contrary result would discourage parties from bringing such matters to the JCC’s attention, a process which would waste judicial resources and unnecessarily delay the ultimate disposition of cases.

In rendering our ruling, we are mindful that in workers’ compensation proceedings a motion for rehearing does not toll the time for taking an appeal. Hamilton, 996 So.2d at 234. And, under the procedural rules governing workers’ compensation proceedings, the JCC is not required to vacate a final order upon receiving a motion challenging the contents of an order not yet final. See Fla. Admin. Code R. 60Q-6.122(5) (stating JCC’s act of vacating order is discretionary). Nevertheless, the absence of a ruling on a motion for rehearing will not defeat the preservation requirement, Hamilton, 996 So.2d at 233, and procedurally, this court may consider the absence of a ruling as a denial of the motion. Cf. Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (en banc) (explaining for jurisdictional purposes this court will consider a JCC’s failure to rule on a ripe issue as a denial).

Because Claimant failed to preserve the issue raised in this appeal, the order on appeal is AFFIRMED.

WOLF and WETHERELL, JJ., concur.

         See generally Mitchell v. XO Commc'ns, 3 So.3d 1278 (Fla. 1st DCA 2009) (remanding to JCC for findings of fact where order's lack of clarity prohibited meaningful appellate review).


author: CRENSHAW, Judge.

text:
    In the Interest of S.F., P.F., and C.F., children. R.F. and E.F., Appellants, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D08-4350.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2009.
    Rehearing Denied Dec. 23, 2009.

      Henry G. Gyden of Carlton Fields, P.A., Tampa; and John R. Blue and Robert E. Biasotti, St. Petersburg, for Appellants.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa; and Robin Jensen, Assistant Attorney General, Braden-ton, for Appellee Department of Children and Families.
    Wendie M. Cooper and Thomas Wade Young, Statewide Guardian Ad Litem Program, Orlando, for Appellee Guardian Ad Litem Program.
   CRENSHAW, Judge.

R.F., the Mother, and E.F., the Father, appeal the trial court’s final order terminating the parental rights to their three children: S.F., born November 15, 2004; P.F., born January 20, 2006; and C.F., born September 21, 2007. Because the evidence was insufficient to support the termination as to any of the children, we reverse and remand for further proceedings.

On May 9, 2008, the Department filed a petition for the termination of parental rights to all three children, alleging the Mother and the Father failed to comply with section 39.806(l)(e) and (e), Florida Statutes (2007). The trial court conducted a hearing on the Department’s petition and, at the conclusion of the hearing, entered a final judgment terminating the parental rights of the Mother and the Father on July 30, 2008. The trial court determined the Department proved by clear and convincing evidence that termination of the parental rights was in the manifest best interest of the children and the least restrictive means of protecting the children from harm. This appeal follows.

The Mother and the Father have a fundamental liberty interest in the care, custody, and management of their children; therefore, the Department must prove the allegations supporting the termination of parental rights by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); R.W.W. v. Dep’t of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001). Clear and convincing evidence is defined as an “ ‘intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.’ ” Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 614 n. 7 (Fla.2004) (Cantero, J., specially concurring) (alteration in original) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). The Department must also establish that the termination of parental rights is the least restrictive means of protecting the children from harm. Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991); R.W.W., 788 So.2d at 1023.

At the termination hearing, the trial court determined the Mother’s and the Father’s continued involvement with drugs threatened the well-being and safety of the children pursuant to section 39.806(l)(c). The termination of parental rights under this section requires two findings: “first, that continued interaction with the parent threatens the life, safety, or health of the child, and second, that this threat cannot be remedied by the provision of services.” T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1082 (Fla. 2d DCA 2008). Though drug addiction is an important factor in assessing the threat of prospective harm to the children, a parent’s substance abuse, standing alone, does not establish prospective neglect. C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 522-23 (Fla. 1st DCA 2002); L.D. v. Dep’t of Children & Family Servs., 957 So.2d 1203, 1205-06 (Fla. 3d DCA 2007). The initial ease manager, current case manager, and guardian ad litem all testified that the parents did not place the children in an environment that negatively affected their physical, mental, or emotional well-being. Likewise, there was no clear and convincing evidence of a nexus between either the Mother’s or the Father’s drug use and any existing abuse, neglect, or specific harm to the children. See K.R. v. Dep’t of Children & Family Servs., 843 So.2d 366, 368 (Fla. 2d DCA 2003); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004) (“[I]t is well settled that a parent’s drug addiction, standing alone, is an insufficient ground upon which to terminate parental rights.”). Therefore, we find the trial court erred by granting the petition under section 39.806(l)(c).

Next, the trial court’s order determined the parents “failed to comply with the requirements of their case plans pursuant to [section] 39.806(l)(e).” However, the trial court failed to distinguish its findings among S.F. and P.F., who were parties to the original case plan, and C.F., who was adjudicated dependent only seven months before the termination. The trial court also failed to distinguish its findings between the Father and the Mother, the latter of whom had considerably more difficulties complying with her case plan.

Section 39.806(l)(e)(l) provides that a twelve-month period for compliance with a case plan begins to run “only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the approval by the court of a case plan with a goal of reunification with the parent, whichever came first[.]” The trial court erred when it terminated the parental rights of the Mother and the Father as to C.F. because he was only nine months old at the time of the termination and twelve months had not passed since he was removed from the Father’s custody. See P.P. v. Dep’t of Children & Families, 889 So.2d 91, 92 (Fla. 1st DCA 2004).

We also find that the Department failed to establish by clear and convincing evidence that the circumstances which caused the creation of the case plan were not significantly remedied to the extent that the well-being and safety of the children was endangered upon remaining with or being returned to the parents. See J.C. v. Dep’t of Children & Family Servs., 6 So.3d 643, 649 (Fla. 2d DCA 2009). Although the record reflected the Mother’s and the Father’s drug relapses, the trial court acknowledged their improvement and compliance with the case plans by returning S.F. and P.F. to their care in June 2007 and determining in August 2007 that they had substantially complied with their case plans. The Department again entrusted the care of the children to the Father by returning S.F. and P.F. to his custody in December 2007, and C.F. in February 2008. “[C]hapter 39 does not allow for the termination of parental rights simply for failing to comply with a case plan.” J.R.S. v. Dep’t of Children & Families, 787 So.2d 875, 878 n. 7 (Fla. 2d DCA 2001); see also Dep’t of Health & Rehabilitative Servs. v. M.H., 625 So.2d 909, 910 (Fla. 2d DCA 1993).

Finally, the trial court determined that termination under section 39.806(l)(c) and (e) was the least restrictive means of protecting the children from serious harm. The least restrictive means test requires that “measures short of termination be utilized if such can permit the safe reestablishment of the parent-child bond.” O.M. v. Dep’t of Children & Family Servs., 863 So.2d 476, 480 (Fla. 2d DCA 2004). The trial court acknowledged a strong bond between the children and the parents but found the bond was outweighed by the harm the children would suffer if the relationship continued. For reasons stated above, the Department failed to establish the parents’ actions harmed the children, and any evidence of future harm was speculative at best. The undisputed evidence showed that each parent shared a strong bond with each child and each parent was able to care for the children for substantial periods of time. Moreover, the trial court’s failure to examine the best interests of each child, as opposed to a collective unit, was also error. See K.A. v. Dep’t of Children & Family Servs., 880 So.2d 705, 710 (Fla. 2d DCA 2004) (“[1⅛ cases where the Department seeks to terminate parental rights to numerous children, the trial court cannot treat the children as an amorphous group in which the best interests of one will meet the interests of all.”).

Accordingly, we reverse the final judgment terminating the Mother’s and the Father’s parental rights as to S.F., P.F., and C.F. under section 39.806(l)(e) and (e) and remand for further proceedings.

SILBERMAN and WALLACE, JJ„ Concur.

      . As the Department failed to demonstrate by clear and convincing evidence that either parent's actions threatened the life, safety, or health of any of the three children, we will not discuss the second prong enunciated under T.H.


text:
    The STATE of Florida, Appellant, v. John FULLWOOD, Appellee.
    No. 3D07-2037.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.

      Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    John Fullwood, in proper person.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

The State of Florida (“the State”) appeals the trial court’s final judgment finding that John Fullwood (“Fullwood”) was not a sexually violent predator in need of involuntary civil commitment under section 394.910, Florida Statutes (2006). We reverse.

A jury convicted Fullwood of three separate counts of sexual battery, and the trial court sentenced him to 15 years in prison. Before completing his sentence, the State sought to declare Fullwood a sexually violent predator and involuntarily commit him under section 394.910.

In a pretrial motion, the State sought to exclude testimony from Fullwood’s expert witness, which relied on results from a penile plethysmograph test (“PPG”). The State argued that any testimony relating to the PPG test was inadmissible for use at trial. At the hearing, the trial judge reserved ruling on the admissibility of this evidence pending his review of another judge’s order on the same issue. The trial judge later ruled that the PPG was not new and novel science and therefore not subject to Frye analysis.

At trial, the trial judge allowed substantial testimony on the PPG results and its likelihood to predict Fullwood’s propensity to commit another sexually violent offense. Further, the trial judge directly questioned the State’s expert about his opinion.

The jury was unable to return a unanimous verdict. The trial judge polled the jurors to learn that four jurors were unable to find that Fullwood was a sexually violent predator, and two jurors determined that he was in need of involuntary commitment. Since a majority of the jury would not find Fullwood a sexually violent predator, the trial judge determined that Fullwood was not a sexually violent predator in need of involuntary civil commitment and released him. This appeal followed.

The State asserts that the trial judge erred in failing to conduct a Frye hearing on the PPG evidence. The State also contends that the trial judge erred in questioning the State’s expert witness during direct examination and attacking his credibility. On the other hand, Fullwood asserts that the trial judge properly determined that the PPG evidence was not new and novel evidence and not subject to Frye analysis. Fullwood also contends that the trial judge did not err in questioning the witness because a trial judge has the right to clarify a witness’s opinion during direct examination. We agree with Fullwood on the Frye issue and with the State on the judge’s questioning issue.

First, the trial judge did not err in determining the admissibility of the PPG evidence. A Frye hearing is only necessary to determine whether scientific evidence is new and novel. See Frye v. United States, 293 F. 1013 (D.C. Cir.1923). At the hearing, the trial judge stated that he would review the ruling in another case dealing with the same issue and adopt it. One week later, the trial judge denied the State’s motion to exclude the PPG evidence, finding that the PPG test is not new and novel science and therefore not subject to Frye analysis. Thus, we find that the trial judge conducted a sufficient inquiry.

Because a new trial is required, we turn next to the second issue. A trial judge departs from his or her impartial role when he or she comments on the testimony of a witness. See Reyes v. State, 547 So.2d 347 (Fla. 3d DCA 1989). This Court addressed the importance of a trial judge’s impartiality when it stated:

Great care should always be observed by the judge to avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially, or by innuendo, of conveying any information as to what view he takes of the case, or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.

Reyes, 547 So.2d at 347 (quoting Lester v. State, 37 Fla. 382, 387-88, 20 So. 232 (Fla.1896)).

Further, it is fundamental error for a trial court to improperly comment on the credibility of a witness. See Jacques v. State, 883 So.2d 902, 906 (Fla. 4th DCA 2004). Fundamental error can be considered on appeal even without proper objection or preservation in the lower court because it goes to the foundation of the case. See Jacques, 883 So.2d at 906.

Here, the State was examining its expei’t witness about various incidents that led to Fullwood’s prior convictions. The State asked the expert if Fullwood admitted to the acts underlying the convictions. Defense counsel objected, claiming improper impeachment. The pertinent dialogue followed:

THE COURT: The question being asked, is what he just read an admission that what he alleged to have done he did, am I correct?
[THE STATE]: Yes, Judge.
THE COURT: You can answer.
THE WITNESS: No, not even close.
[THE STATE]: What’s different about it?
[THE WITNESS]: He’s concocted this story about how they have arranged to have sex, how there’s an understanding, there’s a relationship—
[DEFENSE]: Your Honor—
THE COURT: That he concocted? You know what happened? You were sitting there watching what happened in that house?
THE WITNESS: No.
THE COURT: Then?
THE WITNESS: He has a different story for everyone.
THE COURT: That’s not what I asked you. You said he concocted, which means that you saw what happened and therefore denied what his version is and what the victim’s version is correct, and his version’s incorrect, is that what you’re saying?
THE WITNESS: Yes, that’s my opinion.
THE COURT: Because you know that?
THE WITNESS: That’s my opinion.
THE COURT: Based on what? You weren’t asked your opinion. You were asked which is correct, which means you know which is correct, and you don’t, do you? You can guess. You have an opinion, but that doesn’t mean you’re right.
THE WITNESS: May I respond?
THE COURT: Sure. I think the question calls for a yes or a no.
THE WITNESS: The question was, was that an admission of the events of the offense, and when I see the various versions that Mr. Fullwood has given to various interviewers, then—
THE COURT: If that — that was the question, that called for a yes or no, not a conclusion that was concocted.

We find that the trial judge’s comments clearly expressed his view as to the credibility of the witness. Therefore, the trial judge departed from his impartial role when he made these comments.

Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

      . Frye v. United States, 293 F. 1013 (D.C. Cir.1923).


text:
    Jay Paul LENZO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5005.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2009.
    Rehearing Denied Dec. 3, 2009.
    Jay Paul Lenzo, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Latanga T. YOUNG, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Precision Approach, Inc., Appellees.
    No. 1D09-4686.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2009.
    Latanga T. Young, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

Inasmuch as appellant’s notice of appeal was not timely filed, we are required to dismiss this appeal for lack of jurisdiction. Because appellant alleges, however, that she was misadvised by an employee of the Unemployment Appeals Commission concerning the requirement that the notice of appeal be timely filed rather than merely timely mailed, this disposition is without prejudice to appellant’s right to seek relief by filing a motion with the Unemployment Appeals Commission requesting that it vacate and reenter the final order at issue. See Etienne v. Simco Recycling Corp., 721 So.2d 399 (Fla. 3d DCA 1998).

APPEAL DISMISSED.

KAHN, BENTON, and CLARK, JJ., concur.